Karnataka High Court
Lalitha vs The National Insurance Co Ltd on 6 October, 2023
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NC: 2023:KHC:36430
MFA No. 578 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 578 OF 2018 (MV-D)
BETWEEN:
1. LALITHA
W/O LATE OBAYYA POOJARY
AGED 53 YEARS
2. SUJATHA
D/O LATE OBAYYA POOJARY
AGED ABOUT 30 YEARS
3. SUCHITHRA
D/O LATE OBAYYA POOJARY
AGED ABOUT 27 YEARS
4. SUPRIYA
D/O LATE OBAYYA POOJARY
AGED ABOUT 23 YEARS
5. SUDEEP
S/O LATE OBAYYA POOJARY
AGED ABOUT 15 YEARS
Digitally signed by MINOR, REP. BY HIS MOTHER APPELLANT NO.1
MALA K N
Location: HIGH COURT 6. KORAGAPPA POOJARY
OF KARNATAKA S/O LATE AMME POOJARY,
AGED 91 YEARS,
ALL ARE R/O SUVARNA NIVAS NEKKILA HOSANGADI
VILLAGE, BELTHANGADY TALUK NOW R/O ADINILAYA
BUNTS HOSTEL CIRCLE, MANGALURU
...APPELLANTS
(BY SRI. GURUPRASAD B R., ADV.)
AND:
1. THE NATIONAL INSURANCE CO LTD
PANAMBOOR BRANCH, ANAND BUILDING
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NC: 2023:KHC:36430
MFA No. 578 of 2018
IST FLOOR, NH-17, KULAI POST, MANGALURU
REP. BY ITS MANAGER
2. PRAKASH LOBO
S/O LATE HIJITHOR LOBO
44 YEARS, R/O GALAXY
SITE NO.477, MRPL COLONY
HALEYANGADI POST
MANGALURU ...RESPONDENTS
(BY SRI.B.C.SEETHARAMA RAO, ADV. FOR R1;
VIDE ORDER DATED 07.07.2023
NOTICE TO R2 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 25.08.2016
PASSED IN MVC NO.870/2013 ON THE FILE OF THE III
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, MANGALURU
D.K. PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal, the petitioners have challenged the judgment and award dated 25.08.2016 in M.V.C.No.870/2013 passed by the M.A.C.T. and III Additional Senior Civil Judge, Mangaluru, D.K. ('the Tribunal' for short).
2. For the sake of convenience, the parties shall be referred to as per their status before the Tribunal.
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NC: 2023:KHC:36430 MFA No. 578 of 2018
3. Brief facts of the case are, on 04.04.2013 at about 08:00 am, the husband of 1st petitioner, father of petitioners No.2 to 5, son of petitioners No.6 and 7 by name Obayya Poojary, the deceased, while riding the bicycle on the extreme left side of the road near main dwara of Padyarabettu Temple, hit by a motor cycle bearing Reg.No.KA-19/Z-0150 from behind inflicting him the fatal injuries killing him at the spot. The petitioners being the dependants have approached the Tribunal for grant of compensation of Rs.20,00,000/-. Claim was opposed by the Insurance Company. The Tribunal after taking the evidence, by impugned judgment awarded Rs.14,55,000/- with 6% interest p.a. Pleading inadequacy and seeking enhancement, the petitioners have filed this appeal on various grounds.
4. Heard the arguments of Sri. Guruprasad.B.R, learned counsel for the petitioners and Sri. B.C. -4- NC: 2023:KHC:36430 MFA No. 578 of 2018 Seetharama Rao, learned counsel for the Insurance Company.
5. It is the contention of the learned counsel for the petitioners that the deceased was aged 50 years, he was a Mason by profession, earning Rs.400/- per day, he left behind his wife, 4 children and parents, the Tribunal has not considered the future prospects and simply calculated the loss of dependency, compensation awarded under conventional heads is also inadequate and sought for enhancement.
6. Per contra, it is the contention of learned counsel for the Insurance Company that the deceased is a person with no proof of income, a sum of Rs.12,000/- per month assessed by the Tribunal is on the higher side, as in the year 2013, a person with no proof of income is assessed at Rs.8,000/- towards notional income and sought for reduction of income. It is also contended that the Tribunal has awarded disproportionate amount under the -5- NC: 2023:KHC:36430 MFA No. 578 of 2018 conventional heads and sought for reduction of the compensation.
7. I have given my anxious consideration to the arguments addressed on both sides and also perused the materials on record.
8. There is no dispute as to the accident, cause of the accident, death of the deceased on account of accidental injuries. Though the petitioners claim that the deceased was aged 50 years on the date of accident, in the course of cross-examination, his wife i.e., petitioner No.1 admitted the age of her husband as 55 years. Hence, the age is considered as 55 years. On perusal of the impugned judgment, it is pertinent to note that the Tribunal has considered '10' multiplier which is not correct. There is no dispute as to the deceased was a Mason, the accident took place on 04.04.2013 and the deceased was working in Dakshina Kannada and a Mason will be paid not less than Rs.400/- per day, therefore the -6- NC: 2023:KHC:36430 MFA No. 578 of 2018 Tribunal assessed Rs.12,000/- as the income of the deceased. The petitioners have also produced Ex.P12/salary certificate issued by one Lohith Rai, who is a P.W.D. Contractor, Ex.P13 is the Contractor Licence issued by Superintendent Engineer, Panchayat Raj Engineering Circle, Mangalore. This shows that the deceased was Mason, being paid Rs.400/- per day. Hence, it supports the assessment of income by the Tribunal.
9. In a case of this nature, principles of assessment of compensation is settled by the Hon'ble Apex Court in National Insurance Co.Ltd.
-vs- Pranay Sethi and Others1and Sarla Varma (Smt.) and Others -vs- Delhi Transport Corporation and Another2. As petitioner No.1 herself admitted her husband was 55 years old, multiplier applicable is '11', not '10' as applied by the Tribunal. The deceased left behind 7 dependents. 1 (2017) 16 SCC 680 2 (2009) 6 SCC 121 -7- NC: 2023:KHC:36430 MFA No. 578 of 2018 Hence, 1/5th has to be deducted towards personal expenses and future prospects has to be added at 10%. Considering all these factors, the loss of dependency comes to Rs.12,000/- + Rs.1,200/- (10%) = Rs.13,200/- - Rs.2,640/- (1/5th) = Rs.10,560/- x 12 x 11 = Rs.13,93,920/-. Towards loss of consortium to the wife and loss of love and affection to the children and parents, a sum of Rs.20,000/- each is assessed. Towards funeral expenses and loss of estate, Rs.10,000/- each is assessed. If all is summed up, it comes to Rs.15,53,920/- as against Rs.14,55,000/-, thereby enhancement of Rs.98,920/-. This is the just compensation that the petitioners are entitled to, in the facts and circumstances of the case. Hence, the appeal merits consideration, in the result, the following:
ORDER
i) Appeal is allowed in part. -8-
NC: 2023:KHC:36430 MFA No. 578 of 2018
ii) Impugned judgment is modified.
iii) Petitioners are entitled to enhanced compensation of Rs.98,920/- with interest of 6% p.a.
iv) The Insurance Company is directed to deposit the compensation within eight weeks from the date of receipt of certified copy of the judgment.
v) Amount in deposit, if any, shall be transmitted to the Tribunal along with records forthwith.
Sd/-
JUDGE PA CT:HS List No.: 1 Sl No.: 2