Karnataka High Court
Krishnabai @ Krishnatai Gopal Bedare vs Fedex Express Transportation on 24 January, 2017
Author: Raghvendra S. Chauhan
Bench: Raghvendra S. Chauhan
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 24th day of January 2017
Present
THE HON'BLE MR. JUSTICE RAGHVENDRA S. CHAUHAN
And
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
M.F.A. No. 101881/2016 (MV)
Between:
1. Smt. Krishnabai @ Krishnatai
Gopal Bedare, age-31 years,
Occ-Household.
2. Kumari Dhanashree @ Bebi
Gopal Bedare, Age-11 years,
Occ-student.
3. Kumari Gayatri Gopal Bedare,
Age-09 years, occ-student.
4. Kumari Shradha Gopal Bedare,
Age-06 years,
occ-Anganwadi student.
Since Appellants No-2 to 4
are minors, R/by Minor
Guardian and Natural
Mother, i.e., Appellant No-1.
5. Shri Gangaram Huvanna @
Huvappa Bedare, age-69 years,
Occ-nil.
6. Smt. Mallavva Gangaram Bedare,
2
Age-65 years, occ-nil.
All are r/o Devaganhatti,
Tq & Dist: Belagavi-590 002.
- Appellants
(By Sri Harish S. Maigur, Advocate)
And:
1. Fedex Express Transportation
And Supply Chain Services
(India) Pvt. Ltd., Plot No-S/5,
Ground Floor, Godown No-3,
Compartment No-4,
Warehousing Compound,
Raigarh-K, W.C. Kolamboli,
Raigarh-410 218.
2. The Divisional Manager,
Bajaj Allianz General
Insurance Co. Ltd.,
Madiwale Building,
Club Road,
Belagavi-590 002.
- Respondents
(By Sri M.K. Soudagar, Advocate for R2,
Notice to R1 is dispensed with)
This appeal is filed under Section 173(1) of M.V. Act against
the judgment and award dated 26.04.2016 passed in MVC No.
475/2015 on the file of the VIII Addl. Dist. & Sessions Judge,
Belagavi, partly allowing the claim petition for compensation and
seeking enhancement of compensation & etc.
This appeal coming on for admission this day,
RAGHVENDRA S. CHAUHAN. J, delivered the following:
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JUDGMENT
A widowed wife, and three children having suddenly lost their father, and the aged parents have challenged the legality of the award dated 26.04.2016, passed by the Additional District & Sessions Judge No.VIII, Belagavi, whereby the learned Tribunal has granted a compensation of Rs.10,31,000/- along with interest at 9% p.a. from the date of filing of the claim petition till the date of realisation.
2. Briefly the facts of the case are that, on 12.02.2015, at about 3.00 p.m., when Gopal Gangaram Bedare was returning to Belagavi from Kolhapur on his motorcycle, one container goods truck, bearing registration No. MH-06/AC- 418, being driven rashly and negligently, came from behind, and dashed against the motorcycle of Gopal Gangaram Bedare. Consequently, Gopal Gangaram Bedare suffered injuries. Immediately, he succumbed to the injuries. Since the appellants lost the sole bread earner of the family, they filed a claim petition before the learned Tribunal. In order to 4 substantiate their case, the appellant No.1 was examined as P.W.1, and the appellants submitted ten documents. The Insurance Company, on the other hand, did not examine any witness, but it submitted the Insurance Policy as a document. After assessing the evidence, the learned Tribunal granted the compensation as aforementioned. Hence, this appeal for enhancement.
3. Sri Harish S. Maigur, the learned counsel for the appellants, has raised the following contentions before this Court:-
Firstly, despite the fact that Gopal Gangaram Bedare was working as a "Mistri" (Mason), and was earning Rs.600/- per day, the learned Tribunal has assessed his income as merely Rs.6,000/- per month. Even according to the chart prepared by this Court, for taking the notional income of a deceased, for the year 2015 the income should be taken as Rs.8,000/-. Therefore, the income of the deceased needs to be enhanced by Rs.2,000/-.5
Secondly, considering the fact that the deceased was self-employed, the future prospect of 50% of his income should be added. However, the learned Tribunal has failed to do so.
Thirdly, considering the fact that the deceased at the time of his death, was 39 years and eight months old, a multiplier of '15' should have been applied by the Tribunal. However, the Tribunal has applied the multiplier of '14'. Therefore, it has erred in applying the wrong multiplier.
Fourthly, despite the fact that three small children have suddenly lost their father, inspite of the fact that the aged parents have lost their son, the learned Tribunal has granted a compensation of merely Rs.1,00,000/- for the "loss of love and affection" suffered by the three children, and the aged parents. Therefore, the compensation in the said category also needs to be enhanced.
4. On the other hand, Mr. M.K. Soudagar, the learned counsel for the Insurance Company, has pleaded that since 6 the appellants could not establish the income of Gopal Gangaram Bedare, the learned Tribunal was justified in notionally taking his income as merely Rs.6,000/- per month. Therefore, the assessment of income as Rs.6,000/- per month is justified.
Secondly, since the deceased was almost 40 years, the future prospect of only 30% should be given, rather than 50% as claimed by the learned counsel for the appellants.
Thirdly, the multiplier of 14 is legally justified. Therefore, the learned counsel has supported the impugned award.
5. Heard the learned counsel for the parties and perused the impugned award.
6. Repeatedly it has come to the notice of this Court that, while this Court has framed a chart for taking the notional income of the injured/ deceased, the said chart is not been followed by the learned Tribunal. As mentioned in the case of Iqbalahamed V. Vice Chairman, M/s Patel Integrated 7 Logistics Ltd. & Another [M.F.A. No. 101018/2015 decided on 06.01.2017], the consequence of not following the chart by the learned Tribunal is that invariably the claimants approach this Court with the plea that the income of the injured/ deceased has not been assessed properly by the learned Tribunal. Considering the fact that the chart prepared by this Court has been followed by this Court in its judgments, considering the fact that a judgment of this Court is binding on the learned Tribunals, the learned Tribunals are also duty bound to follow the chart prepared by this Court.
7. In the present case, since the appellants could not prove the income that may have been earned by Gopal Gangaram, the learned Tribunal was duty bound to take the notional income of the deceased according to the chart prepared by this Court. For an accident of 2015, the notional income should be taken as Rs.8,000/-. However, the learned Court has erred in taking the income as Rs.6,000/-. Therefore, the 8 income of Gopal Gangaram is enhanced from Rs.6,000/- to Rs.8,000/- per month.
8. Admittedly, on the date of his death, Gopal Gangaram was merely 39 years and eight months old. Thus, he had not crossed the age of 40 years. According to the multiplier applied by this Court, in case the deceased is between the age of 36 to 40, the multiplier of '15' should be applied. However, the learned Tribunal has applied the multiplier of '14'. Therefore, it has misapplied the multiplier. Thus, a multiplier of '15' is applicable in the present case.
9. In the case of Sarla Verma & Others Vs. Delhi Transport Corporation & Another (2009) 6 SCC 121, the Hon'ble Supreme Court has opined that in case the deceased is between the age of 30 to 40 years, then 50% of his income should be taken as loss of future income suffered by the claimants. Since Gopal was less than 40 years, 50% of his income should have been taken as the loss of future income 9 suffered by the appellants. Hence, the "loss of dependency" is re-calculated as under:
Rs.8,000/- (income) less Rs.2,000/- (¼ of personal expenses) = Rs.6,000/- plus Rs.3,000/- (50% towards future loss of income) = Rs.9,000/- (income) x 12 (months) x 15 (multiplier) = Rs.16,20,000/-. Therefore, the loss of dependency is enhanced from Rs.7,56,000/- to Rs.16,20,000/-.
10. Admittedly, in the present case three children, namely, Shradha, aged five years, Gayatri, aged eight years, and Dhanashree, aged ten years, have suddenly lost the support and protection of their father. Similarly, the aged parents, Gangaram and Mallavva, have suddenly lost the financial, emotional, and physical support of their earning son. Despite the fact that five persons have suffered a colossal loss of a person who would have supported them in various ways, as being son and father in the family, the appellant Nos.2 to 6 have been granted a compensation of merely Rs.1,00,000/- for "the loss of love and affection".
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11. In the case of Kala Devi and others V. Bhagwan Das Chauhan and Others (2014 ACJ 2875), the Hon'ble Supreme Court was of the opinion that the loss of love and affection for the child can be compensated by a compensation of Rs.1,00,000/- for each child. Therefore, the compensation for appellant Nos.2, 3 and 4, for the category of "loss of love and affection", is enhanced to Rs.1,00,000/- for each child. Similarly, for the aged parents who have lost an earning son, the compensation payable under the category of "loss of love and affection" is enhanced to Rs.50,000/- each.
For the reasons stated above, the award dated 26.04.2016 is modified as under:
Sl. Particulars Amount (Rs.)
No.
1. Loss of dependency 16,20,000.00
2. Loss of consortium 1,00,000.00
3. Loss of love and affection
Rs.1,00,000/- x 3 3,00,000.00
Rs. 50,000/- x 2 1,00,000.00
4. Loss of estate 50,000.00
5. Funeral expenses & 25,000.00
transportation of dead body
Total 21,95,000.00
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The Insurance Company is directed to deposit the enhanced amount, along with interest at the rate of 9% p.a., from the date of filing of the petition till the date of realisation.
The learned Tribunal is directed to ensure that the amount granted to the minor children, appellants Nos.2, 3 and 4, is kept in a fixed deposit with the Nationalized Bank to be renewed on a yearly basis till they reach the age of majority.
Sd/-
JUDGE Sd/-
JUDGE bvv