Karnataka High Court

Kasturibai And Ors vs Govind Naik And Anr on 17 February, 2022

Bench: S.R.Krishna Kumar, V Srishananda

           IN THE HIGH COURT OF KARNATAKA

                   KALABURAGI BENCH

      DATED THIS THE 17TH DAY OF FEBRUARY 2022

                         PRESENT

     THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

                               AND

      THE HON'BLE MR. JUSTICE V. SRISHANANDA

                M.F.A. NO.201821/2018 (MV)

BETWEEN:

1.   Kasturibai
     W/o. late Ravi
     Age: 32 years, Occ: Household

2.   Shreedevi
     D/o. Late Ravi
     Age: 12 years, Occ: Nil

3.   Shrikant
     S/o. Late Ravi
     Age: 09 years, Occ: Nil

4.   Shruti
     D/o. Late Ravi
     Age: 08 years, Occ: Nil

5.   Ankita
     D/o. Late Ravi
     Age: 06 years, Occ: Nil
                                   2




6.     Kasturi Naik
       S/o. Shankar Naik
       Age: 67 years, Occ: Nil

7.     Devalebai
       W/o. kasturi Naik
       Age: 62 years, Occ: Household

Appellant Nos.2 to 5 are minors
U/G of the Appellant No.1
All are R/o Hunasagi Tanda
Tq., Shorapur, Dist: Yadgir
                                                   ... Appellants
(By Sri Krupa Sagar Patil, Advocate)

AND:

1. Govind Naik S/o. Ramu Naik
   Age: 47 years, Occ: Agriculture
   R/o Vajjala Tanda, Tq. Shorapur
   Dist: Yadgir - 585 228

2. The Branch Manager
   HDFC ERGO General Insurance Co. Ltd.
   Rastrapati Chowk
   Kalaburagi - 585 102

3. Chandrashekhara
   S/o. Hariyappa Rathod
   Age: 52 years, Occ: Agriculture
   R/o. Hunasagi Tanda
   Tq. Shorapur
   Dist: Yadgir - 585 228
                                                 ... Respondents

(By Smt. Preeti Patil, Adv. For R2;
Notice to R1 and R3 is d/w v/o dt. 08.01.2019)
                                    3




      This Miscellaneous First Appeal is filed under
Section 173(1) of the M.V.Act, praying to modify the judgment
and award dated 01.01.2018 passed by the Senior Civil Judge
and Addl. MACT at Shorapur in MVC No.116/2016 by enhancing
the compensation in the interest of justice and equity.

      This appeal coming on for Admission                  this   day,
V. Srishananda J., delivered the following:

                            JUDGMENT

Though this matter is listed for admission today, with the

consent of both the parties, it is taken up for final disposal.

2. The present appeal is by the claimants challenging

the order passed in MVC No.116/2016 dated 01.01.2018 by the

learned Senior Civil Judge & Addl. MACT, Shorapur (hereinafter

referred to as 'the Tribunal' for short).

3. Brief facts of the case are as under:

A claim petition came to be filed contending that on

19.03.2015 at about 7.00 p.m. near L & T Showroom at

Hunasagi, when the deceased Ravi was proceeding on motor

cycle bearing No.KA-33-G-1088 Vajjal to Hunasagi after finishing

his work in paddy land, at that time the driver of the tractor

Engine bearing no.KA-33-T-5570 came from Hunsagi in a rash

and negligent manner and dashed to the motorcycle. Due to the

said impact, the deceased Ravi fell down and sustained grievous

injuries. Immediately, he was shifted to GGH Hunasagi and then,

for higher treatment he was shifted to Bijapur Hospital and he

died near Basavanabagewadi at about 11.30 p.m. The

claimants being the wife, mother and children have laid a claim

petition for awarding suitable compensation in respect of the

accident.

4. In pursuance of the notice issued, respondent No.2-

Insurance Company appeared before the Tribunal and filed

written statement denying the claim petition averments in toto.

5. Based on the rival contentions, the Tribunal raised

necessary issues and after considering the oral and

documentary evidence on record, the Tribunal allowed the claim

petition in part and awarded a sum of Rs.12,14,000/- with

interest at 6% per annum form the date of petition till its

realization. Being not satisfied with the same, the present

appeal is preferred by the claimants.

6. In the appeal memorandum, following grounds have

been raised:

x The court below has erred in not taking into account 40% addition to the income of the deceased while calculating income under the head loss of dependency. The court below has failed to apply the law laid by the Full Bench of the Hon'ble Apex Court in various decisions wherein the Apex Court has held that while awarding compensation under the head loss of dependency an addition of 40% of actual income has to be added for awarding compensation under the loss of dependency.

x The court below has erred in taking into account the income of the deceased Ravi at Rs.6,000/- per month while awarding compensation under the head loss of dependency. The court below has failed to see that the deceased Ravi was earning Rs.20,000/- p.m., by doing coolie & Agriculture work and same was contributed towards his family.

x The court below has erred in taking into account 1/5th deduction towards the personal expenses of

the deceased Ravi. The court below has failed to see that there are total7 dependents and hence the court below ought to have deducted 1/6th towards the personal expenses of the deceased Ravi.

x The rate of interest awarded on the award amount is on the lower side. The court below as failed to see that it is a well settled law that the interest to be awarded on the award amount is 9% p.a., as per the law laid down by the Apex Court.

7. Reiterating the above grounds, the learned counsel

for the appellants Sri Krupa Sagar Patil, vehemently contended

that the tribunal awarding a sum of Rs.12,14,000/- is on the

lower side and thus, sought for enhancement of compensation.

8. Per contra, Smt. Preeti Patil, learned counsel for

respondent No.2-Insurance Company supported the impugned

judgment and award and prayed for dismissal of the appeal.

9. In view of the rival contentions urged by the learned

counsel for the parties, the sole point that would arise for

consideration is -

"Whether the claimants have made out a case for enhancement of compensation?"

10. In the case on hand, the accidental death of Ravi on

19.03.2015 near L & T Showroom at Hunasagi involving a

motorcycle bearing No.KA-33-G-1088 and tractor engine bearing

No.KA-33-T-5570 stands established by placing necessary oral

and documentary evidence on record.

11. Admittedly, the charge sheet came to be filed

against the driver of the tractor bearing No.KA-33-T-5570 which

was duly insured with respondent No.1-Insurance Company. The

claimants failed to produce proper income proof and therefore,

the Tribunal has taken notional income in a sum of Rs.6,000/-.

This Court and Lok-Adalat would normally assess the monthly

income in a sum of Rs.8,000/- for the accidental Claims of the

year 2015. Further having regard to the age of the deceased

being 30 years, the claimants would be entitled to additional 40%

to the notional income as per the dictum of Hon'ble Apex Court

in the case National Insurance Company Limited vs. Pranay

Sethi and Others reported in (2017) 16 SCC 680. There are

seven dependents and therefore, 1/5th is to be deducted. As per

the dictums of Hon'ble Supreme Court in the case of National

Insurance Company Limited vs. Pranay Sethi and Others

reported in (2017) 16 SCC 680, Magma General Insurance

Company Ltd. Vs. Nanu Ram reported in (2018) 18 SCC 130

and Sarla Verma vs. Delhi Transport Corporation reported in

(2009) 6 SCC 121, each of the claimants would be entitled to a

sum of Rs.40,000/- each on the conventional head. Accordingly,

the quantum of compensation is to be re-assessed as under:

    Sl.No.          Particulars            Amount in Rs.

      1.     Loss     of      consortium         2,80,000.00
             (Rs.40,000/-       x      7
             dependants)

      2.     Loss of dependency                 18,27,840.00
             (11,200x12x17x1/5)

      3.     Funeral Expenses                      15,000.00

      4.     Loss of Estate                        15,000.00

                      Total                     21,37,840.00

12. Accordingly, the point is answered partly in the

affirmative and pass the following -

ORDER

1. The appeal is allowed in part.

2. In modification of the award passed by the tribunal, the claimants are entitled to the enhanced compensation of Rs.9,23,640/- with 6% interest from the date of petition till its realization.

3. Amount in deposit is ordered to be transmitted to the Tribunal and balance amount is to be deposited by the insurance company within four weeks from the date of receipt of certified copy of this order.