Partly allowed

Anita W/O Ashok Dige, v. Vithal S/O Malhari Gaiwad

Karnataka HC24 Mar 2023MFA/101624/2020

Case brief

AI extract

What is this about?

,This was an appeal against the Motor Accident Claims Tribunal award in a fatal road traffic accident case. The High Court enhanced compensation from Rs.11,06,000 to Rs.17,21,264 by adewing future prospects at 10% and applying a multiplier of 13 for a deceased aged 50 years 7 months. Interest on the enhanced amount was also granted.

What did the court decide?

Compensation enhanced to Rs.17,21,264; additional Rs.6,15,000 with 6% p.a. interest from date of petition.

Anita W/O Ashok Dige, Vs Vithal S/O Malhari Gaiwad — Motor Accident Claims | Karnataka HC (2023)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

¶3

DATED THIS THE 24^TH DAY OF MARCH, 2023

¶4

PRESENT

¶5

THE HON’BLE MR. JUSTICE K.SOMASHEKAR

¶6

AND

¶7

THE HON’BLE MR. JUSTICE UMESH M ADIGA

¶8

MISCELLANEOUS FIRST APPEAL No.101624/2020 (MV)

¶9

BETWEEN :

¶10

1 . ANITA W/O ASHOK DIGE, AGE: 45 YEARS, OCC: HOUSEHOLD WORK.

¶11

BHAGYASHRI D/O ASHOK DIGE, AGE: 24 YEARS, OCC: HOUSEHOLD WORK.

¶12

SUBHAM S/O ASHOK DIGE, AGE: 20 YEARS, OCC: STUDENT.

¶13

NAMRATA D/O ASHOK DIGE AGE: 16 YEARS, OCC: STUDENT, (SINCE MINOR REP.BY M/G APPELLANT NO.1)

¶14

ALL ARE R/AT: PLOT NO.5 ANNA SATAGOND PATIL NAGAR, SANGALI, MAHARASTRA. NOW R/O AT BASAVAN KUDUCHI, TQ : and DIST: BELAGAVI - 590 001.

¶15

...APPELLANTS

¶16

(BY SRI SIDDAPPA SAJJAN, ADVOCATE)

¶17

¶18

AND:

¶19

1 . VITHAL S/O MALHARI GAIKWAD AGE: MAJOR, OCC: BUSINESS, R/O: SR.NO.48, HAGAWANE WASTI, GOKUL NAGAR, KONDHAWA BK, PUNE, MAHARASTRA. NOW R/AT: VARWADE, TQ: MADHA, DIST: SOLAPUR MAHARASHTRA STATE-413001

¶20

2 . HDFC ERGO GENEARAL INSURANCE CO.LTD. 1^ST FLOOR, VIRUPAKSHAKRUPA, OPP: KIMS MAIN GATE, P B ROAD, VIDYANAGAR, HUBBALLI-580021

¶21

...RESPONDENTS

¶22

(BY SRI NAGARAJ C KOLLOORI, ADVOCATE FOR R2; R1 - NOTICE DISPENSED WITH)

¶23

THIS MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED 13.09.2019 PASSED IN MVC NO.532/2019 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

¶24

THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 22.02.2023 COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:

¶25

¶26

JUDGMENT

¶27

This appeal is directed against the judgment and award dated 13.09.2019 passed in MVC No.532/2019 on the file of the II Additional District and Sessions Judge and MACT, Belagavi seeking enhancement of compensation.

¶28

We refer the parties as per their ranking before the Tribunal, for the sake of convenience.

¶29

This matter was listed for hearing on admission; With

¶30

the consent of both the learned counsels, it was taken up for final disposal.

¶31

Brief facts of the case of the petitioners before the Tribunal were that, on 10.01.2019 at about 3.30 p.m. the deceased Ashok was riding the motorcycle bearing No.MH-10/CZ8634 on Sangli road. At that time, the driver of the goods lorry bearing No.MH-12/QW-3309, drove the same in rash and negligent manner and dashed against the motorcycle. Due to the impact, Ashok sustained grievous injuries and succumbed to the injuries. The petitioners are his wife and children and were depending upon

¶32

¶33

the earnings of the deceased. With these reasons they claimed compensation of Rs.29,97,900/-.

¶34

Respondent Nos.1 and 2 have denied the claim of the petitioners. Respondent No.1 has contended that driver of the offending vehicle had no valid and effective driving licence to drive the vehicle. It was insured with respondent No.2. In the event, if the compensation is awarded, respondent No.2 be directed to pay the same.

¶35

Respondent No.2 in its defence has stated that deceased was carrying two pillion riders in his motorcycle at the time of the accident and violated the conditions of permit. Therefore, respondent No.2 is not liable to pay the compensation and prayed to dismiss the petition.

¶36

The Tribunal has framed necessary issues.

¶37

Petitioners on their behalf examined P.W.1 and got marked Exs.P1 to P17. Respondents have examined R.W.1 and got marked Ex.R1.

¶38

The Tribunal appreciating the pleadings and evidence, by the impugned judgment dated 13.09.2019, partly allowed the

¶39

¶40

petition directing the respondents to pay compensation of Rs.11,06,000/- with interest at the rate of 9% p.a. The same is challenged in the present appeal seeking enhancement of compensation.

¶41

We have heard the arguments of the learned counsel for the appellants and learned counsel for respondent No.2.

¶42

The following points arise for our determination:

¶43

i) Whether the petitioners are entitled for enhancement of compensation, as sought for?

¶44

ii) W hat order?

¶45

The Tribunal by appreciating the pleadings and evidence on record held that accident was taken place due to rash

¶46

and negligent driving of the offending vehicle by its driver and the contention of respondent No.2 that deceased was carrying two pillion riders against the traffic rules and therefore, respondent No.2 was not liable to pay compensation was rejected by the Tribunal and it was not challenged by the respondents. Hence, there is no need to interfere with the said finding.

¶47

¶48

The Tribunal on the basis of Ex.P11 accepted the age of the deceased as 50 years 7 months and his earnings as Rs.9,000/p.m. and applied multiplier ‘11’ and calculated the compensation. The learned counsel for the appellants has vehemently contended that deceased was aged about 50 years at the time of the accident, since he had not completed 51 years, his age has to be considered as 50 years for calculation of the future prospectus as well as multiplier. He further contended that Tribunal has not considered future prospects of the deceased for assessment of the income. He has also contended that deceased was earning Rs.21,000/- p.m. by working in a private firm, that was not considered by the Tribunal. The compensation awarded by the Tribunal under conventional heads is on the lower side and hence, prayed to enhance the same.

¶49

Learned counsel for respondent No.2 has contended that there were no records to show that deceased was earning Rs.21,000/- p.m. Therefore, the Tribunal has rightly considered the notional income of the deceased as Rs.9,000/- p.m. and it does not call for any interference. Looking to the facts of the case, there is no need for consideration of future prospects. He further contended that for consideration of multiplier, the table given in the case of

¶50

¶51

Sarla Verma (Smt) & Ors. Vs. Delhi Transport Corporation &

¶52

another¹ may be considered. However, for consideration of future prospects as indicated in National Insurance Company Limited vs. Pranay Sethi and others² , if the deceased was below 50 years then only it has to be considered as 25%. If it is above 50 years even by 6-7 months, then 15% future prospects has to be considered and claimant cannot claim future prospects at 25%. He has further contended that compensation awarded by the Tribunal under other heads is reasonable and hence, there is no need to interfere with the same.

¶53

On the basis of Ex.P11, the Tribunal has calculated the age of the deceased as 50 years 7 months. Since it is based on the document, there cannot be any doubt for the same. As rightly held by the Tribunal, petitioners were not able to establish the income of the deceased as Rs.21,000/- p.m. Therefore, on the guess work, the income was determined by the Tribunal. The said income taken by the Tribunal is on the lower side. Normally, while settling the disputes in the Lok Adalath, for the accident that had taken place during the year 2018, the income of the victim/deceased is taken

¶54

1 (2009) 6 SCC 121

¶55

2 (2017) 16 SCC 680

¶56

¶57

as Rs.11,750/- p.m. The same is to be taken in the present case. In the case of Pranay Sethi (Supra) , in para 61(iv), it is observed as under:

¶58

“In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.”

¶59

In this case, the age of the deceased was 50 years 7 months. Therefore, he comes under the group of 50 to 60 years, wherein 10% of the income has to be added towards future prospects. Looking to the beginning of that para (iv), 40% of the established income should be added towards future prospects, if the deceased was below the age of 40 years. Similarly, we have to consider next group i.e., below the age of 50 years. In this case, deceased was of the age above 50 years and hence, future prospects has to be added at 10%.

¶60

¶61

The deceased left behind him four dependents. Therefore, as held in the case of Sarla Verma (supra) , 1/4^th of his income has to be deducted towards personal expenses.

¶62

Learned counsel for the appellants has contended that suitable multiplier in this case is ‘13’ since he has not completed the age of 51 years. Learned counsel for respondent No.2 has fairly admitted that for consideration of multiplier is concerned, in the case of Sarla Verma (supra) , in para 21 it is held as under:

¶63

“21.We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.”

¶64

18. According to the said table, age group between 46 to

¶65

50 years is ‘13’ and 51 to 55 years is ‘11’. In case of person who

¶66

¶67

was aged between 50 to 51 years i.e., above 50 years and below 51 years, what is the multiplier to be considered is not clear and it is gray area, which needs to be interpreted by this court. The said submission is sustainable. The multiplier ‘13’ is applicable for the age group 46 to 50 years and multiplier ‘11’ is applicable for the age group of 51 to 55 years.

¶68

In this case, age of deceased was 50 years 7 months. He had completed 50 years and running 51 years. Unless age of 51 years was completed he cannot be considered as 51 years. In this case, deceased had not completed age of 51 years, his age has to be considered as 50 years for ascertaining multiplier. Between age group of 46 to 50 years multiplier applicable is '13'. The motor vehicle compensation cases are benevolent legislation. When two views are possible, then the view which is beneficial to the claimants, who are sufferers, is to be accepted. In the case of Shrilatha and Others Vs Manjunatha Virupakshappa Purad and Another³ , this Court held as under:

¶69

“Quantum – Fatal accident – Principles of assessment – Multiplier – Choice of – Deceased was aged

¶70

3 2019 ACJ 2013

¶71

¶72

40 years and 5 months - He had not completed 41 years of age – Whether deceased would fall in the age group of 36-40 years and multiplier of 15 is application – Held yes. (2009 ACJ 1298 (SC) followed).”

¶73

Our view is supported by the law laid down by this Court referred above. The compensation under the head loss of dependency for which the petitioners were entitled to is Rs.9,694/x 12 x 13 = Rs.15,12,264/-.

¶74

In the case of Pranay Sethi (supra) and in the case of Magma General Insurance Co. Ltd., Vs. Nanu Ram Alias Chuhru Ram⁴ , and in the case of N.Jayasree and Others vs. Cholamandalam Ms General Insurance Company Ltd.⁵ each dependents are entitled for compensation of Rs.44,000/- under the head loss of consortium and Rs.16,500/- each is to be awarded towards loss of estate and funeral expenses. Accordingly, Petitioner/Appellants are entitled for Rs.1,76,000/- under the head loss of consortium. For the aforesaid discussions, following amount of compensation is awarded under the following heads:

¶75

4 (2018) SCC Online SC 1546

¶76

5 AIR 2021 SC 5218

¶77

¶78

Sl. No.	Heads	Amount (Rs.)
1.	Loss of dependency	15,12,264
2.	Loss of consortium	1,76,000
3.	Loss of estate	16,500
4.	Funeral expense	16,500
	Total	17,21,264

¶79

In all, petitioners are entitled for compensation of Rs.17,21,264/- as against Rs.11,06,000/- awarded by the Tribunal. The petitioners are entitled for enhanced compensation of Rs.6,15,264/- which is rounded off to Rs.6,15,000/- and they are also entitled for interest on the enhanced amount of compensation at the rate of 6% p.a., excluding for the delayed period of 173 days in filing the appeal. Accordingly, we pass the following:

¶80

ORDER

¶81

Appeal is partly allowed. No order as to costs.

¶82

The impugned judgment and award dated 13.09.2019 passed in MVC No.532/2019 on the file of the II Additional District and Sessions Judge and MACT, Belagavi is modified. Appellants are entitled for Rs.17,21,264/- as against Rs.11,06,000/- awarded by the Tribunal.

¶83

¶84

The appellants are entitled for enhanced compensation of Rs.6,15,000/- with interest at the rate of 6% p.a. on the enhanced amount of compensation from the date of petition till payment of entire amount excluding the delayed period of 173 days in filing the appeal.

¶85

Remaining portion of the impugned judgment and award is kept intact.

¶86

Sd/JUDGE

¶87

Sd/JUDGE

¶88

MBS

Anita W/O Ashok Dige, v. Vithal S/O Malhari Gaiwad

Case brief

What is this about?

What did the court decide?

Anita W/O Ashok Dige, v. Vithal S/O Malhari Gaiwad

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

S H Vasantha Vs State of Karntaka

The General Manager (P) Vs Sri Vijayabhaskar Shetty

Smt Latha B R Vs State of Karnataka

Sri M Krishnamurthy Vs the Tahsildar

Mr. Girish Puravankara Vs State of Karnataka

Sri Nanjunda Swamy Vs the State of Karnataka