Karnataka High Court
Rajeshwari @ Vedha And Anr vs Ramlingam K And Ors on 15 April, 2024
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
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MFA No. 200632 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 15TH 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. 200632 OF 2021 (MV-D)
BETWEEN:
1. RAJESHWARI @ VEDHA,
W/O PRASHANT HITNALLI,
AGE: 30 YEARS, OCC: HOUSE HOLD WORK.
2. ARYAN,
S/O PRASHANT HITNALLI,
AGE: 6 YEARS, M/G BY APPELLANT NO.1,
BOTH ARE R/O SHIVAYOGI NAGAR,
VIJIAYAPURA.
Digitally signed ...APPELLANTS
by VARSHA N
RASALKAR (BY SRI. SANGANAGOUDA V BIRADAR, ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA AND:
1. SHRI. RAMLINGAM K,
S/O KRISHNASWAMI NAIDU,
AGE: MAJOR, OCC: BUSINESS,
R/O 18, 45, 39, N. CHETTY PATTY,
ARUNTHATHIYAR STREET, MORUR WEST PO,
SANKARI TK, DIST. SALEM,
TAMILNADU -637 302.
2. THE BRANCH MANAGER
NATIONAL INSURANCE COMPANY LIMITED,
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MFA No. 200632 of 2021
BEHIND SIDDESHWAR TEMPLE,
VIJAYAPURA-586101.
3. SMT. RAJESHWARI,
W/O PRASHANT HITNALLI,
AGE: 32 YEARS, OCC: HOUSE HOLD WORK,
R/O C/O SHRI MALLAPPA B.HANJAGI,
TOTAD MANE, NEAR VEER BHARATHI SCHOOL,
NEAR GOUDAR LAND, SINDAGI ROAD,
INDI-586209.
4. KUMAR ARYAN,
S/O PRASHANT HITNALLI,
AGE: 6 YEARS, OCC: NIL,
R/O C/O SHRI MALLAPPA B.HANJAGI,
TOTAD MANE, NEAR VEER BHARATHI SCHOOL,
NEAR GOUDAR LAND, SINDAGI ROAD,
INDI-586209.
...RESPONDENTS
(BY SRI. MANVENDRA REDDY, ADVOCATE FOR R2;
V/O DATED 31.10.2023 NOTICE TO R1, R3 AND R4 ARE D/W)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO ALLOW THIS APPEAL AND
ENHANCE THE COMPENSATION AS CLAIMED IN THE CLAIM
PETITION BY MODIFYING THE JUDGEMENT AND AWARD DATED
09.01.2019 PASSED BY THE COURT OF I ADDITIONAL
SENIOR CIVIL JUDGE AND MEMBER, MACT NO.VI, AT
VJAYAPURA, IN M.V.C NO.198/2015, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY
K V ARAVIND J., DELIVERED THE FOLLOWING:
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MFA No. 200632 of 2021
JUDGMENT
This appeal is by the claimants against judgment and
award in MVC No.198/2015 dated 09.01.2019 on the file
of I Addl. Senior Civil Judge and MACT- VI, Vijayapur for
enhancement.
2. Petitioners being wife and minor son filed a petition
under section 166 of Motor Vehicles Act seeking
compensation due to death of Sri.Prashant Hitnalli, who
died on 29.01.2015 involving Car bearing No.KA-28/N-
3332 and Lorry bearing No.TN-52/B-1722. It is stated in
the claim petition that deceased Sri.Prashant Hitnalli was
aged 30 years, was a class- I contractor, earning
Rs.25,000/- per month from construction work and apart
from agricultural income.
3. Despite service of summons, respondent No.1 failed
to appear and was placed ex-parte. Respondent No.2
appeared through counsel and filed written statement.
Respondent No.2 denied the occurrence of the alleged
accident and contended that the accident was due to rash
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and negligent driving of the car by its driver. He
contended that both drivers were not possessing valid and
effective driving license. He alleged that the owner of the
lorry has violated policy conditions. However, he admitted
issuance of policy to the said Lorry. Further, he denied the
age, income and avocation of deceased.
4. The Tribunal on the basis of the pleadings, framed
the following issues for consideration:
I. Whether the petitioners prove that, Prashant
S/o.Suryakant Hitnalli died in the Motor Vehicle
Accident that occurred on 29.01.2015 at about
17-45 hours near Agasanal Petrol Pump on NH-13
road, on account of rash and negligent driving of
Lorry bearing Reg.No.TN-52/B-1722 by its driver
as alleged?
II. Whether the petitioners are entitled for the
compensation? If so, what is the quantum and
from whom?
III. What order or award?
5. The Tribunal awarded compensation of
Rs.99,00,752/- under the following heads.
Sl. Compensation
Different Heads
No. Amount
Loss of income due to Rs.98,30,752/-
dependency
2 Towards loss of estate Rs.15,000/-
Towards Transportation Rs.15,000/-
and
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Funeral Expenses
4 Loss of consortium Rs.40,000/-
Total Rs.99,00,752/-
6. The Tribunal while awarding the compensation,
considered the age of the deceased as 33 years, income at
Rs.6,58,310/- per annum and applied the multiplier '16'.
7. We heard Sri.Sanganagouda V Biradar, learned
counsel for the appellant and Sri.Manvendra Reddy,
learned counsel for respondent No.2. Notice to
respondents No.1, 3 and 4 is dispensed with vide order
dated 31.10.2023.
8. Learned counsel for the appellants submits that the
income considered by the Tribunal is on the lower side.
Learned counsel further submits that the deduction
towards income tax from the annual income of the
deceased is on the higher side. Learned counsel further
submits that the compensation awarded under the head
'Consortium' is contrary to the law laid down by the
Hon'ble Apex Court in the case of MAGMA GENERAL
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INSURANCE CO. LTD. -V- NANU RAM [2018 ACJ 2782], .
Thus, prays to re-asses the compensation.
9. Per contra, learned counsel for the insurer submits
that the Tribunal has rightly considered the income on the
basis of the income tax returns for the three years prior to
the date of accident and has rightly deducted income tax
at 10%. It is further submitted that the compensation
awarded under other heads is just and proper. Thus, prays
to dismiss the appeal.
10. We have considered the submissions of both
counsel, perused appeal papers and the records.
11. The death of Sri.Prashant Hitnalli due to the
accident involving Car bearing No. KA-28/N-3332 and
Lorry bearing No. TN-52/B-1722 on 29.01.2015 is not in
dispute in this appeal. The age of the deceased is
considered as 33 years as per income tax returns and
applied multiplier 16, which is also not in dispute. As per
the case of NATIONAL INSURANCE CO. LTD. -v- PRANAY
SETHI AND OTHERS [AIR 2017 SC 5157], the assessed
income is to be further added by 40%, as the age of the
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deceased is below 40 years, which has been rightly applied
by the Tribunal.
12. The issue that would remain for our
consideration is the correctness of the income of the
deceased as assessed by the Tribunal. The date of
accident is 29.01.2015. The Tribunal is justified in
considering the average income of the deceased on the
basis of the income tax returns for the assessment years
2012-13, 2013-14 and 2014-15. The Tribunal after
aggregating income for the three assessment years,
deducted tax at 10% and computed annual income of the
deceased. The deduction of tax at 10% is not correct. The
income of the individual and tax liability of the individual is
to be computed applying the slab rates as prescribed in
the Finance Act. Applying the same, the tax liability on
Rs.7,31,455/- would be Rs.35,645/-. Thus, the annual
income to be considered as Rs.6,95,810/-. Considering the
number of dependants, 1/3rd deduction shall be made
towards his personal expenses, which would work out at
Rs.4,63,873/-(Rs.6,95,810 - 1/3rd). The deceased is aged
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33 years as per income tax returns. Hence, as per the
judgment in the case of Pranay Sethi (Supra), 40% is to
be added towards future prospects, which comes to
Rs.6,49,423/-. The multiplier applicable to the age group
is 16. Thus, compensation under the head 'loss of
dependency' is re-assessed at Rs.1,03,90,768/-
(Rs.6,49,423x16).
13. The compensation awarded towards loss of
estate and funeral expenses is just and proper and is in
infirmity with the case of Pranay Sethi (Supra).
14. As per the judgment of Magma (Supra), both
the claimants would be entitled for Rs.40,000/- each
towards consortium. The first claimant being wife is
entitled for Rs.40,000/- towards spousal consortium and
the second respondent being minor son is entitled for
Rs.40,000/- towards parental consortium. Thus, the
appellants are entitled for compensation at Rs.
1,05,00,768/- as against Rs.99,00,752/- , as computed
under:
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Sl. Compensation
Different Heads
No. Awarded by
Tribunal This Court
Loss of income due Rs.98,30,752/- Rs.1,03,90,768/-
1 to
dependency
Towards loss of Rs.15,000/- Rs.15,000/-
estate
Towards Rs.15,000/- Rs.15,000/-
Transportation and
Funeral Expenses
Loss of consortium Rs.40,000/- Rs.80,000/-
(Rs.40,000/- each)
Total Rs.99,00,752/- Rs.1,05,00,768/-
ORDER
a) The appeal is allowed in part.
b) The judgment and award in MVC
No.198/2015 on the file of I Addl. Senior
Civil Judge and MACT - VI, Vijayapur, is
modified to the above extent.
c) The claimants are entitled to a total
compensation of Rs. 1,05,00,768/- as
against Rs.99,00,752/- awarded by the
Tribunal.
d) The Insurance Company is directed to
deposit the compensation amount along
with interest at 6% p.a. from the date of
filing of the claim petition till the date of
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realization, within a period of six weeks
from the date of receipt of copy of this
judgment.
e) The apportionment, deposit and release of
amount shall be made in terms of the
award of the Tribunal.
f) In view of the order dated 18.01.2024
passed by this Court, the claimants are
not entitled for interest on the enhanced
compensation for the delayed period of
349 days in filing the appeal.
g) Registry to return the records to the
Tribunal.
h) Tribunal to draw modified amount
accordingly.
No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
NJ
