Karnataka High Court
Ismail S/O Dastagirsab Yaligar vs Shashikant Vasant Kaitankar on 12 December, 2023
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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NC: 2023:KHC-D:14579-DB
MFA No. 101800 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 101800 OF 2021 (MV-D)
BETWEEN:
1. ISMAIL S/O DASTAGIRSAB YALIGAR,
AGE: 51 YEARS, OCC. COOLIE,
2. SMT. BEEBIJAN W/O ISMAIL YALIGAR,
AGE: 46 YEARS, OCC. HOUSEHOLD WORK,
3. YASEEN S/O ISMAIL YALIGAR,
AGE: 20 YEARS, OCC. STUDENT,
ALL ARE R/O H.NO. 1226/B, KAUJALAGI,
TQ. GOKAK DIST. BELAGAVI- 591227.
- APPELLANTS
(BY SRI. HARISH S. MAIGUR, ADVOCATE)
AND:
1. SHASHIKANT VASANT KAITANKAR,
AGE: 41 YEARS, OCC.: BUSINESS,
R/O. GANEBAIL, POST. NITTUR,
JAGADISH TQ. KHANAPUR, DIST. BELAGAVI- 591302.
TR
Digitally signed 2. THE BRANCH MANAGER,
by JAGADISH T R
Date: 2023.12.18 RELIANCE GENERAL INSURANCE CO. LTD.,
16:31:30 +0530
POLICY ISSUING OFFICE AT MAHADEV PLAZA,
CTS NO. 10719, SY NO. 135/A,
NEAR KOLHAPUR CIRCLE,
NEHRU NAGAR, BELAGAVI-590018.
- RESPONDENTS
(BY SRI. S.V. YAJI, ADVOCATE FOR R2,
NOTICE TO R1 IS SERVED)
THIS MFA IS FILED U/S.173 (1) OF M.V. ACT, AGAINST THE
JUDGMENT AND AWARD DATED 15.02.2021 PASSED IN MVC
NO.747/2020 ON THE FILE OF THE IV ADDITIONAL DISTRICT JUDGE
AND MOTOR ACCIDENT CLAIMS TRIBUNAL-V, BELAGAVI & ETC.
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NC: 2023:KHC-D:14579-DB
MFA No. 101800 of 2021
THIS MFA, COMING ON FOR ADMISSION, THIS DAY,
VIJAYKUMAR A.PATIL J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the claimants seeking
enhancement of compensation contending that on
06.05.2020 Dastagirsab, i.e., the victim, was traveling on
motorcycle bearing no. KA-49-U-0538. When he came near
Gudamageri cross on Sattigeri-Yaragatti Road, driver of the
offending truck bearing no. KA-22-D-7146 came in a high
speed, rash and negligent manner and as a result of which
he lost control and dashed to the motorcycle which resulted
in death of Dastagirsab. Claim petition is filed by the parents
and sister of the deceased contending that the deceased was
aged 23 years, doing sale of beetle-leaf (pan) in the evening
and also working as Attender in Patil Hospital and earning
Rs.4,00,000/- per year. Considering the pleading and
evidence available on record the Tribunal has awarded total
compensation of Rs.19,87,100/-. Being aggrieved by the
same, the present appeal is filed seeking enhancement of
compensation.
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2. Sri Harish S. Maigur, learned counsel appearing for the
claimants-appellants submits that the Tribunal has
committed error in assessing monthly income at Rs.13,250/-
without considering the evidence available on record. The
claimants have placed on record the salary certificate at
Ex.P.8 and specifically pleaded that deceased was working as
Attender in Patil Hospital and also selling beetle-leaf and
earning Rs.4,00,000/- per year. It is submitted that the
Tribunal has committed error in not awarding just
compensation on other heads also. Hence he sought to allow
the appeal by enhancing the compensation.
3. Per contra, Sri S.V. Yaji, learned counsel for the
respondent-insurer supporting the impugned judgment and
award submits that the Pay Certificate produced by the
appellant as Ex.P.8 does not indicate that he was
continuously drawing the said amount and the author of
Ex.P.8 has not been examined. No corroborative evidence is
placed before the Tribunal to establish the income as claimed
by the claimants. In the absence of the same, the Tribunal
has rightly assessed the monthly income of the deceased.
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He further submitted that the Tribunal has awarded just and
reasonable compensation and no case is made out for
enhancement of compensation. Hence he sought to dismiss
the appeal.
4. Having heard the learned counsel appearing for the
parties, perused the material on record the only point that
arises for consideration is:
Whether the appellants-claimants are entitled for
enhanced compensation?
5. The answer to the above point is in the 'affirmative' for
the following reasons.
6. The parties to the proceeding does not dispute that on
the date of accident Dastagirsab was traveling in the
motorcycle and the offending lorry came from the opposite
direction and dashed the motorcycle resulted in sustaining
fatal injuries and later he succumbed to injuries.
7. To substantiate the income of the deceased, the
appellants have pleaded that the deceased was doing sale of
beetle-leaf and was earning Rs.15,000/- per month and
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thereafter in the evening he was working as Attender in Patil
Hospital and getting Rs.6,000/- per month. In support of the
said contention, the claimants have produced Ex.P.8. It is
not in dispute that author of Ex.P.8 is not examined nor
produced any bank statement to substantiate that he was
regularly drawing the salary. In view of the same, this Court
is of the opinion that it would be just and proper to assess
the notional income of the deceased at Rs.13,750/- per
month basing reliance on the chart prepared by the
Karnataka State Legal Services Authority for the purpose of
determination of the notional income. The claimants are also
entitled for compensation under the head of loss of future
prospects at 40% which has been rightly granted by the
Tribunal so also the multiplier '17' as adopted by the
Tribunal. Deceased was a bachelor, hence 50% of the
assessed income is to be deducted towards personal
expenses. Thus, the claimants are entitled for compensation
of Rs.19,63,500/- [Rs.13,750/- (income) + Rs.5,500/-
(future prospects) x 12 (months) x 17( multiplier)] towards
loss of dependency.
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8. In view of the ratio laid down by the Hon'ble Supreme
Court in Magma Magma General Insurance Company
Limited Vs. Nanu Ram & Others1, each of the claimants
would be entitled to Rs.40,000/- under the head of loss of
consortium. The claimants are also entitled for Rs.15,000/-
each towards loss of estate and towards transportation of
dead body and funeral expenses.
9. The appellants are entitled for the following modified
compensation with interest at the rate of 6%:
1 Loss of dependency 19,63,500.00
2 Loss of consortium (Rs.40,000/- each 1,20,000.00
to appellants No.1 to 3)
3 Transportation of dead body and 15,000.00
Funeral expenses
4 Loss of estate 15,000.00
Total 21,13,500.00
Compensation awarded by the tribunal 19,87,100.00
Enhanced compensation 1,26,400.00
10. Thus, the claimants would be entitled to total
compensation of Rs.21,13,500/- as against
Rs.19,87,100/- awarded by the Tribunal.
11. Hence, we proceed to pass the following order:
2018 ACJ 2782
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ORDER
i. The appeal is allowed in part.
ii. The judgment and award dated
15.02.2021 passed in MVC No. 747/2020
by the Tribunal, is modified to an extent
that the claimants would be entitled to
total compensation of Rs.21,13,500/- as
against Rs.19,87,100/- awarded by the
Tribunal.
iii. The enhanced compensation amount of
Rs.1,26,400/- shall carry interest at the
rate of 6% per annum from the date of
petition till date of payment.
iv. Respondent/Insurance Company shall
deposit the enhanced compensation
amount along with accrued interest before
the Tribunal within a period of six weeks
from the date of receipt of certified copy
of this judgment.
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v. The apportionment & disbursement of
enhanced compensation shall be made in
terms of the award of the Tribunal.
vi. Registry to transmit the records to the
Tribunal forthwith.
vii. Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
BVV
