Partly allowed

Parameshwari v. Santhosh Poojary

Karnataka HC13 Jun 2023MFA/3707/2019

Case brief

AI extract

What is this about?

The High Court allowed the first appeal partly, modifying the Motor Vehicle Tribunal's award. The court adjusted the notional income and applied multipliers and deductions based on Supreme Court precedents, increasing the total compensation from Rs.6.84 lakhs to Rs.8.17 lakhs with interest.

What did the court decide?

The impugned award was modified; total compensation fixed at Rs.8,17,300 with 6% interest payable by the insurer within four weeks.

Parameshwari Vs Santhosh Poojary — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC:20314-DB MFA No.3707/2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF JUNE, 2023

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PRESENT

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THE HON'BLE MRS JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL NO.3707/2019 (MV-D)

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BETWEEN:

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PARAMESHWARI AGED ABOUT 48 YEARS W/O LATE MANJU NAIK

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VASANTHI AGED ABOUT 31 YEARS W/O SHESHU MARATI

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KASTHURI AGED ABOUT 28 YEARS W/O GOPALA

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PARVATHI AGED ABOUT 26 YEARS W/O MANJUNATH

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GANESH

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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AGED ABOUT 25 YEARS S/O LATE MANJU NAIK

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ALL ARE RESIDING AT BAILGADDE GOLIHOLE VILLAGE & POST

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KUNDAPURA TALUK …APPELLANTS

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(BY SMT.SWATHI G HEGDE, ADVOCATE FOR SRI PAVANA CHANDRA SHETTY H, ADVOCATE)

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AND:

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SANTHOSH POOJARY AGED ABOUT 27 YEARS S/O NAGA POOJARY R/AT JATTI HOUSE THEGGARSE VILLAGE KUNDAPURA TALUK

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NC: 2023:KHC:20314-DB MFA No.3707/2019

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THE IFFCO TOKIYO GENERAL INSURANCE CO. LTD., BRANCH OFFICE: MANGALORE 3^RD FLOOR, LALBHAG TOWER BALLALBHAG, M.G. ROAD MANGALORE

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REP: BY ITS BRANCH MANAGER …RESPONDENTS

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(BY SRI D.VIJAYA KUMAR, ADVOCATE FOR R2; NOTICE TO R1 IS DISPENSED WITH V/O DTD: 08.06.2023)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 02.01.2019 PASSED IN MVC NO.1143/2016 ON THE FILE OF THE ADDITIONAL DISTRICT JUDGE AND ADDITIONAL MACT, UDUPI (SITTING AT KUNDAPURA), KUNDAPURA. THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR FINAL HEARING, THIS DAY, K.S.MUDAGAL J. , DELIVERED THE FOLLOWING:

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JUDGMENT

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“Whether the compensation awarded to the appellants

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under the impugned award is just?” is the question involved in this case.

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Appellant No.1 is the wife, appellant Nos.2 to 4 are the married daughters and appellant No.5 is the major son of the deceased Manju Naik. On 05.08.2016 at about 10.15 a.m. when Manju Naik was proceeding on the mud road near Hilgar Golihole-Kambadakone Road, the motorcycle bearing registration No.KA.20-EH-4418 ridden by the first respondent hit him and caused the accident. Injured Manju Naik was shifted to K.M.C hospital, Manipal. On 15.08.2016 in the hospital he succumbed to the injuries. At the relevant time, respondent

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NC: 2023:KHC:20314-DB MFA No.3707/2019

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Nos.1 and 2 were the registered owner and insurer of the motorcycle bearing registration No.KA.20-EH-4418.

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Regarding the accident, on the basis of the complaint, the police registered FIR as per Ex.P1 against respondent No.1. On investigation police filed charge sheet as per Ex.P9 against respondent No.1 for the offences of driving the vehicle in rash and negligent manner so as to endanger human life and causing the death of the deceased Manju Naik.

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The claimants filed MVC No.1143/2016 against the respondents claiming compensation of Rs.30,00,000/- on the ground that they were all dependent on the income of deceased Manju Naik and due to his death they have suffered the damages. They further claimed that the accident occurred due to actionable negligence on the part of respondent No.1. Respondent Nos.1 and 2 being the rider cum owner and the Insurer are liable to indemnify the damages.

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Respondent No.1 did not contest the claim petition. Respondent No.2 contested the petition denying occurrence of accident due to actionable negligence on the part of respondent No.1, age, occupation, income of the deceased and its liability to pay the compensation. However, respondent No.2 admitted that the policy issued by it was in force during the relevant time.

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NC: 2023:KHC:20314-DB MFA No.3707/2019

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The Tribunal on recording the evidence of the parties and on hearing them by the impugned award held that the accident occurred due to actionable negligence on the part of respondent No.1. The Tribunal relying on the admissions of PW.1/claimant No.1 considered the age of the deceased as 58 years, notionally assessed his income at Rs.9,000/- per month, deducted 50% from the income of the deceased for his living and personal expenses, applied 9 multiplier and awarded compensation of Rs.4,86,000/- on the head of loss of dependency.

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The Tribunal in all awarded compensation of

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Rs.6,84,033/- on different heads as per the table below:

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Sl. No.	Particulars	Amount in Rs.
1.	Loss of dependency	4,86,000/-
2.	Loss of Medical Expenses	88,033/-
3.	Loss of Estate	15,000/-
4.	Loss of love and affection	40,000/-
5.	Loss of consortium	40,000/-
6.	Transportation&funeralexpenses	15,000/-
	Total	6,84,033/-

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The Tribunal held that respondent No.2 being the Insurer is liable to indemnify the damages.

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The appellants challenge the said award on the ground that the compensation awarded is not just and reasonable one.

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NC: 2023:KHC:20314-DB MFA No.3707/2019

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Smt. Swathi G. Hegde, learned Counsel for the appellants reiterating the grounds of the appeal submits that the notional income considered by the Tribunal is on the lower side and the Tribunal committed error in deducting 50% for the personal expenses of the deceased. She further submits that the Tribunal ought to have added future prospects to the income of the deceased. The compensation awarded on the head of consortium is not in accordance with the judgment of the Hon’ble Supreme Court in the case of Magma General Insurance Company Ltd. v. Nanu Ram¹ .

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Per contra, Sri D.Vijayakumar, learned Counsel for respondent No.2 justifies the impugned award on the ground that since appellant Nos.2 to 4 were married daughters and appellant No.5 was major son, deduction of 50% of the income for personal expenses is in accordance with law. He further submits that since actual income was not proved, the Tribunal was justified in considering the income notionally at Rs.9,000/per month. The compensation awarded on other heads is also just.

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Analysis

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Challenging the findings of the Tribunal that the accident occurred due to actionable negligence on the part of 1 2018 (18) SCC 130

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NC: 2023:KHC:20314-DB MFA No.3707/2019

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respondent No.1 in riding the motorcycle bearing Registration No.KA-20-EH-4418 and quantum of compensation, the respondents have not preferred any appeal.

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As per the claimants’ own document and deposition of claimant No.1 at the time of the accident, the deceased was aged 58 years. Though the claimants contended that the deceased was earning Rs.20,000/- per month from his business from the sale of fishes and agricultural income, no evidence was adduced to prove such contention. Therefore the Tribunal was justified in considering the income notionally. However, having regard to the wage rates, age, occupation of the deceased, cost of living during 2016, the Tribunal should have considered the income of the deceased at Rs.9,500/- per month. In view of the judgment of the Hon'ble Supreme Court in case of National Insurance Company Limited vs. Pranay Sethi² , for the age of the deceased, 10% of the income has to be super added by way of future prospects.

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As per the claim petition itself, claimant Nos.2 to 4 were married and major daughters and claimant No.5 was major son of the deceased. Therefore the Tribunal was justified in holding that claimant No.1 alone was dependant on the income

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2 AIR 2017 SC 5157

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NC: 2023:KHC:20314-DB MFA No.3707/2019

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of the deceased and deducting 50% out of the income for his personal expenses.

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Learned Counsel for the appellants relying on the judgment of the Hon’ble Supreme Court in National Insurance Company Limited v. Birender and Ors³ and the judgment of the Allahabad High Court in Jiuti Devi v. Manoj Kumar Rai⁴ submits that the Tribunal should have deducted 1/3^rd from the income of the deceased for his personal expenses. In para 20 of the judgment in Birender’ s case referred to supra , the Hon’ble Supreme Court held that if dependant family members were 2 to 3, 1/3^rd of the income has to be deducted. As claimant Nos.2 to 4 were not the dependants, the said judgment is not applicable.

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In view of the judgment of the Hon’ble Supreme Court in Sarla Varma v. Delhi Transport Corporation⁵ in case where the dependants are less than 2 to 3, 50% has to be deducted. Therefore, the judgment of Jiuti Devi’ s case cannot be followed.

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For the age of the deceased, the applicable multiplier was 9. As per the above discussion the monthly income of deceased comes to Rs.5,225/- (Rs.9,500/2 = 4,750/- + 475).

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3 AIR 2020 SC 434

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4 2022 ACJ 2134

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5 AIR 2009 SC 3104

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NC: 2023:KHC:20314-DB MFA No.3707/2019

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Therefore the compensation payable on the head of loss of dependency comes to Rs.5,64,300/- (Rs.5,225 x 12 x 9).

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In view of the judgment of the Hon'ble Supreme

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Court in Pranay Sethi’s case and Magma General Insurance Company Ltd ’s case, the claimants being wife and children of the deceased are entitled to compensation on the head of consortium at Rs.40,000/- with escalation of 10% which comes to Rs.2,20,000/-. As per the said judgments, the claimants are entitled to compensation of Rs.15,000/- on the head of loss of estate and Rs.15,000/- for funeral expenses and transportation with escalation at 10%. Therefore, the just compensation

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payable to the claimants in this case is as follows:

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Sl. No.	Particulars	Compensation Amount in Rs.
1.	Loss ofdependency	5,64,300/-
2.	Loss of consortium	2,20,000/-
3.	Loss of estate & funeral expenses	33,000/-
	Total	8,17,300/-

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For the aforesaid reasons, the appeal deserves to be

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allowed in part. Hence, the following:

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ORDER

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The appeal is partly allowed.

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NC: 2023:KHC:20314-DB MFA No.3707/2019

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The impugned award is modified as follows:

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(i) The claimants are entitled to compensation of Rs.8,17,300/- with interest thereon at 6% p.a. from the date of petition till the date of deposit.

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(ii) Respondent No.2 shall deposit the said compensation before the Tribunal on adjusting the compensation already deposited, if any, within four weeks from the date of receipt of copy of this order.

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(iii) Out of the compensation amount, appellant Nos.2 to 5 are entitled only to their share of consortium.

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(iv) Rest of the amount shall be released to appellant

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No.1.

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(v) Registry shall transmit the records to the Tribunal

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forthwith.

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Sd/JUDGE