Allowed

Kavita W/O Nanappa @ Dyanesh Kamble v. the Manager Iffco-Tokio General Insurance Co.Ltd.

Karnataka HC12 Aug 2020MFA/22336/2012

Case brief

AI extract

What is this about?

Special Judge allowed the appeal against the Claims Tribunal's compensation award in a motor accident case, enhancing the amount to Rs. 13,68,100/- by correcting the income calculation and applying appropriate multipliers and consequential heads of damages.

What did the court decide?

Appeal allowed; compensation enhanced to Rs. 13,68,100/- including loss of dependency, consortium, and funeral expenses with 6% interest.

Kavita W/O Nanappa @ Dyanesh Kamble Vs the Manager Iffco-Tokio… — Insurance | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 12^{T H} DAY OF AUGUST 2020

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BEFORE

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THE HON’BLE MR. JUSTICE M. NAGAPRASANNA

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M.F.A. NO.22336/2012 (MV)

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BETWEEN

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SMT.KAVITA W/O NANAPPA @ DYANESH KAMBLE, AGE : 24 YEARS, OCC: HOUSEHOLD WORK, R/O CHINCHALI, TQ: RAIBAG, DIST; BELGAUM.

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KUMAR SHRISHAIL S/O NANAPPA @ DYANESH KAMBLE, AGE : 5 YEARS, OCC: NIL, R/O DO.

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KUMARI AISHWARYA

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D/O NANAPPA @ DYANESH KAMBLE, AGE : 3 YEARS, OCC: NIL, R/O DO.

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SMT.YAMANNAWWA

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W/O JNYADEV KAMBLE, AGE : 57 YEARS, OCC: HOUSEHOLD, R/O DO.

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THE APPELLANT NOS.2 AND 3 ARE MINOR REPRESENTED

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BY APPELLANT NO.1 NATURAL GUARDIAN MOTHER.

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... APPELLANTS

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(BY SRI VITTHAL S.TELI, ADVOCATE,)

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AND :

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THE MANAGER, IFFCO-TOKIO GENERAL INSURANCE CO.LTD., CUSTOMER SERVICE CENTER, KSCMF BUILDING, 3^RD FLOOR, 3^RD BLOCK, #8, CUNNINGHAM ROAD, BANGALORE-560052.

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THE MANAGER, IFFCO-TOKIO GENERAL INSURANCE CO.LTD., SHIKSHAKAR BHAVAN, COLLEGE ROAD, OPP: SANMAN PETROL PUMP, BELGAUM. ... RESPONDENTS

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(BY SRI NAGARAJ C.KOLLURI, ADVOCATE.)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED 08.03.2012 PASSED IN MVC NO.2667/2010 ON THE FILE OF THE FAST TRACK COURT-IV PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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: JUDGMENT :

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This appeal, though listed for admission, is taken up for final disposal with the consent of the learned counsel appearing for the parties.

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This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short) has been filed by the claimants being aggrieved by the judgment dated 08.03.2012 passed by the Fast Track Court-IV, in M.V.C. No.2667/2010.

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Parties will be referred to as per their ranking before the Claims Tribunal.

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Facts giving rise to the filing of the appeal briefly stated are that, on 05.11.2010 at about 11.30 p.m., the deceased Nanappa @ Dyanesh was driving the Swift Car bearing registration No.KA.23/M-7462. When he reached NH.4 within the limits of Venkatapur village, the driver of the Tractor and Trailer bearing

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registration No.KA.25/TA-0263 and KA.25/TA0264 came from opposite direction from Dharwad

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side driving it in a rash and negligent manner dashed into the Swift Car and caused the accident. Due to heavy impact of the accident, the deceased sustained injuries and succumbed to the same on his way to the Government Hospital, Dharwad.

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On the loss of breadwinner of the family,

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the claimants filed a petition before the Tribunal under Section 166 of the Act on the ground that the deceased was aged about 28 years at the time of accident and was employed as a driver and was earning about Rs.6,000/- per month. The claimants claimed a compensation to the tune of Rs.15,00,000/- along with interest.

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On service of notice, respondents appeared and filed their statement of objections. Respondent-Insurance Company filed its objections. The insurance policy was admitted by

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the respondent-Insurance Company but denied the age, income and occupation of the deceased. It was further contended that the compensation claimed by the claimants was excessive and exorbitant. It was further contended that the accident was occurred due to rash and negligent driving of the deceased and not due to rash and negligent driving of the Tractor and Trailer and deceased was alone responsible for the alleged accident.

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On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence.

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The claimants, in order to prove their case, examined one witness. Wife of the deceased examined herself as P.W.1 and got exhibited 10 documents namely Exs.P1 to Ex.P.10. On behalf of the respondent-Insurance Company no witnesses were examined but marked two documents namely driving licence of

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the deceased and insurance policy as Exs.R.1 and

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R.2.

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The Claims Tribunal, by the impugned

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judgment, inter alia, held that the accident took place on account of rash and negligent driving of the driver of the Tractor and Trailer, as a result of which, the deceased sustained and succumbed to the grievous injuries. The Tribunal further held that the claimants are entitled to a compensation of Rs.6,52,000/along with interest at the rate of 9% per annum to be paid jointly and severally by the respondents. Being aggrieved by the quantum of compensation awarded by the Tribunal, the claimants have preferred instant miscellaneous first appeal claiming enhancement of compensation.

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I have heard Sri Vitthal S.Teli, learned counsel for appellants and Sri M.K.Soudhagar, learned counsel for respondents-Insurance Company through video conference.

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Learned counsel for the appellants

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would contend that the tribunal grossly erred in taking monthly income of the deceased at Rs.4,000/- per month as against the claim of Rs.6,000/- by the claimants. He would further contend that the Tribunal has not awarded any amount on other conventional heads and loss of future prospects under the head of loss of dependency.

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On the other hand, learned counsel for the respondent-Insurance Company would submit that the judgment passed by the Claims Tribunal is just and proper and does not call for any interference. He would further contend that even if the claimants are entitled to any enhancement taking a higher monthly income, it should be at Rs.4,400/- as per Ex.P.7 or Rs.5,100/- as per Ex.P.8. It cannot be Rs.6,000/- as claimed by the claimants.

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I have considered the submissions

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made by the learned counsel for the parties and perused the record. The only issue that falls for my consideration is with regard to the quantum of compensation awarded by the Tribunal.

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Admittedly, the claimants have not examined any witness to prove the document namely Ex.P.7 which is salary certificate issued by one Sri Sai Security Service in which the deceased was employed as an Ambulance driver and Ex.P.8 is appointment letter which shows the salary of the deceased at Rs.5,100/- there is no witness examined even to prove this documents. Thus, the production of these documents would not be the conclusive proof of salary of the deceased, therefore, the notional income has to be fixed as per the guidelines issued by the Karnataka High Court Legal Services Committee. Since the accident has taken place in the year 2010, the notional income as per the Chart would

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be Rs.5,500/- per month. To the aforesaid amount, 40% has to be added on account of future prospects in view of the law laid down by the Constitution Bench of the Hon’ble Supreme Court in National Insurance Company Limited vs. Pranay Sethi And Others AIR 2017 SC 5157 . Thus, the monthly income of the deceased would come to Rs.7,700/-. Out of which, I deem it appropriate to deduct 1/4^th towards personal expenses and therefore, the monthly dependency comes to Rs.5,775/-. Taking into account the age of the deceased which was 29 years at the time of accident, multiplier of “17” has to be adopted. Thus, the claimants are entitled to Rs.11,78,100/(Rs.5,775/X 12 X 17) on

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account of loss of dependency. In view of the law laid down by the Hon’ble Supreme Court in

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Magma General Insurance Co. Ltd. Vs. Nanu Ram 2018 ACJ 2782, which is again reiterated and followed by the Three Judges Bench of the Hon’ble Supreme Court in the case of United

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India Insurance Co. Ltd., Vs. Satinder Kaur

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and others reported in 2020 SCC Online SC 410, the claimants are entitled to Rs.40,000/each towards loss of spousal consortium and loss of parental consortium respectively. Thus, the total amount of compensation under this head is assessed at Rs.1,60,000/-. In addition, the claimants are entitled to Rs.30,000/- on account of loss of estate and funeral expenses. Hence, the claimants are entitled to total compensation of Rs.13,68,100/-. Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 6% p.a. from the date of petition till payment is made. To the aforesaid extent, the judgment of the Claims Tribunal is modified rest of the order of the Tribunal is sustained.

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Accordingly, the appeal is disposed of.

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Sd/JUDGE

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EM/-

Kavita W/O Nanappa @ Dyanesh Kamble v. the Manager Iffco-Tokio General Insurance Co.Ltd.

Case brief

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Kavita W/O Nanappa @ Dyanesh Kamble v. the Manager Iffco-Tokio General Insurance Co.Ltd.

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