Karnataka High Court

P.R. Nagarathna @ Kavya vs Yogish Kutkunje Pai on 25 October, 2024

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                                                        NC: 2024:KHC:43104-DB
                                                            MFA No.4396/2020



                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                       DATED THIS THE 25TH DAY OF OCTOBER, 2024
                                            PRESENT
                         THE HON'BLE MRS JUSTICE K.S.MUDAGAL
                                              AND
                      THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
                 MISCELLANEOUS FIRST APPEAL NO.4396/2020 (MV-D)

                BETWEEN:

                1.    P.R.NAGARATHNA @ KAVYA
                      W/O SHEKHARAPPA H
                      AGED ABOUT 29 YEARS

                2.    JEETU
                      S/O SHEKHARAPPA H
                      AGED ABOUT 11 YEARS
                      MINOR REP. THROUGH HIS NATURAL
                      GUARDIAN I.E, MOTHER APPELLANT NO.1

                3.    NAGAMMA
                      W/O HANUMANTHAPPA
                      AGED ABOUT 54 YEARS

                4.    HANUMANTHAPPA
                      S/O HANUMANTHAPPA
Digitally
signed by K S         AGED ABOUT 62 YEARS
RENUKAMBA
Location:             ALL ARE R/O GUDALU VILLAGE AND POST,
High Court of         DAVANAGERE - 577 003                       ... APPELLANTS
Karnataka
                (BY SRI.A.HANUMANTHAPPA A, ADVOCATE)
                AND:

                1.    YOGISH KUTKUNJE PAI
                      S/O RAM MOHAN K PAI
                      AGED ABOUT 38 YEARS
                      DRIVER CUM OWNER OF CAR BEARING
                      REG. NO.KA-05/MV 2504
                      R/O B5 804, ELITA PROMINADAE
                      J P NAGAR, 7TH PHASE
                      BANGALORE - 560 078
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                                              NC: 2024:KHC:43104-DB
                                                MFA No.4396/2020



2.   THE MANAGER
     IFFCO-TOKIO GENERAL INSURANCE
     COMPANY LTD.
     IFFCO TOWER, 4TH AND 5TH FLOORS
     PLOT NO.3, SECTION 29 GURGAON
     REP. THROUGH, THE MANAGER
     IFFCO-TOKIO GENERAL INSURANCE
     COMPANY LTD, BRANCH OFFICE
     LAWYER STREET, K B EXTENSION
     DAVANAGERE - 577 001                           ... RESPONDENTS

(BY SRI.MURALIDHARA N, ADVOCATE FOR R2;
 NOTICE TO R1 IS DISPENSED WITH V/O DTD:28.03.2024)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, PRAYING TO MODIFY THE JUDGMENT
AND AWARD DATED 13.11.2018 PASSED IN MVC NO.240/2018 ON
THE FILE OF THE PRL. SENIOR CIVIL JUDGE, MEMBER, MACT-IV,
DAVANGERE, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.


     THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:     HON'BLE MRS JUSTICE K.S.MUDAGAL
           AND
           HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL

                         ORAL JUDGMENT

(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)

"Whether the compensation awarded to the

appellants/claimants under the impugned award is just?" is the

question involved in this case.

2. Appellants were claimant Nos.1 to 4 and

respondents were respondent Nos.1 and 2 in MVC No.240/2018

before the Tribunal. For the purpose of convenience, the parties

NC: 2024:KHC:43104-DB

are referred to henceforth according to their ranks before the

Tribunal.

3. Claimant No.1 is the wife, claimant No.2 is the

minor son, claimant Nos.3 and 4 are the parents of the

deceased Shekharappa.H. On 08.12.2017 at 6:15 p.m., when

Shekharappa.H and his co-brother Thippeswamy were traveling

on motorcycle bearing registration No.K.A-17-X-2690 near

Hunasekatte village, respondent No.1 the driver of the Car

bearing registration No.K.A-05-MV-2504 hit their motorcycle.

In the accident, both Shekharappa.H, the rider of the

motorcycle and Thippeswamy the pillion rider suffered injuries.

Shekharappa.H succumbed to the injuries on his way to the

hospital. At the time of accident, respondent Nos.1 and 2 were

the registered owner and insurer of the Car bearing registration

No.K.A-05-MV-2504.

4. Claimants filed MVC No.240/2018 claiming

compensation of Rs.80,00,000/- on the ground that the

deceased Shekharappa.H was working as KSRTC driver cum

conductor and they were all dependent on his income, due to

his death, they have suffered the damages and respondents

are liable to compensate the said damages. Thippeswamy filed

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MVC No.241/2018 seeking compensation for the injuries

suffered by him.

5. Respondent Nos.1 and 2 contested the petition

denying actionable negligence on the part of respondent No.1

the driver of the car, age, occupation, income of the deceased

and their liability to pay the compensation.

6. The Tribunal consolidated MVC Nos.240/2018 and

241/2018 and recorded common evidence. On behalf of

claimants, PWs.1 to P4 were examined and Exs.P1 to 28 were

marked. Respondents did not lead any oral evidence. The

Tribunal on hearing the parties by the impugned common

judgment and award held that the accident occurred due to

actionable negligence on the part of respondent No.1.

7. The Tribunal based on the evidence of PW.4 and

Ex.P12 the pay slips held that, Shekharappa.H was working as

driver cum conductor in KSRTC, Davanagere division. Based on

Ex.P12, the Tribunal assessed his monthly income at

Rs.24,502.84/-, added 30% to the same by way of future

prospects, deducted 1/4th from his income for his personal

NC: 2024:KHC:43104-DB

expenses, applied 16 multiplier and awarded compensation of

Rs.45,86,932/- on the head of loss of dependency.

8. The Tribunal in all awarded compensation of

Rs.46,56,932/- on different heads as per the table below:

         Sl.            Particulars               Compensation
         No.                                      awarded in Rs.
         1.    Loss of dependency                       45,86,932/-
         2.    Loss of estate                                40,000/-
         3.    Loss of Consortium                            15,000/-

         4.    Funeral expenses                              15,000/-

                           Total                        46,56,932/-

9. The Tribunal awarded interest at 8% per annum

and directed respondent No.2-insurer to pay the said

compensation.

10. Claimants have challenged the award on the ground

that the compensation awarded is not just and fair and is

inadequate. Respondents have not challenged the award on

any of the grounds. Therefore, award against them has become

final.

11. Sri A Hanumanthappa, learned Counsel for the

appellants/claimants submits that having regard to the

evidence of PW.4 and nature of employment of the deceased,

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the Tribunal ought to have added 50% to the income of the

deceased by way of future prospects and compensation

awarded on the other heads is on the lower side.

12. Sri Muralidhara N, learned Standing Counsel for

respondent No.2 justifies the impugned award claiming that out

of the income of the deceased, Income Tax and Professional

Tax has to be deducted.

13. This Court has to examine whether compensation

awarded is just and fair. The evidence of PW.4, Exs.P9, 10 and

12 i.e., I.D card of the deceased, his driving licence and pay

slips respectively, show that deceased was working as driver

cum conductor in KSRTC, Davanagere division. That fact was

not disputed also. As per Ex.P12 his last gross salary was

Rs.24,502.84/-. Out of the said amount, Rs.200/- has to be

deducted for Professional Tax. PWs.1 and 4 were not cross-

examined by the respondents to show that the income of

deceased had crossed exempted limit and was taxable and tax

had to be deducted. Even Ex.P12 salary slips did not show his

income had crossed exempted limit. Therefore, at this stage, it

is not open to the respondents to contend that tax ought to

NC: 2024:KHC:43104-DB

have been deducted. On deducting Professional Tax, his

monthly income comes to Rs.24,302/-.

14. The deceased was permanently employed and aged

35 years. Therefore, having regard to the judgment of Hon'ble

Supreme Court in the case of National Insurance Company

Limited vs. Pranay Sethi and Others1, 50% has to be added to

the income of the deceased by way of future prospects. Hence,

his monthly income comes to Rs.36,453/- (24,302 + 12,151)

and his annual income comes to Rs.4,37,436/- (36,453 x 12).

The applicable multiplier is 16. As deceased had four

dependants, 1/4th has to be deducted for his personal expenses

and 3/4th has to be taken for assessing loss of dependency.

Therefore, compensation payable on the head of loss of

dependency comes to Rs.52,49,232/- (4,37,436 x 16 x ¾).

15. In view of the judgment of Supreme Court in the

cases of Pranay Sethi's referred to supra and Magma General

Insurance Company Limited vs. Nanu Ram & Ors2,

compensation of Rs.40,000/- to each of the claimants under

the head of loss of consortium with escalation of 10% for every

three years has to be given, which comes to Rs.1,92,000/-.

(2017) 16 SCC 680

(2018) 18 SCC 130

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Similarly on the heads of funeral expenses and loss of estate,

sum of Rs.15,000/- + Rs.15,000/- with escalation at 10% for

every three years has to be awarded which comes to

Rs.36,000/-. Therefore, the just compensation payable is as

follows:

                 Particulars               Amount (Rs.)
        Loss of dependency                        52,49,232/-
        Loss of consortium                         1,92,000/-
        Loss of estate                                    18,000
        Funeral expenses                                  18,000
                    Total                       54,77,232/-
        Awarded by Tribunal                       46,56,932/-
        Enhanced compensation                    8,20,300/-

The same is payable with interest at 6% per annum. The

appeal deserves to be allowed in part. Hence, the following:

ORDER

The appeal is allowed in part.

The appellants - claimants are entitled to enhanced

compensation of Rs.8,20,300/- with interest thereon at

6% p.a. from the date of petition till its realization.