Karnataka High Court
Smt. Bouramma vs Husen S/O. Mirasab Nadaf on 13 February, 2024
Author: S G Pandit
Bench: S G Pandit
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NC: 2024:KHC-D:3209-DB
MFA No. 101932 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 13TH 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.101932 OF 2021 (MV-D)
BETWEEN:
1. SMT. BOURAMMA W/O. SHIVASHARAN DALAWAYI,
AGE.42 YEARS, OCC. HOUSEHOLD WORK
2. SHIVASHARAN S/O JETTEPPA DALAWAYI
AGE.44 YEARS, OCC. NIL,
3. NAGESH S/O. SHIVASHARAN DALAWAYI
AGE. 17 YEARS, OCC. NIL,
(APPELLANTS NO. 3 IS MINOR
REP BY M/G APPELLANT NO. 1)
ALL ARE R/AT. HIRERUGI
TQ. INDI, (INDIA) DIST. VIJAYAPUR,
NOW R/O. SAMBRA, BELAGAVI-590001.
...APPELLANTS
(BY SRI. SIDDAPPA SAJJAN, ADVOCATE)
AND:
Digitally
signed by K M
SOMASHEKAR
KM
SOMASHEKAR Date:
2024.02.17
10:26:04
+0530
1. HUSEN S/O. MIRASAB NADAF
AGE. 47 YEARS, OCC. BUSINESS
R/O. HOUSE NO.202 ,
REVANASIDDESHWAR NAGAR
KUMATHE, SOLAPUR-413000.
DIST. SOLAPUR, MAHARASTRA.
2. THE BRANCH MANAGER
NEW INDIA ASSURANCE COMPANY LTD.,
HANAMASHETTI BUILDING
VIJAYAPUR-586101, DIST. VIAJAYAPUR.
...RESPONDENTS
(BY SRI. G.N. RAICHUR AND SRI. A.S. DESAI, ADVOCATES FOR R2,
NOTICE TO R1 DISPENSED WITH)
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MFA No. 101932 of 2021
THIS MFA IS FILED U/S.173 (1) OF MOTOR VEHICLES ACT,
AGAINST JUDGMENT & AWARD DATED 12.07.2021 PASSED IN MVC
NO.646/2019 ON THE FILE OF X ADDL. DISTRICT & SESSIONS
JUDGE AND MEMBER, ADDL. MACT, BELAGAVI, PARTLY ALLOWING
CLAIM PETITION FOR COMPENSATION & SEEKING ENHANCEMENT OF
COMPENSATION.
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 claimants are before this Court praying for
enhancement of compensation, not being satisfied with the
compensation awarded under judgment and award dated
12.07.2021 passed in MVC No.646/2019 on the file of learned X
Addl. District and Sessions Judge and Member, Addl. MACT,
Belagavi (for short, 'Tribunal').
3. The claimants, who are the parents of deceased
Bhimashankar Dalawayi, filed a claim petition under Section
166 of the Motor Vehicles Act, 1988 seeking compensation for
the accidental death of Bhimashankar Dalawayi that took place
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on 20.11.2018 involving Motorcycle bearing registration
No.MH-13/BW-1983 and another motorcycle bearing
registration No.MH-13/CY-7443. It is stated that the deceased
was aged 19 years as on the date of accident and he was
working in Petrol Bunk, getting monthly salary of Rs.15,000/-
per month.
4. On issuance of notice, respondent No.2 appeared
through its learned counsel and filed statement of objections
denying the claim petition averments. It was contended that
the offending motorcycle was not insured with
respondent/insurer and rider of offending motorcycle was not
having valid and effective driving license as on the date of the
accident. It was further contended that liability of insurance
company is subject to validity or legality of permit, driving
license, RC and terms and conditions of policy. prayed for
dismissal of the claim petition.
5. Before the Tribunal, 2nd claimant-father of the
deceased examined himself as PW1 apart from marking the
documents as Exs.P1 to P8. Respondent No.2-Insurer examined
its official as RW1 and marked documents as Ex.R1 & R2. The
Tribunal based on material evidence on record awarded total
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compensation of Rs.9,59,000/- with interest at 6% per annum
on the following heads:
Loss of Dependency Rs.8,64,000/-
Funeral expenses Rs. 15,000/-
Filial consortium Rs. 80,000/-
Total Rs.9,59,000/-
6. While awarding the above compensation, the
Tribunal assessed notional income of the deceased at
Rs.8,000/- per month, deducted 50% towards personal and
living expenses of the deceased and applied multiplier of 18.
The claimants not being satisfied with quantum of
compensation awarded by the Tribunal are before this Court
praying for enhancement of compensation.
7. Heard Sri.Siddappa Sajjan, learned counsel for the
appellants-claimants as well as Sri.G.N.Raichur, learned
counsel for the respondent-Insurance Company and perused
the appeal papers.
8. Sri.Siddapa Sajjan, learned counsel for the
appellants-claimants would submit that notional income of the
deceased assessed by Tribunal at Rs.8,000/- per month is on
the lower side, inasmuch as deceased was working in Petrol
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Bunk, getting monthly salary of Rs.15,000/- per month. He
further submitted that in the light of decision of the Hon'ble
Apex Court in National Insurance Company Limited Vs.
Pranay Sethi & Others1, the claimants would be entitled to
an addition of 40% of the assessed income towards future
prospects. It is his submission that no compensation has been
awarded on the head of loss of estate, to which the claimants
would be entitled to Rs.15,000/-. It is further submitted that
the Tribunal committed an error in not awarding compensation
of Rs.40,000/- to the father of the deceased on the head of
filial consortium, as held by the Hon'ble Apex Court in the case
of Magma General Insurance Company Ltd., Vs. Nanu
Ram and Others2. Thus, he prays for allowing the appeal.
9. Per contra, Sri.G.N.Raichur, learned counsel
appearing for the respondent-Insurance Company would
contend that in the absence of any cogent or acceptable
document to prove the avocation and income of the deceased,
the Tribunal is justified in assessing notional income of the
deceased at Rs.8,000/- per month, which is just and proper. He
AIR 2017 SC 5157
2018 ACJ 2782
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further submits that the Tribunal on appreciation of the
material on record awarded just and reasonable compensation
under various heads, which does not call for any interference at
the hands of this Court. Thus, he prays for dismissal of the
appeal.
10. Having heard the learned counsel for the parties
and on perusal of the appeal papers, the only point that would
fall for consideration in this appeal is, whether the claimants
would be entitled for enhanced compensation?
11. Our answer to the above point would be in the
affirmative for the following reasons.
12. The occurrence of accident on 20.11.2018 involving
Motorcycle bearing registration No.MH-13/BW-1983 and
another motorcycle bearing registration No.MH-13/CY-7443,
resultant death of Bhimashankar Dalawayi is not in dispute in
this appeal. It is the contention of appellants-claimants that
notional income of the deceased assessed by the Tribunal at
Rs.8,000/- per month is on the lower side. The claimants in
order to prove the avocation and earning of the deceased have
not produced any cogent or acceptable document. In the
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absence of any documentary evidence to establish the
avocation and income of the deceased, this Court and Lok
Adalath while settling the accidental claims of the year 2018,
would normally assess notional income at Rs.11,750/- per
month, taking note of the income 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 notional 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.
13. Further, the Tribunal committed an error in not
adding 40% of the assessed income towards future prospects
of the deceased. In the case of Pranay Sethi (supra), the
Hon'ble Supreme Court has held that wherever the deceased
was aged below 40 years, the claimants would be entitled for
addition of 40% of the assessed income towards future
prospects. In the instant case, the deceased was aged 19
years. Therefore, the claimants would be entitled for addition of
40% of the assessed income towards future prospects. Since
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the deceased was a bachelor, deduction of 50% taken by the
Tribunal towards personal and living expenses of the deceased
is just and proper and same is not disturbed. There is no
dispute with regard to age of the deceased i.e., 19 years.
Proper multiplier applicable to the age of the deceased is '18'.
Thus, the claimants would be entitled for compensation on the
head of loss of dependency as under:
Rs.17,76,600/- (Rs.11,750 + 40% x 12 x 18 x 1/2).
14. It is well settled law that the parents of the
deceased would be entitled to Rs.44,000/- each towards filial
consortium as held by the Hon'ble Apex Court in the case of
Magma General Insurance Co. Ltd. (supra) including 10%
escalation for three years. As held by the Hon'ble Apex Court
in the case of Pranay Sethi (supra), the claimants would be
entitled to Rs.16,500/- towards loss of estate, besides
Rs.16,500/- towards transportation of dead body and funeral
expenses including 10% escalation for three years. Thus, the
claimants would be entitled for modified compensation on the
following heads:
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Sl. No. Particulars Amount
1. Loss of dependency Rs.17,76,600/-
2. Loss of estate & Funeral Rs. 33,000/-
expenses
3. Filial consortium (Rs.44,000/- Rs. 88,000/-
each)
Total Rs.18,97,600/-
15. Thus, the claimants would be entitled to total
compensation of Rs.18,97,600/- as against Rs.9,59,000/-
awarded by the Tribunal.
16. In the result, we proceed to pass the following:
ORDER
a) The above appeal is allowed in part.
b) The impugned judgment and award of the
Tribunal is modified to an extent that the
claimants are entitled to total
compensation Rs.18,97,600/- as against
Rs.9,59,000/- 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-Insurance Company shall
deposit the enhanced compensation
amount with accrued interest before the
Tribunal within six weeks from the date of
receipt of certified copy of this judgment.
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e) Apportionment, deposit & disbursement of
the enhanced compensation shall be made
as per the award of the Tribunal.
f) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
JTR
