Karnataka High Court
Nagamani vs Baburao Chinnam on 7 March, 2022
Bench: Pradeep Singh Yerur
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO.1580 OF 2021 (MV)
BETWEEN:
1. NAGAMANI
W/O.LATE K.PARAMESH
AGED ABOUT 28 YEARS
2. KURUBA VINOD KUMAR
S/O.LATE K.PARAMESH
AGED ABOUT 9 YEARS
3. KURUBA YUVATHIAKA
D/O.LATE K.PARAMESH
AGED ABOUT 8 YEARS
4. KURUBA RAMAKRISHNAPPA
S/O.KURUBA HONNURAPPA
AGED ABOUT 54 YEARS
5. KURUBA LAKSHMIDEVI
W/O.KURUBA RAMAKRISHNAPPA
AGED ABOUT 52 YEARS
APPELLANT NOS.2 AND 3
ARE MINORS
REPRESENTED BY THEIR
NATURAL GUARDIAN AND
MOTHER 1ST APPELLANT
ALL ARE RESIDING AT
RALLA ANANTHAPUR
KAMBADURU MANDAL
ANANTHAPUR DISTRICT - 515 765 ... APPELLANTS
(BY SRI K.SHANTHARAJ, ADVOCATE)
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AND:
1. BABURAO CHINNAM
S/O.BABAIAH
AGED ABOUT 62 YEARS
R/AT NO.4/223
YERRAYAPPALLI VILLAGE
BATHALAPALLI MANDAL
ANANTHAPUR DISTRICT - 515 661
2. ICICI LOMBARD GEN.INS.CO.LTD
BY ITS BRANCH MANAGER
KRISHNA ARCADE, 1ST FLOOR
2ND CROSS, M.G.ROAD
TUMAKURU - 572 101 ... RESPONDENTS
(BY SRI MALLIKARJUNA N.A. FOR
SRI B.PRADEEP, ADVOCATES FOR R-2
NOTICE TO R-1 IS DISPENSED WITH
V.O.D 07.03.2022)
---
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MOTOR VEHICLES ACT
PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED
30.09.2019 PASSED IN MVC NO.396/2017 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT BY
ENHANCING THE COMPENSATION AND ETC.
THIS APPEAL COMING ON FOR ORDERS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the claimants being
unsatisfied with the meager amount of compensation
awarded by the learned Senior Civil Judge and Additional
MACT at Pavagada in MVC.No.396/2017 dated 30.09.2019.
This appeal is premised on the ground of inadequacy of
compensation.
2. Though this matter is listed for orders, with
consent of learned counsel on both sides, the matter is
taken up for final disposal.
3. Brief facts of the case is under:
On 01.12.2016 at about 7.00 p.m., the deceased
K.Paramesh was riding motor bike bearing registration
No.AP-02-AX-5194 from Pavagada to Kambadur, when he
reached near Kenchaganahalli gate, the driver of lorry
bearing registration No.AP-02-TB-9500 Eicher driven the
same in a rash and negligent manner with high speed
dashed against the motor bike ridden by the deceased.
Due to the said accident caused by the driver of the
offending vehicle, the driver of the motor bike sustained
fatal and grievous injuries to his head and other parts of
the body, as a result of which, he died on the spot. It is
the claim of claimants, who are the wife, minor children and
parents that the deceased was the only sole bread winner
of the family. He was involved in fruit business and
agricultural activities and earning a sum of Rs.25,000/- per
month and he was 25 years of age as on the date of
occurrence of accident. Due to the death of K.Paramesh,
the claimants who are the legal representatives of deceased
filed the claim petition seeking compensation before the
tribunal.
4. Notice being served on respondents, they have
filed written statement. Respondent No.1-owner has
admitted his ownership over the vehicle. He contended that
the vehicle was insured with second respondent and that
liability is on the Insurer, whereas, respondent No.2-Insurer
took up defence that the accident occurred due to rash and
negligent driving of the deceased and that the offending
vehicle had no permit to ply on the route, where the
accident has taken place. Based on these pleadings, the
tribunal framed relevant issues.
5. In order to establish and prove the case, claimant
No.1 (wife) herself examined as PW.1 and got marked
documents as per Exs.P1 to P12 and closed her side and on
behalf of respondent No.2, the legal retainer of the
Company examined himself as RW.1 and also one witness
as RW.2 and got marked documents as per Exs.R1 to R3.
6. On consideration of material evidence both oral
and documentary, the tribunal awarded compensation of
Rs.18,42,000/- along with interest @ 9% p.a. Being
dissatisfied with the amount of compensation awarded by
the tribunal, the appellants-claimants are before this Court
in this appeal.
7. It is the vehement contention of learned counsel
for appellants-claimants that the impugned judgment and
award passed by the tribunal is erroneous and the same is
liable to be set aside and enhancement of compensation
deserves to be awarded. He further contends that the
tribunal has assessed the income of the deceased at
Rs.8,000/- which is erroneous, as the accident had occurred
in the year 2016. Therefore, the tribunal has erred in not
even taking base value of the notional income which is
prescribed by the Legal Services Authority as Rs.9,500/-
which is generally taken, if there is no proof of income.
8. Learned counsel further contends that loss of
dependency awarded by the tribunal is on the lower side.
Therefore, the same requires to be enhanced. He contends
that the tribunal is erred in not awarding proper
compensation under the head of loss of consortium which
also requires to be enhanced.
9. Per contra, Sri Mallikarjuna, learned counsel
appearing on behalf of Sri B.Pradeep for the Insurer
contends that the award passed by the tribunal is in
accordance with law. Since there is no document produced
by the appellants to show the income of deceased
K.Paramesh, the income assessed by the tribunal is
perfectly in order and same does not call for any
interference, so also, the compensation awarded by the
tribunal under other hands does not call for interference by
this Court.
10. Having heard the submissions of learned counsel
for appellants-claimants and respondent-Insurer, I am of
the considered opinion that the present appeal requires to
be partly allowed and marginal indulgence in enhancement
is required. Accordingly, I allow the appeal partly for the
reasons mentioned hereinbelow:
(a) The tribunal has assessed the income of deceased
K.Paramesh, who is aged about 25 years at Rs.8,000/- per
month. On perusal of the impugned judgment and award
and on appreciation of material evidence both oral and
documentary and the submissions made by learned counsel
for appellants, it is seen that it is not in dispute that
accident occurred in the year 2016. Therefore, in the
absence of any cogent evidence and proof of material, this
Court generally adopts the notional income which is
prescribed by the Legal Services Authority. Accordingly, for
the accident of the year 2016, the notional income is
prescribed at Rs.9,000/- per month. Therefore, I deem it
appropriate to take the income of the deceased at
Rs.9,500/- per month as against Rs.8,000/- assessed by
the tribunal.
(b) It is not in dispute that the deceased was aged
25 years and accordingly, the multiplier applicable in the
present case would be '18' as per the judgment of 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 not in dispute that there are five dependents
of the deceased K.Paramesh. Therefore, in view of the
Constitution Bench judgment in the case of National
Insurance Company Limited vs. Pranay Sethi and
others reported in (2017) 16 Supreme Court Cases
680, there would be deduction of 1/4th towards personal
expenses of the deceased K.Paramesh. In view of the fact
that the deceased was aged less than 40 years, the
percentage of loss of future prospects to be added, which
would be 40% i.e. 9,500/- + 40% = Rs.13,300/-. 1/4th
towards personal expenses would be incurred by the
deceased K.Paramesh, which would be Rs.3,325/-.
Therefore, on deducting Rs.3,325/- from the income of
Rs.13,300/-, comes to Rs.9,975/-, which would be the
income left for benefit of the family. The appropriate
multiplier in the present case as per the judgment of Sarla
Verma (supra) would be '18'. Therefore, the claimant
would be entitled for Rs.21,54,600/- (Rs.9,975/- x 12 x
18) under the head of loss of dependency.
(c) Admittedly, there are five members who are
dependent on the deceased K.Paramesh. Therefore, in view
of the judgment of reported in United India Insurance
Co.Ltd. v. Satinder Kaur Alias Satinder Kaur reported in
AIR 2020 SC 3076, each of the dependants would be
entitled for Rs.40,000/- under the head of loss of
consortium. Therefore, there are 5 dependents and they are
entitled for Rs.2,00,000/- (Rs.40,000/- x 5) under the head
of loss of consortium and under the head of loss of
conventional heads, another Rs.30,000/- is required to be
added in view of the case of Pranay Sethi (supra).
Therefore, in all, the claimants are entitled for
Rs.2,30,000/- under the head of loss of consortium.
(d) In the present case on hand, admittedly, the
tribunal has not assessed the income of the deceased
correctly. I am in agreement with submission of learned
counsel for appellants that the income assessed would be
Rs.9,500/- per month and computation made by the
tribunal with regard to awarding of compensation under the
head of loss of consortium is also on the lower side and the
same is reviewed in accordance with the judgment
rendered by the Hon'ble Supreme Court in the case of
Satinder Kaur (supra). Accordingly, the claimants would
be entitled for a sum of Rs.21,54,600/- under the head of
loss of dependency and a sum of Rs.2,30,000/- under the
head of loss of consortium, in all, the claimants would be
entitled for compensation of Rs.23,84,600/- as against
Rs.18,42,000/- as awarded by the tribunal.
In view of the above discussion and the calculations
made, I am of the opinion that the appellants-claimants are
entitled enhancement of compensation. Accordingly, I
pass the following:
ORDER
i) The appeal is allowed in part;
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ii) The judgment and award passed by the learned
Senior Civil Judge and Additional MACT at
Pavagada in MVC.No.396/2017 dated
30.09.2019 is modified;
iii) The compensation is enhanced from
Rs.18,42,000/- to Rs.23,84,600/-;
iv) All other terms and conditions imposed by the
tribunal shall stand intact;
v) The claimant would be entitled to interest @
6% on the enhanced compensation from the
date of petition. The enhanced compensation
shall be paid by the respondent-Insurer within a
period of six weeks from the date of receipt of a
certified copy of this order.
Sd/-
JUDGE
LB
