Karnataka High Court
Kalpana W/O Dayanand Ayagole vs Bharath S/O Manik Jadhav on 11 January, 2022
Bench: S G Pandit, Anant Ramanath Hegde
THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 11TH 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. 100753/2020 (MV)
BETWEEN:
1. KALPANA W/O DAYANAND AYAGOLE
AGE: 21 YEARS, OCC: HOUSEHOLD WORK
2. SHIVAKANTA W/O BANDAPPA AYAGOLE
AGE: 51 YEARS, OCC: NILL
3. BANDAPPA A/O YALAPPA AYAGOLE
@ AYAWALE, AGE: 56 YEARS
OCC: NIL
ALL ARE R/O: OF GURUWASTI NORTH
SADAR BAZAR SOLAPUR
NOW RESIDING AT SAMBRA
BELAGAVI-590001.
...APPELLANTS
(BY SRI. SIDDAPPA SAJJAN, ADVOCATE)
AND:
1. BHARATH S/O MANIK JADHAV
AGE: 46 YEARS, OCC: BUSINESS
R/O: P.NO.87 PADMA NIVAS
NEAR SUBBAYYA CHAWL
LIMYEWADI(WANGI ROAD)
2
SOLAPUR NORTH, DIST: SOLAPUR
MAHARASHTRA STATE-413001.
2. THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.,
RAMDEV GALLI, BELAGAVI-590001.
...RESPONDENTS
(BY SRI. N.R.KUPPELUR, ADVOCATE FOR R2,
NOTICE TO R1 IS DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF M.V. ACT, 1988 AGAINST THE JUDGMENT AND
AWARD DATED 21.01.2020 PASSED IN MVC NO.837/2019 ON THE
FILE OF THE IX ADDITIONAL DISTRICT AND SESSIONS JUDGE AND
ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, ANANT RAMANATH HEGDE J.,
DELIVERED THE FOLLOWING:
JUDGMENT
Though the appeal is listed for admission, with
consent of both sides, appeal is taken up for final disposal.
2. As against claim of Rs.65,50,000/- claimed by
wife and parents of late Dayanand S/o Bandappa Ayagole,
who died in a motor vehicle accident took place on
10.4.2019 while he was crossing Solapur-Vijayapur road,
the claimants are before this Court challenging the quantum
of compensation of Rs.23,54,800/- awarded by Claims
Tribunal, Belagavi. The fact that the accident took place on
10.4.2019 resulting into death of one Dayanand Ayagole is
not in dispute.
3. We have heard the learned counsel for both
parties. Perused the records.
4. The learned counsel for the appellants would
submit that the deceased was aged 27 years as could be
seen from the postmortem report, which is marked at
Ex.P.7. According to the appellants, the deceased was
agriculturist as well as mason. The documents are not
placed before the Tribunal to prove his avocation. In the
absence of documents, the Tribunal has taken at
Rs.12,000/- per month as his income. Learned counsel for
the appellants would submit that as per the chart prepared
by the Karnataka State Legal Services Authority, the
income has to be taken at Rs.13,250/- per month since the
accident took place in the year 2019. The Tribunal has
added 40% towards future prospects considering the fact
that the deceased was aged 27 years. No fault can be found
with the finding of the Tribunal for adding 40% of the
assessed income towards future prospects. However, the
income ought to have taken at Rs.13,250/- per month as
against Rs.12,000/- per month taken by the Tribunal. On
these grounds, the compensation amount awarded by the
Tribunal has to be enhanced.
5. Learned counsel for the appellants would further
bring to the notice of this Court that only Rs.40,000/- has
been awarded by the Tribunal towards loss of consortium. It
is an admitted fact that the deceased was survived by his
wife and parents. No consortium is awarded in favour of the
parents. In terms of the ratio laid down in the judgment of
Hon'ble Apex Court in the matter of Magma General
Insurance Co.Ltd Vs Nanu Ram and Others1, the
parents are also entitled for consortium of Rs.40,000/-
each. Thus the compensation requires to be enhanced on
the head of loss of consortium. Learned counsel for the
appellants would further contend that the Tribunal was in
error in deducting 20% of the compensation awarded on
the ground that the deceased himself has contributed for
the cause of the accident to the extent of 20%. Learned
counsel for the appellants would bring to the notice of the
Court that the rider of the bike was riding the bike on the
wrong side and he was proceeding from Solapur-Vijayapur.
This Court has perused the panchanama as well as sketch,
which is produced before the Tribunal. From the sketch as
well as the panchanama, it is apparent that the bike was
proceeding from Solapur-Vijayapur and it was on the right
lane, which is wrong side for the bike rider. This aspect of
(2018 ACJ 2782)
the matter, has not been taken into consideration by the
Tribunal. The Tribunal proceeds on the assumption that the
person, who crosses the road has to be cautious and he
was negligent in not taking proper precaution while crossing
the road. The Tribunal has lost site of the fact that the rider
of the bike has come on the wrong side. In that view of the
matter, the finding of the Tribunal to the extent of
contributory negligence held against the deceased has to be
set-aside and accordingly, it is set-aside. The rider of the
bike himself being solely responsible for the accident, there
is no contributory negligence.
6. Accordingly, the judgment and award passed by
the Tribunal needs to be modified and the claimants are
entitled for the following modified compensation:
Amount in
(Rs.)
Loss of dependency 25,22,800.00
(13,250 + 40% = 18,550
18,550 x 12 x 17 x 2/3rd =
25,22,800/-
Spousal and parental consortium 1,20,000.00
Loss of estate and funeral 30,000.00
expenses
Total 26,72,800.00
7. Thus, the claimants are entitled for total
compensation of Rs.26,72,800/- as against Rs.18,83,840/-.
In the result, we pass the following:
ORDER
The appeal is allowed in part. Consequently, the
impugned judgment and award dated 21.01.2020 passed in
M.V.C. No.837/2019 by the learned IX Addl. District and
Sessions Judge and Addl. MACT, Belagavi stands modified.
The appellants-claimants are entitled for total
compensation of Rs.26,72,800/- as against Rs.18,83,840/-
awarded by the Tribunal.
Interest is awarded by the Tribunal at 9% is on higher
side. Keeping in mind the prevailing interest rate fixed by
Nationalized Banks, we award interest at the rate of 6% on
the compensation payable.
In other aspects, the judgment and award of the
Tribunal stands unaltered.
Pending applications, if any, do not survive for
consideration and accordingly, they are disposed of.
Sd/-
JUDGE
Sd/-
JUDGE
am
