Karnataka High Court
The Divisional Manager, vs Preeti W/O. Appasab Shirahatti, on 24 July, 2019
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 24TH DAY OF JULY, 2019
PRESENT
THE HON'BLE MR.JUSTICE B.A.PATIL
AND
THE HON'BLE MR. JUSTICE BELLUNKE A.S.
M.F.A.No.100687/2015 C/W
M.F.A.No.100397/2015 & M.F.A.No.100398/2015 (MV)
IN MFA NO 100687 OF 2015
BETWEEN
THE DIVISIONAL MANAGER,
NEW INDIA ASSURANCE CO., LTD.,
HAVING ITS OFFICE AT
CLUB ROAD, BELAGAVI.
R/BY.
THE DIVISIONAL MANAGER,
NEW INDIA ASSURANCE CO., LTD.,
(MTPC HUB), NEW COTTON MARKET,
HUBBALLI.
..... APPELLANTS
(BY SRI S V YAJI, ADV.)
AND
1. PREETI W/O. APPASAB SHIRAHATTI,
AGE: 30 YEARS, OCC:HOUSEHOLD WORK,
R/O: AINAPUR, AT: ATHANI,
DIST: BELAGAVI.
2. KUMAR. ATHARVA S/O APPASAB SHIRAHATTI,
AGE: 8 YEARS, OCC: STUDENT,
R/O: AINAPUR, TQ: ATHANI,
DIST: BELAGAVI.
:2:
3. KUMAR. AYUSH S/O APPASAB SHIRAHATTI,
AGE: 5 YEARS, OCC: STUDENT,
R/O: AINAPUR, TQ: ATHANI,
DIST: BELAGAVI.
SINCE RESPONDENT NO.2 AND 3 BEING MINORS
REPRESENTED BY RESPONDENT NO.1 THE MOTHER
AND MINOR GUARDIAN
4. DHANAPAL S/O APPANNA SHIRAHHATI
AGE: 55 YEARS, OCC: NIL,
R/O: AINAPUR, TQ: ATHANI.
DIST: BELAGAVI.
5. RAFIQ SAYYAD MULLA,
AGE: 52 YEARS,
OCC: NOT KNOWN,
R/O: HOUSE NO.480,
RAJAPUR, TQ: SHIROL,
DIST: KHOLAPUR.
..... RESPONDENTS
(BY MISS REBECCA SOLOMAN, ADV. FOR
SRI VITTHAL S TELI, ADV. FOR C/R-1 TO R-4
R-5 SERVED)
THIS MFA IS FILED U/S.173(1) OF MV ACT, 1988,
AGAINST THE JUDGMENT & AWARD DATED:07.11.2014,
PASSED IN MVC.NO.1990/2013, ON THE FILE OF THE I
ADDITIONAL SENIOR CIVIL JUDGE & MEMBER, ADDITIONAL
MOTOR ACCIDENT CLAIMS TRIBUNAL, BELGAUM, AWARDING
COMPENSATION OF RS.16,67,600/- ALONG WITH INTEREST AT
THE RATE OF 6% P.A. FROM THE DATE OF PETITION TILL ITS
REALIZATION.
IN MFA NO 100397 OF 2015
BETWEEN
1. DHANAPAL S/O APPANNA SHIRAHATTI,
AGE: 54 YEARS, OCC: NIL,
:3:
2. SUNIL S/O DHANAPAL SHIRAHATTI,
AGE: 29 YEARS, OCC: AGRICULTURE,
3. PREETI W/O APPASAB SHIRAHATTI,
AGE: 30 YEARS, OCC: HOUSEHOLD WORK,
ALL ARE R/O. ANIAPUR, TAL: ATHANI,
DIST: BELGAUM.
..... APPELLANTS
(BY MISS REBECCA SOLOMAN, ADV. FOR
SRI VITTHAL S TELI, ADV.)
AND
1. RAFIQ SAYYAD MULLA,
AGE: 52 YEARS, OCC: NOT KNOWN,
R/O. H.NO.480, RAJAPUR,
TAL: SHIROL, DIST: KOLHAPUR.
2. THE DIVISIONAL MANAGER,
THE NEW INDIA ASSURANCE COMPANY LTD.,
HAVING ITS OFFICE AT CLUB ROAD,
BELGAUM.
..... RESPONDENTS
(BY SRI S.V. YAJI, ADV. FOR R-2
NOTICE TO R-1 IS DISPNSED WITH)
THIS MFA IS FILED U/S.173(1) OF MV ACT, 1988,
AGAINST THE JUDGMENT & AWARD DATED:07.11.2014,
PASSED IN MVC.NO.1991/2013, ON THE FILE OF THE I
ADDITIONAL SENIOR CIVIL JUDGE & MEMBER, ADDITIONAL
MOTOR ACCIDENT CLAIMS TRIBUNAL, BELGAUM, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION &
SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO 100398 OF 2015
BETWEEN
1. PREETI W/O APPASAB SHIRAHATTI,
AGE: 30 YEARS, OCC: HOUSEHOLD WORK,
:4:
2. ATHARVA S/O APPASAB SHIRAHATTI,
AGE: 8 YEARS, OCC: STUDENT,
3. AYUSH S/O APPASAB SHIRAHATTI,
AGE: 5 YEARS, OCC: STUDENT,
CAVEATOR NO.2 AND 3 ARE MINOR
REPRESENTED BY MOTHER APPELLANT NO.1
4. DHANAPAL S/O APPANNA SHIRAHATTI,
AGE: 54 YEARS, OCC: NIL,
ALL ARE R/O. ANIAPUR, TAL: ATHANI,
DIST: BELGAUM.
..... APPELLANTS
(BY MISS REBECCA SOLOMAN, ADV. FOR
SRI VITTHAL S TELI, ADV.)
AND
1. RAFIQ SAYYAD MULLA,
AGE: 52 YEARS, OCC: NOT KNOWN,
R/O. H.NO.480, RAJAPUR,
TAL: SHIROL, DIST: KOLHAPUR.
2. THE DIVISIONAL MANAGER,
THE NEW INDIA ASSURANCE COMPANY LTD.,
HAVING ITS OFFICE AT CLUB ROAD, BELGAUM.
..... RESPONDENTS
(BY SRI S.V. YAJI, ADV. FOR R-2
NOTICE TO R-1 IS DISPENSED WITH)
THIS MFA IS FILED U/S.173(1) OF MV ACT, 1988,
AGAINST THE JUDGMENT & AWARD DATED:07.11.2014,
PASSED IN MVC.NO.1990/2013, ON THE FILE OF THE I
ADDITIONAL SENIOR CIVIL JUDGE & MEMBER, ADDITIONAL
MOTOR ACCIDENT CLAIMS TRIBUNAL, BELGAUM, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION &
SEEKING ENHANCEMENT OF COMPENSATION.
:5:
THESE APPEALS COMING ON FOR FINAL DISPOSAL, THIS
DAY, B.A. PATIL J., DELIVERED THE FOLLOWING:
JUDGMENT
M.F.A.No.100687/2015 has been filed by the insurer challenging the judgment and award in M.V.C.No.1990/2013, M.F.A.No.100397/2015 has been filed by the claimants in M.V.C.No.1991/2013 and M.F.A.No.100398/2015 has been preferred by the claimants in M.V.C.No.1990/2013 challenging the judgment and award passed by the I Addl. Senior Civil Judge & Addl. M.A.C.T., Belagavi, dated 07.11.2014.
2. We have heard learned counsel for the parties.
3. Brief facts of the case are that on 29.04.2013 the husband of petitioner No.1 Appasab Dhanapal Shirahatti in M.V.C.No.1990/2013 along with his mother were returning to their native place after attending Panchkalyana Pooja at Dattawad, Taluka Shirol on the motorcycle bearing registration No.MH- :6: 09/BW-9893. His mother Sundravva was the pillion rider on the said motorcycle and the said Appasab was riding the motorcycle. When the said motorcycle reached near Ugar BK village, a Indica car bearing registration No.MH-03/Z-7924 came from opposite direction and came in a zigzag and rash and negligent manner and dashed to the motorcycle. As a result of the said impact, they fell down and sustained injuries and died on the spot. Therefore, the legal representatives of deceased Appasab and deceased Sundrawa have filed claim petitions before the Tribunal for claiming the compensation.
4. The accident in question is not in dispute so also the said vehicle insured with the respondent- insurer. It is the specific contention of learned counsel for the appellant-insurer that the Tribunal without considering the material placed on record has taken the income of the deceased Appasab on the higher side at the rate of Rs.8,000/- per month and has awarded the :7: compensation on excessive side. It is his further submission that the claimants have not produced any documents to show that he was working in the Society as a Manager and pigmy collector though he was having a LIC licence. The claimants have also not examined any witness to substantiate the said fact. Only on the basis of the evidence ledd before the Court below has taken the monthly income at the rate of Rs.8,000/- and passed the impugned order. The same is liable to be set aside by reducing the compensation awarded by the Tribunal. On these grounds, he prayed to allow the appeal.
5. Per contra, learned counsel appearing on behalf of claimants vehemently argued and submitted that the deceased was working as a pigmy collector and also having the LIC agent licence and also used to collect the amounts. In order to substantiate the said fact the claimants have produced Exs.P-12 to 15. It is the further submission of the claimants that the :8: deceased Appasab was also having agricultural property and also used to get the agricultural income. By taking into consideration the said aspect, the income assessed by the Tribunal is on the lower side. Even the compensation awarded under the conventional heads is also not adequate and hence, she prayed to allow the appeal in M.F.A.No.100398/2015 and enhance the compensation.
6. Learned counsel for the appellants In M.F.A. No.100397/2015 submits that the Tribunal committed an error in holding that the appellants cannot be considered as dependents and awarded a meager compensation of Rs.55,000/-. Hence, she prayed to allow the appeal.
7. We have carefully and cautiously gone through the records. On close reading the contents of the judgment and the records it disclose that the claimants have produced Exs.P-12 to 15 to show that :9: the deceased was having a Training Certificate and he was having a LIC agent certificate. Taking into consideration the LIC agent commission statement which has been produced as per Ex.P-15 he used to get a commission of Rs.45,000/- per annum and apart from that he was having agricultural establishment and he was also working in the Co-operative Society as per Ex.P-12. Taking into consideration the above said facts and circumstances, we feel that the income which has been taken by the Tribunal at the rate of Rs.8,000/- p.m. appears to be on the lower side and as such we take the income at the rate of Rs.10,000/- p.m. Even as could be seen from the order of the Tribunal the age of the deceased was 35 years. The Tribunal is erred in adding future prospects of 30% instead of 40%. The multiplier and deduction towards personal expenses adopted by the Tribunal is correct. Therefore, if the income of the deceased is taken at the rate of Rs.10,000/- and after adding 40% future prospects and : 10 : after deducting 1/4th towards the personal expenses, loss of dependency comes to Rs.20,16,000/-. The Tribunal has awarded the conventional heads under various heads but the same is awarded is also not correct. Under such facts and circumstances, in view of the law laid down in the case of Magma General Insurance Co. Ltd., vs. Nanu Ram and others reported in 2018 ACJ 2782, we award a sum of Rs.40,000/- each to the minor children towards parental consortium, a sum of Rs.40,000/- to the wife towards spousal consortium and a sum of Rs.40,000/- to the father of the deceased Appasab towards filial consortium. Towards funeral expenses and loss of estate a sum of Rs.15,000/- each is awarded. In that light, the claimants in M.F.A.No.100398/2015 are entitled to a total compensation of Rs.22,06,000/- as against Rs.16,67,600/- with 9% future interest from the date of the petition.
: 11 :
8. Insofar as M.V.C.No.1991/2013 is concerned, the said claim petition is filed by the husband, son and daughter-in-law of the deceased Sundrawwa. Therefore, the Tribunal has rightly held that they are not dependents and by considering the said fact has awarded an amount of Rs.25,000/- towards loss of consortium to claimant No.1 and Rs.20,000/- towards funeral expenses and transportation of the dead body. The said award made by the Tribunal is not justified in any manner in accordance with law. It is well settled principles of law that whenever claimants are not depended on the income of the deceased, then under such circumstances, method so which has to be adopted is that the notional income is to be calculated and thereafter 25% of the income has to be considered. The loss of estate has to be awarded to the legal representatives of the deceased apart from they are also entitled for conventional heads. Taking into : 12 : consideration the fact that the year of accident is 2013 the notional income is assessed at Rs.7,000/- p.m. and if it is multiplied by multiplier of 7 as the deceased was aged 65 years, it comes to Rs.84,000/-(Rs.7,000x12x7). As there are no dependents 50% of the income is to be deducted then total loss of estate at the rate of 25% will be Rs.73,500/-. A sum of Rs.40,000/- each is awarded to the husband and son of the deceased Sundrawwa towards loss of love and affection. Funeral expenses and transportation of dead body together awarded a sum of Rs.30,000/-. In all claimants in M.F.A.No.100397/2015 are entitled to Rs.1,83,500/- with 9% interest.
9. For the above discussion held by us, appeal in M.F.A.No.100687/2015 filed by the insurer is dismissed as devoid of merits and M.F.A.Nos.100397 and 100398/2015 are allowed in part and the judgment and award passed in M.V.C.No.1990/2013 and 1991/2013 by I Addl. Senior Civil Judge & Addl. : 13 : M.A.C.T., Belagavi, dated 07.11.2014 is modified as indicated above.
10. The disbursement and deposit of the compensation will be as per the order of the Tribunal.
11. The amount in deposit, if any, is ordered to be transmitted to the jurisdictional Tribunal.
Sd/-
JUDGE Sd/-
JUDGE Naa