Karnataka High Court
Shivanand And Ors vs Shivkumar And Ors on 3 July, 2024
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MFA No. 201901 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 3 RD DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE UMESH M ADIGA
MISC. FIRST APPEAL NO.201901 OF 2023 (MV-D)
BETWEEN:
1. SHIVANAND S/O RAMKRISHNA MANAKAR
AGE: 62 YEARS, OCC: BUSINESS,
2. ARATI W/O KISHOR BADAWE
AGE: 34 YEARS, OCC: HOUSEHOLD,
3. POOJA W/O AJAY GHATTE
Digitally signed AGE: 31 YEARS, OCC: HOUSEHOLD,
by KHAJAAMEEN
L MALAGHAN
4. OMKARESHWAR S/O SHIVANAND MANAKAR
Location: HIGH
COURT OF AGE: 28 YEARS, OCC: STUDENT
KARNATAKA
ALL ARE R/O. BHAVASAR NAGAR,
DURGA JAIL ROAD,
VIJAYAPURA
...APPELLANTS
(BY SRI SANGANAGOUDA V. BIRADAR, ADVOCATE)
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MFA No. 201901 of 2023
AND:
1. SHIVKUMAR S/O NAGNATH HONRAO
AGE: 46 YEARS, OCC: BUSINESS,
R/O. FLAT NO.E10, KAKADE TERRACE, NDA ROAD,
NEAR GANAPATI MATHA WARJE MALWADI,
PUNE MAHARASHTRA-411058.
2. SIDDIVINAYAK S/O YASHWANTRAO CHANDRACHUD
S.NO.34, FLAT NO.31, 3RD FLOOR, INGALE EMPIRE,
NEAR BHAIRAVANATH MANDIR NARHE,
PUNE, MAHARASHTRA-411041.
3. THE BRANCH MANAGER
THE NEW INDIA ASSURANCE CO. LTD.,
HANAMASHETTI BUILDING, GURUKUL ROAD,
VIJAYAPURA-586101.
...RESPONDENTS
(BY SRI SUDARSHAN M., ADVOCATE FOR R3;
VIDE ORDER DATED 06.07.2023 NOTICE TO R1 AND R2 IS,
DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173 (1) OF M.V.
ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD
PASSED IN MVC.NO.1065/2019 DATED 19.01.2022 PASSED BY
THE II ADDITIONAL SENIOR CIVIL JUDGE AND MOTOR
ACCIDENT CLAIMS TRIBUNAL NO.VII AT VIJAYAPUR AND
ALLOW THIS APPEAL AND ENHANCE THE COMPENSATION AS
CLAIMED IN THE CLAIM PETITION
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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MFA No. 201901 of 2023
JUDGMENT
This appeal is by the claimants in MVC.No.1065/2019
on the file of the II Additional Senior Civil Judge and
MACT-VII, at Vijayapura (hereinafter for short referred to
as 'Tribunal') against judgment and award passed in the
said case dated 19.01.2022, claiming for enhancement of
compensation.
02. The parties will be referred to as per their ranks
before the Tribunal for sake of convenience.
03. The brief facts of the case are that on
25.05.2019 the deceased - Smt. Suvarna was traveling in
the Car bearing Reg.No.MH-12-ET-0709. The driver of the
said car was driving the said vehicle in a rash and
negligent manner; at Hagalur village. He dashed the car
against the culvert of the bridge, due to the said impact
the deceased - Smt. Suvarna sustained fatal injuries,
while undergoing treatment, she succumbed to the
injuries.
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04. It is further case of the claimants that the
deceased was aged 50 years at the time of accident, she
was Tailor and earning Rs.20,000/- per month and income
contributing to the family. The claimants were depending
upon her income. With these reasons prayed to award the
compensation of Rs.11,75,000/-.
05. The respondents No.1 and 2 accepted the facts
of accident. They further contended that the said vehicle
was insured with respondent No.3. The respondent No.3 is
liable to pay the compensation and prayed to dismiss the
petition against them.
06. The respondent No.3 has denied the contents of
the claim petition and it has further contended that its
liability is restricted to terms and conditions of the policy
of insurance. The deceased was traveling as a gratuitous
passenger in a private car. Therefore, the respondent No.3
is not liable to indemnify the owner of the vehicle and
prayed to dismiss the petition.
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07. From the rival contentions of both the parties,
the Tribunal had framed the necessary issues for
determination.
08. The claimants to prove their case examined
PW.1 and got marked Ex.P.1 to Ex.P.7. The respondents
examined RW.1 and RW.2 and got marked Ex.R.1 to
Ex.R.4.
09. The Tribunal after hearing both the parties and
appreciating the evidence available on record had awarded
the following amount of compensation:-
Sl. Heads of Compensation Amount
No. (in Rs.)
01. Loss of income due to 5,94,000/-
dependency
02. Loss of spousal consortium 1,60,000/-
03. Loss of Estate 15,000/-
04. Transportation and Funeral 15,000/-
Expenses
Total 7,84,000/-
10. The learned counsel for the claimants submits
that the Tribunal has not considered the income of the
deceased properly. The claimants are husband and
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children of the deceased. They are all majors. Only on that
ground, the Tribunal deducted 50% income towards
personal expenses of the deceased, which is not in
accordance with the law laid down by the Hon'ble Apex
Court n the cases of National Insurance Company
Limited vs. Pranay Shethi and others 1 and Sarla
Verma (Smt.) and others vs. Delhi Transport
Corporation and another'2. The Tribunal ought to have
deducted 1/4th of the income towards personal expenses.
The learned counsel also submitted that the amount of
compensation awarded under other heads by the Tribunal
is on lower side. Therefore, prayed to enhance the amount
of compensation.
11. The learned counsel for the respondent No.3 -
insurance company supported the impugned judgment and
prayed for dismissal of the appeal with costs.
(2017) 16 SCC 680
(2009) 6 SCC 121
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12. The following question arises for my
determination :-
"Whether the claimants are entitled for the
enhancement of the compensation.?"
13. The fact of accident and the death of Smt.
Suvarna due to vehicle accident are not in dispute. The
Tribunal has considered the age of the deceased as 55
years and applied multiplier at 11. The Tribunal did not
consider the future prospects of the deceased. It is the
main grievance of the learned counsel for the claimants.
The income of the deceased was taken as Rs.9,000/- per
month. The claimants have contended that the deceased
was earning Rs.20,000/ per month. Since, there was no
reliable material to accept the same. The Tribunal had
rejected the said income. As per the chart of notional
income prepared by the Karnataka Legal Services
Authority, the income of victim of an accident of the year
2019, is Rs.13,250/- and it could be applied to the facts of
the present case.
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14. The deceased died at the age of 55 years.
Therefore, as held by the Hon'ble Apex Court in the case
of Pranaya Shethi (supra) 10% of income could be
added towards future prospects. The deceased was a
married lady having husband and children. Therefore, as
rightly submitted by the learned counsel for the claimants
and as held by the Hon'ble Apex Court in the case of Sarla
Varma (supra) and Pranay Shethi (supra), 1/3rd of the
income needs to be deducted towards personal expenses.
The claimants No.2 to 4 are married daughters and major
son. They might not be fully dependent upon her. Hence,
1/3rd of her income has to be deduced towards personal
expenses. It is not in dispute that multiplier applicable is
11. On the basis of the above said figures, the
compensation under the head of loss of dependency is
assessed.
15. It is not in dispute that the amount of
compensation awarded by the Tribunal in respect of other
heads is just and proper and does not call for any
interference. For the above said discussion the following
amount of compensation is recalculated:-
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Sl. Heads of Compensation Amount
No. (in Rs.)
01. Loss of Dependency 12,82,600/-
(Rs.13,250 x 10% x 1/3 x 12 x
11)
02. Loss of consortium 1,60,000/-
03. Loss of Estate 15,000/-
04. Funeral Expenses 15,000/-
Total 14,72,600/-
Award by Tribunal 07,84,000
Enhanced 6,88,600
16. The claimants are entitled for enhancement of
Rs.6,88,600/- along with interest at the rate of 6% per
annum on the enhanced compensation amount.
17. The learned counsel for the respondent No.3 -
insurance company has relied upon the judgment of the
Hon'ble Apex Court in Civil Appeal No.2023 (arising
out of SLP. (Civil) No.7805/2022), in the case of The
New India Assurance Company Limited vs. Anand
Pal and others. The facts of the present case are totally
different from that case. In the above referred case, the
claimants were the brothers of the deceased, who were
class-II heirs and they were not directly depending upon
the earnings of the deceased. On the contrary, in the
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present case, the wife and children of the deceased are
the claimants. Therefore, the law laid down in the above
said case is not applicable to the facts of the present case.
18. For the above said reasons, I answered
question No.1 partly in the affirmative and proceed to pass
the following;
ORDER
i. The appeal is allowed in part.
ii. The impugned judgment and award passed by the
II Additional Senior Civil Judge and Member,
MACT-VII, Vijayapura in MVC.No.1065/2019 dated
19.01.2022, is modified.
A) The claimants are entitled for enhanced
compensation of Rs.6,88,600/- with interest
on the enhanced amount of compensation at
the rate of 6% per annum from the date of
petition till its realization.
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iii. The respondent No.3 - insurance company shall
deposit the said amount with interest within a
period of 02 months from the date of receipt of
copy of this order.
iv. The order pertaining to apportionment, deposit
and release etc., passed by the Tribunal is not
disturbed.
The registry is directed to send back the Trial Court
records along with copy of this judgment.
Sd/-
JUDGE
KJJ
CT:PK
