Karnataka High Court
The Divisional Manager vs Sharadabai And Ors on 4 March, 2024
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
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MFA No. 200380 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF MARCH, 2024
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE K V ARAVIND
MISCL. FIRST APPEAL NO. 200380 OF 2022 (MV-D)
BETWEEN:
THE DIVISIONAL MANAGER,
UNITED INDIA INS. CO. LTD.,
DIVISIONAL OFFICE, OPP.SANGAM TALKIES,
SUPER MARKET, KALABURAGI, (NOW REPRESENTED
BY DIVL. MANAGER,D.O, CENTURY COMPLEX,
SUPER MARKET, KALABURAGI.
...APPELLANT
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
AND:
1. SHARADABAI W/O LAXMAN RATHOD,
AGE: 40 YEARS, OCC: NIL,
Digitally signed
by VARSHA N 2. LAXMAN S/O PEERAPPA RATHOD,
RASALKAR
Location: HIGH AGE: 44 YEARS, OCC: NIL,
COURT OF
KARNATAKA BOTH R/O YALGI TANDA, TQ: SHORAPUR,
DIST: YADGIRI, NOW RESIDING AT NANDOOR-B,
TQ AND DIST: KALABURAGI-585101.
3. DR. SANTOSH ALGUR S/O SHRISHAILAPPA,
AGE. MAJOR, OCC. NOT KNOWN,
R/O AT POST: KEMBHAVI,
TQ: SHORAPUR, DIST: YADAGIRI-585201.
...RESPONDENTS
(BY SRI. SANGANAGOUDA V. BIRADAR, ADV. FOR R1 & R2;
NOTICE TO R3 IS DISPENSED WITH)
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MFA No. 200380 of 2022
THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO
ALLOW THE ABOVE APPEAL BY SETTING ASIDE THE IMPUGNED
JUDGMENT AND AWARD DATED: 25.10.2021 IN
MVC.NO.526/2020 PASSED BY THE II-ADDL. SENIOR CIVIL
JUDGE AND MACT KALABURAGI, IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
H.T.NARENDRA PRASAD J., DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for admission, with the
consent of both the learned counsels, the appeal is taken
up for final disposal.
This appeal under Section 173(1) of the Motor
Vehicles Act, 1988, has been filed by the appellant-
Insurance Company being aggrieved by the judgment and
award dated 25.10.2021 passed by the II-Addl. Senior
Civil Judge & MACT, Kalaburagi, in MVC No.526/2020.
2. Facts giving rise to the filing of the appeal
briefly stated are that, on 10.05.2020, the deceased-
Akash was proceeding by walk on the left side of the road
from his house to the place where his father i.e. claimant
No.2 who was attending the labour work. At about 1:45
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p.m., when the deceased reached on Kembhavi-Yalagi
tanda road, at that time, a Ford Car bearing Reg.No.KA-
33/M-4321 being driven by its driver came from Kemhavi
side in utmost high speed, rash and negligent manner and
lost control over it and caused the accident. Due to the
accident, deceased-Akash sustained grievous injuries and
immediately he was admitted to United Hospital,
Kalaburagi, but later he succumbed to the injuries.
3. The claimants filed a petition under Section 166
of the M.V. ct seeking compensation for the death of the
decevased along with interest.
4. On service of summons, both respondents
appeared through counsel and filed their separate written
statement in which the averments made in the petition
were denied. It was pleaded that the petition itself is false
and frivolous in the eye of law. Respondent No.1
specifically contended that the driver of the car was having
valid and effective driving licence at the time of accident
and the said car is insured with respondent No.2.
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Therefore, entire liability may be shifted on respondent
No.2 and prays to dismiss the petition. Respondent
No.2/Insurance company contended that the driver of the
car did not possess valid driving licence as on the date of
the accident. The liability is subject to terms and
conditions of the policy. The age, occupation and income
of the deceased are denied. It was further pleaded that
the quantum of compensation claimed by the claimants is
exorbitant. Hence, sought for dismissal of the petition.
5. On the basis of the pleadings of the parties, the
Claims Tribunal framed the issues and thereafter recorded
the evidence. The claimants, in order to prove their case,
examined claimant No.2/Laxman as PW-1 and got
exhibited documents, namely Ex.P1 to Ex.P.10. The
respondents have not led any oral evidence nor produced
documentary evidence. The Claims Tribunal, by the
impugned judgment, inter alia, held that the accident took
place on account of rash and negligent driving of the
offending vehicle by its driver, as a result of which, the
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deceased sustained injuries and succumbed to the injuries.
The Tribunal further held that the claimants are entitled to
a compensation of Rs.21,16,614/- along with interest at
the rate of 6% p.a. and directed respondent No.2 to
deposit the compensation amount along with interest.
Being aggrieved by the judgment and award, this appeal
has been filed.
6. The learned counsel for the appellant-Insurance
Company has raised the following contentions:
Firstly, contended that at the time of accident
deceased was aged about 16 years, he was a student and
he was a non-earning member but the Tribunal erred in
considering the monthly income of the deceased as
Rs.13,250/-. Further, she contended that since the
deceased was a student, non-earning member, the
claimants are not entitled for future prospects.
Secondly she contended that the Hon'ble Apex Court
in the case of Kishan Gopal and Another vs. Lala and
Others reported in (2014) 1 SCC 244 has considered the
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annual income of a non-earning member is Rs.30,000/-
per annum.
Thirdl,y she contended that the loss of dependency
assessed by the Tribunal is contrary to the judgment of
the Hon'ble Apex Court in Kishan Gopal's case (supra).
Fourthly, she contended that considering the age of
the deceased and was a student, the over all
compensation awarded by the Tribunal is on the higher
side.
Lastly, she contended that the amount of
compensation for 'loss of estate', 'funeral expenses' and
'love and affection' is contrary to the judgment of the
Hon'ble Apex Court in the case of National Insurance
Co. Ltd., Vs. Pranay Sethi, reported in (2017) 16 SCC
680. Hence, she prays for allowing the appeal.
7. On the other hand, the learned counsel for the
claimants has raised the following counter contentions:
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Firstly, the claimants claim that even though the
deceased was a minor aged about 16 years was assisting
the family members by doing milk vending business and
he was earning Rs.12,000/- per month.
Secondly, he relies upon the judgment of the Division
Bench of this Court in the case of Chetana and others vs
Babuji M. and others in MFA No.102268/2019 DD
13.11.2020 contended that notional income has to be
considered in case of student who was aged about 16
years and was doing milk vending business.
Thirdly, he has contended that the Tribunal after
considering the above said judgment in Chetana (supra)
has rightly added future prospects and loss of dependency
has been awarded by the Tribunal is just and proper.
Lastly, he has contended that considering the age
and avocation of the deceased, the overall compensation
awarded by the Tribunal is just and reasonable. Hence, he
sought for dismissal of the appeal.
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8. Heard the learned counsel for the parties and
perused the judgment and award of the Tribunal including
the appeal papers.
9. It is not in dispute that deceased-Akash died in
the road traffic accident occurred on 10.05.2020 due to
rash and negligent driving of the offending vehicle by its
driver. At the time of accident, deceased was aged about
16 years. Thus, PW.1 in his evidence has categorically
stated that the deceased was studying in 10 th standard
and he was also doing milk vending business and thereby
earning Rs.12,000/- per month. The Division Bench
judgment of this Court in Chetana (supra) has held as
follows:
"10. Admittedly, the deceased was aged 17
years as on the date of the accident. He might not be
an adult but he cannot be considered as a child. He
has to be considered as an adolescent. Section 2 (i)
and (ii) of the Child and Adolescent Labour
(Prohibition and Regulation) Act, 1986 (for short "the
Act") defines as follows:
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"(i) "adolescent" means a person who has
completed his fourteenth year of age but has
not completed his eighteenth year;
"(ii) "child" means a person who has not
completed his fourteenth year of age or such
age as may be specified in the Right of
Children to Free and Compulsory Education
Act, 2009 (35 of 2009), whichever is more."
11. Section 3 of the Act prohibits employment
of a child in certain occupations and processes. The
said Act does not prohibit the adolescent of 17 years
to involve in a milk vending business. The deceased
and his family are from rural area and it is common
for a person of 17 years to be involved in milk
vending or similar occupations. The Tribunal has
completely lost sight of this fact and the reasoning is
contrary to and in the teeth of the statutory
provisions".
10. In view of the above and considering the
evidence of PW.1, we are of the opinion that monthly
income of the deceased has to be considered as
Rs.12,000/-. In view of the judgment of the Hon'ble Apex
Court in the case of Pranay Sethi (supra) 40% of the
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income of the deceased has to be added towards future
prospects and in view of the judgment of the Hon'ble Apex
Court in the case of Sarla Verma Vs. Delhi Transport
Corporation, (2009) 6 SCC 121, 2009 (6) Scale 129
multiplier for the age group 16 has to be considered as
'18' and the deceased was a bachelor, 50% of the income
of the deceased has to be deducted towards his personal
expenses. Accordingly, loss of dependency has to be
worked out as under:
Rs.12,000/- x 40% = Rs.16,800/-
Rs.16,800/- x 50% = Rs.8,400/-
Rs.8,400/- x 12 x 18 = Rs.18,14,400/-
Thus, the claimants are entitled to compensation of
Rs.18,14,400/-on account of 'loss of dependency'.
11. In addition, the claimants are entitled to
compensation of Rs.15,000/- on account of 'loss of estate'
and compensation of Rs.15,000/- on account of 'funeral
expenses'.
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12. In view of the law laid down by the Hon'ble
Apex Court in the case of Magma General Insurance
Company Limited vs. Nanu Ram and others, 2018
ACJ 2782: (2018) 18 SCC 130 claimants-parents of the
deceased are entitled for compensation of Rs.40,000/-
each under the head of 'loss of filial consortium' .
13. The compensation awarded by the Tribunal on
other heads is just and proper and do not call for
interference.
14. Thus, the claimants are entitled to the following
compensation:
Compensation under Amount awarded Amount awarded
different Heads by the Tribunal by this Court
Towards loss of Rs.20,03,400/- Rs.18,14,400/-
dependency
Medical expenses Rs.53,214/- Rs.53,214/-
Towards love and Rs.20,000/- -----
affection
Towards loss of estate Rs.20,000/- Rs.15,000/-
Towards funeral Rs.20,000/- Rs.15,000/-
expenses and
transportation
charges
Towards filial --- Rs.80,000/-
consortium
Total Rs.21,16,614/- Rs.19,77,614/-
Reduction Rs.1,39,000/-
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15. In the result, we pass the following:
ORDER
(i) The appeal filed by the Insurance
Company is allowed in part.
(ii) The judgment of the Claims Tribunal is
modified by reducing the compensation
awarded by the Tribunal.
(iii) The claimants are entitled to a total
compensation of Rs.19,77,614/- as
against Rs.21,16,614/- awarded by the
Tribunal.
(iv) The Insurance Company is directed to
deposit the compensation amount along
with interest @ 6% p.a. from the date of
filing of the claim petition till the date of
realization, within a period of eight weeks
from the date of receipt of copy of this
judgment.
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(v) The amount in deposit, if any, be
transmitted to the concerned Tribunal
forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
SDU
CT:CS
