Smt. Padma @ Geeta W/O. Ananda S vs Marulasiddaiah
2022 Latest Caselaw 1100 Kant

         IN THE HIGH COURT OF KARNATAKA,
                  DHARWAD BENCH

       DATED THIS THE 25TH DAY OF JANUARY 2022

                      PRESENT

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

                        AND

 THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

            MFA NO.102527 OF 2018 (MV-D)

BETWEEN:

1.    SMT. PADMA @ GEETA W/O ANANDA S
      AGE:20 YEARS, OCC:HOUSEHOLD WORK,

2.    SMT. ANJINAMMA W/O LATE SHRINIVAS
      AGE:48 YEARS, OCC:HOUSEHOLD WORK,

     BOTH ARE R/O RAMPUR VILLAGE,
     TQ:DAVANGERE, NOW AT VIDYANAGAR, RANEBENNUR
     DIST:HAVERI-581115.
                                      ...APPELLANTS
(BY SRI. G.S. HULMANI, ADVOCATE)

AND

1.    MARULASIDDAIAH B.M. S/O BASAVARAJAIAH
      AGE:MAJOR, OCC:BUSINESS,
      R/O YELEBETHUR VILLAGE, TQ:DAVANGERE,
      DIST:DAVANGERE-577001.

2.    THE DIVISIONAL MANAGER
      NEW INDIA ASSURANCE COMPANY LIMITED
      A.M. ARCADE, NEAR VIDYARTHI BHAVAN,
      CG HOSPITAL ROAD, DAVANGERE-577001.
                                      ...RESPONDENTS
                              2



(BY SRI. M.K. SOUDAGAR, ADVOCATE FOR R2)
(R1-NOTICE DISPENSED WITH)

     THIS APPEAL IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING THIS HON'BLE COURT TO
CALL FOR THE RECORDS FROM THE ADDL. SENIOR CIVIL
JUDGE AND AMACT, RANEBENNUR AND MODIFY THE
JUDGMENT AND AWARD PASSED BY THE LEARNED JUDGE IN
MVC NO.585/2016 DATED 4.12.2017 AND ENHANCE THE
COMPENSATION AS PRAYED FOR.

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

                        JUDGMENT

Though this appeal is listed for orders, it is taken up

for final disposal, with the consent of learned counsel for

both the parties.

2. The appellants/claimants are before this Court

praying for enhancement of compensation, not being

satisfied with the compensation awarded under judgment

and award dated 04.12.2017 passed in MVC No.585/2016

on the file of the learned Addl. Senior Civil Judge & JMFC,

Ranebennur (for short, 'Tribunal').

3. The claimants, who are the wife and mother of

the deceased Anand filed a claim petition under Section

166 of the Motor Vehicles Act, 1988 seeking compensation

for the accidental death of deceased Anand, which took

place on 26.12.2015 involving two Motor Cycles bearing

registration No.KA-17/EN-3936 and KA-17/EB-2957. It is

stated that the deceased was aged about 26 years as on

the date of the accident. It is further stated that the

deceased was having saloon shop and also a Distributor of

Idea Company, thereby he was earning Rs.20,000/- per

month.

4. Before the Tribunal, the claimants examined

PW1 & PW2 and got marked the documents as

Exs.P1 to P18 in support of their case. On behalf of the

respondents, no witnesses examined nor marked any

documents. The Tribunal based on the material evidence

on record awarded a total compensation of Rs.16,66,100/-

with interest at 7% per annum from the date of petition till

date of payment on the following heads:

Loss of Dependency Rs.15,86,100/-

      Loss of consortium            Rs. 40,000/-
      Loss of estate and Funeral
      Expenses                      Rs. 30,000/-
      Loss of love and affection    Rs. 10,000/-
            Total                   Rs.16,66,100/-

5. While awarding the above compensation, the

Tribunal assessed the notional income of the deceased at

Rs.7,289/- per month and added 40% of the assessed

income towards future prospects. The claimants not being

satisfied with the quantum of compensation awarded by

the Tribunal are before this Court praying for enhancement

of compensation.

6. Heard Sri. G.S. Hulmani, learned counsel

appearing for the appellants and Sri. M.K. Soudagar,

learned counsel for respondent/Insurance Company and

perused the appeal papers along with original records.

7. Sri. G.S. Hulmani, learned counsel for the

appellants/claimants would contend that the Tribunal has

not properly appreciated the documentary evidence on

record while awarding the compensation. It is his

submission that the income of the deceased assessed by

the Tribunal at Rs.7,289/- per month is on the lower side.

It is submitted that the deceased was having saloon shop

and also a Distributor of Idea Company, thereby he was

earning Rs.20,000/- per month and to establish the same,

the claimants have placed on record Ex.P8- Statement of

account, Ex.P9-Letter of appointment, Ex.P10-

Commissioner letter and Exs.P11 to 18-Statement of

accounts and balance sheet. It is also submitted that PW2

was examined in support of Ex.P9, Ex.P10 and Exs.P11 to

P18. Learned counsel would submit that the Tribunal

failed to consider Ex.P9, Ex.P10 and Exs.P11 to P18 in a

proper perspective while assessing the notional income of

the deceased. Thus, he prays for allowing the appeal.

8. Per contra, Sri. M.K Soudagar, learned counsel

appearing for respondent No.2-Insurance Company

supporting the impugned judgment and award would

submit that the Tribunal has rightly considered the

documents marked as Ex.P9, Ex.P10 and Exs.P11 to P18

while assessing the notional income of the deceased at

Rs.7,289/- per month and added 40% towards future

prospects. He further submits that the compensation

awarded by the Tribunal is just and proper, which needs

no interference by this Court. Thus, he prays for dismissal

of the appeal.

9. Having heard the learned counsel for both the

parties and on perusal of the appeal papers including the

original records, the only point that would fall for

consideration in this appeal is as to, whether the notional

income of the deceased assessed by the Tribunal at

Rs.7,289/- per month requires to be enhanced?

10. Our answer to the above point is in the

affirmative for the following reasons.

11. The accident which took place on 26.12.2015

resultant death of deceased Anand is not in dispute in the

present appeal. The claimants are before this Court

praying for enhancement of compensation. The notional

income of the deceased assessed by the Tribunal at

Rs.7,289/- per month is on the lower side. PW1 in her

evidence had deposed that the deceased was having

saloon shop and also a Distributor of Idea Company and

thereby he was earning Rs.20,000/- per month. But the

claimants have not produced any document to prove that

the deceased was having saloon shop. The claimants

placed on record Ex.P8- Statement of account, Ex.P9-

Letter of appointment, Ex.P10-Commission letter and

Exs.P11 to 18-Statement of accounts and balance sheet.

The claimants also examined Senior Manager of Idea

Company as PW2. PW2 in his evidence had deposed that

the deceased was a Distributor of Idea Company since

2013. PW2 also produced documents as per Ex.P9, Ex.P10

and also Ex.P11 to P18. The Tribunal on appreciation of

Ex.P10 to P18 averaged the income of the deceased and

had assessed the income of the deceased at Rs.7,289/-

per month. But while assessing the said income, the

Tribunal failed to appreciate the fact of steady increase in

commission income of the deceased from July 2013 to

February, 2015 under Ex.P11. Unless one had marketing

skill, one would get higher commission. In that light of the

matter, we deem it appropriate to reassess the income of

the deceased at Rs.9,000/- per month as against

Rs.7,289/- per month assessed by the Tribunal. Deduction

of 1/3rd of the assessed income of the deceased, addition

of 40% of the assessed income towards future prospects

and multiplier of '17' taken by the Tribunal are not

disturbed, which are just and proper. Thus, the claimants

would be entitled for compensation on the head of loss of

dependency at Rs.17,13,600/- (Rs.9,000 + 40% x 2/3 x

12 x 17).

12. Further, claimant No.1 being wife of the

deceased would be entitled to Rs.44,000/- towards

spousal consortium and claimant No.2 being 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.

13. Thus, the claimants would be entitled for

modified compensation on the following heads:

Sl.No.                Particulars             Amount
1.        Loss of dependency             Rs.17,13,600/-
          (Rs.9,000 + 40% x 2/3 x 12 x
          17)
2.        Loss of estate & Funeral       Rs.    30,000/-
          expenses
3.        Spousal Consortium             Rs.   44,000/-
4.        Filial Consortium              Rs.   40,000/-
                         Total           Rs.18,27,600/-

14. Thus, the claimants would be entitled to total

compensation of Rs.18,27,600/- as against

Rs.16,66,100/- awarded by the Tribunal.

15. Hence, we pass the following:

ORDER

a) The appeal is allowed in part.

b) The impugned judgment and award of

the Tribunal is modified to the extent

that the claimants are entitled to a

entitled to total compensation of

Rs.18,27,600/- as against

Rs.16,66,100/- awarded by the

Tribunal.

c) The enhanced compensation amount

will bear interest at the rate of 6% per

annum from the date of claim petition

till date of realization.

d) Respondent No.2/Insurance Company

shall deposit the enhanced

compensation amount with interest

before the Tribunal within eight weeks

from the date of receipt of certified

copy of this judgment.

      e) On     deposit,     the     enhanced

        compensation       amount    shall   be

released in favour of the claimants 1

and 2 in equal proportion on proper

identification.

f) Draw modified award accordingly.

Sd/-

JUDGE

Sd/-

JUDGE

JTR