Karnataka High Court

Jyoti W/O Late Gangadhar And Ors vs Anand S/O Hanumanthappa And Anr on 29 February, 2024

Author: H.T.Narendra Prasad

Bench: H.T.Narendra Prasad

                                                  -1-
                                                      NC: 2024:KHC-K:1839-DB
                                                          MFA No. 200588 of 2021




                                 IN THE HIGH COURT OF KARNATAKA,

                                         KALABURAGI BENCH

                            DATED THIS THE 29TH DAY OF FEBRUARY, 2024

                                               PRESENT

                           THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
                                                 AND
                               THE HON'BLE MR. JUSTICE K V ARAVIND

                           MISCL. FIRST APPEAL NO. 200588 OF 2021 (MV-D)

                      BETWEEN:

                      1.   SMT JYOTI
                           W/O LATE GANGADHAR,
                           AGE: 41 YEARS,
                           OCC: HOUSEHOLD WORK,

                      2.   SRI HARSH PATIL
                           S/O LATE GANGADHAR,
                           AGE:15 YEARS,
                           OCC: NIL,

                      3.   SRI SHARANABASAVA
Digitally signed by
VARSHA N                   S/O LATE GANGADHAR,
RASALKAR
Location: HIGH             AGE: 11 YEARS, OCC: NIL,
COURT OF
KARNATAKA                  SINCE PETITIONERS 2 AND 3
                           ARE MINORS REPRESENTED BY
                           THEIR NATURAL MOTHER GUARDIAN
                           SMT.JYOTI PETITIONER NO.1

                      4.   SRI DEVENDRAPPAGOUDA
                           S/O HANUMANTHARAYA,
                           AGE: 75 YEARS, OCC: NIL,

                      5.   SRI VEERUPAMMA
                           W/O DEVENDRAPPAGOUDA,
                           AGE: 65 YEARS, OCC: NIL,
                            -2-
                             NC: 2024:KHC-K:1839-DB
                                  MFA No. 200588 of 2021




     ALL ARE R/O HANCHINAL,
     TQ: DEVADURGA,
     NOW RESIDING AT NIJALINGAPPA COLONY,
     RAICHUR.

                                            ...APPELLANTS
(BY SRI. SANDEEP VIJAYKUMAR, ADVOCATE)

AND:

1.   SRI ANAND S/O HANUMANTHAPPA,
     AGE: 32 YEARS, OCC.DRIVER CUM
     OWNER OF MAXI CAB BEARING NO.
     KA01/AF3186, R/O H.NO.73, 1ST MAIN,
     MUNESHWAR LAYOUT, LEGGERE,
     BENGALURU-560001.

2.   THE BRANCH MANAGER,
     UNITED INDIA INSURANCE CO. LTD.,
     NEAR CHANDRAMOULESHWAR CIRCLE,
     RAICHUR-584101

                                        ...RESPONDENTS
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R2;
    NOTICE TO R1 DISPENSED WITH)

     THIS MFA IS FILLING UNDER SECTION 173(1) OF THE
MOTOR VEHICLE ACT, PRAYING TO MODIFY THE JUDGMENT
AND AWARD DATED 02.11.2019 PASSED IN MVC NO.209/2017
BEFORE THE COURT OF MOTOR ACCIDENT CLAIMS TRIBUNAL
AT RAICHUR. AND ALLOW THIS APPEAL BY ENHANCING THE
COMPENSATION      AMOUNT    FROM   RS.41,45,000/- TO
RS.1,35,40,000/- ONLY AS CLAIMED BY THE APPELLANTS
BEFORE THE TRIBUNAL IN THE INTEREST OF JUSTICE.

     THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
K V ARAVIND J., DELIVERED THE FOLLOWING:
                                  -3-
                                   NC: 2024:KHC-K:1839-DB
                                         MFA No. 200588 of 2021




                        JUDGMENT

Though this appeal is listed for admission, with the

consent of learned counsel for both parties, this appeal is

heard for final disposal.

2. This appeal is filed by the claimant against the

judgment and award in MVC No.209/2017, dated

02.11.2019 seeking enhancement of compensation .

3. The claimants are the wife, children and parents of

deceased Gangadhar. The petitioners filed a petition under

Section 166 of Motor Vehicles Act, 1988 (in short MV Act),

claiming compensation for accidental death of deceased

Gangadhar, that occurred on 14.04.2017 involving vehicle

Nos. KA-36/N-0759 and KA-02/AF-3186. It is pleaded

that the deceased was a contractor by profession. He met

with an accident due to rash and negligent driving of

Innova car bearing No. KA-02/AF-3186.

4. There were four claim petitions arising out of the

same accident, the Tribunal clubbed all the four petitions,

recorded common evidence and passed common

judgment.

NC: 2024:KHC-K:1839-DB

5. The petitioner No.1 examined herself as PW-1 and

marked the documents as Ex.P-1 to Ex.P-240. The

representative of the insurer was examined as RW-1 and

marked document as Ex.R-1.

6. The Tribunal on consideration of the evidence

awarded compensation of Rs.41,45,000/- under various

heads as under:

     For          loss    of Rs.40,50,000/-

     dependency

     For loss of consortium     Rs. 25,000/-

     For loss of love and Rs. 25,000/-

     affection

     For loss of estate         Rs. 25,000/-

For transportation of Rs. 20,000/-

dead body and funeral

Rs.41,45,000/-

Total:

NC: 2024:KHC-K:1839-DB

7. The Tribunal has considered the income of the

deceased at Rs. 30,000/- per month and age of the

deceased as 40 years as on the date of the accident.

Applied the multiplier 15, deducted 1/4th towards personal

and living expenses.

8. Heard Sri.Sandeep Vijaykumar, learned counsel

for the appellant and Smt. Preeti Patil Melkundi, learned

counsel for the insurer.

9. Learned counsel for the appellant submits that the

Tribunal while considering the income as per income tax

returns for the assessment years 2014-15, 2015-16 and

2016-17 ought to have considered the average of three

years. The Tribunal committed an error in considering

income at Rs.30,000/- per month. It is submitted that the

compensation awarded under several heads are on the

lower side. Thus, prays to enhance the compensation.

10. Per contra, learned counsel for the insurer

submits that on comparison of the income declared in the

income tax returns for the assessment years 2014-15,

2015-16 and 2016-17, there is gradual decrease in the

NC: 2024:KHC-K:1839-DB

income of the deceased. The income declared for the

assessment year 2016-17 being proximity to the date of

the accident, the income of the deceased is to be

considered as per the income declared in the income tax

returns for the assessment year 2016-17. It is submitted

that as per the Ex.P-10 driving license, the date of birth of

the deceased is 08.11.1973 and as on the date of the

accident the deceased was 44 years. It is submitted that

the compensation awarded by the Tribunal is just. Thus

prays to dismiss the appeal.

11. We have heard learned counsel for both parties

and perused the appeal papers. The point that arises for

our consideration is

"Whether the compensation awarded by the

Tribunal needs interference?"

12. Our answer to the above point is in the

affirmative for the following reasons:

It is not in dispute that the death of the deceased

was due to the accident that occurred on 14.04.2017,

involving the offending vehicle bearing No. KA-02/AF-

NC: 2024:KHC-K:1839-DB

3186. The claimants/petitioners to prove the income of

the deceased have produced the income tax returns for

the assessment years 2014-15, 2015-16 and 2016-17.

The Tribunal assessed the income of the deceased at

Rs.30,000/- per month. It is settled position of law that

when the income tax returns of the deceased is filed, that

income tax return has to be considered as best piece of

evidence to assess income of the deceased. In the

present case the deceased has declared the income of

Rs.19,72,110/- for the assessment year 2014-15,

Rs.10,17,230/- for the assessment year 2015-16 and

Rs.3,10,410/- for the assessment year 2016-17. The

contention of the insurer is that, in view of the variation in

the income for the each year, income for the assessment

year 2016-2017 being proximity to the date of the

accident, is to be considered is not sustainable. To arrive

at the consistent/stable income of the deceased, it is

appropriate to consider the average income for the last

three assessment years. Hence, we proceed to assess the

income of the deceased considering the average income

NC: 2024:KHC-K:1839-DB

declared for the last three assessment years. Thus income

of the deceased would be as under:

Assessment Year Rs.19,72,110/-

2014-15

Assessment Year Rs.10,17,230/-

2015-16

Assessment Year Rs.03,10,410/-


             2016-17

             Average          Rs.11,00,000/-

             Deduction        Rs.02,50,000/-

              Balance         Rs.08,50,000/-

         Income Tax @ 10%     Rs.85,000/-

          Income per year     Rs.07,65,000/-

         Income per month     Rs.63,750/-

Considering the deduction towards other levels, we

assess the income of the deceased at Rs.60,000/- per

month.

NC: 2024:KHC-K:1839-DB

13. The Tribunal on the basis of postmortem report

considered the age of the deceased as 40 years. But, as

per the driving license of the deceased at Ex.P-10, his date

of birth is 08.11.1973. As per driving license age of the

deceased would be 44 years as on the date of the

accident. Age as per the postmortem report would be

considered, only when authentic proof of date of birth is

not available on record. When the driving license issued

by the statutory authority is available on record, the

Tribunal has erred in considering the age of the deceased

on the basis of postmortem report. We hold the age of

the deceased 44 years as on the date of the accident. The

Tribunal has considered the age of the deceased as 40

years and applied multiplier as 15. In view of the age of

the deceased being considered as 44 years, the multiplier

applicable is 14. The Tribunal is justified in deducting

1/4th share of the deceased income towards personal and

living expenses. The Tribunal has erred in not awarding

any compensation towards future prospectus. In view of

the judgment of Hon'ble Apex Court in National

- 10 -

NC: 2024:KHC-K:1839-DB

Insurance Co. Ltd., Vs. Pranay Sethi, (2017) 16 SCC

680, the claimants are entitled for future prospects. As

the deceased was self-employed and aged 44 years, the

assessed income is to be added by 25% towards future

prospects. Thus, the total compensation under loss of

dependency is Rs.94,50,000/- [ Rs.60,000/- (monthly

income) + Rs.15,000/- (future prospects) - Rs.18,750/-

(personal expenses)= Rs.56,250 x 12 = Rs.6,75,000/-

(annual income) x 14 = Rs.94,50,000/-]

14. As per the National Insurance Co. Ltd., Vs.

Pranay Sethi, (2017) 16 SCC 680, the claimant being

wife, children and parents are entitled for spousal

consortium, parental consortium and filial consortium at

Rs.40,000/- each. The Tribunal committed an error in not

awarding compensation under the head of consortium.

Hence, we award Rs.40,000/- to each of the claimants

towards consortium.

15. However, the claimants are entitled for

Rs.15,000/- towards loss of estate and Rs.15,000/-

- 11 -

NC: 2024:KHC-K:1839-DB

towards funeral expenses. Thus, the claimants are entitled

to the following compensation:

           Compensation under           Amount in
             different Heads              (Rs.)

          Loss of dependency            94,50,000/-

          Funeral expenses                   15,000/-

          Loss of estate                     15,000/-

          Loss of spousal,                2,00,000/-
          Parental and Filial
          consortium(40,000x5)

                           Total       96,80,000/-

16. In the result, the following: