Karnataka High Court

Nanjundappa S/O Mallappa ... vs Jambanna S/O Chandrashekhar ... on 5 July, 2022

Bench: Pradeep Singh Bypsyj

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

       DATED THIS THE 05TH DAY OF JULY, 2022

                       BEFORE

 THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR


     MISC. FIRST APPEAL NO.100913 OF 2021 (MV-D)


BETWEEN:


1.     SHRI NANJUNDAPPA S/O MALLAPPA
       BANNIMATTI, AGE: 66 YEARS,
       OCC: AGRICULTURE,

2.     SHRI MALLESH @ MALLAPPA
       S/O NANJUNDAPPA BANNIMATTI,
       AGE: 36 YEARS, OCC: AGRICULTURE,

3.     SHRI NAGESH @ NAGARAJ
       S/O NANJUNDAPPA BANNIMATTI,
       AGE: 34 YEARS, OCC: AGRUCULTURE,

4.     SHRI HEMESH S/O NANJUNDAPPA
       BANNIMATTI, AGE: 32 YEARS,
       OCC: AGRUCULTURE,

       ALL ARE R/O GUTTAL,
       TQ AND DIST: HAVERI-5811108.

                                          ......APPELLANTS
(BY SHRI B. M. PATIL, ADVOCATE)

AND:

1.     SHRI JAMBANNA S/O CHANDRASHEKHAR
       MALLESHNNANAVAR, AGE: 54 YEARS,
       OCC: BUSINESS AND AGRICULTURE,
       R/O BUDAGATTI, NEAR MEHABOOB
       SUBHANI DARGAHA,
                          2




     TQ & DIST:HAVERI-581110.
     (OWNER OF LORRY BEARING NO.KA.7/A-8177)

2.   THE AUTHORISED SIGNATORY,
     SHREERAM GENERAL INSURANCE CO. LTD.,
     CTS-477/1M-1 1ST FLOOR,
     HALLMARK BUILDING, DESAI CROSS,
     PINOT ROAD, HUBBALLI-580020.

     POLICY NO.1003/31/16/456837
     VALID FROM: 20.12.2015 TO 19.12.2016.


                                      ... RESPONDENTS

(BY SHRI N.C.KOLLORI, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH)

     THIS   MISCELLANEOUS    FIRST   APPEAL   IS   FILED

UNDER SECTION 173 (1) OF MOTOR VEHICLES ACT, 1988,

AGAINST THE JUDGMENT AND AWARD DATED 05.09.2018

PASSED IN MVC NO.111/2016 ON THE FILE OF THE

ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER, MOTOR

ACCIDENT CLAIMS TRIBUNAL, HAVERI, PARTLY ALLOWING

THE CLAIM PETITION FOR COMPENSATION AND SEEKING

ENHANCEMENT OF COMPENSATION IN THE INTEREST OF

JUSTICE.


     THIS APPEAL COMING ON FOR ADMISSION, THIS

DAY, THE COURT DELIVERED THE FOLLOWING:
                                    3




                              JUDGMENT

This appeal is preferred by the claimants challenging

the judgment and award passed by the Addl. Senior Civil

Judge and M.A.C.T, Haveri (for short 'the tribunal') in

MVC.No.111/2016 dated 05.09.2018. This appeal is

founded on the premise of inadequacy of compensation on

various grounds urged therein.

2. Parties to the appeal shall be referred to as per

their status before the tribunal.

3. Brief facts of the case are as under:

3.1. On 24.12.2015, at about 05.15 p.m, when the

deceased was returning to her village in Mahindra Maxi Cab

vehicle bearing Reg.No.KA.26/2246 as a fare paid

passenger, the said vehicle came near Haveri-Guttal road,

near Budagatti lake, at that time a lorry bearing

REg.No.KA.27/A.8177 came from the opposite direction

driven by its driver in a high speed and in rash and

negligent manner so as to endanger human life and safety,

lost control over the vehicle and dashed against the maxi-

cab and thereafter to a tamarind tree. Due to which, the

branch of tamarind tree fell on the maxi-cab in which

deceased Gouravva was traveling resulting in the accident.

Due to the fall of the branch of tamarind tree on the maxi-

cab, the deceased Gouravva sustained grievous injuries and

died on the spot.

3.2. It is stated that the deceased Gouravva was

aged about 52 years. She was doing milk vending business

and agricultural work getting monthly income of

Rs.25,000/-. The deceased was the only earning member of

the family, who used to look after the claimants and the

family was depending on her income. In view of the sudden

and untimely death of deceased, the claimants have lost

their sole bread earner, love and affection and also

mentally and financially. Hence, they filed a claim petition

seeking compensation.

4. On service of notice, respondents who are the

owner and insurer of the offending vehicle have filed their

detailed statement of objections. Respondent No.1, who is

the owner of the offending lorry pleaded that his vehicle

was not involved in the accident and the rashness and

negligence was on the part of the driver of the maxi-cab.

He also denied the age, avocation and income of the

deceased. He has taken the plea that his vehicle was

insured with respondent No.2 and since he had valid

insurance policy as on date of occurrence of the accident. If

any liability is fastened on him, the same will have to be

indemnified by the 2nd respondent. On these grounds,

sought for dismissal of the claim petition.

5. Respondent No.2-Insurer filed his statement of

objection inter-alia denying the occurrence of accident,

involvement of the vehicle, age, avocation and income of

the deceased and that the driver of the offending vehicle

did not have valid and effective driving license as on the

date of occurrence of accident and so also, he has breached

the terms and conditions of the policy. It also taken up the

plea that the compensation claimed is exorbitant. On these

pleading, he sought for dismissal of the claim petition.

6. On the basis of pleadings, the tribunal has

framed relevant issues for consideration.

7. In order to substantiate the issues and to

establish the case, the claimant No.2 examined himself as

PW.1 and got marked the documents as Exs.P1 to P10.

Whereas, no evidence was adduced on behalf of the

respondents and neither document was marked on their

behalf.

8. On the basis of material evidence both oral and

documentary, the tribunal come to a conclusion that the

liability was to be fastened on jointly as against the owner

and insurer of the offending vehicle and awarded total

compensation of Rs.7,83,000/- with 6% interest and

directed the 2nd respondent to indemnify the 1st respondent

by paying the compensation.

9. It is the vehement contention of learned

counsel for the claimant-appellant that the judgment and

award passed by the tribunal is erroneous, contrary to the

material evidence placed on record and the documents

presented by the claimants. Learned counsel further

contends that the tribunal has erred in awarding meager

amount towards loss of dependency by not taking the

appropriate income for calculation as stated on oath by the

claimant-PW.1. Learned counsel further contends that the

tribunal has awarded meager compensation under other

heads and has not awarded just and reasonable

compensation, which also requires interference at the

hands of this Court. Learned counsel further contends that

the tribunal has not awarded suitable compensation under

the head of loss of consortium to all the dependants/legal

representatives of the deceased. On these grounds, he

seeks enhancement of compensation and consequently

allow the appeal.

10. Per contra, learned counsel Shri. N.C.Kolloori,

appearing on behalf of the insurance company vehemently

contends that the judgment and award passed by the

tribunal is in consonance with the material evidence placed

on record and the same in fact is on the higher side. He

further contends that the judgment and award of the

tribunal is erroneous for the reason that the tribunal has

awarded loss of dependency to the claimant Nos.2 to 4,

who are the adults, major in age and who have stated in

evidence that they are self dependant and earning their

own income and they are living separately and they have

also produced BPL Card at Exs.P8 to 10. It is also the

further contention of learned counsel for the insurer that

the tribunal has committed gross error in deducting ¼ of

the income towards personal and living expenses of the

deceased. Whereas, the claimants cannot be considered to

be dependants and accordingly, 50% ought to have been

deducted towards personal and living expenses of deceased

for calculation. This being not done, the tribunal has

committed an gross error and mistake leading to

miscarriage of justice to the insurance company. Learned

counsel further contends that the award of compensation

on the other heads are suitably calculated and rightly

awarded, which does not call for interference and on the

basis of these submissions, he seeks to dismiss the appeal

filed by the claimants.

11. Having heard the learned counsel for the

appellants-claimants and learned counsel for respondent-

Insurer, the points that would arise for consideration before

this Court are:

"i) Whether the claimants are entitled to enhancement of compensation ?

ii) Whether the plea of the insurer that claimant Nos.2 to 4 are not entitled to loss of dependency would be liable for consideration without there being any cross-objections/appeal preferred by the insurer ?

iii) What order"

12. On a careful perusal of entire material on record

and having gone through the impugned judgment and

award including the exhibits exhibited in the case on hand,

it is apparently seen that the claimants would be entitled

for marginal enhancement of compensation. The insurance

company having not filed appeal or preferred cross-

objection, the question of considering reduction of loss of

dependency on the ground of claimant Nos.2 to 4 being

adults and major in age, cannot be reduced in view of the

fact that the claimants cannot be put into a worst situation

than as they were prior to filing of this appeal. The

claimants would be entitled to enhancement of

compensation for the reason stated herein below.

13. It is not in dispute that the accident occurred on

24.12.2015 between the Mahindra Maxi Cab stated as in

above with the lorry which came from opposite side and

dashed against the Mahindra Maxi Cab and the tree. It is

also not in dispute that due to the accident on the branch of

the tree falling on the Maxi Cab, deceased sustained

injuries and succumbed to death.

14. To substantiate these issues, claimants got

examined themselves as PW.1 and produced Exs.P.1 to

P.10. The police records are marked at Ex.P.1 to P.7. The

charge sheet has been laid against the driver of the

offending lorry. There is no challenge to the charge sheet or

criminal proceedings lodged against the driver of the

offending vehicle, lorry and neither is there any contra

material evidence placed before this Court or before the

tribunal to disprove the Exs.P.1 to P7, which are the police

records. In the absence of any such material, the police

records cannot be ignored as they are not disputed and the

evidentiary value of it will have to be taken into

consideration, which has been rightly done by the tribunal.

Therefore, the occurrence of accident, involvement of two

vehicles, death having resulted due to the accident are all

not disputed in the present facts of the case. This Court

would not want to delve upon the further with regard to

liability i.e, fastened on the owner and insurer of the

offending vehicle.

15. Now coming to the question of age, avocation

and income of the deceased admittedly, the deceased is

aged about 52 years as per Ex.P.6. Though it is claimed

that she was working in the agricultural field and doing milk

vending business, no material piece of evidence has been

placed before the Court in proof of her income. In the

absence of any proof of income, the Courts are left with no

option but to do a guess work and in order to do a standard

guess work without variation, the Legal Services Authority

has prescribed the notional income chart, wherein the

income is stipulated at Rs.8,000/- for the accident occurred

in the year 2015. Hence, in the present case on hand,

Rs.8,000/- is required to be taken as against Rs.7,000/-

assessed by the tribunal.

16. I am in agreement with the learned counsel for

the claimants that the tribunal has committed an error in

not adding 10% towards future prospects. As the deceased

was aged 52 years, claimants are entitled to 10% of future

prospects on her income. Tribunal has arrived at a

conclusion that there being four dependants namely

claimant Nos.1 to 4 being the husband and three children,

they would be entitled to loss of dependency and has

calculated deduction of 1/4th income towards personal

expenses and living expenses of the deceased. This aspect

of the matter is vehemently contested and argued by the

learned counsel for the insurer. But however, strangely

insurance company has not preferred any appeal neither

any cross-objection in the present case. Hence, the said

contention of the learned counsel for the insurance

company is negatived as the claimants cannot be put into a

worst situation for having approach this Court than what

was awarded by the tribunal.

17. In view of the fact that the deceased was aged

50 years, the appropriate multiplier applicable in the

present case on hand would be '11' as rightly adopted by

the Tribunal in accordance to the Judgment of Hon'ble

Apex Court in the case of Sarla Verma (Smt) and

others vs. Delhi Transport Corporation and another

reported in (2009) 6 Supreme Court Cases 121..

Hence, same does not call for interference. Therefore,

claimants would be entitled for the loss of dependency due

to the death of deceased would be (Rs.8,000/-+10%=

Rs.8,800/- - 1/4th =Rs.6,600/- x 12 x 11) Rs.8,71,200/- as

against Rs.6,93,000/- awarded by the Tribunal.

18. Towards loss of consortium, the tribunal has

awarded Rs.40,000/- only. There are admittedly four

dependants of the deceased, in view of the Judgment of the

Hon'ble Apex Court in the case of National Insurance

Company Limited vs. Pranay Sethi and others

reported in (2017) 16 Supreme Court Cases 680,

which has been subsequently followed in the case of

United India Insurance Co. Ltd. v. Satinder Kaur Alias

Satinder Kaur reported in AIR 2020 SC 3076, the

claimants would be entitled for Rs.40,000/- each since

there are four dependants, therefore amount of

(Rs.40,000/- X 4 dependants) Rs.1,60,000/- is awarded

under the head of loss of consortium.

19. The Tribunal has awarded meager amount of

Rs.15,000/- towards transportation of dead body and

funeral expenses, the said amount requires to be enhanced

in compliance with the Judgment of the Hon'ble Apex Court

in the case of Pranay Sethi (supra). Accordingly, I deem

it appropriate to award Rs.15,000/- each under the above

head. Totally Rs.30,000/- amount to be awarded. In

consonance with the judgment of Pranay Sethi

(supra), the claimants would be entitled to 10%

increase for one block period of three years on the

compensation of Rs.1,90,000/- awarded under

conventional heads. Accident being of the year 2015,

from the date of accident, there are three block periods,

to which there would be increase of 30% (10% x 3),

which would come to Rs.57,000/-. Then the total amount

under this head would be Rs.2,47,000/-.

20. In view of the above discussions, the claimants

would be entitled for enhancement of compensation as

mentioned in the table below:

              Head             As awarded by        As awarded
                                the Tribunal       by this Court
                                   (Rs.)               (Rs.)

Loss of income due to                6,93,000          8,17,200
dependency

(Rs.8,800/-    -    1/4th
=Rs.6,600/- x 12 x 11)
Loss of consortium                        40,000       1,60,000
(Rs.40,000/-         X     4
dependants)

Towards     transportation                15,000         30,000
and funeral expenses
10%      increase    on
conventional heads for                -                  57,000
three block periods of
three years.
  (1,90,000 x 10% x 3)
          Total                      7,83,000        10,64,200

21. For the foregoing reasons, I pass the following:

ORDER

i) The appeal is allowed.

ii) The judgment and award passed by the Tribunal in

MVC.No.111/2016, dated 05.09.2018, is modified;

iii) The claimants are entitled for total compensation

of Rs.10,64,200/- as against Rs.7,83,000/-

awarded by the Tribunal;

iv) All other terms and conditions stipulated by the

Tribunal shall stand intact.

v) The balance amount of compensation shall be paid

by the 2nd respondent/Insurance Company along