Karnataka High Court
Shalini W/O Late Venkatesh Naik vs Mumtas M W/O Sudheer ... on 1 August, 2022
Bench: S G Bysgpj, Arhj
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MFA No. 102553 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 01ST DAY OF AUGUST, 2022
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
MISC. FIRST APPEAL NO. 102553 OF 2020 (MV-D)
BETWEEN:
1. SHALINI W/O LATE VENKATESH NAIK
AGE: 46 YEARS, OCC: HOUSEHOLD WORK,
R/O: KURIGADDE VILLAGE, BARGI,
TQ: KUMTA, DIST: UTTARA KANNADA,
NOW AT GANDHI NAGAR, DHARWAD, PIN: 580001.
2. ANANDU S/O LATE VENKATESH NAIK
AGE: 27 YEARS, OCC: STUDENT,
R/O: KURIGADDE VILLAGE, BARGI,
TQ: KUMTA, DIST: UTTARA KANNADA,
NOW AT GANDHI NAGAR, DHARWAD, PIN: 580001.
3. VINOD S/O LATE VENKATESH NAIK
AGE: 25 YEARS, OCC: STUDENT,
R/O: KURIGADDE VILLAGE,
BARGI, TQ: KUMTA, DIST: UTTARA KANNADA,
NOW AT GANDHI NAGAR, DHARWAD, PIN: 580001.
...APPELLANTS
Digitally signed by
JAGADISH T R
Location: High
Court of
(BY SRI. HANAMANT R LATUR, ADVOCATE)
Karnataka,
Dharwad Bench
Dharwad.
Date: 2022.08.03
AND:
18:22:16 +0530
1. MUMTAS M W/O SUDHEER PULITHITTAYIL
AGE: 39 YEARS, OCC: TRANSPORT BUISNESS,
R/O: PULITHITTAYIL, KARUVATTA P.O.,
KARUVATTA, ALAPPUZHA, KARYVATTA,
STATE: KERALA, PIN: 690517.
2. THE DIVISIONAL MANAGER
THE NEW INDIA ASSURANCE CO. LTD.,
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MFA No. 102553 of 2020
SOMESHWAR HEIGHTS, OPPO: OLD DSP, OFFICE
P.B. ROAD, DHARWAD, TQ and DIST: DHARWAD,
PIN: 580002.
...RESPONDENTS
(BY SRI.M.K.SOUDAGAR, ADVOCATE FOR R2)
(R1-NOTICE DISPENSED WITH)
THIS MFA FILED U/S.173 (1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED 04.12.2019
PASSED IN MVC NO.658/2016 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE AND
ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, DHARWAD,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
S.G. PANDIT J., DELIVERED THE FOLLOWING.
JUDGMENT
Though this appeal is listed for admission, it is taken
up for final disposal, with the consent of learned counsel for
both the parties.
2. The claimants are before this Court praying for
enhancement of compensation, not being satisfied with the
compensation awarded under judgment and award dated
04.12.2019 passed in MVC No.658/2016 on the file of the
learned Prl. Senior Civil Judge and CJM & Addl. MACT,
Dharwad (for short, 'Tribunal').
MFA No. 102553 of 2020
3. The claimants, who are the wife and children of
the deceased Venkatesh Naik, filed a claim petition under
Section 166 of the Motor Vehicles Act, 1988 seeking
compensation for the accidental death of deceased
Venkatesh Naik, which had taken place on 02.05.2016
involving Bike bearing temporary registration No.KA-14/NT-
o41545/2015-16 and Bus bearing registration No.KL-35/D-
8000. It is stated that the deceased was aged about 48
years as on the date of the accident and he was working as a
labourer under one Gangadhar, earning Rs.12,000/- per
month.
4. On issuance of notice, respondent No.1 was
placed exparte. Respondent No.2-Insurance Company filed
its statement of objections denying the allegations made in
the claim petition contending that due to actionable
negligence on the part of the deceased rider of bike in
question, accident took place. It was further contended that
as on the date of the accident, the deceased rider had no
valid and effective driving license.
MFA No. 102553 of 2020
5. Before the Tribunal, 1st claimant-wife of the
deceased examined herself as PW1 and got marked the
documents as Exs.P1 to P11. Respondents did not examine
any witness, insurance policy marked as Ex.R1. The Tribunal
based on the material evidence on record awarded total
compensation of Rs.7,19,000/- with interest at 6% per
annum on the following heads:
Loss of Dependency Rs.6,24,000/-
Funeral expenses &
Transportation of dead body Rs. 20,000/-
Loss of love & affection Rs. 35,000/-
Loss of estate Rs. 25,000/-
Total Rs.7,19,000/-
6. While awarding the above compensation, the
Tribunal assessed the notional income of the deceased at
Rs.6,000/- per month, deducted 1/3rd towards personal and
living expenses of the deceased and applied multiplier of 13.
The claimants not being satisfied with the quantum of
compensation awarded by the Tribunal are before this Court
praying for enhancement of compensation.
7. Heard Sri. Hanamant R Latur, learned counsel for
the appellants-claimants as well as Sri. M.K. Soudagar,
MFA No. 102553 of 2020
learned counsel for the respondent-Insurance Company and
perused the appeal papers.
8. Sri. Hanamant R Latur, learned counsel for the
appellants-claimants would submit that the notional income
of the deceased assessed by the Tribunal at Rs.6,000/- per
month is on the lower side, since the deceased was working
as a labourer under one Gangadhar and earning Rs.12,000/-
per month. He further submitted that in the light of decision
of the Hon'ble Apex Court in National Insurance Company
Limited Vs. Pranay Sethi & Others1, the claimants would
be entitled to an addition of 25% of the assessed income
towards future prospects. It is further submitted that the
Tribunal committed an error in not awarding any
compensation towards loss of consortium. He further
submits that the claimants being wife and children of the
deceased would be entitled to Rs.40,000/- each towards
spousal and parental consortium as held by the Hon'ble Apex
Court in the case of Magma General Insurance Company
AIR 2017 SC 5157
MFA No. 102553 of 2020
Ltd., Vs. Nanu Ram and Others2. Thus, he prays for
allowing the appeal.
9. Sri. M.K. Soudagar, learned counsel appearing for
the respondent-Insurance Company would contend that even
though the deceased was working as a labourer under one
Gangadhar and earning Rs.12,000/- per month, the
claimants have not produced any acceptable document nor
examined the said Gangadhar under whom the deceased was
working. He further submits that in the absence of any
documentary and cogent evidence to establish the income of
the deceased, the Tribunal has rightly assessed notional
income of the deceased at Rs.6,000/- per month, which is
just and proper. He further submits that the Tribunal on
appreciation of the material on record has rightly awarded
compensation under various heads, which does not call for
any interference at the hands of this Court. Thus, he prays
for dismissal of the appeal.
2018 ACJ 2782
MFA No. 102553 of 2020
10. Having heard the learned counsel for the parties
and on perusal of the appeal papers, the only point that
would fall for our consideration in this appeal is, whether the
claimants would be entitled for enhanced compensation?
11. Our answer to the above point is in the
affirmative for the following reasons.
12. There is no dispute with regard to the accident
and accidental death of deceased Venkatesh Naik in this
appeal. It is the contention of the appellants-claimants that
the notional income of the deceased assessed by the
Tribunal at Rs.6,000/- per month is on the lower side and it
ought to have assessed the same at Rs.12,000/- per month.
Admittedly, the deceased was aged about 48 years as on the
date of the accident. PW1-wife of the deceased in her
evidence deposed that the deceased was working as a
labourer under one Gangadhar and earning Rs.12,000/- per
month. In order to establish the income of the deceased, the
claimants have not produced any cogent document nor
examined any witness. However, in the absence of any
MFA No. 102553 of 2020
documentary evidence to establish the income of the
deceased, this Court and Lok Adalath, while settling the
accidental claims of the year 2016 would assess the notional
income of the deceased at Rs.8,750/- per month, taking note
of the chart prepared by KSLSA based on various factors
including the minimum wage fixed. In the instant case also,
taking note of the same, we deem it appropriate to re-assess
the notional income of the deceased at Rs.8,750/- p.m.
instead of Rs.6,000/- assessed by the Tribunal. Deduction of
1/3rd of the assessed income of the deceased towards
personal expenses and multiplier of '13' taken by the
Tribunal are not disturbed, which are just and proper.
13. Further, the Tribunal committed an error in not
adding 25% of the assessed income towards future
prospects of the deceased. In the case of Pranay Sethi
(supra), the Hon'ble Supreme Court has held that wherever
the deceased was in the age group of 40 to 50 years, the
claimants would be entitled for addition of 25% of the
assessed income towards future prospects. In the instant
case, the deceased was aged 48 years. Therefore, the
MFA No. 102553 of 2020
claimants would be entitled for addition of 25% of the
assessed income towards future prospects. Thus, the
claimants would be entitled for compensation on the head of
loss of dependency at Rs.11,37,500/- (Rs.8,750 + 25% x
12 x 13 x 2/3).
14. It is well settled law that the claimants being wife
and children of the deceased would be entitled to
Rs.40,000/- each towards spousal and parental consortium
as held by the Hon'ble Apex Court in the case of Magma
General Insurance Co. Ltd. (supra). As held by the
Hon'ble Apex Court in the case of Pranay Sethi (supra), the
claimants would be entitled to Rs.15,000/- towards loss of
estate, besides Rs.15,000/- towards transportation of dead
body and funeral expenses. Further, in the light of decision
of Pranay Sethi (supra), the claimants would be entitled to
10% escalation on the compensation under the head of loss
of consortium and conventional heads. Thus, the claimants
would be entitled for modified compensation on the following
heads:
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MFA No. 102553 of 2020
Sl.No. Particulars Amount
1. Loss of dependency Rs.11,37,500/-
(Rs.8,750 (income per
month) + Rs.2,187.5 (25%
towards future prospects)
=10,937.5 x 12 (months) x
13 (multiplier) x 2/3 (1/4th
deduction)
2. Loss of estate & Funeral Rs. 33,000/-
expenses & transportation of
dead body
3. Spousal & Parental Rs. 1,32,000/-
consortium (Rs.40,000/- each
claimants + 10% escalation)
Total Rs.13,02,500/-
15. Thus, the claimants would be entitled to total
compensation of Rs.13,02,500/- as against Rs.7,19,000/-
awarded by the Tribunal.
16. Hence, we pass the following:
ORDER
a) The above appeal is allowed in part.
b) The impugned judgment and award of
the Tribunal is modified to the extent
that the claimants are entitled to total
compensation of Rs.13,02,500/- as
against Rs.7,19,000/- awarded by the
Tribunal.
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MFA No. 102553 of 2020
c) The enhanced compensation amount will
bear interest at the rate of 6% per
annum from the date of claim petition till
date of realization
d) The respondent-Insurance Company
shall deposit the enhanced compensation
amount with accrued interest before the
Tribunal within eight weeks from the
date of receipt of certified copy of this
judgment.
e) On such deposit, out of the enhanced
compensation amount of Rs.5,83,500/-,
Rs.2,00,000/- shall be kept in Fixed
Deposit in the name of the 1st appellant-
wife of the deceased in any nationalized
bank of her choice for a period of three
years with liberty to her to withdraw
interest accrued thereon. Rs.1,00,000/-
each shall be kept in Fixed Deposit in the
name of 2nd & 3rd claimants in any
nationalized bank of their choice for a
period of five years with liberty to them
to withdraw interest accrued thereon.
f) Rs.1,00,000/- shall be released in favour
of the 1st claimant-wife of the deceased.
Remaining amount shall be released in
favour of the 2nd and 3rd claimants in
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MFA No. 102553 of 2020
equal proportion on their proper
identification.
g) Draw modified award accordingly.
h) No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
JTR
