Partly allowed

Sri Francis D'Souza v. Sri Vijaya Sankeshwara

Karnataka HC11 Sept 2023MFA/510/2022

Case brief

AI extract

What is this about?

The High Court allowed the motor accident compensation appeal filed by the husband and children of the deceased. The court enhanced the total compensation from 3.15 lakh to 5.45 lakh based on the deceased's income and adopted multipliers. It held that since the husband is the sole dependant, he is entitled to the entire enhanced compensation.

What did the court decide?

Total compensation enhanced to Rs. 5,45,000 payable to the appellant-husband, exclusive of amounts already paid to children.

Sri Francis D'Souza Vs Sri Vijaya Sankeshwara — Money Laundering | Karnataka HC (2023)

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1 - NC: 2023:KHC:32621 MFA No. 510 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE M.I.ARUN MISCELLANEOUS FIRST APPEAL NO. 510 OF 2022 (MV-D)

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BETWEEN:

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SRI FRANCIS D'SOUZA S/O INTRU D'SOUZA AGED ABOUT 68 YEARS

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SRI PRAKASH D'SOUZA S/O FRANCIS D'SOUZA AGED ABOUT 44 YEARS

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SRI ROSHAN D'SOUZA S/O FRANCIS D'SOUZA AGED ABOUT 41 YEARS

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SRI ROBER D'SOUZA S/O FRANCIS D'SOUZA AGED ABOUT 40 YEARS

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Digitally signed by H K HEMA Location: High Court of Karnataka

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SRI RICHARD D'SOUZA S/O FRANCIS D'SOUZA AGED ABOUT 34 YEARS APPELLANT NO.1 IS HUSBAND AND PETITIONER NO.2 TO 5 ARE CHILDREN OF DECEASED SMT.KOSHA D'SOUZA)

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ALL ARE RESIDING AT CHIKKANSAL ROAD OPP HIGHER PRIMARY SCHOOL KUNDAPURA KASABA KUNDAPURA TALUK. …APPELLANTS (BY SRI. NAGARAJA HEGDE., ADVOCATE)

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2 - NC: 2023:KHC:32621 MFA No. 510 of 2022

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AND:

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SRI VIJAYA SANKESHWARA S/O BASAVANNAPPA R/O LALITH MAHAL, NAVEEN PARK KESHWAPUR, HUBLI.

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UNITED INSURANCE CO LTD BRANCH OFFICE NO.2 N K COMPLEX KESHWAPURA, HUBLI REP BY ITS BRANCH MANAGER.

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…RESPONDENTS

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(BY SRI.S.ARAVIND M. NEGLUR AND PRAKASHA A., ADVOCATE FOR R1; SRI. RAVISH BENNI, ADVOCATE FOR R2)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 12.06.2013 PASSED IN MVC NO.262/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL MACT, KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL IS COMING ON FOR FURTHER ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Aggrieved by the judgment and award dated

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12.06.2013 passed in MVC No.262/2012 by the Court of

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the Senior Civil Judge and Addl. MACT at Kundapura (for short ‘the Tribunal’), the petitioners therein have preferred

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this appeal.

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NC: 2023:KHC:32621 MFA No. 510 of 2022

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For the sake of convenience, the parties are referred

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to herein as per their status before the Tribunal.

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3. Brief facts of the case are as follows:

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On 28.11.2011 at about 12.00 p.m. the deceased

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Smt Kosha D’souza was walking on NH-66 near APMC Yard in front of Syndicate Bank, Kundapura. At that time, a lorry bearing registration No.KA-25-6828 driven in a rash and negligent manner and duly insured with respondent

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No.2 – Insurance Company toppled down and hit the deceased because of which she died. Petitioner No.1 is her husband and petitioner Nos.2 to 5 are children. They preferred MVC No.262/2012 before the Tribunal. Based on the pleadings and evidence let in, the Tribunal has awarded a compensation of Rs.3,15,000/- along with interest at 6% p.a. from the date of petition till the date of deposit with Tribunal payable by respondent No.2Insurance Company to the petitioners. Not satisfied by the same, the present appeal is filed by the petitioners.

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NC: 2023:KHC:32621 MFA No. 510 of 2022

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There has been an inordinate delay of 2481 days in filing the appeal. Petitioner No.1 has filed his affidavit explaining the delay and he has blamed petitioner Nos.2 to 5 for causing the delay in filing the appeal. The delay was condoned taking into consideration that the Advocate for the petitioners fairly submitted that the appeal may be disposed of considering petitioner No.1 as the sole claimant.

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Admittedly, the accident has happened in the year 2011. The petitioners have not established the income of the deceased before the Tribunal. Hence, the same has to be adopted as per the chart prepared by the Karnataka State Legal Services Authority in consultation with Insurance Company which will be Rs.6,500/- per month. However, the petitioners themselves in their pleadings have contended that the deceased was earning a sum of

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Rs.6,000/- per month. The Tribunal has taken the income of deceased at Rs.5,000/- per month. Under the circumstances, it is deemed appropriate to take the

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NC: 2023:KHC:32621 MFA No. 510 of 2022

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income of the deceased at Rs.6,000/- per month. The deceased was aged 58 years at the time of accident and a multiplier of 9 is hereby adopted as per the law laid down by the Apex Court in Sarla Verma & Ors. v. Delhi Transport Corp. & Anr. [2009(6) SCC 121] . Further 10% is added to the income of the deceased towards future prospects as per the law laid down by the Hon’ble Supreme Court in National Insurance Co. Ltd. v. Pranay Sethi [(2017) 16 SCC 680] . Considering that her husband was sole dependent (petitioner No.1), 1/3^rd is deducted towards her personal expenses. Thus, on the count of loss of dependency petitioner No.1 would be entitled to a sum of Rs.4,75,200/as against Rs.2,70,000/- awarded by the tribunal (Rs.6,000 x 12 x 9 + 10% x 2/3). Further, the petitioners are also entitled to a sum of Rs.30,000/- towards loss of estate and towards funeral expenses.

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As the Advocate for the petitioners has given up the claim of petitioner Nos.2 to 5, petitioner No.1 is alone

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NC: 2023:KHC:32621 MFA No. 510 of 2022

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considered to be entitled to loss of consortium and a sum of Rs.40,000/- is awarded towards the same.

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Thus petitioner No.1 is entitled to a compensation of Rs.5,45,200/- along with interest at the rate of 6% per annum from the rate of petition before the tribunal till realization excluding interest for a period of 2481 days, the period of delay in filing the appeal.

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Though the tribunal has awarded a sum of

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Rs.50,000/- each in favour of petitioner Nos.2 to 5 out of

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the total compensation of Rs.3,15,000/- under the given facts and circumstances of the case, where petitioner No.1 alone is considered as the sole dependant of the deceased, it is hereby held that petitioner No.1 alone can be entitled to the entire compensation and petitioner Nos.2 to 5 are not entitled to any compensation and if respondent No.2 – Insurance Company has already satisfied the award passed by the tribunal, liberty is granted to petitioner No.1 to recover the said amounts from petitioner Nos.2 to 5 if they have taken any of the amounts. Hence, the following:

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NC: 2023:KHC:32621 MFA No. 510 of 2022

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ORDER

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(i) The appeal is allowed in part;

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(ii) The total compensation awarded by the tribunal is enhanced from Rs.3,15,000/- to Rs.5,45,000/- with interest at the rate of 6% per annum from the date of filing the petition before the tribunal till realization excluding the interest for the period of 2481 days and respondent No.2 – Insurance Company is held liable to pay the same to petitioner No.1 and they will deposit the amount concerned within a period of six weeks from the date of receipt of certified copy of this order excluding the amounts already paid, if any;

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(iii) Office to draw modified award accordingly.

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List No.: 1 Sl No.: 12

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SD/JUDGE

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Sri Francis D'Souza v. Sri Vijaya Sankeshwara

Case brief

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What did the court decide?

Sri Francis D'Souza v. Sri Vijaya Sankeshwara

Case brief

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