Smt.K.V. Mahalakshmi W/O. ... vs B. Ibrahim S/O. Basha.B
2022 Latest Caselaw 11222 Kant

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                                                          MFA No. 101630 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. 101630 OF 2020 (MV-D)
                      BETWEEN:

                      1.    SMT.K.V. MAHALAKSHMI W/O. LATE.K.V.RAJAGOPAL
                            ALIAS RAJASHEKAR, AGE : 38 YEARS,
                            R/O : 1ST CROSS, MAHANANDI KOTTAM,
                            TALUR ROAD, BALLARI-583101

                      2.    MINOR.K.V.INDU D/O. LATE.K.V.RAJAGOPAL ALIAS
                            RAJASHEKAR, AGE : 16 YEARS,
                            OCC: STUDENT, R/O : 1ST CROSS,
                            MAHANANDI KOTTAM, TALUR ROAD,
                            BALLARI-583101

                      3.    MINOR.K.V.NANDA S/O. LATE.K.V.RAJAGOPAL ALIAS
                            RAJASHEKAR, AGE : 14 YEARS,
                            OCC: STUDENT, R/O : 1ST CROSS,
                            MAHANANDI KOTTAM,
                            TALUR ROAD, BALLARI-583101

                      4.    MINOR K.V.SANJANA D/O.LATE.K.V.RAJAGOPAL ALIAS,
                            RAJASHEKAR, AGE : 13 YEARS,
                            OCC: STUDENT, R/O : 1ST CROSS,
Digitally signed by
JAGADISH T R
Location: High
                            MAHANANDI KOTTAM, TALUR ROAD,
Court of Karnataka,
Dharwad Bench
Dharwad.
                            BALLARI-583101
Date: 2022.08.03
18:21:48 +0530


                      5.    MINOR.K.V.VISHNAVI D/O.LATE.K.V.RAJAGOPAL ALIAS,
                            RAJASHEKAR AGE : 8 YEARS,
                            OCC: STUDENT, R/O : 1ST CROSS,
                            MAHANANDI KOTTAM, TALUR ROAD,
                            BALLARI-583101

                      6.    MINOR K.V.VARSHITHA D/O.LATE.K.V.RAJAGOPAL
                            ALIAS, RAJASHEKAR
                            AGE : 10 YEARS, OCC: STUDENT,
                            -2-




                                   MFA No. 101630 of 2020




     APPELLANT NO.2 TO 6 ARE MINORS
     REP/BY.MOTHER AND NATURAL GUARDIAN
     SMT.K.V.MAHALAKSHMI
     R/O : 1ST CROSS, MAHANANDI KOTTAM,
     TALUR ROAD, BALLARI-583101

                                             ...APPELLANTS
(BY SRI. MANJUNATHA G PATIL, ADVOCATE)

AND:

1.   B. IBRAHIM S/O. BASHA.B.
     AGE : 25 YEARS,
     DRIVER OF THE MOTOR CYCLE BEARING REG.NO.KA-
     35/Y-5607, R/O : 9TH WARD,
     S.L.CHOWKI, 4TH CROSS,
     BEHIND SHARADA SCHOOL,
     HOSAPETE TALUK, BALLARI DISTRICT-583201

2.   MOHAMMED ALI.B.S/O.TAILOR BASHA.B.
     AGE : 42 YEARS, OWNER OF THE MOTOR CYCLE
     BEARING REG.NO.KA-35/Y-5607
     R/O : 11TH WARD, BACKSIDE,
     SHARADA SCHOOL, HOSAPETE TALUK
     BALLARI DISTRICT-583201

3.   THE DIVISIONAL MANAGER
     M/S.ORIENTAL INSURANCE CO.LTD.,
     BUDA COMPLEX, MOTHI CIRCLE, BALLARI-583101

                                           ...RESPONDENTS
(BY SRI.M.Y. KATAGI, ADVOCATE FOR R3)
(R1 & R2-NOTICE DISPENSED WITH)

     THIS MFA FILED U/S.173 (1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED 19.03.2020
PASSED IN MVC NO.1212/2018 ON THE FILE OF THE MOTOR
ACCIDENT CLAIMS TRIBUNAL-II, BALLARI, 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:
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                                         MFA No. 101630 of 2020


                            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 appellants/claimants are before this Court

under Section 173(1) of the Motor Vehicles Act, 1988 (for

short, 'Act') praying for enhancement of compensation, not

being satisfied with the compensation awarded under

judgment and award dated 19.03.2020 passed in MVC

No.1212/2018 on the file of the learned Member, MACT-II,

Ballari (for short, 'Tribunal').

3. The claimants, who are the wife and minor

children of deceased K.V. Rajagopal filed a claim petition

under Section 166 of the Motor Vehicles Act, 1988 seeking

compensation for the accidental death of deceased K.V.

Rajagopal, that occurred on 31.01.2018 involving two

Motorcycles bearing registration No.KA-35/V-445 & KA-34/Y-

5607. It is stated that the deceased was aged about 45

years as on the date of the accident and he was owner of

MFA No. 101630 of 2020

Lorry bearing registration No.AP-31/TA-7449, earning

Rs.35,000/- per month.

4. In pursuance of notice, respondents No.1 to 3

appeared through their respective counsel and respondents

No.2 and 3 filed their separate written statement denying the

entire claim petition averments. Respondent No.1 adopted

the written statement filed by respondent No.2. Respondent

No.3 contended that the accident in question took place due

to rash and negligent riding of motorcycle bearing

registration No.KA-35/V-445 by deceased rider himself and

therefore, insurance company is not liable to pay any

compensation.

5. Before the Tribunal, claimant No.1-wife of the

deceased examined herself as PW1 and one

Narayanaswamy, relative of the deceased examined as PW2,

apart from marking the documents as Exs.P1 to P6. The

respondents did not examine any witness, policy copy was

marked as Ex.R1. The Tribunal based on the material

evidence on record awarded total compensation of

Rs.19,60,000/- on the following heads:

MFA No. 101630 of 2020

Loss of Dependency Rs.18,90,000/-

     Loss of consortium             Rs. 40,000/-
     Loss of estate and Funeral
     Expenses                       Rs. 30,000/-
           Total                    Rs.19,60,000/-

6. While awarding the above compensation, the

Tribunal assessed the monthly income of the deceased at

Rs.12,000/-, added 25% of the assessed income towards

future prospects, applied multiplier of 14 and deducted 1/4th

towards personal and living expenses of the deceased. 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. Manjunath G Patil, learned counsel

appearing for the appellants and Sri. M.Y. Katagi, learned

counsel for respondent/Insurance Company and perused the

appeal papers.

8. Sri. Manjunath G Patil, learned counsel for the

appellants/claimants would contend that the income of the

deceased assessed by the Tribunal at Rs.12,000/- per month

is on the lower side, inasmuch as the deceased being owner

of the lorry was earning Rs.35,000/- per month and to that

MFA No. 101630 of 2020

effect, the claimants have produced copy of RC of Lorry

which was standing in the name of the deceased. He further

submits that the Tribunal committed an error in not awarding

Rs.40,000/- each towards parental consortium to the

children of the deceased as held by the Hon'ble Apex Court

in Magma General Insurance Company Ltd., Vs. Nanu

Ram and Others1. He also submits that as per decision of

the Hon'ble Apex Court in National Insurance Company

Limited Vs. Pranay Sethi & Others2, the claimants would

be entitled to 10% escalation on the compensation towards

conventional heads & loss of consortium. Thus, he prays for

allowing the appeal.

9. Per contra, Sri. M.Y. Katagi, learned counsel

appearing for respondent No.3-Insurance Company

supporting the impugned judgment and award would submit

that except copy of RC of lorry standing in the name of the

deceased, no other documents have been produced to

establish the exact income of the deceased. In the absence

of any corroborative document, the Tribunal has rightly

2018 ACJ 2782

2017(16) SCC 680

MFA No. 101630 of 2020

assessed the income of the deceased at Rs.12,000/- per

month which is just and proper. He therefore, submits that

the compensation awarded by the Tribunal is just and proper

and same requires no interference at the hands of this Court.

Thus, he prays for dismissal of the appeal.

10. Having heard the learned counsel for both the

parties and on perusal of the appeal papers, the only point

that would fall for consideration in this appeal is as to,

whether the income of the deceased assessed by the

Tribunal at Rs.12,000/- per month requires to be enhanced

and whether claimants are entitled for enhanced

compensation?

11. Our answer to the above point is in the

affirmative for the following reasons.

12. The accident which took place on 31.01.2018

resultant death of deceased K.V. Rajagpoal is not in dispute

in the present appeal. It is the contention of the claimants

that the income of the deceased assessed by the Tribunal at

Rs.12,000/- per month is on the lower side. The claimants

have claimed that the deceased was owner of the lorry

MFA No. 101630 of 2020

bearing registration No.AP-31/TA-7449 and thereby he was

earning Rs.35,000/- per month. The claimants placed on

record copy of RC of lorry standing in the name of deceased.

To prove the income of the deceased, the claimants have not

produced any corroborative document except RC of said

lorry. However, the income of the deceased by the Tribunal

at Rs.12,000/- is on the lower side. Taking into

consideration avocation of the deceased as he was owner-

cum-driver of lorry and also year of accident, we deem it

appropriate to re-assess the income of the deceased at

Rs.15,000/- p.m. instead of Rs.12,000/- assessed by the

Tribunal. Deduction of 1/4th of the assessed income of the

deceased, addition of 25% towards future prospects and

multiplier of '14' taken by the Tribunal are not disturbed,

which are just and proper. Thus, the claimants would be

entitled for compensation on the head of loss of dependency

at Rs.23,62,500/- (Rs.15,000 + 25% x 12 x 14 x 3/4).

13. Due to sudden demise of the deceased, claimants

2 to 6 being children of the deceased have lost love and

affection of their father. Therefore, claimants 2 to 6 would be

MFA No. 101630 of 2020

entitled to Rs.40,000/- each towards parental consortium,

as held by the Hon'ble Apex Court in the case of Magma

General Insurance Company Ltd. (supra). Rs.40,000/-

awarded by the Tribunal towards loss of consortium to wife

of the deceased and Rs.30,000/- towards loss of estate and

funeral expenses is just and proper and same is not

disturbed.

14. Further, it has to be noticed that the in the light

of decision of Hon'ble Apex Court in Pranay Sethi (supra),

the claimants would be entitled to 10% escalation on the

compensation amount under the conventional heads and loss

of consortium.

15. Thus, the claimants would be entitled for modified

compensation on the following heads:

Sl. Particulars Amount No.

1. Loss of dependency Rs.23,62,500/-

(Rs.15,000 (income) + 25%(future prospects) x 12(months) x 14 (multiplier) x ¾ (deduction ¼))

2. Loss of estate & Funeral expenses Rs. 33,000/-

including 10% escalation

3. Spousal Consortium (claimant No.1- Rs. 44,000/-

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MFA No. 101630 of 2020

wife including 10% escalation)

4. Parental Consortium (Rs.40,000/- Rs. 2,20,000/-

including 10% escalation)

Total Rs.26,59,500/-

16. Thus, the claimants would be entitled to total

compensation of Rs.26,59,500/- as against Rs.19,60,000/-

awarded by the Tribunal.

17. Hence, we pass the following:

ORDER

a) The 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.26,59,500/- as against Rs.19,60,000/- awarded by the Tribunal.

c) The enhanced compensation amount will bear interest at the rate of 7% per annum as awarded by the Tribunal from the date of claim petition till entire amount is deposited.

d) Respondent No.3/Insurance Company shall deposit the enhanced compensation amount with interest before the Tribunal

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MFA No. 101630 of 2020

within eight weeks from the date of receipt of certified copy of this judgment.

e) The apportionment, disbursement and deposit of the enhanced compensation shall be made as per award of the Tribunal.

f) Draw modified award accordingly.

Sd/-

JUDGE

Sd/-

JUDGE

JTR