Sharada W/O Late Devalappa And Anr vs Jilani S/O Mohd. Sab And Ors
2022 Latest Caselaw 11627 Kant

         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

   DATED THIS THE 7TH DAY OF SEPTEMBER 2022

                         PRESENT

THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

                            AND

       THE HON'BLE MR. JUSTICE ANIL B.KATTI

             M.F.A. No.200633/2021 (MV)

BETWEEN:

1. Sharada W/o Late Devalappa,
   Age : 50 years, Occ: Household,

2. D.Sachin Kumar S/o Late Devalappa,
   Age : 30 years, Occ: Student

Both are R/o Mehaboob Colony,
Sindhanur,
Now R/o LBS Nagar,
Raichur - 584 101.
                                          ... Appellants
(By Sri Babu H.Metagudda, Advocate)

AND:

1. Jilani S/o Mohd. Sab,
   Age : Major, Occ: Driver of Lorry
   No.AP-03/U-1449, R/o Gundamma Camp,
   Gangavathi, Dist : Koppal - 584 101.

2. Mohd. Sab S/o Rajesab,
   Age : Major, Occ: Owner of Lorry
   No.AP-03/U-1449, R/o 2-12-117/3,
                                            MFA No.200633/2021
                               2




  Ward No.2, Block No.12,
  Gangavati, Dist : Koppal - 584 101.

3. The Manager,
   Shriram General Insurance Co.Ltd.,
   Near Bowring Hospital, Shivaji Nagar,
   Bangalore - 584 101.
                                               ... Respondents
(By Sri Manjunath Mallaiahshetty, Advocate for
    Sri C.S.Kalburgi, Advocate for R3
Notice to R1 and R2 dispensed with vide order dated
17.11.2021.

      This   Miscellaneous  First  Appeal   is   filed under
Section 173(1) of M.V.Act, praying to allow this appeal and
modify the judgment and award dated 26.09.2019 passed in
MVC No.359/2014 by the Motor Accident Claims Tribunal and I
Addl. Sessions Judge, Raichur and enhancing the compensation
from `23,14,540/- with 9% interest to `50,00,000/- with 12%
interest.

      This appeal having been heard through Physical Hearing
and reserved for Judgment on 25.08.2022, coming on for
pronouncement of Judgment this day, Anil B. Katti J.,
delivered the following:

                         JUDGMENT

The present appeal is filed by appellants/claimants

being aggrieved by the judgment and award passed in

MVC No.359/2014 by the Motor Accident Claims Tribunal

and I Additional Sessions Judge, Raichur (hereinafter

referred to as 'the Tribunal' for brevity) dated 26.09.2019

seeking enhancement of compensation.

MFA No.200633/2021

2. The appeal was listed for admission. However,

with the consent of both sides, the matter is taken for final

disposal.

3. The germane facts leading to the case of

appellants can be stated in nutshell to the effect that on

05.01.2014 at about 11.00 p.m. the lorry bearing

Reg.No.AP-03-U-1449 driven by its driver/respondent No.1

in a rash and negligent manner dashed against the

ambulance bearing Reg.No.KA-36-G-99 driven by

deceased-Devalappa. On account of the accidental injuries

suffered by him, Devalappa succumbed to the injuries. In

this regard, a case was registered in Sindanoor Rural Police

Station in Crime No.12/2014 against respondent No.1.

4. The claimants were dependant on the income of

deceased-Devalappa and on account of untimely death of

Devalappa, the claimants have lost their bread earner of

the family. The claimants have also lost their love and

affection, loss of filial consortium and also their estate.

MFA No.200633/2021

Therefore, the claimants have filed the claim petition

before the Tribunal seeking compensation.

5. In response to the notice, the respondents No.1

and 2 remained ex-parte. The respondent No.3 has filed

written statement denying the allegation that the accident

in question has occurred due to rash and negligent driving

of lorry bearing Reg.No.AP-03-U-1449 driven by

respondent No.1. The age, occupation and income of the

deceased-Devalappa has also been denied and called upon

the claimants to prove the allegations made in the claim

petition. Therefore, prayed for dismissal of the claim

petition.

6. On the basis of the pleadings of both parties,

the Tribunal has framed necessary issues. The claimants in

support of their claim relied on the evidence of PWs-1 and

2 and documents as per Ex.P.1 to Ex.P.14. The respondent

No.3 got examined as RW-1 and relied on the documents

as per Ex.R.1 to Ex.R.4. The Tribunal after having heard

the arguments of both side, has allowed the claim petition MFA No.200633/2021

of claimants by awarding compensation of `23,14,540/-

with interest @ 9% per annum from the date of petition till

realization of entire compensation.

7. The appellants being aggrieved by the quantum

of compensation awarded by the Tribunal have filed the

present appeal contending that the Tribunal has committed

serious error in deducting 50% towards personal expenses

and it should have been 1/3rd in view of the fact that both

claimants were dependant on the income of deceased-

Devalappa. The compensation awarded by the Tribunal on

the heads towards loss of love and affection, loss of filial,

consortium and loss of estate is on lower side and sought

for enhancement of compensation.

8. In response to the notice of appeal, the

respondent No.3 has appeared through counsel. The notice

to respondents No.1 and 2 came to be dispensed with by

the order of this Court dated 17.11.2021.

9. Heard the arguments of both side.

MFA No.200633/2021

10. On the basis of the above narrated facts the

following points arises for determination of this Court;-

1. Whether the appellants are entitled for enhancement of compensation?

2. Whether the interference is required?

3. What order?

REASONS

11. Points No.1 and 2 : The appellants have

contended that the accident in question took place on

05.01.2014 at 11.00 p.m. on account of rash and negligent

driving of lorry bearing Reg.No.AP-03-U-1449 driven by

respondent No.1 which dashed against the ambulance

bearing Reg.No.KA-36-G-99 driven by deceased-Devalappa.

The deceased-Davalppa succumbed to the injuries while

he was under treatment in M.R.Ramayya Hospital,

Bengaluru. In this regard, a criminal case came to be

registered in Sindanoor Rural Police Station Crime

No.12/2014 against respondent No.1. The appellants are

the wife and son of deceased-Devalappa who were MFA No.200633/2021

dependant on the income of deceased-Devalappa. The

Tribunal after having appreciated the oral evidence of

PWs.1 and 2 and the documents as per Ex.P1-certified

copy of FIR with complaint, Ex.P.2-certified copy of the

charge-sheet with enclosures, Ex.P.3-certified copy of

inquest panchanama, Ex.P.4-certified copy of spot

panchanama, Ex.P.5-certified copy of the post mortem

report, Ex.P.6-certified copy of the IMV report of

ambulance, Ex.P.7-certified copy of IMV report of lorry,

has come to the conclusion that the accident in question

has occurred due to rash and negligent driving of the lorry

bearing Reg.No.AP-03-U-1449 by its driver respondent

No.1 and deceased-Devalappa succumbed to injuries

sustained in the accident. The said finding recorded by the

Tribunal has not been assailed by respondent No.3-

Insurance Company, the insurer of the offending vehicle

bearing Reg.No.AP-03-U-1449 driven by respondent No.1.

The above said finding of the Tribunal has attained its

finality.

MFA No.200633/2021

12. The Tribunal in para 12 of its judgment has

observed and held that the second appellant who is major

son of deceased-Devalappa was not depending on the

income of deceased. Therefore, it is only the first appellant

is entitled for compensation under the head 'loss of

dependency'. The Tribunal has deducted half of the income

of deceased, while calculating entitlement of compensation

on the head of loss of dependency to the first appellant.

The Tribunal on the basis of salary certificate as per

Ex.P.11 has determined the income of deceased-

Devalappa as `21,275/- and deducted `200/- towards

professional tax and accepted the monthly income of

deceased-Devalappa as `21,075/-. On the basis of service

register as per Ex.P.13, the age of deceased-Devalappa is

accepted as 47 years and 30% of the accepted income is

taken as future prospects. The Tribunal has rightly

appreciated the documents at Ex.P.11 and Ex.P.13 in

determining the age and income of deceased - Devalappa.

MFA No.200633/2021

13. The learned counsel for the appellants has

vehemently argued that the Tribunal has committed

serious error in deducting 50% towards personal expenses

of deceased-Devalappa and ought to have deducted 1/3 rd

as personal living expenses, since both the appellants are

dependant on the income of deceased-Devalappa.

14. On the other hand, learned counsel for

respondent No.3 has contended that the Tribunal was

justified in deducting 50% of the income of deceased -

Devalappa, since it is only the first claimant who is

dependant on the income of deceased-Devalappa. The

Tribunal just because claimant No.2 is major has

proceeded to hold that claimant No.2 being major, it is

only the claimant No.1 can be dependant on the income of

deceased -Devalappa. The occupation of claimant No.2 is

shown as student in the cause title. The claimants have

claimed that both of them were dependant on the income

of deceased -Devalappa. There is no any contrary evidence

placed on record by respondent No.3. In this context of the MFA No.200633/2021

matter, it is useful to refer the Division Bench decision of

our own Hon'ble High Court in MFA No.10495/2012 c/w

MFA No.10913/2012 (The Branch Manager, M/s ICICI

Lombard Co. Ltd. vs. Smt.Mamatha K.R and others) dated

01.09.2015. In the said case before the Hon'ble High Court

also, the wife and major son were claimed to have been

dependant on the income of deceased, 1/3rd of living

expenses has been taken by negating the contention of the

Insurance Company that it is only the wife who is

dependant on the income of deceased and 50% of the

living expenses will have to be deducted. Therefore, in

view of the principles enunciated in this decision, we are

of the opinion that the Tribunal was not justified in

deducting 50% as living expenses holding that claimant

No.2 being major son was not dependant on the income of

deceased.

15. It is not in dispute that deceased-Devalappa

was a government Ambulance driver bearing Reg.No.KA-

36-G-99 and his job was permanent. Therefore, the MFA No.200633/2021

Tribunal was justified in giving 30% of accepted income as

future prospects. Therefore, in our opinion the

determination of compensation by the Tribunal on the head

of 'loss of dependency' is required to be revisited.

16. The accepted monthly income after deducting

professional tax is `21,075/-. If 30% is calculated as future

prospects, then it comes to `6,323/-, which works out to

`27,398/-. If the same is calculated (27,398x12) then it

comes to `3,28,776/- per annum. The income tax slab for

the financial year 2014-15, which is appropriate financial

year since the road traffic accident took place on

05.01.2014 was `2,00,000/-, the exemption slab for an

individual who is below the age of 60 years. In the present

case, the age of the deceased-Devalappa is accepted as

47 years as per Ex.P.11-salary certificate and Ex.P.13-

service register of deceased. Thus, the income tax slab

could be with exemption limit of `2,00,000/-. If the same

is calculated (3,28,776-2,00,000) then it comes to

`1,28,776/-. This amount attracts the income tax at 10% MFA No.200633/2021

and if the same is calculated, then it comes to `12,878/-.

If the same is deducted out of the annual income then it

works out to (3,28,776-12,878) = `3,15,898/-. If 1/3rd

living expenses is deducted then it comes to (3,15,898-

1,05,299) = `2,10,599/-. In view of the decision of Hon'ble

Apex Court reported in (2009) 6 Supreme Court Cases

121 - Sarla Verma (Smt.) and others vs. Delhi

Transport Corporation and another, the appropriate

multiplier applicable to the present case is '13'. The said

amount has to be calculated with appropriate multiplier of

'13'. If the same is calculated then it comes to

(2,10,599x13) = `27,37,787/-. The Tribunal has awarded

compensation amount of `21,39,540/-. If the same is

deducted then it comes to (27,37,787-21,39,540)=

`5,98,247/-, to which amount in our opinion the claimants

are entitled for enhancement of compensation. The

Tribunal has awarded an amount of `1,75,000/- on the

conventional head. In our opinion the same is on higher

side and the same is required to be modified appropriately

in terms of the decision of the Hon'ble Apex Court reported MFA No.200633/2021

in 2017 ACJ Page No.2700 - National Insurance

Co.Ltd. vs Pranay Sethi and others and another

decision 2018 ACJ Page No.2782 - Magma General

Insurance Co.Ltd. vs Nanu Ram and others, since the

Tribunal has awarded `1,75,000/- under the conventional

heads, the same is required to be modified for an amount

of `1,10,000/-. If the excess amount of `65,000/- is

deducted then it comes to (1,75,000-65,000) =1,10,000/-

to which amount the claimants are entitled for

compensation amount under conventional heads and

accordingly, we modify the amount of compensation

awarded by the Tribunal. The Tribunal has awarded

compensation of an amount of `23,14,540/-. If an amount

of `5,98,247/- is added then it comes to `29,12,787/-. Out

of which, if the excess amount of `65,000/- is deducted

then it comes to `28,47,787/-, to which amount in our

opinion, the appellants are entitled for compensation which

shall carry an interest of @ 6% per annum from the date

of claim petition till the realization of amount.

MFA No.200633/2021

Consequently, points No.1 and 2 for determination are

accordingly answered in affirmative.

17. Point No.3 : In view of the reasons recorded

while dealing with points No.1 and 2, we proceed to pass

the following :

ORDER

The appeal filed by the appellants is hereby partly

allowed.

The judgment and award dated 26.09.2019 passed

by the learned Motor Accident Claims Tribunal and I

Additional Sessions Judge, Raichur in MVC No.359/2014 is

ordered to be modified as under :-

The quantum of total compensation of a sum of

`23,14,540/- awarded by the Tribunal is enhanced to

`28,47,787/- which shall carry interest @ 6% per annum

on the enhanced compensation from the date of claim

petition till the date of payment.

MFA No.200633/2021

The third respondent is liable to indemnify the risk of

second respondent and to deposit the above said enhanced

compensation with interest within thirty days from today.

On deposit of the enhanced compensation amount,

50% of enhanced compensation is to be kept in fixed

deposit in any nationalized bank for a period of three years

in the name of claimants equally and remaining 50% of

enhanced compensation is ordered to be paid to equally

claimants No.1 and 2.

Draw the modified award accordingly.

Registry to transmit the certified copy of this

judgment to the concerned Tribunal immediately.

Sd/-

JUDGE

Sd/-

JUDGE

sn