Karnataka High Court

Smt Shivaleela W/O Suresh ... vs Sri Manjunath S/O Ramappa on 8 February, 2022

Bench: S G Pandit, Anant Ramanath Hegde

          IN THE HIGH COURT OF KARNATAKA,
                   DHARWAD BENCH

       DATED THIS THE 8TH DAY OF FEBRUARY 2022

                       PRESENT

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

                         AND

 THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

              MFA CROB. No.100091/2017
                        C/W.
              MFA NO.101512/2015 (MV)

IN MFA CROB. NO.100091/2017

BETWEEN

1.   SMT. SHIVALEELA W/O SURESH MATTIMANI
     AGE: 28 YEARS,
     OCC: HOUSEHOLD WORK

2.   KUMARI HARSHITA D/O SURESH MATTIMANI
     AGE: 6 YEARS, OCC: STUDENT

3.   KUMAR.SAMARTH S/O SURESH MATTIMANI
     AGE: 3 YEARS,
     OCC: STUDENT,

     ALLL ARE R/O: KUMMUR VILLAGE,
     TQ: BYADGI, DIST: HAVERI.
     581106

     APPELLANTS NO.2 AND 3 ARE
     MINORS REPRESENTED BY THEIR MOTHER
     NATURAL GUARDIAN MOTHER
     APPELLANT NO.1, SMT.SHIVALEELA
     W/O SURESH MATTIMANI,
                             2



      AGE: 28 YEARS, OCC: HOUSEHOLD WORK,
      R/O: KUMMUR VILLAGE, TQ: BYADGI,
      DIST:HAVERI-581106.

                                         ...CROSS OBJECTORS

(BY SRI.HANUMANTHAREDDY SAHUKAR, ADVOCATE)

AND

1.    SRI MANJUNATH S/O RAMAPPA
      AGE: MAJOR, OCC: BUSINESS,
      R/O: NO.58,
      THYAVAGODU KALLAMBI,
      TQ: SORAB,
      DIST:SHIVAMOGGA-577429.

2.    THE DIVISIONAL MANAGER,
      ORIENTAL INSURANCE COMPANY LTD.,
      ENKAY COMPLEX,
      KESHWAPUR, HUBBALLI,
      DIST:DHARWAD-580024.
                                       ...RESPONDENTS
(BY SRI.MAHESH WODEYAR, ADVOCATE FOR R1,
 SRI.G.N.RAICHUR, ADVOCATE FOR R2)

      THIS MFA CROSS-OBJECTION IS FILED UNDER ORDER 41
RULE 22 OF CPC AGAINST THE JUDGEMENT AND AWARD DATED
07.04.2015 PASSED IN MVC NO.87/2014 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND MEMBER ADDITIONAL MACT, IT
COURT, BYADGI PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION      AND    SEEKING    ENHANCEMENT     OF
COMPENSATION.

IN MFA NO.101512/2015

BETWEEN

1.    THE DIVISIONAL MANAGER
      THE ORIENTAL INSURANCE CO. LTD.,
      ENKAY COMPLEX, KESHWAPUR
                             3



      HUBLI
      R/BY THE DEPUTY MANAGER
      THE ORIENTAL INSURANCE CO. LTD.,
      SUMNGALA COMPLEX, LAMINGTON ROAD,
      HUBBALLI

                                               ...APPELLANT

(BY SRI.G N RAICHUR, ADVOCATE)

AND

1.     SHIVALEELA W/O. SURESH MATTIMANI
       AGE: 25 YEARS,
       OCC: HOUSEHOLD WORK
       R/O. KUMMUR VILLAGE BYADGI
       DIST: HAVERI

2.     HARSHITA D/O. SURESH MATTIMANI
       AGE: 3 YEARS,
       KUMMUR VILLAGE BYADGI,
       DIST: HAVERI,

3.     SAMARTH S/O. SURESH MATTIMANI
       AGE: 3 MONTHS
       KUMMUR VILLAGE, BYADGI, DIST: HAVERI.

       SINCE RESPONDENTS NO.2 AND 3 ARE MINORS,
       R/BY MOTHER N/G RESPONDENT NO.1


4.     MANJUNATH S/O. RAMAPPA
       AGE: MAJOR, OCC: BUSINESS
       R/O. NO. 58, THYAVAGODU KALLAMBI,
       TQ: SORAB , DIST: SHIVAMOGGA

                                           ...RESPONDENTS

(BY SRI.HANUMANTHAREDDY SAHUKAR, ADVOCATE FOR R1-3,
 SRI.MAHESH WODEYAR, ADVOCATE FOR R4)
                                  4



     THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED:07.04.2015 PASSED IN MVC
NO.87/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, IT COURT,
BYADGI, AWARDING COMPENSATION OF RS.12,42,000/-
ALONG WITH INTEREST AT THE RATE OF 6% P.A. FROM THE
DATE OF PETITION TILL REALIZATION.

     THESE APPEAL AND CROSS-OBJECTION COMING ON FOR
ADMISSION, THIS DAY, S.G. PANDIT J., DELIVERED THE
FOLLOWING:


                       JUDGEMENT

Both the claimants and insurer are in cross-objection

and in appeal challenging the quantum of compensation

awarded under judgement and award dated 07.04.2015

passed in MVC No.87/2014 on the file of the Senior Civil

Judge and AMACT, IT Court Byadgi (for short, 'the

Tribunal').

2. The claimants are before this Court seeking

enhancement of compensation, whereas the insurer is

before this Court praying for reduction of compensation

awarded, on the ground that the compensation awarded

by the Tribunal is exorbitant.

3. The accident which had taken place on

26.10.2013 involving motorcycle bearing No.KA-27/R-6703

and KA-15/S-7056 and the accidental death of deceased

Suresh is not in dispute in these appeals. The claimants-

wife and children of deceased Suresh filed claim petition

under Section 166 of the Motor Vehicles Act claiming

compensation for the accidental death of Suresh. The

insurer appeared and filed its objection before the Tribunal

contending that the driver of the offending vehicle had no

valid and effective driving licence as on the date of the

accident and since two vehicles are involved in the

accident there is contributory negligence of both the riders

of the motorcycle.

4. The claimants in support of their case,

examined PWs.1 to 3 and marked Exs.P.1 to P.14, whereas

respondent-insurer marked Ex.R.1 with consent. The

Tribunal based on the evidence on record awarded total

compensation of Rs.12,42,000.00 with interest at the rate

of 6% p.a. from the date of petition till realization on the

following heads:

Loss of dependency Rs.11,52,000.00 Loss of consortium Rs.20,000.00 Towards transportation of Rs.30,000.00 dead body and funeral expenses Towards loss of estate Rs.40,000.00 Total Rs.12,42,000.00

5. While awarding the above compensation, the

Tribunal assessed the income of the deceased at

Rs.6,000.00 p.m., added 50% of the assessed income

towards future prospects, deducted 1/3rd towards personal

expenses of the deceased and adopted 16 multiplier.

6. Heard learned counsel, Sri.Hanumanthareddy

Sahukar for claimants and Sri.G.N.Raichur for insurer as

well as Sri.Mahesh Wodeyar for owner of the offending

vehicle.

7. Learned counsel, Sri.G.N.Raichur appearing for

the insurer submits that the Tribunal committed an error in

fixing the entire liability on the offending vehicle when

there was contributory negligence on the rider of both the

motorbikes. He submits that the accident had taken place

due to the negligent driving of the rider of both the

motorbikes. Thus, he prays for fastening the liability on

both the riders of vehicle.

8. Nextly, learned counsel contended that the

Tribunal committed grave error in granting 50% of the

assessed income towards future prospects. Relying on the

decision of Hon'ble Apex Court in National Insurance

Company Limited Vs. Pranay Sethi and Others

[(2017) 16 SCC 680], he submits that the claimants

would be entitled for adding 40% of the assessed income

towards future prospects since the deceased was aged 35

years. With this, he prays for allowing the appeal and to

reduce the compensation awarded by the Tribunal.

9. On the other hand, learned counsel for the

claimants submits that the income assessed by the

Tribunal at Rs.6,000.00 p.m. is on the lower side and he

submits that in the absence of any proof relating to

income, the Tribunal ought to have taken the income

based on the chart prepared by the Karnataka State Legal

Services Authority. In that, he submits that the Tribunal

ought to have assessed the income of the deceased at

Rs.7,000.00 p.m. He also submits that the claimants-wife

and two children would be entitled for Rs.40,000.00 each

on the head of spousal consortium and parental

consortium. Thus, he prays for enhancement of

compensation.

10. With regard to the contention of contributory

negligence, it is seen that the Tribunal has rightly fastened

liability on the rider of vehicle bearing No.KA-15/S-7056

based on the material on record. There is no dispute with

regard to filing of charge sheet against the rider of the

motorcycle bearing No.KA-15/S-7056. The insurer has not

placed on record any other material nor examined any

witness in support of its contention that there was

contributory negligence. Therefore, in the present appeal

the insurer is not in a position to convince this Court with

regard to contributory negligence. Thus, this Court would

not interfere with the finding arrived at by the Tribunal

with regard to liability.

11. The Tribunal committed an error in assessing

the income of the deceased at Rs.6,000.00 p.m. The

accident is of the year 2013. For the accidents of the year

2013 this Court would normally assess the notional income

at Rs.7,000.00 p.m. taking note of the chart prepared by

the Karnataka State Legal Services Authority. Accordingly,

in the present case also in the absence of any material to

establish the income of the deceased, we deem it

appropriate to assess the income of the deceased at

Rs.7,000.00 p.m. The deceased was aged 35 years. The

Hon'ble Apex Court in Pranay Sethi (supra) has made it

clear that wherever the deceased was aged below 40

years, the claimants would be entitled for adding 40% of

the assessed income towards future prospects. The

Tribunal committed an error in granting 50% of the

assessed income towards future prospects. Thus, we deem

it appropriate to reduce the same from 50% to 40%.

Multiplier at 16 and deduction of 1/3rd towards personal

expenses of the deceased in the facts and circumstances is

proper and correct. The claimant No.1-wife would be

entitled for Rs.40,000.00 towards spousal consortium,

whereas claimants No.2 and 3 being children of the

deceased would be entitled for Rs.40,000.00 each on the

head of parental consortium.

12. The compensation awarded on the head of

transportation of dead body and funeral expenses at

Rs.30,000.00 is proper and the same is not disturbed. The

claimants would be entitled for Rs.15,000.00 on the head

of loss of estate as against Rs.40,000.00 awarded by the

Tribunal. Thus, the compensation is modified as under:

Loss of dependency Rs.12,54,400.00 Rs.7,000 (income per month) + Rs.2,800 (40% towards personal expenses) = Rs.9,800 x 12 (months) x 16 (multiplier) = Rs.18,81,600 x 2/3rd (deduction towards personal expenses) = Rs.12,54,400.00 Loss of consortium Rs.1,20,000.00

(40,000 x 3) Towards transportation of Rs.30,000.00 dead body and funeral expenses Towards loss of estate Rs.15,000.00 Total Rs.14,19,400.00