Partly allowed

Smt Kasturi W/O Tamanna Parshi v. Shivalingappa S/O Mallappa Ganiger

Karnataka HC2 Nov 2023MFA/100338/2021

Case brief

AI extract

What is this about?

The High Court allowed this motor vehicle accident appeal partly. It enhanced the compensation by finding the Tribunal erred in assessing the deceased's income at Rs. 4,000/month and deducting 50% for personal expenses. The Court reassessed income at Rs. 10,000/month, ordered a 1/3rd personal expense deduction, and modified the total compensation to Rs. 9,82,000.

What did the court decide?

The judgment and award of the Tribunal are modified to grant total compensation of Rs. 9,82,000 with interest at 6% per annum.

Smt Kasturi W/O Tamanna Parshi Vs Shivalingappa S/O… — Motor Accident Claims | Karnataka HC (2023)

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1 - NC: 2023:KHC-D:12766-DB MFA No. 100338 of 2021

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 2^ND DAY OF NOVEMBER, 2023 PRESENT

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THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV

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AND

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THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL MISCELLANEOUS FIRST APPEAL NO. 100338 OF 2021 (MV-D)

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BETWEEN:

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SMT. KASTURI W/O. TAMANNA PARSHI, AGE. 55 YEARS, OCC. HOUSEHOLD WORK, R/O. MUDALGI, TQ. GOKAK, DIST. BELAGAVI-591312.

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VIJAYA W/O. VIJAKUMAR AJUR, AGE. 31 YEARS, OCC. HOUSEHOLD WORK, R/O. GANGBADI ROAD, BEHIND HANUMAN TEMPLE, VIJAYAPURA, DIST. VIJAYAPURA-586101.

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JAYASHREE W/O. ANAND PATIL, AGE. 29 YEARS, OCC. HOUSEHOLD WORK, R/O. SHREE NAGAR, BELAGAVI-590010.

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SANTOSH S/O. TAMANNA PARSHI, AGE. 28 YEARS, OCC. AGRICULTURE, R/O. MUDALAGI-591312, TQ. GOKAK, DIST. BELAGAVI.

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…APPELLANTS

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Digitally
signed by
SAROJA
SAROJA HANGARAKI
HANGARAKI Date:
2023.11.04
11:01:57
+0530

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(BY SRI. HARISH S. MAIGUR, ADVOCATE)

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AND:

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SHRI. SHIVALINGAPPA S/O. MALLAPPA GANIGER, AGE. 58 YEARS, OCC. BUSINESS, R/O. NAGANUR-591307, TQ. GOKAK, DIST. BELAGAVI.

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THE DIVISIONAL MANAGER, BAJAJ ALIANZ GENERAL INSURANCE COMPANY LTD., GE PLAZA, AIRPORT ROAD, YERWADA, PUNE-411006 R/BY ITS BRANCH MANAGER, MADIWALE ARCADE, CLUB ROAD, BELAGAVI-590001.

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…RESPONDENTS

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(BY SRI. DINESH M. KULKARNI, ADV. FOR R1

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SRI. MADHUKESHWAR A. DESHPANDE, ADV. FOR R2)

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2 - NC: 2023:KHC-D:12766-DB MFA No. 100338 of 2021

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THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED 30.09.2019 PASSED IN MVC NO.1290/2017 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, VIJAYKUMAR A.PATIL J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Though this appeal is listed for admission, with the consent of learned counsel for the parties, it is taken up for final disposal.

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This appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988 by the appellants/claimants seeking enhancement of compensation awarded under judgment and award dated 30.09.2019 passed in MVC No.1290/2017 on the file of learned III Addl. Senior Civil Judge and Addl. MACT, Belagavi (for short, ‘Tribunal’).

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Brief facts raising to filing of this appeal are that on 8.5.2016 in the early morning, when the deceased Tamanna Parshi along with his friends was proceeding in Maruti Swift Car bearing registration No.KA-27-M-3941 from Kukkesubramanya to Mudalagi, when they reached near

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Government School Katabali on NH-4, the driver of the said car drove the same with high speed in a rash and negligent manner and dashed to the road side tree and caused accident. As a result of which, the deceased Tamanna sustained grievous injuries to his head, chest, face and other multiple injuries all over the body and immediately he was shifted to KLE’s Hospital, Belagavi for treatment, but he succumbed to the injuries on the same day. It is averred that the deceased was aged 59 years at the time of the accident. It is further averred that, prior to the accident, he was hale and healthy and was an agriculturist and also doing business of sugarcane, vegetables and other crops, earning a sum of Rs.25,00,000/- per annum. The claimants are the wife and major children.

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The respondent No.1/owner of the car filed written statement denying the entire averments made in the claim petition. Respondent No.2/Insurance Company also filed written statement contending that the averments made in the claim petition are all false and baseless, it has denied the occupation and income of the deceased. It was averred

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that the driver of the car was not having valid and effective driving license as on the date of accident and due to negligent driving of the driver of the car, the alleged accident took place. Therefore, prayed for dismissal of the claim petition.

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The Tribunal has recorded the evidence of the parties. The claimant No.1-wife of the deceased Tamanna examined herself as P.W.1 and got marked Ex.P.1 to Ex.P.39. The respondent No.2 examined its law officer as RW1 and got marked authorization letter and Insurance Policy as Ex.R1 and R2 respectively. The Tribunal on appreciation of the entire material on record, awarded a total compensation of Rs.4,33,600/- with 9% interest per annum from the date of petition till the date of realization. Aggrieved by the same, the claimants are before this Court seeking enhancement of compensation.

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Learned counsel Sri. Harish S Maigur, appearing for the appellants-claimants submits that the Tribunal has committed an error in assessing notional income of the deceased at Rs.4,000/- per month, inasmuch as the

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deceased was an agriculturist and doing business, earning a sum of Rs.25,00,000/- per annum. It is submitted that the Tribunal has committed an error in deducting 50% of the assessed income towards personal expenses of the deceased, since the deceased was a married person, it ought to have deducted 1/3^rd towards personal expenses as held by the Hon’ble Apex Court in the case of Sarla Verma & Others Vs. Delhi Transport Corporation & Another¹ and National Insurance Company Limited Vs. Pranay Sethi & Others² . He further submits that the award of compensation by the Tribunal on other heads are also on lower side, he seeks to allow the appeal by enhancing the compensation.

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Per contra, Sri.Madhukeshwar Deshpande, learned counsel for the respondent No.2-Insurance Company vehemently contends that the Tribunal has rightly assessed notional income of the deceased at Rs.4,000/- per month, since the claimants have failed to establish the actual income of the deceased. He further submits that rate of interest

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1 2009 ACJ 1298

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2 2017 (16) SCC 680

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awarded by the Tribunal on the compensation amount at 9% per annum is on the higher side and it has to be reduced to 6% per annum. It is further submitted that the Tribunal has awarded just and reasonable compensation on various heads, which do not warrant interference at the hands of this Court. Hence, he seeks to dismiss the appeal.

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We have heard the learned counsel for the appellants as well as learned counsel for the respondent No.2 and perused the appeal papers along with original records.

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Having heard the learned counsel for the parties

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and on perusal of the material available on record, the following points would arise for our consideration in the present appeal:

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1. Whether the Tribunal is justified in assessing the income of the deceased at Rs.4,000/- per month?

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1. Whether the appellants/claimants would be entitled for enhanced compensation?

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Answer to the above points would be in the negative & affirmative respectively for the following reasons:

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(a) The parties to the proceedings do not dispute the accident and the liability of the Insurance Company. The appellants have placed reliance on Ex.P20 and 22-Bills and Receipts for having supplied food products to the APMC. It is also not in dispute that the deceased was doing agricultural activities, having business and was in the public life. The pleadings and evidence on record clearly demonstrate that the deceased has contested the election for MLA post on two occasions and various organizations have conferred many awards. The evidence on record demonstrates that the deceased met with an accident and succumbed to the same at the age of 59 years and he was in public life for more than 35 years. It is also not in dispute that the deceased was an agriculturist having an irrigated land to an extent of 13 acres. However, the Tribunal without considering the evidence on record and standing of the deceased in public life has notionally assessed the income of the deceased at Rs.4,000/- per month, which in our view is on the lower side. Taking into account the RTC at Ex.P8 to P19, the oral testimony of the claimants and also Ex.P22, P23, P8 to P19

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and other evidence on record, which demonstrates that the deceased was in public life, he was also chairman of various institutions and was getting substantial income from agriculture and business, this Court is of the considered view that, it would be appropriate to assess notional income of the deceased at Rs.10,000/- per month, which would meet the ends of justice. This Court is conscious of the fact that assessing notional income should be based on the evidence available on record and this Court has also taken note the services rendered by the deceased in public life, extent of land held by the deceased, average income of the irrigated land and also his contribution to the Society to certain extent. Taking note of all the aforesaid aspects, this Court is assessing the income of the deceased at Rs.10,000/- per month.

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(b) The Tribunal has committed an error in deducting 50% of the assessed income towards personal expenses of the deceased. Keeping in mind the ratio laid down by the Hon’ble Apex Court in Sarla Verma and Pranay Sethi referred to supra, the deceased was a married person,

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appellant No.1 is his wife, appellant No.2 and 3 are the married daughters and appellant No.4 is the major son. Hence, appellants No.2 to 4 are not dependents on the deceased. This Court is of the considered view that deduction of 50% of the assessed income towards personal expenses of the deceased is contrary to the law laid down by the Hon’ble Apex Court referred to supra. Hence, it would be just and appropriate to deduct 1/3^rd of the assessed income towards personal expenses of the deceased.

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(c) Since the Tribunal has awarded a sum of Rs.15,000/- towards transportation of dead body and funeral expenses, again the claimants would not be entitled for compensation of Rs.3,000/- towards transportation and Rs.3,000/- towards conveyance. Insofar as compensation awarded by the Tribunal on the other heads is concerned, the same is just and proper and is unaltered.

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d) Thus, the appellants/claimants are entitled for compensation under the head loss of dependency as under:

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Rs.10,000 + 10% x 12 X 9 - 1/3 = Rs.7,92,000/-

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(e) The appellants are entitled for the following

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modified compensation with interest at the rate of 6%:

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1	Loss of dependency	Rs.7,92,000/-
2	Loss of consortium (Rs.40,000/- each to appellants No.1 to 4)	Rs.1,60,000/-
3	Transportation of dead body and Funeral expenses	Rs.15,000/-
4	Loss of estate	Rs.15,000/-
	Total	Rs.9,82,000/-
	Compensation awarded by the tribunal	Rs.4,33,600/-
	Enhanced compensation	Rs.5,48,400/-

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Thus, the claimants would be entitled to total compensation of Rs.9,82,000/- as against Rs.4,33,600/awarded by the Tribunal.

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Hence, we proceed to pass the following order:

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ORDER

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i. The appeal is allowed in part.

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ii. The judgment and award dated 30.09.2019 passed in MVC No.1290/2017 by the Tribunal, is modified to an extent that the claimants would be entitled to total compensation of Rs.9,82,000/- as against Rs.4,33,600/- awarded by the Tribunal.

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iii. The enhanced compensation amount of Rs.5,48,400/- shall carry interest at the

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rate of 6% per annum from the date of petition till date of payment.

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iv. Respondent/Insurance Company shall deposit the enhanced compensation amount along with accrued interest before the Tribunal within a period of six weeks from the date of receipt of certified copy of this judgment.

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