Karnataka High Court
Nilam W/O Parampal Sing vs Shakil Gous Bagwan on 8 February, 2024
Author: S G Pandit
Bench: S G Pandit
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MFA No. 100124 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE K V ARAVIND
MISCELLANEOUS FIRST APPEAL NO. 100124 OF 2020 (MV-D)
BETWEEN:
1. NILAM W/O PARAMPAL SING
AGE: 31 YEARS, OCC: HOUSEHOLD WORK,
2. PRIYAL D/O PARAMPAL SING
AGE:4 YEARS, OCC:NIL
(SINCE APPELLANT NO.2 IS MINOR SHE IS REP. BY
HER MOTHER I.E., APPELLANT NO.1)
BOTH ARE R/O: 1ST CROSS, MAHAVEER NAGAR,
TQ AND DIST: BELAGAVI
...APPELLANTS
(BY SRI. VITTHAL S TELI, ADVOCATE)
AND:
1. SHAKIL GOUS BAGWAN
AGE:MAJOR, OCC:BUSINESS
R/O ZARI MASJID JAVAL,
Digitally
signed by K M
KURUNDWAD, TQ: SHIROL,
SOMASHEKAR
KM
SOMASHEKAR Date:
2024.02.13
12:36:11
+0530
DIST: KOLHAPUR, MAHARASHTRA STATE-416106.
2. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO.LTD.,
D.O. AT: MARUTI GALLI, BELAGAVI-590008.
...RESPONDENTS
(BY SRI. S.S. KOLIWAD, ADVOCATE FOR R2,
NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED 06.09.2019 PASSED
IN MVC NO.2583/2018 ON THE FILE OF THE II ADDITIONAL
DISTRICT AND SESSIONS JUDGE AND MOTOR ACCIDENT CLAIMS
TRIBUNAL, BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
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MFA No. 100124 of 2020
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
S G PANDIT, J., DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for admission, it is taken up
for final disposal with the consent of learned counsel for both
the parties.
2. The appellants/claimants are before this Court
under Section 173(1) of Motor Vehicles Act, 1988 (for short,
'Act') praying for enhancement of compensation, dissatisfied
with quantum of compensation awarded under judgment and
award dated 06.09.2019 passed in MVC No.2583/2018 on the
file of learned II Addl. District and Sessions Judge & Member,
MACT, Belagavi (for short, 'Tribunal').
3. The claimants, who are wife and minor daughter of
deceased Parampal Singh, filed a claim petition under Section
166 of the Act claiming compensation for the accidental death
of Parampal Singh that took place on 12.07.2018 involving
Tanker bearing registration No.MH-04/CU-9448 and Truck
bearing registration No.MH-10/Z-3307. It is stated that the
deceased was aged 40 years and was working as Driver,
earning Rs.20,000/- per month.
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4. On appearance, respondent No.2/Insurance
Company filed its statement of objections denying the entire
allegations made in the claim petition. It was contended that
the deceased, driver of the tanker, was not having valid and
effective driving license as on the date of the accident and the
alleged accident took place due to negligent driving of the
driver of the tanker i.e., deceased. Thus, prayed for dismissal
of the claim petition.
5. Before the Tribunal, claimant No.1-wife of the
deceased examined herself as PW1 apart from marking the
documents as Exs.P1 to P9(a). The respondents did not
examine any witness but marked insurance policy as Ex.R1
with consent. The Tribunal on appreciation of oral and
documentary evidence on record awarded a total compensation
of Rs.10,75,000/- with interest at 9% per annum from the date
of petition till realization on the following heads:
Loss of dependency Rs.9,60,000/-
Transportation of dead body Rs. 5,000/-
Loss of love & affection Rs.1,00,000/-
Funeral expenses Rs. 10,000/-
-------------------
Total Rs.10,75,000/-
-------------------
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6. While awarding the above compensation, the
Tribunal assessed notional income of the deceased at
Rs.8,000/- per month, deducted 1/3rd towards personal and
living expenses of the deceased and applied multiplier of 15
taking the age of the deceased as 40 years. The claimants not
being satisfied with the quantum of compensation awarded by
the Tribunal are before this Court praying for enhancement of
compensation.
7. Heard the learned counsel Sri.Vitthal S Teli, for the
appellants/claimants as well as learned counsel Sri.S.S.Koliwad
for the respondent/Insurance Company and perused the appeal
papers including original records.
8. Learned counsel for the appellants/claimants would
contend that the Tribunal assessed notional income of the
deceased at Rs.8,000/- per month, which is on the lower side,
since the deceased being driver of tanker was earning
Rs.20,000/- per month. He further submits that the Tribunal
committed an error in not awarding any compensation towards
future prospects. It is his submission that as held by the
Hon'ble Apex Court in the case of National Insurance
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Company Limited Vs. Pranay Sethi & others1 that wherever
the deceased was below age of 40 years, the claimants would
be entitled to addition of 40% of the assessed income towards
future prospects. Further, learned counsel would submit that
since there are two dependents, claimants would be entitled to
Rs.40,000/- each towards spousal & parental consortium
respectively as held by the Hon'ble Apex Court in the case of
Magma General Insurance Co. Ltd. Vs. Nanu Ram &
Others2. Thus, he prays for allowing the appeal.
9. Per contra, learned counsel appearing for
respondent/Insurance Company supporting the impugned
judgment and award of the Tribunal submits that in the
absence of any cogent material on record, the Tribunal
assessed notional income of the deceased at Rs.8,000/- per
month, which is just and proper and requires no interference.
He further submitted that the Tribunal committed an error in
taking the age of the deceased as 40 years, since the claimants
failed to produce any documents to prove the exact age of the
deceased. Therefore, he submits as per Ex.P6-PM report, age
2017 ACJ 2700
2018 ACJ 2782
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of the deceased has to be considered as more than 40 years
and to apply multiplier of 14 instead of 15 adopted by the
Tribunal. He further submits that compensation awarded by
the Tribunal on all heads are just and reasonable, which
requires no interference. Thus, prays for dismissal of the
appeal.
10. Having heard the learned counsel for both the
parties and on perusal of the appeal papers including the
original records, the only point that would arise for
consideration is, whether the claimants would be entitled to the
enhanced compensation?
Our answer to the above point would be in the affirmative
for the following reasons:
11. The occurrence of the accident on 12.07.2018
involving Tanker bearing registration No.MH-04/CU-9448 and
Truck bearing registration No.MH-10/Z-3307, resultant death of
Parampal Singh is not in dispute in this appeal. The claimants
are before this Court praying for enhancement of
compensation. It is the contention of the appellants that
notional income of the deceased assessed by the Tribunal at
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Rs.8,000/- per month is on the lower side and it ought to have
assessed the same on the higher side. But, no acceptable or
cogent evidence is placed on record to prove the income of the
deceased. In the absence of any material on record to establish
the avocation and earning, this Court and Lok Adalath while
settling the accidental claims of the year 2018, would normally
assess the notional income at Rs.11,750/- per month, taking
note of the chart prepared by KSLSA based on various factors
including the minimum wage fixed. Therefore, in the instant
case also, in the absence of any corroborative document to
establish the income of the deceased, we are of the opinion
that it would be just and appropriate to determine the income
of the deceased at Rs.11,750/- p.m. taking note of the income
chart prepared by KSLSA and also the minimum wage fixed.
12. It is the contention of the insurer that to prove the
age of the deceased, the claimants have not produced any
documentary evidence. Admittedly, the claimants have not
produced any document to prove the exact age of the
deceased. Ex.P6-Postmortem report would disclose that the
age of the deceased was 40 years as on the date of the
accident. Since no document is produced by the claimants to
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show that the deceased had completed the age of 40 years, in
the absence any corroborative evidence, we hold that the
deceased had not completed the age of 40 years as on the date
of the accident and benefit of doubt shall go in favour of the
claimants.
13. Further, the Tribunal erred in not awarding any
compensation towards future prospects. As held by the Hon'ble
Apex Court in the case of Pranay Sethi (supra), the claimants
would be entitled for addition of 40% of the assessed income
towards future prospects since deceased was below the age of
40 years. The Tribunal adopted multiplier of 15 and deducted
1/3rd towards personal and living expenses of the deceased
taking number of dependents as two, which according to us are
just and proper. Thus, the claimants would be entitled to
compensation on the head of loss of dependency at
Rs.19,74,000/- (Rs.11,750 (income) + 40% (future
prospects) X 12 (months) x 15 (multiplier) x 2/3 (1/3rd
deduction).
14. Further, the claimants being wife and son of the
deceased would be entitled to Rs.44,000/- each towards
spousal and parental consortium respectively as held by the
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Hon'ble Apex Court in Magma General Insurance Company
Limited (supra) including 10% escalation. Further, the
claimants would be entitled to Rs.16,500/- towards loss of
estate and Rs.16,500/- towards funeral expenses and
transportation of dead body including 10% escalation. Thus,
the claimants would be entitled for modified compensation on
the following heads:
Sl. Particulars Amount
No.
1. Loss of dependency Rs.19,74,000/-
2. Loss of estate & Funeral Rs. 33,000/-
expenses
3. Spousal & Parental Consortium Rs. 88,000/-
(Rs.40,000/- each to claimants 1
and 2)
Total Rs.20,95,000/-
15. Thus, the claimants would be entitled to total
compensation of Rs.20,95,000/- as against Rs.10,75,000/-
awarded by the Tribunal.
16. Hence, we proceed to pass the following:
ORDER
a) Appeal stands allowed in part.
b) The impugned judgment & award of the
Tribunal is modified to an extent that
claimants are entitled to total
compensation of Rs.20,95,000/- as
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against Rs.10,75,000/- awarded by the
Tribunal.
c) The enhanced compensation amount will
bear interest at the rate of 6% per annum
from the date of claim petition till date of
realization.
d) The respondent-Insurer shall deposit the
enhanced compensation amount with
accrued interest before the Tribunal within
a period of six weeks from the date of
receipt of certified copy of this judgment.
e) The apportionment, deposit and
disbursement of the enhanced
compensation shall be made as per the
award of the Tribunal.
f) Registry to transmit the TCR to the
Tribunal forthwith.
g) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
JTR
