Partly allowed

Smt. Mallamma v. Sri Dinesha Naik

Karnataka HC3 Oct 2023MFA/1386/2020

Case brief

AI extract

What is this about?

The High Court allowed the first appeal partly, modifying the Motor Accident Claim Tribunal's award. It corrected the deduction for personal expenses from 50% to one-third based on legal precedents and recalculated the compensation to Rs. 4,64,740, directing the insurer to deposit the enhanced amount.

What did the court decide?

Compensation enhanced from Rs.2,80,000 to Rs.4,64,740 with interest at 6% per annum from the date of petition until payment; insurer directed to deposit within six weeks.

Smt. Mallamma Vs Sri Dinesha Naik — Karnataka HC (2023) — LawSathi Research

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NC: 2023:KHC:35825-DB MFA No. 1386 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF OCTOBER, 2023

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PRESENT

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THE HON'BLE MR JUSTICE K.SOMASHEKAR

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AND

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THE HON'BLE MR JUSTICE UMESH M ADIGA

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MISCELLANEOUS FIRST APPEAL NO.1386 OF 2020 (MV-D)

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BETWEEN:

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SMT. MALLAMMA

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W/O LATE LAKSHMANAPPA AGED ABOUT 57 EYARS R/O ESURU VILLAGE AND POST, SHIKARIPURA TALUK, SHIVAMOGGA DISTRICT-577 427.

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SRI ASHOKA

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S/O LATE LAKSHMANAPPA

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Digitally signed by D HEMA Location: HIGH COURT OF KARNATAKA

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AGED ABOUT 34 YEARS

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R/O ESURU VILLAGE AND POST, SHIKARIPURA TALUK

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SHIVAMOGGA DISTRICT-577 427.

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SMT. NAGARATHNA D/O LATE LAKSHMANAPPA AGED ABOUT 37 YEARS R/O ESURU VILLAGE AND POST, SHIKARIPURA TALUK SHIVAMOGGA DISTRICT-577 427.

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…APPELLANTS

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(BY SHRI GANAPATHI, ADVOCATE)

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AND:

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SRI DINESHA NAIK S/O SEETHARAMA NAIKA AGED ABOUT 32 YEARS CAR OWNER R/A HOUSE NO.27, 7^TH CROSS, RAJAGOPALA NAGARA, MAIN ROAD, GANAPATHI NAGARA, PEENYA, 3^RD PHASE, BANGALORE-560 058.

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SRI PUTTARAJU M. N. S/O M NAGARAJA AGED ABOUT 28 YEARS CAR DRIVER R/O HOUSE NO.27, 7^TH CROSS, RAJAGOPALA NAGARA, MAIN ROAD, GANAPATHI NAGARA, PEENYA, 3^RD PHASE, BANGALORE-560 058.

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THE MANAGER TATA AIG GENERAL INSURANCE CO. LTD., POLICY NO.0146178244, VALID UPTO 01-12-2017.

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…RESPONDENTS

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(BY SHRI B.PRADEEP, ADVOCATE FOR R3; vide order dated 10.04.2023, Notice to R1 & R2 is dispensed with)

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THIS MISCELLANEOUS FIRST APPEAL FILED U/S.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 30.05.2019 PASSED IN MVC NO.478/2017 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND AMACT-8, SHIVAMOGGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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NC: 2023:KHC:35825-DB MFA No. 1386 of 2020

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THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR ADMISSION, THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:

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JUDGMENT

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This is claimants appeal against the judgment and award passed by the Tribunal in M.V.C.No.478/2017 dated 30.05.2019 on the file of the II Additional Senior Civil Judge and Additional Motor Accident Claim Tribunal-8, Shivamogga (hereinafter referred to as the 'Tribunal' for short) claiming for enhancement of the compensation.

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The matter is slated for “admission”, however with consent of the learned Advocates on both side, case is taken up for final disposal.

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We refer the parties as per their rank before the Tribunal.

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It is the case of the claimants that on 11.12.2016, deceased Lakshmanappa was proceeding in his motorcycle bearing Reg.No.KA-14-EF-7948 on National Highway-206 Choradi Main Road and he met with an accident due to rash and negligent driving of the Car

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bearing Reg.No.KA-04-AA-4850 by its driver; as a result of which, Lakshmanapa sustained grievous injuries. He was shifted for treatment to Mc.Gann Hospital, Shivamogga thereafter while shifting to Wenlock Hospital, Mangalore, for higher treatment, he succumbed to the injuries. The claimants are wife and children of late Lakshmanappa, who were depending upon the earnings of the deceased. They further contended that deceased was aged about 55 years, was Mason and earning Rs.20,000/- per month. With these reasons, the claimants prayed to award compensation of Rs.21,20,000/-.

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The Respondent/Insurer denied the contents of the claim petition and further contended that accident had taken place due to rash and negligent riding of the motorcycle by the deceased and its liability is restricted to terms and conditions of policy of insurance. With these reasons, prayed to dismiss the claim petition.

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From the rival contentions of the parties, the Tribunal had framed necessary issues, for consideration.

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The claimants had examined PWs-1 and 2 and

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got marked Exs.P1 to P13. The Respondent No.2 has not lead oral evidence, however, got marked Exs.R1 and R2.

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The Tribunal after hearing both the parties and

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on appreciating the pleadings and evidence on record, awarded the following amount of compensation by impugned judgment and award:

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Sl.No.	Particulars	Amount (Rs.)
1	Loss of dependency	2,10,000
2	Loss of estate	15,000
3	Towards transportation of dead body and funeral expenses	15,000
4	Loss of consortium	40,000
	TOTAL	2,80,000

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The Tribunal assessed the age of the deceased as 65 years, his notional income as Rs.7,000/- per month and applied multiplier as ‘5’ and awarded the compensation under the head ‘loss of dependency’.

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We have heard the arguments. The learned Advocate for the appellant submits that income of the deceased assessed by the Tribunal is much lower side. The

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deceased was earning Rs.20,000/- per month. Even if the Schedule of Karnataka State Legal Services Authority is applied, the income of the deceased could be taken Rs.9,500/- per month. As per the school record, the age of the deceased is 55 years. However, the Tribunal has considered age of the deceased as 66 years; and on that basis, multiplier is calculated, which is erroneous and the compensation awarded under the other heads is also meager. Therefore, prayed for enhancement of compensation.

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The learned counsel for Respondent No.2 Shri.B.Pradeep submits that the Tribunal had properly appreciated the pleadings and evidence on record. As per the documents available on record, including the postmortem report, the age of the deceased was assessed as 65 years. The said documents were produced by the claimants, and hence they cannot dispute the same in the appeal. On the basis of the said age, multiplicand was applied by the Tribunal. There are no reasons for re-

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considering the same and hence, prayed for dismissal of the appeal.

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Submission of learned advocate for respondent is acceptable. The documents available before the Tribunal is post-mortem report and on that basis, age of the deceased was considered as 65 years and multiplier applicable is ‘5’, which does not call for re-consideration. The Tribunal has assessed income as Rs.7,000/- per month. Normally, while settlement of motor vehicle claim petitions before the Lok-Adalath, notional income of victim of an accident of the year 2016, is considered as Rs.9,500/- per month. The same could be applied to the facts of the present case. Since the age of the deceased is 65 years, there is no question of addition of income towards future prospects.

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The Tribunal has deducted 50% of the income

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towards personal expenses on the ground that widow of the deceased Lakshmanappa, was the only dependant and on that basis, it deducted 50% of income of deceased

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towards personal expenses. The said finding is incorrect. In view of the law laid down in the case of NATIONAL

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INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND

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OTHERS¹ and also in the case of SARLA VERMA VS. DELHI

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TRANSPORT CORPORATION² , proper deduction towards personal expenses of a married person is one-third of

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his/her earnings. The same can be applied in the present case. Therefore, compensation has to be awarded under the head loss of dependency is as under:

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Income of the deceased per month	Rs.9,500
Less one-third
towards personal expenses	Rs.3,166
Total	Rs.6,334

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Rs.6334X12X5 = Rs.3,80,040/-.

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The Tribunal has also awarded compensation on

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other heads, which is not in accordance with the law laid down in the case of PRANAY SETHI (referred supra) and

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1 (2017) 16 SCC 680

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2 (2009) 6 SCC 121

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also in the recent and unreported judgment of the Hon'ble

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Supreme Court, in the case of SHRI RAM GENERAL

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INSURANCE COMPANY LIMITED Vs. BHAGAT SINGH

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RAWAT & ORS³ ; t he claimants are entitled for the

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following amount of compensation:

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Sl.No.	Particulars	Amount (Rs.)
1	Loss of dependency	3,80,040
2	Loss of consortium	48,400
3	Loss of estate	18,150
4	Funeral expenses	18,150
	TOTAL	4,64,740

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Claimants are entitled for enhancement of

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Rs.1,84,740/-

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For the aforesaid discussion, we pass the following:

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ORDER

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i. The appeal is allowed in part.

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ii. The impugned judgment and award passed

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by the Tribunal in M.V.C.No.478/2017 dated

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30.05.2019 is modified as under:

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3 C ivil Appeal Nos.2410-2412/2023 dated 02.08.2021

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a) The claimants are entitled for compensation of Rs.4,64,740/- (Rupees Four Lakhs Sixty Four Thousand Seven Hundred and Forty only) as against Rs.2,80,000/awarded by the Tribunal and they are entitled for enhancement of Rs.1,84,740/- (Rupees One Lakh Eighty Four Thousand Seven Hundred and Forty only) with interest at 6% per annum on the enhanced amount from the date of petition till its payment;

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b) The Respondent No.3 is directed to deposit the said amount within a period of six weeks from the date of receipt of certified copy of the order.

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c) Apportionment, deposit and release of the amount are as ordered by the Tribunal.

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Sd/JUDGE

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Sd/JUDGE

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Smt. Mallamma v. Sri Dinesha Naik

Case brief

What is this about?

What did the court decide?

Smt. Mallamma v. Sri Dinesha Naik

Case brief

What is this about?

What did the court decide?

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