Karnataka High Court
Govind S/O Demu Gadade vs Ankush S/O Mahadev Aldar on 6 July, 2022
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 06TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
MISC. FIRST APPEAL NO.100999 OF 2014 (MV-D)
BETWEEN:
1. SHRI GOVIND
S/O.DANU GADADE
AGED ABOUT 60 YEARS
OCC: COOLIE
2. SMT.CHAYA
W/O.GOVIND GADADE
AGED ABOUT 50 YEARS
OCC; HOUSEHOLD WORK
3. KUMARI MANGALA
D/O.GOVIND GADADE
AGED ABOUT 19 YEARS
OCC; STUDENT
4. KUMARI SUNITA
D/O.GOVIND GADADE
AGED ABOUT 17 YEARS
OCC;STUDENT
ALL ARE RESIDING AT
NAGANUR, K.D.TALUK
HUKKERI DISTRICT
BELGAUM
...... APPELLANTS
(BY SRI UMESH C. AINAPUR, ADVOCATE)
AND:
1. SHRI ANKUSH
S/O.MAHADEVA ALDAR
SECT NO.26, BUILDING NO.C-III
ROOM NO.2, MAHARASHTRA CO.OP
HSG SOCIETY, VASHI NAVI
2
MUMBAI -400 703
MAHARASHTRA
2. THE NEW INDIA ASSURANCE CO.LTD
BRANCH 9TH FLOOR
NEW INDIA CENTRE 17/A
CO-OPERATE ROAD
MUMBAI - 01
THROUGH ITS DIVISIONAL OFFICE
CLUB ROAD, BELGAUM
3. SRI JAGANNATH
S/O.BABASAHEB PATIL
MAJOR, OCC;BUSINESS
RESIDING AT KOKATE TAL
KAVATEMANKAL
DISTRICT SANGALI
MAHARASHTRA ... RESPONDENTS
(BY SMT.PREETI SHASHANK, ADVOCATE FOR R2;
NOTICE TO R1 & R-3 IS DISPENSED WITH)
***
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173 (1) OF MOTOR VEHICLES ACT, 1988,
AGAINST THE JUDGMENT AND AWARD DATED 11.12.2013
PASSED BY THE LEARNED I ADDL. SENIOR CIVIL JUDGE
AND MOTOR ACCIDENT CLAIMS TRIBUNAL, BELGAUM IN
MVC NO.2234/2012 BY ENHANCING THE COMPENSATION
TO THE APPELLANT AND PASS SUCH OTHER ORDER OR
ORDERS AS THIS HON'BLE COURT DEEMS FIT IN THE
CIRCUMSTANCES AND ETC.
THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the claimants challenging the judgment and award dated 11.12.2013 passed by the I Addl. Senior Civil Judge and M.A.C.T, Belgaum (for short 'the Tribunal') in MVC No.2234/2012. This appeal is 3 founded on the premise of inadequacy of compensation on various grounds urged therein.
2. Though this matter is listed for admission, with consent of learned counsel on both sides, matter is taken up for final disposal.
3. Parties to the appeal shall be referred to as per their status before the tribunal.
4. Brief facts of the case are as under:
Claimants No.1 and 2 are the parents and Claimants No.3 and 4 are the sisters of the deceased Daryappa Gadade. That on 31.07.2012 at about 12.30pm when the deceased was proceeding in Mahindra Pick-up bearing Registration No.MH-10 Z-6040 along with its driver on Jatta-Satara Road and when they reached Birnal Village, a Truck bearing Registration No.MH-43 Y-1197 came from back side in a rash and negligent manner, lost control and dashed to the vehicle in which deceased was traveling. Due to the said impact deceased sustained fatal injuries and died on the spot.
5. It is stated that the deceased was aged about 21 years. He was doing Commission Agent in PACL Limited 4 and thereby getting yearly commission of Rs.2,50,000/- and also an aspirant of job in CRPF. The deceased was the only earning member of the family, who used to look after the claimants and the family was depending on his income. In view of the sudden and untimely death of deceased, the claimants have lost their sole bread earner, love and affection and also mentally and financially. Hence, they filed a claim petition seeking compensation.
6. On service of notice, respondent No.1, being Owner of the Truck bearing Registration No.MH-43 / Y-1197 and respondent No.3, being Owner of the goods vehicle Mahindra Pick up bearing Registration No.MH-10 / Z-6040, remained absent and they were placed ex-parte. Whereas, the respondent No.2 - Insurance Company filed detailed objections, inter-alia, denying the occurrence of accident, involvement of vehicle, existence of insurance policy and both the drivers not possessing a valid and effective driving licence as on the date of occurrence of accident, so also, the age, occupation and income of the deceased. It also pleaded that the amount of compensation sought for the claimants was exorbitant 5 and on these grounds, sought for dismissal of the claim petition.
7. On the basis of pleadings, the Tribunal framed relevant issues for consideration.
8. In order to substantiate the issues and to establish the case, the claimant No.1 examined himself as PW1 and got marked the documents as Exs.P1 to P18. Whereas, on behalf of respondent No.2 - Insurer Ex.R1- Policy has been marked and no evidence was adduced on their behalf.
9. On the basis of material evidence both oral and documentary, the Tribunal fastened liability jointly as against the owner - respondent No.1 and insurer - respondent No.2 of the offending vehicle and awarded total compensation of Rs.6,11,000/- with 6% interest and directed the 2nd respondent to indemnify the 1st respondent by paying the compensation.
10. It is the vehement contention of learned counsel for the claimants-appellant that the judgment and award passed by the Tribunal is erroneous, contrary to the material evidence placed on record and the documents 6 presented by the claimants. Learned counsel further contends that the Tribunal has erred in awarding meager amount towards loss of dependency by not taking the appropriate income for calculation as stated on oath by the claimant-PW.1. Learned counsel further contends that the Tribunal has awarded meager compensation under other heads and has not awarded just and reasonable compensation, which also requires interference at the hands of this Court.
11. Learned counsel further contends that the Tribunal has not awarded suitable compensation under the head of loss of consortium to all the dependants/legal representatives of the deceased. He further contends that the Tribunal has committed a gross error in not adding loss of future prospects of income to the deceased and also 1/4th of the amount ought to have been deducted towards personal and living expenses as against 50% by the Tribunal in view of there being four dependants to the deceased. He further contends that the Tribunal has grossly erred in not awarding suitable amount under the head loss of consortium. On these grounds, they seek 7 enhancement of compensation and consequently allow the appeal.
12. Per contra, learned counsel Smt. Preeti Shashank, appearing on behalf of the respondent No.2 - Insurance Company vehemently contends that the judgment and award passed by the Tribunal is in consonance with the material evidence placed on record and the same in fact is on the higher side. She further contends that the judgment and award passed by the Tribunal is in accordance with the material placed on record and that the Tribunal is right in deducting 50% towards personal and living expenses in view of the fact that the deceased was a bachelor at the time of accident. She further contends that the amount awarded towards loss of consortium does not call for interference. Learned counsel further contends that the award of compensation on the other heads are suitably calculated and rightly awarded, which does not call for interference and on the basis of these submissions, she seeks to dismiss the appeal filed by the claimants.
13. Having heard the learned counsel for the appellants-claimants and learned counsel for respondent 8 No2 - Insurer, the points that would arise for consideration before this Court are:
"i) Whether the claimants are entitled to enhancement of compensation ?
ii) What order"
14. On a careful perusal of entire material on record and having gone through the impugned judgment and award including the exhibits exhibited in the case on hand, it is apparently seen that the claimants would be entitled for enhancement of compensation for the reason stated herein below.
15. It is not in dispute that the accident occurred on 31.07.2012 at 12.30pm between Mahindra Pick-up Van and a Truck leading to the death of deceased Daryappa Gadade. These aspects have been proved by way of production of Ex.P1 to P7, which are police records. Admittedly, there is no challenge made to the initiation of criminal prosecution and laying of charge sheet. The Insurance Company has not filed any appeal against the judgment and award. Under the circumstances, there is no requirement of this Court to delve into the occurrence of accident, involvement of the vehicle and so also the death having occurred due to the road traffic accident.
9
16. Now, the question that is to be decided by this Court is whether the compensation awarded is meager and calls for interference of this Court.
17. On the basis of the material evidence placed before this Court it is seen that the deceased was aged about 21 years and working as Commission Agent and self employee. In order to prove his income he has produced Ex.P8 - Statement from PACL, P12 being the Pan Card, P9 being the Income Tax copy for assessment year 2012-13, P10 - statement of Annual Tax, P11-Form 16A for the year 2012-13 and assessment from 2011 to 31.03.2012. As per Ex.P10 the income of the deceased is shown as Rs.76,021/- and the tax deducted at source is Rs.9,480/-. Therefore, after deducting the TDS the income would be Rs.66,541/- for a period of six months. Though PW2 himself has stated that the amount is paid for seven months will have to deduct tax for six months, hence by dividing Rs.66,541/- by six months it would be Rs.11,090/-. It is also to be noted that the Tribunal has committed a gross error taking the notional income of Rs.7,000/- per month by totally ignoring the materials placed on record with regard to Ex.P8 to P17. In view of Income tax having been paid and considering 10 Ex.P8 to P12. The income of the deceased per month and the same would be rounded of to Rs.11,000/-.
18. In view of the deceased being aged less than 40 years, 40% will have to be added towards loss of future prospects Rs.15,400/- (Rs.11,000/- + 40%). Further, in view of the deceased being aged 21 years as on the date of occurrence of accident and being a bachelor 50% would have to be deducted from his income towards personal and living expenses as contemplated in the case of Sarla Verma (Smt) and others vs. Delhi Transport Corporation and another reported in (2009) 6 Supreme Court Cases 121, which would be Rs.7,700/- (Rs.15,400/- X 50%). Hence, loss of dependency would be Rs.16,63,200/- (Rs.7,700/- X 12 X 18).
19. The Tribunal has committed an error in calculating the multiplier to be 13 by considering the age of the younger parent to be 48 years. I am in agreement with the learned counsel for claimants that the appropriate multiplier to be calculated would be on the age of the deceased rather than the age of the surviving parent, much less, the younger parent. The appropriate multiplier in the 11 present case would be 18 as the deceased was aged 21 years as on the date of accident and his death.
20. I am in agreement with the contentions of the learned counsel for claimants that the Tribunal has committed an error in not awarding suitable compensation under the conventional heads. Admittedly, there are four dependents, father, mother and two minor sisters. Accordingly, each of the dependants would be entitled to Rs.40,000/- per head, as contemplated in the case of National Insurance Company Limited vs. Pranay Sethi and others reported in (2017) 16 Supreme Court Cases 680, which has been subsequently followed in the case of United India Insurance Co. Ltd. v. Satinder Kaur Alias Satinder Kaur reported in AIR 2020 SC 3076, therefore amount of Rs.1,60,000/- (Rs.40,000/- X 4 dependants) is awarded under the head of loss of consortium.
21. Towards loss of estate Rs.15,000/- requires to be awarded and transportation of dead body & funeral expenses a sum of Rs.15,000/- requires to be awarded and it is accordingly awarded.
12
22. Accordingly, under conventional head Rs.1,90,000/- (Loss of consortium Rs.1,60,000/- + Loss of estate Rs.15,000/- + Towards transportation of dead body & funeral expenses Rs.15,000/-) is awarded. As per the decision of Pranay Sethi, stated supra, 10% on the conventional head for each block period requires to be awarded, which in the present case would be Rs.19,000/- for one block period.
23. In all, the claimants are entitled to total compensation in a sum of Rs.18,72,200/- as against a sum of Rs.6,11,000/-, as detailed in the table below:
SL. NO. HEAD AMOUNT (in Rs.)
01. Loss of income due to 16,63,200-00
dependency
(Rs.7,700/- x 12 x 18)
02. Total amount on convention 1,90,000-00
head
03. 10% of Rs.1,90,000/- for 19,000-00
one block period
TOTAL 18,72,200-00
24. For the foregoing reasons, I pass the following:
ORDER
i) The appeal is partly allowed.
ii) The judgment and award dated 11.12.2013 passed by the I Addl. Senior Civil 13 Judge and M.A.C.T, Belgaum in MVC.No.2234/2012, is modified;
iii) The claimants are entitled for total compensation in a sum of Rs.18,72,200/- as against a sum of Rs.6,11,000/- awarded by the Tribunal;
iv) All other terms and conditions with regard to apportionment and deposit as directed by the Tribunal shall stand intact;
v) The balance amount of compensation shall be paid by the 2nd respondent/Insurance Company along with 6% interest within a period of six weeks from the date of receipt of a certified copy of the order before the Tribunal.
vi) Registry to transmit the records to the concerned Tribunal forthwith.
SD JUDGE VK