Smt.Amaleshwari W/O Pascal vs M/S.Sbs Enterprises
2022 Latest Caselaw 933 Kant

           IN THE HIGH COURT OF KARNATAKA,
                    DHARWAD BENCH

          DATED THIS THE 20TH DAY OF JANUARY 2022

                         PRESENT

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

                           AND

     THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

               MFA NO.100977 OF 2019 (MV-D)

BETWEEN:

1.     SMT. AMALESHWARI W/O PASCAL FERNANDES
       AGE:50 YEARS, OCC:NIL,
       R/O 1143, JANATA COLONY, LONDA,
       TQ:KHANAPUR, DIST:BELAGAVI.

2.     MISS CARMELINALEEZA D/O PASCAL FERNANDES
       AGE:23 YEARS, OCC:STUDENT,
       R/O 1143, JANATA COLONY, LONDA,
       TQ:KHANAPUR, DIST:BELAGAVI.

3.     MOTESPAUL S/O PASCAL FERNANDES
       AGE:20 YEARS, OCC:STUDENT,
       R/O 1143, JANATA COLONY, LONDA,
       TQ:KHANAPUR, DIST:BELAGAVI.
                                              ...APPELLANTS
(BY SRI. ASHOK A NAIK, ADVOCATE)

AND

1.     M/S. SBS ENTERPRISES
       SHAIKH BUILDING, BEHIND CANARA
       BANK, PONDA, GOA, STATE-403401

2.     THE MANAGER
       NEW INDIA ASSURANCE CO. LTD.,
       VASCO BRANCH, OFFICE, 141304,
                              2



      SANTA PALAGIA BUILDING,
      1ST FLOOR, OPP: KHALAP MANSION,
      VASCO-GOA 403802,
      THROUGH ITS BRANCH OFFICE AT CLUB
      ROAD, BELAGAVI-590020.
                                            ...RESPONDENTS
(BY SRI.S.S. KOLIWAD, ADVOCATE FOR R2)
(R1-NOTICE DISPENSED WITH)

      THIS APPEAL IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, 1988 PRAYING TO CALL FOR THE
RECORDS TO HEAR THE PARTIES AND MAY KINDLY BE
MODIFIED THE JUDGMENT AND AWARD DATED 31.10.2018 IN
MVC NO.2156/2017 PASSED BY THE I ADDL. DISTRICT AND
SESSSIONS JUDGE AND MACT-II, BELAGAVI. BY ALLOWING
THIS APPEAL WITH COST AND IN THE ENDS OF JUSTICE.

    THIS APPEAL COMING ON FOR ORDERS, 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 31.10.2018 passed in MVC No.2156/2017

on the file of the learned I Addl. District and Sessions

Judge & MACT-II, Belagavi (for short, 'Tribunal').

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

deceased Pascal Fernandes filed a claim petition under

Section 166 of the Motor Vehicles Act, 1988 seeking

compensation for the accidental death of deceased Pascal

Fernandes, which took place on 20.01.2014 involving

Truck bearing registration No.GA-01/W-7356. It is stated

that the deceased was aged about 45 years as on the date

of the accident and was earning Rs.13,500/- per month

working as Mestri in M/s. Ganesh Timber Depot at Goa.

4. Before the Tribunal, the claimants examined

PW1 to PW3 and got marked the documents as

Exs.P1 to P11 in support of their case, whereas

respondent/Insurance Company marked policy copy as

Ex.R1. The Tribunal based on the material evidence on

record awarded total compensation of Rs.13,22,500/- on

the following heads:

      Loss of Dependency                       Rs.8,82,000/-
      Loss of consortium                       Rs. 40,000/-
      Loss of estate and Funeral
      Expenses                                 Rs. 30,000/-
      Loss of future prospects                 Rs.2,20,500/-
      Loss of love and affection               Rs.1,50,000/-
            Total                              Rs.13,22,500/-

5. While awarding the above compensation, the

Tribunal assessed the notional income of the deceased at

Rs.7,000/- per month and added 25% 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. Ashok A Naik, learned counsel

appearing for the appellants and Sri. S.S. Koliwad, learned

counsel for respondent/Insurance Company and perused

the appeal papers along with original records.

7. Sri. Ashok A Naik, learned counsel for the

appellants/claimants would contend that the income of the

deceased assessed by the Tribunal at Rs.7,000/- per

month is on the lower side. It is submitted that the

deceased was working as Mestri in M/s. Ganesh Timber

Depot and was earning Rs.13,500/- per month and to

establish the same, Ex.P6-salary certificate is placed on

record. It is also submitted that PW2 was examined in

support of Ex.P6. Learned counsel would submit that the

Tribunal committed an error in not taking into account

Ex.P6 while assessing the income of the deceased. Thus,

he prays for allowing the appeal.

8. Per contra, Sri. S.S. Koliwad, learned counsel

appearing for respondent No.2-Insurance Company

supporting the impugned judgment and award would

submit that except Ex.P6-salary certificate, no other

documents have been produced to establish the income of

the deceased. It is his submission that when no other

documents are produced such as registers and list of

workers in the said Timber depot, reliance cannot be

placed on Ex.P6. He further submits that in the absence of

corroborative documents, the Tribunal has rightly assessed

the notional income of the deceased at Rs.7,000/- per

month. 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.7,000/- 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 20.01.2014

resultant death of deceased Pascal Fernandes 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.7,000/- per month is on the lower side. The

claimants placed on record Ex.P6-salary certificate issued

by M/s. Ganesh Timber Depot, wherein it is indicated that

the deceased was working as Mestri since 2012 and

drawing salary of Rs.13,500/- per month. But, in the

absence of any other corroborative documents, Ex.P6

would not inspire confidence of this Court. Even though

PW2 examined in support of Ex.P6, his evidence also

cannot be believed. In the cross-examination, PW2 states

that no order of appointment was issued and there were

five persons working his Timber depot. Further, no

registers nor list of workers is placed on record.

Therefore, no reliance can be placed on Ex.P6. However,

this Court and Lok Adalath, while settling the accidental

claims of the year 2017 would assess the notional income

of the deceased at Rs.7,500/- per month, taking note of

the chart prepared by KSLSA based on various factors

including the minimum wage fixed. In the instant case, in

addition to notional income of the deceased at Rs.7,500/-

per month as per chart prepared by KSLSA, as the

deceased said to have been working at Timber depot, we

deem it appropriate to assess the notional income of the

deceased at Rs.8,000/- p.m. Deduction of 1/4th of the

assessed income of the deceased, addition of 25% towards

future prospects and multiplier of '14' 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.12,60,000/-

(Rs.8,000 + 25% x 3/4 x 12 x 14).

12. It is noticed that the Tribunal committed grave

error in awarding compensation of Rs.1,50,000/- on the

head of loss of love and affection. Claimants 1 and 2 being

children of the deceased would be entitled to Rs.40,000/-

each towards parental 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. Thus, the compensation awarded on the

head of loss of love and affection at Rs.1,50,000/- is

reduced to Rs.80,000/- awarding on the head of parental

consortium.

13. Thus, the claimants would be entitled for

modified compensation on the following heads:

Sl.No.                Particulars                   Amount
1.        Loss of dependency                  Rs.12,60,000/-
          (Rs.8,000 + 25% x 3/4 x 12 x 14)

2. Loss of estate & Funeral expenses Rs. 30,000/-

3.        Spousal Consortium                  Rs.  40,000/-
4.        Parental Consortium                 Rs.  80,000/-
                         Total                Rs.14,10,000/-

14. Thus, the claimants would be entitled to total

compensation of Rs.14,10,000/- as against

Rs.13,22,500/- 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 total compensation of Rs.14,10,000/- as against Rs.13,22,500/- awarded by the Tribunal.

c) The enhanced compensation amount will bear interest at the rate of 9% per annum as awarded by the Tribunal 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 1st claimant-

        wife   of   the    deceased   on   proper
        identification.

f) Draw modified award accordingly.

Sd/-

JUDGE

Sd/-

JUDGE

JTR