Karnataka High Court
The Divisional Manager vs Smt. Hemavathi on 5 March, 2025
Author: S G Pandit
Bench: S G Pandit
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MFA No. 101605 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF MARCH, 2025
PRESENT
THE HON'BLE MR. JUSTICE S G PANDIT
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO.101605 OF 2017 (MV-D)
BETWEEN:
THE DIVISIONAL MANAGER,
NATIONAL INSURANCE CO. LTD.,
HAVING ITS DIVISIONAL OFFICE
GSR TOWER, PARVATHI NAGAR,
SHIRAGUPPA MAIN ROAD,
BALLARI-583101,
BY AUTHORIZED SIGNATORY-
ADMINISTRATIVE OFFICER (A.I KUBSAD).
...APPELLANTS
(BY SRI. RAJESH B. RAJANAL, ADVOCATE)
ASHPAK
KASHIMSA AND:
MALAGALADINNI
Digitally signed by 1. SMT. HEMAVATHI,
ASHPAK KASHIMSA
MALAGALADINNI
Location: HIGH COURT W/O LATE YERRISWAMY,
OF KARNATAKA
DHARWAD BENCH
AGED 23 YEARS,
2. MINOR MANJUNATHA,
S/O YERRISWAMY,
AGED 8 YEARS,
3. MINOR DHARANI,
D/O YERRISWAMY,
AGED 6 YEARS,
4. MINOR VISHWANATHA,
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MFA No. 101605 of 2017
S/O YERRISWAMY,
AGED 4 YEARS,
(ALL R/O. B. BELAGAL VILLAGE,
TQ & DIST. BELLARY.
MINORS 2 TO 4 ARE REP. BY
NATURAL MOTHER, RESPONDENT NO.1)
5. M. MAHESH,
S/O MAREPPA,
AGE: 24 YEARS,
OCC: DRIVER,
R/O: RAMADURGA POST,
TQ: KUDLIGI,
DIST: BALLARI.
6. M.C. UJJAPPA,
S/O CHANNAVEERAPPA,
AGE: 42 YEARS,
OCC: OWNER OF LORRY,
R/O: HIREHAL VILLAGE, KALINGERI POST,
SANDUR TALUK, DIST: BALLARI.
7. SMT. ERAMMA,
W/O LATE HONNURAPPA,
AGE: 57 YEARS,
R/O: W.NO.1 S.C. COLONY,
B. BELAGAL VILLAGE,
TQ AND DIST: BALLARI.
...RESPONDENTS
(BY SRI. HANUMANTHAREDDY SAHUKAR, ADVOCATE R1 & R7)
(R2 TO R4 ARE MINORS R/BY R1) (NOTICE TO R6 IS SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION
173(I) MOTOR VEHICLES ACT 1988, PRAYING TO, ALLOW THE APPEAL
AS PRAYED FOR BY SETTING ASIDE THE JUDGMENT AND AWARD
DATED 24.10.2016 PASSED BY THE LEARNED PRINCIPAL SENIOR
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MFA No. 101605 of 2017
CIVIL JUDGE AND MACT-III BALLARI IN MVC NO.1135/2015 WITH
COSTS AND INTERESTS IN THE INTEREST OF JUSTICE AND EQUITY.
THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR
ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS
UNDER:
CORAM: THE HON'BLE MR. JUSTICE S G PANDIT
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE S G PANDIT)
The insurer is in appeal under Section 173(1) of the Motor
Vehicles Act, 1988, questioning the quantum of compensation
awarded by the Principal Senior Civil Judge and Motor Accident
Claims Tribunal-III, Ballari (for short, 'the Tribunal') under the
judgment and award, dated 24.10.2016, passed in M.V.C.
No.1135/2015.
2. The claimants filed claim petition under Section 166
of the Motor Vehicles Act, 1988 (for short, 'the MV Act') claiming
compensation for the accidental death of one Sri. Yerriswamy,
the husband of the claimant No.1, in a road traffic accident that
occurred on 17.08.2015 involving lorry bearing registration
No.KA-34/A-1685 and another lorry bearing registration No.KA-
35/B-2057. The claimants arrayed, the driver, the owner and the
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insurer of the lorry bearing registration No.KA-35/B-2057, and
also arrayed mother of the deceased as respondents to the claim
petition. The claimants stated that the deceased was aged 30
years as on the date of the accident, and he was working as a
driver, earning a sum of Rs.10,000/- per month and was
contributing his entire income towards maintenance of the
family.
3. On issuance of notice, respondent No.3-insurance
company (appellant herein) filed its statement of objections
denying the petition averments, but admitted issuance of policy
which was in force as on the date of the accident. It further
contended that the accident occurred because of the negligent
driving of the deceased himself and sought for dismissal of the
claim petition.
4. The claimant No.1, in order to prove their case,
examined herself as P.W.1 and produced 14 documents which
were marked as Exs.P.1 to P.14. On behalf of the respondents,
the insurer examined one of its Officers as R.W.1 and marked
three documents as Exs.R.1 to R.3. The Tribunal, considering the
evidence on record, awarded a total compensation of
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Rs.26,43,200/- in favour of the claimants and respondent No.4
therein, with interest at the rate of 9% per annum, on the
following heads:
1) Loss of Dependency Rs. 14,68,800/-
2) 50% future prospects Rs. 7,34,400/-
3) Loss of consortium (P.1) Rs. 1,50,000/-
4) Loss of Love and affection (P.2 to P.4 Rs. 1,40,000/-
Rs.30,000/- each and 4th respondent
Rs.20,000/-)
5) Loss of estate (P1 to 4 & R4 Rs.25,000/- Rs. 1,25,000/-
each)
6) Transportation of Dead Body and funeral Rs. 25,000/-
expenditure
TOTAL Rs. 26,43,200/-
While awarding the above compensation, the Tribunal has
assessed the income of the deceased at Rs.9,000/-, adopted
multiplier '17' and deducted 1/5th of the assessed income
towards personal expenses of the deceased. Aggrieved by the
quantum of compensation awarded by the Tribunal, the insurer
is in appeal.
5. Heard Sri. Rajesh B.Rajanal, learned counsel for the
appellant-insurance company and Sri. Hanumantreddy Sahukar,
learned counsel for the respondents No.1 and 7. Perused the
appeal papers.
6. Sri. Rajesh B.Rajanal, learned counsel for the
appellant-insurance company would submit as under:
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(a) The Tribunal committed a grave error in granting 50% of the
assessed income towards 'future prospects'. He submits that
the deceased was a driver and he was not having a
permanent employment and therefore, the claimants would
be entitled for addition of 40% of the assessed income
towards 'future prospects'.
(b) The Tribunal has assessed the income of the deceased at
Rs.9,000/- per month. However, as per the Notional Income
Chart prepared by the Karnataka Legal Services Authority,
for the accident of the year 2015, the income is fixed at
Rs.8,000/- per month. Hence, the income of the deceased
needs to be revised on the lower side.
(c) The dependants of the deceased are the claimants, who are
the wife and three children, and the mother of the deceased
(who is arrayed as respondent No.4 before the Tribunal).
Totally, the dependants are five in numbers, and in terms of
Sarla Verma Vs. Delhi Transport Corporation1, the proper
deduction towards personal expenses of the deceased would
be 1/4th of the assessed income and not 1/5th as adopted by
the Tribunal.
(2009)6 SCC 121
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(d) Learned counsel for the appellant-insurance company also
submitted that the Tribunal committed an error in awarding
interest on the compensation at the rate of 9% per annum.
He submits that, normally, bank interest rates on the fixed
deposits will have to be taken note of which is 6% per
annum. Therefore, he prays for reducing the rate of interest
awarded on the compensation from 9% to 6%.
Thus, on the above grounds, the learned counsel for the
appellant-insurer prays for modifying the quantum of
compensation awarded by the Tribunal.
7. Per contra, Sri. Hanumanthreddy Sahukar, learned
counsel appearing for the respondents/claimants would submit
that the Tribunal has rightly assessed the income of the
deceased at Rs.9,000/- per month. He submits that the
deceased was working as a driver and to prove his avocation,
the claimants have placed on record Ex.P.14, a certified copy of
driving licence. He submits that the deceased had potential to
earn income of more than Rs.10,000/- per month and the
Tribunal based on the material on record has assessed the
income of the deceased at Rs.9,000/- which requires no
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interference. Further, learned counsel would submit that the
claimants would be entitled for loss of consortium at the rate of
Rs.40,000/- with an addition of 10% for every three years in
terms of the judgment of the Apex Court in the case of Magma
General Insurance Company Ltd., Vs. Nanu Ram and Others2
Thus, learned counsel would pray for dismissal of the appeal.
8. Having heard the learned counsel for the parties and
on perusal of the appeal papers, the only point that arises for
consideration in this appeal is,
i) Whether the quantum of compensation awarded
by the Tribunal requires modification?
9. Our answer to the above point is in the affirmative
for the following reasons:
10. The occurrence of the accident that took place on
17.08.2015 involving lorry bearing registration No.KA-34/A-1685
and another lorry bearing registration No.KA-35/B-2057, and the
resultant death of Sri. Yerriswamy, is not in dispute in this
appeal. The insurer is in appeal questioning the quantum of
compensation awarded by the Tribunal.
2018 ACJ 2782
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11. The learned counsel for the appellant contended
that the income of the deceased assessed by the Tribunal at
Rs.9,000/- is on the higher side. But taking note of the
material on record, that is, the driving licence at Ex.P.14, we
are of the view that assessment of income of the deceased by
the Tribunal at Rs.9,000/- per month is just and proper. The
deceased was possessing the driving licence to drive LMV-
Transport and he had the potential to earn more than what is
fixed by the Karnataka Legal Services Authority in the Notional
Income Chart. Therefore, no interference is called for with
regard to assessment of income of the deceased by the
Tribunal.
12. The learned counsel for the appellant-insurance
company contended that the Tribunal has committed a grave
error in awarding 50% of the assessed income towards 'future
prospects'. The said contention needs consideration. The
deceased was aged 30 years, and he was working as a driver
and had no permanent income. The Apex Court in the case of
National Insurance Company Limited Vs. Pranay Sethi &
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Others3 (supra) has made it clear that where the deceased was
below the age of 40 years and if he was not in a permanent
employment with established income, the claimants would be
entitled for addition of 40% of the assessed income towards
'future prospects'. Hence, the claimants would be entitled for
addition of 40% of the assessed income towards 'future
prospects' instead of 50% as adopted by the Tribunal.
13. Admittedly, there are five dependants i.e., the
claimants, who are the wife and the three children, and the
mother of the deceased. In terms of Sarla Verma's case
(supra), the proper deduction towards personal expenses of
the deceased, where the dependants are five in numbers,
should be 1/4th and not 1/5th. Therefore, the Tribunal has erred
in deducting 1/4th of the assessed income towards personal
expenses of the deceased.
14. Taking the income of the deceased at Rs.9,000/-
per month, adding 40% of the assessed income towards
'future prospects, deducting 1/4th of the same towards
personal expenses of the deceased, and adopting multiplier
AIR 2017 SC 5157
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'17, the claimants would be entitled to a sum of
Rs.19,27,800/- towards 'loss of dependency'
15. In view of the decision of the Hon'ble Apex Court in
Pranay Sethi (supra) the claimants would be entitled to a sum
of Rs.16,500/- each (i.e., Rs.15,000 + Rs.1,500 being 10%
addition for every three years) on the heads of 'loss of estate'
and 'funeral expenses'. In view of the decisions of the Hon'ble
Apex Court in the case of Pranay Sethi (supra) and Magma
General Insurance Company Ltd., Vs. Nanu Ram and Others4,
the claimants being the wife, three children and mother of the
deceased are entitled to a sum of Rs.44,000/- (i.e., Rs.40,000
+ Rs.4,000 being 10% addition for every three years) each on
the head of 'loss of spousal, parental and filial consortium'.
16. The Tribunal has erred in awarding interest payable
on the compensation at the rate of 9% per annum. Having
taken the judicial note of prevailing bank interest rates on the
fixed deposits is 7% per annum, we reduce the rate of interest
payable on the compensation from 9% to 7% per annum.
2018 ACJ 2782
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17. Thus, the claimants would be entitled for modified
compensation on the following heads:
1) Loss of Dependency Rs. 19,27,800/-
2) Loss of consortium (to respondents No.1 Rs. 2,20,000/-
to 4 & 7 in the appeal)
3) Loss of Estate Rs. 16,500/-
4) Funeral expenses and transportation of Rs. 16,500/-
dead body
TOTAL Rs. 21,80,800/-
Thus, the respondents No.1 to 4, and 7 herein, being the wife,
children and mother of the deceased, would be entitled to total
compensation of Rs.21,80,800/- instead of Rs.26,43,200/- as
awarded by the Tribunal with interest at the rate of 7% per
annum from the date of claim petition till realization.
18. Hence, we pass the following:
ORDER
a) The above appeal is allowed in part.
b) The judgment and award, dated 24.10.2016, passed
in MVC No.1135/2015 by the Principal Senior Civil
Judge and MACT-III, Ballari, is hereby modified to
the extent of holding that the respondents No.1 to 4,
and 7 herein, being the wife, children and mother of
the deceased, are entitled to total compensation of
Rs.21,80,800/- instead of Rs.26,43,200/- as
awarded by the Tribunal with interest at the rate of
7% per annum from the date of claim petition till
realization.
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c) The order of Tribunal with regard to apportionment
and deposit of the compensation remains unaltered.
d) The appellant-Insurance Company shall deposit the
compensation amount with accrued interest before
the Tribunal within six weeks from the date of
receipt of certified copy of this judgment.
e) Draw modified award accordingly.
Records of the Tribunal together with the amount in
deposit before this Court be transmitted to Tribunal forthwith
for disbursement.
No order as to costs.
Sd/-
(S G PANDIT)
JUDGE
Sd/-
(C.M. POONACHA)
JUDGE
KMS, CT:VP
