Karnataka High Court

Sushma W/O Bhagavan Kasabe And Ors vs Shivaji Yesappa Lokande And Ors on 2 August, 2024

Author: S. Sunil Dutt Yadav

Bench: S. Sunil Dutt Yadav

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                                                      MFA No. 201076 of 2023



                              IN THE HIGH COURT OF KARNATAKA

                                    KALABURAGI BENCH

                          DATED THIS THE 2ND DAY OF AUGUST, 2024

                                          PRESENT

                        THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
                                            AND
                    THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR

                        MISC. FIRST APPEAL NO.201076 OF 2023 (MV-D)

                   BETWEEN:

                   1.   SUSHMA W/O BHAGAVAN KASABE,
                        AGE: 32 YEARS,
                        OCC: H. H. WORK.

                   2.   SAKSHI D/O BHAGAVAN KASABE,
                        AGE: 18 YEARS,
                        OCC: STUDENT.

                   3.   SUHANA D/O BHAGAVAN KASABE,
                        AGE: 16 YEARS,
                        OCC: STUDENT.
Digitally signed
by SHILPA R        4.   SUSHANT S/O BHAGAVAN KASABE,
TENIHALLI
Location: HIGH
                        AGE: 14 YEARS,
COURT OF                OCC: STUDENT.
KARNATAKA
                        MINOR APPELLANT NO.3 & 4 ARE
                        REPRESENTED BY THEIR NATURAL
                        MOTHER APPELLANT NO.1.
                        ALL ARE PERMANENT
                        R/O NANDESWAR,
                        TQ. & DIST. SOLAPUR,
                        NOW RESIDING AT GANDHI NAGAR,
                        VIJAYAPURA - 586 101.
                                                           ...APPELLANTS
                   (BY SRI KOUJALAGI CHANDRAKANT LAXMAN, ADVOCATE)
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                                   MFA No. 201076 of 2023



AND:

1.   SHIVAJI YESAPPA LOKANDE
     AGE: 42 YEARS,
     OCC: BUSINESS,
     (OWNER OF TATA ACE
     NO.MH-45/AF-1866)
     R/O A/P-GHERADI BHOSE ROAD,
     DEVAKATEWADI,
     TQ. SANGOLA,
     DIST. SOLAPUR - 413 309.

2.   THE BRANCH MANAGER
     THE TATA AIG GENERAL
     INSURANCE CO. LITD.,
     UNIT NO.2 & 3 IIND FLOOR,
     SRI.KRISHN COMPLEX,
     M. G. ROAD,
     VIJAYAPURA - 586 101.
                                           ...RESPONDENTS
(BY SRI SUBHASH MALLAPUR, ADVOCATE FOR R2;
    NOTICE TO R1 IS DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLE ACT, PRAYING TO MODIFY THE JUDGMENT
AND AWARD PASSED BY THE COURT OF III ADDL. SENIOR
CIVIL JUDGE AND MACT NO.XII, VIJAYAPUR AT: VIJAYAPUR IN
M.V.C NO.137/2020 DATED 27.11.2021 FOR SEEKING
ENHANCEMENT AND BE PLEASED TO ALLOW THE CLAIM
PETITION BY GRANTING THE RELIEF AS PRAYED FAR BY THE
APPELLANTS HEREIN IN THE INTEREST OF JUSTICE AND
EQUITY.

     THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT,
COMING     ON    FOR   PRONOUNCEMENT    THIS   DAY,
RAMACHANDRA D. HUDDAR J., DELIVERED/PRONOUNCED
THE FOLLOWING:

CORAM:    HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV
          AND
          HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
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                                         MFA No. 201076 of 2023



                        CAV JUDGMENT

(PER: HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR)

Though this appeal is at the stage of admission, with

the consent of learned counsel appearing for both the

parties, it is taken up for final disposal.

2. The judgment and award dated 27.11.2021 on

the file of the III Additional Senior Civil Judge and MACT-

XII, Vijayapur (for short 'Tribunal') is assailed by the

appellants, being the claimants in MVC No.137/2020, on

the ground that the compensation awarded by the Tribunal

is on the lower side.

3. Heard the learned counsel for the appellants

and also contesting respondent, who is the insurer of the

offending vehicle i.e., Tata Ace bearing registration

No.MH-45/AF-0866 (hereinafter referred to as 'offending

vehicle').

4. The material on record would disclose that on

01.11.2018, deceased Bhagavan @ Bhagavat S/o.

Sayappa Kasabe was proceeding on his motorcycle bearing

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registration No.MH-13/CL-4102 on the right side of the

road from Patakal to Mangalweda on Davlas - Sasarwadi

road. When the said motorcycle came near the land of

one Suryakant, the offending vehicle driven by its driver in

a high speed and in a rash and negligent manner, dashed

to the motorcycle on which the deceased was riding. He

fell down forcibly on the road. He sustained fatal injuries

on his person and succumbed to the injuries on the spot

itself. The legal heirs of the deceased filed a claim petition

before the Tribunal and the Tribunal on contest by the

respondents has passed an award, awarding total

compensation of Rs.20,04,400/- (Rupees Twenty Lakhs

Four Thousand Four Hundred only) together with interest

at the rate of 6% per annum from the date of claim

petition till realization of the entire compensation amount.

5. The respondents have taken serious contentions

in their objection statement contending that, there is a

breach of policy conditions etc. It was prayed by the

respondents to dismiss the claim petition on the ground of

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violation of the policy conditions as well as denying the

very income of the deceased during his lifetime etc.

6. The Tribunal has refused to accept the line of

defence by the insurer and proceeded to assess the

compensation payable to the claimants as under:

Sl.                                             Compensation
             Different Heads
No.                                               Amount
      Loss of consortium of                         Rs.40,000/-
 1.
      petitioner No.1

      Loss of parental consortium                   Rs.1,20,000/-
 2.
      petitioner NO.2 to 4.

      Funeral, obsequies ceremony                     Rs.15,000/-
 3.
      and conveyance

 4.   Loss of estate                                  Rs.15,000/-

 5.   Loss of dependency                           Rs.18,14,400/-

                                    Total          Rs.20,04,400/-

7. While passing the orders, the Tribunal held

that, both respondent Nos.1 and 2 are jointly and

severally held entitled for payment of compensation.

However, under the law of indemnity, respondent No.2

was directed to pay the compensation amount by applying

the principles laid down by the Hon'ble Supreme Court in

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the case of National Insurance Company Limited vs.

Pranay Sethi reported in AIR 2017 SC 5157.

8. Being aggrieved by the same, the claimants

dissatisfied with the compensation so awarded by the

Tribunal, have preferred this appeal alleging that, the

compensation so awarded by the Tribunal is on the lower

side. It is prayed by the appellants to pay the

compensation as prayed in the claim petition.

9. Heard the learned counsel for the appellants

Sri Koujalagi Chandrakant Laxman and learned counsel

Sri Subhash Mallapur for respondent No.2 - insurer of the

offending vehicle.

10. We have scrupulously perused the reasons

given by the Tribunal on issue No.3, which commence

from paragraph Nos.20 to 28 of the judgment. The

learned Tribunal while discussing issue No.3 has briefly

discussed about the income of the deceased and also has

taken up the monthly income of the deceased at

Rs.9,000/-. On considering the principles laid down by the

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Hon'ble Supreme Court in the case of Pranay Sethi

(supra), the Tribunal has awarded compensation of

Rs.20,04,400/- (Rupees Twenty Lakhs Four Thousand Four

Hundred only). On considering the grounds made out in

the appeal memo and also the evidence placed on record

by both sides, as well as monthly income being taken up

by the Tribunal, the said income so taken appears to be

incorrect in view of the chart prepared by the Karnataka

State Legal Services Authority with regard to the monthly

income. The deceased was aged about 35 years as per

the records placed on record. The date of the accident

was 01.11.2018. The Tribunal has taken monthly income

of the deceased at Rs.9,000/-. As per the chart prepared

by the Karnataka State Legal Services Authority, the

Tribunal ought to have taken monthly income at

Rs.11,750/-. As the deceased was a married person

having legal heirs being the wife and children, 1/4 th of the

monthly income is to be deducted towards his personal

expenses as per the judgment of the Hon'ble Supreme

Court in the case of Pranay Sethi (supra). Therefore,

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loss of dependency has to be calculated deducting 1/4th of

the said Rs.11,750/-. In addition to the same, the

claimants are also entitled for future prospects. Towards

personal expenses, 1/4th of his income is to be deducted

from total income. In view of the judgment of the Hon'ble

Supreme Court supra, 40% of the total monthly income

is to be awarded towards future prospects. It comes to

Rs.4,700/-. That means, the monthly income of the

deceased comes to Rs.16,450/- (Rs.11,750 + Rs.4,700).

As the deceased was aged 35 years at the time of

accident, the proper multiplier as per the judgment of the

Hon'ble Supreme Court in the case of Sarla Verma vs.

Delhi Transport Corporation reported in 2009 ACJ

1298 is 16. Thus, the claimants are entitled for

compensation of Rs.23,68,800/- (16,450x12x16x3/4)

towards loss of dependency.

11. As there are four claimants, loss of consortium

has to be calculated as per the aforesaid judgment of the

Apex Court at Rs.40,000/- to each of the claimants, which

comes to Rs.1,16,000/- (40,000x4). Because of untimely

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death of the deceased, there was a loss of estate.

Therefore, the Tribunal has rightly assessed the loss of

estate at Rs.15,000/-. Towards funeral expenses is

concerned, the Tribunal has rightly awarded Rs.15,000/-.

Thus, on full calculation of the compensation amount so

awarded by the Tribunal, the following amount of

compensation is to be awarded to the claimants under

various heads:

Sl.                                                 Compensation
                 Different Heads
No.                                                     Amount

 1.   Loss of consortium (40,000x4)                        Rs.1,60,000/-

      Funeral, obsequies ceremony                           Rs.15,000/-
 2.
      and conveyance

 3.   Loss of estate                                        Rs.15,000/-

      Loss of dependency including                     Rs.23,68,800/-
 4.   future prospects
      (16,450x12x16x3/4)

                                        Total          Rs.25,58,800/-

        Less compensation awarded                      Rs.20,04,400/-
                   by the Tribunal

             Enhanced compensation                         Rs.5,54,400/-


      12.   Thus,       the   claimants       are   held    entitled   for

enhanced compensation of Rs.5,54,400/-.                     Accordingly,
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the appeal filed by the appellants deserves to be allowed

in part. Resultantly, we pass the following: