Karnataka High Court
Smt Madhavi W/O Vithoba Kambli vs The Divisional Manager United India ... on 7 December, 2023
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
1
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 07th DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MFA No.102088 OF 2022
C/W
MFA CROB No.100136 OF 2022 (MV)
IN MFA No.102088/2022
BETWEEN:
THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.,
MARUTI GALLI, BELAGAVI,
NOW REPRESENTED BY ITS SR. DIVISIONAL
MANAGER,
BELAGAVI-590003.
....APPELLANT
(BY SRI.RAJASHEKHAR S. ARANI, ADVOCATE)
SHIVAKUMAR
HIREMATH
AND:
Digitally signed
by SHIVAKUMAR
HIREMATH
Date: 2023.12.11 1. SMT. MADHAVI W/O VITHOBA KAMBLI,
16:26:05 +0530
AGE: 54 YEARS, OCC: HOUSEHOLD WORK,
R/O TUMARI,
TAL AND DISTRICT BELAGAVI-591153
2. SHRI. VITHOBA S/O ARJUN KAMBLI
AGE:60 YEARS, OCC: NIL,
R/O TUMARI,
TAL AND DISTRICT BELAGAVI-591153
3. SHRI. GOVIND S/O BABU RATHOD
2
AGE: 24 YEARS, OCC: SERVICE
R/O C/O MR. SEBASTIAO FERNANDES
H.NO. 1052, 2ND BAIRRO ST. CRUZ, TISWADI,
DIST NORTH GOA STATE GOA-403001,
MS. LINDA D/O CRIPINO FENANDES
AGE: MAJOR, OCC: HOUSE HOLD WORK,
R/O H.NO.1217/B SEGUNDO BAIRRO
CALAPUR, TISWADI,
DIST NORTH GOA, GOA STATE, GOA 403001
(R.C HOLDER OF CAR NO. GA 07/C 8855)
SINCE DECEASED BY HER LEAGAL HEIR
4. MR. JOAO ABDON EUCARISTICO DO REGO
AGE: 50 YEARS, OCC:SERVICE,
R/O BEHIND URBAN HEALTH AND TRAINING
CENTRE, WADO PREMAIRO BAIRO CALAPUR
CLAPUR TAL TISWAD, DIST NORTH GOA
STATE GOA-403005.
5. SRI. ROSARIO S/O DAURTE MASCARENHAS
AGE: MAJOR, OCC: BUSINESS,
R/O H.NO.561, BORBHAT TALEIGAO TISWADI
DIST NORTH GOA,
STATE GOA 403002.
....RESPONDENTS
(SRI. UMESH C. AINAPUR, ADVOCATE FOR R1 AND R2;
NOTICE TO R3 AND R5 SERVED;
NOTICE TO R4 HELD SUFFICIENT)
THIS MFA IS FILED U/S. 173(1) OF MOTOR VEHICLES ACT,
AGAINST THEJUDGMENT AND AWARD DATED 16.11.2021
PASSED NMVC NO.1016/2019 ON THE FILE OF THE IV
ADDTIIONAL DISTRICT AND MOTOR ACIDENT CLAIMS TRIBUNAL-
V, BELAGAVI, AWRDING COMPENSATION OF RS.46,31,000/-
WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE OF
PETITION TILL ITS PAYMENT.
3
IN MFA CROB No.100136/2022
BETWEEN:
1. SMT. MADHAVI W/O VITHOBA KAMBLI
AGE: 54 YEARS OCC: HOUSE
HOLD WORK, R/O TURMARI
TQ: AND DIST, BELAGAVI.
2. SHRI VITHOBA S/O ARJUN KAMBLI,
AGE: 60 YEARS, OCC: NIL,
R/O, TURMARI,
TQ: AND DIST, BELAGAVI
....CROSS OBJECTORS
(SRI. UMESH C. AINAPUR, ADVOCATE)
AND:
1. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTC.,
MARUTI GALLI, BELAGAVI
NOW REPRESENTED BY ITS LRS.
DIVISION MANAGER BELAGAVI
2. SHRI. GOVIND S/O BABU RATHOD
AGE: 24 YEARS OCC: SERVICE
R/O. C/O MR. SEBASTIO FERNANDES
H.NO. 1052, 2ND BAIRROST. CRUZ, TISWADI,
DIST NORTH GOA STATE GOA-403001.
MS. LINDA D/O CRIPINO FENANDES
AGE: MAJOR, OCC: HOUSE HOLD WORK,
R/O:H.NO.1217/B SEGUNDO BAIRRO CALAPUR,
TISWADI, DIST NORTH GOA,
STATE GOA PIN CODE - 403001,
(R.C HOLDER OF CAR NO. GA-07/C 8855) SINCE
DEAD BY HER LRS.
3. MR. JOAO ABDON EUCARISTICO DO REGO
AGE: 53 YEARS OCC:SERVICE
R/O BEHIND URBAN HEALTH AND TRAINING
CENTRE, WADO PREMAIRO BAIRO, CALAPUR,
TAL TISWADI, DIST NORTH GOA,
STATE GOA-403005.
4
4 SRI. ROSARIO S/O DAURTE MASCARENHS
AGE: MAJOR, OCC: BUSINESS
R/O H.NO.561, BORBHAT TALEIGAO TISWADI DIST
NORTH GOA, STATE GOA-403002.
INSURANCE HOLDER OF CAR NO.GA-07/C-8855
.....RESPONDENTS
THIS MFA CROB IS FILED U/S. 173(1) OF MOTOR
VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED
16.11.2021 PASSED IN LMVC NO.1016/2019 ON THE FILE OF
THE IV ADDITIONAL DISTRICT JUDGE AND MOTOR ACCIDENT
CLAIMS TRIBUNAL-V, BELAGAVI, DISMISSING THE PETITION
FILED UNDER SECTION 166 OF MOTOR VEHICLE ACT, 1994.
THESE APPEALS HAVING BEEN HEARD, RESERVED ON
27.11.2023 AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT VIJAYKUMAR A PATIL, J., PRONOUNCED THE
FOLLOWING:
JUDGMENT
1. MFA No.102088/2022 is filed by the
Insurance Company being aggrieved by the award of
compensation and MFA Crob No.100136/2022 filed by
the claimants seeking for enhancement of the
compensation. Both the appeals are arising out of the
Judgment and award dated 16.11.2021 passed in MVC
no.1016/2019 by the IV Additional District and Sessions
Judge and MACT V, Belagavi, wherein the claim petition
of the claimant Nos.1 and 2 was allowed by awarding
total compensation of Rs.46,31,000/- along with
interest at the rate of 6% per annum from the date of
petition, till its payment.
2. Brief facts giving rise to filing of these
appeals are that, the appellants in MFA Crob
No.100136/2022 have filed the claim petition under
Section 166 of the Motor Vehicles Act.
3. The parties will be referred to as per their
ranking before the tribunal.
4. It is averred that, one Sri. Sahil Kambli was
proceeding on motorcycle bearing No.GA-06-Y-0770
along with the pillion rider when he reached near Goa
University Library, Goa, a car bearing registration
No.GA-07-C-885 came in high speed, rash and
negligently driven by its driver, lost the control over the
car and dashed to the motorcycle of Sahil, resultantly
the rider and pillion rider fell down on the road and the
Sahil sustained fatal injuries, he was taken to
Government Hospital, Bambolim, Goa, he was treated
for a period of six days and on 17.01.2019 he
succumbed to the injuries, suffered in the road
accident. It is averred that, the deceased was aged
about 22 years at the time of accident and was
pursuing Medical Course i.e. student of III year MBBS
at Government Medical College and Hospital,
Bombolim, Goa. It is further averred that, the deceased
was intelligent, outstanding student in his studies and
due to sudden demise the dependency of the claimants
has lost. It is also averred that, now a days the
medical profession is most sought profession and if he
would not have died in the said road accident, he would
have completed his medicine course and would have
earned a substantial income to the tune of
Rs.4,00,000/- to Rs.5,00,000/- lakhs per month and
the said income would have helped the claimants in
their old age and the sudden demise of Sahil, the
claimants have suffered physical, mental and financial
loss. The accident in question has occurred solely due
to the negligence of the driver of the offending car.
Hence, the respondents are jointly and severally liable
to pay the compensation to the claimants.
5. The respondent No.1 has filed written
statement, denying the averments made in the claim
petition by contending that, the accident has occurred
due to the negligent driving of the motorcycle by the
deceased. The respondent No.4 - Insurance company
had filed objection denying the contents of the claim
petition. It is averred that, the driver of the offending
car had no valid and effective driving licence on the
date of the accident, thus, there is a violation of the
conditions of the policy, hence, they are not liable to
pay the compensation by indemnifying the offending
vehicle. The tribunal has partly allowed the claim
petition. Being aggrieved, these appeals have been
filed.
6. Sri. Rajashekhar Arani, learned counsel
appearing for the Insurance company submits that, the
tribunal has committed grave error in assessing the
income of the deceased at Rs.30,000/- per month as
the deceased was a student of III year MBBS Course,
who himself was a dependent on his parents and he
was not having any independent income. Hence,
assessing the income of the deceased at Rs.30,000/- is
without any basis and required to be interfered in the
present appeal. It is submitted that, the impugned
Judgment and award passed by the tribunal is
erroneous and oppose to the settled principles of law,
which is required to be interfered in the appeal. It is
further submitted that, the tribunal has failed to draw
the correct inference and failed to arrive at a rational
conclusion while assessing the income of the deceased,
resulted in passing erroneous Judgment. He seeks to
allow the appeal filed by the Insurance company by
reducing the income of the deceased.
7. Per contra, Sri. Umesh C. Ainapur, learned
counsel appearing for the claimants supports the
impugned Judgment and award and submits that, the
claimants are seeking for enhancement of the
compensation by considering the income of the
deceased at Rs.50,000/- per month. It is submitted
that, the deceased was aged about 22 years at the time
of accident and he was pursuing his MBBS Course and
was outstanding student and may have earned more
than Rs.50,000/- per month after completion of his
course, hence, it would be just and appropriate to
assess the income of the deceased at Rs.50,000/- per
month for the purpose of determination of the
compensation. It is submitted that, the tribunal has
committed an error in awarding Rs.40,000/- under the
head of loss of consortium and Rs.25,000/- for loss of
love and affection as the claimants are the mother,
father of the deceased. Hence, both are entitled for
consortium at Rs.40,000/-. He seeks to allow the
appeal filed by the claimants.
8. Having heard the learned counsel for the
appellant-Insurance company, learned counsel for the
appellant-claimants, perused the memorandum of
appeals and the tribunal record, the point that arise for
consideration in these appeals is:
"Whether the award of compensation by the
tribunal is just and proper?"
9. The above point is answered in the negative
for the following reason:
(a) The parties to the proceeding do not dispute
that, in a road accident dated 11.01.2019 son of the
claimants has sustained grievous injuries and later he
succumbed to those injuries. It is also not in dispute
that, the deceased was pursuing his MBBS Course and
was in the III year of his Course at Government Medical
College and Hospital, Bambolim, Goa. On perusal of the
Ex.P.10 to Ex.P.12, it is evident that, the deceased was
a bright student and performed fairly well in his
academics before the accident. The only question is to
assess the income of the deceased based on the
available evidence on record and based on the fact
that, the deceased was pursuing his professional course
and on completion of his course what would have been
his earning. To consider the income of the deceased the
tribunal has placed its reliance on the various
Judgments and assessed the income of the deceased at
Rs.30,000/- per month. It will be useful to refer to the
decision of the Hon'ble Supreme Court in the Case of
Ashvinbhai Jayantilal Modi Vs. Ramkaran
Ramchandra Sharma and others, reported in
(2015) 2 SCC 180. The relevant paragraph of the
aforesaid Judgment is extracted herein below:
9. We have heard the learned counsel for the parties.
In our considered view, the deceased was 19 years old and
was pursuing his medical degree with good marks at the time
of the accident. With respect to the future income of students
pursuing professional courses we refer to Arvind Kumar
Mishra v. New India Assurance Co. Ltd. and Anr.[3], wherein
this Court held as under:-
"14. On completion of Bachelor of Engineering
(Mechanical) from the prestigious institute like
B.I.T., it can be reasonably assumed that he would
have got a good job. The appellant has stated in
his evidence that in the campus interview he was
selected by Tata as well as Reliance Industries and
was offered pay package of Rs.3,50,000/- per
annum. Even if that is not accepted for want of any
evidence in support thereof, there would not have
been any difficulty for him in getting some decent
job in the private sector. Had he decided to join
government service and got selected, he would
have been put in the pay scale for Assistant
Engineer and would have at least earned Rs.
60,000/- per annum. Wherever he joined, he had a
fair chance of some promotion and remote chance
of some high position. But uncertainties of life
cannot be ignored taking relevant factors into
consideration. In our opinion, it is fair and
reasonable to assess his future earnings at Rs.
60,000/- per annum taking the salary and
allowances payable to an Assistant Engineer in
public employment as the basis...."
10. The Tribunal and the High Court have not
taken into proper consideration that the deceased was a
student of medicine at the time of the accident while
determining his future income. The courts below have wrongly
ascertained the future income of the deceased at only
Rs.18,000/- per month, which in our view is too less for a
medical graduate these days. Therefore, the courts below have
failed in following the principles laid down by this Court in this
aspect in the above case.
11. The deceased was a diligent and outstanding
student of medicine who could have pursued his M.D. after his
graduation and reached greater heights. Today, medical
practice is one of the most sought after and rewarding
professions. With the tremendous increase in demand for
medical professionals, their salaries are also on the rise.
Therefore, we have no doubt in ascertaining the future income
of the deceased at Rs.25,000/- p.m. i.e. Rs.3,00,000/- p.a.
Further, deducting 1/3rd of the annual income towards
personal expenses as per Oriental Insurance Co. Ltd. v. Deo
Patodi and Ors[4], and applying the appropriate multiplier of
13, keeping in mind the age of the parent of the deceased, as
per the guidelines laid down in Sarla Verma case (supra), we
arrive at a total loss of dependency at Rs.26,00,000/-
[(Rs.3,00,000/- minus 1/3 X Rs.3,00,000/-)X 13]."
(b) The co-ordinate Bench of this Court in the
case of Smt. Kamala Goyal and others Vs. United
India Insurance company Limited in MFA
No.1982/2015 disposed of on 07.01.2021 following
the decision of Ashwinbhai Jayantilal Modi referred
supra, has assessed the income of a student of I year
MBBS Course at Rs.25,000/- per month. In the case of
Ahswinbhai Jayantilal Modi referred supra the
accident occurred on 12.07.2002 and in the case of
Smt. Kamala Goyal, the accident has occurred on
13.05.2011. Taking note of the enunciation of law laid
down by the Hon'ble Supreme Court referred supra and
being followed by the co-ordinate Bench, it would be
appropriate to assess the income of the deceased at
Rs.40,000/- per month as the accident in the present
case has occurred on 11.01.2019 and there is a 17
years gap between the date of accident in question and
the accident date referred in the decision of the Hon'ble
Supreme Court. By applying appropriate enhancement
to the assessed income by the Hon'ble Supreme Court
in the case referred supra, the assessment of income of
the deceased at Rs.40,000/- would be just and proper.
This Court has also taken judicial notice of the fact that,
the State Government is paying Rs.50,000/- to
Rs.60,000/- per month as a stipend to the
postgraduate medical students. This Court has also
taken note of the salary being paid to the MBBS
graduates in the private hospitals and probable earning
of a MBBS graduate after completion of his course by
private practice would be definitely more than the
assessed income by this Court. It is not in dispute that,
there is a huge demand to the MBBS graduates and
once they complete their course their probable earning
would be more than the assessed income by this Court.
Taking into all these aspects, this Court is of the
considered view that, it would be just and appropriate
to assess the income of the deceased at Rs.40,000/-
per month for the purpose of determination of the
compensation.
(c) The principles regarding determination of
just compensation under the motor vehicles accident
cases is contemplated under the Motor Vehicles Act,
1988 and also there are numerous pronouncements by
the Hon'ble Supreme Court and this Court with regard
to manner of determination of compensation. However,
it is impossible to equate the family suffering and the
personal deprivations with the compensation awarded
in the accident cases. This Court is of the view that the
Courts have to make an endeavour to award just
compensation to the loss suffered due to the accident
so as to compensate the claimants for the loss suffered
by the victim. This Court is conscious of the fact that,
the assessment of the compensation for the loss
suffered by the claimants should not be very
conservative and also should not be assessed in a very
liberal manner. It would be difficult for the Courts to
assess the compensation with regard to the degree of
loss or the deprivations of the claimants, however, it is
an attempt to make good such loss by way of damages
or the compensation.
(d) The Hon'ble Supreme Court in the case of
Bishnupriya Panda Vs. Basanti Manjari Mohanty
and another, in Civil Appeal No.4911/2023
disposed of on 04.08.2023 has approved the notional
income reckoned by the tribunal of the deceased
student of 4th year MBBS at Rs.50,000/- per month.
The Hon'ble Supreme Court has approved the
parameters adopted by the tribunal in assessing the
notional income. The aforesaid decision does not
specifically laid down the law that in all the cases where
the deceased is MBBS student, the assessment of the
notional income should be 50%. Hence, there is no
merit in the contention of the learned counsel for the
appellant that, the income of the deceased in the
instant case should be assessed at Rs.50,000/- per
month. The assessment of notional income should be
based on various factors referred supra.
(e) It would be also useful to refer some of the
authoritative pronouncements of the other Courts
where the broad principles for determination of
compensation are enumerated:
8. In Phillips v. London & South Western Railway
Co. [Phillips v. London & South Western Railway Co.,
(1879) [L.R.] 5 Q.B.D. 78 (CA)] , Field, J., while
emphasising that damages must be full and adequate,
held thus : (QBD p. 79)
"... You cannot put the plaintiff back again into his
original position, but you must bring your reasonable
common sense to bear, and you must always recollect
that this is the only occasion on which compensation can
be given. The plaintiff can never sue again for it. You
have, therefore, now to give him compensation once and
for all. He has done no wrong, he has suffered a wrong at
the hands of the defendants and you must take care to
give him full fair compensation for that which he has
suffered." Besides, the Tribunals should always remember
that the measures of damages in all these cases "should
be such as to enable even a tortfeasor to say that he had
amply atoned for his misadventure".
9. In the case of Mediana, In re [Mediana, In re, 1900
AC 113 (HL)] , Lord Halsbury held :
"... Of course the whole region of inquiry into damages
is one of extreme difficulty. You very often cannot even
lay down any principle upon which you can give damages;
nevertheless, it is remitted to the jury, or those who stand
in place of the jury, to consider what compensation in
money shall be given for what is a wrongful act. Take the
most familiar and ordinary case : how is anybody to
measure pain and suffering in moneys counted? Nobody
can suggest that you can by any arithmetical calculation
establish what is the exact amount of money which would
represent such a thing as the pain and suffering which a
person has undergone by reason of an accident. In truth,
I think it would be very arguable to say that a person
would be entitled to no damages for such things. What
manly mind cares about pain and suffering that is past?
But nevertheless the law recognises that as a topic upon
which damages may be given."
10. ..........
11. Lord Denning while speaking for the Court of
Appeal in Ward v. James [(1965) 1 All ER 563 (CA)] , laid
down the following three basic principles to be followed in
such like cases :
"First, accessibility : In cases of grave injury, where
the body is wrecked or the brain destroyed, it is very
difficult to assess a fair compensation in money, so
difficult that the award must basically be a conventional
figure, derived from experience or from awards in
comparable cases. Secondly, uniformity : There should be
some measure of uniformity in awards so that similar
decisions are given in similar cases; otherwise there will
be great dissatisfaction in the community, and much
criticism of the administration of justice.
Thirdly, predictability : Parties should be able to predict
with some measure of accuracy the sum which is likely to
be awarded in a particular case, for by this means cases
can be settled peaceably and not brought to court, a thing
very much to the public good."
(emphasis in original)
(f) Keeping these principles in mind, this Court
is of the considered view that, the deceased was a
bright student, pursuing MBBS Court and due to the
accident, the claimants have been deprived not only of
personal and family counts, but also on financial
aspects. Hence, it would be appropriate to assess the
income of the deceased at Rs.40,000/- per month for
the purpose of determination of the compensation.
(g) The tribunal has committed an error in
awarding Rs.40,000/- as a loss of consortium and
Rs.25,000/- for loss of love and affection. Keeping in
mind the law laid down by the Hon'ble Supreme Court
in the case of Magma General Insurance Company
Limited Vs Nanu Ram, reported in (2018) SCC 130,
the claimants being the parents of the deceased are
entitled for parental consortium of Rs.40,000/- each.
The claimants are also entitled to the compensation
under the head of loss of future prospects of the
deceased. Keeping in mind the law laid down by the
Hon'ble Supreme Court in the case of National
Insurance Company Limited Vs. Pranay Sethi and
others, reported in (2017) 16 SCC 680 compensation
requires to be determined. The deceased was aged
about 22 years as on the date of the accident. The
claimants are entitled to the addition of 40% to the
assessed income under the head of loss of future
prospects. The claimants are entitled for the interest at
the rate of 6% on the compensation amount from the
date of petition till its realization. The tribunal has
rightly applied multiplier, deduction and awarded
compensation under the head of loss of future
prospects.
The loss of dependency would be as under:
Rs.40,000/- + 40% = (Rs.16,000/-) =
Rs.56,000/- minus 50% = Rs.28,000/-
Rs.28,000/- X 12 X 18 = Rs.60,48,000/-.
(h) Thus, the claimants are entitled for the
compensation under the following heads:
Sl.No. Particulars Amount
1. Loss of dependency Rs.60,48,000/-
2. Loss of estate Rs.15,000/-
3. Towards transportation of dead Rs.15,000/-
body and funeral expenses
3. Loss of consortium Rs.80,000/-
(Rs.40,000/-x 2 )
Total compensation Rs.61,58,000/-
Compensation awarded by the Rs.46,31,000/-
tribunal
Enhanced by this Court Rs.15,27,000/-
For the aforementioned reason, we pass the
following order:
ORDER
(i) M.F.A.No.102088/2022 filed by the
insurance company is dismissed.
(ii) M.F.A. Crob. No.100136/2022 filed by
the claimants is allowed in part.
(iii) The judgment and award dated
16.11.2021 passed by the IV
Additional District Judge and MACT-V,
Belagavi in MVC No.1016/2019 is
modified and the claimants are
entitled to the total compensation of
Rs.61,58,000/- as against
Rs.46,31,000/- awarded by the
Tribunal with interest at the rate of
6% per annum from the date of claim
petition till date of realization.
(iv) The appellant-Insurance Company
shall deposit the enhanced
compensation amount with accrued
interest before the Tribunal within six
weeks from the date of receipt of
certified copy of this judgment.
(v) Apportionment, deposit and
disbursement of the enhanced
compensation shall be made as per
the award of the Tribunal.
(vi) The amount deposited by the
insurance company in MFA
No.102088/2022 shall be transmitted
to the Tribunal.
(vii) Draw modified award accordingly.
(viii) Registry to transmit the records to
the Tribunal forthwith.
(ix) No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
Svh/-
