Karnataka High Court
Ramchandra S/O Tanaji vs Brian D Souza, St . John Wada Marra on 10 January, 2024
Author: S G Pandit
Bench: S G Pandit
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NC: 2024:KHC-D:540-DB
MFA No. 102102 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 10TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE K V ARAVIND
MISCELLANEOUS FIRST APPEAL NO. 102102 OF 2019 (MV-D)
BETWEEN:
1. RAMACHANDRA S/O. TANAJI @ MAYAJI GAWAS,
AGE: 50 YEARS, OCC: NIL.
2. ROSHANA W/O. RAMACHANDRA GAWAS,
AGE: 43 YEARS, OCC: HOUSEHOLD WORK.
3. ROHINI D/O. RAMACHANDRA GAWAS,
AGE: 21 YEARS, OCC: STUDENT.
4. MAIBA W/O. GOVIND GAWAS,
AGE: 70 YEARS, OCC: HOUSEHOLD WORK,
ALL ARE R/O. BACHI VILLAGE,
TQ & DIST: BELAGAVI-591128.
...APPELLANTS
(BY SRI. YASH R. NADKARNI, ADVOCATE FOR
SRI. VITTHAL S. TELI, ADVOCATE)
Digitally signed by
CHANDRASHEKAR
CHANDRASHEKAR LAXMAN
LAXMAN KATTIMANI
KATTIMANI
Date: 2024.01.22
17:21:37 +0530
AND:
1. BRIAN 'D' SOUZA, ST. JOHN WADA MARRA,
AGE: 37 YEARS, OCC: BUSINESS,
R/O. PILERNE, REIS MAGOAS (P.O),
MAPUSA, NORTH GOA-403114.
2. THE DIVISIONAL MANAGER,
NATIONAL INSURANCE CO. LTD,
HAVING ITS DIVISIONAL OFFICE AT,
1ST FLOOR, PRABHU BUILDING , 1732,
RAMDEV GALLLI, BELAGAVI-590001.
...RESPONDENTS
(BY SRI. RAJESH B. RAJANAL, ADVOCATE FOR RESPONDENT NO.2,
NOTICE TO RESPONDENT NO.1 DISPSENSED WITH)
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NC: 2024:KHC-D:540-DB
MFA No. 102102 of 2019
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLE ACT, PRAYING TO THE JUDGMENT AND AWARD DATED
21.07.2018 IN MVC NO. 1876/2017 PASSED BY THE XI ADDL.
DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN
AWARDING THE COMPENSATION OF RS. 14,73,000/- AND INTEREST
AT RATE OF 9% FROM THE DATE OF PETITION AND MAY BE KINDLY
MODIFIED BY ENHANCING TO AS PRAYED FOR WITH 18% INTEREST
IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
K V ARAVIND, J., DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for admission, it is taken
up for final disposal, with the consent of the learned
counsel for both the parties.
2. The appellants-claimants are before this Court
dissatisfied with the quantum of compensation awarded
under judgment and award dated 21.07.2018 in MVC
No.1876/2017 on the file of XI Additional District and
Sessions Judge and Addl. MACT, Belagavi (for short,
"Tribunal"), praying for enhancement of compensation.
3. The claimants, are the father, mother, sister
and grand-mother of the deceased Rohit. The claimants
filed claim petition under Section 166 of the Motor Vehicles
Act, 1988 seeking compensation for the accidental death
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of Rohit that occurred on 08.07.2017 involving motor cycle
bearing No.MH-07/Z-1218 and Tavera Neo Car bearing
No.GA-03/T-5799. The claimants have stated that the
deceased was driving Taxi and was aged 23 years, earning
a sum of Rs.20,000/- per month as salary and Rs.200/-
per day as batta.
4. On issuance of notice, respondent No.2/insurer
appeared through its counsel and filed objections. Though
notice was served on respondent No.1-owner of Tavera
Neo Car, remained absent and placed ex-parte. The
respondent No.2 in its objection denying the case of the
petitioner contended that deceased has no driving license,
accident occurred due to negligence of the deceased. On
the above submissions prayed for dismissal of the claim
petition.
5. The claimant No.2-mother of the deceased
examined herself as PW-1 and got marked as Exs.P1 to
P6. The respondent No.2 has not led evidence. However,
got marked as Ex.R-1/insurance policy. The Tribunal based
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on material evidence on record awarded total
compensation of Rs.14,73,000/- with a simple interest at
9% per annum on the following heads.
Sl.No. Heads of Compensation Amount
1. Towards loss of dependency 9,72,000.00
Towards loss of future
2. 4,86,000.00
prospects
3. Towards funeral expenses 15,000.00
Total 14,73,000.00
6. While awarding the above compensation, the
Tribunal assessed the notional income of the deceased at
Rs.9,000/- per month, deducted 50% of the same towards
personal and living expenses as the deceased was
bachelor and applied multiplier of '18', considering the age
of the deceased as 23. The claimants not being satisfied
with the quantum of compensation awarded by the
Tribunal are before this Court praying for enhancement of
compensation.
7. Heard learned counsel Shri.Yash R.Nadkarni for
Shri. Vitthal S. Teli for the appellants-claimants and Shri.
Rajesh B. Rajanal, learned counsel for respondent No.2-
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Insurance Company and perused the appeal papers along
with original records.
8. Learned counsel for the appellants would
contend that the Tribunal committed an error in assessing
notional income of the deceased at Rs.9,000/- per month
without considering that the deceased was possessing
valid driving license and working as a driver and earning
Rs.20,000/- per month as salary and Rs.200/- per day as
batta. Learned counsel contends that the deceased was
only bread earning member of the family. Learned counsel
further submits that the compensation awarded under
other conventional heads is also on the lower side. Thus, it
is prayed to allow the appeal and to enhance the
compensation.
9. Per contra, Shri. Rajesh B. Rajanal, learned
counsel for respondent No.2-Insurance Company would
submit that the compensation awarded by the Tribunal is
just compensation, which needs no interference. Learned
counsel further submits that in the absence of any
NC: 2024:KHC-D:540-DB
evidence regarding income of the deceased, notional
income at Rs.9,000/- per month has been rightly assessed
by the Tribunal. He further submits that the deceased was
23 years as on the date of the accident. His date of birth is
14.06.1994. Date of issue of driving license for Light Motor
Vehicle is on 22.09.2014. He submits that within a period
of 3 years of the license, in the absence of any evidence, it
cannot be accepted that the deceased was driving Taxi. It
is further submitted that to drive Taxi, no badge has been
issued by the competent authority. Therefore, submits
that the compensation awarded by the Tribunal is justified.
10. Having heard the learned counsel for the parties
and on perusal of the appeal papers along with original
records, the point that would fall for consideration in this
appeal is as under:
i. Whether the Tribunal is justified in
assessing notional income of the
deceased at Rs.9,000/- per month.
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11. Answer to the above point would be 'in the
negative' for the following reasons.
12. The accident which occurred on 08.07.2017
involving motor cycle bearing No.MH-07/Z-1218 and
Tavera Neo Car bearing No.GA-03/T-5799 and death of
Shri. Rohit son of 1st and 2nd claimants due to road
accident is not in dispute. The liability to pay
compensation by the insurer is also not under dispute in
this appeal. The appellants are before this Court praying
for enhancement of compensation.
13. The Tribunal committed grave error in
assessing the income of the deceased notionally at
Rs.9,000/- per month. The appellants have placed driving
license to drive Light Motor Vehicle. The PW1-mother of
the deceased in her evidence has pleaded that deceased
was aged 23 years, working as driver, earning salary of
Rs.20,000/- per month and Rs.200/- per day as batta. The
respondent No.2 in cross-examination has not elicited any
evidence to disprove the contention that the deceased was
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driver and driving taxi and earning 20,000/- per month
and Rs.200/- per day as batta. Considering the notional
income determined by the Karnataka Legal Services
Authority at 10,250/- per month for the accident during
2017 and also considering the deceased possessing the
valid driving license to drive Light Motor Vehicle (LMV) and
also the prevailing average earning of the drivers driving
LMV, we deem it just and proper to assess income of the
deceased at Rs.12,250/- per month.
14. The Tribunal is justified in deducting 50% of the
assessed income towards personal expenses of the
deceased considering that the deceased was a bachelor in
view of law laid down by the Hon'ble Apex Court in the
case of Sarla Verma. Considering the age of the
deceased and in light of decision of the Hon'ble Apex Court
in the case of National Insurance Company Limited
Vs. Pranay Sethi & others1, the claimants are entitled to
addition of 40% of the assessed income towards future
2017 ACJ 2700
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prospects instead of 50% awarded by the tribunal. There
is no dispute with regard to the age of the deceased as 23
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.12,250 + 40% x 12 x 18 x 1/2 = Rs.18,52,200/-
15. The Tribunal committed an error in not
awarding compensation towards loss of estate and loss of
consortium. In terms of the decision of the Hon'ble Apex
Court in the case of Pranay Sethi, the claimants would be
entitled to a sum of Rs.15000/- towards loss of estate and
Rs.15,000/- on the head of funeral expenses. In terms of
decision of Hon'ble Apex Court in the case of Magma
General Insurance Company Limited Vs. Nanu Ram &
Others2, 1st and 2nd claimant-parents of the deceased
would be entitled to a sum of Rs.40,000/- each on the
head of filial consortium.
2018 ACJ 2782
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16. Thus the claimants would be entitled for
modified compensation under following heads:
Sl.
Heads of Compensation Amount
No.
1. Towards loss of dependency 18,52,200.00
2. Filial consortium (40,000/- x 2) 80,000.00
3. Loss of estate 15,000.00
4. Towards funeral expenses 15,000.00
Total 19,62,200.00
Amount awarded by the tribunal 14,73,000.00
Enhancement 4,89,200.00
Thus claimants would be entitled to total
compensation of Rs.19,62,200/- as against Rs.14,73,000/-
awarded by the Tribunal.
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 of Rs.19,62,200/- as
against Rs.14,73,000/- awarded by the
Tribunal.
c) The enhanced compensation amount of
Rs.4,89,200/- will bear interest at the
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NC: 2024:KHC-D:540-DB
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.
e) Apportionment, deposit and
disbursement of the enhanced
compensation amount shall be made as
per the award of the Tribunal.
f) Registry to transmit the records to the
Tribunal forthwith.
g) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
RKM
