Karnataka High Court
Chetana W/O Honnappa M E vs Babuji M S/O Mariyappa D on 13 November, 2020
Author: G.Narendar
Bench: G.Narendar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13TH DAY OF NOVEMBER 2020
PRESENT
THE HON'BLE MR. JUSTICE G.NARENDAR
AND
THE HON'BLE MR. JUSTICE M.I.ARUN
M.F.A.NO.102268 OF 2019 (MV)
BETWEEN:
1. CHETANA
W/O. HONNAPPA M E.
AGE: 44 YEARS,
OCC: HOUSEHOLD WORK,
R/O. HOLALAKERE ROAD,
RAMAGIRI,
TQ: HOLALAKERE,
DIST: CHITRADURGA.
2. HONNAPPA M E
S/O. M B ESHWARAPPA,
AGE: 46 YEARS,
OCC: BUSINESS, NOW NIL,
R/O. HOLALAKERE ROAD,
RAMAGIRI,
TQ: HOLALAKERE,
DIST: CHITRADURGA.
3. ARUNA M H
S/O. HONNAPPA M E,
AGE: 22 YEARS,
OCC: STUDENT, NOW NIL.
R/O. HOLALAKERE ROAD,
RAMAGIRI,
TQ: HOLALAKERE,
DIST: CHITRADURGA.
... APPELLANTS
(BY SRI. G. S. HULMANI, ADV.,)
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AND
1. BABUJI M
S/O. MARIYAPPA D.
AGE: MAJOR,
OCC: BUSINESS,
R/O. 1ST CROSS,
VADDINAKOPPA,
SHIVAMOGGA,
TQ & DIST: SHIVAMOGGA.
2. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
ENKAY COMPLEX, KESHWAPUR,
HUBBALLI-580020.
3. THE BRANCH MANAGER,
UNITED INDIA INSURANCE CO.LTD.,
NEAR ASHOK CIRCLE,
RANEBENNUR,
DIST: HAVERI - 581115.
... RESPONDENTS
(BY SRI. A. G. JADHAV, ADV., FOR R2;
R1 AND R3 - NOTICE DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD
DATED 25.09.2018 PASSED IN MVC NO.1201/2017 ON THE
FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND
ADDITIONAL MOTOR VEHICLE ACCIDENT CLAIMS TRIBUNAL,
RANEBENNUR, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS MFA HAVING BEEN HEARD AND RESERVED ON
03.11.2020 FOR JUDGMENT AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, M.I.ARUN J.,
DELIVERED THE FOLLOWING:
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JUDGMENT
Heard the learned counsel for the appellant and the learned counsel appearing for respondent-insurer.
2. Though the matter is listed for orders, with the consent of the learned counsel for parties, it is taken up for final disposal.
3. Aggrieved by the judgment and award dated 25.09.2018 passed in MVC No.1201/2017 by the II- Additional Senior Civil Judge and Additional Motor Accident Claims Tribunal, Ranebennur (for short "the Tribunal"). The petitioners therein have preferred this appeal.
4. The brief facts of the case are that on 15.07.2017 at about 5.45 p.m. one M. H. Amith S/o. M. E. Honnappa was proceeding on a bike bearing Chassis No.MD2JYM5HC 271148 as a pillion rider near N.R.Pura road. At that time, a lorry bearing registration No.KA-19/B-6248 being driven by its driver in a rash and negligent manner came and hit the bike and caused -4- the accident, due to which the pillion rider sustained grievous injuries and ultimately succumbed to the same. The appellant No.1 and 2 are the parents and appellant No.3 is the brother of the deceased. Respondent No.1 is the owner of the offending lorry and respondent No.2 and 3 are the insurers of the offending vehicle.
5. The deceased was aged 17 years at the time of the accident. According to the appellants, the deceased was a student and was also doing milk vending business and he was an earning member of his family. Due to the death of deceased, the appellants herein filed claim petition before the Tribunal and claimed compensation of Rs.50,00,000/-.
6. The respondents appeared before the Tribunal and filed their objections denying their liability. The Tribunal based on the pleadings, framed issues, recorded the evidence and came to the conclusion that the accident had happened due to the rash and negligent driving of the driver of the lorry. However, it concluded that the deceased was a child of 17 years and there was -5- no evidence to show that he was engaged in milk vending and accordingly considered him as a person without income and has granted a total compensation of Rs.6,65,000/-.
7. Not satisfied with the said award, the petitioners therein have preferred this appeal.
8. There is no challenge as to the nature of the accident in the instant case. The only issue involved pertains to the quantum of compensation awarded.
9. The appellants have contended that the deceased was involved in milk vending business and the Tribunal has erred in considering him as a child and that he was not earning and thereby granted compensation, which is much more on the lower side and not sustainable in law. The respondents have justified the award of the Tribunal.
10. Admittedly, the deceased was aged 17 years as on the date of the accident. He might not be an adult but he cannot be considered as a child. He has to be -6- considered as an adolescent. Section 2 (i) and (ii) of the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 (for short "the Act") defines as follows:
"(i) "adolescent" means a person who has completed his fourteenth year of age abut has not completed his eighteenth year;
"(ii) "child" means a person who has not completed his fourteenth year of age or such age as may be specified in the Right of Children to Free and Compulsory Education Act, 2009 (35 of 2009), whichever is more."
11. Section 3 of the Act prohibits employment of a child in certain occupations and processes. The said Act does not prohibit the adolescent of 17 years to involve in a milk vending business. The deceased and his family are from rural area and it is common for a person of 17 years to be involved in milk vending or similar occupations. The Tribunal has completely lost sight of this fact and the reasoning is contrary to and in the teeth of the statutory provisions.
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12. The Hon'ble Apex Court in the case of Sarla Verma and others v. Delhi Transport Corporation and another reported in 2009 ACJ 1298 while determining the multiplier/multiplicand in accidental claims, has taken into consideration persons from the age group of 15 years and onwards while fixing the multiplier. If the reasoning of the Tribunal is taken as correct, this Court would be doing violence to a well settled position in law. The erudite judgment has not only stood the test of reason but has also stood the test of time. In fact, the Constitutional Bench of the Apex Court, has approved and upheld the methodology settled in Sarla Verma's case to calculate the multiplier/multiplicand. The reasoning of the Tribunal, virtually renders otiose the methodology settled in Sarla Verma's case and approved by the Constitutional Bench in the case of National Insurance Company Ltd., V. Pranay Sethi and others reported in AIR 2017 SC 5157.
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13. The Tribunal has relied upon the decision of the Hon'ble Apex Court in Kishan Gopal and another v. Lala and others reported in AIR 2013 SC 5037. In the said case, the age of the person involved in the accident was 10 years. The said ratio cannot be applied to the case of an adolescent who is 15 years and above.
14. The appellants have made an averment that the deceased was earning by way of milk vending. The said evidence is not impeached. In the absence of any other proof as to the income of the deceased, considering the age of the deceased, it would be appropriate to adopt the notional income as fixed by the Karnataka Legal Services Authority in consultation with the Insurance Companies. Hence, in our opinion, the award passed by the Tribunal calls for interference.
15. The accident happened in the year 2017. As a thumb rule, the notional income as fixed by the Karnataka Legal Services Authority is adopted by the Courts for determining the income and in the instant case the accident claim is of the year 2017 and it is -9- Rs.10,250/-. The deceased was aged 17 years at the time of the accident. As per the decision of the Hon'ble Apex Court in Sarala Verma's case, the applicable multiplier is '18' that needs to be applied. Since the deceased was a bachelor, 50% of his income needs to be deducted towards his personal expenses, which would be Rs.5,125/- per month. Further, as per the decision of the Hon'ble Apex Court in Pranay Sethi's case, 40% of the monthly income needs to be added towards future prospects. Thus, on the count of loss of dependency, the petitioners/appellants are entitled to Rs.15,49,800/- (Rs.10,250/- less 50% towards personal expenses x 12 (months) x 18 (multiplier) + 40% (future prospects) =Rs.15,49,800/-).
16. Further, as per the decision rendered by the Hon'ble Apex Court in the case of Magma General Insurance Company Ltd. v. Nanu Ram reported in 2018 SCC 1546, the petitioners are entitled to a sum of Rs.40,000/- each under the head of loss of consortium
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and on this count, together they are entitled to a sum of Rs.1,20,000/- (Rs.40,000 x 3 = Rs.1,20,000/-).
17. Towards funeral expenses and loss of estate, they are entitled to Rs.30,000/-. Thus, in all the appellants are entitled to a total compensation of Rs.16,99,800/- as against Rs.6,65,000/- awarded by the Tribunal.
18. The enhanced amount shall carry interest at the rate of 6% per annum from the date of petition till realization, excluding the period from the date of award till today in respect of enhanced amount, due to inordinate delay in filing and prosecuting the appeal.
19. The appeal is partly allowed and office to draw up decree accordingly.
Sd/-
JUDGE Sd/-
JUDGE yan