Karnataka High Court
Kumar Jaghannath S/O. Prabhu @ ... vs Smt.Ningavva Laxmappa Hosmani on 14 February, 2024
Author: S G Pandit
Bench: S G Pandit
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NC: 2024:KHC-D:3449-DB
MFA No. 100145 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 14TH 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. 100145 OF 2019 (MV-D)
BETWEEN:
1. KUMAR JAGHANANTH
S/O. PRABHU @ PRABHAYYA HIREMATH
AGE: 7 YEARS, OCC:STUDENT,
2. KUMARI VEDHA
D/O. PRABHU @ PRABHAYYA HIREMATH
AGE 4 YEARS,
(APPL NO.1 AND 2 ARE MINORS,
REP BY M/G APPL NO.3)
3. SMT VIDYASHREE
W/O. PRABHU @ PRABHAYYA HIREMATH
AGE: 31 YEARS, OCC: HOUSEHOLD WORK,
4. SMT PARWATHI W/O. BASAYYA HIREMATH
AGE: 56 YEARS, OCC: HOUSEHOLD WORK,
Digitally
signed by
JAGADISH
JAGADISH T R
TR Date:
5. SRI BASAYYA S/O. SANGAYYA HIREMATH
2024.02.21
10:53:00
+0530 AGE: 71 YEARS, OCC: HOUSEHOLD WORK,
ALL ARE R/O. HUNGUND, TQ:HUNGUND,
DIST:BAGALKOT-587118.
...APPELLANTS
(BY SRI. SHIVAKUMAR S BADAWADAGI &
SMT. VAISHALI K. KALADAGI, ADVOCATES)
AND:
1. SMT.NINGAVVA LAXMAPPA HOSMANI
AGE: 57 YEARS, OCC: HOUSEHOLD WORK,
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NC: 2024:KHC-D:3449-DB
MFA No. 100145 of 2019
2. SMT LAXMI SHIVANAND HOSMANI
AGE: 37 YEARS, OCC:HOUSEHOLD WORK,
3. KUMAR VISHESHA SHIVANAND HOSMANI
AGE: 11 YEARS, OCC: STUDENT,
4. KUMARI VINANTHI SHIVANAND HOSMANI
AGE: 8 YERS, OCC: STUDENT,
(RESP NO.3 AND 4 ARE MINORS,
REP BY M/G RESP. NO.2)
ALL ARE R/O. WARD NO.3 HUNGUND,
TQ:HUNGUND, DIST:BAGALKOT-587118.
5. THE ORIENTAL INSURANCE COMPANY LIMITED
CORPORATE AND REGISTERED OFFICE,
NEW DELHI AND HAVING ITS BRANCH OFFICE
AT BUDDAR COMPLEX,
OPPOSITE RTO LOFFICE, BAGALKOT-587101.
...RESPONDENTS
(BY SRI. SANTOSHKUMAR G. RAMPUR, ADVOCATE FOR R1,
SRI. N.R. KUPPELUR, ADVOCATE FOR R5,
NOTICE TO R2 HELD SUFFICIENT,
R3 & R4 ARE MINORS R/BY R2)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED 08.01.2018
PASSED IN MVC NO.318/2016 ON THE FILE OF SENIOR CIVIL JUDGE
AND MOTOR ACCIDENT CLAIMS TRIBUNAL, HUNGUND, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
S G PANDIT, J., DELIVERED THE FOLLOWING:
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MFA No. 100145 of 2019
JUDGMENT
Though this appeal is listed for admission, with the
consent of learned counsel for the parties, it is taken up for
final disposal.
2. The claimants are in appeal praying for
enhancement of compensation, not being satisfied with the
quantum of compensation awarded under judgment and award
dated 08.01.2018 passed in MVC No.318/2016 on the file of
learned Senior Civil Judge and Member, MACT, Hungund (for
short, 'Tribunal').
3. The claimants, who are wife, two children and
parents of the deceased Prabhu Hiremath, filed a claim petition
under Section 166 of the Motor Vehicles Act, 1988 seeking
compensation for the accidental death of Prabhu Hiremath that
took place on 24.11.2014 involving Car bearing registration
No.KA-29/M-5730. It is stated that the deceased was aged 29
years as on the date of the accident and he was BAMS doctor
by profession, earning Rs.70,000/- per month.
4. On appearance, respondent No.5-Insurance
Company filed statement of objections denying the entire claim
petition averments, but admitted that the car in question was
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duly insured with it as on the dated of the accident. It was
contended that the driver of the car in question was not having
valid and effective driving license as on the date of the
accident. Thus, sought for dismissal of the claim petition.
5. Before the Tribunal, claimant No.3-wife of the
deceased examined herself as PW1 apart from marking the
documents as Exs.P1 to P26. Respondent No.5-Insurer did not
examine any witness, but marked insurance policy as Ex.R1.
The Tribunal based on the material on record awarded a total
compensation of Rs.33,68,000/- with interest at 7% per annum
from the date of petition till realization on the following heads:
Loss of dependency Rs.32,13,000/-
Conveyance Rs. 5,000/-
Funeral expenses Rs. 15,000/-
Loss of Estate Rs. 15,000/-
Loss of consortium Rs. 40,000/-
Loss of love & affection Rs. 80,000/-
-------------------
Total Rs.33,68,000/-
-------------------
6. While awarding the above compensation, the
Tribunal determined the income of deceased at Rs.15,000/- per
month, added 40% of the same towards future prospects,
applied multiplier of 17, deducted 1/4th towards personal
expenses of the deceased. The appellants/claimants are in
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appeal praying for enhancement of compensation, not being
satisfied with the quantum of compensation awarded by the
Tribunal.
7. Sri.Shivakumar S Badawadagi, learned counsel for
the appellants/claimants with vehemence contends that the
income assessed by the Tribunal at Rs.15,000/- per month is
on the lower side, since the deceased Prabhu was BAMS doctor
by profession and running clinic in the name and style "Jyoti
Clinic", earning more than Rs.70,000/- per month. He submits
that to establish the earning of the deceased, the claimants had
produced Ex.P10-Registration Certificate issued by the
competent Authority to run Ayurvedic Clinic for the period from
15.12.2010 to 14.12.2015. Therefore, he submits that the
Tribunal taking note of Ex.P10 ought to have assessed the
income of the deceased at least Rs.50,000/- per month. He
further submits that the Tribunal failed to award loss of
consortium of Rs.40,000/- each to all the claimants as held by
the Hon'ble Apex Court in the case of Magma General
Insurance Co. Ltd. Vs. Nanu Ram & Others1. Thus, learned
2018 ACJ 2782
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counsel prays for allowing the appeal by enhancing the
compensation.
8. Per contra, Sri.N.R.Kuppelur, learned counsel
appearing for respondent No.5/Insurance Company strenuously
contended that the Tribunal is justified in assessing monthly
income of the deceased at Rs.15,000/-, in the absence of any
cogent material on record to establish that the deceased was
earning Rs.70,000/- per month by his profession as BAMS
doctor. Further, learned counsel submits that the compensation
awarded on all heads are just and proper, which requires no
interference. Thus, he prays for dismissal of the appeal.
9. Having heard the learned counsel for both the
parties and on perusal of the appeal papers along with original
records, the following points would arise for our consideration
in this appeal:
a) Whether the income of the deceased
assessed by the Tribunal at Rs.15,000/-
per month is just and proper?
b) Whether the claimants would be entitled
for enhanced compensation?
10. Our answer to the above points would be in the
negative and affirmative respectively for the following reasons:
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11. The occurrence of the accident on 24.11.2014
involving Car bearing registration No.KA-29/M-5730 resultant
death of deceased Prabhu Hiremath is not in dispute in this
appeal. It is also not in dispute that the deceased had
completed his BAMS course. The claimants are in appeal
praying for enhancement of compensation.
12. It is the contention of the claimants that the
deceased was BAMS doctor by profession and earning
Rs.70,000/- per month. The claimants produced Ex.P9 to
Ex.P13, Certificates of the deceased for having completed
BAMS Course as well as Diploma in Pharmacy. Ex.P9 is the
Registration Certificate dated 1.12.2007 issued by the
Karnataka Ayurvedic & Unani Practitioners Board. Ex.P10 is the
Registration Certificate issued by the District Private Medical
Association Registration Authority, Bagalkot, to run Jyoti Clinic
at Hungund for the period from 15.12.2010 to 14.12.2015.
Ex.P11 is the Certificate issued by the Drugs Control
Department, for having completed Diploma in Pharmacy.
Ex.P12 is the Certificate issued by the Karnataka State
Pharmacy Council in favour of the deceased for having
registered as Pharmacist. Ex.P13 is the Certificate issued by the
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Para Medical Board to the deceased Prabhu for having
completed Diploma in Ophthalmic Technique. A perusal of
Ex.P9 to P13 would go to show that the deceased had
completed many courses in medical field and also had bright
future in his profession as Doctor. However, those documents
are not sufficient to come to a conclusion that the deceased
was earning more than Rs.70,000/- per month.
13. The Hon'ble Apex Court in the case of Ashvinbhai
Jayanthilal Modi Vs. Ramkaran Ramchandra Sharma2,
assessed income of MBBS student at Rs.25,000/- per month.
In the instant case, the deceased had completed BAMS course.
But the same cannot be applied in the present case, since the
deceased in the present case is not MBBS holder. BAMS course
cannot be equated with MBBS course. Both are different
streams and they would not go together. The deceased was
young aged 29 years with qualification of BAMS, would have
had a decent earning. Therefore, taking note of Ex.P9 to Ex.P13
and decision in the case of Ashvinbhai (supra) and also in the
facts and circumstances of the case, we are of the considered
view that it is just and appropriate to re-assess the income of
2014 AIR SCW 6507
NC: 2024:KHC-D:3449-DB
the deceased at Rs.25,000/- per month, which would meet the
ends of justice.
14. The Tribunal rightly added 40% of the assessed
income towards future prospects, which is just and proper,
requires no interference. There is no dispute with regard to age
of the deceased as 29 years, deduction of 1/4th towards
personal and living expenses considering five dependents and
multiplier of 17, which are proper and correct. Accordingly, the
claimants would be entitled for compensation on the head of
loss of dependency at Rs.53,55,000/- (Rs.25,000 + 40/100 x
12 x 17 x 3/4).
15. Further, the claimants would be entitled to
Rs.40,000/- each towards parental, spousal and filial
consortium as held by the Hon'ble Apex Court in Magma
General Insurance Company Limited (supra). The Tribunal
rightly awarded a sum of Rs.15,000/- towards loss of estate
and Rs.15,000/- towards funeral expenses and transportation
of dead body, which is not disturbed. 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.53,55,000/-
2. Loss of estate & Funeral Rs. 30,000/-
expenses & transportation of
dead body
3. Parental, Spousal and Filial Rs. 2,00,000/-
Consortium (Rs.40,000/- each)
Total Rs.55,85,000/-
16. Thus, the claimants would be entitled to total
compensation of Rs.55,85,000/- as against Rs.33,68,000/-
awarded by the Tribunal.
17. In the result, we proceed to pass the following:
ORDER
a) Appeal stands allowed in part.
b) The impugned judgment and award of the
Tribunal is modified holding that the
claimants are entitled to total
compensation of Rs.55,85,000/- as
against Rs.33,68,000/- 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.
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e) It is made clear that the appellants would
not be entitled any interest on the
enhanced compensation for the delayed
period of 361 days in filing the appeal.
f) The apportionment, deposit and
disbursement shall be made as per the
award of the Tribunal.
g) Registry to transmit the original records to
the Tribunal forthwith.
h) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
JTR
