Karnataka High Court

Mandakini And Ors vs The Proprietor / Managing Partner And ... on 8 April, 2024

Author: H.T.Narendra Prasad

Bench: H.T.Narendra Prasad

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                                                     MFA No.203709 of 2023




                              IN THE HIGH COURT OF KARNATAKA,

                                     KALABURAGI BENCH

                            DATED THIS THE 8TH DAY OF APRIL, 2024

                                           PRESENT

                        THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
                                             AND
                            THE HON'BLE MR. JUSTICE K V ARAVIND

                        MISCL. FIRST APPEAL NO.203709 OF 2023 (MV-D)


                   BETWEEN:

                   1.   MANDAKINI
                        W/O SUBHASH KORWAR
                        AGED ABOUT 46 YEARS
                        OCCUPATION: HOUSEHOLD WORK

                   2.   AVINASH SUBHASH KORWAR
                        AGED ABOUT 26 YEARS
                        OCCUPATION: STUDENT

Digitally signed   3.   AKASH SUBHASH KORWAR
by VARSHA N             AGED ABOUT 24 YEARS
RASALKAR
Location: HIGH          OCCUPATION: STUDENT
COURT OF
KARNATAKA
                        ALL ARE R/O NO.14
                        NEELA NAGAR ASHRAM ROAD
                        VIJAYAPURA - 586 101.
                                                              ...APPELLANTS

                   (BY SRI BASAVARAJ R.MATH, ADVOCATE)

                   AND:

                   1.   THE PROPRIETOR /
                        MANAGING PARTNER
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                                     MFA No.203709 of 2023




     ARNEJA AUTO LOGISTICS
     CHANDMARI KOHIMA
     NAGALAND - 797 001.
     (OWNER OF TRAILER LORRY
     NO.NL. 01 / G.7505)

2.   THE BRANCH MANAGER
     THE NEW INDIA ASSURANCE
     COMPANY LIMITED
     GURUKUL ROAD
     HANAMASHETTI BUILDING
     VIJAYAPURA - 586 101.
                                                ...RESPONDENTS

(BY SRI UDAY P. HONGUNTIKAR, ADVOCATE FOR R2;

V/O DATED 24.11.2023, NOTICE TO R1 IS DISPENSED WITH)


      THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR

VEHICLES   ACT,   PRAYING   TO    CALL   FOR    RECORDS    AND

ENHANCED    THE   AWARD     AMOUNT       BY    MODIFYING   THE

IMPUGNED    JUDGMENT    AND      AWARD    DATED     23.06.2023

PASSED BY THE II ADDITIONAL SENIOR CIVIL JUDGE AND

M.A.C.T.-VII, VIJAYAPURA, IN M.V.C. NO.744/2019, IN THE

INTEREST OF JUSTICE AND EQUITY.


      THIS MFA COMING ON FOR ADMISSION THIS DAY

H.T.NARENDRA PRASAD J., DELIVERED THE FOLLOWING:
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                                     MFA No.203709 of 2023




                         JUDGMENT

Though this appeal is listed for admission, with the

consent of both the learned counsel, it is taken up for

disposal.

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988, has been filed by the claimants being

aggrieved by the judgment and award dated 23.06.2023

passed by the MACT-VII, Vijayapura, in MVC No.744/2019.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 05.07.2015, when the deceased-

Subhash was traveling in the car bearing Reg.No.KA-32/D-

0777, by that time, trailer-lorry bearing Reg.No.NL-01/G-

7505 came from opposite side being driven by its driver in

high speed and in rash and negligent manner, dashed to

the car resulting in the accident. By this impact,

deceased-Subhash sustained fatal injuries and died on the

spot.

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3. The claimants filed a petition under Section 166

of the Act seeking compensation for the death of the

deceased along with interest.

4. On service of summons, the respondent No.2

appeared through counsel and filed written statement in

which the averments made in the petition were denied. It

was pleaded that the petition itself is false and frivolous in

the eye of law. It was further pleaded that the accident

was due to the rash and negligent driving of the driver of

the car. The driver of the offending vehicle did not possess

valid driving licence as on the date of the accident. The

liability is subject to terms and conditions of the policy.

The age, occupation and income of the deceased are

denied. It was further pleaded that the quantum of

compensation claimed by the claimants is exorbitant.

Hence, he sought for dismissal of the petition.

5. The respondent No.1 did not appear before the

Tribunal inspite of service of notice and hence was placed

ex-parte.

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6. On the basis of the pleadings of the parties, the

Claims Tribunal framed the issues and thereafter recorded

the evidence. The claimants, in order to prove their case,

examined claimant No.1 herself as PW-1 and other two

witness as PW-2 and PW-3 and got exhibited documents

namely Ex.P1 to Ex.P.14. Respondent No.2 has not led any

evidence, but got exhibited document namely Ex.R1.

7. The Claims Tribunal, by the impugned

judgment, inter alia, held that the accident took place on

account of rash and negligent driving of the offending

vehicle by its driver, as a result of which, the deceased

sustained injuries and succumbed to the said injuries. The

Tribunal further held that the claimants are entitled to a

compensation of Rs.9,70,252/- along with interest at the

rate of 6% p.a. and directed respondent No.2/Insurance

Company to deposit the compensation amount along with

interest. Being aggrieved by the quantum of

compensation, the claimants have filed the present appeal.

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8. The learned counsel for the claimants has

raised the following contentions:

Firstly, the claimants claim that the deceased was

aged about 50 years at the time of the accident and he

was earning Rs.40,000/- per month by working as a

Manager in Jyothi Cement Spun Pipe Works, Vijayapura.

To prove the same, the claimants have produced

voucher/Ex.P12, muster roll/Ex.P13 and ledger account

copy/Ex.P14, wherein it is very clearly stated that till 31 st

March 2015 he was earning Rs.32,000/- later it has

enhanced to Rs.40,000/-. As on the date of the accident

he was earning Rs.40,000/- per month. The claimants

have also examined Manager of the said company as

PW.3. PW.3 has stated that the deceased was earning

Rs.40,000/- per month. But, the Tribunal has assessed the

income as Rs.8,000/- per month is on the lower side.

Secondly, he contended that since the deceased has

established his income, the Tribunal instead of considering

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15% of the income towards future prospects has

considered only 10%.

Thirdly, as per the judgment of the Hon'ble Supreme

Court in the case of MAGMA GENERAL INSURANCE CO.

LTD. -V- NANU RAM reported in [2018 ACJ 2782],

each of the claimants are entitled for compensation of

Rs.40,000/- under the head of 'loss of consortium'.

Lastly, considering the age and avocation of the

deceased, the overall compensation awarded by the

Tribunal is on the lower side. Hence, he prays for allowing

the appeal.

9. On the other hand, the learned counsel for the

Insurance Company has raised the following counter-

contentions:

Firstly, even though the claimants have produced the

salary vouchers, muster roll and ledger account copy, but

they have not produced salary certificate. Even PW.3 in

his evidence has admitted that he is not aware when the

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deceased was appointed as Manager and he has not seen

him and he submitted that he has not produced any ledger

of salary paid to that employee that is maintained by the

company. Since the claimants have failed to establish the

income of the deceased, the Tribunal has rightly assessed

the income of the deceased and has rightly added 10% of

the income of the deceased towards future prospects.

Lastly, on appreciation of oral and documentary

evidence and considering the age and avocation of the

deceased, the overall compensation awarded by the

Tribunal is just and reasonable. Hence, he prays for

dismissal of the appeal.

10. Heard the learned counsel for the parties and

perused the judgment and award of the Tribunal along

with original records.

11. It is not in dispute that Subhash Korwar, died in

the road traffic accident occurred on 05.07.2015 due to

rash and negligent driving of the offending vehicle lorry by

its driver.

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12. The claimants claim that deceased was working

as a Manager in the Company and he was earning

Rs.40,000/- per month. To prove their case, the claimants

have produced salary receipts as Ex.P12 for 31 st March

2015 the deceased has been paid salary of Rs.40,000/-.

The claimants have also produced salary ledger as Ex.P14,

wherein till March 2015 he has been paid Rs.32,000/-

thereafter he has been paid Rs.40,000/-. PW.3 who is

Manager of the Company has been examined. In his cross

examination he admitted that he does not know when the

deceased was appointed in their Company but he has

admitted that he was working since 25 years and he has

not seen him and he has also admitted that Subhash was

paid through the vouchers.

13. Considering the evidence of PW.3 and vouchers

that the claimants have produced to show that the

deceased was getting a salary by considering the

Ex.P12/salary voucher, Ex.P13/muster roll and

Ex.P14/ledger account copy and considering the evidence

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of PWs.1 and 3, we are of the opinion that monthly income

of the deceased assessed as Rs.32,000/- since the

deceased was aged about 50 years, to the aforesaid

income, 15% has to be added on account of future

prospects in view of the law laid down by the

Constitutional Bench of the Supreme Court in National

Insurance Co. Ltd., Vs. Pranay Sethi, reported in

(2017) 16 SCC 680. Thus, the monthly income comes to

Rs.36,800/-. Since there are three dependents, it is

appropriate to deduct 1/3rd of the income of the deceased

towards personal expenses and remaining amount has to

be taken as his contribution to the family. The deceased

was aged about 50 years at the time of the accident and

multiplier applicable to his age group is '13'. Thus, the

claimants are entitled to compensation of Rs.38,27,304/-

(Rs.24,534/- x 12 x 13) on account of 'loss of

dependency'.

14. In addition, the claimants are entitled to

compensation of Rs.15,000/- on account of 'loss of estate'

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and compensation of Rs.15,000/- on account of 'funeral

expenses'.

15. In view of the law laid down by the Supreme

Court in the case of 'MAGMA GENERAL INSURANCE'

(supra), Claimant No.1, wife of the deceased is entitled for

compensation of Rs.40,000/- under the head of 'loss of

spousal consortium', claimant Nos.2 and 3, children of the

deceased are entitled for compensation of Rs.40,000/-

each under the head of 'loss of parental consortium'.

16. Thus, the claimants are entitled to the following

compensation:

       Heads                Amount              Amount
                         awarded by the      awarded by this
                            Tribunal              Court
Loss of dependency          Rs.9,15,252/-      Rs.38,27,304/-
Loss of consortium            Rs.25,000/-
Spousal consortium                                   Rs.40,000/-
Parental consortium                                  Rs.80,000/-
Funeral expenses and           Rs.20,000/-           Rs.15,000/-
obsequies
Loss to estate                Rs.10,000/-      Rs.15,000/-
               Total        Rs.9,70252/-   Rs.39,77,304/-
       Enhancement                Rs.30,07,052/-

11. In the result, we pass the following:

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                         ORDER

(i)    The appeal is allowed in part.

(ii) The judgment of the Claims Tribunal is

modified.

(iii) The claimants are entitled to a total

compensation of Rs.39.77,304/- along with

interest at the rate of 6% per annum as

against Rs.9,70,252/- awarded by the

Tribunal.

(iv) The Insurance Company is directed to

deposit the compensation amount along with

interest @ 6% p.a. from the date of filing of

the claim petition till the date of realization,

within a period of six weeks from the date of

receipt of copy of this judgment.