Karnataka High Court
Smt.Sunita W/O Chandappa Kavaladar vs Mr.Dharmanna S/O Devendrappa ... on 21 March, 2019
Author: P.B.Bajanthri
Bench: P.B.Bajanthri
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF MARCH, 2019
PRESENT
THE HON'BLE MR.JUSTICE P.B.BAJANTHRI
AND
THE HON'BLE MR.JUSTICE P.G.M.PATIL
MFA No.201255/2015 (MV)
Between:
1. Smt. Sunita
W/o Chandappa Kavaladar
Age: 27 years
Occ: H.H. Work
2. Trupti D/o Chandappa Kavaladar
Age: 8 years, Minor
3. Harish S/o Chandappa Kavaladar
Age: 6 years, Minor
Appellant Nos.2 and 3 are minors
R/by their natural mother
M/G Appellant No.1 Sunita
W/o Chandappa Kavaladar
4. Yallappa
S/o Chandappa Kavaladar @ Dhangar
Age: 67 years
Occ: Agriculture
2
All are R/o Gogi
Tq. Shahapur, Dist. Yadgiri-585309.
... Appellants
(By Sri Koujalagi Chandrakant Laxman, Advocate)
And:
1. Dharmanna
S/o Devendrappa Mundinmani
Age: Major, Occ: Owner of
Tata Sumo No.KA-33/M-1964
R/o Gogi, Tq. Shahapur
Dist: Yadgiri-585309
2. The Authorised Officer
Cholamandalam MS General
Insurance Co. Ltd.,
Regd. Office H.O. Dhare House
2nd Floor, No.2, NSC Base Road,
Cheannai-600 001
(Tamil Nadu State).
... Respondents
(By Sri Manjunath M. Shetty, Advocate for
Sri C.S. Kalburgi, Advocate for R2
Notice to R1 dispensed with vide order dated 22.06.2016)
This Miscellaneous First Appeal is filed under Section
173 (1) of MV Act, praying to modify the judgment and award
dated 25.03.2015 passed in MVC No.1647/2013 on the file
of the Motor Accident Claims Tribunal and Fast Track Court
Vijaypur at Vijaypur and allow this appeal by enhancing the
compensation amount by Rs.44,90,000/- only as claimed by
the appellants before this court.
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This appeal coming on for hearing this day,
P.G.M.PATIL, J., delivered the following:
JUDGMENT
The claimants being unsatisfied with the judgment and award dated 25.03.2015 passed in MVC No.1647/2013 on the file of the MACT, Vijaypur have filed this appeal.
2. It is the case of the claimants before the Tribunal that on 19.08.2013 at about 2.30 hours the deceased Chandappa along with others were travelling in a tata sumo vehicle bearing Reg.No.KA-33/M-1964 towards Nagar Munawalli to bring medicines as Smt. Chandamma was suffering from paralysis disease. The driver of the said vehicle drove the same in a rash and negligent manner and in a high speed, due to which the said vehicle dashed against the stationary truck bearing Reg.No.MH-26/AD-7077 from the backside, due to the impact, the inmates sustained grievous injuries. They 4 were shifted to hospital. The deceased Chandappa succumbed to said injuries. This appeal is in respect of Chandappa. The claimants have stated that the deceased was aged about 30 years and was hale and healthy and was doing crane driving work with mechanic and getting income of Rs.15,000/- per month and also doing agricultural work and was getting annual income at Rs.5,00,000/-. The claimants were fully depending upon his income. Due to the sudden and untimely death of the deceased, they have lost their earning member and suffered great mental shock and agony. Therefore, the claimants claimed a compensation of Rs.60,00,000/- against respondent No.1 owner of the vehicle and respondent No.2 insurer of the said vehicle.
3. In pursuance of the notice, respondent No.1 remained absent and was placed ex-parte. Respondent No.2 Insurer appeared through the counsel and filed 5 written statement. The Insurance Company has denied the averments made in the claim petition and further it is contended that the accident has taken place due to rash and negligent driving of the tata sumo driver and it was denied about the proximate cause of death of the deceased. The age, occupation and income of the deceased were also denied. It was further contended that the driver of truck was not holding a valid and effective driving license.
4. The present claim petition was heard before the Tribunal along with other connected claim petitions. On the basis of the pleadings of the parties, the Tribunal framed issues. In support of their claim petition, claimant No.1 got examined herself as PW-3 and in all 20 documents were marked on behalf of claimants. The Insurer got examined his witness as RW-1 and got marked 2 documents.
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5. Learned Member of the Tribunal, after hearing both the parties passed the impugned judgment awarding compensation of Rs.15,10,000/- together with interest at 6% per annum from the date of petition till realisation.
6. Learned counsel for the appellants submitted that the Tribunal has considered the income of the deceased at Rs.10,000/- per month which is on the lower side. Further, that the Tribunal has not awarded 50% towards future prospects. Learned counsel further submits that the compensation awarded towards loss of love and affection is on the lower side. Hence, he prays for enhancement of compensation.
7. Per contra, learned counsel for the insurer supports the impugned judgment and award.
8. Heard the learned counsel for the parties. 7
9. The claimants have contended that the deceased was earning Rs.15,000/- per month as he was working as driver in the crane and also he was getting agricultural income. The claimants have produced salary certificate of deceased at Ex.P-18 and employer was also examined as PW-5. The claimants have also produced two bank pass books at Exs.P-14 and P-15 in order to prove the income of the deceased. Though the claimants have examined employer as PW-5, he has not produced any supporting documents in order to show that he was paying salary at Rs.15,000/- per month to the deceased. Under those circumstances, the Tribunal has properly considered the income of the deceased at Rs.10,000/- per month. The claimants have not made out any grounds to consider the income of the deceased at Rs.15,000/- per month. However, the Tribunal has not awarded compensation towards loss of future prospects for which the claimants are entitled in view of the dictum of the Hon'ble Supreme Court in the case of 8 National Insurance Company Limited vs. Pranay Sethi and others reported in AIR 2017 SC 5157. Therefore, the income of the deceased is considered at Rs.10,000/- per month. 50% of the said income has to be added towards future prospects, thus, the income of the deceased comes to Rs.15,000/- per month. 1/3rd of the said income has to be deducted towards personal and living expenses of the deceased, which comes to Rs.5,000/-. The remaining income of the deceased comes to Rs.10,000/-. Therefore, the claimants are entitled for compensation of Rs.20,40,000/- towards loss of dependency (Rs.10,000/- x 12 x 17). The claimants are also entitled for compensation of Rs.15,000/- towards loss of estate, Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral expenses. The Tribunal has awarded Rs.50,000/- towards loss of love and affection which needs to be enhanced to Rs.1,00,000/- (for two minor children) which is supported by the decision of Hon'ble Supreme 9 Court in the case of Magma General Insurance Company Limited vs. Nanu Ram Alias Chuhru Ram and others reported in 2018 ACJ 2782. Thus, the claimants are entitled for total compensation of Rs.22,10,000/- as against the compensation awarded by the Tribunal at Rs.15,10,000/-. Therefore, the claimants are entitled for enhanced compensation of Rs.7,00,000/-. The award needs to be modified accordingly. In the result, we proceed to pass the following:
ORDER The appeal is allowed in part. Appellants- claimants are entitled for enhanced compensation of Rs.7,00,000/- with interest at 6% per annum from the date of petition till realisation.
Sd/-
JUDGE Sd/-
JUDGE swk