Karnataka High Court

United India Insurance Co. Ltd vs Smt.Mallavva W/O Shankarappa ... on 4 February, 2022

Bench: S G Pandit, Anant Ramanath Hegde

         IN THE HIGH COURT OF KARNATAKA,
                  DHARWAD BENCH

       DATED THIS THE 4TH DAY OF FEBRUARY 2022

                        PRESENT

        THE HON'BLE MR. JUSTICE S.G. PANDIT

                         AND

 THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

            MFA NO.103479 OF 2019 (MV-D)
                         C/W
            MFA NO.105189 OF 2019 (MV-D)

IN MFA NO.103479/2019
BETWEEN:

SMT. MALLAVVA W/O SHANKARAPPA KURTAKOTI
AGE:64 YEARS,OCC:NIL, R/O MASZID STREET,
IBRAHIMPUR, OLD HUBBALLI, HUBBALLI-580024.
                                         ...APPELLANT
(BY SRI. ANJANEYA M, ADVOCATE)

AND

1.    AMBASA S/O RAMACHANDRA KATIGAR
      AGE:47 YEARS, OCC:BUSINESS,
      R/O KAMARIPETH, HUBBALLI-580029.

2.    UNITED INDIA INSURANCE CO. LTD.,
      R.M. JOSHI BUILDING, LAMINGTON
      ROAD, HUBBALLI-580020,
      REP. BY ITS DIVISIONAL MANAGER.
                                       ...RESPONDENTS
(BY SMT. PREETI SHASHANK, ADV. FOR R2) (R1-SERVED)
                          2



     THIS APPEAL IS FILED UNDER SECTION 173(1) OF THE
MV ACT, PRAYING TO CALL FOR THE RECORDS AND HEAR
THE PARTIES AND MAY KINDLY BE MODIFIED THE
JUDGMENT AND AWARD DATED 30.07.2019 IN MVC
NO.766/2017 PASSED BY THE PRL. SENIOR CIVIL JUDGE
AND ADDL. MACT, HUBBALLI BY ALLOWING THIS APPEAL
WITH COST IN THE ENDS OF JUSTICE AND EQUITY.

IN MFA NO.105189/2019
BETWEEN:

UNITED INDIA INSURANCE CO. LTD.,
R.M. JOSHI BUILDING, LAMINGTON
ROAD, HUBBALLI-580020,
REP. BY ITS DIVISIONAL MANAGER.
                                         ...APPELLANT
(BY SMT. PREETI SHASHANK, ADVOCATE)

AND

1.    SMT. MALLAVVA W/O SHANKARAPPA KURTAKOTI
      AGE:64 YEARS,OCC:NIL, R/O MASZID STREET,
      IBRAHIMPUR, OLD HUBBALLI, HUBBALLI,
      DIST-DHARWAD, PINCODE-580024.

2.   AMBASA S/O RAMACHANDRA KATIGAR
     AGE:47 YEARS, OCC:BUSINESS,
     R/O KAMARIPETH, HUBBALLI,
     DISTRICT-DHARWAD,PIN CODE-580020.
                                    ...RESPONDENTS
(BY SRI. ANJANEYA M, ADV. FOR R1)
(R2-NOTICE DISPENSED WITH)

     THIS APPEAL IS FILED UNDER SECTION 173(1) OF THE
MV ACT, PRAYING TO CALL FOR THE RECORDS IN MVC
NO.766/2017 ON THE FILE OF THE PRL. SENIOR CIVIL
JUDGE AND ADDL. MACT, HUBBALLI EXAMINE THE SAME
AND MODIFY THE AWARD DATED 30.07.2019 TO REDUCE
THE COMPENSATION TO JUST LEVEL IN THE INTEREST OF
JUSTICE AND EQUITY.
                                   3



     THESE APPEALS COMING ON FOR ADMISSION, THIS
DAY, S.G. PANDIT J., DELIVERED THE FOLLOWING:

                         JUDGEMENT

Though these appeals are listed for admission, they

are taken up for final disposal, with the consent of learned

counsel for both the parties.

      2.     The      insurer      is     in     appeal    in      MFA

No.105189/2019          challenging            the     quantum      of

compensation, whereas the claimant is also in appeal in

MFA No.103479/2019 praying for enhancement of

compensation, not being satisfied with the compensation

awarded under judgment and award dated 30.07.2019

passed in MVC No.908/2017 on the file of the learned

Principal Senior Civil Judge and Addl. MACT, Hubballi (for

short, 'Tribunal').

3. The claimant, who is none other than widow

mother of the deceased Lokesh Kurtakoti, filed a claim

petition under Section 166 of the Motor Vehicles Act, 1988

seeking compensation for the accidental death of Lokesh

Kurtakoti, which had taken place on 18.10.2017 involving

Motor Cycle bearing registration No.KA-25/EV-8823. It is

stated that the deceased was aged 39 years as on the date

of the accident and was a government servant working as

Panchayat Development Officer in Tandagundi Gram

Panchayat.

4. Before the Tribunal, the claimant examined

PW1 and got marked the documents as

Exs.P1 to P12 in support of her case.

Respondent/Insurance Company did not examine any

witness, but marked insurance policy as Ex.R1. The

Tribunal based on the material evidence on record

awarded total compensation of Rs.65,02,980/- with

interest at 6% per annum.

5. While awarding the above compensation, the

Tribunal determined the income of the deceased at

Rs.35,961/- per month, added 50% towards future

prospects and deducted 50% 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 and insurer is in appeal questioning the

quantum of compensation, which is excessive and

exorbitant.

6. Heard the learned counsel for the claimants as

well as learned counsel for the insurance company and

perused the appeal papers.

7. Sri. Anjaneya M, learned counsel for the

claimant in support of his appeal would submit that the

income of the deceased assessed by the Tribunal at

Rs.35,961/- per month is on the lower side, since the

deceased was drawing a salary of Rs.37,600/- per month

prior to the date of accident. He further submits that the

Tribunal committed an error in not awarding any

compensation on the head of loss of consortium. It is his

submission that the claimant being widow mother of the

deceased would be entitled to Rs.40,000/- towards filial

consortium as held by the Hon'ble Apex Court in the case

of Magma General Insurance Company Ltd., Vs. Nanu

Ram and Others, reported in 2018 ACJ 2782. He further

submits that the compensation awarded on the other

heads is also on the lower side. Thus, he prays for allowing

the appeal filed by the claimant.

8. Smt. Preeti Shashank, learned counsel

appearing for the insurance company in support of her

appeal would contend that as per Ex.P8-salary certificate,

the Tribunal has rightly assessed income of the deceased

at Rs.35,961/- per month, which is just and proper. She

further submits that the Tribunal committed an error in

adding 50% of the assessed income towards future

prospects. It is her submission that since the deceased

was aged 40 years as on the date of the accident, the

claimant would be entitled for addition of 30% of the

assessed income, as held by the Hon'ble Apex Court in the

case of National Insurance Company Limited Vs.

Pranay Sethi & Others, 2017(16) SCC 680. It is her

submission that while awarding compensation on the head

of loss of dependency, the Tribunal committed an error in

not deducting professional tax of Rs.200/- from the income

of the deceased. Thus, she prays for dismissal of the

appeal filed by the claimant and to reduce the

compensation by allowing the appeal filed by the insurance

company.

9. There is no dispute with regard to the accident

and accidental death of deceased Lokesh Kurtakoti in these

appeals. It is the contention of the appellant-claimant that

the income of the deceased assessed by the Tribunal at

Rs.35,961/- per month is on the lower side and it ought to

have assessed the same at Rs.37,600/- per month. But no

document is placed on record to establish the salary or

income of Rs.37,600/-. Admittedly, the deceased was

working as Panchayat Development Officer in Tandagundi

Gram Panchayat. The claimant produced Ex.P8-salary slip

of the deceased for the month of September, 2017,

wherein the salary of the deceased is shown as

Rs.35,961/- per month. From the said income, Rs.200/-

has to be deducted towards professional tax. After

deducting the professional tax of Rs.200/-, the net income

of the deceased would be Rs.35,761/- per month. The

claimant had also produced Ex.P10-Aadhar card, wherein

the date of birth of the deceased is shown as 1.6.1977. As

per Ex.P10-Aadhar card, the age of the deceased as on the

date of the accident was 40 years. The Tribunal

committed an error in awarding 50% of the assessed

income towards future prospects. As held by the Hon'ble

Apex Court in the case of Pranay Sethi (supra), where

the deceased had a permanent job and was between the

age group of 40 to 50 years, an addition of 30% of the

assessed income should be made towards future prospects

of the deceased. Hence, the claimant would be entitled for

adding 30% of the assessed income towards future

prospects. Deduction of 50% towards personal expenses

of the deceased and multiplier of 15 taken by the Tribunal

is not disturbed, which is just and proper. Thus, the

claimant would be entitled to compensation on the head of

loss of dependency at Rs.41,84,010/- (Rs.35,761/-

(income per month) + Rs.10,728 (30% towards future

prospects) = Rs.46,489 - 1/2 (Rs.23,244.5) x 12 (months)

x 15 (multiplier).

10. Further, the Tribunal also committed an error

in not awarding any compensation on the head of loss of

consortium. It is well settled law that the claimant being

widow mother of the deceased, would be entitled to

Rs.40,000/- towards filial consortium as held by the

Hon'ble Apex Court in the case of Magma General

Insurance Co. Ltd. (supra). Further, the compensation

awarded on the other heads is not disturbed, which is just

and proper. Thus, the claimant would be entitled for

modified compensation on the following heads:

Sl.No.             Particulars                  Amount
1.       Loss of dependency                 Rs.41,84,010/-
         (Rs.35,761 (income per month) +
         Rs.10,728 (30% towards future
         prospects) = Rs.46,489 - 1/2
         (Rs.23,244.5) x 12 (months) x 15
         (multiplier)
2.       Loss of estate              Rs.   15,000/-
3.       Filial consortium           Rs.   40,000/-

4. Transportation of dead body Rs. 15,000/-

and funeral expenses Total Rs.42,54,010/-

11. Thus, the claimant would be entitled to total

compensation of Rs.42,54,010/- as against

Rs.65,02,980/-awarded by the Tribunal.

12. Hence, we pass the following:

ORDER

a) Both appeals are allowed in part.

b) The impugned judgment and award of the Tribunal is modified to the extent that the claimant is entitled to total compensation of Rs.42,54,010/- as against Rs.65,02,980/-awarded by the Tribunal.