Karnataka High Court
Smt.Malu W/O Badaku Nakadi vs Sri.Ramagouda S/O Shivagouda ... on 9 June, 2023
Bench: S G Pandit, Vijaykumar A.Patil
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MFA No. 100911 of 2019
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 9TH DAY OF JUNE, 2023
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 100911 OF 2019 (MV-D).
BETWEEN:
1. SMT. MALU W/O. BADAKU NAKADI
AGE:38 YEARS, OCC:HOUSEHOLD WORK,
2. SHRI. NAGENDRA S/O BADAKU NAKADI,
AGE: 23 YEARS, OCC: STUDENT,
3. MISS KANCHAN D/O. BADAKU NAKADI,
AGE: 21 YEARS, OCC: STUDENT,
4. TUKARAM S/O. BADAKU NAKADI,
AGE: 17 YEARS, 9 MONTHS, OCC: STUDENT,
SINCE APPELLANT NO. 4 IS MINOR,
Digitally signed
by R/BY NATURAL GUARDIAN MOTHER APPELLANT NO.1.
MOHANKUMAR
B SHELAR 5. SHRI. GUNDU NAGO NAKADI,
MOHANKUMAR Location: High
B SHELAR Court of
Karnataka, AGE: 72 YEARS, OCC: NIL,
Dharwad
Date:
2023.06.15
6. SMT. PARVATI W/O. GUNDU NAKADI,
11:03:25 +0530
AGE: 67 YEARS, OCC: NIL,
ALL ARE R/O: A/P. LAXMI GALLI,
BELAVATTI 591108, BELAGAVI
...APPELLANTS
(BY SRI. DEEPAK S. KULKARNI, ADVOCATE)
AND:
1. SRI. RAMAGOUDA S/O. SHIVAGOUDA PATIL,
AGE: MAJOR, OCC: BUSINESS,
R/O: A/P: JADKURALI-591201,
TQ: CHIKODI, DIST: BELAGAVI.
2. THE MANAGER,
THE UNITED INDIA INSURANCE CO LTD,
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MFA No. 100911 of 2019
THROUGH ITS BRANCH AT MARUTI GALLI,
BELAGAVI-590002.
...RESPONDENTS
(NOTICE TO R1 SERVED;
SRI. S. K. KAYAKMATH, ADV. FOR R2)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED 19.12.2017 PASSED
IN MVC NO.213/2017 ON THE FILE OF THE I ADDITIONAL DISTRICT
AND SESSIONS JUDGE, BELAGAVI, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
VIJAYKUMAR A. PATIL, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the claimants against the
Judgment and award dated 19.12.2017 passed in MVC
No.213/2017 by the I Additional District and Sessions
Judge, Belagavi, (for short 'the tribunal') seeking
enhancement of the compensation amount awarded by
tribunal.
2. Brief facts giving rise to this appeal are that,
the appellants have filed claim petition under Section 166
of the Motor Vehicles Act, 1988 seeking compensation for
the death of Badaku Gundu Nakadi in a road accident,
dated 01.01.2017. It is averred that, on 01.01.2017
MFA No. 100911 of 2019
deceased was proceeding from Peeranwadi towards Karle
village, Belagavi on motorcycle bearing registration No.KA-
23/EC-3171 at about 9.00 p.m. The driver of the Tempo
Trax Toofan bearing registration No.KA-23/N-4372 came
in high speed, rash and negligent manner and dashed to
the motorcycle and caused the accident. In the said
accident, Badaku Nakadi has succumbed to the injuries
and they have incurred huge medical expenses. It is
further averred that, all the appellants are the dependents
on the income of the deceased and the deceased was
earning Rs.40,000/- per month from his salary as he was
driver of the Tractor and the respondent No.1 and 2 are
liable to pay the compensation for the death of the Sri.
Badaku Nakadi.
3. The respondent No.1 filed objections denying
the averments made in the claim petition. They have
denied the date of accident, age and income of the
deceased. It is averred that, the vehicle of the respondent
No.1 was insured with the respondent No.2 and the policy
MFA No. 100911 of 2019
was in force, the driver had a valid and effective driving
licence. The respondent No.2 has filed objections denying
the income, age, dependency of the deceased and averred
that, the accident has caused due to rash and negligent
driving of the motorcycle by the rider i.e. deceased himself
and sought for dismissal of the petition.
4. The tribunal has framed the issues and
recorded the evidence of the parties. The appellant
No.2/claimant has examined herself as P.W.1 and got
marked Ex.P.11 to P.17. The respondents have not led any
evidence and got marked Ex.R.1. The tribunal has
awarded compensation of Rs.7,42,000/- with interest at
the rate of 9% per annum from the date of petition till
realization on the following heads :
Sl.No. Particulars Amount
1 Loss of dependency Rs.6,72,000/-
2 Loss of estate Rs.15,000/-
3 Towards funeral expenses Rs.15,000/-
4 Loss of consortium Rs.40,000/-
Total Rs.7,42,000/-
MFA No. 100911 of 2019
5. Learned counsel for the appellants submits that,
the tribunal has committed an error in assessing the
income of the deceased at Rs.8,000/- as the appellants
have claimed the income of the deceaed at Rs.40,000/-
per month as he was working as a driver of the tractor. It
is submitted that, at the time of the accident, the
deceased was aged about 42 years and the tribunal has
committed error in deducting 50% of the income towards
the personal and living expenses of the deceased instead
of 1/4th as the deceased has six dependents and the
tribunal has committed error in not awarding any
compensation on future prospects of the deceased. The
tribunal has committed error in not awarding consortium
to each of the appellants and also under other heads they
are entitle for higher compensation.
6. Learned counsel Sri. S.K.Kayakmath, appearing
for the respondent No.2 supports the impugned Judgment,
award and submits that the tribunal has considered the
evidence on record and has come to the conclusion that
MFA No. 100911 of 2019
the appellant was earning Rs.8,000/- per month and
taking into account, his age and dependency, it has
deducted 50% towards the personal expenses and on
other heads also the tribunal has awarded the just and
proper compensation, which does not call for interference
in the present appeal.
7. We have heard the learned counsel for the
appellants, respondents and perused the memorandum of
appeal and the tribunal records.
8. The points that would arise for consideration in
this appeal are :
(i) Whether the tribunal is justified in
assessing the income of the deceased at Rs.8000/- ?
(ii) Whether the tribunal is justified in
deducting 50% towards the personal and living
expenses of the deceased ?
(iii) Whether the tribunal is justified in not
awarding compensation under the head of future
prospects ?
(iv) What order to be passed ?
9. The answer to the above points are affirmative
for the following reasons:
MFA No. 100911 of 2019
It is not in dispute that, in the road accident which
has taken place on 01.01.2017 between motorcycle
bearing registrationNo.KA-23/EC-3971 driven by the
deceased himself and a Tempo Trax Toofan bearing
registrationNo.KA-23/N-4372 driven by its driver who
came in high speed and driven in rash and negligent
manner, dashed to the motorcycle of Badaku Gundu and
as a result, he fell down and sustained grievous injuries
and subsequently succumbed to those injuries. It is also
not in dispute that the deceased was aged about 42 years
at the time of accident and all the appellants are
dependents of the deceased. The tribunal considering the
evidence on record has awarded Rs.7,42,000/-
compensation to the appellants. Keeping in mind the
above factual matrix, it is required to examine whether
assessing the income of the deceased at Rs.8,000/- is
justified. It is not in dispute that, the appellants have not
placed any material before the tribunal to come to a
conclusion on the income of the deceased. In the absence
of any evidence the tribunal has assessed the income of
MFA No. 100911 of 2019
the decease notionally at Rs.8,000/-. In our considered
view, in the absence of any evidence on record, the
tribunal ought to have relied on the chart prepared by the
Karnataka State Legal Services Authority, which is
normally followed by this Court, the tribunals and in the
Lok Adalaths for the purpose assessing the notional
income in the absence of any evidence. The accident in
question has taken place on 01.01.2017 and as per the
notional income fixed by the Karnataka State Legal
Services Authority for the year 2017 is Rs.10,250/-.
Hence, we are of the considered view that, it would be
appropriate to assess the income of the deceased at
Rs.10,250/-.
10. The contention of the learned counsel for the
appellant that, the tribunal has not awarded any
compensation under the head of future prospects. The
Hon'ble Supreme Court in the case of National
Insurance Company Limited Vs. Pranay Sethi and
others, reported in (2017) 16 SCC 680, has held that in
MFA No. 100911 of 2019
the case of death, the tribunals/Courts should award
compensation for future prospects of the deceased.
Keeping the ratio laid down in the Pranay Sethi case
referred supra, the deceased being aged about 42 years
and was self employed, we are of the view that, the
appellants are entitle for compensation under the head of
future prospects at 25% of the assessed income of the
deceased.
12. The tribunal has committed an error in
deducting 50% of the assessed income towards the
personal and living expenses of the deceased. It is
admitted that the appellant Nos.1 to 6 are the legal heirs
of the deceased and appellant No.1 is wife of the
deceased. The Hon'ble Supreme Court in the case of Sarla
Varma (Smt.) Vs. Delhi Transport Corporation and
another, reported in (2009 ACJ 1298) has held that, if
the dependents are between 4 to 6 persons, the deduction
towards the personal and living expenses of the deceased
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MFA No. 100911 of 2019
should be at 1/4th. In view of the said ratio, the deduction
should be 1/4th instead of 50%.
13. The tribunal has applied '14' multiplier which
does not call for interference. The tribunal has awarded
Rs.15,000/- towards loss of estate, Rs.15,000/- towards
funeral expenses which does not call for interference. The
tribunal has warded Rs.40,000/- towards loss of
consortium. 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 alias
Chuhru Ram and others reported in (2018) 18 SCC 130
all the appellants i.e. wife, children and aged parents who
were dependents on the deceased are entitle for
consortium at the rate of Rs.40,000/- each.
The loss of dependency would be as under:
Rs.10,250/- X 25% (future prospects) / 100 = Rs.12,813/-
minus (1/4th deduction) = Rs.9,610/- X 12 X 14 =
16,14,480/-
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MFA No. 100911 of 2019
Thus, the claimants would be entitled for modified
compensation as under:
Sl.No. Particulars Awarded by Awarded by
Tribunal this Court
1 Loss of dependency Rs.6,72,000/- Rs.16,14,480/-
2 Loss of estate Rs.15,000/- Rs.15,000/-
3 Towards funeral Rs.15,000/- Rs.15,000/-
expenses
4 Loss of consortium Rs.40,000/- Rs.2,40,000/-
Total Rs.7,42,000/- Rs.18,84,480/-
14. Therefore, the appellants/claimants are entitle
for additional compensation of Rs.11,42,480/- along with
interest at the rate of 6% per annum from the date of
filing of the petition till realization, in addition to what has
been awarded by the tribunal. The rate of interest is
accordingly modified.
15. Accordingly, we pass the following:
ORDER
(i) The appeal is allowed;
(ii) The impugned Judgment and award
dated 19.12.2017 passed in MVC
No.213/2017 by the I Additional
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MFA No. 100911 of 2019
District and Sessions Judge, Belagavi,
is modified.
(iii) The appellants/claimants are entitle for
an additional compensation of
Rs.11,42,480/- along with interest at
6% per annum from the date of filing
of the petition, till its realization, in
addition to what has been awarded by
the tribunal.
(iv) The rate of interest awarded by the
tribunal at 9% is reduced to 6% on the
total compensation amount.
(v) The Insurance company is directed to
deposit the compensation amount
within eight weeks from the date of
receipt of certified copy of this
Judgment.
(vi) Registry is directed to return the trial
Court records if any to the tribunal
along with certified copy of the
Judgment passed by this Court,
without any delay.
(vii) No order as to costs.
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MFA No. 100911 of 2019
(viii) Draw award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
Svh/-
