Karnataka High Court
Bhagwan And Ors vs Mohammed And Anr on 12 January, 2022
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF JANUARY 2022
PRESENT
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
AND
THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA
MFA NO.201482/2019 (MV)
BETWEEN:
1. Bhagwan S/o Tulshiram Suravase,
Age: 70 years, Occ: Nil,
2. Vithabai W/o Bhagwan Suravase,
Age: 65 years, Occ: Nil,
3. Ashabai @ Ashwini W/o Santosh Suravase,
Age: 32 years, Occ: Household work,
4. Rohit S/o Santosh Suravase,
Age: 17 years, M/g by appellant No.3,
5. Ranjeet S/o Santosh Suravase,
Age: 15 years, M/g by appellant No.3,
All are R/o Bamanalli,
Tq. and Dist. Vijayapura-586 101.
... Appellants
(By Sri. Sanganagouda V. Biradar, Advocate)
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AND:
1. Mohammed S/o Bapu Mujawar,
Age: 45 Years, Occ: Business,
R/o Mundhewadi, Tq: Pandharpur,
Dist. Solapur-413 304.
2. The Branch Manager,
TATA AIG General Insurance Company Limited,
Penisula Corporate Park,
Nicholas Piramal Tower,
9th Floor, Ganapatrao Kadam Marg,
Lower Patel, Mumbai-400 013.
... Respondents
(Sri. S.S.Aspalli, Advocate for R2;
V/O Dtd. 30.01.2020 notice to R1 is dispensed with)
This Miscellaneous First Appeal is filed under Section
173 (1) of the Motor Vehicles Act, praying to modify the
judgment and award passed in MVC No.1548/2014 dated
08.02.2019 by the III Additional Senior Civil Judge and
Member, MACT-XII at Vijayapura and allow this appeal and
enhance the compensation as claimed in the claim petition.
This appeal coming on for admission this day,
K.S. Hemalekha J., delivered the following:
JUDGMENT
The claimants have preferred this appeal seeking enhancement of compensation by assailing the judgment and award dated 08.02.2019 passed in MVC No.1548/2014 by the III Addl. Senior Civil Judge and MACT No.XII, 3 Vijaypur (hereinafter referred to as 'the Tribunal' for short).
2. The claimants filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short 'M.V. Act') before the Tribunal claiming compensation on account of death of one Santosh S/o Bhagwan Suravase which occurred in a road traffic accident on 22.04.2014. Claimant Nos.1 and 2 are the parents, claimant No.3 is the wife and claimant Nos.4 and 5 are the children of the deceased Santosh.
3. It is the case of the claimants that on 22.04.2014 at around 17-00 hours, the deceased along with the pillion riders was proceeding on the motorcycle bearing Reg.No.MH-13/W-7012 in a cautious manner and at that time a Tractor bearing Reg.No.MH-13/AS-9640 and its Trailers No.MH-13/J-0340 and MH-13/J-0792 came in a rash and negligent manner from the opposite side and dashed the motorcycle of the deceased resulting in the death of said Santosh on spot. It is the contention of the 4 claimants that the deceased was hale and healthy prior to the accident and he was doing flour mill business and also centering work and was earning monthly income of Rs.15,000/- and the deceased was the only earning member of the family and entire family was depended upon the deceased.
4. On issuance of notice by the Tribunal, respondent No.1 though served, did not appear and was placed ex-parte and respondent No.2-Insurance Company appeared through its counsel and filed written statement.
5. Respondent No.2-Insurance Company would deny that the accident occurred due to the rash and negligent driving of the Tractor and also denied the accident. It is further contended that the owner and insurer of the motorcycle bearing Reg.MH-13/W-7012 are necessary parties to the proceedings. The insurance policy in the name of respondent No.1 is admitted by the Insurance Company. It is further contended that there was no negligence on the part of the driver of the Tractor and 5 Trailer and thus contended that the insurance company is not liable to pay any compensation.
6. On the basis of the pleadings of the parties, the Tribunal has framed the following:
ISSUES
1. Whether the petitioners prove that, the deceased was traveling as pillion rider on the motorcycle No.MH-13/W-7012, and it was driven by Shankar Dandage in slow and cautions manner, at that time a Tractor bearing No.MH-13/AS-9640 and its Trailers No.MH-13/J-0340 and MH-13/J-
0792 came from opposite direction in high speed in rash and negligent manner, the driver being unable to control it and dashed to the said motorcycle, resulting the accident the deceased sustained serious injuries and died?
2. Whether the petitioner is entitled for compensation? If so, how much and from whom?
3. What order or award?
7. In order to substantiate their case, claimant No.3 examined herself as PW.1 and got marked 31 documents as Exs.P1 to P31 in all the claim petitions. On the other hand, respondent No.2-Insruance Company 6 examined its official as RW.1 and the RTO Officer as RW.2 and got marked Exs.R1 to R5.
8. On the basis of the evidence on record, the Tribunal has awarded a compensation of Rs.9,88,000/- along with interest at 9% per annum from the date of petition till realization of the compensation amount.
9. The claimants, not being satisfied with the quantum of compensation awarded by the Tribunal have preferred the present appeal.
10. Heard the learned counsel for the appellants/claimants and learned counsel for respondent No.2-Insurance Company and perused the material on record.
11. Sri Sanganagouda V. Biradar, learned counsel for the appellants would contend that the Tribunal has not right in assessing the income of the deceased at Rs.6,000/- per month, as he was earning Rs.15,000/- per month from centering work and also contended that he 7 was skilled centering worker and the Tribunal ought to have at least taken the notional income at Rs.12,000/-. per month and while awarding compensation towards loss of dependency has not made provision for future prospects at 40%, as the deceased was aged about 30 years and thus, the awarding of amount under the head loss of dependency is on the lower side. It is further contended that the award of compensation under the conventional heads viz., loss of love and affection, funeral expenses, transportation of dead body, loss of estate and loss consortium is on the lower side and requires to be enhanced.
12. Per contra Sri. S.S. Aspalli, learned counsel for respondent No.2-Insurance Company would contend that the compensation awarded by the Tribunal is just and proper and the manner in which the Tribunal has assessed the compensation would not call for any interference. He would further contend that awarding of interest on the said compensation at the rate of 9% per annum is on the 8 higher side and in the event this Hon'ble Court enhances the compensation, then interest at the rate of 6% per annum on the enhanced compensation is appropriate.
13. Having heard the learned counsel for the parties, the point that arises for consideration in this appeal is, Whether the appellants are entitled for enhanced compensation?
14. The fact that Santosh succumbed to the injuries sustained by him in the accident that occurred on 22.04.2014 due to the rash and negligent driving of the drive of the Tractor bearing Reg.No.MH-13/AS-9640 and its Trailers No.MH-13/J-0340 and MH-13/J-0792 is not in dispute. However, the controversy is with regard to the quantum of compensation awarded by the Tribunal. The Tribunal has awarded a compensation of Rs.9,88,000/- under the following heads:
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1. Loss of dependency Rs.9,18,000/-
2. Loss of love and affection Rs.20,000/-
3. Funeral expenses Rs.10,000/-
4. Transportation of dead body Rs.10,000/-
5. Loss of estate Rs.10,000/-
6. Loss of consortium Rs.20,000/-
Total Rs.9,88,000/-
15. The accident has occurred in the year 2014 and the deceased was doing centering work and was earning approximately Rs.15,000/- per month. There being evidence to the effect that the deceased was earning Rs.15,000/- per month, the Tribunal was not justified in holding that the deceased was earning Rs.6,000/- per month. The said assessment arrived at by the Tribunal is on the lower side. Even assuming that the claimants have not produced any evidence to show the income of the deceased, as per the guidelines of the Karnataka State Legal Services Authority, the notional income to be taken for the accident occurred in the year 2014 would be Rs.7,500/- per month. Hence, considering the income of the deceased at Rs.7,500/- per month and adding 40% of it i.e., Rs.3,000/- towards future prospects as per the judgment of the Hon'ble Apex Court in National 10 Insurance Company Limited vs. Pranay Sethi and others reported in (2017) 16 SCC 680, the total income of the deceased per month would be Rs.10,500/-. After deducting 1/4th of it towards personal expenses of the deceased and applying the multiplier of 17 since the deceased was aged 30 years, the total compensation payable towards loss of dependency would come to Rs.16,06,500/- (Rs.10,500 x 3/4 x 12 x 17).
16. In view of the dictum of the Honble Apex Court in Satinder Kaur @ Satwinder Kaur & Ors. v.
United India Insurance Co. Ltd. reported in AIR 2020 SC 3076 and Magma General Insurance Co. Ltd. vs. Nanu Ram reported in 2018 ACJ 2782, the appellants, who are five in numbers i.e., the parents, wife and children of the deceased would be entitled to Rs.40,000/- each i.e. Rs.2,00,000/- towards loss of spousal, filial and parental consortium. Further, the appellants are entitled to Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral and obsequies ceremony. 11
17. Thus, in all, the appellants are entitled for total compensation of Rs.18,36,500/- as under:
1. Towards loss of dependency Rs.16,06,500/-
3. Towards loss of filial and Rs.2,00,000/-
parental consortium
4. Towards loss of estate Rs.15,000/-
5. Towards funeral and obsequies Rs.15,000/-
ceremony Total Rs.18,36,500/-
18. The Tribunal has already awarded compensation of Rs.9,88,000/-. Hence, after deducting the same, the appellants are entitled for enhanced compensation of Rs.8,48,500/- (Rs.18,36,500/- less Rs.9,88,000/-). The Tribunal has awarded interest at the rate of 9% per annum. However, we find it inappropriate to reduce the interest on the compensation awarded by the Tribunal. However, normally this Court as well as the Tribunal would award 6% per annum. Hence, we think it just and proper to award interest at 6% per annum on the enhanced compensation. In view of the same, the point raised for consideration is answered in the affirmative. 12
19. In the result, we pass the following ORDER
i) The appeal is allowed in part.
ii) The judgment and award dated 08.02.2019 passed by the Tribunal in MVC No.1548/2014 is hereby modified.
iii) The appellants-claimants are entitled for enhanced compensation of Rs.8,48,500/- with interest at 6% p.a. from the date of petition till realization.
iv) The apportionment, deposit and release of the enhanced compensation would be as per the award of the Tribunal.
v) Respondent No.2-insurance company shall deposit the compensation amount with updated interest within a period of four weeks from the date of receipt of a certified copy of this judgment.
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vi) Parties to bear their respective costs.
Sd/-
JUDGE Sd/-
JUDGE SMP/LG