Karnataka High Court
Shri.Shantappa S/O Chandappa ... vs Shri.Kantappagouda And Anr on 3 January, 2023
Bench: J.M.Khazi
1 MFA No.201065/2015
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 3RD DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MS. JUSTICE J.M.KHAZI
MFA NO.201065/2015 (MV)
BETWEEN
1. SHRI.SHANTAPPA
S/O CHANDAPPA DODAMANI
AGED ABOUT 43 YEARS
OCC:COOLIE
2. SMT. RENUKA
W/O SHANTAPPA DODAMANI
AGED ABOUT 41 YEARS
OCC:COOLIE
3. SRI.PARASURAM
S/O SHANTAPPA DODAMANI
AGED ABOUT 17 YEARS
OCC:STUDENT
4. SRI. RAGHAVENDRA
S/O SHANTAPPA DODAMANI
AGED ABOUT 15 YEARS
OCC:STUDENT
APPELLANTS 3 AND 4 ARE MINORS
U/G APPELLANT NO.1 FATHER
APPELLANTS ARE ALL R/O RAMADADDI
TQ:MUDDEBIHAL, DIST.VIJAYAPUR
2 MFA No.201065/2015
NOW RESIDING AT JALANAGAR
VIJAYAPUR - 586101
...APPELLANTS
(BY SRI. S. S. MAMADAPUR, ADVOCATE)
AND
1. SHRI.KANTAPPAGOUDA
S/O REVANISIDDAPPAGOUDA KANAKARADDI
AGED ABOUT 37 YEARS
OCC:BUSINESS, R/O RAMADADDI
TQ:MUDDEBIHAL, DIST.VIJAYAPUR
2. THE DIVISIONAL MANAGER
BRANCH MANAGER
UNITED INDIA INSURANCE COMPANY LTD.,
S.S.FRONT ROAD, VIJAYPUR.
...RESPONDENTS
(BY SMT. ANURADHA M. DESAI, ADVOCATE FOR R2;
R1 SERVED)
THIS MFA IS FILED U/S. 173(1) OF MOTOR VEHICLES
ACT, PRAYING TO ENHANCE THE COMPENSATION AMOUNT
PAYABLE TO THE APPELLANTS BY SUITABLY MODIFYING THE
JUDGEMENT AND AWARD DATED 23.04.2015 PASSED BY THE
IV ADDL. DISTRICT COURT (MACT) VIJAYPUR, IN
MVC NO.1348/2014.
THIS APPEAL COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
3 MFA No.201065/2015
JUDGMENT
This is a claimants'/petitioners' appeal challenging
the impugned judgment and award both on quantum as
well as absolving the insurance company from the liability
of paying the compensation and directing the owner of
vehicle to pay the compensation.
2. For the sake of convenience, the parties are
referred to by their rank before the Tribunal.
3. Petitioners are parents and brothers of
deceased-Kashinath. It is the case of the petitioners' that
on 19.02.2014, at about 6:30 p.m. while deceased was
standing on the extreme left side of Kodaganur-Karnur
road, near water tank, tractor bearing Reg.No.KA-28-TA-
6480 (hereinafter referred to as 'offending vehicle') being
driven by its driver in a rash or negligent manner came
and dashed against him. As a result, he sustained grievous
injuries and while undergoing treatment, he died on
21.02.2014.
3.1 Deceased was aged 20 years, hale and
healthy. He was an agricultural coolie earning Rs.8,000/-
per month. As the owner and insurer of the offending
vehicle i.e. respondents are jointly and severally liable to
pay the compensation.
4. Though duly served with notice, respondent
No.1 remained absent and he was placed ex parte by the
Tribunal.
5. Respondent No.2 appeared and filed written
statement disputing the age, occupation, income of the
deceased and also that petitioners were dependents on
him. Though admit that the offending vehicle was covered
by valid policy issued by it, respondent No.2 has
contended that it is not liable to pay the compensation as
the driver of the offending vehicle was not holding a valid
driving licence.
6. Based on these pleadings, the Tribunal framed
necessary issues.
7. On behalf of petitioners, petitioner No.1
examined himself as PW.1 and one witness as PW.2. They
have relied upon Exs.P1 to 6.
8. On the other hand, on behalf of respondent
No.2, RWs.1 and 2 are examined and Exs.R1 to 3 are
marked.
9. Vide the impugned judgment and award the
Tribunal has partly allowed the petition and quantified the
compensation at Rs.6,50,000/- and directed respondent
No.1-owner to pay the same with interest at 6% per
annum. It has absolved respondent No.2 from paying the
compensation on the ground that at the time of accident
the driver of the offending vehicle was not holding a valid
driving licence. The details of the compensation granted
are as under:
Sl.No. Compensation head Amount
awarded
1. Loss of dependency Rs.5,40,000/-
2. Funeral expenses & other Rs.20,000/-
obsequies
3. Loss of love and affection Rs.40,000/-
4. Loss of estate Rs.50,000/-
Total Rs.6,50,000/-
10. Challenging the same, the
appellants/petitioners are before this Court.
11. During the course of argument, learned
counsel for the petitioners submitted that the
compensation granted is highly inadequate. The income of
the deceased ought to have been taken based on minimum
wages. Though a bachelor, having regard to the number of
dependents, the deduction towards personal and living
expenses ought to have been 1/3rd instead of 1/2. The
Tribunal has also not granted compensation towards future
prospects. At the time of accident driver of the offending
vehicle was holding licence to drive LMV (non-transport)
and in the light of the decision of the Hon'ble Supreme
Court in Mukund Dewangan vs. Oriental Insurance
Company Limited and Others 1 (Mukund Dewangan's
case), respondent No.2 is liable to indemnify the
petitioners and prays to allow the appeal.
(2016) 4 SCC 298
12. On the other hand, learned counsel for
respondent No.2 supported the impugned judgment and
award and prays to dismiss the appeal.
13. Respondent No.1 though served, remained
absent.
14. Respondent No.1 has not challenged the
impugned judgment and award.
15. Heard arguments and perused the records.
16. Through the testimony of PW.1 the petitioners
have established their relationship with deceased, who was
a bachelor. Petitioners are the parents and brothers of
deceased. In view of the decision of the Hon'ble Supreme
Court in Sarla Verma (Smt) & Others vs. Delhi
Transport Corporation & Another 2 (Sarla Verma's
case), only petitioner No.2 being the mother is to be
considered as dependent on him. Petitioner No.1 being the
father and able bodied person cannot be considered as
(2009) 6 SCC 121
dependent on the deceased. Similarly petitioner Nos.3 and
4 though minors, being the sons of petitioner No.1 are
dependent on him and therefore they cannot also be
considered as dependents on the deceased. Keeping this
fact in mind it is necessary to examine whether the
compensation granted by the Tribunal is just and
reasonable under the following heads.
17. Loss of dependency: Though the petitioners
have contended that deceased was earning Rs.8,000/- per
month, they have not produced any evidence or proof of
the same. Therefore, the Tribunal has considered the
income on notional basis at Rs.5,000/- per month. Having
regard to the fact that accident is of the year 2014, based
on minimum wages the notional income ought to have
been taken at Rs.7,500/- per month.
17.1 While calculating the compensation, the
Tribunal has not considered loss of future prospects, as per
the decision of the Hon'ble Supreme Court in Magma
General Insurance Company Limited Vs. Nanu
Ram Alias Chuhru Ram And Others3 (Magma
Insurance Company case). Petitioners claimed that
deceased was aged 20 years. In the post mortem report
also his age is noted as 20 years and therefore the
multiplier '18' taken by the Tribunal is correct. As the age
of the deceased is less than 40 years and he was a coolie,
40% of his income is required to be added to the notional
income towards future prospects. 40% of Rs.7,500/-
comes to Rs.3,000/-. Therefore, the income of the
deceased is to be taken as Rs.7,500 + Rs.3,000 =
Rs.10,500/- for calculating loss of dependency.
17.2 As already noted since deceased was a
bachelor, as held by Hon'ble Supreme Court in Sarla
Verma's case, where the deceased is a bachelor and
mother is the only dependent, then 50% is required to be
deducted towards his personal and living expenses.
Therefore, deduction of 50% made by the Tribunal is
correct. With the income at Rs.10,500/-, multiplier '18' and
(2018) 18 SCC 130
deducting 50% towards his personal and living expenses,
the compensation under the head loss of dependency is
Rs.10,500 x 12 x 18 x 50% = Rs.11,34,000/- as against
Rs 5,40,000/- granted by the Tribunal.
18. Loss of Consortium: The Tribunal has
granted compensation in a sum of Rs.40,000/- under the
head loss of love and affection to petitioner Nos.1 and 2.
However, as per the decision of the Hon'ble Supreme Court
in National Insurance Company Limited vs.
Pranay Sethi and others4 (Pranay Sethi's case),
spouse, parents and children of the deceased are entitled
for compensation in a sum of Rs.40,000/- each under the
head loss of consortium i.e. spousal, parental and filial
consortium. Therefore, petitioner Nos.1 and 2 are entitled
for compensation at the rate of Rs.40,000/- each.
19. Loss to estate and funeral expenses: The
Tribunal has granted compensation in a sum of
Rs.20,000/- under the head funeral expenses & obsequies
(2017) 16 SCC 680
ceremonies; Rs.50,000/- under the head loss of estate.
When major compensation is granted under the head loss
of dependency, as per Pranay Sethi's case, the
compensation under the conventional head loss to estate
and funeral expenses, which includes transportation
charges, is to be restricted to Rs.15,000/- each. Therefore,
compensation under the head funeral expenses is reduced
to Rs.15,000/- and compensation under the head loss to
estate is reduced to Rs.15,000/-.
20. Thus, in all petitioners are entitled for total
compensation in a sum of Rs.12,44,000/- as against
Rs.6,50,000/- granted by the Tribunal as detailed below:
Sl. Heads Amount awarded by Amount
No. the Tribunal awarded by this
Court
1. Loss of Rs.5,40,000/- Rs.11,34,000/-
dependency
2. Loss of Rs.40,000/- Rs.80,000/-
consortium (Loss of love and
affection)
3. Loss to estate Rs.50,000/- Rs.15,000/-
4. Funeral Rs.20,000/- Rs.15,000/-
expenses (Funeral and obsequies
expenses)
Total Rs.6,50,000/- Rs.12,44,000/-
21. Now coming to the question of liability. Though
at the time of accident the vehicle was duly covered by a
valid policy issued by respondent No.2, the Tribunal has
absolved it from the liability on the ground that the
offending vehicle is a tractor whereas its driver was
holding licence to drive only a light motor vehicle (non-
transport). However, as held by the Hon'ble Supreme
Court in Mukund Dewangan's case, a person holding a
licence to drive LMV (non-transport) is entitled to drive a
LMV (transport) within the prescribed weight and there is
no need for separate endorsement.
22. In view of the same, the Tribunal has erred in
absolving respondent No.2 from the liability of paying the
compensation and fixing the liability on respondent No.1-
owner. To that extent the impugned judgment and award
is required to be modified in addition to enhancing
compensation as detailed above and accordingly, I proceed
to pass the following:
ORDER
i. Appeal is allowed in part.
ii. Appellants/petitioners are entitled for
compensation in a sum of Rs.12,44,000/-
together with interest at 6% per annum as
against Rs.6,50,000/- granted by the
Tribunal.
iii. Respondent No.2 is directed to pay the
compensation together with accrued
interest within a period of six weeks from
the date of this order.
iv. Registry is directed to return the TCR along
with copy of this order to the Tribunal.
Sd/-
JUDGE
sdu
