Sanna Thimakka vs B.S.Raviprakash
2022 Latest Caselaw 328 Kant

        IN THE HIGH COURT OF KARNATAKA,
                 DHARWAD BENCH

      DATED THIS THE 10TH DAY OF JANUARY 2022

                      PRESENT

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

                        AND

 THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

             M.F.A. No.100285/2014 (MV)

BETWEEN:

1.   SANNA THIMAKKA
     W/O THIPPESWAMY,
     AGED: ABOUT 45 YEARS

2.   KUMARI MAMATHAMMA
     D/O LATE THIPPESWAMY,
     AGED: ABOUT 19 YEARS

3.   RAJA S/O LATE THIPPESWAMY
     AGED: ABOUT 17 YEARS

4.   NAGESHI S/O LATE THIPPESWAMY
     AGED: ABOUT 16 YEARS

     APPELLANS NO.3 AND 4
     ARE MINORS REP. BY THEIR NATURAL
     GUARDIAN MOTHER I.E. APPELLANT NO.1
     ALL ARE RESIDING AT
     PLONAPALLI VILLAGE,
     KALYANDURGA TALUK,
     ANANTHAPUR DISTRICT,
     NOW AT ANDHRAL VILLAGE,
     BELLARY TALUK AND DISTRICT
                                         ...APPELLANTS
(BY SRI.MALLIKARJUNSWAMY B HIREMATH, ADVOCATE)
                           2



AND

1.    B.S.RAVIPRAKASH
      S/O SANNA SIDDAPPA,
      AGE: MAJOR,
      OCC: DRIVER-CUM-OWNER,
      OF THE BOREWELL LORRY BEARING
      REG. NO.AP 16/BD 9599,
      R/O: RAMPURA VILLAGE,
      DEVASAMUDRA HOBLY,
      MOLKALMURU TALUK,
      CHITRADURGA DISTRICT.

2.    THE BRANCH MANAGER
      UNIVERSAL SAMPO GENERAL,
      INSURANCE CO.LTD.,
      D.NO.2A, 2ND FLOOR,
      84 RAMSON COMPLEX,
      P.B. ROAD, HOSUR,
      HUBLI-580021.

3.    KUMAR S/O LATE THIPPEWAMY
      AGE 24 YEARS,
      OCC. STUDENT,
      R/O PLONAPALLI VILLAGE,
      KALAYANDURGA TALUK,
      ANANTHAPUR DIST.
      NOW R/AT ANDWAL VILLAGE,
      BALLARI TALUK
                                         ...RESPONDENTS
(BY SRI.MANJUNATH G PATIL, ADVOCATE FOR R1,
 SRI.NAGARAJ C KOLLOORI, ADVOCATE FOR R2,
 NOTICE TO R3 IS DISPENSED WITH)

     THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV
ACT, AGAINST JUDGMENT AND AWARD DATED 05.06.2012
PASSED IN MVC NO.347/2012 ON THE FILE OF THE MACT-IX,
BELLARY PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION     AND    SEEKING   ENHANCEMENT     OF
COMPENSATION.

      THIS APPEAL COMING ON FOR HEARING ON I.A., THIS
DAY, S.G. PANDIT J., DELIVERED THE FOLLOWING:
                              3



                       JUDGMENT

The claimants-wife and children of the deceased

Thippeswamy are before this Court under Section 173(1)

of the Motor Vehicles Act, 1988 not being satisfied with the

quantum of compensation awarded under the judgment

and award dated 05.06.2012 in MVC No.347/2012 on the

file of the MACT-IX, Ballari and praying for enhancement of

compensation.

2. Heard Sri.Mallikarjunswamy B Hiremath,

learned counsel for the appellants and Sri.Nagaraj C

Kolloori, learned counsel for the respondent-Insurance

Company. Perused the appeal papers.

3. Learned counsel for the appellants submits

that the appellants/claimants filed claim petition under

Section 166 of the Motor Vehicles Act claiming

compensation for the death of one Thippeswamy in a road

traffic accident that occurred on 31.01.2012 involving

borewell lorry bearing Reg.No.AP-16/BD-9599. It is stated

that the deceased was working as a coolie and he was

aged 48 years as on the date of the accident. The Tribunal

assessed the income of the deceased at Rs.4,800/- per

month and awarded compensation of Rs.5,61,600/- on the

head of loss of dependency and adopted multiplier of 13.

The claimants not being satisfied with the quantum of

compensation are before this Court.

4. Learned counsel for the appellants contends

that the Tribunal committed an error in assessing the

income of the deceased at Rs.4,800/- per month and he

submits that the Tribunal ought to have assessed the

income of the deceased at minimum of Rs.6,500/-.

Further, the learned counsel also submits that the Tribunal

grossly erred in not awarding compensation on the head of

future prospects. He submits that the claimants would be

entitled for consortium of Rs.40,000/- each on the head of

consortium as held by the Hon'ble Apex Court in Magma

General Insurance Co.Ltd Vs Nanu Ram and Others

(2018 ACJ 2782). Thus, he prays for allowing the appeal.

5. Learned counsel for the respondent-insurer

supports the impugned judgment and award passed by the

Tribunal and submits that the quantum of compensation

awarded by the Tribunal is just and proper.

6. The accident which had taken place on

31.01.2012 involving borewell lorry bearing Reg.No.AP-

16/BD-9599 and the accidental death of Thippeswamy, the

husband of claimant No.1 is not in dispute in this appeal.

The claimants are in appeal praying for enhancement of

compensation. The Tribunal assessed the income of the

deceased at Rs.4,800/- per month which is on the lower

side. The claimants have not made available any material

to establish the income of the deceased. In the absence of

any material or document to establish the income, the

Court will have to assess the income of the deceased on

guess work. This Court and the Lok-Adalaths while settling

the accidental claims of the year 2012, would assess the

income of the deceased at Rs.6,500/- per month based on

the chart prepared by the Karnataka State Legal Services

Authority.

7. In the instant case also, in the absence of any

material to establish the income of the deceased, it would

be appropriate for us to assess the income of the deceased

at Rs.6,500/- per month. The Tribunal further erred in not

granting compensation on the head of future prospects.

The Hon'ble Apex Court in National Insurance Company

Vs Pranay Sethi (2017 ACJ 2011), has held that

wherever the deceased was aged between 40-50 years,

the claimants would be entitled for addition of 25% of the

established income towards future prospects. As the

deceased was aged 48 years, the claimants would be

entitled for addition of 25% of the established income on

the head of future prospects. The multiplier of 13 adopted

by the Tribunal is proper. The wife of the deceased i.e.

claimant No.1 would be entitled for spousal consortium of

Rs.40,000/-, whereas the children of the deceased i.e.

claimants No.2 to 5 are entitled for parental consortium of

Rs.40,000/- each as held by the Hon'ble Apex Court in

Magma (supra). The claimants would also be entitled for

compensation on the heads of loss of estate at Rs.15,000/-

and funeral expenses at Rs.15,000/-. Thus, the claimants

would be entitled for the following modified compensation:

Amount in (Rs.) Loss of dependency 9,50,625/- (Rs.6,500 + 25% = Rs.8,125/-) (Rs.8,125 x 12 x 13 x ¾ = 9,50,625/-

Spousal and parental consortium 2,00,000/-

       (Rs.40,000 x 5)
       Loss of estate                           15,000/-
       Funeral expenses                         15,000/-
                                     Total   11,80,625/-

8. Thus, the claimants are entitled for total

compensation of Rs.11,80,625/- with interest at 6% p.a.

as against Rs.5,99,100/- awarded by the Tribunal.

However, the claimants would not be entitled for interest

for the delayed period of 471 days on the enhanced

compensation as per order dated 10.01.2022.

9. Accordingly, the appeal is allowed in part.

10. The impugned judgment and award passed by

the Tribunal stands modified to the above extent. In all

other terms, the judgment passed by the Tribunal stands

unaltered.

SD/-

JUDGE

SD/-

JUDGE

sh