Karnataka High Court
Somshekaryya S/O Basavantayya Hombal, vs Vaman S/O Budhaji Patil, on 9 January, 2020
1
0IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 9 T H DAY OF JANUARY 2020
BEFORE
THE HON'BLE MR. JUSTICE P.G.M.PATIL
MFA NO.20143/2012 (MV) C/W
MFA NO.21665/2012
MFA NO.20143/2012
BETWEEN
THE NEW INDIA ASSURANCE CO. LTD
DISIVIONAL OFFICE, CLUB ROAD,
BELGUAM, NOW RERESENTED BY ITS
ASST. MANAGER, U.N. RAIKAR NEW INDIA
ASSURANCE CO. LTD., MTP HUB SRINATH
COMPLEX, NCM HUBLI.
... APPELLANT
(By Sri M. K. SOUDAGAR, ADV.)
AND
1. SRI SOMASHEKARAYYA S/O. BASAVANTAYYA
HOMBAL
AGE: 51 YEARS, OCC: BANK SERVICE
R/O. CTS NO. 7510/A, SECTOR NO.11
M.M. EXTENSION, BELGUAM.
2. SHAKUNTALA W/O. SOMASHEKHARAYYA HOMBAL
AGE: 44 YEARS, OCC: HOUSEWIFE
R/O. CTS NO. 7510/A, M. M. EXTENSION
BELGUAM.
3. SHRI VAMAN S/O. BUDHAJI PATIL
2
AGE: MAJOR, OCC: BUSINESS
R/O. 58, ANAGOL ROAD, MAJAGAON,
BELGAUM, DIST: BELGAUM.
... RESPONDENTS
(By Sri. HANAMANT R. LATUR, ADV. FOR R1 & R2.
Sri S.R. SHINDE, ADV. FOR R3.)
THIS MFA FILED U/S.173(1) OF THE M.V.ACT, 1988,
AGAINST THE JUDGEMENT AND AWARD DTD:02.11.2011,
PASSED IN MVC NO.103/2011 ON THE FILE OF THE PRL.
SENIOR CIVIL JUDGE & MEMBER, MACT, BELGAUM,
AWARDING THE COMPENSATION OF RS.5,84,900/- WITH
INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF
PETITION TILL ITS REALIZATION.
IN MFA NO. 21665/2012
BETWEEN:
1. SHRI. SOMSHEKARYYA S/O BASAVANTAYYA
HOMBAL,
AGE: 51 YEARS, OCC: BANK SERVICE,
R/O: CTS NO-7510/A, SECTOR NO-11,
M.M. EXTN., TALUK: BELGAUM.
2. SMT. SHAKUNTALA W/O SOMASHEKARAYYA
HOMBAL,
AGE: 44 YEARS, OCC: HOUSE WIFE,
R/O: CTS NO-7510/A, SECTOR NO-11,
M.M.EXTN., TALUK: BELGAUM.
... APPELLANTS
(By Sri HANAMANT R. LATUR, ADV.)
3
AND
1. SHRI VAMAN S/O BUDHAJI PATIL,
AGE: 50 YEARS, OCC: BUSINESS,
R/O: 58, ANAGOL ROAD, MAJAGAON,
BELGAUM.
2. THE NEW INDIA ASSURANCE CO., LTD.,
DIVISIONAL MANAGER, CLUB ROAD, BELGAUM.
... RESPONDENTS
(By Sri M.K.SOUDAGAR, ADV. FOR R2
NOTICE TO R1 SERVED)
THIS MFA FILED U/SEC.173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DTD:02-11-2011
PASSED IN MVC.NO.103/2011 ON THE FILE OF THE
PRL.SENIOR CIVIL JUDGE AND MEMBER, MACT,
BELGAUM, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE APPEALS COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED
THE FOLLOWING:
JUDGMENT
Heard.
2. Matters are taken up for final disposal with the consent of learned counsel for the parties.
3. The insurer-New India Insurance Company Ltd., and the claimants being aggrieved by the judgment and 4 award dated 2/11/2011 passed in MVC No.103 of 2011 on the file of the Prl. Senior Civil Judge and MACT, Belgaum, have filed these appeals.
4. The case of the claimants before the tribunal is that, on 19/7/2010 at about 10.15 a.m., the deceased Pawankumar, the son of the claimants was proceeding by riding his motorcycle bearing registration No.KA- 24/J-7217. At that time, the driver of TATA 407 Tempo bearing registration No.KA-22/A-4058, drove the same in a rash and negligent manner and dashed to the motorcycle of the deceased resulting into fatal injuries while under treatment at KLE Hospital, Belgaum, he breathed his last. The petitioners contended that they are the parents of the deceased. The deceased was aged 21 years was studying and taking education of bachelor of computer application at RLS Institute, Belgaum, and he used to write accounts and earning Rs.7,000/-p..m., and maintaining his needs. Due to the death of the 5 deceased, they are suffering mentally, physically and financially. Therefore, they claimed compensation of Rs.15,00,000/- against the owner and insurer of the offending vehicle.
5. In pursuance of the notice, respondent Nos.1 and 2 appeared before the Tribunal and filed separate written statement. Respondent No.1 denied the petition averments. However, admitted the accident and further contended his vehicle was duly insured with respondent No.2 and incase of any liability, it may be fastened against respondent No.2. Respondent No.2 filed the written statement denying the age, occupation and income of the deceased. It is also contended that as the accident occurred involving two vehicles, and the owner and insurer of the motorcycle are necessary parties. His liability is subject to the terms and conditions of the policy and valid driving license and permit. It is also contended that the driver of the tempo was not holding 6 valid and effective driving license and on these grounds, sought for dismissal of the claim petition.
6. On the basis of the pleadings of the parties, the tribunal framed the issues. In support of their claim petition, the claimants got examined 2 witnesses as PWs.1 and 2 and got marked 18 documents as Exs.P.1 to P.18. Respondents have not produced any oral evidence. However, insurance policy was marked as Ex.R.1.
7. The learned member of the tribunal, after hearing both the parties, passed the impugned judgment awarding compensation of Rs.5,84,900/- with interest at 6% p.a. from the date of petition till its deposit. Respondent No.2-Insurance Company was directed to deposit the compensation amount before the tribunal.
8. The insurer being aggrieved by the impugned judgment and award has filed MFA No.20143/2012 on the grounds that the tribunal has awarded excessive 7 compensation including Rs.75,200/- towards pecuniary loss which needs to be set aside.
9. The claimants being dissatisfied with the impugned judgment and award have filed MFA No.21665/2012 seeking for enhancement of the compensation on the ground that though the income of the deceased was proved as Rs.7,000/- p.m., the tribunal has considered his income at Rs.6,000/-p.m. and that a meager compensation was awarded towards loss of estate and love and affection. The tribunal has adopted the age of the mother in choosing the multiplier instead of age of the deceased. Both the appeals arise out of the judgment and award dated 2/11/2011 passed in MVC No.103/2011, they are disposed of by the common judgment.
10. Heard the learned counsel for the parties.
11. Learned counsel for the insurer submitted that the tribunal has erroneously awarded a sum of Rs.75,200/- towards pecuniary loss, which is stated to 8 be towards payment of college fee paid by the petitioners in respect of the deceased which is not admissible.
12. Per contra, learned counsel for the claimants submitted that the claimants are entitled for pecuniary loss awarded by the tribunal and in addition to that the tribunal has considered the income of the deceased at Rs.6,000/-p.m. instead of Rs.7,000/- p.m. as salary of the deceased at Rs.7,000-/- p.m. is proved by examining PW-2 and producing Ex.P15-the salary certificate. The learned counsel for the claimants also submitted that the tribunal has considered the age of the mother of the deceased in choosing the multiplier instead of considering the age of the deceased.
13. The claimants contended before the tribunal that their deceased son was aged about 21 years and he was studying in BCA and was also doing account work and earning Rs.7,000/-p.m. In order to prove the same, claimant No.1 has got examined himself as PW-1 and also examined PW-2-Prakash S.Hubli, who was the 9 employer of the deceased, he has issued Ex.P15-the salary certificate stating that he was paying salary of Rs.7,000/- p.m. to the deceased, who was employed by him for writing accounts of his company. In the cross examination of PW-2, it is elicited that the account of his company being audited and that he has shown the payment of salary to the deceased in the accounts, which is not further disputed by the insurer. The claimants have proved Ex.P15, the salary certificate issued by PW-2 by his examination. Therefore, the tribunal ought to have considered the income of the deceased at Rs.7,000/-p.m. in view of Ex.P15 which was proved by examining the author. However, the tribunal considered the income of the deceased at Rs.6,000/-p.m. without any basis. Therefore, it is just and necessary to consider the income of the deceased at Rs.7,000/-p.m. The tribunal has awarded Rs.75,200/- towards pecuniary loss, which is stated to be towards fees paid to the college in respect of the deceased. The 10 claimants have produced fee receipt in respect of the deceased which goes to show that the college fees were paid for the year 2009 except the receipt dated 4/3/2010. The accident in question occurred on 19/7/2010. Therefore, the said fee receipt pertains to the previous academic year, namely, 2009-10. Under these circumstances, it appears awarding this amount towards pecuniary loss is erroneous and the claimants are not entitled for the same.
14. The tribunal has applied the multiplier 13 taking into consideration the age of the petitioner No.2. It is settled law that in a case of bachelor, the age of the deceased has to be considered for choosing the multiplier. Therefore, the multiplier '18' has to be applied in the present case. The claimants are also entitled for 40% of the income towards future prospects as per the judgment of the Apex Court in the case of National Insurance Ltd. Vs. Pranay Sethi and 11 Others reported in AIR 2017 SCC 5157.
Accordingly, the compensation is reassessed as follows:-
Income of the deceased is considered at Rs.7,000/- p.m. 40% of the income is added towards future prospects, which comes to Rs.9,800/-. Out of the same, 50% is deducted towards personal and living expenses of the deceased. Remaining income of Rs.4,900/- of Rs.4900 has to be multiplied by '12' and '18'. Thus, loss of dependency comes to Rs.10,58,400/-(4900X 12X18). The claimants are also entitled for Rs.30,000/-
towards conventional head. The claimants are also entitled Rs.4,694/- towards medical expenses as awarded by the tribunal.
15. Thus, the claimants are entitled for a total compensation of Rs.10,93,094/- as against compensation awarded by the Tribunal at Rs.5,84,900/- 12
16. Thus, the claimants-appellants are entitled for enhanced compensation of Rs.5,08,194/-.
17. In the result, this Court proceed to pass the following:
ORDER MFA No.20143/2012 is hereby dismissed. MFA No.21665/2017 is allowed in part. The claimants are awarded enhanced compensation of Rs.5,08,194.00 with interest @ 6% p.a. from the date of petition till realization.
The amount in deposit shall be transmitted to the concerned tribunal along with LCR. The apportionment and disbursement shall be in terms of the order of the tribunal.
Sd/-
JUDGE Vmb