Karnataka High Court
Maruti S/O. Bharmaji Birje vs Punekar Abdul Gani on 26 November, 2021
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 26TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE RAVI V. HOSMANI
M.F.A.NO.20666/2012 (MV)
BETWEEN:
1. MARUTI S/O. BHARAMAJI BIRJE
AGE: 46 YEARS, OCC: COOLIE
R/O. NO.21, VYAYAM SHALE RASTHE,
KILLA, MARATHA COLONY ROAD, DHARWAD.
2. KAMALAMMA D/O. BHARAMAJI BIRJE
AGE: 43 YEARS, OCC: HOUSEHOLD,
R/O. NO.21, VYAYAM SHALE RASTHE
KILLA, MARATHA COLONY ROAD, DHARWAD.
3. VIJAYALAXMI D/O. GANAPATI BIRJE,
AGE: 25 YEARS, OCC: HOUSEHOLD,
R/O. MARATHA COLONY ROAD, DHARWAD.
...APPELLANTS.
(BY SHRI DINESH M KULKARNI, ADVOCATE.)
AND:
1. PUNEKAR ABDUL GANI
ABDUL REHAMAN,
H.NO. 225, SAKHERPETH,
SOLAPUR, MAHARASTRA.
2
2. THE MANAGER
THE NEW INDIA ASSURANCE CO. LTD.,
GAYATRI KRUPA (UKKA ROAD),
CHANDRANAGAR, LATUR-413 512
...RESPONDENTS.
(BY SHRI G.N.RAICHUR, ADVOCATE, FOR R.2;
R.1 - NOTICE DISPENSED WITH.)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO
MODIFY THE JUDGMENT AND AWARD DATED 25.8.2011, PASSED IN
MVC NO.84/2010, ON THE FILE OF THE PRESIDING OFFICER, FAST
TRACK COURT-I AND ADDL. MACT, BELAGAVI, BY ENHANCING THE
COMPENSATION, ETC.,.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for admission, with consent of
learned counsel for parties, it was heard on merits and taken up
for disposal.
2. This appeal is filed by claimants challenging
judgment and award dated 25.8.2011, passed by the Fast Track
Court-I and Addl. MACT, Dharwad, in MVC No.84/2010, seeking
enhancement of compensation on account of untimely death of
their mother Smt.Indubai Birje, a house wife aged about 77
years.
3. Admittedly claimants are major/non dependent
children of deceased Indubai. Tribunal by taking income of
deceased at Rs.3,000/- per month and applying ratio of decision
of Division Bench of this Court in A.Manavalagan vs.
A.Krishnamurthy and others, reported in ILR 2004 KAR
3268, awarded 25% of compensation towards loss of estate. It
also awarded a sum of Rs.10,000/- towards funeral expenses
and transportation charges and Rs.10,000/- towards loss of love
and affection.
4. Shri Raghavendra Purohit advocate appearing for
Shri Dinesh M. Kulkarni, learned counsel for claimants submits
that claimants are seeking for enhancement of compensation
insofar as monthly income, compensation towards loss of estate
and conventional heads. Relying upon decision of Hon'ble
Supreme Court in National Insurance Company Limited vs.
Birender and others, reported in (2020) 11 SCC 356. He
submitted that Hon'ble Supreme Court held that in case of non
dependent legal representatives, deduction towards personal
expenses would be at 50% and remaining amount to be
awarded as loss of estate.
5. Respondent no.1 was placed exparte before tribunal.
Notice to respondent no.1 is dispensed with in this appeal.
6. Shri G.N.Raichur, learned counsel for respondent
no.2 insurer supported the award and opposed enhancement. It
was submitted that claimants are major and non dependent
children of deceased. Deceased was 77 years of age on date of
accident and in the absence of any specific evidence regarding
her income, no enhancement towards monthly income would be
called for.
7. Learned counsel further submitted that facts of
instant case would not match with facts of Birender case
(supra) and therefore the ratio therein would not apply. On the
said ground learned counsel sought for confirming the award
and dismissal of appeal.
8. From above submission, occurrence of accident, due
to rash and negligent driving of insured vehicle by its driver and
death of claimants' mother in accident is not in dispute. On
consideration, tribunal has passed award holding respondent
No.2 - insurer liable to pay compensation. Insurer has not filed
appeal challenging the same. Therefore liability to pay
compensation is also not in dispute. Claimants are in appeal
seeking enhancement of compensation. Therefore the point that
arises for consideration is:
"Whether claimants are entitled for
enhancement of compensation as sought for?"
9. There is no dispute that claimants being major are not
dependents of deceased. The only question that arises is what
would be extent of compensation that they would be entitled as
loss of estate. Tribunal applied the ratio of decision in
Manavalagan's case (supra) and awarded 25% of
compensation awardable towards loss of estate. However
recently Hon'ble Supreme Court in Birender's case (supra)
has held that non - dependent legal representatives are entitled
for compensation after deduction towards personal expenses at
50%. In Birendar's case also the deceased was mother of
claimants who was working and could to be expected to be
spending on herself. But in the instant case deceased was a
housewife aged 77 years. She cannot in any circumstances be
expected to be spending on herself. Therefore it would be
appropriate to deduct 50% of income towards personal
expenses and award remaining 50% as loss of estate.
10. Admittedly accident occurred during the year 2009.
Notional income for the said period as per norms adopted by
Karnataka State Legal Services Authority for settlement of cases
before Lok Adalath is Rs.5,000/-. The same has to be
considered. Deceased was 77 years of age. Multiplier applicable
would be '5'. Therefore compensation would be Rs.5,000/- x 12
x 5 = Rs.3,00,000/-. As per ratio in Birender's case (supra),
claimants would be entitled to only 50% of the same towards
loss of estate i.e., a sum of Rs.1,50,000/-.
11. In addition to above, claimants would be entitled to
a sum of Rs.40,000/- each towards loss of parental consortium.
They would also be entitled to a sum of Rs.15,000/- towards
funeral expenses. Since more than three years have lapsed after
the decision rendered in National Insurance Company
Limited vs. Pranay Sethi and others, reported in (2017)
16 Supreme Court Cases 680, they would be entitled to
addition of 10% to the award under conventional heads i.e.,
Rs.13,500/-. Thus, claimants would be entitled to a total
compensation of Rs.2,98,500/- as against Rs.65,000/- awarded
by tribunal. Point for consideration is answered accordingly.
12. In the result, I pass the following:
ORDER
i) Appeal is allowed in part with costs.
ii) Claimants are held entitled for a sum of
Rs.2,98,500/- with interest at 6% p.a. from
the date of petition till the date of deposit, as
against Rs.65,000/- awarded by tribunal.
iii) Award amount is ordered to be apportioned
equally between claimants.
iv) Directions issued by tribunal regarding
apportionment and release of compensation
would proportionately apply to enhanced
compensation also.
Sd/-
JUDGE
Mrk/-
