Karnataka High Court
Smt. Kanyakumari And Anr vs M/S Sree Srinivasa And Anr on 24 January, 2023
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF JANUARY, 2023
PRESENT
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR. JUSTICE T.G. SHIVASHANKARE GOWDA
MISCELLANEOUS FIRST APPEAL NO.201377/2018(MV)
C/W.
MISCELLANEOUS FIRST APPEAL NO.201376/2018(MV)
In MFA No.201377/2018
BETWEEN:
Smt. Kanyakumari W/o Late Satish Kumar,
Age: 32 years, Occ: Household Work,
R/o V.K. Salgar, Tq. Aland,
Now residing at Chandapur, Tq. Chincholi,
Dist. Kalaburagi.
... Appellant
(By Sri Harshavardhan R. Malipatil, Advocate)
AND:
1. M/s. Sree Srinivasa Cement Carriers,
H.No.12-2-12/1, Shop No.2, Swana Enclave,
Moosapet, Serilinampally, Hyderabad
Telangana-500038
MFA No.201377/2018
C/w MFA No.201376/2018
2
2. The New India Assurance Co. Ltd.,
Malakpeth DO (612800) Flat No.101,
1st Floor, Tirumala Towers,
Judges Colony, Malakpet,
Hyderabad-500036.
Through its Divisional Office by the
Divisional Manager,
Second Floor, Opp: SBH Sangameshwar Nagar,
S.B. Temple Road,
Kalaburagi-585102.
... Respondents
(By Sri S.S. Aspalli, Advocate for R2:
R1-Notice dispensed with)
This Miscellaneous First Appeal is filed by the
appellant under Section 173(1) of MV Act, praying to
allow this appeal and award compensation of
Rs.15,15,000/- (excluding the amount awarded by the
Tribunal) along with interest @ 12% P.A. by setting aside
the judgment and award of Senior Civil Judge and MACT
at Chincholi dated 21.07.2017 in MVC No.855 of 2016.
In MFA No.201376/2018
BETWEEN:
1. Smt. Kanyakumari W/o Late Satish Kumar,
Age: 31 years, Occ: Household Work,
R/o V.K. Salgar, Tq. Aland,
Now residing at Chandapur, Tq. Chincholi,
Dist. Kalaburagi.
MFA No.201377/2018
C/w MFA No.201376/2018
3
2. Atharva S/o Late Satish Kumar,
Age: 08 years, minor U/G of his
Natural mother appellant No.1
Smt. Kanyakumari,
R/o V.K. Salgar, Tq. Aland,
Now residing at Chandapur, Tq. Chincholi,
Dist. Kalaburagi.
... Appellants
(By Sri Harshavardhan R. Malipatil, Advocate)
AND:
1. M/s. Sree Srinivasa Cement Carriers,
H.No.12-2-12/1, Shop No.2, Swana Enclave,
Moosapet, Serilinampally,
Hyderabad
Telangana-500038
2. The New India Assurance Co. Ltd.,
Malakpeth DO (612800) Flat No.101,
1st Floor, Tirumala Towers,
Judges Colony, Malakpet,
Hyderabad-500036.
Through its Divisional Office by the
Divisional Manager,
Second Floor,
Opp: SBH Sangameshwar Nagar,
S.B.Temple Road,
Kalaburagi-585101.
... Respondents
(By Sri S.S. Aspalli, Advocate for R2:
R1 - Notice dispensed with)
This Miscellaneous First Appeal is filed by the
appellants under Section 173(1) of MV Act, praying to
MFA No.201377/2018
C/w MFA No.201376/2018
4
allow this appeal and award compensation of
Rs.26,64,500/- (excluding the amount awarded by the
Tribunal) along with interest @ 12% P.A., by setting
aside the judgment and award of Senior Civil Judge and
MACT dated 21.07.2017 in MVC No.850 of 2016.
These appeals coming on for Admission, through
physical hearing/video conference, this day T.G.
Shivashankare Gowda, J., delivered the following:
JUDGMENT
In these appeals the appellants have challenged the judgments dated 21.07.2017 passed in MVC Nos. 855/2016 and 850/2016 on the file of the Senior Civil Judge and MACT, Chincholi (Hereinafter referred to as 'Tribunal' for short).
2. The parties will be referred with respect to their status before the Tribunal for the sake of convenience.
3. Briefly stated, the facts are that, the petitioners in MVC No.850/2016 are the wife and son of one Satish Kumar, the deceased No.1. The petitioner in MFA No.201377/2018 C/w MFA No.201376/2018 5 MVC No.855/2016 is the mother of Kum. Vaishnavi, the deceased No.2. Both the deceased were the inmates of the car bearing registration number KA-36/M-4512 suffered severe injuries in a road accident that took place on 07-03-2016 at 10:00 a.m., hit by Lorry bearing registration No.AP-28/TB-5594. Both the deceased succumbed to injuries on the way to the hospital. Petitioners claimed compensation of Rs.36,90,000/- and RS.19,40,000/- respectively. They pleaded that the deceased No.1 was aged 35 years, working as Area Sales Manager in Vedant Irrigation Systems Pvt. Ltd., Chincholi and earning Rs.25,000/- per month. The deceased No.2 was aged 8 years, was a brilliant child having great future. The claim was opposed by the Insurance Company. The Tribunal awarded Rs.10,25,000/- and Rs.4,25,000/- respectively, with 6% interest. MFA No.201377/2018 C/w MFA No.201376/2018 6
4. The petitioners have pleaded inadequacy in the compensation awarded by the Tribunal. Income taken at Rs.7,500/- without any basis and on lower side, avocation was not considered, age was taken at 40 against 35, less amounts have been awarded towards conventional heads and also the compensation on different heads. The Hon'ble Apex Court in Krishna Gopal's Case in respect of minor death awarded Rs.5,00,000/- for an older accident, the Tribunal ought to have awarded more than the said compensation.
5. According to the learned counsel for petitioners, the deceased No.1 was earning Rs.25,000/- per month, future prospects is not considered, the award lesser under conventional heads and for the minor death the compensation was not in consonance with the judgment of the Hon'ble Apex Court and accordingly he sought for re-assessment and enhancement. MFA No.201377/2018 C/w MFA No.201376/2018 7
6. Per contra, learned counsel for Insurance Company contended that amount granted towards conventional head is on higher side, since there is no proof of income question of considering future prospects does not arise; income taken is on par with the prevailing with minimum wages, there is no reason to increase the income and supported the impugned judgments.
7. We have given our anxious consideration to the arguments addressed on behalf of the parties and perused the records.
8. As seen from the impugned judgment, there is no dispute as to the accident; cause of the accident; injury sustained by the injured; death of both the deceased on account of accident and the petitioners' entitlement to claim the compensation. It is also noticed that the Tribunal has taken income at Rs.7,500/-. MFA No.201377/2018 C/w MFA No.201376/2018 8 Though the petitioners claim that the deceased No.1 was Area Sales Manager at Vedant Irrigation Systems Pvt. Ltd., there is no proof of income. To the pointed question as to the qualification of the deceased, there is no answer. The accident was of 2016, the notional income one can assess is not less than Rs.8,750/- per month.
9. There is dispute with regard to age of the deceased No.1. The petitioners claim it as 35 and the Tribunal has taken at 40. The recital of PM report confirms the age of the deceased No.1 as 40, on which the Tribunal has placed reliance. When there is no proof of age, the reliance on the age mentioned in PM report is proper. Hence the age of the deceased is rightly taken at 40 by the Tribunal.
10. As seen from the impugned judgment, the Tribunal has not given any reason as to why it has not MFA No.201377/2018 C/w MFA No.201376/2018 9 considered the future prospects of deceased No.1. By applying the principles laid down in National Insurance Company Limited vs. Pranay Sethi and Others - 2017 ACJ 680 future prospects should be taken at 25% for the age between 40-50 years. The compensation towards conventional heads has been settled. For the age of 40, applicable multiplier as per the decision of Apex Court in the case of Sarla Verma v. DTC- (2009)6 SCC 121, is '15'.
11. As regards assessment of compensation on account of death of deceased No.1, loss of dependency would be:- Rs.8,750/-(Notional Income) + Rs.2188/- (25% Future Prospects) = Rs.10,938/- per month. Since, deceased No.1 left with wife and minor son, 1/3rd has to be deducted towards personal expenses of deceased. Hence, calculation is Rs.7292/- x 12 x 15, it comes to Rs.13,12,560/-. Under the conventional heads, wife of the deceased is entitled to Rs.40,000/- towards MFA No.201377/2018 C/w MFA No.201376/2018 10 loss of consortium and towards love and affection to minor son Rs.40,000/-. Towards loss of estate and funeral expenses Rs.15,000/- each is assessed. The total compensation comes to Rs.13,12,560/- + Rs.1,10,000/- = Rs.14,22,560/-, an enhancement of Rs.3,97,560/-, which is the just compensation the petitioners are entitled.
12. Regarding assessment of compensation on account of death of deceased No.2:- Ex.P5 speaks age of deceased No.2 as 7 years. On perusal of impugned judgment, it is pertinent to note that, the Tribunal though has discussed the case in "Krishna Gopal and Anr Vs. Lala and Anr" reported in AIR SCW 5037, but has failed to apply the principles correctly to the facts of the case. The Hon'ble Apex Court in "Meena Dei Vs. Nunu Chand Mahto Alias Nemchand Mahto" reported in AIR Online 2022 SC 532 referred the judgment in Krishna Gopal's case while considering the death of 12 MFA No.201377/2018 C/w MFA No.201376/2018 11 year old minor and awarded compensation of Rs.5,00,000/- as against Rs.2,00,000/- awarded by the High Court.
13. We do not find any force in the submission of the learned counsel for the Insurance Company that, for death of minor, aged 7 years, the maximum compensation can be awarded is Rs.4,65,000/-. Hence it is apt to place reliance on Krishna Gopal's case in awarding global compensation of Rs.5,00,000/- on account of death of deceased No.2 as against Rs.4,25,000/- awarded by the Tribunal.
14. Thus, we conclude that the compensation so assessed above in both the cases is the just and reasonable compensation that can be awarded in the facts and circumstances of both the cases. Therefore, both the appeals filed by the petitioners deserve to be allowed accordingly.
MFA No.201377/2018C/w MFA No.201376/2018 12
15. In the result, the following:
ORDER Both the appeals allowed in part. The judgments and awards passed by the Tribunal are modified.
The compensation in MVC No.850/2016 is enhanced by Rs.3,97,560/- with interest at the rate of 6% per year in addition to compensation granted by the Tribunal.
The compensation in MVC No.855/2016 is enhanced by Rs.75,000/- with interest at the rate of 6% per year in addition to compensation granted by the Tribunal.
Rest of the judgments and awards of the Tribunal are kept intact. MFA No.201377/2018 C/w MFA No.201376/2018 13
The 2nd respondent/Insurance Company is directed to satisfy the award within 8 weeks from the date of receipt of certified copy of this judgment.
Office is directed to transfer the amount if any in deposit, to the Tribunal, forthwith.
Sd/-
JUDGE Sd/-
JUDGE SBS*