Karnataka High Court
Arundathi G Shetty vs Rajaram Shivaji Gavade on 6 July, 2022
Bench: Anant Ramanath Hegde
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
M.F.A.NO.4079 OF 2014 (MV)
C/W
M.F.A.CROB NO.158 OF 2014 (MV-I)
IN M.F.A.NO.4079/2014:
BETWEEN:
THE NEW INDIA ASSURANCE CO. LTD.,
DIVISIONAL OFFICE, ISLAMPUR,
SANGLI DIST,
THROUGH T P APPEAL HUB,
M G ROAD, BANGALORE-1,
BY DULY CONSTITUTED ATTORNEY. ...APPELLANT
(BY SRI C.R.RAVISHANKAR, ADV.)
AND:
1. ARUNDATHI G SHETTY,
W/O LATE GUNAPAL SHETTY,
AGED ABOUT 61 YEARS,
R/AT KODETHURGUTHU HOUSE,
MENNABETTU VILLAGE,
KINNIGOLI POST,
MANGALORE TALUK.
2. RAJARAM SHIVAJI GAVADE,
AGED ABOUT 41 YEARS
S/O SHIVAJI GAVADE
R/O A P OZARDE, WALVA TQ
SANGLI DISTRICT,
MAHARASTRA STATE. ...RESPONDENTS
(BY SRI K RANJAN KUMAR, ADV. FOR R1,
R2 - SERVED)
2
THIS MFA IS FILED U/S 173 (1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 2.1.2014 PASSED IN MVC
NO.116/2011 ON THE FILE OF THE MEMBER, MACT & III
ADDITIONAL DISTRICT & SESSIONS JUDGE, D.K., MANGALORE
AWARDING A SUM OF RS.13,31,000/- WITH INTEREST AT 6%
P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
IN M.F.A.CROB NO.158/2014:
BETWEEN:
ARUNDATHI G SHETTY,
AGED 61 YEARS,
W/O LATE GUNAPAL SHETTY,
R/AT KODETHURGUTHU HOUSE,
MENNABETTU VILLAGE,
KINNIGOLI POST,
MANGALORE TALUK. ...CROSS OBJECTOR
(BY SRI K RANJAN KUMAR, CROSS OBJECTOR)
AND:
1. RAJARAM SHIVAJI GAVADE,
AGED 42 YEARS,
S/O SHIVAJI GOVADE,
R/O A/P OZARDE,
WALVA TA, SANGLI DISTRICT,
MAHARASHTRA STATE - 416416.
2. THE NEW INDIA ASSURANCE COMPANY LTD.,
KAUSTUBH, SS 3524/25-26,
ISLAMPUR, SIST SANGLI - 416416
RERPESENTED BY ITS MANAGER. ...RESPONDENTS
(BY SRI C.R.RAVISHANKAR, ADV. FOR R2,
R1 - SERVED)
----
THIS MFA CROB IN MFA NO.4079/2014 IS FILED U/O 41,
RULE 22 OF CPC, AGAINST THE JUDGMENT AND AWARD
DATED2.1.2014 PASSED IN MVC NO.116/2011 ON THE FILE OF
THE III ADDITIONAL DISTRICT & SESSIONS JUDGE, MEMBER,
3
MACT-4, D.K., MANGALORE, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS MFA AND MFA CROB COMING ON FOR ADMISSION
THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal and the Cross objection arise out of the
judgment and award dated 02.01.2014 passed in MVC
No.116/2011 on the file of III Additional District and
Sessions Judge and MACT-IV, D.K., Mangalore.
2. For the sake of convenience, parties are
referred to as per their rank before the Tribunal.
3. Heard the learned advocate for
insurer/respondent and the learned advocate for the cross
objector/claimant.
4. The claim petition is filed by the mother of
deceased Kum. Shetty Pooja Gunapal, who died in a motor
vehicle accident which took place on 17.07.2010 at 2.45
p.m., at Padubidri on NH 17 when she was walking along
with her friend by the side of the road. It is alleged that
the driver of the lorry bearing Registration No.MH-10-Z-
1567 drove the lorry in a rash and negligent manner and
dashed to both the pedestrians. Due to the said accident,
Kum. Shetty Pooja Gunapal died on the spot, while another
pedestrian sustained grievous injuries. Deceased was aged
22 and was studying Bachelor of Engineering at N.M.A.M.
Institute of Technology Nitte and had completed the 6 th
Semester.
5. The claimant who is the mother of the
deceased filed a claim petition seeking compensation of
Rs.20,00,000/-. The Tribunal awarded the compensation
fastening the liability on the owner as well as the insurer
under:-
1 Love and affection Rs. 10,000/-
2 Funeral and obsequies Rs. 10,000/-
ceremonies
3 Transportation expenses Rs. 5,000/-
4 Loss of estate Rs. 10,000/-
5 Loss of dependency Rs. 12,96,000/-
Total Rs.13,31,000/-
6. The insurer has filed the appeal questioning
the quantum of compensation while the MFA Crob is filed
by the mother of the deceased seeking enhancement of
compensation.
7. The Tribunal has assessed the income of the
deceased at Rs.12,000/- per month and no future
prospects are added to the said income.
8. The learned counsel for the appellant/insurer
would contend that the deceased was a student having no
income and the notional income of the deceased assessed
as per the chart prepared by the Karnataka Legal Services
Authority should be taken into consideration. Referring to
the chart, he would further submit that the notional
income of the deceased at Rs.6,000/- per month be taken
into consideration since the accident is in the year 2010.
The deceased is survived by one dependent. Thus 50%
income of the deceased should be deducted towards
personal expenses. The Tribunal has awarded a loss of
dependency at Rs.12,96,000/-.
9. Learned advocate for the appellant/insurer
would place reliance on the judgment of the Division Bench
of this Court in MFA No.6433/2015 C/w. MFA
No.7149/2015. In the said case the Division Bench of this
Court has taken the notional income of the deceased who
was studying in M.Com. and the accident of the year 2011.
By relying on the said judgment, the learned advocate
would urge that the notional income is to be considered in
the absence of proof relating to the income, and the
compensation awarded by the Tribunal has to be reduced.
10. Learned advocate for the claimant would
submit that the ratio laid down in the judgment of the
Division Bench supra does not apply to this case as the
deceased in this case was studying in the professional
course and deceased in the judgment referred above was
studying in M.Com., as such the facts are distinguishable.
To substantiate his contention learned advocate for the
claimant would place reliance on the judgment of the
Division Bench of this Court in MFA No.1117/2018 and
connected matters disposed of on 13.12.2019.
11. This Court has perused the judgment referred
in MFA No.1117/2018 and noticed that the accident
occurred in the year 2015. In terms of the Paragraph
No.24, it is held that income would be Rs.15,000/- per
month as deceased was studying in the professional course
and added 40% of the income towards future prospects.
12. This Court has perused the records and noticed
that there is no dispute over the fact that the deceased
was pursuing her engineering course in the 6th semester
and since she was pursuing the professional course, the
income of the deceased is to be considered at Rs.15000/-
per month cannot be accepted for the simple reason that
the accident took place in the year 2010. Since, it is
established that deceased was studying in professional
course i.e., 6th semester of engineering, this Court is of the
view that Rs.10,000/- per month is to be taken as
notional income for the accident of the year 2010. 40%
towards future prospects has to be added to the said
notional income. The deceased is survived by one
dependent. Under these circumstance half of the income
of the deceased is to be deducted towards personal
expenses. Accordingly, compensation under the head of
loss of dependency would be
Rs.14,000X12X18X1/2=Rs.15,12,000/-.
13. It is also noticed that compensation awarded
under the head of the consortium, loss of estate and
funeral expenses is to be granted as per the ratio laid
down by the Hon'ble Apex Court reported in (2017) 16
SCC 680 in the case of National Insurance Company
Limited V/s. Pranay Sethi and others and the same
needs to be modified. As there is one dependent,
Rs.40,000/- has to be awarded towards the loss of
consortium. Under the heads of loss of estate and funeral
expenses Rs.15,000/- each is to be awarded as per
Pranay Sethis's case supra.
14. Thus, the claimant is entitled to a recalculation
of compensation as under:-
1 Loss of dependency Rs.15,12,000/-
(Rs.14,000X12X18X1/2)
2 Loss of Consortium Rs. 40,000/-
3 Loss of estate Rs. 15,000/-
4 Funeral and obsequies Rs. 15,000/-
Transportation of the dead
body
Total Rs. 15,82,000/-
Less the amount awarded by Rs. 13,31,000/-
the Tribunal
Enhanced compensation Rs. 2,51,000/-
amount
15. Hence, the following:-
ORDER
(i) Appeal is dismissed and the cross objection is
allowed in part. The impugned judgment and award dated
02.01.2014 passed by the III Additional District and Sessions
Judge and MACT-IV, D.K., Mangalore in MVC No.116/2011
is modified.
(ii) The claimant/cross objector is entitled for
enhanced compensation of Rs.2,51,000/- along with interest @
6% p.a. from the date of the petition till realisation.
(iii) The appellant/insurance company shall deposit the
amount after deducting the amount, if any, already paid within
8 weeks from the date of receipt of a copy of this order.
(iv) In all other aspects, the award of the Tribunal is
undisturbed.
(v) The amount in deposit shall be transmitted to the
Tribunal.
Sd/-
JUDGE
HD
