Karnataka High Court
Susheela vs Anantha S Acharya on 12 January, 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MRS. JUSTICE K.S. MUDAGAL
AND
THE HON'BLE MR. JUSTICE K. V. ARAVIND
MISCELLANEOUS FIRST APPEAL No.4629/2021(MV)
BETWEEN:
1. SUSHEELA,
AGED ABOUT 47 YEARS,
W/O LATE SUBHASH,
2. SUJITH,
AGED ABOUT 22 YEARS,
3. SUCHITHRA,
AGED ABOUT 20 YEARS,
4. MASTER SUDEEP
AGED ABOUT 17 YEARS,
APPELLANT No.2 TO 4 ARE
CHILDREN OF LATE SUBHASH,
APPELLANT No.4 IS MINOR,
REP: HIS MOTHER/NEXT FRIEND
SUSHEELA.
ALL ARE RESIDING AT 3-71,
NEAR GUTTU, KADANDALE VILLAGE,
MANGALORE TALUK-575001.
...APPELLANTS
(BY SRI SWATHI G. HEGDE, ADVOCATE FOR
SRI PAVANA CHANDRA SHETTY H., ADVOCATE)
MFA No.4629/2021
2
AND:
1. ANANTHA S. ACHARYA,
AGED ABOUT 68 YEARS,
S/O SHIVAPPA ACHARYA,
R/AT POSRAL HOSAMANE,
SACHARIPETE, MUNDKUR POST AND VILLAGE,
KARKALA TALUK,
UDUPI DISTRICT-576201.
2. THE BRANCH MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
KARKALA BRANCH, P. B. NO.29,
2ND FLOOR, SUSHILA SANJIV ENCLAVE,
NEAR KARNATAKA BANK,
MARKET ROAD,
KARKALA,
UDUPI DISTRICT-576201.
...RESPONDENTS
(BY SRI P.B. RAJU, ADVOCATE FOR R2;
Notice to R1 is dispensed with
vide order dated 07.03.2022)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE
JUDGMENT AND AWARD DATED 30.11.2020 PASSED IN MVC
NO. 977/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
AMACT, KARKALA, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT ON 07.12.2023, THIS
DAY K.V. ARAVIND J., PRONOUNCED THE FOLLOWING:
MFA No.4629/2021
3
JUDGMENT
This appeal is filed challenging the judgment and
award dated 30.11.2020 in MVC No.977/2019 on the file
Senior Civil Judge and AMACT, Karkala.
2. The appellant Nos.1 to 4 are claimant Nos.1 to 4
before the Tribunal. Parties are referred to henceforth as
per their ranks before the Tribunal for convenience.
3. The only dispute raised by the claimants in this
appeal is with regard to notional income assessed by the
Tribunal and not granting escalation on the compensation
awarded under the conventional heads.
4. Brief facts:
Sri Subhash, husband of claimant No.1 and father of
claimant Nos.2 to 4, met with an accident on 21.06.2019,
at 7.30 p.m. near Shambhavi River Bridge, Mundkuru
village, Karkala Taluk, due to rash and negligent driving of
autorickshaw bearing No.KA-20-A-7349 driven by
respondent No.1. Due to accident, Subhash suffered
injuries. He was shifted to Alva's Hospital, Moodabidri. As
per the advise of medical officer, he was shifted to
Wenlock Hospital, Mangaluru. He was treated as inpatient
from 21.06.2019 till 10.08.2019. He underwent three
major surgeries however, succumbed to the injuries on
10.08.2019 at 2.30 p.m.
5. The claimants filed MVC No.977/2019 seeking
compensation of Rs.55,66,333/- alleging that accident and
death happened due to the rash and negligent driving by
respondent No.1.
Respondent No.1 owner-cum-driver of the offending
vehicle filed written statement denying the actionable
negligence on his part and alleging contributory negligence
of the deceased. He claimed that offending vehicle had a
valid insurance Policy issued by respondent No.2 and
denied his liability to pay compensation.
6. Respondent No.2-Insurer filed written statement
denying actionable negligence on the part of driver of
insured vehicle and alleged that accident occurred due to
negligence of the deceased himself. Though respondent
No.2 admitted existence of Policy, disputed liability for
want of permit, registration, fitness certificate of the
offending vehicle.
7. Claimant No.1 got examined herself as PW.1 and
marked Exs.P1 to P23 and Ex.C.1. Respondent No.1
examined himself as RW.1 and got marked Exs.R1 & R2.
No evidence was led by the insurer/respondent No.2.
8. The Tribunal on consideration of submissions and
evidence on record held that accident occurred due to
actionable negligence on the part of the driver of the
offending vehicle and determined the compensation as
under;
1 Loss of Estate Rs. 15,000/-
2 Transportation and Funeral Rs. 15,000/-
Expenses
3 Loss of consortium and Rs. 1,60,000/-
parental consortium
4 Loss of Dependency Rs. 8,91,000/-
5 Medical Expenses Rs. 4,515/-
6 Incidental Expenses Rs. 30,000/-
Total Rs.11,15,515/-
9. Smt Swathi G. Hedge, learned counsel for the
claimants submits that the date of accident is 21.06.2019.
Though income of Rs.25,000/- per month was claimed, as
no evidence was placed, Tribunal considered the notional
income at Rs.10,000/- per month. Considering the wages
and expenses, notional income should have been
considered at Rs.14,000/- per month. She further submits
that though each of the claimant was awarded a sum of
Rs.40,000/- towards loss of consortium, Rs.15,000/-
towards loss of estate and Rs.15,000/- towards funeral
expenses, escalation at 10% as laid down by the Hon'ble
Supreme Court in the case of National Insurance
Company Limited -V- Pranay Sethi & Others 1, is not
granted by the Tribunal.
10. Sri P.B.Raju, learned counsel for respondent No.2
justified the impugned award.
11. In view of the submission of both side, the issue for
our consideration is only with regard to notional income
(2017) 16 SCC 680
and escalation on conventional heads. The compensation
on other aspects is not under dispute.
12. It is not in dispute that the accident occurred on
21.06.2019 and Subhash died on 10.08.2019. The Tribunal
has considered Rs.10,000/- as notional income in the
absence of any evidence to prove the income of the
deceased. Considering the wages and cost of living
prevailing at the relevant time, this Court has consistently
considered the notional income at Rs.14,000/- per month
for the accident that occurred during 2019. The notional
income assessed by the Tribunal has to be modified to
Rs.14,000/- per month instead of Rs.10,000/- per month.
13. Though the Tribunal rightly awarded sum of
Rs.40,000/- each, Rs.15,000/- and Rs.15,000/- under
heads of loss of consortium, estate and funeral expenses
respectively, has not granted escalation at 10% as held by
the Hon'ble Supreme Court in the case of Pranay Sethi
(supra). To that extent, order of the Tribunal requires
modification. In terms of the judgment referred to supra,
sum awarded under the conventional heads of loss of
consortium, loss of estate and funeral expenses has to be
enhanced by 10%.
14. The deceased had dependant wife and three
children. Hence, 1/4th of income has to be deducted
towards his personal expenses. Therefore, his monthly
income comes to Rs.10,500/- (Rs.14,000/- 1/4th). As per
the judgment of Hon'ble Supreme Court in the case of
Pranay Sethi (supra) as the deceased was self-employed
and was aged 56 years, 10% has to be superadded to the
income towards future prospects which amounts to
Rs.1,050/-. Therefore, his monthly income for loss of
dependency comes to Rs.11,550/-. The Tribunal has
rightly applied multiplier of 9. Therefore, compensation
payable on the head of loss of dependency is
Rs.12,47,400/- (11,550x9x12).
15. If 10% is added to the consortium at Rs.40,000/-
each for four claimants, then compensation payable on the
said head would be Rs.44,000x4=Rs.1,76,000/-.
Similarly, 10% escalation on the head of to loss of estate
and funeral expenses is granted, total compensation
payable is Rs.33,000/-.
16. The Compensation awarded on the head of medical
expenses is based on the medical bills and prescription.
The same does not warrant any interference.
17. Considering the nature of injuries, period of
hospitalization a sum of Rs.30,000/- awarded by the
Tribunal on the head of incidental expenses is just and
reasonable. The same does not warrant any interference.
18. In view of the discussions in the preceding
paragraphs, the just compensation payable is as follows;
1 Loss of Estate Rs. 16,500/-
2 Transportation and Funeral Rs. 16,500/-
Expenses
3 Loss of consortium and Rs. 1,76,000/-
parental consortium
4 Loss of Dependency Rs.12,47,400/-
5 Medical Expenses Rs. 4,515/-
6 Incidental Expenses Rs. 30,000/-
Total Rs.14,90,915/-
Minus award amount Rs.11,15,515/-
Enhancement Rs. 3,75,400/-
19. For the aforesaid reasons, the appeal deserves to be
allowed in part. Hence, the following:
Order
i) The appeal is allowed in-part.
ii) The appellants/claimants are entitled to
enhanced compensation of Rs.3,75,400/-
with interest thereon at 6% p.a. from the
date of petition till its realization.
iii) Respondent No.2-insurer shall deposit
the enhanced compensation before
Tribunal within four weeks from the date
of receipt of copy of this order.
iv) The order of the Tribunal with regard to
apportionment and investment is
maintained.
v) Registry shall transmit the TCR to the
Tribunal forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
mv
