Karnataka High Court

Vaishali Kudache W/O Siddhu ... vs Chitra Balasubramaniyam on 2 June, 2022

Bench: Pradeep Singh Bypsyj

        IN THE HIGH COURT OF KARNATAKA
                DHARWAD BENCH

     DATED THIS THE 02ND DAY OF JUNE, 2022

                      BEFORE

 THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

MISCELLANEOUS FIRST APPEAL NO.25747 OF 2012 (MV-I)

BETWEEN:
1.   SMT. VAISHALI KUDACHE
     W/O SIDDHU KUDACHE,
     AGE: 24 YEARS, OCC: HOUSEHOLD,

2.   KUMARI. ROHANI KUDACHE
     D/O SIDDHU KUDACHE,
     AGE: 6 YEARS, OCC: STUDENT,

3.   KUMARI. SALONI KUDACHE
     D/O SIDDHU KUDACHE,
     AGE: 4 YEARS, OCC: STUDENT,

4.   SHRIPAD KUDACHE
     S/O SIDHU KUDACHE,
     AGE: 50 YEARS, OCC: NIL,

5.   SMT. BALABAI KUDACHE
     W/O SHRIPAD KUDACHE,
     AGE: 45 YEARS, OCC: NIL,

NOTE: APPELLANTS NOS.2 AND 3
BEING MINOR ARE REPRESENTED
BY THEIR NATURAL GUARDIAN
MOTHER APPELLANT NO.1.
SMT. VAISHALI KUDACHE
W/O SIDDHU KUDACHE.
AGE: 24 YEARS, OCC: HOUSEHOLD.

ALL THE APPELLANTS ARE
R/O BORGAON, TQ: CHIKODI, DIST: BELAGAVI.

                                    ......APPELLANTS
(BY SHRI NEELENDRA D.GUNDE, ADVOCATE)
                            2               MFA.No.25747/2012




AND:

1.     MRS. CHITRA BALASUBRAMANIYAM
       W/O NOT KNOWN, AGE: 42 YEARS,
       OCC: BUSINESS, R/O: 685, CHENNIMALAI,
       PERUNDURAIRK,DIST: ERODE - 638305,
       TAMIL NADU.

2.     THE DIVISIONAL MANAGER,
       NATIONAL INSURANCE CO., LTD.,
       RAMDEV GALLI, BELAGAVI.
       ISSUING BRANCH IST FLOOR,
       KARTHIKEYA COMPLEX, 403, B-10,
       NETTUR MAIN ROAD, BHAVANI ERODE,
       TAMIL NADU - 638302.

3.     THE DIVISIONAL MANAGER,
       NATIONAL INSURANCE CO., LTD.,
       RAMDEV GALLI, BELGAUM.
                                        ... RESPONDENTS

(BY SHRI SURESH S.GUNDI, ADVOCATE FOR R2;
    SHRI R.S.ARANI, ADVOCATE FOR R2 AND 3)
                         ---


       THIS   MISCELLANEOUS    FIRST   APPEAL   IS   FILED

UNDER SECTION 173 (1) OF MOTOR VEHICLES ACT

PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED

08.02.2012 PASSED IN MVC NO.2492/2010 BY THE FAST

TRACT COURT-I, CHIKODI AND ETC.



       THIS APPEAL COMING ON FOR ADMISSION, THIS

DAY, THE COURT DELIVERED THE FOLLOWING:
                                3                 MFA.No.25747/2012




                         JUDGMENT

This appeal is preferred by the claimants challenging

the judgment and award passed by Fast Track Court,

Chikkodi, at Chikkodi (for short 'the tribunal') in MVC.No.

2492/2010 dated 08.02.2019. 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 08.08.2010, at about 22.30 hours, near

Mansur Bridge on Hubli-Dharwad bypass of NH-4 road,

while deceased had stopped his lorry bearing Reg.No.MH-

09/BC-3058 for air checking, a lorry bearing No.TN-33/AN-

7949 came in a high speed in rash and negligent manner so

as to endanger to human life and safety, dashed against

the vehicle of deceased. Due to which, the deceased

namely Siddu suffered serious injuries and thereafter due to

the injuries sustained in the accident, the deceased

succumbed to the injuries. It is the case of claimants, who

are the legal heirs and dependents of deceased Siddu that

they spent huge amount for the treatment and medical

expenses and have suffered both emotionally and

financially due to the sudden and untimely death of

deceased. Accordingly, claimants filed a claim petition

seeking compensation for the loss of death of deceased and

the financial loss. It is the claim of the claimants that the

deceased was aged about 27 years and he was the driver

by profession. Apart from that, he was also a partner in the

partnership firm as stated in Ex.P.7, the partnership deed.

It is also alleged that he was earning Rs.35,000/- per

month as income and his family, who are the claimants

herein were the dependents on him as he was the sole

bread winner of the family.

3.2. On service of notice, respondents who are the

owner and insurer of the offending vehicle have filed their

detailed statement of objections inter alia contending that

the 1st respondent is the owner of the offending lorry and

2nd respondent is the insurer of the said lorry. It was

pleaded by way of statement of objection that the accident

occurred due to the negligence of the deceased himself and

not due to the negligence or rashness of the driver of the

offending vehicle. It is pleaded by the 1st respondent that

her vehicle is insured with the 2nd respondent-Insurance

Company and if any liability is fastened on her, the same

will have to be indemnified by respondent No.2-Insurance

Company. Whereas, respondent Nos.2 and 3 took up the

plea that the compensation claimed was exorbitant and

there was a violation of terms and conditions of the

insurance policy by the driver of offending vehicle. The

interest rate sought for by the claimants were on the higher

side. On these grounds sought for dismissal of the claim

petition.

3.3. On the basis of pleadings, the tribunal has

framed relevant issues for consideration.

3.4. In order to substantiate the issues and to

establish the case, the claimant No.1, who is none other

than the widow of deceased examined herself as PW.1 and

also examined one person by name Malari Sahadev Khot,

as PW.2 and got marked the documents as Exs.P1 to P20.

Whereas, no was evidence was adduced by the respondents

and no documents were marked on their behalf.

3.5. On the basis of material evidence both oral and

documentary, the tribunal awarded compensation of

Rs.9,43,000/- with interest @ 9% p.a by holding

respondent Nos.1 to 3 jointly and severally liable to pay the

compensation and directed respondent Nos.2 and 3 to

indemnify respondent No.1.

3.6. It is the vehement contention of learned

counsel for the claimants that the judgment and award

passed by the tribunal is erroneous and perverse, as it is

contrary to the material evidence placed on record both oral

and documentary. It is further contended that the tribunal

has grossly erred in not taking proper and appropriate

income for calculation of compensation, despite production

of Ex.P7, which is partnership deed and the evidence of

PW.2, who is one of the partner. It is also contended that

the tribunal has grossly erred in not awarding future

prospects for the loss of death of deceased, as

contemplated in the case of National Insurance Co. Ltd

vs Pranay Sethi reported in (2017) 16 SCC 680. Learned

counsel further contended that the tribunal has erred in not

awarding reasonable amount towards conventional head.

On the whole, the judgment and award of the tribunal is

perverse, arbitrary and meager. Hence, on these grounds,

seeks to allow the appeal and enhance the compensation.

3.7. Per contra, learned counsel Shri Suresh S.

Gunde, appearing for the respondent No.2 vehemently

contended that the judgment and award passed by the

tribunal is in accordance with the material evidence and the

documents exhibited before the tribunal. There is no

legality or perversity committed by the tribunal calling for

interference or enhancement of compensation by this

Court. Learned counsel further contended that the tribunal

has awarded just and reasonable compensation and

admittedly there is proof of income placed before the

tribunal or before this Court as established income of

deceased. Learned counsel further contended that though

the claimants have relied on Ex.P7, the same cannot be

considered in view of the fact that it is an unregistered

document executed on an Rs.2/- stamp paper, which does

not have any validity or legal sanction in accordance to the

Evidence Act. Learned counsel further contended that no

material to proof of income is placed to show any income as

per Exs.P.8 and P.9. Therefore, the tribunal has awarded

reasonable compensation, which is above the chart value

prescribed by the Legal Services Authority. Therefore, the

question of interference by this Court and enhancement of

compensation is not warranted. Learned counsel for

respondent Nos.2 fairly submits that he had also preferred

an appeal challenging the very same impugned judgment

and award in MFA No.23414/2012 on the question of

exorbitant amount of compensation awarded. However, the

same came to be dismissed.

4. Having heard the learned counsel for the

appellants-claimants and learned counsel for respondent

No.2-Insurer, the points that would arise for consideration

before this Court are:

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

ii) What order"

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

08.08.2010 between the vehicle driven by the deceased-

Sidhu and the offending vehicle which is a lorry bearing

No.TN-33 AW-7949 belonging to the 1st respondent. This

Court would not want to delve into the occurrence of

accident, rashness, negligence of driving and liability

fastened on the respondent No.1 in view of the fact that

Ex.P.1 to 6 being the Police records are not seriously

controverted or challenged by either the driver of the

offending vehicle or by the 2nd respondent by way of any

contra material before the Tribunal or before this Court.

When such being the case, the evidentiary value of Ex.P.1

to 6 are accepted on its face value.

6. Without further deliberation on the above, now

what require to be considered is the age, avocation and

income of the deceased as on the date of occurrence of

accident. Though, it is claimed by the claimants that

deceased was earning Rs.35,000/- per month as a driver

and partner along with P.W.2. No material documents have

been placed before the Court to show the exact income that

was drawn by the deceased and no material is placed to

substantiate the said income alleged. However, P.W.2 one

of the partner stepped into the witness box and stated that

the deceased was having monthly income of Rs.25,000/-

and but no material evidence is placed before the Court to

substantiate the same. The evidentiary value of Ex.P.7 is

questionable as it is not a document stamped in accordance

with the Karnataka Stamp Act, 1958. However, this Court

will have to take into consideration that the evidence of

P.W.2 which is not controverted by the 2nd respondent by

way of examination that there was no partnership at all of

P.W.2 and deceased. Though, some suggestions were put

with regard to drawing of the said amount of income as

stated by P.W.2.

7. Be that as it may, when there is no documentary

evidence produced with regard to proof of income, the

Tribunal and this Court are left with no other option but to

do guess work to assess the income of deceased based on

his avocation and material documents both oral and

documentary. No documentary evidence are placed in the

present case on hand except the oral statement by P.W.2

the Tribunal has assessed the income of deceased to be at

Rs.6,000/- per month. The claimants have stated that

income of Rs.10,000/- ought to have been taken as per the

grounds urged in the appeal.

8. On careful perusal of evidence of P.W.2 and P.W.1

and the exhibits produced, it is not in dispute that the

deceased was the driver by profession, who was also

involved in milk vending and supplying of milk and

cultivating the land and was involved in a partnership with

P.W.2. With all this, Ex.P.7 to 10 and keeping in mind the

evidence adduced by P.W.2, I deem it appropriate that in

the present facts and circumstances of the case, the

deceased cannot be considered as a mere coolie, who was

without any job and doing agriculture work, he was a

skilled person in the field of driving and having involved

himself in the partnership with P.W.2 and having

agricultural land and doing milk dairy, supplying of milk

products, a reasonable amount will have to be taken for

computing compensation. Having said so, I am of the

opinion that a sum of Rs.8,000/- could be assessed as

income of the deceased for computing compensation.

Accordingly, Rs.8,000/- is taken as income of deceased.

9. Admittedly, the deceased was aged 27 years as on

the date of his death and occurrence of accident. 40% will

have to be added to the income of deceased towards loss of

future prospects 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. Therefore, 40%

of Rs.8,000/- would comes to Rs.11,200/-. It is not in

dispute that the deceased is survived by his wife, two

children and his aged parents. In view of the fact there

are five dependants of deceased, 1/4th of the income of

deceased would have to be deducted towards his own

personal and living expenses, therefore, (Rs.11,200/- -

1/4th ) will be at Rs.8,400/-, which would be the amount

that he would contributing to the welfare of his family. In

view of the fact that the deceased was aged 27 years, the

appropriate multiplier applicable in the present case on

hand would be '17' 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, the claimant would

be entitled for the loss of dependency due to the death of

deceased would be (Rs.8,400/- x 12 x 17) Rs.17,13,600/-

as against Rs.9,18,000/- awarded by the Tribunal.

10. The Tribunal has not considered awarding suitable

amount under the head loss of consortium and conventional

heads. Therefore, I deem it appropriate to award the said

amount. There are admittedly five dependants of the

deceased, in view of the Judgment of the Hon'ble Apex

Court in the case of Pranay Sethi (supra) 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 five

dependants, therefore amount of (Rs.40,000/- X 5

dependants) Rs.2,00,000/- is awarded under the head of

loss of consortium.

11. The Tribunal has awarded meager amount of

Rs.2,000/- and Rs.3,000/- 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 awarded Rs.15,000/- each, totally

Rs.30,000/- under both heads.

12. Towards expectation of life the Tribunal has

awarded a sum of Rs.10,000/- which appears to be just

and proper and hence under the facts and circumstances

of the case, same is left undisturbed.

13. Though, the learned counsel for the respondent-

Insurer vehemently argued that the interest awarded on

the compensation amount by the Tribunal being

exorbitant, but the same cannot be considered for the

reason that the appeal preferred by the Insurance

Company as fairly submitted by the learned counsel for

the 2nd respondent has been dismissed. Wherein the said

impugned Judgment and Award was challenged has

attained finality without any interference by this Court.

Therefore this aspect of argument cannot be accepted for

reduction of interest awarded by the Tribunal.

14. 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.)
Towards        loss      of         9,18,000      17,13,600
dependency

Towards        loss      of           10,000       2,00,000
consortium

Towards transportation of              2,000          15,000
body.

Towards   funeral      and             3,000          15,000
obsequies

Towards        loss      of           10,000          10,000
expectation
          TOTAL                     9,43,000     19,53,600

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

ORDER

i) The appeal is allowed-in-part;

ii) The judgment and award passed by the Tribunal in

MVC.No.2492/2010 dated 08.02.2012, is modified;

iii) The claimants are entitled for total compensation

of Rs.19,43,600/- as against Rs.9,53,000/-

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