Partly allowed

Yallappa S/O Srirang Padwale and Ors. v. Smt Jatinder Kaur W/O Premjeet Singh and Anr.

Karnataka HC14 Jun 2017MFA/32618/2013

Case brief

AI extract

What is this about?

In this motor accident claim appeal, the High Court of Karnataka allowed the appeal partly. The court found the Tribunal's assessment of notional income and compensation heads inadequate and enhanced the total compensation to Rs. 16,19,000/- with interest.

What did the court decide?

The insurance company directed to deposit enhanced compensation of Rs.16,19,000/- with 6% interest within six weeks; additional compensation of Rs.7,72,600/- granted.

Yallappa S/O Srirang Padwale and Ors. Vs Smt… — Motor Accident Claims | Karnataka HC (2017)

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IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH

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DATED THIS THE 14^TH DAY OF JUNE, 2017

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PRESENT

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THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA

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AND

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THE HON’BLE MR. JUSTICE B.A.PATIL

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M.F.A.NO.32618/2013 (MV)

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BETWEEN:

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Yallappa S/o Srirang Padwale Age: 72 years, Occ: Nil

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Shivantabai W/o Yallappa Padwale Age: 69 years, Occ: Nil

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Shobha W/o Nandakumar Padwale Age: 44 years, Occ: Household work

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Swapnali D/o Nandakumar Padwale Age: 22 years, Occ: Student

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Snehal Nandakumar Padwale Age: 20 years, M/g by petitioner No.3

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Shradha D/o Nandakumar Padwale Age: 18 years, M/g by petitioner No.3

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Kiran S/o Nandakumar Padwale Age: 16 years, M/g by petitioner No.3

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All are R/o Adarsh Nagar Bijapur

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…APPELLANTS

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(By Sri Sanganagouda V. Biradar, Advocate)

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AND:

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Smt. Jatinder Kaur W/o Premjeet Singh Age: 49 years, Occ: Business A/p.267, Shastri Nagar Delhi

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The Branch Manager United India Insurance Co. Ltd., Bijapur

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…RESPONDENTS

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(By Smt. Anuradha M. Desai, Advocate for R2; Notice to R1 is dispensed with v/o dtd.04.04.2017)

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This Miscellaneous First Appeal is filed under Section 173 (1) of MV Act, praying to allow the appeal and modify the Judgment and award dated: 17.07.2013 passed in MVC No.1946/2009 by the MACT No.V at Bijapur.

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This appeal coming on for admission this day, B.A.Patil J., delivered the following:

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J U D G M E N T

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Though the appeal is listed for admission, with the

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consent of learned counsel on both sides, it is heard finally.

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This appeal is preferred by the claimants seeking enhancement of compensation by assailing judgment and award passed in MVC No.1946/2009 dated 17.07.2013, by the Motor Accident Claims Tribunal No.V at Bijapur (hereinafter referred to as the ‘Tribunal’ for the sake of brevity).

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For the sake of convenience, the parties shall

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be referred to, in terms of their status before the Tribunal.

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The appellant-claimants filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the death of Nandakumar, son of claimant Nos.1 & 2, husband of claimant No.3 and father of claimant Nos.4 to 7. According to the claimants, on 10.12.2006, Nandakumar was proceeding on a motorcycle bearing chassis No.ME4JC363L68036367 towards Mangalweda from Pandharpur. When he was so proceeding and came near Siddiwadi village at about 3:30 p.m., a truck bearing Reg.No.HR-55/B-2251 came from the opposite direction in a rash and negligent manner, with

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great speed and dashed to the motorcycle, on which Nandakumar was proceeding. As a result, Nandakumar sustained serious injuries, immediately he was taken to Dr.I.C.Patil’s Hospital Pandharapur, then he was shifted to Ashwini Hospital, Solapur but he died while he was under treatment because of the accidental injuries. The claimant- appellants filed the claim petition, contending that they had lost the bread earner of the family, seeking compensation on various heads.

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On service of notice, respondent No.1 did not appear and he was placed ex parte. Respondent No.2 appeared on behalf of the insurance company and filed the written statement by denying the averments made in the claim petition. He further contended that the driver of the truck was not negligent but the rider of the motorcycle, deceased Nandakumar was negligent. It is further contended that the driver of the truck as well as deceased were not holding valid and effective driving licence. On these grounds, he prayed for dismissal of the petition.

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On the basis of the pleadings of the parties,

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the Tribunal framed the following issues for its

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consideration:

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Whether the petitioners prove that, Nandakumar S/o Yallappa Padwale died in the Motor Vehicle Accident that occurred on 10.12.2006 at about 3:30 p.m., near Siddewadi village, on MangalwedaPandharpur road within the limits of Pandharpur Police Station on account of rash and negligent driving of the Truck bearing Reg.No.HR-55/B-2251 by its driver, as alleged?

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Whether the petitioners are entitled for the compensation? If so, what is the quantum and from whom?

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What order or award?

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In support of their case, claimant No.3, the wife of the deceased let in her evidence as PW.1, she produced fifteen documents, which were marked as Exs.P1 to P15 and also got examined a witness as PW.2, who is an

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eyewitness to the accident. Respondent – Insurance Company did not examine any witnesses on their behalf. On the basis of the said evidence, the Tribunal answered issue No.1 in the affirmative and issue No.2 partly in the affirmative. The Tribunal awarded compensation of Rs.8,46,400/- with interest at the rate of 6% per annum from the date of claim petition till deposit of the amount. Being aggrieved by the meager compensation awarded by the Tribunal, the claimants have preferred this appeal.

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We have heard learned counsel for the appellants and learned counsel for the respondent – insurance company. Notice to respondent No.1 is dispensed with vide order dated 04.04.2017 and we have perused the material on record.

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Appellants’ counsel contended that the award of compensation on all heads is on the meager side. He submitted that the deceased was aged 42 years and he was the owner of a hotel (bar and restaurant) and deceased used to look after the entire establishment of

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hotel business though they are standing in the name of his father, Yallappa claimant-appellant No.1. It is further submitted that he was also looking after agriculture work and was also owning twenty she-buffaloes and used to vend milk and was earning monthly Rs.50,000/-. But Tribunal after considering the fact that the licence of the hotel stands in the name of claimant – appellant No.1 so also the agricultural land, but by taking into consideration Ex.P10-certificate issued by the Milk Society in the name of deceased, it assessed the notional income at Rs.6,000/per month and after deducting one fifth towards personal expenses, the Tribunal assessed the loss of income at Rs.4,800/- per month, which is on the lower side. He further contended that the compensation awarded under other conventional heads is also on the lower side. Therefore, the appeal calls for interference at the hands of this court as claimants are entitled to enhanced compensation.

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Per contra, learned counsel for the insurance company supported the judgment and award of the

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Tribunal and contended that the award of compensation is just and reasonable and the claimants are not entitled to any enhanced compensation. She would also contend that the compensation and the income assessed by the Tribunal is on higher side, by taking into consideration the year of accident. She would also contend that having regard to the date of accident even in Lok-Adalath settlements the notional income is taken as Rs.3,750/-. In that light, the income taken by the Tribunal is on the higher side and as such there is no reason to enhance the compensation.

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Having heard learned counsel for the parties and on perusal of the material on record, the only point, which arises for our consideration is, as to whether, the appellants are entitled to an additional compensation.

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The fact that Nandakumar succumbed to the fatal injuries in an accident that occurred on 10.12.2006 at about 3:30 p.m. has been established. The only grievance of the appellant-claimants is with regard to quantum of compensation awarded on loss of dependency and

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conventional heads. Before considering as to whether the appellants are entitled to any enhanced compensation, it would be useful to extract the award of compensation made by the Tribunal on various heads as under:

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1	Towards loss of dependency	Rs.	8,06,400/-
2	Towards loss of consortium	Rs.	10,000/-
3	Towards loss of love and affection	Rs.	10,000/-
4	Towards loss of estate	Rs.	10,000/-
5	Towards transportation chares and funeral expenses	Rs.	10,000/-
	Total	Rs.	8,46,400/-

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The aforesaid compensation carries interest at the rate of 6% per annum from the date of petition till deposit of the amount.

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Appellants’ counsel has contended that assessment of notional income of the deceased is on the lower side. Deceased was supervising the entire hotel business, agricultural operations and was also having twenty she-buffaloes and was vending milk, but Tribunal has taken notional income at Rs.6,000/- per month, which is on the lower side. We find considerable force in the

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submission of learned counsel for the appellants, on this aspect of the matter. Of course, there is no categorical evidence with regard to actual income earned by the deceased, but Exs.P11 to 13 and 14 show that the father of the deceased is an income tax assessee and had filed income tax returns with regard to hotel business. The records also show that the deceased used to vend milk to the Milk Society and earned some income. When claimant Nos.1 and 2 are aged about 68 and 65 years respectively, they may not be in a position to manage the hotel establishment. Under such circumstances, it was the deceased, who used to manage the hotel business comprising of bar and restaurant. Having regard to the said facts established, we are of the considered opinion that the deceased could have earned at least Rs.10,000/per month. Keeping in mind the fact that there are seven claimants, one fifth of the said amount has to be deducted towards personal expenses of the deceased. Since the deceased was 42 years of age, the appropriate multiplier ‘14’ has to be applied and consequently, the award of

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compensation on the head ‘loss of dependency’, would be Rs.13,44,000/-, (Rs.10,000/- - 1/5^th = 8,000/- x 12 x 14). On going through the award of the Tribunal, the compensation awarded on conventional head also appears

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to be on the lower side. The same requires to be enhanced. Consequently, reassessed compensation is as under:

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1	Towards loss of dependency	Rs.	13,44,000/-
2	Towards loss of consortium	Rs.	1,00,000/-
3	Towards loss of love and affection	Rs.	1,00,000/-
4	Towards loss of estate	Rs.	50,000/-
5	Towards funeral expenses	Rs.	25,000/-
	Total	Rs.	16,19,000/-

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Thus, the total compensation is Rs.16,19,000/-

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which would carry interest at the rate of 6% per annum from the date of the claim petition till realisation.

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Since the Tribunal has already awarded Rs.8,46,400/-, after deducting the same, the claimantappellants are entitled to an additional compensation of Rs.7,72,600/-. As already noted the enhanced

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compensation shall carry interest at the rate of 6% per annum from the date of claim petition till realization. The enhanced compensation shall be apportioned in the same manner as has been done by the Tribunal. The directions with regard to deposit shall also apply to enhanced compensation.

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The appeal is allowed-in-part in aforesaid terms.

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No costs.

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The insurance company is directed to deposit the enhanced compensation within a period of six weeks from the date or receipt of a certified copy of this judgment.

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Sd/JUDGE

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Sd/JUDGE

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sdu

Yallappa S/O Srirang Padwale and Ors. v. Smt Jatinder Kaur W/O Premjeet Singh and Anr.

Case brief

What is this about?

What did the court decide?

Yallappa S/O Srirang Padwale and Ors. v. Smt Jatinder Kaur W/O Premjeet Singh and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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