Karnataka High Court
E Savita @ Savita And Ors vs Mohammed Anwar And Anr on 11 February, 2022
Bench: S.R.Krishna Kumar, K S Hemalekha
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF FEBRUARY 2022
PRESENT
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
AND
THE HON'BLE MRS.JUSTICE K.S.HEMALEKHA
MFA NO.200908/2020 (MV)
BETWEEN:
1. E. Savita @ Savita W/o Suresh Patil,
Age: 40 years, Occ: Household,
R/o Shadipur Tq. Chincholi, Dist. Kalaburagi,
Now R/o Shahabazar, Kalaburagi.
2. Mahesh S/o Suresh Patil,
Age: 22 years, Occ: Student,
R/o Shadipur Tq. Chincholi, Dist. Kalaburagi,
Now R/o Shahabazar, Kalaburagi.
3. P.Priyadarshini D/o Suresh Patil,
Age: 19 years, Occ: Student,
R/o Shadipur Tq. Chincholi, Dist. Kalaburagi,
Now R/o Shahabazar, Kalaburagi.
4. P.Nikhita D/o Suresh Patil,
Age: 18 years, Occ: Student,
R/o Shadipur Tq. Chincholi, Dist. Kalaburagi,
Now R/o Shahabazar, Kalaburagi.
5. P.Pallavi S/o Suresh Patil,
Age: 16 years, Occ: Student,
2
R/o Shadipur Tq. Chincholi, Dist. Kalaburagi,
Now R/o Shahabazar, Kalaburagi.
(Appellant No.5 is nor U/G her natural mother
Appellant No.1.)
... Appellants
(By Sri. Harshavardhan.R.Malipatil, Advocate)
AND:
1. Mohammed Anwar S/o Yusuf Sab,
Age: Major, Occ: Driver & Business,
R/o 1-7-1092, Galli No.10, Peer Burahan Nagar,
Nanded, Tq. Nanded, Maharashtra-431605
(owner of vehicle)
2. The New India Assurance Co., Ltd.,
Through its Divisional Manager,
Sangameshwar Colony,
Kalaburagi-585102.
... Respondents
(By Sri. Sudarshan.M, Advocate for R2;
Notice to R1 dispensed with v/o dated 11.07.2022)
This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, praying to allow this
appeal and enhance the compensation to Rs.22,44,000/-
(excluding the amount awarded by the tribunal) along with
interest by modifying the judgment and award of the II
Addl. Senior Civil Judge and MACT Kalaburagi, dated
03.12.2019 in MVC No.791 of 2018, in the interest of
justice and equity.
This appeal coming on for orders this day,
K.S. Hemalekha J, delivered the following:
3
JUDGMENT
The claimants have preferred this appeal
assailing the judgment and award dated 03.12.2019,
in MVC.No.791/2018 on the file of the II Additional
Senior Civil Judge & MACT, Kalaburagi. (hereinafter
referred to as "the Tribunal" for short).
2. The claimants filed the claim petition under
Section 166 of the Motor Vehicles Act, 1988 ("the Act"
for short) seeking compensation of Rs.33,50,000/- on
account of death of one Suresh, who succumbed to
the injuries sustained in a road traffic accident that
occurred on 23.03.2018, when the deceased was
proceeding on the motorcycle bearing registration
No.MH-26/H-6908 driven by the driver in a rash and
negligent manner and dashed against the deceased,
due to which the deceased succumbed to the injuries.
The deceased was hale and healthy at the time of
accident and was earning a monthly salary of
Rs.15,000/- to Rs.18,000/- per month from
agriculture. The claimants are the wife and children of
the deceased, who was the sole earning member of
the family and the claimants were depending upon the
income of the deceased.
3. In pursuance of the notice issued by the
Tribunal, respondent No.1 remained ex parte.
4. Respondent No.2/insurance company filed
their objections and contended that the driver of the
offending vehicle did not possess valid and effective
driving licence as on the date of the accident and
thereby the policy conditions have been violated.
Hence, contended that the insurance company is not
liable to pay compensation.
5. The Tribunal, on the basis of the rival
pleadings of the parties, framed the following:
ISSUES
1. Whether the petitioners prove that on
23.03.2018 at about 7.30 PM, on
Chincholi-Tandur Main Road, infront of
Junior College, Chandapur, husband of
the petitioner No.1 by name Suresh,
met with an accident and died due to
rash and negligent driving by driver of
Lorry bearing Reg.No.MH-26/H-6908?
2. Whether the petitioners are entitled for
compensation? If so, how much and
from whom?
3. What order or award?
6. In order to substantiate their claim, the
wife of the deceased got examined herself as PW.1
and got marked 9 documents. On the other hand,
respondent did not lead any evidence, however, got
marked Ex.R-1 the insurance policy
7. The Tribunal, on the basis of the pleadings,
evidence and material on record held that the accident
occurred due to the rash and negligent driving of the
lorry bearing registration No.MH-26/H-6908 and due
to which Suresh succumbed to the injuries and
awarded compensation of Rs.11,06,000/-with interest
at the rate of 6% per annum from the date of petition
till the date of realization under the following heads:
1. Love and affection Rs.1,00,000/-
2. Loss of consortium Rs.40,000/-
3. Funeral expenses and Rs.15,000/-
transportation charges
4. Loss of dependency Rs.9,36,000/-
5. Loss of estate Rs.15,000/-
Total Rs.11,06,000/-
8. Being unsatisfied with the quantum of
compensation awarded by the Tribunal, the claimants
are in appeal.
9. The date, time and occurrence of accident
on 23.07.2018 and due to which Suresh succumbed to
the injuries are not in dispute. The charge sheet is
also leveled against the driver of the offending vehicle
bearing registration No.MH-26/H-6908. The only
controversy is with regard to the quantum of
compensation awarded by the Tribunal.
10. Heard learned counsel for the appellants
and learned counsel for the respondent No.2.
11. Learned counsel, Sri
Harshavardhan.R.Malipatil, appearing for the
appellants would contend that the quantum of
compensation arrived at by the Tribunal is without
considering the income of the deceased that he was
earning Rs.15,000/- to 18,000/- per month from
agriculture. The Tribunal has taken the income of the
deceased at Rs.8,000/- per month which is very
meager. It is contended that the award of
compensation under the conventional head is also on
the lower side and hence, sought for enhancement of
compensation.
12. Per contra, learned counsel, Sri Sudarshan
M., appearing for the respondent No.2/insurance
company would contend that the award compensation
by the Tribunal is just and proper and it does not call
for any interference at the hands of this Court.
13. Having heard learned counsel for the
parties and considering the rival contentions of the
parties and having perused the material on record, the
only point that arises for our consideration is:
"Whether the judgment and award
passed by the Tribunal warrants any
interference?"
14. The Tribunal has taken the income of the
deceased at Rs.8,000/- per month. Even assuming
that the claimants have not produced any document
to show the actual income of the deceased as per the
Karnataka State Legal Services Authority that the
accident occurred in the year 2018, the notional
income to be taken is Rs.11,750/- and adding 25%
(Rs.2,937.50)(future prospects) as per the dictum of
the Apex Court in the case of National Insurance
Company Limited vs. Pranay Sethi [(2017)16
SCC 680] (Pranay Sethi), the notional income of the
deceased would come to Rs.14,687.50 and deducting
1/4th towards the personal expenses of the deceased
and applying multiplier 13 considering the age of the
deceased as 48 years, the compensation to be
awarded under the hear loss of dependency would
come to Rs.17,18,437/- (Rs.14,687.50x12x¾x13).
15. In view of United India Insurance
Company Limited vs. Satinder Kaur and others
[(2020) ACJ 3076] (Satinder Kaur) and Magma
General Insurance Company Limited vs. Nanu
Ram [(2018) 18 SCC 130] (Magma General
Insurance Company Limited), the dependents are five
in number and under the head loss of consortium, loss
of filial consortium, loss of spousal consortium the
claimants are entitled to Rs.40,000/- each
(Rs.40,000/- each x 5) it would come to Rs.2,00,000/-
under the head loss of consortium. Under the head
loss of estate Rs.15,000/- and funeral expenses
Rs.15,000/-. In all, the claimants are entitled for
compensation under the following heads:
Loss of dependency : Rs. 17,18,437/-
Loss of consortium : Rs. 2,00,000/-
Loss of estate : Rs. 15,000/-
Funeral expenses : Rs. 15,000/-
Total : Rs. 19,48,437/-
16. The Tribunal has already awarded a sum of
Rs.11,06,000/- in the claim petition and after
deducting the same from the compensation awarded
in this Court i.e., Rs.19,48,437/-, it would come to
Rs.8,42,437/-. Hence, the claimants are entitled for
an enhanced compensation of Rs.8,42,437/- with
interest at the rate of 6% per annum from the date of
petition till the date of realization. Thus, the point
framed for consideration is answered in the
affirmative.
17. In the result, we pass the following:
ORDER
(i) The appeal is allowed in part.
(ii) The claimants are entitled for enhanced
compensation of Rs.8,42,437/- with
interest at the rate of 6% per annum from
the date of petition till realization.
(iii) Respondent No.2/insurance company is
directed to deposit the enhanced
compensation amount with interest from
the date of petition till realization within
twelve weeks from the date of receipt of
the certified copy of the order.
(iv) The impugned judgment and award dated
03.12.2019 passed in MVC No.791/2018 by
the II Additional Senior Civil Judge & MACT,
Kalaburagi, stands modified to the extent
of enhanced compensation.
(v) Registry is directed to transmit the trial
Court records forthwith.
(vi) No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
SMP/LG
