Karnataka High Court
Smt.Asha W/O Hanumant Majukar vs Sri.Maruti S/O Changappa Yallurkar on 29 May, 2024
Author: S G Pandit
Bench: S G Pandit
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NC: 2024:KHC-D:7111-DB
MFA No.101731 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH 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.101731 OF 2020 (MV-D)
BETWEEN:
SMT. ASHA W/O. HANUMANT MAJUKAR
AGE: 50 YEARS, OCC: HOUSEHOLD,
R/O: WAGHAWADE ROAD, WAGHAWADE,
TQ: DIST: BELAGAVI-590001.
...APPELLANT
(BY SRI. HARISH S. MAIGUR, ADVOCATE)
AND:
1. SRI. MARUTI S/O CHANGAPPA YALLURKAR
AGE: MAJOR, OCC: BUSINESS,
R/O: JYOTI NAGAR, WAGHAWADE,
TQ: DIST: BELAGAVI-590001.
2. THE DIVISIONAL MANAGER
TATA AIG GENERAL INSURANCE CO.LTD.,
HAVING ITS DIVISIONAL OFFICE AT
Digitally
signed by K M
KM
SOMASHEKAR
Location:
SOMASHEKAR HIGH COURT
OF
SHREE KRISHNA TOWER, 14,
KARNATAKA
KHANAPUR ROAD, 1ST FLOOR,
DHARWAD
BENCH
RPD CROSS, TILKAWADI, BELAGAVI-590006.
...RESPONDENTS
(BY SRI. MADHUKESHWAR DESHPANDE, ADVOCATE FOR R2;
NOTICE TO R1 IS SERVED)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED 05.02.2020 PASSED
IN MVC NO.1084/2018 ON THE FILE OF THE VI ADDITIONAL
DISTRICT JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL,
BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
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MFA No.101731 of 2020
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
S G PANDIT, J., DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for admission, it is taken up
for final disposal, with the consent of learned counsel for both
the parties.
2. The appellant-claimant is before this Court
dissatisfied with the quantum of compensation awarded under
judgment and award dated 5.2.2020 in M.V.C. No.1084/2018
on the file of learned VI Addl. District & Sessions Judge and
MACT, Belagavi (for short, 'Tribunal'), praying for enhancement
of compensation.
3. The claimant being wife of the deceased Hanumant
Majukar, filed a claim petition under Section 166 of the Motor
Vehicles Act, 1988 claiming compensation for the accidental
death of Hanumant Majukar that occurred on 5.2.2018
involving two motorcycles bearing registration No.KA-22/EV-
0753 and KA-22-EQ-9730. It is stated that the deceased was
aged about 56 years as on the date of the accident and doing
Centering contract work, earning Rs.30,000/- per month.
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4. On issuance of notice, respondents No.1 and 2
appeared through their learned counsel and filed separate
statement of objections denying the entire claim petition
averments. Respondent No.2-Insurance Company contended
that the alleged accident took place due to rash and negligent
riding of the motorcycle by the deceased himself. It further
contended that rider of the motorcycle was not having valid and
effective driving license as on the date of the accident. Thus,
prayed for dismissal of the claim petition.
5. Before the Tribunal, claimant-wife of the deceased
examined herself as PW1 apart from marking the documents as
Exs.P1 to P31. The respondents did not examine any witness
but marked the insurance policy as Ex.R1. The Tribunal on
appreciation of entire material on record awarded total
compensation of Rs.14,32,500/- with interest at 6% per annum
on the following heads:
Loss of Dependency Rs.6,53,400/-
Medical expenses Rs.6,94,120/-
Loss of estate Rs. 15,000/-
Funeral expenses Rs. 15,000/-
Loss of consortium Rs. 40,000/-
Attendant & traveling expenses Rs. 15,000/-
Total Rs.14,32,520/-
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6. While awarding the above compensation, the
Tribunal assessed notional income of the deceased at
Rs.9,000/- per month, added 10% of the same towards future
prospects, deducted 50% of the assessed income towards
personal and living expenses of the deceased and applied
multiplier of '11'. The claimant not being satisfied with the
quantum of compensation awarded by the Tribunal is before
this Court praying for enhancement of compensation.
7. Heard learned counsel Sri.Harish S Maigur for the
appellant-claimant and Sri.Madhukeshwar Deshpande, learned
counsel for respondent No.2-Insurance Company and perused
the appeal papers including original records.
8. Sri. Harish S. Maigur, learned counsel for the
appellant would contend that the Tribunal committed an error
in assessing notional income of the deceased at Rs.9,000/- per
month, inasmuch as the deceased was doing Centering contract
work and earning Rs.30,000/- per month. He would further
submit that the Tribunal committed an error in deducting 50%
of the assessed income towards personal and living expenses of
the deceased taking note that wife is the only dependent. It is
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his submission that since the deceased is a married person, in
terms of decision of Hon'ble Apex Court in the case of Sarla
Verma & Others Vs. Delhi Transport Corporation &
Another1, 1/3rd has to be deducted towards personal and living
expenses of the deceased. Thus, he prays for allowing appeal.
9. Per contra, Sri. Madhukeshwar Deshpande, learned
counsel for respondent No.2-Insurance Company would submit
that in the absence of any cogent or acceptable document to
prove the avocation and income of the deceased, the Tribunal
is justified in assessing notional income of the deceased at
Rs.9,000/- per month, which is just and proper. It is submitted
that the Tribunal is justified in deducting 50% of the assessed
income towards personal and living expenses of the deceased,
since there is only dependent i.e., wife of the deceased. He
further submits that the Tribunal on appreciation of the
material on record awarded just and reasonable compensation
under various heads, which does not call for any interference.
Thus, he prays for dismissal of the appeal.
10. Having heard the learned counsel for the parties
and on perusal of the appeal papers including the original
2009 ACJ 1298
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records, the only point that would arise for consideration in this
appeal is as to, whether the claimant is entitled for enhanced
compensation?
11. Answer to the above point would be in the
affirmative for the following reasons:
12. The accident which occurred on 5.2.2018 involving
two motorcycles bearing registration No.KA-22/EV-0753 and
KA-22-EQ-9730 resulting in death of Hanumant Majukar,
husband of the appellant, is not in dispute in this appeal. It is
the contention of appellant-claimant that notional income of the
deceased assessed by the Tribunal at Rs.9,000/- per month is
on the lower side. The claimant in order to prove the avocation
and earning of the deceased has not produced any cogent or
acceptable document. 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 2018, would normally assess
notional income at Rs.11,750/- per month, taking note of the
income chart prepared by KSLSA based on various factors
including the minimum wage fixed. Therefore, in the instant
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case also, in the absence of any corroborative document to
establish the income of the deceased, we are of the opinion
that it would be just and appropriate for us to determine
notional income of the deceased at Rs.11,750/- p.m., taking
note of the income chart prepared by KSLSA and also the
minimum wage fixed.
13. Further, the appellant/claimant contended that the
Tribunal committed an error in deducting 50% of the assessed
income towards personal and living expenses of the deceased
instead of 1/3rd taking note that the wife is the only dependent.
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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14. 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. Therefore, we are of the considered view
that the Tribunal committed an error in deducting 50% of the
assessed income towards personal expenses of the deceased
instead of 1/3rd, while awarding compensation on the head of
loss of dependency in terms of Sarla Verma (supra).
15. There is no dispute with regard to age of the
deceased as 56 years, applicable multiplier of 11 and addition
of 10% of the assessed income of the deceased towards future
prospects. Thus, the claimant would be entitled for modified
compensation on the head of loss of dependency as under:
Rs.11,37,400/- (Rs.11,750 + 10% x 12 x 11 x 2/3).
16. In terms of decision of Hon'ble Apex Court in
National Insurance Company Limited Vs. Pranay Sethi &
Others2, the claimant would be entitled to Rs.16,500/- each
2017(16) SCC 680
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towards loss of estate and funeral expenses including 10%
escalation for three years. In terms of decision of Hon'ble Apex
Court in Magma General Insurance Company Limited
supra, the claimant would be entitled to Rs.44,000/- towards
spousal consortium including 10% escalation for three years.
The award of compensation by the Tribunal on the head of
medical expenses is just and proper and same is undisturbed.
17. Thus, the claimant would be entitled for modified
compensation on the following heads:
Sl. Particulars Amount
No.
1. Loss of dependency Rs.11,37,400/-
2. Loss of estate & Funeral expenses Rs. 33,000/-
3. Spousal Consortium Rs. 44,000/-
4. Medical expenses Rs. 6,94,120/-
Total Rs.19,08,520/-
18. Thus, the claimant would be entitled to total
compensation of Rs.19,08,520/- as against Rs.14,32,500/-
awarded by the Tribunal.
19. In the result, we proceed to pass the following:
ORDER
a) The above appeal is allowed in part.
b) The impugned judgment and award of the
Tribunal is modified to an extent that the
claimant is entitled to total compensation of
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NC: 2024:KHC-D:7111-DB
Rs.19,08,520/- as against
Rs.14,32,500/- awarded by Tribunal.
c) The enhanced compensation amount will
bear interest at the rate of 6% per annum
from the date of claim petition till date of
realization.
d) The respondent-Insurance Company shall
deposit the enhanced compensation amount
with accrued interest before the Tribunal
within six weeks from the date of receipt of
certified copy of this judgment.
e) Apportionment, deposit and disbursement of
the enhanced compensation shall be made
as per the award of the Tribunal.
f) Registry to transmit the TCR to the Tribunal
forthwith.
g) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
JTR
CT:VP
