Karnataka High Court
Kumari Manmi D/O Alte Kumarswamy ... vs The Managing Director on 5 March, 2024
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MFA No. 103510 of 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 5TH DAY OF MARCH, 2024
PRESENT
THE HON'BLE MR JUSTICE M.I.ARUN
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
MISCELLANEOUS FIRST APPEAL NO.103510 OF 2018 (MV-D)
BETWEEN:
1. KUMARI MANMI
D/O. LATE KUMARSWAMY HIREMATH,
AGED ABOUT 8 YEARS, OCC. NIL,
R/O. BANAGAR ONI, BAMMAPUR
P.B. ROAD, HUBLI SINCE MINOR
REPRESENTED BY HER MOTHER GUARDIAN
SMT. PRIYA
W/O. LATE KUMARSWAMY HIREMATH,
AGED ABOUT 29 YEARS, OCC. HOUSE HOLD WORK,
R/O. BANAGAR ONI, BAMMAPUR, P.B. ROAD,
Digitally signed by HUBBALLI, TQ. HUBBALLI, DIST. DHARWAD.
SAMREEN AYUB
DESHNUR
Location: HIGH 2. SMT. PRIYA
COURT OF
KARNATAKA W/O. LATE KUMARSWAMY HIREMATH,
AGED ABOUT 29 YEARS, OCC. HOUSE HOLD WORK,
R/O. BANAGAR ONI, BAMMPUR P.B. ROAD,
HUBBALLI, TQ. HUBBALLI,
DIST. DHARWAD.
...APPELLANTS
(BY SRI G.I. GACHCHINAMATH, ADVOCATE)
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MFA No. 103510 of 2018
AND:
1. THE MANAGING DIRECTOR,
VRL LOGISTICS LTD.,
P.B. ROAD, VARUR,
TQ. HUBBALLI, DIST. DHARWAD.
2. SRI. YALLAPPA
S/O. FAKKIRAPA DODDAMANI,
AGED ABOUT 33 YEARS, OCC. DRIVER,
R/O. LAKMAPUR, TQ. BADAMI,
DIST. BAGALKOT.
3. THE DIVISIONAL MANAGER,
UNITED INSURANCE CO.LTD.,
LAMIGTON ROAD, HUBBALLI,
TQ. HUBBALLI, DSIT. DHARWAD.
(INSURER OF MOTOR VEHICLE BEARING
NO.KA-25/B-5304 UNDER POLICY
NO. 2403003112P300337733
VALID FROM 30-8-2012 TO 29-9-2012)
...RESPONDENTS
(BY SRI HANUMANTHREDDY SAHUKAR, ADVOCATE FOR
RESPONDENT NO.1)
(BY SRI RAJASHEKHAR ARANI, ADVOCATE FOR RESPONDENT
NO.3)
(NOTICE TO RESPONDENT NO.2-SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST
THE JUDGMENT AND AWARD DATED 06.01.2018 PASSED IN
MVC NO.560/2013 ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, HUBBALLI, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR
ADMISSION, THIS DAY, UMESH M ADIGA, J., DELIVERED THE
FOLLOWING:
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MFA No. 103510 of 2018
JUDGMENT
This is the claimants' appeal against the Judgment
and Award dated 06.01.2018 passed in MVC.No.560/2013
by the Principal Senior Civil Judge and Additional MACT,
Hubballi (for short, the Tribunal') praying for enhancement
of compensation.
2. For the sake of convenience, we refer to the
parties as their rank before the Tribunal.
3. Brief facts of the case of claimants are that on
11.02.2013 Kumarswamy S/o. Veerayya Hiremath
returning from Keshwapur Hubballi to his house situated at
Byali Oni, on his vehicle bearing No.KA-25/EJ-2428 on the
left side of the road. He met with an accident due to the
rash and negligent driving of the driver of lorry bearing
registration No.KA-25/B-5304. As a result of which
Kumarswamy had sustained grievous injuries and
succumbed to the said injuries.
4. It is further contention of the claimants that
deceased was serving as an Executive in ARDEX ANDURA
India Pvt. Ltd., Gokul Road, Hubballi and earning
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Rs.15,000/- per month as salary. He was also assisting in
milk vending business of his elder brother and was earning
Rs.5,000/- per month. The claimants No.1 and 2 being the
daughter and wife of deceased respectively were
depending upon the said earnings. With these reasons,
they prayed for awarding compensation of Rs.40,00,000/-.
5. The respondent No.3/insurer has filed objections
before the Tribunal denying all the contents of the claim
petition and contended that claimants are not entitled for
the compensation. With these reasons prayed to dismiss
the claim petition.
6. From the rival contentions of the parties, the
Tribunal has framed the necessary issues for its
determination.
7. The appellants/claimants on their behalf examined
as P.W.1 to P.W.3 and got marked Ex.P.1 to Ex.P.9 and
closed their evidence. Respondents have not led oral
evidence, however got marked policy of insurance as
Ex.R.1.
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8. The Tribunal after hearing the arguments of both
the side and appreciating the pleadings and evidence on
record, held that accident had taken place due to rash and
negligent driving of offending vehicle by its driver and
that the claimants are entitled for compensation.
9. The Tribunal has assessed the age of deceased as
28 years, his income as Rs.10,000/- per month, added
40% income towards future prospects and deducted 1/3rd
of income towards personal expenses of the deceased;
applied 17 multiplier and awarded the following amount of
compensation :
Loss of dependency Rs.19,04,136/-
Loss of consortium Rs.40,000/-
Loss of filial love Rs.50,000/-
Loss of love and affection Rs.40,000/-
Loss of estate Rs.15,000/-
Transportation of dead body Rs.15,000/-
and funeral expenses.
Total Rs.20,64,136/-
10. We have heard the arguments of learned
counsels for both side.
11. The only question arises for our determination is,
"Whether claimants are entitled for
enhancement?"
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12. The main grievance of the learned counsel for
appellants is that the Tribunal has not considered the
income of the deceased properly and also submits that the
Tribunal ought to have added 50% of the income towards
future prospects and awarded the compensation.
13. Learned counsel for the respondent No.3 submits
that the deceased was not a permanent employee and
nowhere it is mentioned in the petition that he was the
permanent employee. Under these circumstances, adding
of 50% of the income towards future prospects is not
tenable.
14. It is not in dispute that the age of deceased was
28 years. The Tribunal on the basis of Ex.P.6- Salary
Certificate, assessed the income as Rs.10,000/- per
month. However, according to Ex.P.6, gross salary of
deceased was more than Rs.14,000/- per month i.e,
Rs.14,033/-. Considering the deductions, we accept the
income of the deceased as Rs.11,000/- per month.
Claimants have not pleaded in the petition that the
deceased was a permanent employee in the said concern.
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During evidence also, neither P.W.1 nor P.W.2 have stated
that deceased was a permanent employee. Under these
circumstances, as held in the case of National Insurance
Company Limited v. Pranay Sethi1 future prospects
cannot be considered as 50%, on the contrary, it is to be
considered as 40% as held by the Hon'ble Apex Court.
15. Learned counsel for the appellants has also
contended that the deceased was earning Rs.5,000/- per
month by milk vending and same is not considered.
Claimants did not prove said fact by cogent evidence
before the Tribunal. The Tribunal also did not accept the
said contention. Therefore, the said contention is not
accepted.
16. Deceased left behind him claimants as well as his
mother, who was respondent No.4 before the Tribunal.
Therefore, 1/3rd of the income has to be deducted towards
personal expenses of the deceased. The suitable multiplier
applicable is '17', which is not disputed since the age of
the deceased was 28 years.
AIR 2017 SC 5157
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17. From the above said discussions, the amount of
compensation for which the claimants are entitled are as
under:
For loss of dependency Rs.20,94,400/-
(Rs.11,000/- X 12 X 17 + 40% -
1/3rd)
For loss of consortium Rs.80,000/-
For loss of estate Rs.15,000/-
For loss of funeral expenses Rs.15,000/-
Total Rs.22,04,400/-
18. Claimants are entitled for enhancement of
Rs.1,40,264/-.
19. For the aforesaid reasons, we pass the following:
ORDER
(i) Appeal is partly allowed.
(ii) The impugned Judgment and Award dated
06.01.2018 passed in MVC.No.560/2013
by the Principal Senior Civil Judge and
Additional MACT, Hubballi is modified.
(iii) Claimants are entitled for compensation of
Rs.22,04,400/- as against Rs.20,64,136/-
awarded by the Tribunal with interest at
the rate of 6% per annum on enhanced
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amount of compensation from the date of
petition till realization of the amount.
(iv) The order of the Tribunal on
apportionment, deposit etc., are not
disturbed.
(v) The respondent/insurer shall deposit the
said enhanced amount with interest within
a period of six weeks from the date of
receipt of the copy of this order.
Sd/-
JUDGE
Sd/-
JUDGE
CKK, CT: UMD
