Karnataka High Court
Ambika D/O Bhimashankar Mukkane And Anr vs Shivaji S/O Kishanrao Pawar And Anr on 6 December, 2023
Author: R.Devdas
Bench: R.Devdas
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MFA No. 201504 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MR. JUSTICE C M JOSHI
MISCL. FIRST APPEAL NO. 201504 OF 2021 (MV-D)
BETWEEN:
1. AMBIKA D/O BHIMASHANKAR MUKKANE,
AGE: 27 YEARS, OCC: HOUSE HOLD WORK,
2. PEERAPPA S/O BHIMASHANKAR MUKKANE,
AGE: 25 YEARS, OCC: STUDENT,
BOTH ARE R/O. VENKATESH NAGAR,
VIJAYAPURA.
...APPELLANTS
(BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE)
AND:
Digitally signed by
SOMANATH
PENTAPPA MITTE 1. SHIVAJI S/O KISHANRAO PAWAR,
Location: HIGH
COURT OF AGE: 46 YEARS, OCC: BUSINESS,
KARNATAKA R/O BRAHMAPURI (TANDA),
TALUK AND DISTRICT: PARBHANI,
MAHARASHTRA-431401.
2. THE BRANCH MANAGER,
UNITED INDIA INSURANCE COMPANY LIMITED,
1ST FLOOR, SANGAMA BUILDING,
S.S. FRONT ROAD, VIJAYAPURA-586101.
...RESPONDENTS
(BY SMT. ANURADHA M. DESAI, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH)
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MFA No. 201504 of 2021
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO, ALLOW THIS APPEAL AND ENHANCE THE
COMPENSATION AS CLAIMED IN THE CLAIM PETITION BY
MODIFYING THE JUDGMENT AND AWARD DATED 31.07.2019
PASSED BY THE COURT OF I ADDITIONAL SENIOR CIVIL
JUDGE AND MEMBER, MACT-VI, AT VIJAYAPURA, IN MVC NO.
398/2015, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Being aggrieved by the judgment and award passed
by the I Additional Senior Civil Judge and Motor Accident
Claims Tribunal IV, Vijaypur in MVC.No.398/2015 dated
31.07.2019, the petitioners are before this Court in
appeal.
2. The petitioners filed a claim petition under
Section 166 of Motor Vehicles Act before the Tribunal
contending on 19.02.2015 at about 3.45 p.m., their
father-Bhimashankar Mukkane was walking near Suraj
Hotel at Bandarkavate and a Tractor bearing No.MH-
22/AD-1588 came from back side in high speed in rash
and negligent manner and hit against the deceased. As a
result, he sustained injuries and while he was being taken
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to the hospital, succumbed to the injuries. It is contended
that the petitioners were dependants of the deceased-
Bhimashankar Mukkane and Mandrup Police have
registered a case in Cr.No.25/2015 and ultimately have
filed a charge sheet against the driver of the Tractor. It is
contended that the deceased-Bhimashankar Mukkane was
aged about 40 years and was doing agriculture earning a
sum of Rs.10,000/- per month and the petitioners have
lost their loving father and therefore, the petitioners are
entitled for the compensation from the owner and insurer
of the said tractor.
3. On being served with the notices, the
respondent No.1 did not appear before the Tribunal and he
was placed ex-parte. The respondent No.2-Insurance
Company appearing through its counsel filed objections
and denied the negligence on part of the driver of the
Tractor and contended that compensation claimed by the
petitioners is highly exorbitant, imaginary and untenable
in law. The age, income, occupation of the deceased was
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also denied by the Insurance Company. It was contended
that the terms and conditions of the policy were violated
and the accident had occurred in Solapur District,
Maharashtra State, therefore, the Tribunal at Vijaypur did
not have a jurisdiction.
4. The Tribunal framed appropriate issues,
including the jurisdiction, and the petitioner No.1 was
examined as PW.1 and Exs.P1 to 9 were marked in
evidence. Respondent No.2 did not adduce any evidence in
the matter but a copy of insurance policy was marked as
Ex.R1.
5. After hearing the arguments, the Tribunal held
that it has jurisdiction and the petitioners being the
children of Bhimashankar Mukkane are entitled for
compensation but it refused to grant compensation under
the head of 'loss of dependency'. A sum of Rs.1,25,000/-
was awarded by the Tribunal, under the following heads:
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Sl. Amount
Particulars
No. (in Rs.)
1. Loss of Love and Affection 60,000/-
2. Funeral and Transportation
15,000/-
Expenses
3. Loss of Estate 50,000/-
Total 1,25,000/-
6. Being aggrieved by the said judgment and
award, the petitioners are before this Court in appeal
contending that the compensation awarded by the Tribunal
is inadequate and it has not considered the fact that the
petitioners were dependents of the deceased.
7. On issuance of notice, the respondent No.2-
Insurance Company has appeared through its counsel and
notice to respondent No.1 was dispensed with. The
arguments of both the sides were heard and the trial Court
records have been secured.
8. Learned counsel for the petitioners contend that
the evidence on record clearly show that as on date of the
accident, the petitioners were dependents of the deceased
and it may be true that after the death of the deceased,
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the petitioner No.1 is married and that the petitioner No.2
is working at Pune. He submits that the Tribunal totally
erred in appreciating the evidence on record and when
there was no specific evidence that could have been
produced by the respondent No.2 about the dependency of
petitioners over the deceased, the conclusion reached by
the Tribunal are not sustainable in law. Therefore, he has
sought for grant of compensation under the head of 'loss
of dependency' also.
9. Per contra, learned counsel for respondent
No.2-Insurance Company contended that the petitioners
who are legal representatives cannot necessarily be the
dependents. He has placed reliance on the decision of the
Hon'ble Apex Court in the case of MANJURI BERA VS.
ORIENTAL INSURANCE COMPANY LIMITED AND
ANOTHER1, wherein the Hon'ble Apex Court held and
have drawn a distinction between the 'right to apply' for
compensation and 'entitlement' to compensation. It was
2007(10) SCC 643
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held that the married daughter is legal representative and
she is certainly entitled to claim the compensation.
However, it may be true that the married daughter was
not a dependent of her father as she is living with her
husband in her husband's house. He also relied on a
judgment of the Hon'ble Apex Court in the case of
NATIONAL INSURANCE COMPANY LIMITED VS.
BIRENDER AND OTHERS2, where also the Hon'ble Apex
Court, after elaborated discussion has dealt with
distinction between a legal representative and dependant.
It was held that the even a major, married and earning
sons of the deceased being legal representatives have a
right to apply for compensation. But it would be the duty
of the Tribunal to consider the application irrespective of
the fact whether the concerned legal representative was
fully dependent on the deceased and not to limit the claim
towards conventional head only.
(2007) 10 SCC 643
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10. The point that arise for our decision in this
matter is whether the petitioners are the dependents of
the deceased and they are entitled for the 'loss of
dependency'? If so, what would be the quantum they are
entitled to?
11. It is to be noted that the relationship between
the petitioners and the Bhimashankar, though was denied
by the respondent No.2-Insurance Company, is not in
dispute in this appeal. It would be relevant to note that
there is absolutely no rebuttal evidence on record,
adduced on the part of the respondent No.2, which would
show that the petitioners are not the daughter and son of
the deceased-Bhimashankar Mukkane. The cross-
examination of PW.1 nowhere shows that any discernable
admission is elicited, which would cast doubt about the
relationship of petitioners with Bhimashankar Mukkane. So
also the fact that the deceased-Bhimashankar Mukkane
had met with the accident at Bandarkavate Village,
Solapur District and the tractor had dashed against the
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deceased-Bhimashankar Mukkane is also established by
the FIR, chargesheet and such other Police papers
produced by the petitioners at Exs.P1 to P6.
12. The cause title of the petition would show that
the petitioner No.1-Ambika is shown to be the daughter of
Bhimashankar Mukkane, aged about 21 years and
petitioner No.2-Peerappa is aged about 19 years. In the
cross-examination of PW.1, there is no such elicitation
which would throw light as to when the PW.1/Petitioner
No.1 got married and whether it was prior to the accident
or subsequent to the accident. The cross-examination
shows that she is aged 23 years and she married about
two years prior to her deposition before the Court on
15.10.2018. Obviously, the accident had taken place on
19.02.2015. Therefore, it can safely be said that at the
time of the accident, when the deceased-Bhimashankar
Mukkane died, she was unmarried. The cross-examination
of PW.1 does not show as to when the petitioner No.2 got
employment at Pune. It is elicited that the deceased-
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Bhimashankar Mukkane has lands at Bandarkavate Village,
Solapur District and the lands were cultivated by
deceased-Bhimashankar Mukkane and his brother-
Ramanna. It is elicited that now the lands are being
cultivated by the said Ramanna. It is evident that at the
time of death of Bhimashankar Mukkane, the petitioner
No.1 was unmarried and the petitioner No.2 appears to be
aged about 19 years and therefore, it can be said that the
petitioners were dependents of the deceased-
Bhimashankar Mukkane.
13. Under these circumstances, the conclusions
reached by the Tribunal that the petitioners were not the
dependents of the deceased cannot be accepted. The
provisions of Section 166 of the Motor Vehicles Act provide
for making an application to the Tribunal for grant of
compensation by the dependents. The petition came to be
filed at the hands of the petitioners on 19.03.2015. Under
these circumstances, it cannot be said that the petitioners
were not the dependants of the deceased. Therefore, we
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are unable to accept the views taken by the Tribunal as it
is not supported by the evidence on record. To that
extent, the perversity in appreciation has to be set aside.
14. Coming to the assessment of compensation
under the loss of dependency, it has come in the
testimony of the petitioners as well as in the Police papers
that the deceased was aged about 40 years at the time of
the accident. Therefore, the appropriate multiplier would
be '15'. Even though the petitioners have contended that
the deceased was earning Rs.10,000/- per month, there is
no material on record to show that the deceased has
income from the agriculture. Therefore, the notional
income has to be considered. The guidelines issued by the
Karnataka State Legal Services Authority for the purpose
of settlement of the disputes before the Lok-Adalat
prescribe a notional income of Rs.8,000/- for the year
2015. In umpteen number of decisions, this Court has held
that the guidelines issued by the KSLSA are in general
conformity with the wages fixed under the Minimum
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Wages Act, 1948. Therefore, by taking future prospects of
the income of the deceased at 40%, the applicable
multiplicand would be Rs.8,000/- + Rs.3,200/- =
Rs.11,200/-. Hence, the 'loss of dependency' is calculated
as Rs.11,200/- X 12 X 15 X 2/3 = Rs.13,44,000/- by
applying multiplier of '15', deducting 1/3rd towards
personal expenses of the deceased.
15. In view of the decisions in the case of
NATIONAL INSURANCE COMPANY LIMITED VS.
PRANAY SETHI AND OTHERS3, the petitioners are also
entitled for the compensation of Rs.40,000/- under the
head of 'loss of filial love and affection' and a sum of
Rs.15,000/- each in respect of 'loss of estate' and 'funeral
expenses'. The said amounts under the conventional heads
shall have to be enhanced by 10% at every three years.
Thus, the petitioners are entitled for a total compensation
of Rs.14,28,700/- under following heads.
2017 SCC Online SC 1270
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Sl. Amount
Particulars
No. (in Rs.)
1. Loss of Dependency 13,44,000/-
2. Loss of Filial Love and Affection 48,400/-
3. Funeral Expenses 18,150/-
4. Loss of Estate 18,150/-
Total 14,28,700/-
16. Thus, the petitioners are entitled for enhanced
compensation of Rs.13,03,700/- with interest @ 6% p.a.
For aforesaid reasons, the appeal filed by petitioner
deserves to be allowed in part. Hence, the following:
ORDER
(i) The appeal is allowed in part.
(ii) The impugned judgment and award of the
Tribunal is modified and the petitioners are entitled for a
total compensation of Rs.14,28,700/- instead of
Rs.1,25,000/- with interest at 6% p.a. from the date of
petition till its deposit before the Tribunal.
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(iii) The respondent No.2-Insurance company is
directed to deposit the compensation amount within a
period of six weeks from the date of this order.
(iv) Rest of the order of the Tribunal regarding
apportionment and fixed deposit stands unaltered.
Sd/-
JUDGE
Sd/-
JUDGE
NR/-
