Karnataka High Court
Suresh S/O Pandurang Salaskar And Ors vs Rajbhupathi S/O Shri. Pacha Muthu And ... on 27 June, 2023
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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NC: 2023:KHC-K:4645-DB
MFA No. 200704 of 2021
C/W MFA No. 200628 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF JUNE, 2023
PRESENT
THE HON'BLE MR JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
MISCL. FIRST APPEAL NO. 200704 OF 2021 (MV-D)
C/W
MISCL. FIRST APPEAL NO. 200628 OF 2021
IN MFA NO.200704/2021
BETWEEN:
1. MAHADEV S/O KONDIBA PAWAR,
AGE: 46 YEARS, OCC: NIL,
RESIDING AT JUMANAL,
TALUK AND DISTRICT: VIJAYAPURA.
Digitally signed by
SOMANATH
PENTAPPA MITTE
Location: HIGH
COURT OF
2. SUNDRA W/O MAHADEV PAWAR,
KARNATAKA
AGE: 44 YEARS, OCC: HOMEMAKER,
RESIDING AT JUMANAL,
TALUK AND DISTRICT: VIJAYAPURA.
3. KALYAN S/O MAHADEV PAWAR,
AGE: 24 YEARS, OCC: NIL,
RESIDING AT JUMANAL,
TALUK AND DISTRICT: VIJAYAPURA.
4. KUM. SWATHI D/O MAHADEV PAWAR,
AGE: 17 YEARS,
RESIDING AT JUMANAL,
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MFA No. 200704 of 2021
C/W MFA No. 200628 of 2021
TALUK AND DISTRICT: VIJAYAPURA,
MINOR GUARDIAN REPRESENTED BY
APPELLANT NO.1
...APPELLANTS
(BY SRI. SANGANAGOUDA V.BIRADAR, ADVOCATE)
AND:
1. RAJBHUPATHI S/O PACHA MUTHU,
AGE: 44 YEARS, OCC: BUSINESS,
POST OFFICE AND TALUK: SANKARI,
DISTRICT: SEDAM,
STATE OF TAMIL NADU-141005.
2. THE BRANCH MANAGER,
UNITED INDIA INSURANCE COMPANY LIMITED,
FIRST FLOOR, SANAGAMA BUILDING,
S.S.FRONT ROAD,
VIJAYAPURA-586101.
...RESPONDENTS
(BY SRI. MANVENDRA REDDY, ADVOCATE FOR R2;
NOTICE TO R1 DISPENSED WITH V/O DTD. 25.01.2022)
THIS MFA IS FILED UNDER SECTIONS. 173(1) OF MV
ACT, PRAYING TO ALLOW THIS APPEAL AND ENHANCE
THE COMPENSATION AS CLAIMED IN THE CLAIM
PETITION BY MODIFYING THE JUDGMENT AND AWARD
DATED 29.06.2019 PASSED BY THE COURT OF IV
ADDITIONAL DISTRICT AND SESSIONS JUDGE, MEMBER,
MACT-13, AT VIJAYAPURA, IN MVC NO.308/2015, IN THE
INTEREST OF JUSTICE AND EQUITY.
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MFA No. 200704 of 2021
C/W MFA No. 200628 of 2021
IN MFA NO.200628/2021
BETWEEN:
1. SURESH S/O PANDURANG SALASKAR,
AGE: 54 YEARS, OCC: NIL,
RESIDING AT SHASHUNAGAR,
VIJAYAPURA.
2. MANGALA W/O SURESH SALASKAR,
AGE: 49 YEARS, OCC: HOMEMAKER,
RESIDING AT SHASHUNAGAR,
VIJAYAPURA.
3. SONALI W/O LATE. DAYANANDA SALASKAR,
AGE: 30 YEARS, OCC: HOMEMAKER,
RESIDING AT SHASHUNAGAR,
VIJAYAPURA.
4. ANKITA D/O LATE. DAYANANDA SALASKAR,
AGE: 11 YEARS,
RESIDING AT SHASHUNAGAR,
VIJAYAPURA.
MINOR REPRESENTED BY GUARDIAN
APPELLANT NO.3,
5. ARYAN S/O LATE. DAYANANDA SALASKAR,
AGE: 08 YEARS,
RESIDING AT SHASHUNAGAR,
VIJAYAPURA.
MINOR REPRESENTED BY GUARDIAN
APPELLANT NO.3,
...APPELLANTS
(BY SRI. SANGANAGOUDA V.BIRADAR, ADVOCATE)
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MFA No. 200704 of 2021
C/W MFA No. 200628 of 2021
AND:
1. RAJBHUPATHI S/O PACHA MUTHU,
AGE: 44 YEARS, OCC: BUSINESS,
POST OFFICE AND TALUK: SANKARI,
DISTRICT: SEDAM,
STATE OF TAMIL NADU-141005.
2. THE BRANCH MANAGER,
UNITED INDIA INSURANCE COMPANY LIMITED,
FIRST FLOOR, SANAGAMA BUILDING,
S.S.FRONT ROAD,
VIJAYAPURA-586101.
...RESPONDENTS
(BY SRI. MANVENDRA REDDY, ADVOCATE FOR R2;
NOTICE TO R1 DISPENSED WITH V/O DTD. 07.12.2021)
THIS MFA IS FILED UNDER SECTIONS. 173(1) OF MV
ACT, PRAYING TO ALLOW THIS APPEAL AND ENHANCE
THE COMPENSATION AS CLAIMED IN THE CLAIM
PETITION BY MODIFYING THE JUDGMENT AND AWARD
DATED 29.06.2019 PASSED BY THE COURT OF IV
ADDITIONAL DISTRICT AND SESSIONS JUDGE, MEMBER,
MACT-13, AT VIJAYAPURA, IN MVC NO.307/2015, IN THE
INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, UMESH M. ADIGA J., DELIVERED THE FOLLOWING:
JUDGMENT
Both the appeals are filed by claimants in MVC No.307/2015 and MVC No.308/2015 on the file of MACT -5- NC: 2023:KHC-K:4645-DB MFA No. 200704 of 2021 C/W MFA No. 200628 of 2021 No.XIII, Vijayapur (hereinafter after referred as 'the Tribunal'). Being aggrieved by judgment and award passed in the said cases dated 29.06.2019, praying for enhancement of compensation.
2. Though matter was listed for hearing on admission, with consent of both side taken up for final disposal.
3. Parties will be referred to as per their ranking before the Tribunal.
4. It is the case of claimants in both the petitions that on 19.10.2014 at about 10.00 a.m. deceased Dayananda, Avinash Pawar and injured Jyothiram were traveling in Trolley of a Tractor bearing Reg.No.MH-13-BQ- 2007, which was going on Akola to Marwade road. The said Tractor and Trolley met with an accident due to rash and negligent driving of lorry bearing Reg.No.TN-52-C-3566 by its driver. Due to impact, Dayananda and Avinash Pawar died at the spot and Jyothiram had sustained injury. -6-
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5. Claimants in MVC No.307/2015 are parents, wife and minor children of Dayananda and claimants in MVC No.308/2015 are parents, brother and sisters of deceased Avinash. They claims to be depending upon the earnings of the deceased Dayananda and Avinash respectively.
6. It was further case of claimants in MVC No.307/2015 that deceased was aged about 28 years and he was agricultural coolie and earning Rs.10,000/- per month. Claimants were depending on his income. With these reasons, they prayed to award compensation of Rs.50,00,000/-. Similarly claimants in MVC No.308/2015 have contended that deceased was aged about 20 years and he was labourer and earning Rs.10,000/- per month out of the said income, he was looking after the family. With these reasons prayed to award compensation of Rs.50,00,000/-
7. Respondent-insurer of the lorry has denied all the contentions of the claimants and it is stated that accident was taken place due to rash and negligent driving of Tractor by its driver; liability of respondent is restricted to -7- NC: 2023:KHC-K:4645-DB MFA No. 200704 of 2021 C/W MFA No. 200628 of 2021 terms and conditions of policy of insurance and holding a valid and effective driving licence by the driver of the lorry and amount of compensation claimed is highly excessive. With these reasons, respondent prayed to dismiss the claim petition.
8. The Tribunal clubbed MVC No.307/2015 and 308/2015 along with MVC No.1562/2015 and common evidence was recorded. Claimants have examined PW1 to PW3 and got marked Ex.P1 to Ex.P21. Respondents got marked Ex.R1.
9. The Tribunal on hearing both side and appreciating pleading and evidence on record held that accident was taken place due to rash and negligent driving of lorry by its driver. It also held that the age of the deceased in MVC No.307/2015 as 28 years, his earning as Rs.7,500/- per month, added 40% of the income towards future prospects, deducted 1/4th of earning towards personal expenses and awarded compensation of Rs.18,01,500/-. In MVC No.307/2015, it appears that the -8- NC: 2023:KHC-K:4645-DB MFA No. 200704 of 2021 C/W MFA No. 200628 of 2021 Tribunal has committed an error while calculating the compensation. According to the calculation made in para No.32, the Tribunal awarded compensation of Rs.11,47,500/- under the head loss of dependency. However, amount taken by Tribunal is Rs.10,20,000/-. Similarly while assessing the future prospects, it has wrongly calculated the amount. In view of the same, there is mistake in calculation. According to the assessment of the Tribunal, the compensation ought to be Rs.16,43,000/-; But the Tribunal has mentioned total compensation as Rs.18,01,500/-.
10. In MVC No.308/2015 at para No.43 though the Tribunal has wrongly calculated the amount under head loss of dependency as Rs.11,47,500/-, however, in the final calculation, the said mistake was corrected and total compensation of Rs.16,27,000/- awarded.
11. We have heard the arguments of learned advocates for both side.
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12. The learned advocate for appellant submits that in MVC No.307/2015, the Tribunal has not awarded proper compensation under the head loss of consortium and loss of estate. Therefore, prayed to recalculate the same. He has further submitted that in MVC No.308/2015 though there were five dependents, the Tribunal has deducted 1/3rd towards personal expenses instead of 1/4th. The Tribunal has also not awarded compensation under the head loss of estate and compensation awarded under the head loss of consortium is on lower side. Therefore, prayed to enhance the compensation amount.
13. The learned advocate for respondent No.2 supported the impugned judgment and submits that it does not call for any interference.
14. The following point emerges for our determination.
"Whether the appellants are entitled for enhancement of compensation?
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15. in MVC No.307/2015 (MFA No.200704/2021), there is no dispute in the compensation awarded under the head loss of dependency. The Tribunal has awarded Rs.1,90,000/- towards loss of consortium and love and affection and Rs.25,000/- towards loss of estate. In the case of National Insurance Company Limited V. Pranay Sethi and others1, and also in the case of Magma General Insurance Company Limited vs. Nanu Ram Alias Chuhru Ram and others2, the Hon'ble Apex Court held that Rs.40,000/- shall be awarded towards loss of consortium in favour of each claimants, similarly Rs.15,000/- each shall be awarded towards loss of estate and funeral expenses. The Tribunal has not awarded the compensation in terms of the said judgment, that needs to be corrected.
16. The claimants are entitled for Rs.2,00,000/- towards loss of consortium and Rs.15,000/- each under the head loss of estate and funeral expenses. In all the 1 2017 ACJ 2700 2 (2018)18 SCC 130
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NC: 2023:KHC-K:4645-DB MFA No. 200704 of 2021 C/W MFA No. 200628 of 2021 claimants are entitled for following amount of compensation in the MFA No.200704/2021:
Loss of dependency - Rs.16,06,500/- Loss of consortium - Rs.2,00,000/-
Loss of estate - Rs.15,000/-
Funeral expenses - Rs.15,000/-
Total - Rs.18,36,500/-
The claimants are entitled for enhancement of Rs.1,93,500/-
17. In respect of MVC No.308/2015 in MFA No.200628/2021), the Tribunal has determined the age of deceased as 20 years and earning Rs.7,500/-, deducted 1/3rd towards personal expenses, added 40% towards future prospects and awarded compensation of Rs.16,27,000/-.
18. The Tribunal has deducted 1/3rd of the income of deceased towards personal expenses. The claimants are parents, younger brother and younger minor sister of the deceased. They were said to be depending upon the earnings of the deceased which cannot be ruled out. It is not uncommon that Members of the family would go to work to earn and contribute to the family. Therefore, they were dependents upon earning of the deceased. Four members of
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NC: 2023:KHC-K:4645-DB MFA No. 200704 of 2021 C/W MFA No. 200628 of 2021 family were dependents. Hence, as per law laid down in the case of Sarla Verma vs. Delhi Transport Corporation3. 1/4th of income of the deceased shall be deducted towards personal expenses. Therefore, claimants are entitled for compensation under the head of loss of dependency is (7,825 x 12 x 18 = 17,01,000).
19. The Tribunal has awarded Rs.90,000/- towards loss of consortium, in the case of National Insurance Company Limited V. Pranay Sethi and others, and also in the case of Magma General Insurance Company Limited vs. Nanu Ram Alias Chuhru Ram and others (referred supra) each claimants are entitled for Rs.40,000/- and Rs.15,000/- each shall be awarded towards loss of estate and funeral expenses. From the above said calculation, the claimants are entitled for following compensation:
Loss of dependency - Rs.17,01,000/- Loss of consortium - Rs.01,60,000/- Funeral expenses - Rs.00,15,000/-
Loss of estate - Rs. 00,15,000/-
Total - Rs.18,91,000/-
3
(2009) 6 SCC 121
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MFA No. 200704 of 2021
C/W MFA No. 200628 of 2021
The claimants are entitled for enhancement of Rs.2,64,000/-
19. For the above said discussion, we answer the point in the partly affirmative and pass the following:
ORDER Appeal in MFA No.200628/2021 and MFA No.200704/2021 are partly allowed with costs.
The impugned judgment and award passed by the MACT No.XIII, Vijayapur dated 29.06.2019 in MVC No.307/2015 and MVC No.308/2015 are modified, as under:
(a) Claimants in MVC No.307/2015 are
entitled for compensation of
Rs.18,36,500/- as against Rs.16,43,000/-
awarded by Tribunal and claimants are entitled for enhancement of Rs.1,93,500/- with interest at the rate of 6% per annum on the enhanced amount of compensation from the date of petition till its realization.
(b) Claimants in MVC No.308/2015 are
entitled for compensation of
Rs.18,91,000/- as against Rs.16,27,000/- awarded by the Tribunal and claimants are entitled for enhancement of Rs.2,64,000/- with interest at the rate of 6% per annum
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NC: 2023:KHC-K:4645-DB MFA No. 200704 of 2021 C/W MFA No. 200628 of 2021 on the enhanced amount of compensation, from the date of petition till its realization.
(c) Respondent No.2 is directed to deposit said amount within eight weeks from the date of receipt of certified copy of the order.
(d) The findings of the Tribunal pertaining to apportionment, release and deposit are not interfered.
Draw modified award accordingly.
Sd/-
JUDGE Sd/-
JUDGE SMP List No.: 2 Sl No.: 6