Karnataka High Court
Kamu W/O. Dama @ Dami Harpalya @ Harpale vs Sri. Pravin S/O. Gangadhar Bukate on 27 May, 2024
Author: S G Pandit
Bench: S G Pandit
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MFA No.104241 of 2018
C/W MFA No.103787 of 2018
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 27TH DAY OF MAY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO.104241 OF 2018 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO.103787 OF 2018 (MV-D)
IN MFA NO.104241/2018
BETWEEN:
1. KAMU W/O. DAMA @ DAMI HARPALYA @ HARPALE,
AGE: 44 YEARS, OCC: NIL,
2. RAJESH S/O. DAMA @ DAMI HARPALYA @ HARPALE,
AGE: 28 YEARS, OCC: NIL,
3. NILESH S/O. DAMA @ DAMI HARPALYA @ HARPALE,
AGE: 25 YEARS, OCC: NIL,
ALL ARE R/O. MATERPADA,
NEAR JAIN MANDIR, POST JAMSHET,
KM
AMBESARI, MATERPADA,
SOMASHEKAR
TALUK DHANU, DIST:PALGAR,
Digitally signed by K M
SOMASHEKAR
Location: HIGH COURT
NOW RESIDING AT SAMBRA, BELAGAVI-590001.
OF KARNATAKA
DHARWAD BENCH
...APPELLANTS
(BY SRI. SIDDAPPA SAJJAN, ADVOCATE)
AND:
1. SRI. PRAVIN S/O. GANGADHAR BUKATE,
AGE: 51 YEARS, OCC: BUSINESS,
R/O. YASHWANT NAGAR, SANGALI,
MAHARASHTRA-416416.
2. THE BRANCH MANAGER
NEW INDIA ASSURANCE CO. LTD.,
CLUB ROAD, BELAGAVI-590001.
...RESPONDENTS
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MFA No.104241 of 2018
C/W MFA No.103787 of 2018
(BY SRI. M.K. SOUDAGAR, ADVOCATE FOR R2;
NOTICE TO R1 IS SERVED)
THIS MFA IS FILED U/S.173(1) OF MV ACT, 1988, AGAINST
THE JUDGMENT AND AWARD DATED 16.08.2018 PASSED IN MVC
NO.1601/2017 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL
JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,
BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO.103787/2018
BETWEEN:
THE BRANCH MANAGER,
THE NEW INDIA ASSURANCE CO. LTD.,
CLUB ROAD, BELAGAVI.
REP: DULY CONSTITUTED AUTHORITY,
THE REGIONAL MANAGER,
REGINAL OFFICE HUBBALLI.
...APPELLANT
(BY SRI. M.K. SOUDAGAR, ADVOCATE)
AND:
1. KAMU W/O. DAMA @ DAMI HARPALYA @ HARPALE,
AGE: 44 YEARS, OCC: NIL,
2. RAJESH S/O. DAMA @ DAMI HARPALYA @ HARPALE,
AGE: 28 YEARS, OCC: NIL,
3. NILESH S/O. DAMA @ DAMI HARPALYA @ HARPALE,
AGE: 25 YEARS, OCC: NIL,
RESPENDENTS NO. 1 TO 3 ARE
R/O: MATERPADA, NEAR JAIN MANDIR,
POST: JAMSHET, AMBESARI,
MATERPADA, TQ: DHANU, DIST: PALGAR,
NOW R/AT: SAMBRA, BELAGAVI-591124.
4. SRI. PRAVIN S/O. GANGADHAR BUKATE,
AGE: 51 YEARS, OCC: BUSINESS,
R/O: YASHWANT NAGAR, SANGALI,
MAHARASHTRA-416416.
...RESPONDENTS
(BY SRI. SIDDAPPA SAJJAN, ADVOCATE FOR R1 TO R3;
NOTICE TO R4 IS SERVED)
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MFA No.104241 of 2018
C/W MFA No.103787 of 2018
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED 16.08.2018 PASSED
IN MVC NO.1601/2017 ON THE FILE OF THE III ADDITIONAL SENIOR
CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, BELAGAVI, AWARDING COMPENSATION OF
RS.9,95,208/- WITH INTEREST AT 6% P.A. FROM THE DATE OF
PETITION TILL ITS REALIZATION.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY,
S G PANDIT, J., DELIVERED THE FOLLOWING:
JUDGMENT
Though these appeals are listed for admission, they are
taken up for final disposal with the consent of learned counsel
for both the parties.
2. The claimants as well as insurance company are in
appeals against judgment and award dated 16.08.2018 passed
in MVC No.1601/2017 on the file of learned III Addl. Senior
Civil Judge, CJM & Addl. MACT, Belagavi (for short, 'Tribunal').
3. MFA No.104241/2018 is filed by the claimants
praying for enhancement of compensation, not being satisfied
with quantum of compensation granted by the Tribunal as well
as challenging the saddling of 25% contributory negligence on
the deceased; whereas MFA No.103787/2018 is filed by the
insurance company challenging the quantum of compensation
as well as contributory negligence of 25% saddled on the
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deceased and prays to fix the contributory negligence to the
extent of 50:50 on the part of the deceased as well as on the
driver of the Truck in question.
4. Brief facts of the case are that, the
appellants/claimants, who are the wife and major children of
the deceased Dama @ Dami Harpalya @ Harpale, filed a claim
petition under Section 166 of the Motor Vehicles Act, 1988
seeking compensation for the accidental death of Dama @
Dami that took place on 21.03.2017 involving Truck bearing
registration No.MH-16/AY-9550. It is further stated that as on
the date of accident, deceased was aged 45 years, doing
masonry work and earning Rs.20,000/- per month.
5. On issuance of notice, respondent No.1 did not
appear before the Court and placed exparte. Respondent No.2-
Insruance Company appeared through its counsel and filed
statement of objections denying the entire claim petition
averments. It is contended that the alleged accident took place
solely due to negligence on the part of the deceased himself,
who suddenly tried to cross the road without observing the
traffic on either side. It is further contended that the driver of
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the Truck was not holding valid and effective driving license as
on the date of the accident. Thus, sought for dismissal of claim
petition.
6. Before the Tribunal, claimant No.2-son of the
deceased examined himself as PW1 and one witness examined
as PW2 apart from marking the documents as Exs.P1 to P7,
whereas the respondents did not examine any witness, but
marked insurance policy as Ex.R1. The Tribunal based on the
material on record allowed the claim petition in part saddling
the contributory negligence at 25% on the part of the deceased
and awarded a total compensation of Rs.9,95,208/- with
interest at 6% per annum from the date of petition till
realization on the following heads:
Loss of dependency Rs.12,31,944/-
Loss of consortium Rs. 15,000/-
Loss of estate Rs. 15,000/-
Funeral expenses Rs. 15,000/-
Loss of love and affection Rs. 50,000/-
-------------------
Total Rs.13,26,944/-
Less:25% contributory negligence Rs. 3,31,736/-
------------------
Total entitlement Rs. 9,95,208/-
-------------------
7. While awarding the above compensation, the
Tribunal assessed monthly income of the deceased at
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Rs.11,000/-, deducted 1/3rd towards personal expenses of the
deceased, adopted multiplier of 14 taking the age of the
deceased as 45 years.
8. Heard the learned counsel Sri.M.K Soudagar for the
insurance company as well as learned counsel Sri.Siddappa
Sajjan for the claimants and perused the appeal papers along
with original records.
9. Sri.M.K.Soudagar, learned counsel appearing for
the Insurance Company in support of his appeal would submit
that the Tribunal committed grave error in assessing the
income of the deceased at Rs.11,000/- per month without there
being any material on record. Learned counsel would submit
that the claimants have not placed any material on record to
establish the income of the deceased, as such, the Tribunal
could not have taken the income of the deceased at
Rs.11,000/- per month. Learned counsel would submit that in
terms of income chart prepared by the KSLSA for the accident
of the year 2017, notional income would be Rs.10,250/- per
month, which would be appropriate to assess the income of the
deceased.
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10. Learned counsel would further submit that the
claimants are wife and major children of the deceased Dama @
Dami, hence, the Tribunal has rightly come to a conclusion that
only widow would be entitled to claim compensation; having
held so, it could not have deducted 1/3rd of the assessed
income towards personal and living expenses of the deceased
and the Tribunal ought to have deducted 50% towards personal
expenses of the deceased, taking into account the wife is only
dependent of the deceased. It is further submitted that the
Tribunal having found that the deceased also contributed his
negligence to the occurrence of the accident, committed an
error in saddling only 25% of contributory negligence. Hence,
he seeks to saddle 50% of contributory negligence on the
deceased. Thus, learned counsel prays for allowing the appeal
filed by the insurance company by dismissing the appeal of the
claimants.
11. Per contra, Sri.Siddappa Sajjan, learned counsel for
the appellants/claimants in support of his appeal would contend
that the Tribunal taking note of the avocation of the deceased
as Mason has rightly assessed the income at Rs.11,000/- per
month, which needs no interference. Further, learned counsel
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placing reliance on the decision of the Hon'ble Apex Court in
the case of Sarla Verma & Others Vs. Delhi Transport
Corporation & Another1, would submit that the Tribunal is
justified in deducting 1/3rd towards personal and living
expenses of the deceased, since the aforesaid decision in Sarla
Verma's case clearly states that if the deceased is a married
person, deduction would be 1/3rd of the assessed income of the
deceased. Learned counsel would further submit that the
Tribunal committed a grave error in saddling contributory
negligence to an extent of 25% on the part of the deceased,
since there is no material on record to come to a conclusion
that the deceased had contributed to the accident in question.
He further submits that the respondents have not examined
any independent witness or driver of the offending vehicle to
establish that the deceased had contributed his negligence to
the occurrence of the accident. He therefore submits that in
the absence of any such material, the Tribunal is not justified in
saddling 25% of contributory negligence on the part of the
deceased.
2009 ACJ 1298
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12. Learned counsel Sri. Siddappa Sajjan would further
submit that the Tribunal has failed to award compensation on
the head of future prospects of the deceased. It is submitted
that since the deceased was aged about 45 years, in terms of
decision of Hon'ble Apex Court in the case of National
Insurance Company Limited Vs. Pranay Sethi & Others2,
the claimants would be entitled for addition of 25% of the
assessed income towards future prospects of the deceased.
Thus, he prays for enhancement of compensation. He further
submits that the award of compensation by the Tribunal on the
other heads is also on the lower side. Hence, he prays for
allowing the appeal filed by the claimants.
13. Having heard the learned counsel for the parties
and on perusal of the appeal papers along with original records,
the following points would arise for consideration:
a) Whether the Tribunal is justified in assessing
income of the deceased at Rs.11,000/- per
month?
b) Whether the Tribunal is justified in saddling
25% contributory negligence on the
deceased?
2017 (16) SCC 680
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c) Whether the claimants would be entitled for
addition of 25% of the assessed income
towards future prospects?
Points No.(a) and (b) are answered in the negative and
Point No.(c) is answered in the affirmative for the following
reasons:
14. The accident that took place on 21.3.2017 involving
Truck bearing registration No.MH-16/AY-9550, resultant death
of the deceased is not in dispute in these appeals. The
claimants as well as insurance company are in appeals
challenging the quantum of compensation as well as
contributory negligence. It is the contention of the
appellant/insurer that the Tribunal committed an error in
assessing the income of the deceased at Rs.11,000/- per
month, which is on the higher side. Admittedly, the deceased
was doing masonry work. In order to prove the income of the
deceased, no cogent or acceptable document is placed on
record. In the absence of any documentary evidence to
establish the avocation and income of the deceased, this Court
and Lok Adalath while settling the accidental claims of the year
2017, would normally assess notional income at Rs.10,250/-
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per month, taking note of the chart prepared by KSLSA based
on various factors including the minimum wage fixed.
Therefore, we are of the opinion that it would be just and
appropriate to determine notional income of the deceased at
Rs.10,250/- p.m., taking note of the income chart prepared by
KSLSA and also the minimum wage fixed.
15. Further, the insurance company contended that the
Tribunal committed an error in deducting 1/3rd of the assessed
income towards personal and living expenses of the deceased
instead of 50%, since the wife is the only dependent.
Admittedly, the claimants No.2 and 3 are the major and
earning sons of the deceased. The Hon'ble Apex Court in Sarla
Verma's case (supra) at paragraph-30 has held as under:
30. Through in some cases the deduction to be made
towards personal and living expenses is calculated on
the basis of units indicated in Trilok Chandra, the
general practice is to apply standardised deductions.
Having considered several subsequent decisions of
this Court, we are of the view that where the
deceased was married, the deduction towards
personal and living expenses of the deceased, should
be one-third (1/3rd) where the number of dependent
family members is 2 to 3 one-forth (1/4th) where the
number of dependent family members is 4 to 6, and
one-fifth (1/5th) where the number of dependent
family members exceeds six.
(Emphasis supplied)
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16. The above paragraph makes it clear that wherever
the deceased is a bachelor, 50% of the assessed income has to
be deducted towards personal and living expenses of the
deceased; wherever the deceased is a married person,
depending on the number of dependents, deduction shall vary
from 1/3rd to 1/5th. The Tribunal taking note that the major
sons are not dependents and considering 1st claimant-wife only
dependent, deducted 1/3rd of the assessed income towards
personal and living expenses of the deceased. Therefore, we
are of the considered view that the Tribunal was right in
deducting 1/3rd towards personal expenses of the deceased,
while awarding compensation on the head of loss of
dependency in terms of Sarla Verma (supra). Thus, there is
no merit in the contention of the insurance company that the
Tribunal committed in error in deducting 1/3rd towards personal
expenses of the deceased and same is rejected.
17. The next point is with regard to award of future
prospects. The Tribunal committed an error in not awarding
any compensation on the head of loss of future prospects.
Admittedly, the deceased was aged about 45 years. In terms
of decision of Hon'ble Apex Court in the case of Pranay Sethi
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supra, the claimants would be entitled to an addition of 25% of
the assessed income towards future prospects of the deceased.
The proper multiplier applicable to the age of the deceased is
14. Thus, the claimants would be entitled for modified
compensation on the head of loss of dependency as under:
Rs.10,250 (income) x 12 (months) + 25%(future prospects) x
14(multiplier) x 2/3(deduction) = Rs.14,35,500/-.
18. Further, each of the claimants would be entitled to
Rs.44,000/- towards loss of consortium, besides Rs.16,500/-
towards loss of estate and Rs.16,500/- towards funeral
expenses.
19. Thus, the claimants would be entitled for modified
compensation on the following heads:
Sl. Particulars Amount
No.
1. Loss of dependency Rs.14,35,500/-
2. Loss of estate & Funeral Rs. 33,000/-
expenses
3. Loss of consortium (Rs.44000x3) Rs. 1,32,000/-
Total Rs.16,00,500/-
Contributory Negligence:
20. It is the contention of the appellants/claimants that
the Tribunal committed an error in saddling 25% contributory
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negligence on the part of the deceased, since there was no
negligence on the part of the deceased. The insurance company
contended that the Tribunal ought to have saddled 50%
contributory negligence on the part of the deceased, who
suddenly tried to cross the main road without paying attention
to the traffic on either side. The case of the claimants is that
the deceased Dama was proceeding towards his house by walk
and when he came near Miraj Pandharpur road, truck bearing
registration No.MH.16/AY-9550 came from wrong side with
high speed in a rash and negligent manner and dashed to the
deceased. Due to the said impact, the deceased fell down and
sustained fatal injuries to his head and all over the body and
succumbed to the same at the spot.
21. The police after investigation filed charge sheet
against the driver of the Truck for the offences punishable
under Sections 304-A, 279, 337 and 338 of IPC. A perusal of
Ex.P3-Spot Panchanama would disclose that the accident
occurred in the middle of the road of National Highway. Thus, it
is clear that due to rash and negligent driving of the driver of
the truck, the accident took place. Moreover, there is no
evidence whatsoever to show that there was negligence on the
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part of the deceased in the occurrence of the accident. On the
other hand, the respondents have not led any rebuttal evidence
to disprove the same. The Tribunal without looking into all
these aspects has wrongly come to a conclusion that the
deceased had also contributed to the accident in question to an
extent of 25%. Therefore, we are of the considered view that
due to rash and negligent driving of the driver of the Truck
alone, the accident in question took place, resulting in death of
the deceased. Accordingly, the finding of the Tribunal with
regard to saddling of 25% contributory negligence on the part
of the deceased is liable to be set-aside and same is hereby
set-aside holding that the insurance company is liable to pay
entire compensation to the claimants with accrued interest.
22. Thus, the claimants would be entitled to total
compensation of Rs.16,00,500/- as against Rs.9,95,208/-
awarded by the Tribunal.
23. Hence, we pass the following:
ORDER
a) Both appeals are allowed in part.
b) The impugned judgment & award of
Tribunal is modified holding that the
claimants are entitled to total
compensation of Rs.16,00,500/- as
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against Rs.9,95,208/- awarded by the
Tribunal.
c) The enhanced compensation shall carry
interest at the rate of 6% p.a. from the
date of claim petition till realization.
d) The appellant-Insurer shall deposit the
enhanced compensation amount with
accrued interest before the Tribunal within
a period of six weeks from the date of
receipt of certified copy of this judgment.
e) Apportionment, deposit & disbursement
shall be made as per award of Tribunal.
f) The amount in deposit, if any, be
transmitted to the concerned Tribunal
forthwith along with original records.
g) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
JTR
CT:VP
