Yashoda Moolya vs Jyothi Prasad Hegde
2022 Latest Caselaw 1138 Kant

                               1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 25TH DAY OF JANUARY, 2022

                           BEFORE

        THE HON'BLE MR. JUSTICE P. KRISHNA BHAT

MISCELLANEOUS FIRST APPEAL NO.994 OF 2016 (MV-D)

BETWEEN:

1.     YASHODA MOOLYA
       AGED ABOUT 51 YEARS,
       W/O. LATE NARAYANA MOOLYA.

2.     ASHWITHA KUMARI
       AGED ABOUT 24 YEARS.

3.     AMITHA KUMARI
       AGED ABOUT 23 YEARS.

       APPELLANT NOS.2 AND 3 ARE
       CHILDREN OF LATE NARAYANA MOOLYA.

       ALL ARE RESIDING AT NO.2-76,
       N.Y. NIVASA, SANADA GUDDE 5 CENTS,
       NITTE VILLAGE,
       KARKALA TALUK-575 101.
                                                  ... APPELLANTS
       (BY SMT. NAZEEFA M. MULLA, ADV., FOR
            SRI H. PAVANA CHANDRA SHETTY, ADV.)

AND:

1.     JYOTHI PRASAD HEGDE
       AGED ABOUT 46 YEARS,
       S/O. SRI K.B.S. HEGDE,
       RESIDING AT "SRI LAXMI GANESH",
       BALMATTA COMPLEX,
       BALMATTA,
       MANGALORE CITY AND TALUK-575 201.
                              2



2.   THE DIVISIONAL MANAGER
     THE UNITED INDIA INSURANCE CO. LTD.,
     UDUPI DIVISIONAL OFFICE,
     UDUPI-576 101.
                                             ... RESPONDENTS

     (BY SRI O. MAHESH, ADV., FOR R-2, &
         NOTICE TO R-1 IS DISPENSED WITH VIDE ORDER
         DATED 8-2-2017)

                            ***

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE
JUDGMENT AND AWARD DATED 4-6-2015 PASSED IN M.V.C. NO.239
OF 2015 ON THE FILE OF THE SENIOR CIVIL JUDGE & AMACT,
KARKALA,  PARTLY  ALLOWING   THE CLAIM    PETITION   FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

     THIS MISCELLANEOUS FIRST APPEAL IS COMING ON FOR
ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

                     JUDGMENT

This is an appeal at the instance of the claimants

seeking enhancement of the compensation awarded at

Rs.6,01,340/- with interest thereon at the rate of 8% per

annum by judgment and award dated 4-6-2015 in M.V.C.

No.239 of 2015 passed by the Senior Civil Judge and

Additional Motor Accident Claims Tribunal, Karkala.

2. Claim petition proceeded on the allegation that,

Sri Narayana Moolya (hereinafter referred to as 'deceased')

was traveling in a Stage Carriage bus bearing Registration

No.KA-19 C-9877 on 27-1-2015 at 7:20 p.m. from Karkala to

Nitte and when the bus stopped near Lemina Cross Bus Stop,

the Driver of the bus without receiving any signal from the

Conductor, suddenly moved the bus and the deceased who

was getting down from the bus was thrown out and suffered

grievous injuries and thereafter, he was shifted to City

Hospital, Karkala and subsequently, to K.M.C. Hospital,

Manipal, wherein he passed away on 28-1-2015 while

undergoing treatment.

3. Before the Tribunal, respondent No.1-owner of the

bus was absent. Respondent No.2-Insurance Company

entered appearance denying the material averments in the

claim petition. During trial, claimant No.1 was examined as

P.W.1 and Exs.P.1 to P.15 were marked. The respondents did

not examine any witness and no documents were marked on

their behalf.

4. Upon hearing the learned counsel on both sides and

appreciating the material placed on record, the Tribunal

allowed the claim petition in part and awarded compensation

of Rs.6,01,340/- with interest thereon at the rate of 8% per

annum from the date of petition till realisation.

5. It is urged on behalf of the appellants that the

Tribunal did not consider the actual income of the deceased

as reflected in Ex.P.14, which is a pay-slip and embarked on

determination of the salary on speculative basis which

resulted in granting a lower compensation. It is also

submitted that spousal and filial consortium awarded is on

the lower side and therefore, the appellants are entitled to

higher compensation and hence, the appeal is liable to be

allowed.

6. Learned counsel for Insurance Company, per contra,

contended that the future prospects considered by the

Tribunal at 30% of the established income is erroneous as the

deceased had attained the age of 57 years and therefore, as

per the law laid down by the Constitution Bench of the

Hon'ble Supreme Court in NATIONAL INSURANCE COMPANY

LIMITED v. PRANAY SETHI AND OTHERS reported in

(2017) 16 SCC 680, future prospects to be taken is at 10% of

the income of the deceased. He also made a grievance that

the rate of interest awarded at 8% per annum by the Tribunal

is on the higher side and he submitted that it should have

been only at 6% per annum. He, therefore, submitted that

there is no ground whatsoever made out for enhancing the

compensation and hence, the appeal is liable to be dismissed.

7. I have given my anxious consideration to the

submissions made on both sides and I have carefully perused

the records.

8. In this case, the question of liability to pay the

compensation is not under challenge. Insurance Company

has not preferred any appeal calling in question the

correctness of the award passed by the Tribunal.

9. Ex.P.14 is the pay-slip of the deceased issued by the

Employer, namely Lamina Foundries Limited, Udupi, for the

month of October-2014. As per the pay-slip, his gross-salary

is Rs.7,723.54/- per month. Only permissible deduction out

of the same is Professional Tax of Rs.150/- per month.

Therefore, for the purpose of calculating loss of dependency,

his income is taken at Rs.7,573/- (7,723 minus 150). Since

the deceased has left behind a widow and two children, 1/3rd

is to be deducted towards his personal expenses. Since he

was aged 57 years at the time of accident, 10% has to be

added towards future prospects. Accordingly, 'loss of

dependency' is re-computed to Rs.5,99,832/- [(7,573 - 1/3rd =

2524) 5049 + 10% x 12 x 9]. Since he has left behind a

widow and two children, loss of spousal consortium and filial

consortium should be modified to Rs.1,20,000/- and another

Rs.30,000/- is required to be added towards 'loss of estate

and funeral expenses'. Thus, Rs.1,50,000/- is required to be

awarded under conventional heads. The total compensation

comes to Rs.7,49,832/-. The Tribunal has awarded a sum of

Rs.6,01,340/-. Therefore, the claimants are entitled for

enhanced compensation of Rs.1,48,492/-.

10. Learned counsel for Insurance Company made a

plea that since as per the Code of Civil Procedure, 1908,

interest rate of only 6% is allowed on any claim, interest rate

at 8% awarded by the Tribunal is on the higher side and

required to be interfered with. The Hon'ble Supreme Court

in a series of cases, decided recently has been granting

interest ranging between 7.5% and 9% and therefore, in the

facts and circumstances of this case, I am not inclined to

interfere with the rate of interest awarded by the Tribunal on

the compensation awarded. However, on the enhanced

compensation, Insurance Company is liable to pay interest at

the rate of 6% per annum from the date of petition till the

date of payment. Accordingly, I pass the following

ORDER

i. Appeal is partly-allowed;

ii. The appellants-claimants are entitled to enhanced

compensation of Rs.1,48,492/- (Rupees one lakh forty-

eight thousand four hundred and ninety-two only)

with interest thereon at the rate of 6% per annum from

the date of petition till the date of payment without

interfering with the rate of interest awarded by the

Tribunal on compensation already awarded by the

Tribunal; and

iii. Time to deposit the above amount is eight weeks' from

the date of receipt of a certified copy of this judgment.

Transmit the records to the Tribunal, forthwith.

Sd/-

JUDGE

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