Karnataka High Court

The Divisional Manager vs Smt. Gourava W/O Fakkirappa Kalahal on 22 February, 2024

Author: S G Pandit

Bench: S G Pandit

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                                                        NC: 2024:KHC-D:4331-DB
                                                            MFA No. 101956 of 2022




                       IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                             DATED THIS THE 22ND 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. 101956 OF 2022 (MV-D)

                      BETWEEN:

                      THE DIVISIONAL MANAGER,
                      UNITED INDIA INSURANCE CO. LTD,
                      ANKOLA ARCADE OPP: DISTRICT COURT,
                      P. B. ROAD, DHARWAD. R/BY. AUTHORISED
                      AUTHORITY, REGIONAL OFFICE.
                                                                        ...APPELLANT
                      (BY SRI. S. S. JOSHI, ADVOCATE)

                      AND:

                      1.   SMT. GOURAVVA W/O. FAKKIRAPPA KALAHAL,
                           AGE: 51 YEARS, OCC: HOUSEWIFE,
                           R/O. CHIKKANARAGUND,
                           TQ: CHIKKANARAGUND, DIST: GADAG-582235,
Digitally signed by        NOW AT KAMALAPUR, DIST: DHARWAD.
CHANDRASHEKAR
LAXMAN
KATTIMANI             2.   THE M. D, V.R.L, LOGISTICS LTD,
Date: 2024.02.24
10:54:55 +0530             R/O. REGISTERED AND ADMINISTRATION OFFICE,
                           NH-4, BANGALORE ROAD, VARUR-581207,
                           TQ: HUBBALLI, DIST: DHARWAD,
                           (RC HOLDER OF LORRY BEARING
                           REGISTRATION NO. KA-25/C-9854).
                                                                   ...RESPONDENTS
                      (BY SRI. HANAMANT R. LATUR, ADVOCATE FOR R1,
                          SRI. HANUMANTHAREDDY SAHUKAR, ADVOCATE FOR R2)

                           THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173 (1) OF
                      MOTOR VEHICLES ACT, 1988, PRAYING TO SET ASIDE THE
                      JUDGMENT AND AWARD DT: 02-03-2022 PASSED BEFORE THE IV
                      ADDL. SENIOR CIVIL JUDGE AND ADDL. MACT DHARWAD IN MVC
                      500/2019 AND TO CALL FOR THE TRIBUNAL RECORDS AND HEAR
                      THE PARTIES IN THE INTEREST OF JUSTICE AND EQUITY.
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                                   NC: 2024:KHC-D:4331-DB
                                           MFA No. 101956 of 2022




     THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
K V ARAVIND, J., DELIVERED THE FOLLOWING:

                           JUDGMENT

This appeal is by the insurer against judgment and award

dated 02.03.2022 in MVC No.500/2019 on the file of IV Addl

Senior Civil Judge and Addl. MACT, Dharwad (for short,

'Tribunal') challenging the quantum of compensation awarded.

2. The petitioner being mother filed petition under

Section 166 of Motor Vehicles Act, 1988 seeking compensation

for accidental death of Sunanda that has taken place on

13.02.2019 involving motorcycle bearing No.KA-26-S/9865 and

lorry bearing No.KA-25/C-9854. It is stated that the deceased

was doing tailoring work and earning sum of Rs.12,000/- per

month. It is further stated that the deceased was aged 19

years as on the date of accident.

3. On issuance of notice, respondents appeared

through their counsels and filed objections. Respondent No.1

denying the petition averments contended that the insurer and

owner of the motorcycle are necessary parties and further

denied age, avocation and income of the deceased. Respondent

No.2 denied the age, avocation, income of the deceased and

NC: 2024:KHC-D:4331-DB

factum of accident. Contended that driver of lorry was not

holding valid and effective driving license as on the date of

accident. Further contended that the accident was due to the

negligence of rider of the motorcycle and disputed the liability

to pay compensation.

4. Before the Tribunal, petitioner examined herself as

PW1 and marked Exs.P1 to P10. Respondents did not examine

any witness, marked Ex.R1 through cross-examination of PW1.

5. The Tribunal on detailed analysis of the evidence on

record awarded compensation of Rs.25,95,996/-. The Tribunal

while awarding the compensation considered the income of the

deceased at Rs.11,500/- per month, deducted 50% of the

assessed income towards personal expenses as the deceased

was spinster and considering the age of the deceased as 19

years applied multiplier of 18.

6. Heard learned counsel Shri. S.S. Joshi, for the

appellant/Insurer, learned counsel Shri. Hanamanth R Latur for

respondent No.1 and learned counsel Shri. Hanumanthareddy

Sahukar for respondent No.2 and perused the appeal papers.

NC: 2024:KHC-D:4331-DB

7. Learned counsel for the insurer submits that the

income of the deceased assessed at Rs.11,500/- per month is

without any basis. It is further submitted that the income

assessed by the Tribunal and the compensation awarded by the

Tribunal on the other heads is on higher side. Thus, he prays

for reduction of compensation by allowing the appeal.

8. Per contra, learned counsel for the

respondent/claimant submits that the claimant claimed a sum

of Rs.12,000/- per month as income. The Tribunal committed

an error in assessing the income at Rs.11,500/- per month. It

is further submitted that as per the chart prepared by the

Karnataka State Legal Services Authority (KSLSA), the notional

income is assessed at Rs.13,250 per month and prays to assess

notional income.

9. Having heard learned counsel for the parties and on

perusal of appeal papers, the only point that arises for

consideration is "whether the compensation awarded by the

Tribunal needs reconsideration"?

10. Our answer to the above point is in the 'affirmative'

for the following reasons.

NC: 2024:KHC-D:4331-DB

11. The death of Sunanda due to accident that occurred

on 13.02.2019 involving motorcycle bearing No.KA-26-S/9865

and lorry bearing No.KA-25/C-9854 is not in dispute in this

appeal. It is not in dispute that the deceased was doing

tailoring work. The contention of the insurer that the income

assessed at Rs.11,500/- by the Tribunal is without any basis

and the same needs to be reassessed. In the absence of any

evidence to prove the avocation and income, the Court has to

assess the income considering surrounding circumstances and

the avocation of the deceased. It is not in dispute that the

deceased was doing tailoring work. The claimants claimed that

the deceased was earning Rs.12,000/- per month, in the

absence of any proof of income and avocation, the Court shall

assess the income notionally. The chart prepared by the KSLSA

for the accident of the year 2019, the notional income as

suggested in the chart is Rs.13,250/- per month. The income

of the deceased claimed in the petition is lesser than the notinal

income. Considering the above circumstances, the income

claimed by the claimants at Rs.12,000/- per moth is justified

and needs to be accepted. Accordingly, we assess the notional

income of the deceased at Rs.12,000/- per month.

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12. Considering that the deceased was unmarried, 50%

of the assessed income is deducted by the Tribunal towards

personal expenses of the deceased. The deduction is as per

Sarla Verma's case. The same is justified and same is

undisturbed. In terms of decision of the Hon'ble Apex Court in

the case of National Insurance Company Limited Vs.

Pranay Sethi & Others1, the Tribunal rightly added 40% of

the assessed income towards future prospects, which in our

view is just and proper, needs no interference. There is no

dispute with regard to the age of the deceased as 19 years and

applicable multiplier of 18. Thus, the claimant would be

entitled to modified compensation on the head of loss of

dependency as under:

Rs.12,000 + 40% x 12 x 18 x 50% = Rs.18,14,400/-

13. Further, the Tribunal rightly awarded a sum of

Rs.30,000/- on the conventional heads including loss of estate

and funeral expenses, which is just and proper. However, in

terms of Pranay Sethi's case supra, the said compensation

needs to be increased by 10% for three years. The Tribunal

has failed to award any compensation on the head of loss of

2017 (16) SCC 680

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consortium, which the claimant would be entitled to

Rs.40,000/- including 10% escalation for three years. The

compensation awarded by the Tribunal on the head of medical

expenses at Rs.3,30,396/- is just and proper as per medical

bills produced by the claimant, which is undisturbed. In all, the

claimant would be entitled to modified compensation on the

following heads:

Sl.No.                Particulars                   Amount
1.        Loss of dependency                  Rs.18,14,400/-

2. Loss of estate & Funeral expenses Rs. 33,000/-

3. Loss of consortium Rs. 44,000/-

4. Medical expenses Rs. 3,30,396/-

Total Rs.22,21,796/-

14. Thus, the claimants would be entitled to total

compensation of Rs.22,21,796/- as against Rs.25,95,996/-

awarded by the Tribunal.

15. The Tribunal while awarding compensation granted

rate of interest at 8% per annum. Taking note of the present

rate of Bank interest, we are inclined to reduce the rate of

interest on the compensation amount from 8% awarded by the

Tribunal to 6% per annum.

16. Hence, we pass the following:

NC: 2024:KHC-D:4331-DB

ORDER

a) The appeal stands allowed in part.

b) The impugned judgment and award of the Tribunal is modified to an extent that the claimant is entitled to total compensation of Rs.22,2,796/- as against Rs.25,95,996/- awarded by the Tribunal.

c) The entire compensation amount will bear interest at the rate of 6% per annum from the date of claim petition till date of realization.

d) The appellant-Insurer shall deposit the entire 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 shall be made as per the
                         award of the Tribunal.