Karnataka High Court
Savita W/O Sadashiv Hatakar vs Dadaso S/O Bhivaji Bhusnar on 30 July, 2024
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
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MFA No.100125 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 30TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE KRISHNA S.DIXIT
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO.100125 OF 2020 (MV-D)
BETWEEN:
1. SAVITA,
W/O SADASHIV HATAKAR,
AGE: 32 YEARS, OCC: HOUSEHOLD,
R/O: H.NO.42, 2ND CROSS,
MAHAVEER NAGAR,
UDYAMBAG,
BELAGAVI-590008.
2. SANOJ,
Digitally signed S/O SADASHIV HATAKAR,
by JAGADISH T R
Location: High AGE: 11 YEARS, OCC: STUDENT,
Court of
Karnataka R/O: H.NO.42, 2ND CROSS,
Dharwad Bench MAHAVEER NAGAR, UDYAMBAG,
BELAGAVI-590008.
3. SANVI,
D/O SADASHIV HATAKAR
AGE: 9 YEARS, OCC: STUDENT,
R/O: H.NO.42, 2ND CROSS,
MAHAVEER NAGAR, UDYAMBAG,
BELAGAVI-590008.
(SINCE APPELLANT NO.2 & 3 ARE
MINORS, THEY ARE REP. BY THEIR MOTHER
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MFA No.100125 of 2020
I.E. APPELLANT NO.1)
4. SHANTA, W/O YASHWANT HATAKAR
AGE: 76 YEARS, OCC: HOUSEHOLD,
R/O: H.NO.42, 2ND CROSS,
MAHAVEER NAGAR, UDYAMBAG,
BELAGAVI-590008.
...APPELLANTS
(BY SRI. YASH R. NADKANI, ADVOCATE FOR SRI. VITTHAL S. TELI,
ADVOCATE)
AND:
1. DADASO, S/O BHIVAJI BHUSNAR,
AGE: MAJOR, OCC: BUSINESS,
R/O: A/P: HATKAR MANGEWADI,
TQ: SANGOLA, DIST: SOLAPUR,
MAHARASHTRA STATE-413307.
2. THE DIVISIONAL MANAGER,
NEW INDIA ASSURANCE CO.LTD.,
HAVING ITS DIVISIONAL OFFICE
AT 3933/B2, MOODALAGI BUILDING,
2ND FLOOR, CLUB ROAD,
BELAGAVI-590008.
...RESPONDENTS
(BY SRI. SUBHASH J. BADDI, ADVOCATE FOR R2)
(NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED 17.08.2019
PASSED IN MVC NO.1524/2018 ON THE FILE OF THE I
ADDITIONAL DISTRICT JUDGE AND MOTOR ACCIDENT CLAIMS
TRIBUNAL-II, BELAGAVI, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
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MFA No.100125 of 2020
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
VIJAYKUMAR A.PATIL, J., DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE KRISHNA S.DIXIT
AND
HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL
ORAL JUDGMENT
(PER: HON'BLE VIJAYKUMAR A.PATIL)
Though this appeal is listed for admission, with the
consent of learned counsel for the parties, it is taken up for
final disposal.
2. This appeal is filed by the claimants seeking
enhancement of compensation being aggrieved by
compensation awarded under the judgment and award,
dated 17.08.2019, in M.V.C. No.1524/2018 passed by the I
Additional District Judge and Motor Accident Claims
Tribunal-II, Belagavi, (for short, 'Tribunal').
3. Brief facts of the case leading to filing of this
appeal are:
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(a) On 18.04.2018, one Sri. Sadashiv, along with his
brother, was proceeding on a motorcycle bearing
registration No.MH-10/CS-8564 from Jath to
Kumbhari; the deceased was riding the said
motorcycle at a moderate speed and, at that time,
another motorcycle bearing registration No.MH-45/AG-
1619 came from opposite direction, dashed to the
motorcycle of the deceased and caused the accident.
Due to the impact, the said Sadashiv fell on the road
and sustained fatal injuries. Thereafter, said Sadashiv
was shifted to hospital and despite treatment,
Sadashiv succumbed to the injuries. The wife,
children and mother of the deceased Sadashiv filed
claim petition seeking compensation for the death of
Sadashiv. They claimed that the deceased was aged
36 years, he was working as a crane driver earning
Rs.20,000/- per month and also he was doing
agriculture work thereby earning more than
Rs.2,00,000/- per annum.
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(b) On issuance of notice, Respondents No.1 and 2
appeared through their counsel and filed their written
statement. Respondent No.2-insurance company, in its
written statement, denied the claim petition
averments and contended that, two vehicles were
involved in the accident, and since the owners and
insurers of other motorcycle were not made parties,
the claim petition was bad for non-joinder of parties.
Respondent No.2-insurance company further
submitted that its liability was subject to terms and
condition, and limitations of. Hence, it sought for
dismissal of the claim petition.
(c) In support of their claim, claimant No.1 - wife of the
deceased Sadashiv, got examined herself as P.W.1,
and one Beeru Saragar, the employer of the deceased,
was examined as P.W.2, and got marked the
documents as Ex.P.1 to P.16. No witness was
examined on behalf of the respondents. However,
copy of the insurance policy was got marked as
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Ex.R.1. The Tribunal on scrutiny of entire material
available on record, allowed the claim petition in part
and awarded total compensation of Rs.14,76,300/-
with interest at 9% per annum from the date of
petition till realization, and directed Respondent No.2-
insurance company to deposit the amount within 30
days.
4. The claimants being aggrieved by the quantum
of compensation awarded by the Tribunal are before this
Court in this appeal.
5. Heard Sri. Vitthal S. Teli, learned counsel for the
appellants/claimants, and Sri. Subhash J. Baddi, learned
counsel for the respondent No.2-insurance company.
Perused the material on record.
6. Learned counsel for the appellants submits that
the Tribunal committed a grave error in assessing the
income of the deceased at Rs.8,500/- per month, which is
contrary to the evidence available on record. He submits
that the deceased was working as a crane driver and
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drawing a sum of Rs.20,000/- per month as is evident from
the salary certificate at Ex.P.11 and driving licence at
Ex.P.19. He submits that, the claimants, in support of their
claim, have examined the employer of the deceased as
P.W.2, who has also supported the claim of the claimants
regarding avocation and income of the deceased. Learned
counsel inviting the attention of this Court to the
Notification No.KAE 18 LMW, dated 30.12.2017, submits
that the income of the deceased is required to be assessed
at Rs.14,948.90/- per month based on the minimum wages
fixed under the said notification.
7. Learned counsel for the appellants submitted
that the Tribunal has not awarded any compensation under
the head 'future prospects' and in view of the decision of
the Hon'ble Apex Court in the case of National Insurance
Company Limited Vs. Pranay Sethi & Others1 as the
deceased was aged about 36 years, the claimants are
entitled for addition of 40% of the assessed income
(2017) 16 SCC 680
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towards 'future prospects'. It is submitted that the Tribunal
has not awarded proper compensation on the conventional
heads. Therefore, he seeks for modification of the award
by allowing the appeal and enhancing the compensation.
8. Per Contra Sri. Subhash J.Baddi the learned
counsel for Respondent No.2-insurance company supports
the impugned judgement and award of the Tribunal and
submits that the claimants have failed to establish the
income of the deceased before the Tribunal by producing
cogent and acceptable evidence, and hence the Tribunal
has rightly assessed the income of the deceased at
Rs.8,500/- per month and seeks to maintain the same. He
submits that the notification, which is relied in this appeal
for assessing the income for the deceased on the basis of
the minimum wages fixed under the said notification, was
not placed before the Tribunal and hence, considering the
same would not arise in this appeal. He further submits
that though the claimants are entitled for compensation
towards future prospects, however there cannot be grant
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of any interest on the said component in view of the
decision of a Coordinate Bench of this Court Chandrakala
and another vs. Dilipkumar & Another2. Therefore,
learned counsel for the insurance company prays to
dismiss the appeal.
9. We have heard the learned counsel for the
appellants/claimants and the learned counsel for
Respondent No.2-insurance company. Perused the material
available on record.
10. It is not in dispute that in a road traffic accident
that took place on 18.04.2018, Sri. Sadashiv met with an
accident, sustained grievous injuries, and later succumbed
to the same. His legal heirs filed claim petition under
Section 166 of the Motor Vehicles Act, 1988. As stated
above, Claimant No.1 examined herself as P.W.1, and
Sri.Beeru Saragar, employer of the deceased, was
examined P.W.2 and got marked Ex.P.1 to Ex.P.16. The
Tribunal considering the same awarded total compensation
M.F.A. No.1662/2023, disposed of on 02.07.2024
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of Rs.14,76,300/-. The material available on record
indicates that the claimants have produced Ex.P.11-salary
certificate issued by P.W.2. The salary certificate would
indicate that the deceased was earning a sum of Rs.20,000
per month. Exhibit P.19 is the Driving licence that was
issued to the deceased licensing him to drive the crane
vehicle. These documents clearly indicates that the
deceased was working under P.W.2 as a crane driver and
drawing salary of Rs.20,000. However, the oral testimony
of P.W.2 would indicate that the deceased was working
from 08.02.2018. However, the salary certificate at
Ex.P.11 would indicate that it is of the year 2013 i.e., date
of issuance of licence. Hence, same cannot be looked into.
However taking note of the Notification placed by the
appellants' counsel with regard to the minimum wages
fixed by the wage board fixing minimum wages for the
drivers of heavy vehicles, tractors, multi axel and earth
movers, crane vehicles, road roller and construction of
road related vehicles, at Rs.14,948.90/-, we assess the
income of the deceased at Rs.14,948.90/-.
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11. The Tribunal has not awarded any compensation
towards 'future prospects'. In view of the decision of
Hon'ble Apex Court in Pranay Sethi's case supra, as the
deceased was aged 36 years as on the date of the
accident, the claimants herein are entitled for an addition
of 40% of the assessed income towards 'future prospects.
12. There is no dispute with regard to deduction of
1/4th of the assessed income towards personal and living
expenses of the deceased and multiplier '15' adopted by
the Tribunal considering age of the deceased as 36 years.
Having assessed the income of the deceased at
Rs.14,948.90/- per month, the claimants would be entitled
for modified compensation on the head 'loss of
dependency' as under:
Rs.14,948.90/- x 12 x 15 x 3/4 + 40%
= Rs.28,25,342/-
It is made clear that, in the light of the decision in
Chandrakala's case supra, the amount towards 'future
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prospects' in a sum of Rs.8,07,240/-, (being 40% of the
assessed income) shall not carry any interest.
13. The Tribunal also committed an error in
awarding compensation towards 'loss of love and affection',
'loss of consortium' and towards 'loss of estate and funeral
expenses, which are on the higher side. In light of decision
of Hon'ble Apex Court in Pranay Sethi's case supra, the
claimants would be entitled to a sum of Rs.15,000/-
towards 'loss of estate' and Rs.15,000/- towards 'funeral
expenses'. In terms of decision of Hon'ble Apex Court in
the case of Magma General Insurance Company
Limited Vs. Nanu Ram & Others3, appellants/claimants
being wife children and mother of the deceased, they
would be entitled a sum of Rs.40,000/-each towards
spousal, parental and filial consortium.
14. The Tribunal has awarded a sum of
Rs.1,08,822/- towards medical expenses which is not
interfere with.
(2018) 18 SCC 130
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15. Thus, the claimants would be entitled to
modified compensation on the following heads:
Particulars Amount
(in Rs.)
Loss of dependency 28,25,342/-
Loss of estate 15,000/-
Funeral expenses 15,000/-
Loss of consortium (to claimants No.1 to 1,60,000/-
4 = Rs.40,000/- x 4)
Medical expenses 1,08,822/-
Total 31,24,164/-
Thus, the claimant shall be entitled to a total compensation
of Rs.31,24,164/- as against Rs.14,74,300/- awarded by
the Tribunal.
16. In the result, we proceed to pass the following:
ORDER
a) Appeal stands allowed in part.
b) The impugned judgment and award of the
Tribunal is modified to an extent that the
claimant would be entitled to total compensation
Rs.31,24,164/- as against Rs.14,74,300/-
awarded by the Tribunal.
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c) The enhanced compensation amount shall carry
interest at the rate of 6% per annum from the
date of petition till the date of payment.
d) As observed above, the amount of Rs.8,07,240/-,
being 40% of the assessed income awarded
towards 'future prospects' shall not carry any
interest.
e) The Respondent No.2-insurance company shall
deposit the enhanced compensation amount with
accrued interest before the Tribunal within a
period of six weeks from today.
f) The apportionment, deposit and disbursement of
enhanced compensation shall be made as per
award of the Tribunal.
Draw modified award accordingly.
Sd/-
(KRISHNA S.DIXIT)
JUDGE
Sd/-
(VIJAYKUMAR A.PATIL)
JUDGE
KMS, CT:VP
