Partly allowed

Smt.Dasari Madhavi v. Sayed Basha S/O Mohammed Yusuff

Karnataka HC10 Apr 2019MFA/101837/2018

Case brief

AI extract

What is this about?

The High Court allowed the petitioner's appeal for enhanced compensation in a motor accident claim while dismissing the insurance company's appeal. The Court recalculated dependency loss and clarified the apportionment of funds between the widow and minor children.

What did the court decide?

Allowed the claimants' appeal to enhance compensation to Rs. 37,63,430; dismissed the insurance appeal. Directed apportionment of shares to be deposited in fixed deposits.

Smt.Dasari Madhavi Vs Sayed Basha S/O Mohammed Yusuff — Insurance | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 10^TH DAY OF APRIL 2019

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PRESENT

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THE HON’BLE MR. JUSTICE G. NARENDAR

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AND

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THE HON’BLE MR. JUSTICE BELLUNKE A.S.

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MFA NO.101837/2018 C/W MFA NO.102038/2018 (MV)

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IN MFA NO.101837/2018 (MV)

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BETWEEN :

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SMT.DASARI MADHAVI W/O LATE D. ESHWARAPPA AGED ABOUT 32 YEARS, OCC:HOUSE WIFE R/O GUDEKOTE VILLAGE, TQ & DIST:BALLARI

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DASARI LAKSHMIDURGA D/O LATE D. ESHWARAPPA AGED ABOUT 13 YEARS, OCC: STUDENT, R/O GUDEKOTE VILLAGE, TQ & DIST:BALLARI

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DASARI SAMPATH KUMAR S/O. LATE D. ESHWARAPPA AGED ABOUT 10 YEARS, OCC: STUDENT, R/O GUDEKOTE VILLAGE, TQ & DIST:BALLARI

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SINCE APPELLANTS NOs.2 AND 3 ARE MINORS THEY ARE REPRESENTED BY THEIR NATURAL MOTHER APPELLANT NO.1

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SMT. DASARI LAKSHMIDEVI W/O LATE DASARI NAGENDRAPPA

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AGED ABOUT 61 YEARS, OCC:HOUSE HOLD, R/O GUDEKOTE VILLAGE, TQ. & DIST: BALLARI

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... APPELLANTS

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(BY SRI.: B. S. SANGATI, ADV.)

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AND :

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SAYED BASHA S/O MOHAMMED YUSUFF, AGED ABOUT 42 YEARS, OCC: DRIVER OF THE LORRY BEARING REG. NO.AP-02/X-0358 R/O: 9TH CROSS, NEAR VEKATESHWARA TEMPLE NEAR TWO TOWN POLICE STATION, GUNTAKAL, ANANTHAPUR DISTRICT, ANDRA PRADESH STATE

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K.RAMA MOHAN S/O K. JANIKIRAMUDU AGE:MAJOR, OWNER OF THE LORRY BEARING REG.NO.AP-02/X-0358 R/O WARD NO.25, NEAR GOVERNMENT SCHOOL, KAKARLATHOTA, BALLARI.

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THE BRANCH MANAGER, RELIANCE GENERAL INSURANCE COMPANY LTD., BRANCH OFFICE PARVATHI NAGAR MAIN ROAD, BALLARI BEARING POLICY NO.1412552349000328 VALID FROM 27-8-2015 TO 26-8-2016

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... RESPONDENTS

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(BY SRI : G.N. RAICHUR, ADV. FOR R3, R1-R2 NOTICE DISPENSED WITH)

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MFA FILED U/S.173 (1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 22.03.2018 PASSED IN MVC NO.952/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE-CUM-MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL-VI, KUDLIGI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO.102038/2018 (MV)

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BETWEEN :

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THE BRANCH MANAGER RELIANCE GENERAL INSURANCE COMPANY LTD., BRANCH OFFICE, PARVATHI NAGAR, MAIN ROAD, BALLARI, BEARING POLICY NO.1412552349000328 VALID FROM 27/08/2015 TO 26/08/2016) REPRESENTED BY THE AUTHORIZED SGNATORY.

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... APPELLANT

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(BY SRI : G.N. RAICHUR, ADV.)

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AND :

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SMT. DASARI MADHAVI W/O LATE D. ESHWARAPPA AGED ABOUT: 32 YEARS, OCC: HOUSEWIFE, R/O: GUDEKOTE VILLAGE, KUDLIGI TALUK, BALLARI DISTRICT,

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MINOR DASARI LAKSHMIDURGA D/O LATE D. ESHWARAPPA, AGED ABOUT: 13 YEARS, OCC: NOT MENTIONED, R/O GUDEKOTE VILLAGE, KUDLIGI TALUK, BALLARI DISTRICT.

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MINOR, REPRESENTED BY NATURAL MOTHER AND GUARDIAN I.E., RESPONDENT NO.1.

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MINOR DASARI SAMPATH KUMAR S/O LATE D. ESHWARAPPA, AGED ABOUT: 10 YEARS, OCC: NOT MENTIONED, R/O GUDEKOTE VILLAGE, KUDLIGI TALUK, BALLARI DISTRICT. MINOR, REPRESENTED BY

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NATURAL MOTHER AND GUARDIAN I.E. RESPONDENT NO.1.

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SMT.DASARI LAKSHIMIDEVI W/O LATE D. NAGENDRAPPA, AGED ABOUT: 61 YEARS, OCC: HOUSEWIFE, R/O GUDEKOTE VILLAGE, KUDLIGI TALUK, BALLARI DISTRICT.

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SAYED BASHA S/O MOHAMMED YUSUF, AGED ABOUT: 42 YEARS, OCC: DRIVER OF LORRY BEARING REG.NO.AP-02/X-0358, R/O: 9TH CROSS, NEAR VENKATESWARA TEMPLE, NEAR TWO TOWN POLICE STATION, GUNTAKAL, ANANTHPUR, DISTRICT: A.P.

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K. RAMA MOHAN S/O K. JANIKIRAMUDU AGE: MAJOR, OCC: OWNER OF LORRY BEARING REG.NO.AP-02/X-0358, R/O: WARD NO.25, NEAR GOVERNMENT SCHOOL KAKARLATHOTA, BALLARI. ... RESPONDENTS (BY SRI. : B S SANGATI FOR R1-R4 R2-R3 ARE MINORS R/B BY R1 R5 AND R6 NOTICE DISPENSED WITH)

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MFA FILED U/S.173(1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED 22.03.2018 PASSED IN MVC NO.952/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE-CUM-MOTOR ACCIDENT CLAIMS TRIBUNAL-VI, KUDLIGI, AWARDING COMPENSATION OF RS.32,98,160/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL ITS REALISATION.

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RESERVED FOR JUDGMENT ON : 05.03.2019 JUDGMENT PRONOUNCED ON : 10.04.2019

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THESE APPEALS ARE HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, BELLUNKE A.S. J ., DELIVERED THE FOLLOWING:

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JUDGMENT

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Though these appeals are listed for Admission, nevertheless we have heard both the counsel at length and they are taken up for final disposal.

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These appeals have been preferred against the judgment and award dated 22.03.2018, passed by the Senior Civil Judge–CumMACT-VI, Kudligi, (hereinafter referred to as ‘Tribunal’ for short), in MVC No.952/2016.

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MFA No.102038/2018 has been preferred by the Reliance General Insurance Company challenging the quantum of award passed by the Tribunal and MFA No.101837/2018 has been preferred by the claimants being dissatisfied with the quantum of compensation awarded by the Tribunal.

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Brief facts leading to the case are that, on 24.06.2016 at about 05.30 P.M. one Dasari Eshwarappa @ D.Eshwarappa was proceeding towards Kudithini from Ballari on his motorcycle bearing Reg.No.A.P.35/AA-5485 slowly and cautiously on proper side of the road. The first respondent being the driver of tipper Lorry bearing Registration No.AP-02/X-0358 came from opposite direction, driven in high speed and in rash and negligent manner and dashed against the petitioner’s motorcycle on the Ballari-Hosapete NH-63, near Eranna temple at Veniveerapura Village. As a result of which the deceased sustained grievous injuries all over his body and died on the spot.

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On a complaint criminal case came to be registered by the jurisdiction Police in crime No.80/2016 against the first respondent. It is contended by the petitioners that the deceased was 35 years old. He was quite hale and healthy. He was working as Point Man in the South Western Railway at Thorangallu Railway Station. He was drawing gross salary of

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Rs.23,994/- per month. The deceased was contributing all his earnings towards maintenance of his family. Due to death of the deceased, petitioners have incurred heavy financial and emotional loss, which cannot be compensated. However, they have filed claim petition before the Tribunal claiming compensation.

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Despite service of notice respondent Nos.1 and 2 did not appear before the Court and hence, they were placed exparte. Respondent No.3 insurance company appeared through its counsel and filed written statement.

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Respondent No.3 Insurance company in its written statement has denied all the allegations made in the petition. The allegation of rash and negligent driving of the offending lorry by respondent No.1, death of the deceased as a result of sole negligence of the first respondent are denied. It is further denied about the age, income, profession of the deceased and dependency of petitioners on him. It is contended that, the

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respondent No.1 had no valid driving license as on the date of accident. By allowing him to drive the offending lorry, respondent No.2 has violated the policy conditions. It is further contended that the compensation claimed by the petitioners is excessive and exorbitant. Therefore, respondent-Insurance company prayed to dismiss the petition.

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On the basis of the above pleadings, the

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Tribunal has framed the following issues:

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1. Whether the petitioners prove that, on 24.06.2016 at about 05.30 p.m. while deceased Dasari Eshwarappa @ D.Eshwarappa S/o. Nagendrappa was proceeding in his motorcycle bearing Reg. No.A.P-35/A-5485 on BallariHosapere road, near Eranna Temple at Veni Veerapura Village, slowly and cautiously on the proper side of the road, the first respondent being driver of Lorry bearing Reg.No.A.P—02/X-0358, drove the same in high speed, rash and negligent manner and dashed to the above said motorcycle of deceased, as a

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result said Dasari Eshwarappa sustained grievous injuries all over the body succumbed to the injuries at the spot?

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2. Whether respondent No.3 proves that the respondent No.1 was not possessing valid license as on the date of accident to drive offending vehicle?

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3. Whether the petitioners are entitled for the compensation claimed ? If so, at what quantum and from whom?

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4. What Order or Award?

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In order to substantiate their claim, petitioner No.1 got examined as PW1 and got marked 9 documents as Ex.P1 to Ex.P9. Respondents No.3 got examined one witness as RW1 and got marked two documents as Ex.R1 and R2.

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After holding the trial, the Tribunal awarded compensation of Rs.32,98,160/- with future interest at the rate of 6% per annum. Being dissatisfied with the

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quantum of compensation the claimants have preferred this appeal for enhancement of the compensation on the following grounds:

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Tribunal has erred in awarding meager compensation of Rs.32,98,160/-. The Tribunal has not considered the facts and circumstances of the case and material evidence on record, when the appellant is entitled for higher compensation.

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The deceased was working as Pointman in South Western Railway and was drawing the salary at Rs.26,818/- per month at the time of accident., thus he was supporting his family by way of doing Pointman in the Railway department. All the appellants are depending upon the earning of the deceased alone. But, the Tribunal has not considered the same.

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The Tribunal has not considered properly loss of dependency.

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The Tribunal has not considered the future prospectus and awarded meager compensation.

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The Tribunal is in error in awarding only 6% interest instead of 12% p.a.

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Since, liability in question has not been disputed by the Insurance Company. Therefore, notice to owner and driver of the vehicle is dispensed with.

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The learned counsel for the appellantsclaimants contended that the deceased was aged about 35 years as on the date of accident. Therefore, the multiplier applicable would be at ‘15’. The petitioner had produced salary slip issued by the railway department. Since there were four members dependants on the deceased, out of total monthly salary, deduction of ¼ should have been taken towards personal expenses of the deceased. It is contended that the Tribunal has not awarded just compensation on the conventional head. Therefore, the claimants’ counsel

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has prayed to enhance the compensation from the quantum granted by the Tribunal.

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The learned counsel for the Insurance company submitted that the Professional tax has not been deducted before calculating loss of dependency. No other documents have been produced to show the deduction made in the salary of the deceased. Payment towards income tax is not considered. However, the learned counsel for the respondent submitted that liability of the Insurance company is not disputed.

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On the basis of the above said facts and circumstances of the case, the following points would arise for consideration :

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Whether the claimants are entitled for enhancement of compensation than the quantum awarded by the MACT ?

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Whether the respondent –Insurance company has proved that the quantum of compensation granted by the Tribunal is excessive and therefore, it is liable to be reduced ?

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What order?

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Our answer for the above findings:

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Point No.1 : In the affirmative Point No.2 : In the negative Point No.3 : As per final order

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In view of the respondent – Insurance company not disputing its liability of amount, therefore, we have to consider the question of either enhancement or reduction of the compensation awarded by the Tribunal. The facts not disputed are : That the deceased was aged about 35 years at the time of accident. As per post mortem report it shows his age as 35 years. As per the salary slip his date of birth is mentioned as 12.05.1978. Hence, as per the said document the age of deceased as on the date of accident is 38 years. The deceased was railway employee. Therefore, it proves that it is not a fixed salary. It is liable to be increased from time to time.

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The counsel for Insurance company contended that the Tribunal had not deducted payment made towards professional tax and income tax. To

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deduct the income tax the income of the employee should exceed the income tax limit prescribed by the Income Tax Act. As per salary certificate at Ex.P6, the monthly salary of the deceased shown as Rs.26,818/per month. As regards professional tax is concerned, it is deducted based on the scale of the employee, at the most it is deductable at Rs.200/- per month. Out of the total salary, if professional Tax at Rs.200/- is deducted, then it comes to Rs.26,618/-. The annual income will be Rs.26,618X12=3,19,416/-. Therefore, the annual income will not exceed the exempted limit i.e., Rs.5,00,000/- prescribed by the Income Tax Act. Hence, the deceased cannot be said to an income tax payee. The multiplier applicable to the said age group is “15”. Therefore, the amount calculated under the head of loss of dependency would be :

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Therefore, the loss of dependency would be (Rs.47,91,240-11,97,810)=35,93,430/-

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As regards loss of consortium payable to petitioner No.1 is at Rs.40,000/-, the minor children have lost their father at the young age, they are also entitled for compensation under the head of loss of love and affection at Rs.40,000/- each. The petitioner No.4the mother of the deceased is entitled the compensation under the head of parental consortium at Rs.20,000/-. Towards loss of estate the petitioners are entitled for compensation of Rs.15,000/-. Towards transportation, funeral and obsequies expenses the petitioners are entitled for Rs.15,000/-. The petitioners are entitled the

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just compensation as under :

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1	Towards loss of dependency		35,93,430/-
2	Towards loss of consortium petitioner No.1	to	40,000/-
3	Towards loss of consortium petitioner Nos.2 and 3 (40000x2)	to	80,000/-
4	Towards loss of consortium petitioner No.4	to	20,000/-
5	Towardsloss ofestate		15,000/-
6	Towards transportation, funeral obsequies expenses	and	15,000/-
	TO	TAL	37,63,430/-

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The Tribunal has awarded the future interest @ 6% per annum, we find no reasons to enhance the same. The Tribunal has apportioned the compensation payable to the petitioners No.1 to 4 equally. Having regard to the fact that petitioner No.1 is the widow and petitioner Nos.2 and 3 are the minor children, that needs modification.

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The first three petitioners are entitled 80% of the compensation awarded and the remaining 20% shall be paid to the mother of the deceased. Petitioners Nos.2 and 3 are minors and they are shortly may attain majority. Therefore, out of compensation awarded, 80% amount apportioned between petitioner Nos.1 to 3. The share of petitioner Nos.2 and 3 shall be kept in fixed deposit in any nationalized bank for a period of 5 years or till they attain majority, whichever is later. Out of the share payable to petitioner No.1, 80% shall be deposited in the fixed deposit for a period of 8 years and the remaining 20% shall be released in favour of her.

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Petitioner shall withdraw accrued interest of fixed deposit of herself and her children

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As regards, share in respect of petitioner No.4, the mother of the deceased is concerned, 50% share amount shall be deposited in fixed deposit and remaining 50% amount shall be released in her favour. Petitioner No.4 shall also withdraw accrued interest on fixed deposit.

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The ground taken by the Insurance company in the appeal memo are not at all substantiated. We find no reasons to arrive at the finding arrived by the learned MACT.

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On the other hand quantum of compensation payable to the petitioners has been reassessed by us having regard to the material available on record. Hence, MFA No.101837/2018 preferred by the claimants is allowed in part by modifying the judgment and award passed by the Tribunal. MFA

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No.102038/2018 preferred by the Insurance company deserves to be dismissed .

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The claimants are entitled for total compensation of Rs.37,63,430/- after deducting the compensation awarded by the Tribunal at Rs.32,98,160/-, the claimants are entitled the enhanced compensation at Rs.4,65,270/- as against the quantum determined by the MACT. The compensation is payable with interest @ 6% p.a. from the date of petition till realization.

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Amount in deposit, if any, shall be transmitted to the Tribunal forthwith.

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Sd/JUDGE

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Sd/JUDGE

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MNS/

Smt.Dasari Madhavi v. Sayed Basha S/O Mohammed Yusuff

Case brief

What is this about?

What did the court decide?

Smt.Dasari Madhavi v. Sayed Basha S/O Mohammed Yusuff

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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