Karnataka High Court

Shri. Mukund S/O Govind Gawas vs Shri. Suresh S/O Vasant Borkar on 1 February, 2022

Bench: S G Pandit, Anant Ramanath Hegde

           IN THE HIGH COURT OF KARNATAKA,
                    DHARWAD BENCH

        DATED THIS THE 1ST DAY OF FEBRUARY, 2022

                         PRESENT

           THE HON'BLE MR. JUSTICE S.G. PANDIT
                           AND
     THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

               M.F.A. No. 100460/2016 (MV)
BETWEEN:

1.     SHRI. MUKUND S/O GOVIND GAWAS,
       AGE: 52 YEARS, OCC: NIL.

2.     SMT. RADHIKA W/O MUKUND GAWAS,
       AGE: 47 YEARS, OCC: HOUSEHOLD WORK.

3.    SMT. RACHANA W/O RAVINATH GAWAS,
      AGE: 23 YEARS, OCC: HOUSEHOLD WORK.
ALL ARE R/O C/O MOTIRAM LAXMAN GAWADE,
DHAN-LAXMI BUILDING, PEERANAWADI,
TAL. & DIST. BELAGAVI.
                                       -      APPELLANTS
(BY SRI. SANJAY S. KATAGERI, ADVOCATE)

AND:

1.     SHRI. SURESH S/O VASANT BORKAR,
       AGE: MAJOR, OCC: BUSINESS, R/O H. NO. 368/G,
       CHANDRU WADO, FATODA (POST),
       MADAGAON, SOUTH GOA.

2.    THE DIVISIONAL MANAGER,
      NATIONAL INSURANCE CO. LTD., HAVING ITS
      OFFICE AT : RAMDEV GALLI, BELAGAVI.
                                       -  RESPONDENTS
(BY SRI. M.Y. KATAGI, ADVOCATE FOR R2,
NOTICE TO R1 IS SERVED)
                              2



     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF M.V. ACT AGAINST THE JUDGMENT AND
AWARD PASSED BY THE LEARNED VI ADDL. DIST. & SESSIONS
JUDGE & ADDL. MACT, BELAGAVI IN M.V.C. NO. 2236/2013
DATED 18.09.2015 & ETC.

     THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
FINAL HEARING THIS DAY, S.G. PANDIT J., DELIVERED THE
FOLLOWING:

                        JUDGMENT

Claim petition u/S 166 of M.V. Act was filed by the

legal representatives of the deceased Ravinath Gawas

claiming compensation for the accidental death in a motor

vehicle accident occurred on 18.09.2013 involving Maruti

Swift Car bearing No. GA-08-F-2854 and motorcycle

bearing No. GA-04-A-7386. It is stated that deceased was

working as Supervisor at Goa, earning `20,000/- per

month and aged 30 years as on the date of accident. The

Tribunal based on the material on record awarded total

compensation of `12,57,000/- with interest at the rate of

9% p.a. While awarding compensation the Tribunal

assessed income of the deceased at `6,550/- per month,

deducted 1/3 towards personal expenses and adopted

multiplier of 16. The claimants-wife and parents of the

deceased not being satisfied with the compensation

awarded by the Tribunal, are before this Court.

2. Heard learned counsel for the parties and perused

the trial Court records.

3. Learned counsel for the appellant would submit that

the income assessed by the trial Court at `6,550/- per

month for the accident of the year 2013 ignoring the salary

certificate-Ex.P.9 is erroneous and on the lower side. He

submits that the salary certificate-Ex.P.9 indicates that the

deceased was receiving a salary of `20,000/- per month.

The Tribunal failed to appreciate the said document and

assessed the income at `6,550/- per month, which is on

the lower side. Thus he prays for reassessment of the

income of the deceased.

4. Learned counsel further submits that deceased was

holding certificate from Government Polytechnic, Mayem,

Goa, for having completed Refrigeration & A/c

Mechanic Course. Since the deceased was technically

qualified, the income has to be determined taking note of

the same. He also submits that the Tribunal failed to

award compensation on the head of future prospects that

the appellant would be entitled to at 40% of the assessed

income. Thus prays for enhancement of compensation.

5. On the other hand, Sri M.Y. Katagi, learned counsel

for the respondent-insurance company submits that the

compensation awarded by the Tribunal is more than the

entitlement of the claimants. It is his submission that

Ex.P.12 discloses that deceased had not passed SSLC and

as such the income assessed by the Tribunal at `6,550/-

per month is proper. He would further point out that the

compensation awarded by the Tribunal on conventional

heads is much more than what is permitted by the Hon'ble

Apex Court in the case of National Insurance Company

Limited V. Pranay Sethi and Others (AIR 2017 SC

5157). Hence, he prays for dismissal of the appeal.

6. Having heard learned counsel for the parties and on

perusal of the records, the only point which fall for

consideration is:

Whether the claimants are entitled for enhancement

of compensation?

The answer to the above point is in the affirmative

for the following reasons.

REASONS

7. The motor vehicle accident that occurred on

18.09.2013 involving Maruti Swift Car bearing No. GA-08-

F-2854 and motorcycle bearing No. GA-04-A-7386 and the

resultant death of the victim who was aged 30 years is not

disputed in this appeal. The Insurance Company has not

questioned the judgment and award passed by the

Tribunal.

8. The accident is of the year 2013. It is claimed that

the deceased was working as Supervisor/ Site Engineer

and receiving salary of `20,000/- per month as indicated in

Ex.P.9. But, in support of Ex.P.9, the author of the

document was not examined. Exs.P.9, 10 and 11 are not

proved in accordance with law. Hence, those documents

cannot be looked into for the purpose of determining

income of the deceased. However, we have to take note

of the fact that the deceased had completed six months

training course in Refrigeration & A/c Mechanic Course

from Government Polytechnic, Mayem, Goa. Taking note

of his technical certificate we deem it appropriate to assess

income of the deceased at `8,000/- per month as against

`6,550/- per month assessed by the Tribunal.

9. The Tribunal has failed to award compensation on

the head of future prospects in terms of the decision of the

Hon'ble Apex Court in Pranay Sethi (supra), wherein it is

held that wherever the deceased aged less than 40 years,

the claimant/s would be entitled for adding 40% of the

assessed income towards future prospects. Thus, the

claimants would be entitled to add 40% of the assessed

income towards future prospects.

10. The Tribunal committed an error in awarding

`1,00,000/- towards love and affection to parents,

`1,00,000/- towards love and affection to the wife,

`1,00,000/- towards loss of estate, `1,00,000/- towards

loss of consortium and `25,000/- towards transportation of

dead body and funeral expenses.

11. The Hon'ble Apex Court in Pranay Sethi supra has

also made clear that the claimants would be entitled for

`15,000/- towards loss of estate and `15,000/- towards

transportation of dead body & funeral expenses. Further,

the wife would be entitled for `40,000/- towards spousal

consortium.

12. The Hon'ble Apex Court in the case of Magma

General Insurance Co. Ltd. V. Nanu Ram and Others

(2018 ACJ 2782) has laid down that parents of the

deceased are entitled for a sum of `40,000/- each towards

filial consortium. Thus, the claimants are entitled for the

modified award as under:

  Sl. No.     Particulars                  Amount `
  1.          Loss        of    dependency 14,33,664.00
              (7467x12x16)
  2.          Spousal consortium              40,000.00
  3.          Filial consortium               80,000.00
  4.          Loss of estate                  15,000.00
  5.          Transportation of dead body     15,000.00
              and funeral expenses
              Total                        15,83,664.00

For the foregoing reasons, we pass the following order.

ORDER

Appeal filed by the claimant-appellant is allowed in

part. The judgment and award passed by the learned VI

Addl. Dist. & Sessions Judge & AMACT, Belagavi in M.V.C.

No. 2236/2013 dated 18.09.2015, is modified to the

extent that the claimant is entitled for a total

compensation of `15,83,664/- as against `12,57,000/-

awarded by the Tribunal with interest at 6% p.a. from the

date of petition till realization. The order of apportionment

and deposit of the compensation amount shall remain in

tact.