Karnataka High Court
Smt Nagamma vs Kiran V on 4 September, 2024
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NC: 2024:KHC:36099
MFA No.125 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
MISCELLANEOUS FIRST APPEAL NO.125/2021 (MV-D)
BETWEEN:
SMT. NAGAMMA
W/O T.M. SWAMY
AGED ABOUT 46 YEARS
R/AT. GUMMANAKOLLI VILLAGE
MULLUSOGE POST
KUSHALNAGAR HOBLI
SOMWARPET TOWN
KODAGU DISTRICT-571236.
T.M. SWAMY IS DEAD
Digitally signed by
AASEEFA PARVEEN LR ARE ALREADY ON RECORD.
Location: HIGH ...APPELLANT
COURT OF
KARNATAKA (BY SMT. SUMA K, ADV.,)
AND:
1. KIRAN .V
S/O VENKATARAMAIAH SHETTY
AGED ABOUT 33 YEARS
RESIDING AT OLD NO.31
NEW NO.61, 4TH CROSS
S P EXTENSION, MALLESHWARAM
BANGALORE-560003.
2. THE NEW INDIA ASSURANCE CO LTD.,
DIVISIONAL OFFICE-1, JLB ROAD
CHAMUNDIPURAM
MYSURU-570004.
...RESPONDENTS
(BY SRI. MALLIKARJUN REDDY N.A ADV., FOR
SRI. B.PRADEEP, ADV., FOR R2
V/O DTD:21.03.2022, NOTICE TO R1 IS D/W)
-2-
NC: 2024:KHC:36099
MFA No.125 of 2021
THIS M.F.A. IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 09.07.2018 PASSED IN
MVC NO.157/2017 ON THE FILE OF THE PRL. DISTRICT AND
SESSIONS JUDGE, AND MACT, KODAGU MADIKERI, 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 DR. JUSTICE CHILLAKUR SUMALATHA
ORAL JUDGMENT
Heard Smt.Suma.K learned counsel for the appellant as
well as Sri.Mallikarjun Reddy.N.A. learned counsel who
represents Sri.Pradeep.B learned counsel for respondent No.2.
2. Dissatisfied with the amount that is awarded as
compensation by the Motor Accidents Claims Tribunal, Madikeri
through orders in MVC No.157/20217 dated 09.07.2018, the
claimant is before this Court. The parents of the deceased
Pavan Kumar moved an application claiming compensation of
Rs.37,15,000/- in total. The Tribunal through the impugned
order awarded a sum of Rs.16,90,000/- as compensation.
Projecting that the said amount is unfair, this appeal is filed.
Though the parents of the deceased Pavan Kumar (hereinafter
be referred to as the 'deceased' for brevity) filed a claim
petition before the Tribunal, in the light of the death of the
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father of the deceased, the appeal is preferred by the mother
alone.
3. Arguing the matter, learned counsel Smt.Suma.K.
submits that the deceased was working as guide cum driver at
Coorg HAWK Adventure Park Club at Koppa village of
Periyapatna Taluk by the date of accident. He was paid salary
of Rs.15,000/- per month apart from bata of Rs.100/- per day.
To establish the occupation and income of the deceased by the
date of accident, the claimants examined PW3 who is the
employer of the deceased. PW3 spoke in clear terms that the
deceased was working under him till the date of accident and
he was being paid salary of Rs.15,000/- per month and also
bata of Rs.100/- per day. But without considering the said
evidence, the Tribunal fixed the notional income as Rs.10,000/-
per month and proceeded with the calculation and awarded a
sum of Rs.16,90,000/- under all heads which is unjustifiable.
Learned counsel thereby seeks to do justice.
4. The submission that is made by Sri.Mallikarjun Reddy
learned counsel for respondent No.2 on the other hand is that
the claimants have not produced any cogent and
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convincing proof with regard to occupation and income of the
deceased by the date of accident. The evidence of PW3 cannot
be taken into consideration as his evidence is not based on any
documentary proof. Learned counsel also states that the
income taken as Rs.10,000/- per month notionally is highly
justifiable.
5. A perusal of record reveals that apart from the
evidence of PW3, the claimants have also produced attested
copy of the Certificate of Registration of the Firm which is
marked as Ex.P13. They have also produced the attendance
register which is marked as Ex.P12. The Tribunal made a clear
mention that in Ex.P12 the name of the deceased is found at
Sl.No.9. The Tribunal taking into consideration the contents of
Ex.P14 Partnership Deed where the remuneration of the
partners is mentioned as Rs.10,000/- per month, took the
notional income of the deceased as Rs.10,000/- per month. The
submission that is made by learned counsel for the appellant in
this regard is that the partners who have started the firm and
intended to establish the same, by taking very less
remuneration, were investing their entire earnings for the
development of the firm. When the occupation was established
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by examining the employer, by producing the attendance
register and the income is also established, the Tribunal ought
to have taken the said evidence into consideration. This Court
finds justification in the submission thus made by learned
counsel for the appellant. This Court does not find any grounds
to discard either the oral evidence that is produced in the form
of PW3 or the documentary evidence produced i.e., Exs.P12
and P13. Therefore, basing on the said evidence, this Court
considers desirable to take the income of the deceased as
Rs.15,000/- per month by the date of accident.
6. It is not in dispute that the deceased was aged
about 22 years by the date of accident. Therefore, 40% of the
earnings of the deceased are required to be added towards
future prospects as per the decision of the Hon'ble Apex Court
in the case of National Insurance Company Limited VS. Pranay
Sethi and Others reported in (2017) 16 SCC 680. Also, as the
deceased died as bachelor, 50% of his earnings are required to
be deducted towards the personal and living expenses which
the deceased would have incurred for himself had he been
alive. The appropriate multiplier to be applied is '18'. With the
said parameters, the loss of dependency is calculated as under:
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Amount
Description
In Rs.
Monthly Income 15,000-00
Annual Income (Rs.15,000X12) 1,80,000-00
Add 40% towards future
2,52,000-00
prospects (1,80,000+40%)
Deduct 50% towards personal
1,26,000-00
and living expenses
on applying appropriate multiplier
22,68,000-00
'18', loss of dependency is
7. Thus, the claimants are entitled to Rs.22,68,000/-
towards loss of dependency. Apart from the said amount, they
are also entitled to Rs.15,000/- towards funeral expenses,
Rs.15,000/- towards loss of estate and Rs.40,000/- towards
loss of filial consortium. Thus, the amount which the claimants
are entitled to is as under:
Amount
Sl No. Compensation
in Rs.
1 Loss of dependency 22,68,000-00
2 Funeral expenses 15,000-00
3 Loss of estate 15,000-00
4 Loss of filial consortium 40,000-00
Total 23,38,000-00
Thus, this Court is of the view that the appellant is
entitled to a sum of Rs.23,38,000/- as compensation. Thus, the
appeal is disposed of with the following:
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ORDER
(i) The appeal is allowed in part.
(ii) The compensation that is awarded by the Motor
Accident Claims Tribunal, Madikeri through orders in
MVC No.157/2017 dated 09.07.2018 is enhanced
from Rs.16,90,000/- to Rs.23,38,000/-.
(iii) The enhanced sum shall carry interest at the rate of
6% per annum from the date of petition till the date
of deposit.
(iv) Respondent No.2 is directed to deposit enhanced
sum within a period of eight weeks from the date of
receipt of copy of this order.
(v) On such deposit, the appellant is permitted to
withdraw the entire amount.
Sd/-
(DR.CHILLAKUR SUMALATHA)
JUDGE
DS
