Karnataka High Court
Smt.Santoshi Wd/O Santosh Chapolkar vs Shri.Premnarayan Budi on 3 June, 2024
Author: S G Pandit
Bench: S G Pandit
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MFA No. 102409 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 3RD DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO.102409 OF 2019 (MV-D)
BETWEEN:
1. SMT. SANTOSHI W/O. SANTOSH CHAPOLKAR,
AGE: 25 YEARS, OCC: HOUSE HOLD WORK,
2. KUMARI SUSHMITA D/O. SANTOSH CHAPOLKAR,
AGE: 6 YEARS, OCC: STUDENT,
3. KUMAR SAINATH S/O. SANTOSH CHAPOLKAR,
AGE: 4 YEARS, OCC: NIL,
(SINCE PETITIONERS NO.2 AND 3 MINORS THEIR M/G
REPRESENTED BY THEIR MOTHER PETITIONER NO.1)
4. SRI NARAYAN MAHADEV CHAPOLKAR,
AGE: 60 YEARS, OCC: AGRICULTURE WORK,
ALL ARE R/O: H.NO.13/C, AT RANGAROOK,
POST: AKHETI, AT PRESENT: C/O KANCHAN PEDNEKAR,
BHARAT NAGAR, HNCHENATTI, POST: PEERANWADI,
TQ AND DIST: BELAGAVI, BELAGAVI-590003.
Digitally signed by
VINAYAKA B V - APPELLANTS
Location: HIGH (BY SRI HARISH S.MAIGUR, ADVOCATE)
COURT OF
KARNATAKA AND:
1. SHRI PREMNARAYAN BUDI, AGE: MAJOR, OCC:
BUSINESS, R/O: 503, BAJARANG NAGAR, INDORE,
DIST: INDOOR, MADHYA PRADESH-452001.
2. THE DIVISIONAL MANAGER,
NATIONAL INSURANCE CO. LTD., RAMDEV GALLI,
BELAGAVI, TQ. AND DIST: BELAGAVI-01.
- RESPONDENTS
(BY SRI S.V. YAJI, ADVOCATE FOR R2;
NOTICE TO R1 SERVED)
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MFA No. 102409 of 2019
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173
(1) OF M.V. ACT, AGAINST THE JUDGMENT AND AWARD
DATED 12.02.2019 PASSED IN M.V.C. NO.1755/2017 ON THE
FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND MACT,
BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION & ETC.
THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR
HEARING, THIS DAY, G BASAVARAJA, J., DELIVERED THE
FOLLOWING:
JUDGMENT
The appellants/ claimants being dissatisfied with the
judgment and award passed by the learned II Addl. Senior Civil
Judge and MACT, Belagavi (for short 'Tribunal') in M.V.C. No.
1755/2017 dated 12.02.2019, preferred this appeal for
enhancement of compensation.
2. Parties are referred as per their ranks as assigned before
the Tribunal, for the sake of convenience.
3. Brief relevant facts leading to this appeal is that the
appellants/claimants have filed claim petition under Section 166
of M.V. Act seeking compensation for the death of Santosh in a
road traffic accident occurred on 15.09.2015 at 17.30 hours
due to the rash and negligent driving of truck bearing Reg. No.
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KA-30-Q-5362. Deceased was a Carpenter and earning
Rs.20,000/- per month and sought for just compensation.
4. In pursuance of service of notice, respondent no.2
appeared through its counsel and filed objections denying the
averments made in the claim petition as false and not
maintainable in law. Further it is contended that deceased
Santosh was riding his motorcycle without having valid and
effective driving licence and he rode the motorcycle in a rash
and negligent manner and in high speed and lost control and
caused the accident. The owner/insured of the offending truck
was a necessary party to the proceedings hence the petition is
bad for non joinder of necessary party. Further, the driver of
the offending vehicle was not having valid and effective driving
licence to drive the same. Hence, the respondent
no.2/insurance company is not liable to pay compensation. On
all these grounds it sought to dismiss the petition.
5. Based on the pleadings the Tribunal has framed the
following issues.
1. Whether the petitioners prove that on 15.09.2015 at
17.30 hours on Panjim-Belagavi NH-4A road, the deceased
Santosh Narayan Chapolkar sustained the fatal injuries and
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died on the spot in the motor vehicle accident due to the rash
and negligent driving by the driver of the truck bearing Reg.
No. MP-00/HG-7601?
2. Whether the respondent No.2 proves that the driver of
the truck bearing Reg. No. MP-09/HG-8701 had no valid and
effective driving licence at the time of accident?
3. Whether the petitioners prove that they are entitled for
the compensation as? If so, how much and from whom?
4. What order or award?
6. To prove the case of the claimants, two witnesses were
examined as PW1 and PW2 and 16 documents are marked as
Exs.P.1 to P.16. On closure of petitioner side evidence, the
respondent no.2 has not adduced any evidence. However,
copy of the insurance policy was marked as Ex.D.1 with
consent. After hearing arguments the Tribunal has awarded
compensation as under:
1. Towards loss of dependency 13,77,000.00
2. Towards loss of estate, loss of consortium 70,000.00
and funeral expenses
3. Towards loss of love and affection 25,000.00
Total 14,72,000.00
Being dissatisfied with the quantum of compensation awarded
by the Tribunal, the appellants/claimants are in appeal seeking
for enhancement of compensation.
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7. Learned counsel for the appellants would submit that the
Tribunal has considered / assessed income of the deceased at
the rate of Rs.9,000/- per month without taking into
consideration the oral and documentary evidence, which is not
proper and correct. The Tribunal has not awarded
compensation as per the ratio laid down by the Hon'ble Apex
Court in National Insurance Company Limited Vs. Pranay
Sethi and Ors (AIR 2017 SC 5157). The Tribunal has also
not awarded compensation on other heads as per the ratio laid
down by the Hon'ble Apex Court. On all these grounds,
appellants sought to allow this appeal.
8. Learned counsel appearing on behalf of the Insurance
Company would submit that the Tribunal has passed the
judgment and award in accordance with law and facts, that
there are no grounds to interfere with the impugned judgment
and award and sought for dismissal of the appeal.
9. Having heard the arguments on both sides and on perusal
of the appeal papers, the following points would arise for our
consideration.
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1) Whether the appellants have made out
grounds for enhancement of compensation as
sought for?
2) What order or award?
10. Our answer to the above points are:
Point No.1: Partly in the affirmative
Point No.2: As per final order
11. We have examined the materials placed before this Court.
That there is no dispute between the parties as to the accident
as well as death of Santosh in the accident occurred on
15.09.2015. The Tribunal has rightly assessed age of the
deceased as per Driving Licence marked as Ex.P.16, as 28
years. With regard to the income of the deceased is concerned,
the petitioners contended that deceased Santosh was a skilled
Carpenter working at 'Shiva Furnitures' and earning
Rs.20,000/- per month as per Ex.P.10. The Tribunal has rightly
observed that, to prove contents of Ex.P.10, petitioners have
not examined the author of Ex.P.10 who has issued the same
to the petitioners. The Tribunal has observed that Ex.P.10
reveals income of the deceased as Rs.12,000/- per month.
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Further, the Tribunal has observed that petitioners have not
produced any documents such as salary disbursement register,
bank pass book or other documents showing the payment of so
much salary by the employer to the deceased. However, in the
absence of sufficient legal evidence considering the age of the
deceased the Tribunal has assessed income of the deceased at
the rate of Rs.9,000/- per month which is more than the
notional income fixed by the Karnataka State Legal Services
Authority. On re-appreciation/re-consideration of the evidence
on record we are of the view that the income of the deceased
assessed at the rate of Rs.9,000/- per month is quite
reasonable which needs no interference.
12. Learned counsel for the appellants/claimants has rightly
contended that the Tribunal has not awarded the compensation
towards future prospects of the deceased as per the decision of
the Apex Court in Pranay Sethi (supra). The Tribunal ought to
have awarded compensation towards loss of future prospects at
the rate of 40% of the assessed income as the age of deceased
was 25 years at the time of accident. Hence, the same is to be
added. On adding the same, the monthly income of the
deceased would be Rs.9,000/-+Rs.3,600/-(40%)=Rs.12,600/-.
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The Tribunal has rightly deducted 1/4th of the above sum
towards personal expenses. The appropriate multiplier is '17'
which is rightly applied by the Tribunal. Thus the claimants
would be entitled for compensation of Rs. 19,27,800/-
(Rs.12,600/- x 12 x 17 x 1/4) towards loss of dependency.
13. With regard to the loss of estate, loss of consortium and
funeral expenses, the Tribunal has not awarded compensation
in consonance with the decision of Hon'ble Apex Court in
Pranay Sethi (supra). In view of the same, the appellants/
claimants who are wife, children and father of the deceased,
are each entitled for Rs.40,000/- towards spousal consortium,
parental consortium and filial consortium respectively. Thus,
the claimants are entitled for compensation as under:
1. Towards loss of dependency 19,27,800.00
2. Towards consortium (Rs.40,000/- x 4) 1,60,000.00
3. Towards loss of estate 15,000.00
4. Towards transportation and funeral 15,000.00
expenses
Total 21,17,800.00
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The appellants/claimants are thus entitled for a total
compensation of Rs.21,17,800/- as against Rs.14,72,000/- with
interest at 6% p.a. Hence, we answer point no.1 partly in the
affirmative.
14. Point no.2: For the aforesaid reasons and discussions, we
proceed to pass the following order.
ORDER
a) The appeal is allowed in part.
b) The impugned judgment and awarded passed by the
Tribunal is modified to an extent that the claimant
would be entitled to total compensation of Rs.
21,17,800/- as against Rs.14,72,000/- awarded by the
Tribunal.
c) The enhanced compensation amount shall carry
interest at the rate of 6% per annum from the date of
petition till date of payment;
d) Respondent No.2-insurer shall deposit the enhanced
compensation amount along with accrued interest
before the Tribunal within a period of six weeks from
the date of receipt of certified copy of this judgment.
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e) On such deposit, the said amount shall be apportioned
in favour of the claimants as per the award of the
Tribunal.
f) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
