Karnataka High Court

Shobha W/O Parameshwar vs Shivanand S/O Basavantappa ... on 3 January, 2022

Bench: S G Pandit, Anant Ramanath Hegde

          IN THE HIGH COURT OF KARNATAKA,
                   DHARWAD BENCH

       DATED THIS THE 3RD DAY OF JANUARY 2022

                       PRESENT

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

                           AND

 THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

                 MFA No.100611/2017
                           C/W.
                MFA NOS.100612/2017
                 & 102477/2017 (MV)


IN MFA NO.100611 OF 2017

BETWEEN

1.   SMT. SHOBHA W/O PARAMESHWAR
     DYAMANAGOUDAR, AGE: 38 YEARS,
     OCC: HOUSEHOLD WORK,

2.   SHRI. SHRIDHAR S/O PARAMESHWAR
     DYAMANAGOUDAR, AGE: 21 YEARS,
     OCC: STUDENT,

3.   KUMAR. MAHANTESH S/O PARAMESHWAR
     DYAMANAGOUDAR,
     AGE: 18 YEARS,
     CC: STUDENT,

     ALL THE APPELLANTS ARE RESIDENG AT
     C/O: SHANKRAPPA C KANAVI
     PLOT NO.59, "SHIVA SANKALP"
     KUMARESHWAR NAGAR,
                            2



      DHARWAD-580008
                                            ...APPELLANTS

(BY SRI.SANJAY S KATAGERI, ADVOCATE)

AND

1.    SHRI. SHIVANAND
      S/O BASAVANTAPPA SAJJAN
      AGE: MAJOR, OCC: DRIVER,
      R/O: V.G.JIGALUR, BASAVA COLONY,
      GHODAKE PLOT, ANAND NAGAR,
      OLD-HUBBALLI,
      HUBBALLI-580024.

2.    THE MANAGING DIRECTOR
      NWKRTC CENTRAL OFFICE,
      GOKUL ROAD, HUBBALLI-580030

3.    THE MANAGER NATIONAL INSURANCE CO.LTD.,
      1ST FLOOR, KAMAT KEFE,
      NEAR BASAVA VANA,
      NEW COTTON MARKET, HUBBALLI-580029

4.    SHRI.RUDRAPPA
      S/O PATREPPA DYAMANAGOUDAR
      AGE: 71 YEARS,
      OCC: RETD. CONDUCTOR IN KSRTC,
      R/O: H.NO.149, IIND MAIN,
      II CROSS, NANDI BADAVANE,
      OPP. RTO OFFICE, HUBBALLI

      BUT R/AT OPP: NEERAVARI COLONY
      KIRESUR-582208, TQ: NAVALGUND,
      DIST: DHARWAD.

5.    NINGAVVA W/O RUDRAPPA
      DYAMANAGOUDAR
      AGE: 62 YEARS, OCC: HOUSEHOLD WORK,
      R/O: H.NO.149, IIND MAIN,
      II CROSS, NANDI BADAVANE,
      OPP. RTO OFFICE, HUBBALLI.
                            3




     BUT R/AT OPP: NEERAVARI COLONY
     KIRESUR-582208, TQ: NAVALGUND,
     DIST: DHARWAD
                                         ...RESPONDENTS

(BY SRI.S.C.BHUTI., ADVOCATE FOR R2; SMT.PREETI SHASHANK., ADVOCATE FOR R3; SRI.ANJANEYA.M., ADVOCATE FOR R5; NOTICE TO R1 AND 4-SERVED)

THIS APPEAL IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 09.11.2016 PASSED IN MVC NO.1079/2014 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND MEMBER, ADDL. MOTOR ACCIDENT CLAIMS TRIBUNAL, HUBLI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

IN MFA NO.100612 OF 2017

BETWEEN

1. SMT. SHOBHA W/O PARAMESHWAR DYAMANAGOUDAR, AGE: 38 YEARS, OCC: HOUSEHOLD WORK

2. SHRI. SHRIDHAR S/O PARAMESHWAR DYAMANAGOUDAR, AGE: 21 YEARS, OCC: STUDENT.

3. KUMAR. MAHANTESH S/O PARAMESHWAR DYAMANAGOUDAR, AGE: 18 YEARS, OCC: STUDENT,

ALL THE APPELLANTS ARE R/AT C/O SHANKRAPPA C KANAVI, PLOT NO.59, "SHIVA SANKALP",

KUMARESHWAR NAGAR, DHARWAD-580008 ...APPELLANTS (BY SRI.SANJAY S KATAGERI, ADVOCATE)

AND

1. SHRI.SHIVANAND S/O BASAVANTAPPA SAJJAN AGE: MAJOR, OCC: DRIVER, R/O: V.G. JIGALUR, BASAVA COLONY, GHODAKE PLOT, ANAND NAGAR, OLD HUBBALLI-580024.

2. THE MANAGING DIRECTOR NWKRTC, CENTRAL OFFICE, GOKUL ROAD, HUBBALLI-580030.

3. THE MANAGER NATIONAL INSURANCE CO.LATD., IST FLOOR KAMAT KEFE, NEAR BASAVA VANA, NEW COTTON MARKET, HUBBALLI-580029.

4. SHRI.RUDRAPPA S/O PATREPPA DYAMANAGOUDAR AGE: 71 YEARS, OCC: RETD.

CONDUCTOR IN KSRTC, R/O.H.NO.149, IIND MAIN, II CROSS, NANDI BADAVANE, OPP. RTO OFFICE, HUBBALLI,

BUT RESIDING AT OPP. NEERAVARI COLONY, KIRESUR-582208, TQ: NAVALGUND, DIST: DHARWAD.

5. SMT.NINGAVVA W/O RUDRAPPA DYAMANAGOUDAR AGE: 62 YEARS, OCC: HOUSEHOLD WORK, R/O.H.NO.149, IIND MAIN, II CROSS, NANDI BADAVANE, OPP. RTO OFFICE, HUBBALLI,

BUT RESIDING AT OPP. NEERAVARI COLONY,

KIRESUR-582208, TQ: NAVALGUND, DIST: DHARWAD.

...RESPONDENTS

(BY SRI.S.C.BHUTI, ADV. FOR R2;

SMT.PREETI SHASHANK, ADV. FOR R3; SRI.ANJANEYA.M, ADV. FOR R4 & 5;

NOTICE TO R1 -SERVED)

THIS APPEAL IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 09.11.2016 PASSED IN MVC NO.1052/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, HUBBALLI, AWARDING COMPENSATION OF RS.15,22,376/- WITH INTEREST AT 8% P.A. FROM THE DATE OF PETITION TILL ITS DEPOSIT.

IN MFA NO.102477 OF 2017

BETWEEN

1. SRI. RUDRAPPA S/O PATREPPA DYAMANAGOUDAR AGE:71 YEARS, OCC:NIL R/O H.NO. 140, IIND MAIN II CROSS, NANDI BADAVANE OPP:RTO OFFICE NAVANAGAR, HUBLI-580030.

2. SMT NINGAVVA W/O RUDRAPPA DYAMANAGOUDAR AGE:62 YEARS, OCC:HOUSEHOLD WORK R/O H.NO. 149, IIND MAIN II CROSS, NANDI BADAVANE OPP:RTO OFFICE NAVANAGAR, HUBLI-580030.

...APPELLANTS (BY SRI.ANJANEYA M., ADV)

AND

1. MANAGING DIRECTOR NWKRTC CENTRAL OFFICE, GOKUL ROAD, HUBBALLI-580023.

2. NATIONAL INSURANCE CO.LTD HUBBALLI, BY ITS DIVISIONAL OFFICE ARIHANTH PLAZA, KUSUGAL ROAD, KESHWAPUR, HUBBALLI-580029.

POL.NO.610100/31/13/6700012052 VALID FROM 23.02.2014 TO 22.02.2015.

...RESPONDENTS

(BY SRI.S.C.BHUTI, ADV. FOR R1;

SMT.PREETI SHASHANK, ADV FOR R2)

THESE APPEALS COMING ON FOR ADMISSION, THIS DAY, ANANT RAMANATH HEGDE J., DELIVERED THE FOLLOWING:

COMMON JUDGMENT

Though these appeals are listed for admission, with

the consent of the learned counsel appearing for the

parties, the appeals are taken up for final hearing.

2. Appeals in MFA Nos.100611/2017 and

100612/2017 are arising out of the judgment and award

dated 09.11.2016 passed in MVC Nos.1079/2014 and

1052/2014 respectively, on the file of the Principal Senior

Civil Judge and Additional Motor Accident Claims Tribunal,

Hubballi (for brevity, 'Tribunal'). The claimants before the

Tribunal in MVC No.1079/2014 are the appellants in MFA

No.100611/2017. Same appellants have also filed MFA

No.100612/2017 challenging the award in MVC

No.1052/2014. The claim petition in MVC No.1052/2014 is

filed by the parents of the deceased Parameshwarappa.

Appeal in MFA No.102477/2017 is arising out of the

judgment and award passed in MVC No.1052/2014.

3. The accident in question has occurred on

20.10.2014, resulting in death of one Parameshwarappa

S/o Rudrappa Dyamanagoudar and these facts are not in

dispute. Appellant No.1 in MFA No.100611/2017 and MFA

No.100612/2017 is the wife of the deceased and

appellants No.2 and 3 in the aforementioned appeals are

the children of the deceased.

4. The Tribunal has clubbed the petitions filed by

the wife and children of the deceased with the petition filed

by the parents of the deceased and decided the petitions

by common judgment and award and allowed the petitions

in part and awarded a compensation of Rs.15,22,376/-

along with simple interest at the rate of 8% p.a. from the

date of accident till the date of deposit. The award is

passed against the insurer/respondent No.3. The award

further directs that the petitioners in MVC No.1079/2014

namely the wife and two children of the deceased are

entitled to 20% each of out of the total compensation

awarded and the remaining 40% is awarded in favour of

the parents of the deceased.

5. The wife and the children of the deceased have

questioned the award on the ground that the

compensation is on the lower side. In addition, they seek

higher share in the compensation awarded.

6. The parents of the deceased have filed MFA

No.102477/2017 seeking enhancement of compensation.

7. Since the questions involved in all the three

appeals are same, all the three appeals are taken up

together for consideration.

8. Heard the learned counsel appearing for all the

parties in all the three appeals.

9. The avocation of the deceased

Parameshwarappa is not in dispute. He was working as

conductor in NWKRTC. The accident took place on

20.10.2014 while the deceased was walking on the road.

The accident took place as the car bearing No.KA-25/F-

9030 dashed against the said Parameshwarappa, as a

result of which Parameshwarappa succumbed to injuries.

The contention of contributory negligence raised by the

insurer is negatived by the Tribunal. This finding is not

questioned by the insurer. The said finding has attained

finality.

10. In the backdrop of above said facts, the

correctness of the quantum of compensation and

apportionment of compensation awarded by the Tribunal is

to be adjudicated in these appeals.

11. Though it is claimed that Parameshwarappa

was drawing a salary of Rs.25,000/- per month as a

conductor in NWKRTC, the evidence placed on record

would establish that his salary was Rs.10,902/- per month

at the time of the accident and he was aged 39 years.

12. The Tribunal while awarding the compensation,

has taken Rs.10,902/- per month as his salary and based

on that has awarded the compensation of Rs.15,22,376/-,

by applying multiplier of 16. The Tribunal deducted 1/3rd of

income towards the personal expenditure of the deceased.

13. It is contended by the learned counsel

appearing for the appellants that the Tribunal has not

taken future prospects into consideration while awarding

the compensation and the compensation awarded under

remaining heads like loss of consortium, loss of estate and

funeral expenses is on the lower side.

14. Learned counsel for the respondent-Insurance

Company would contend that Rs.200/- p.m. was deducted

from the salary of the deceased towards professional tax

and the salary that can be taken into account for the

purpose of determining the compensation is Rs.10,702/-

per month and not Rs.10,902/- as adopted by the

Tribunal. It is also contended by the learned counsel for

the insurer that considering the age of the deceased the

appropriate multiplier would be 15 and not 16 as applied

by the Tribunal.

15. It is noticed from the impugned judgment and

award that the Tribunal has not awarded compensation

towards future prospects. There is no dispute over the fact

that the deceased was permanent employee of NWKRTC.

That being the fact, considering the age of the deceased,

50% enhancement is to be made to the salary to compute

the future prospects and it is also to be noticed that the

given the fact that there are five dependants, 1/4th of the

total income is to be deducted towards the personal

expenditure of the deceased and not 1/3rd as deducted by

the Tribunal.

16. As far as multiplier is concerned, the correct

multiplier to be applied in this case is 15 as rightly

canvassed by the learned counsel for the insurer. Tribunal

committed an error in applying multiplier 16.

17. In view of the discussions made above, we are

of the opinion that the judgment and award passed by the

Tribunal is to be modified. The compensation payable

would be as under:

Amount in (Rs.) Loss of dependency 21,67,155.00 (Rs.10,702.00 (salary at the time of death) + Rs.5,351.00 (50% addition towards future prospects) = Rs.16,053.00 x 12 = Rs.1,92,636.00 X 15 multiplier = Rs.28,89,540.00 - Rs.7,22,385.00 (deduction towards 1/4th expenses of the deceased) = Rs.21,67,155.00 Loss of consortium 2,00,000.00 Loss of estate 15,000.00 Funeral expenses 15,000.00 Total 23,97,155.00 Less award passed by the Tribunal 15,22,376.00 Total enhancement 8,74,779.00 Rounded off to 8,75,000.00

18. The Tribunal has awarded consortium of

Rs.1,00,000/- to children and parents. No consortium is

awarded to the wife. Given the fact that there are five

dependants including the wife we deem it appropriate to

award spousal, parental and filial consortium of

Rs.2,00,000/- (Rs.40,000/- to each of the dependants) as

held in Magma General Insurance Company Limited

Vs Nanu Ram and Others (2018 ACJ 2782).

19. The next question is relating to apportionment

of the aforesaid compensation. The Tribunal has awarded

60% of the compensation to the wife and two children and

remaining 40% to the parents. We deem it appropriate to