Karnataka High Court

Smt. Neelawwa W/O Basavaraj ... vs Mrs. Sudha Vasudev Palyekar on 7 June, 2022

Bench: Pradeep Singh Bypsyj

                         1




        IN THE HIGH COURT OF KARNATAKA
                DHARWAD BENCH

       DATED THIS THE 7th DAY OF JUNE, 2022

                      BEFORE

 THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

           M.F.A.NO.101730/2017 (MV -D)

BETWEEN
1.    SMT. NEELAWWA W/O. BASAVARAJ KOLAVI,
      AGE: 46 YEARS, OCC: HOUSEHOLD WORK,
      R/O: MAVANUR, TQ: HUKKERI,
      DIST: BELAGAVI, STATE OF KARNATAKA.

2.    SMT. SUREKHA W/O. RAVI TIMMAVAAGOL,
      AGE: 26 YEARS, OCC: HOUSEHOLD WORK,
      R/O: URABINAHATTI, TQ: GOKAK,
      DIST: BELAGAVI.

3.    SMT. SAVITRI W/O KADAPPA AMBALER,
      AGE: 24 YEARS, OCC: HOUSEHOLD WORK,
      R/O: PARAKANAHATTI, TQ: HUKKERI,
      DIST: BELAGAVI.
                                     ....APPELLANTS

      (BY SMT GEETHA [email protected] PAWAR, ADVOCATE)


AND

1.    MRS. SUDHA VASUDEV PALYEKAR,
      AGE: MAJOR, OCC: BUSINESS,
      R/O: H.NO.377, PLOT NO.D-21,
      GANESHPURI, MAPUSE,
      GOA-403507, GOA.

2.    THE NATIONAL INSURANCE COMPANY LIMITED,
      REPRESENTED BY ITS
                                  2




      SENIOR DIVISIONAL OFFICE,
      RAMADEV GALLI, BELAGAVI.
                                               ...RESPONDENTS

(NOTICE TO RESPONDENT NO.1-IS SERVED)
(BY SRI G.N.RAICHUR, ADV.FOR RESPONDENT NO.2)

     THIS M.F.A. IS FILED U/S.173(1) OF MOTOR
VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD
DATED 23.08.2011 PASSED IN M.V.C.NO.559/2011 ON
THE FILE OF THE IV-ADDITIONAL DISTRICT AND
SESSIONS JUDGE AND MEMBER, MOTOR ACCIDENT
CLAIMS TRIBUNAL-V, BELAGAVI, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

     THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                            JUDGMENT

This appeal is preferred by the claimants aggrieved

by the judgment and award passed by the IV Additional

District and Sessions Judge and Member, Motor Accident

Claims Tribunal-V, Belagavi (for short 'the Tribunal') in

MVC.No.559/2011 dated 23.08.2011. This appeal is

founded on the premise of inadequacy of compensation.

2. Though this matter is listed for admission, with

consent of learned counsel on both sides, matter is taken

up for final disposal.

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

their status before the Tribunal.

4. Brief facts of the case are as under:

4.1. On 27.01.2011 at 12.00 hours at Valshi

Bicholim within the limits of Bicolim Police Station in Goa

the deceased Basavaraj was proceeding by walk and at

that time the driver of Maruti Suzuki Swift Car bearing

Reg.No.GA-03/C-38 drove it in a rash and negligent

manner endangering human life and public safety and

dashed against deceased-Basavaraj causing fatal injuries

and as a result he died on the spot ; that the claimants

performed the funeral and other rituals by spending

Rs.15,000/- and prior to the accident the deceased was

hale and healthy, aged about 45 years working as a

mason in a private company and earning Rs.6,000/- per

month, due to the accident and death of deceased-

Basavaraj the 1st claimant has lost her consortium in her

young age and the 2nd and 3rd claimants have lost the love

and affection of their father; that the claimants suffered

physically, mentally and financially; that the accident has

occurred due to rash and negligent manner driving on the

part of the driver of Maruti Car bearing Reg.No.GA-03/C-

6386. Hence, they have filed claim petition seeking

compensation for death having occurred due to accident.

4.2. On service of notice, the 1st respondent though

served did not participate in the proceedings. Hence, he

was placed exparte. Respondent No.2-Insurer filed

detailed statement of objections inter alia denying the

accident, age, avocation and income of the deceased and

medical expenses met by the deceased during the course

of treatment and funeral expenses.

4.3. Based on these pleadings, the Tribunal framed

relevant issues for consideration.

4.4. In order to substantiate the issues and to

establish the case, claimant No.1 examined as P.W.1. and

got marked Ex.P.1 to 6. Respondent No.2-Insurer did not

chose to lead evidence, however got marked Ex.R.1 with

consent which is the copy of insurance policy.

4.5. On the basis of material evidence both oral and

documentary, the Tribunal awarded the total

compensation of Rs.4,53,200/- along with interest @ 6%

p.a. and fixed the liability on the 2nd respondent-Insurer.

5. It is the vehement contention of learned counsel

for the claimants that the Judgment and Award passed by

the Tribunal is contrary to material evidence both oral and

documentary. Hence, the same deserves to be set aside.

She further contends that the Tribunal has grossly erred in

assessing the income of the deceased to be at Rs.3,600/-

per month. Whereas, the Tribunal ought to have taken

income of Rs.6,000/- per month as income in view of the

fact that the deceased was working in a Private Company

as a mason. Learned counsel further contends that the

Tribunal grossly erred in not awarding future prospects,

towards loss of dependency. She further contends that the

Tribunal has also committed a gross error in not awarding

compensation under the head loss of consortium. She

further contends that the Tribunal has not awarded

reasonable compensation under the other heads. On these

grounds she seeks to allow the appeal and consequently to

enhance compensation.

6. Per contra, learned counsel Sri G.N.Raichur, for

respondent No.2-Insurer vehemently contends that the

Tribunal has grossly erred in awarding huge compensation

despite there being no material evidence placed on record.

He further contends that the Tribunal has misdirected

itself in deducting the income of 1/3rd towards personal

and living expenses. Whereas the Tribunal ought to have

deducted 50% in view of the fact that the claimant Nos.2

and 3 are major in age and are married and living

separately with their respective husbands, which is not

disputed by learned counsel for claimant. Learned counsel

further contends that the Tribunal has awarded reasonable

compensation under the other heads and the same does

not call for interference and on the basis of these grounds

he seeks to dismiss the appeal and consequently confirm

the Judgment and Award passed by the Tribunal.

7. Heard the learned counsel for appellant-claimants

and respondent No.2-Insurer.

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

27.01.2011, wherein the deceased-Basavaraj while

walking a driver of Maruti Suzuki Car, the offending

vehicle, drove the same in rash and negligent manner and

dashed against the deceased, sever grievous injuries

leading to his death. In order to substantiate and establish

these aspects claimant No.1 has examined herself and got

produced Ex.P.1 to 6. These are all Police records and the

evidentiary value of these records cannot be ignored and

same will have to be accepted on the face value in terms

of the Evidence Act, 1872. It is also to be noted that there

is no contra material or evidence elicited to disprove and

genuineness and veracity of these records at Ex.P.1 to 6.

Therefore, the occurrence of accident, liability and filing of

criminal case against the driver of offending vehicle cannot

be disputed.

9. Now coming to the age, avocation and income of

the deceased, as on the date of occurrence of accident,

undoubtedly there is no material placed before the Court

with regard to proof of income. Though, the claimants

stated that the deceased was earning Rs.6,000/- per

month, no material evidence is produced.

10. In the case on hand when there is no material

proof with regard to income, the Tribunal and this Court

are left with no other option but to do guess work and

same will have to be done in the standard manner for

which the Legal Services Authority prescribed the notional

income for the relevant year of accident. In the present

case, the accident having occurred in the year 2009, the

notional income chart prescribes the income to be at

Rs.6,000/- per month. Accepting the same, the income of

the deceased is to be taken at Rs.6,000/- per month as

against Rs.3,600/- assessed by the Tribunal.

11. It is to be seen that the Tribunal has not

awarded any amount towards future prospects due to the

loss of dependency. In view of the same, the deceased

being aged 44 years, the claimants would be entitled to

loss of future prospects at 25% as per the Judgment of

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. The

age of the deceased was 44 years as per Ex.P.3, the

postmortem report. Accordingly, the appropriate

multiplier would be '14' as held by the 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. It is

also to be seen that the claimants have stated that the

deceased is survived by 3 dependants namely- wife and

two major daughters and have claimed that there are

three dependants. However, on perusal of the claim

petition and the cause title, in the claim petition itself it

is not the case of the claimants that the claimant Nos.2

and 3 are depending on the deceased.

12. Per contra, learned counsel Sri G.N.Raichur

vehemently contends that the claimant Nos.2 and 3

being married are cannot be dependants of deceased-

father. Whereas, they are dependants of their respective

husbands, who are financially secure and therefore the

Tribunal has erred in deducting 1/3rd, which ought to

have been taken at 50% as there was one dependant of

the deceased. Accepting the contention of learned

counsel for the Insurer and on the basis of claim petition

and cause title mentioned in the claim petition, it is not

in dispute that the claimant Nos.2 and 3 are major

daughters, who are married and settled and they cannot

be held to be the dependants of deceased-father for the

purpose of computing compensation under the head loss

of dependency.

13. However, they will be certainly entitled to

amount of consortium as they were lost their father

merely because they are married and settled with their

respective husbands and the amount of love and

affection for loss of their father cannot be lost sight.

Hence, I am of the opinion that the claimant Nos.2 and 3

would be entitled to loss of consortium, but would not be

entitled to loss of dependency due to the death of their

father.

14. In view of the above, the loss of dependency

would be (Rs.6,000/- + 25% - 50% = Rs.3,750/-)

Rs.3,750/- X 12 X 14 = Rs.6,30,000/- as against

Rs.4,03,200/-.

15. Towards loss of consortium, the Tribunal has

merely awarded Rs.10,000/- to the 1st claimant only,

which is erroneous and highly inadequate in view of the

Judgment of the Hon'ble Apex Court in the case of

Pranay Sethi (supra), all the three claimants would be

entitled to loss of consortium at Rs.40,000/- each

(Rs.40,000/- X 3) it would be at Rs.1,20,000/- as

against Rs.10,000/- awarded by the Tribunal only to

claimant No.1.

16. Towards conveyance, funeral expenses and

loss of estate together the claimants would be entitled

to (Rs.15,000/- X 2) compensation for Rs.30,000/-.

17. Therefore, the claimants would be entitled to

total compensation of Rs.7,80,000/- as against

Rs.4,53,200/- (awarded by the Tribunal) as per the table

mentioned herein below :

          Heads                As awarded       As awarded
                                  by the        by this Court
                                Tribunal          (in Rs.)
                                 (in Rs.)
Loss of income.                     4,03,200          6,30,000

Loss of consortium                   10,000           1,20,000
                           (Only to claimant               (Each
                                 No.1)                claimants)

Towards      conveyance              15,000             15,000
and funeral expenses.





Towards loss of estate                        25,000               15,000

           TOTAL                           4,53,200             7,80,000

18. For the aforesaid reasons, I pass the following:

ORDER

(i) The appeal is allowed-in-part;

(ii) The judgment and award passed by the IV

Additional District and Sessions Judge and

MACT-V, Belgaum in MVC.No.559/2011 dated

23.08.2011 is modified;

(iii) The claimants are entitled for total

compensation of Rs.7,80,000/- with interest

at the rate of @ 6% per annum from the date

of petition till its realization as against

Rs.4,53,200/- awarded by the Tribunal;