Karnataka High Court
Smt. Kavita @ Bharati Hugar vs Shivanagouda S/O Parutagouda Hadimani on 6 July, 2020
Bench: S G Pandit, V.Srishananda
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 06TH DAY OF JULY 2020
PRESENT
THE HON'BLE MR. JUSTICE S.G. PANDIT
AND
THE HON'BLE MR. JUSTICE V. SRISHANANDA
M.F.A.NO.103767 OF 2017 (MV)
BETWEEN
1. SMT. KAVITA @ BHARATI HUGAR
W/O LATE VEERAPPA @ VEERANNA HUGAR,
AGE 41 YEARS, OCC: TEACHER,
R/O BADAMI, TQ: BADAMI,
DIST: BAGALKOT,
NOW RESIDING AT 4TH WARD,
BLOCK NO.11, GANGAVATHI,
DIST: KOPPAL-583227
2. PAVAN KUMAR S/O LATE VEERAPPA
@ VEERANNA HUGAR,
AGE: 15 YEARS, OCC: STUDENT,
SINCE MINOR REPRESENTED
BY HER M/G MOTHER
SMT. KAVITA i.e. APPELLANT NO.1
R/O BADAMI, TQ: BADAMI,
DIST: BAGALKOT,
NOW RESIDING AT 4TH WARD,
BLOCK NO.11, GANGAVATHI,
DIST: KOPPAL-583227
3. MADHUSREE HUGAR
D/O LATE VEERAPPA @ VEERANNA HUGAR
AGE: 11 YEARS, OCC: STUDENT,
SINCE MINOR REPRESENTED
BY HER M/G MOTHER
SMT. KAVITA i.e. APPELLANT NO.1
R/O BADAMI, TQ: BADAMI,
2
DIST: BAGALKOT,
NOW RESIDING AT 4TH WARD,
BLOCK NO.11, GANGAVATHI,
DIST: KOPPAL-583227
4. TEJASHVINI HUGAR
D/O LATE VEERAPPA @ VEERANNA HUGAR,
AGE: 10 YEARS, OCC: STUDENT,
SINCE MINOR REPRESENTED
BY HER M/G MOTHER
SMT. KAVITA i.e. APPELLANT NO.1
R/O BADAMI, TQ: BADAMI,
DIST: BAGALKOT,
NOW RESIDING AT 4TH WARD,
BLOCK NO.11, GANGAVATHI,
DIST: KOPPAL-583227
5. SHASHIKUMAR HUGAR
S/O LATE VEERAPPA
@ VEERANNA HUGAR,
AGE: 7 YEARS, OCC: STUDENT,
SINCE MINOR REPRESENTED
BY HER M/G MOTHER
SMT. KAVITA i.e. APPELLANT NO.1
R/O BADAMI, TQ: BADAMI,
DIST: BAGALKOT,
NOW RESIDING AT 4TH WARD,
BLOCK NO.11, GANGAVATHI,
DIST: KOPPAL-583227.
... APPELLANTS
(BY SRI. G R TURAMARI, ADVOCATE)
AND
1. SHIVANAGOUDA
S/O PARUTAGOUDA HADIMANI,
AGE: 27 YEARS,
OCC: DRIVER OF TOURAS TIPPER TRUCK
BEARING ITS REG NO.KA-29/A-9804, R/O:HONNIGANUR,
TQ:RON,
DIST: GADAG-573219
2. HANUMANTHAGOUDA
3
S/O LAXMANGOUDA
AGE: 41 YEARS,
OCC: OWNER OF TOURAS TIPPER TRUCK
BEARING ITS REG NO.KA-29/A-9804,
R/O: HOSAKOTI, TQ: BADAMI,
DIST: BAGALKOT-583245
3. THE BRANCH MANAGER
UNITED INDIA INSURANCE CO.LTD.,
BRANCH OFFICE: SANMAN TOURIST
HOTEL COMPLEX, CBS CIRCLE,
ISLAMPUR, GANGAVATHI,
DIST: KOPPAL-583227
... RESPONDENTS
(BY SRI. N R KUPPELUR, ADV., FOR R3;
R1 AND R2 - NOTICE DISPENSED WITH)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES
ACT, AGAINST THE JUDGMENT AND AWARD DATED 06.07.2017
PASSED IN MVC NO.513/2015 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND MEMBER, MOTOR ACCIDENT CLAIMS
TRIBUNAL, GANGAVATHI, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS MFA COMING ON FOR FINAL HEARING, THIS
DAY, V. SRISHANANDA, J DELIVERED THE FOLLOWING:
JUDGMENT
Claimants are in this appeal being not satisfied with the judgment and award passed by the Senior Civil Judge 4 and M.A.C.T. Gangavathi (hereinafter referred to as "the Tribunal" for short) in MVC No.513/2015 dated 06.07.2017.
2. The necessary facts for disposal of the appeal are as under:
A claim petition came to be filed by the claimants under Section 166 of the Motor Vehicles Act claiming compensation for accidental death of one Veerappa @ Veeranna Hugar. It is alleged that on 15.06.2015 at about 2.45 p.m. when Veerappa @ Veeranna Hugar and one Kalakappa were traveling on a Hero Honda Splendor motorcycle bearing NoKA-36/W-3272 from Badami towards Pattadakal and at the time when they reached Kabbalageri cross, a Touras Tipper Truck bearing No.KA-29/A-9804 came in a rash and negligent manner and dashed against the motorcycle. As a result, both rider and pillion rider of the motorcycle got seriously injured and died on the spot. The claimants are the wife and children of deceased Veerappa @ Veeranna Hugar. It is further contended that the deceased was working as P.E. teacher in Government Higher Primary School, Badami and was earning a salary of Rs.29,538/- per 5 month and due to his untimely death, the claimants have lost their bread winner and hence, they sought for awarding suitable compensation.
On issuance of notice, respondents 1 to 3 appeared before the Tribunal and only respondent No.3/insurance company filed its written statement denying the entire claim petition averments. It is contended that there was no negligence on the part of the first respondent, who was the driver of the offending vehicle. It is also contended that the offending vehicle did not have fitness certificate and proper permit and therefore, there is a violation of terms of the policy and hence, prayed for dismissal of the claim petition.
Based on the rival contentions of the parties, the Tribunal framed the following issues;
1. Whether the petitioner No.1 being wife and petitioner No.2 to 5 being children of deceased Veerappa @ Veeranna Hugar prove that Veerappa @ Veeranna Hugar died due to injuries sustained in the road traffic accident occurred on 15.06.2015 at 2-45 p.m. on Badami to Pattadakallu main road, near 6 Kabbalageri cross while proceeding in motorcycle bearing No.KA-36/W-3272 at that time, the Tipper lorry bearing No.KA-29/A- 9804 being driven by respondent No.1 came in high speed, in rash and negligent manner and dashed motorcycle of deceased and caused the accident?
2. Whether respondent No.3 proves that petition is bad for non-joinder of necessary parties?
3. Whether respondent No.3 proves that the respondent No.3 is not liable to pay compensation as respondent No.2 violated terms and conditions of the insurance policy?
4. What order or award?
In order to prove the issues, the first claimant i.e. the wife of deceased Veerappa @ Veeranna Hugar got examined herself as P.W.1 and one witness on her behalf as P.W.2, who is an eyewitness to the incident. They relied on documentary evidence which were marked vide Exs.P.1 to P.55 on their behalf. On behalf of the respondent/insurance company, the officer of the insurance company was 7 examined as R.W.1 and got marked the insurance policy as Ex.R.1.
After hearing the parties and on perusal of the entire evidence on record, the Tribunal allowed the petition in part and awarded a sum of Rs.18,60,031/- with interest @ 6% per annum on following heads:
A Loss of dependency 16,70,031/-
B Funeral expenses and 25,000/-
transportation of dead body
C Loss of consortium 1,00,000/-
D Loss of love and affection 40,000/-
E Loss of estate 25,000/-
Total 18,60,031/-
It is that judgment, which is under challenge in this appeal.
3. The principal contention on which the learned counsel for the appellants/claimants is questioning the award of the compensation is that, the Tribunal has grossly erred in deducting 50% of the total salary since the claimants are getting pension, which is incorrect and improper. He also contends that even on other heads, the 8 compensation awarded by the Tribunal is illegal and sought for enhancement.
4. Per contra, the learned counsel for the respondent/insurance company submits that the Tribunal has awarded a just compensation and hardly there is any case whatsoever made out by the learned counsel for the appellants/claimants to interfere with the impugned judgment and sought for dismissal of the appeal.
5. In view of the rival contentions of the parties, the points that would arise for our consideration are as under:
i) Whether the assessment of monthly income made by the Tribunal is proper and correct?
ii) Whether the claimants have made out a case for enhancement of compensation?
6. We answer Point No.(i) in negative and Point No.(ii) in affirmative for the following:
REASONS
7. In this case, the accident that has occurred on 15.06.2015 involving the motorcycle bearing No.KA36/W- 3272 and Tipper lorry bearing No.KA-29/A-9804 wherein 9 one Veerappa @ Veeranna Hugar and Kalakappa, who were moving on the motorcycle succumbed to the accidental injuries on the spot is not in dispute.
8. On record, to establish that deceased Veerappa @ Veeranna Hugar was working as P.E. teacher in Higher Primary School at Badami the document is available in the form of Ex.P.45/pay slip of the deceased and hence, there is no dispute as to the fact that the deceased was working in government school as P.E. teacher. The Tribunal has rightly deducted Rs.200/- from the monthly income of the deceased towards professional tax and assessed the income at Rs.29,338/- per month and added 15% of the assessed income towards future prospects and arrived at monthly income of Rs.33,738/-. But after assessing the monthly income, the Tribunal very peculiarly has observed in para No.17 of its judgment that the dependants viz., wife and children of the deceased would take 50% of salary of the deceased towards pension and has deducted 50% of the monthly income. We do not find any good reasons or logic whatsoever in arriving at such a finding. 10
9. It is clear that the pension is separate aspect of the matter and the same cannot be taken into consideration while awarding compensation in accidental death.
10. To that extent, the finding recorded by the Tribunal is incorrect and needs to be interfered with. Having said so, the compensation amount needs to be reassessed. Having regard to the number of dependants, 1/4th of the amount needs to be deducted from the monthly income towards personal expenses of the deceased and hence, out of Rs.33,738/- 1/4th of the same i.e. Rs.8,434/- is deducted towards personal expenses of the deceased and after deducting the same, the income of the deceased would be Rs.25,304/- and the annual income would be Rs.3,03,648/-. Since the deceased died at his age of 52 years, the multiplier '11' applied by the Tribunal is correct and thus, the claimants are entitled to Rs.33,40,128/- towards loss of dependency including future prospects.
11. As regards compensation awarded by the Tribunal on other heads to the tune of Rs.1,90,000/- referred to supra, in our considered opinion, though is on 11 the higher side but in the absence of any appeal by the insurance company, we deem it fit not to interfere with the same.
12. Accordingly, in view of the foregoing discussions, the appellants/claimants would be entitled to Rs. 35,30,128/- on following heads.
1. Loss of dependency including future 33,40,128/-
prospects
2. Funeral expenses and transportation 25,000/-
of dead body
3. Loss of consortium 1,00,000/-
4. Loss of love and affection 40,000/-
5. Loss of estate 25,000/-
Total 35,30,128/-
13. In view of foregoing discussions, we answer Point No.(i) in the negative and Point No.(ii) in the affirmative and proceed to pass the following:
ORDER The appeal is allowed in part.12
The claimants are entitled to the total compensation of Rs.35,30,128/- as against Rs.18,60,031/- awarded by the Tribunal.
The enhanced compensation shall carry interest at the rate of 6% per annum from the date of petition till realization.
The respondent/insurance company is directed to deposit the entire compensation amount with interest within a period of six weeks from the date of receipt of certified copy of this order.
The apportionment and deposit would be in the same proportion as ordered by the Tribunal.
Draw the modified award accordingly.
Sd/-
JUDGE Sd/-
JUDGE yan