Karnataka High Court
Smt.Sangeeta W/O Sidram ... vs Shri.Mallikarjun Baburav Desai on 12 January, 2023
Bench: Ravi V.Hosmani
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MFA No. 100774 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
MISCELLANEOUS FIRST APPEAL NO. 100774 OF 2019 (MV-D)
BETWEEN:
1. SMT.SANGEETA W/O SIDRAM BASTAWADE
AGE:28 YEARS, OCC:HOUSEHOLD WORK,
R/O:BELAKUD, TQ:CHIKODI,
DIST:BELAGAVI, NOW R/AT SAVASUDDI,
TAL:RAIBAG, DIST:BELAGAVI 593107
2. KUMAR VITTAL S/O SIDRAM BASTAWADE
AGE:15 YEARS, OCC:STUDENT,
R/O: BELAKUD, TQ:CHIKODI,
DIST:BELAGAVI, NOW R/AT:SAVASUDDI,
TAL:RAIBAG, DIST:BELAGAVI-593107
3. KUMARI LAXMI D/O SIDRAM BASTAWADE
AGE:12 YEARS, OCC:STUDENT,
R/O: BELAKUD, TQ:CHIKODI, DIST:BELAGAVI
NOW R/AT:SAVASUDDI,
TAL:RAIBAG, DIST:BELAGAVI 593107
4. KUMARI AKSHATA D/O SIDRAM BASTAWADE
AGE:11 YEARS, OCC:STUDENT,
R/O BELAKUD, TQ:CHIKODI,
DIST:BELAGAVI, NOW R/AT:SAVASUDDI,
TAL:RAIBAG, DIST:BELAGAVI 593107.
...APPELLANTS
(BY SRI. SANTOSH S HATTIKATAGI, ADVOCATE)
AND:
SHRI.MALLIKARJUN BABURAV DESAI
AGE:MAJOR, OCC:BUSINESS,
R/O: MARUTI GALLI,
SANKESHWAR, TAL:HUKKERI,
DIST:BELAGAVI 593107.
...RESPONDENT
(SOLE RESPONDENT HELD SUFFICIENT)
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MFA No. 100774 of 2019
THIS MFA IS FILED U/S.173(1) OF OR VEHICLES ACT, AGAINST
THE JUDGMENT AND AWARD DATED 31.10.2017 PASSED IN MVC NO.
2512/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JUDICIAL
MAGISTRATE FIRST CLASS, RAIBAG, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL COMING ON FOR ORDER, THIS DAY, THE COURT
MADE THE FOLLOWING:
JUDGMENT
Though matter is listed for order with consent of both parties it is
taken up for final disposal.
2. Challenging impugned judgment and award dated
31.10.2017 passed by learned Senior Civil Judge and J.M.F.C.
Raibag (referred to as 'Tribunal' for short ), in MVC No.2512/2016,
this appeal is filed by claimants for enhancement of compensation.
3. Occurrance of accident on 01.01.2016 between motorcycle
bearing registration No.KA-23/EA-6294 and of lorry bearing
registration No.KA-22/A-4223, due to rash and negligent driving of
both vehicles, deceased one Sri.Sidaram Bastawade sustained fatal
injuries and succumbed to same are not in dispute. On account of
untimely death of deceased, claimants being wife and children of
deceased filed claim petition under Section 166 of Motor Vehicle
Act, 1988, against owner of lorry.
MFA No. 100774 of 2019
4. On entering appearance, owner filed objections denying rash
and negligent driving in causing accident. Contributory negligence
on part of rider of motorcycle was also alleged.
5. Based in pleadings, Tribunal framed following issues:
1. Whether the petitioners prove that, the husband of
petitioner No.1 and father of the petitioner Nos.2 to 4 by
name Shri.Sidram S/o Shivamurti Bastwade died due to
the accident by rash and negligent act of the driver of
Truck bearing Reg No.KA-22/A-4223 on 01.01.2016, at
about 7- 45 hours on Belakud-Bagewadi Road, within
the limits of Belakud village, Tal: Chikodi, When the
deceased was riding his Hero Honda Splendor Pro
Motor Cycle bearing Reg.No.KA-23/EA-6294?
2. Whether the petitioners are entitled for the
compensation? If so what extent?
3. What order or award?
6. Thereafter, it recorded evidence of claimant examined as
PW.1 and marked Ex.P.1 to Ex.P.11. Driver of lorry examined as
RW.1 and no documents were marked.
7. On consideration, Tribunal answered issue no.1 partly in
affirmative, holding negligence of deceased to an extent to 25% and
driver of lorry at 75% and assessed compensation of Rs.6,93,000/-.
MFA No. 100774 of 2019
Not satisfied with quantum of compensation, claimants are in
appeal.
8. Sri. Santosh Hattikatagi, learned counsel for
claimants/appellants submitted that Tribunal assessed income of
deceased on lower side. There was no addition of future prospects
and even award under conventional heads was inadequate.
9. Heard learned counsel for parties and perused impugned
judgment and award and record.
10. From above submission, since owner has not preferred
any appeal, point that arises for consideration is:
"Whether claimants are entitled for enhancement of
compensation as sought for?."
11. Insofar as monthly income, though it was stated that
deceased was 32 years of age and earning Rs.6,000/- per month
from milk vending and Rs.5,00,000/- from agriculture, they did not
lead any specific evidence to substantiate same. Therefore same
has to be assessed notionally. Notional income for year 2016 is
Rs.8,750/-. Hence, tribunal was in error taking it at Rs.6,000/-.
Admittedly, deceased was 32 years of age and self-employed.
Claimants are wife and three minor children i.e. four dependents. As
MFA No. 100774 of 2019
per decision of National Insurance company Limited Vs. Pranay
Sethi And others reported in AIR 2017 SC 5157 proper multiplier
applicable would be '16' and future prospects at '40%' are to be
added and deduction towards personal expenses would be at 1/4th.
12. Thus 'loss of dependency' would be as follows:
Rs.8,750+ 40% -1/4 x 12 x 16 = Rs.17,64,000/-
13. Under conventional heads claimants would be entitled
for Rs.40,000/- each towards 'spousal consortium' and 'filial
consortium' respectively. In addition, they would be entitled for
Rs.15,000/- towards 'funeral expenses' and Rs.15,000/- towards
'loss of estate'. Since more than three years have lapsed, 10% is to
be added to conventional heads. Thus total compensation would be
as follows:
Sl.no. Heads Amount Rs.
1 Loss of dependency (Rs.8,750 x 40% x 17,64,000/-
12 x 16 x1/4)
2 Conventional heads (1,90,000 + 2,09,000/-
19,000)
Total 19,73,000/-
MFA No. 100774 of 2019
14. Therefore, point for consideration is answered partly in
affirmative as above. Since Tribunal has awarded 25% of
contributory negligence against deceased, claimants would be
entitled to 75% of said amount i.e.Rs.14,79,750/- as against
Rs.Rs.6,93,000/- awarded by tribunal. Hence, I pass following:
ORDER
i. Appeal is allowed in part.
ii. Claimants would be entitled to compensation of
Rs.14,79,750/- as against Rs.6,93,000/- granted by
tribunal with interest at 6% per annum from date of
claim petition till date of realization.
iii. Respondent is directed to deposit award amount within
a period of three months.
iv. Apportionment of compensation would be in same
proportion as per tribunal award.
SD/-
JUDGE
AC
