The Divisonal Manager vs Smt.Deepa W/O Shankar Habib
2022 Latest Caselaw 12674 Kant

           IN THE HIGH COURT OF KARNATAKA,
                    DHARWAD BENCH

        DATED THIS THE 29TH DAY OF OCTOBER 2022

                         PRESENT

     THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV

                           AND

       THE HON'BLE MR. JUSTICE UMESH M ADIGA

                MFA NO.103732/2017 (MV)

BETWEEN:

THE DIVISONAL MANAGER
ORIENTAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE,
NEW COTTON MARKET, HUBBALLI,
REPRESENTED BY ITS
AUTHORIZED OFFICER.
                                          ...APPELLANT
(BY SRI.M.Y.KATAGI, ADVOCATE)

AND

1.    SMT.DEEPA W/O SHANKAR HABIB
      AGED: 31 YEARS,
      OCC: HOUSEHOLD WORK,
      R/O: HEMANT NAGAR,
      NO.7, KESHWAPUR, HUBBALLI-580023.

2.    KUMARI KOMAL D/O SHANKAR HABIB
      AGE: 4 YEARS,
      MINOR, REPRESENTED BY
      NATURAL GUARDIAN MOTHER
      RESPONDENT NO.1.

3.    KRISHNASA KONERSA HABIB
      AGED: 81 YEARS, OCC: NIL,
                               2



     R/O: HEMANT NAGAR NO.7,
     KESHWAPUR, HUBBALLI.-580023

4.   ABDULMAJID MUKTUSAB HADIMANI
     AGE: 44 YEARS, OCC: DRIVER,
     R/O: UPPIN BETAGERI-581206,
     DIST: DHARWAD.-580001

5.   SUNIL SACHHIDANAD CHATRA
     PARTNER,
     DURGAMBA TRAVELS,
     DESAI CROSS,
     HUBBALLI.-580023


                                       ...RESPONDENTS
(BY SRI.SHIVASHANKAR R.AMBLI &
SRI.NIRANJAN, ADVS. FOR R1 TO R3,
SRI.HEMANTKUMAR L.HAVARAGI, ADV. FOR R4,
R5 NOTICE DISPENSED WITH)

      THIS APPEAL IS FILED UNDER SECTION 173(1) OF
MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND
AWARD DATED 20.06.2017 PASSED IN MVC NO.211/2014 ON
THE FILE OF THE II-ADDITIONAL SENIOR CIVIL JUDGE AND,
ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, HUBBALLI,
AWARDING COMPENSATION OF Rs.33,33,390/- WITH INTEREST
AT   8%   P.A.   FROM   THE   DATE   OF   PETITION   TILL   ITS
REALISATION.


      THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
12.10.2022 COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:
                                   3




                              JUDGEMENT

This appeal is directed against judgment and award

dated 20.06.2017 passed by learned II Additional Senior

Civil Judge and Additional MACT, Hubballi in MVC

No.211/2014.

2. The parties are referred to as per their ranking

before the trial court.

3. The contentions of the petitioners were that on

30.12.2012 at about 11.30 p.m. at Bhairideverakoppa

Darga, deceased Shankar met with vehicle accident, due to

rash and negligent driving of the bus bearing Reg.No.KA-

25/C-1469 by its driver and sustained grievous injuries

and died at spot. The deceased was aged about 38 years

at the time of accident and having income of Rs.6,00,000/-

p.a., by business. Petitioners being wife, daughter and

father depending on the deceased. With these averments,

they prayed for awarding compensation of

Rs.1,25,00,000/- under different heads.

4. Respondent No.3 in its written statement

denied all the petition averments and prayed to dismiss

the petition with costs.

5. From the above pleading, following issues were

framed:

1) Whether the petitioners prove that on

30-12-2012 at 11.30 p.m., the deceased Krishna

Konerasa Habib was going on his vehicle Scooter

bearing registration No.KA-25/EL-1242 on the left

side of the road near Bhairidevarkoppa Darga. At

that time the driver of the bus bearing registration

No.KA-26/C-1469 drove that vehicle in a high

speed in rash and negligent manner so as to

endanger human life and dashed against the

scooter of the deceaed Krishnasa Konerasa Habib,

due to which he fell down and sustained head

injury and died at the spot?

2) Whether the petitioners are entitle for

compensation? If so, from whom and at what rate?

3) What order or award?

6. Petitioner let in evidence as P.W.1 and got

marked Exs.P1 to P20. Respondents have not let in any

oral evidence but got marked Exs.R1 and R2.

7. The learned trial Judge appreciating the

pleadings, evidence and arguments advanced by both

sides, answered issue No.1 in the affirmative and issue

No.2 partly in the affirmative and awarded compensation

of Rs.33,33,390/- with interest at the rate of 8% p.a. by

the impugned judgment. The same is challenged by

respondent No.3, in this appeal.

8. We have heard the arguments of the learned

advocates appearing for the appellant and respondent

Nos.1 to 3.

9. The following points emerge for our

determination:

i) Whether the compensation awarded by the

learned trial Judge is erroneous and interference

by this court is required?

ii) What order?

10. The fact of the accident is not in dispute. The

dispute is in respect of quantum of compensation awarded

by the trial court. The learned advocate appearing for the

appellant contended that the trial court has relied upon

income tax returns and copy of the statement of accounts

as per Ex.P3, 3(a) and 3(b) and held that earning of the

deceased was Rs.3,10,339/- p.a. The learned trial Judge

while considering the same has included the income

earned from rent of building of Rs.72,000/-. It is to be

noted that, even after the death of the deceased Shankar,

the legal heirs i.e., petitioners might be earning the same.

It is further submitted that the learned trial Judge though

referred the decision of the Hon'ble Supreme Court in the

case of Sarla Verma (Smt) & Ors. Vs. Delhi Transport

Corporation & Anr. reported in (2009) 6 SCC 121,

however, erroneously considered the multiplier as '17'

instead of '15'. It lead to awarding excess compensation.

The compensation awarded under conventional head is

also on higher side and against settled principles of law.

Therefore, he prayed to modify the same.

11. Per contra, learned advocate appearing for

respondent Nos.1 to 3 supported the impugned judgment

and award and submits that it does not call for any

interference. However, he admits that Rs.72,000/- i.e.

earning of the deceased by way of rent can be deducted in

the total income considered by the trial court. He does not

dispute regarding the multiplier applicable as '15'. He

submits that there were three dependents to the deceased

and as per the judgment of Hon'ble Supreme Court in the

case of National Insurance Co. Ltd. v. Pranay Sethi

reported in (2017) 16 SCC 680, each of the dependents

are entitled for Rs.40,000/- under the head loss of

consortium. That is not considered by the trial court. He

further submits that learned trial Judge has also not

considered future prospects while assessing the income of

the deceased. Hence, he prayed to award just

compensation.

12. Respondent Nos.1 to 3 have not preferred any

appeal against the impugned judgment and award. It is a

benevolent legislation and the trial Judge has to award just

compensation. Therefore, even if there is no appeal, this

court has to award just compensation, if claimants are

entitled for the same. The Hon'ble Supreme Court in the

case Surekha and Others Vs. Santosh and Others

reported in 2020 ACJ 2156, Hon'ble Supreme Court held

as under:

"Motor Vehicles Act, 1988 sections 173(1) and 168(1) and Civil Procedure Code, 1908, Order 41, rule 33

- Appeal - Powers of appellate court - Just compensation

- High Court assessed compensation at Rs.49,85,376 but declined to grant enhanced compensation on the ground that claimants failed to file cross appeal - Apex Court observed that in motor accident claims courts should not take hyper-technical approach and enhanced the award to Rs.48,85,376/- [2020 ACJ 434 (Bombay) modified]"

13. In view of the law laid down in the above said

decision, just compensation needs to be awarded without

going to technicalities.

14. The submission of the learned advocate for

the appellant is sustainable. Respondents/claimants have

produced income tax returns and acknowledgment etc. The

learned trial judge has accepted Ex.P3 for assessment of

the income. This document is not seriously disputed by the

appellant. As per Ex.P3(a), the net profits from the

business was Rs.2,23,939/-. And Rs.72,000/- was added

as income from the rent. Even after death of Shankar,

petitioners might be receiving said amount. Hence, it is not

lost, the same is to be deducted. And income from

business has to be taken as loss of earning. The earnings

of the deceased during the financial year 2012-13 was

Rs.2,23,939/- and it is rounded off to Rs.2,24,000/-. In

the case of Pranay Sethi (supra), it is held that future

prospects has to be considered even though victims of the

accident have no fixed income. It is also held that if age of

deceased in vehicle accident is below 40 years, then 40%

of income shall be considered as future prospects. Age of

deceased in this case is 37 years. Hence, 40% of his

income has to be added. Income of deceased was

Rs.3,13,600/-. 1/3rd of the said income is to be deducted

towards personal expenses since deceased was married

and having three dependents. By deducting the same,

income of the deceased comes to Rs.2,09,066/- rounded

off to Rs.2,09,000/-.

15. As submitted by learned counsel for the

appellant, learned trial Judge has wrongly taken multiplier

as '17' instead of '15'. According to the case of Sarla

Verma (supra), the suitable multiplier is '15'. Therefore,

compensation to be awarded under head loss of

dependency is Rs.2,09,000/- x 15 = 31,35,000/-.

16. As rightly submitted by the learned counsel for

the appellant, learned trial Judge has erred while awarding

compensation under conventional head which is contrary

to the law laid down in the case of Pranay Sethi (supra).

Learned trial Judge ought to have awarded compensation

under head loss of consortium at the rate of Rs.40,000/-

each to the wife, daughter and father, which needs to be

corrected. Similarly, towards loss of estate and funeral

expenses fixed sum of Rs.15,000/- each is to be awarded.

Accordingly, the claimants are entitled for Rs.32,85,000/-

as against the award passed by the trial court for

Rs.33,33,390/-.

17. The learned trial court has awarded interest at

the rate of 8% p.a., it is on the higher side and it shall be

@ 6% p.a.

18. Accordingly, we answer point No.1 partly in the

affirmative and pass the following:

ORDER

The appeal is partly allowed.

The impugned judgment and award dated 20.06.2017 passed by learned II Additional Senior Civil Judge and Additional MACT, Hubballi in MVC No.211/2014 is modified.

Respondent No.3/appellant is directed to pay a sum of Rs.32,85,000/- as compensation to the claimants as against Rs.33,33,390/- awarded by the trial court with interest at the rate of 6% p.a. from the date of petition till payment of the entire amount.

Amount deposited, if any in this court, by the appellant be transferred to the trial court forthwith.

Sd/-

JUDGE

Sd/-

JUDGE

MBS