Karnataka High Court
Savita W/O Late Ankush Gowli (Yadav) And ... vs Shamshuddin S/O Abdul Faiza & Anr on 20 February, 2018
Author: L Narayana Swamy
Bench: L.Narayana Swamy
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 20TH DAY OF FEBRUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
MISCELLANEOUS FIRST APPEAL NO. 202028/2014 (MV)
BETWEEN:
1. Savita W/o Late Ankush Gowli (Yadav),
Age: about 31 years, Occ: Household,
2. Umesh S/o Late Ankush Gowli (Yadav),
Age: about 14 years minor,
3. Uttakrasha D/o Late Ankush Gowli (Yadav),
Age: about 16 years minor
Appellant No.2 and 3 are U/g
Of their real mother,
The appellant No.1.
4. Padmavati W/o Late Balkrishna Gowli (Yadav),
Age: 68 years, Occ: Household,
All R/o Village Manthal,
Tq. Basavakalyan-585327.
... Appellants
(By Sri. B.C.Jaka, Advocate)
AND:
1. Shamshuddin S/o Abdul Faiza,
Age: Major, Occ: Business and owner of Tanker
Lorry bearing No.KA-38/5526,
R/o Shaha Gunj, Bidar-585401.
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2. The Divisional Manager,
The New India Assurance Company Limited,
10-47, II Floor, Near Sangameshwar Nagar,
S.B. Temple Road, Gulbarga-585102.
... Respondents
(Notice to R1 is dispensed with v/o dated 05.01.2015;
By Sri. S.S.Aspalli, Advocate for R2)
This Miscellaneous First Appeal is filed under Section
173(1) of M.V.Act, praying to allow the appeal by modifying
the judgment and award dated 20.10.2012 passed by the
FTC, Basavakalyan in MVC No.492/2011 and consequently
be pleased to enhance the compensation from Rs.8,99,000/-
to Rs.15,00,000/- with interest @ 12% per annum from the
date of petition till actual realization, in the interest of justice
and equity.
This appeal coming on for admission this day, the
Court delivered the following:
JUDGMENT
Appeal for enhancement of compensation filed by the wife, minor children and mother of the deceased, who succumbed to the injuries in the road accident on 20.08.2011 when he was proceeding towards Basavakalyan from Manthal on motorcycle bearing Regn.No.MH-14/AC- 4804, at that time, the offending vehicle tanker lorry bearing Regn.No.KA-38/5526 came in a rash and negligent manner 3 and caused the accident. Case was registered against the driver of the tanker lorry in Crime No.126/2011 for offence punishable under Sections 279 and 304A of IPC R/w 187 of Motor Vehicle Act. At the time of accident, deceased was aged 35 years and for the purpose of income, it was claimed that he was doing milk vending business and he was earning about Rs.200/- per day and he also possess the 5 acre 5 guntas land bearing Sy.No.257/2 and 257/3 out of the said land, he was earning Rs.4,00,000/- per annum. The Tribunal has assessed the income of the deceased at Rs.6,000/- and awarded compensation, which according to the claimants is on the lower side and needs to be enhanced. To prove the income, the claimants have produced RTC and also the book maintained by the milk cooperative society for having supplied the milk. Disbelieving the case of the claimant, Tribunal assessed lower income and awarded meager compensation.
2. The respondent-insurance company, supports the order and submit to dismiss this appeal. He submits that 4 the income has not been proved and quantification is on the basis of the materials produced by the claimant themselves.
3. Heard learned counsel for the parties, I have gone through the LCR. The deceased claimed the income at Rs.4,00,000/- per annum and at Rs.200/- per day by milk vending business. To examine the same the book maintained in Milk Cooperative Society is referred in which at relevant column it is mentioned that he used to earn at an average Rs.100/- per day. If that is considered income would be Rs.3,000/- per month; and as regards agriculture income is concerned, the RTC it stands in the name of wife and it is rain-fed land and since the crops column is left blank, it is difficult to assess the nature of crops grown. Actually, it is to be held that even if the income is not proved it is for the Tribunal to assess the notional income on the basis of the various factors as referred by the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS reported in 2017 SCC Online 1270 wherein at para 57 of the judgment it is held thus:
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"Any quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a filed have to be noticed. The Court cannot remain oblivious to the same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the tribunals and courts are likely to be unguided. Therefore, we think it seemly to fix reasonable sums."
4. In the case instant, also the claimants are four in number including two minor children, young age wife and aged mother, in total five members including the deceased and it is presumed that the deceased must have earned some amount to feed five members family in addition to other expenses like education of child and other incidental expenses. It is stated in the claim petition that he was proceeding on motorcycle, means the deceased owns a motorcycle, which would indicate that he was having some good income. For the purpose of awarding compensation, the said facts need to be taken note of. Accordingly I have taken all these facts to arrive at the notional income for the 6 purpose of awarding compensation. Generally, Rs.100/- is required for an adult to meet his daily expenses and the same is taken. In the present case there are three adults and hence it comes to Rs.300/- and the same is taken. Taking Rs.25/- per child, for two children it comes to Rs.50/- and the total income per day the person earns is arrived at Rs.350/- per day as notional income. At this stage, learned counsel for the respondent submits the expenses may not be relatively at the same stretch everyday in case of children. Considering the said submission, the income is limited to Rs.300/- per day which comes to Rs.9,000/- per month. The same taken and hence, the calculation would be Rs.9,000/- per month. Hence the calculation would be 9,000 X 12 X 16 X ¼ = Rs.12,91,000/- same is awarded under the head of loss of dependency. All put together Rs.70,000/- under the conventional heads. The enhanced amount carries interest at the rate as is awarded by the Tribunal.
5. In compliance of Articles 21 and 21A of Constitution of India, it is the duty of the Court to see that 7 the school going children should continue their education. The absence of the father who is an earning member should not be a hurdle to these children or else, they may drop out from the school. The petitioner No.3 is a minor daughter, she was three years when she lost her father and she must be going to school now. The object of Article 21A of Constitution of India is to provide compulsory education till the child attains 14 years of age. The laudable object of the Constitutional provisions is that children shall not discontinue their education because of the death of father and it is believed that, normally, the mother may not be in a position to earn like a father. Under these circumstances, it is appropriate to direct the insurance to deposit Rs.2,00,000/- as a corpus fund in its name in any of the nationalised bank till the child attains 20 years of age. The mother of the child shall furnish fee structure to the Bank where the corpus fund is deposited, and the Bank may credit the fee amount to the school/college directly through RTGS. Upon the child attaining twenty years, the corpus fund along with the unutilised interest portion shall be refunded to the 8 Insurance without any orders from the Court. It is made clear that in case if the child discontinues her education or drops-out from the school, then corpus fund with the unutilised interest amount shall be refunded to the Insurance. With these observations, the appeal partly allowed. It is made clear that the interest on the enhanced amount is denied for the delayed period.
Sd/-
JUDGE SMP