Karnataka High Court
Kumar Jaghannath S/O. Prabhu @ ... vs Smt.Ningavva Laxmappa Hosmani on 14 February, 2024
Author: S G Pandit
Bench: S G Pandit
-1-
NC: 2024:KHC-D:3449-DB
MFA No. 100145 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 14TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE K V ARAVIND
MISCELLANEOUS FIRST APPEAL NO. 100145 OF 2019 (MV-D)
BETWEEN:
1. KUMAR JAGHANANTH
S/O. PRABHU @ PRABHAYYA HIREMATH
AGE: 7 YEARS, OCC:STUDENT,
2. KUMARI VEDHA
D/O. PRABHU @ PRABHAYYA HIREMATH
AGE 4 YEARS,
(APPL NO.1 AND 2 ARE MINORS,
REP BY M/G APPL NO.3)
3. SMT VIDYASHREE
W/O. PRABHU @ PRABHAYYA HIREMATH
AGE: 31 YEARS, OCC: HOUSEHOLD WORK,
4. SMT PARWATHI W/O. BASAYYA HIREMATH
AGE: 56 YEARS, OCC: HOUSEHOLD WORK,
Digitally
signed by
JAGADISH
JAGADISH T R
TR Date:
5. SRI BASAYYA S/O. SANGAYYA HIREMATH
2024.02.21
10:53:00
+0530 AGE: 71 YEARS, OCC: HOUSEHOLD WORK,
ALL ARE R/O. HUNGUND, TQ:HUNGUND,
DIST:BAGALKOT-587118.
...APPELLANTS
(BY SRI. SHIVAKUMAR S BADAWADAGI &
SMT. VAISHALI K. KALADAGI, ADVOCATES)
AND:
1. SMT.NINGAVVA LAXMAPPA HOSMANI
AGE: 57 YEARS, OCC: HOUSEHOLD WORK,
-2-
NC: 2024:KHC-D:3449-DB
MFA No. 100145 of 2019
2. SMT LAXMI SHIVANAND HOSMANI
AGE: 37 YEARS, OCC:HOUSEHOLD WORK,
3. KUMAR VISHESHA SHIVANAND HOSMANI
AGE: 11 YEARS, OCC: STUDENT,
4. KUMARI VINANTHI SHIVANAND HOSMANI
AGE: 8 YERS, OCC: STUDENT,
(RESP NO.3 AND 4 ARE MINORS,
REP BY M/G RESP. NO.2)
ALL ARE R/O. WARD NO.3 HUNGUND,
TQ:HUNGUND, DIST:BAGALKOT-587118.
5. THE ORIENTAL INSURANCE COMPANY LIMITED
CORPORATE AND REGISTERED OFFICE,
NEW DELHI AND HAVING ITS BRANCH OFFICE
AT BUDDAR COMPLEX,
OPPOSITE RTO LOFFICE, BAGALKOT-587101.
...RESPONDENTS
(BY SRI. SANTOSHKUMAR G. RAMPUR, ADVOCATE FOR R1,
SRI. N.R. KUPPELUR, ADVOCATE FOR R5,
NOTICE TO R2 HELD SUFFICIENT,
R3 & R4 ARE MINORS R/BY R2)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED 08.01.2018
PASSED IN MVC NO.318/2016 ON THE FILE OF SENIOR CIVIL JUDGE
AND MOTOR ACCIDENT CLAIMS TRIBUNAL, HUNGUND, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
S G PANDIT, J., DELIVERED THE FOLLOWING:
-3-
NC: 2024:KHC-D:3449-DB
MFA No. 100145 of 2019
JUDGMENT
Though this appeal is listed for admission, with the consent of learned counsel for the parties, it is taken up for final disposal.
2. The claimants are in appeal praying for enhancement of compensation, not being satisfied with the quantum of compensation awarded under judgment and award dated 08.01.2018 passed in MVC No.318/2016 on the file of learned Senior Civil Judge and Member, MACT, Hungund (for short, 'Tribunal').
3. The claimants, who are wife, two children and parents of the deceased Prabhu Hiremath, filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for the accidental death of Prabhu Hiremath that took place on 24.11.2014 involving Car bearing registration No.KA-29/M-5730. It is stated that the deceased was aged 29 years as on the date of the accident and he was BAMS doctor by profession, earning Rs.70,000/- per month.
4. On appearance, respondent No.5-Insurance Company filed statement of objections denying the entire claim petition averments, but admitted that the car in question was -4- NC: 2024:KHC-D:3449-DB MFA No. 100145 of 2019 duly insured with it as on the dated of the accident. It was contended that the driver of the car in question was not having valid and effective driving license as on the date of the accident. Thus, sought for dismissal of the claim petition.
5. Before the Tribunal, claimant No.3-wife of the deceased examined herself as PW1 apart from marking the documents as Exs.P1 to P26. Respondent No.5-Insurer did not examine any witness, but marked insurance policy as Ex.R1. The Tribunal based on the material on record awarded a total compensation of Rs.33,68,000/- with interest at 7% per annum from the date of petition till realization on the following heads:
Loss of dependency Rs.32,13,000/-
Conveyance Rs. 5,000/-
Funeral expenses Rs. 15,000/-
Loss of Estate Rs. 15,000/-
Loss of consortium Rs. 40,000/-
Loss of love & affection Rs. 80,000/-
-------------------
Total Rs.33,68,000/-
-------------------
6. While awarding the above compensation, the
Tribunal determined the income of deceased at Rs.15,000/- per month, added 40% of the same towards future prospects, applied multiplier of 17, deducted 1/4th towards personal expenses of the deceased. The appellants/claimants are in -5- NC: 2024:KHC-D:3449-DB MFA No. 100145 of 2019 appeal praying for enhancement of compensation, not being satisfied with the quantum of compensation awarded by the Tribunal.
7. Sri.Shivakumar S Badawadagi, learned counsel for the appellants/claimants with vehemence contends that the income assessed by the Tribunal at Rs.15,000/- per month is on the lower side, since the deceased Prabhu was BAMS doctor by profession and running clinic in the name and style "Jyoti Clinic", earning more than Rs.70,000/- per month. He submits that to establish the earning of the deceased, the claimants had produced Ex.P10-Registration Certificate issued by the competent Authority to run Ayurvedic Clinic for the period from 15.12.2010 to 14.12.2015. Therefore, he submits that the Tribunal taking note of Ex.P10 ought to have assessed the income of the deceased at least Rs.50,000/- per month. He further submits that the Tribunal failed to award loss of consortium of Rs.40,000/- each to all the claimants as held by the Hon'ble Apex Court in the case of Magma General Insurance Co. Ltd. Vs. Nanu Ram & Others1. Thus, learned 1 2018 ACJ 2782 -6- NC: 2024:KHC-D:3449-DB MFA No. 100145 of 2019 counsel prays for allowing the appeal by enhancing the compensation.
8. Per contra, Sri.N.R.Kuppelur, learned counsel appearing for respondent No.5/Insurance Company strenuously contended that the Tribunal is justified in assessing monthly income of the deceased at Rs.15,000/-, in the absence of any cogent material on record to establish that the deceased was earning Rs.70,000/- per month by his profession as BAMS doctor. Further, learned counsel submits that the compensation awarded on all heads are just and proper, which requires no interference. Thus, he prays for dismissal of the appeal.
9. Having heard the learned counsel for both the parties and on perusal of the appeal papers along with original records, the following points would arise for our consideration in this appeal:
a) Whether the income of the deceased assessed by the Tribunal at Rs.15,000/- per month is just and proper?
b) Whether the claimants would be entitled for enhanced compensation?
10. Our answer to the above points would be in the negative and affirmative respectively for the following reasons: -7-
NC: 2024:KHC-D:3449-DB MFA No. 100145 of 2019
11. The occurrence of the accident on 24.11.2014 involving Car bearing registration No.KA-29/M-5730 resultant death of deceased Prabhu Hiremath is not in dispute in this appeal. It is also not in dispute that the deceased had completed his BAMS course. The claimants are in appeal praying for enhancement of compensation.
12. It is the contention of the claimants that the deceased was BAMS doctor by profession and earning Rs.70,000/- per month. The claimants produced Ex.P9 to Ex.P13, Certificates of the deceased for having completed BAMS Course as well as Diploma in Pharmacy. Ex.P9 is the Registration Certificate dated 1.12.2007 issued by the Karnataka Ayurvedic & Unani Practitioners Board. Ex.P10 is the Registration Certificate issued by the District Private Medical Association Registration Authority, Bagalkot, to run Jyoti Clinic at Hungund for the period from 15.12.2010 to 14.12.2015. Ex.P11 is the Certificate issued by the Drugs Control Department, for having completed Diploma in Pharmacy. Ex.P12 is the Certificate issued by the Karnataka State Pharmacy Council in favour of the deceased for having registered as Pharmacist. Ex.P13 is the Certificate issued by the -8- NC: 2024:KHC-D:3449-DB MFA No. 100145 of 2019 Para Medical Board to the deceased Prabhu for having completed Diploma in Ophthalmic Technique. A perusal of Ex.P9 to P13 would go to show that the deceased had completed many courses in medical field and also had bright future in his profession as Doctor. However, those documents are not sufficient to come to a conclusion that the deceased was earning more than Rs.70,000/- per month.
13. The Hon'ble Apex Court in the case of Ashvinbhai Jayanthilal Modi Vs. Ramkaran Ramchandra Sharma2, assessed income of MBBS student at Rs.25,000/- per month. In the instant case, the deceased had completed BAMS course. But the same cannot be applied in the present case, since the deceased in the present case is not MBBS holder. BAMS course cannot be equated with MBBS course. Both are different streams and they would not go together. The deceased was young aged 29 years with qualification of BAMS, would have had a decent earning. Therefore, taking note of Ex.P9 to Ex.P13 and decision in the case of Ashvinbhai (supra) and also in the facts and circumstances of the case, we are of the considered view that it is just and appropriate to re-assess the income of 2 2014 AIR SCW 6507 -9- NC: 2024:KHC-D:3449-DB MFA No. 100145 of 2019 the deceased at Rs.25,000/- per month, which would meet the ends of justice.
14. The Tribunal rightly added 40% of the assessed income towards future prospects, which is just and proper, requires no interference. There is no dispute with regard to age of the deceased as 29 years, deduction of 1/4th towards personal and living expenses considering five dependents and multiplier of 17, which are proper and correct. Accordingly, the claimants would be entitled for compensation on the head of loss of dependency at Rs.53,55,000/- (Rs.25,000 + 40/100 x 12 x 17 x 3/4).
15. Further, the claimants would be entitled to Rs.40,000/- each towards parental, spousal and filial consortium as held by the Hon'ble Apex Court in Magma General Insurance Company Limited (supra). The Tribunal rightly awarded a sum of Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses and transportation of dead body, which is not disturbed. Thus, the claimants would be entitled for modified compensation on the following heads:
- 10 -
NC: 2024:KHC-D:3449-DB
MFA No. 100145 of 2019
Sl.No. Particulars Amount
1. Loss of dependency Rs.53,55,000/-
2. Loss of estate & Funeral Rs. 30,000/-
expenses & transportation of
dead body
3. Parental, Spousal and Filial Rs. 2,00,000/-
Consortium (Rs.40,000/- each)
Total Rs.55,85,000/-
16. Thus, the claimants would be entitled to total compensation of Rs.55,85,000/- as against Rs.33,68,000/-
awarded by the Tribunal.
17. In the result, we proceed to pass the following:
ORDER
a) Appeal stands allowed in part.
b) The impugned judgment and award of the Tribunal is modified holding that the claimants are entitled to total compensation of Rs.55,85,000/- as against Rs.33,68,000/- awarded by the Tribunal.
c) The enhanced compensation amount will bear interest at the rate of 6% per annum from the date of claim petition till date of realization.
d) The respondent/Insurer shall deposit the enhanced compensation amount with accrued interest before the Tribunal within a period of six weeks from the date of receipt of certified copy of this judgment.
- 11 -
NC: 2024:KHC-D:3449-DB MFA No. 100145 of 2019
e) It is made clear that the appellants would not be entitled any interest on the enhanced compensation for the delayed period of 361 days in filing the appeal.
f) The apportionment, deposit and
disbursement shall be made as per the
award of the Tribunal.
g) Registry to transmit the original records to the Tribunal forthwith.
h) Draw modified award accordingly.
Sd/-
JUDGE Sd/-
JUDGE JTR List No.: 1 Sl No.: 8