Partly allowed

The Divisional Manager v. Smt Ashwini W/O Kuber Nayak @ Lamani

Karnataka HC13 Jun 2024MFA/101971/2022

Case brief

AI extract

What is this about?

Insurer appealed and claimants cross-objected against a motor accident death award. The court reassessed notional income at Rs.13,750 per month, deducted one-fourth personal expenses, awarded consortium to each of five dependants per Magma, and reduced interest from 9% to 6% p.a., enhancing compensation to Rs.30,25,000.

What did the court decide?

Compensation modified to Rs.30,25,000 at 6% p.a. interest; insurer to deposit within six weeks.

The Divisional Manager Vs Smt Ashwini W/O Kuber Nayak @ Lamani — Insurance | Karnataka HC (2024)

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NC: 2024:KHC-D:7940-DB MFA No. 101971 of 2022 C/W MFA.CROB No. 100074 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 13^TH DAY OF JUNE, 2024

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PRESENT

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THE HON'BLE MR JUSTICE S G PANDIT

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AND

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THE HON'BLE MR JUSTICE G BASAVARAJA

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MISCELLANEOUS FIRST APPEAL NO.101971 OF 2022 (MV-D)

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C/W

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MFA CROSS OBJ NO.100074 OF 2023

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IN MFA NO.101971 OF 2022

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BETWEEN:

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THE DIVISIONAL MANAGER, RELIANCE GENERAL INSURANCE COMPANY LTD., R/O. KALBURGI SQUARE, DESAI CROSS, DESHPANDE NAGAR, HUBBALLI, DIST. DHARWAD-580029. (POLICY NO.170121923340035805 VALID FROM 30.08.2019 TO 29.08.2020) REPRESENTED BY ITS AUTHORIZED SIGNATORY.

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…APPELLANT

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(BY SRI G.N. RAICHUR, ADVOCATE)

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Digitally signed by VINAYAKA B V Location: HIGH COURT OF KARNATAKA

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AND:

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SMT. ASHWINI W/O. KUBER NAYAK @ LAMANI, AGE. 30 YEARS, OCC. HOUSE HOLD WORK, R/O. MUDHOL, TAL.MUDHOL-587313, DIST.BAGALKOT, NOW AT YALLAMMANGUDDA TANDA, TAL.SAUNDATTI-591134.

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KUMAR PRATIK S/O. KUBER NAYAK @ LAMANI, AGE. 10 YEARS, OCC. STUDENT, R/O. MUDHOL, TAL.MUDHOL-587313, DIST. BAGALKOT, NOW AT YALLAMMANGUDDA TANDA, TAL.SAUNDATTI-591134.

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KUM. PRITAM S/O. KUBER NAYAK @ LAMANI, AGE.9 YEARS, OCC. STUDENT, R/O. MUDHOL, TQ. MUDHOL-587313, DIST.BAGALKOT, NOW AT YALLAMMANGUDDA TANDA,

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NC: 2024:KHC-D:7940-DB MFA No. 101971 of 2022 C/W MFA.CROB No. 100074 of 2023

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TAL.SAUNDATTI-591134. (SINCE RESPONDENT NO.2 AND 3 WERE MINORS REPRESENTED BY THEIR NEXT FRIEND M/G GUARDIAN RESPONDENT NO.1)

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KARIYAPPA S/O. TUKARAM NAYAK @ LAMANI, AGE. 67 YEARS, OCC. COOLIE, R/O. YALLAMMANGUDDA TANDA, TAL.SAUNDATTI-591134.

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SMT. RUKMAVVA W/O. KARIYAPPA NAYAK LAMANI, AGE. 60 YEARS, OCC. COOLIE, R/O. YALLAMMANGUDDA TANDA, TAL.SAUNDATTI-591134.

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ASHRIAF S/O. NABHI KHAN, AGE. MAJOR, OCC. BUSINESS, R.O. H.NO.66, GALLI, NO.3, S.NO.120, SANTOSH NAGAR, KULKARNI PENTER JAWAL KATRAJ, KUALAKRNI-411046, PUNE MAHARASHTRA (OWNER OF TRUCK BEARING REG NO.MH-12/RN-8947).

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…RESPONDENTS

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(BY SRI G.R. TURAMARI, ADVOCATE FOR R1 TO R5; NOTICE TO R6 IS HELD SUFFICIENT)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED 18.02.2022 PASSED IN MVC NO.1536/2020 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, SAUNDATTI, AWARDING COMPENSATION OF RS.29,57,328/- WITH INTEREST AT 9 PERCENT P.A. FROM THE DATE OF PETITION AND ETC.,

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IN MFA CROB OBJ NO.100074 OF 2023

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BETWEEN:

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SMT. ASHWINI W/O. KUBER NAYAK @ LAMANI, AGE. 31 YEARS, OCC. HOUSEHOLD WORK,

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KUMAR PRATIK S/O. KUBER NAYAK @ LAMANI, AGE. 11 YEARS, OCC. STUDENT,

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KUM. PRITAM S/O. KUBER NAYAK @ LAMANI, AGE.10 YEARS, OCC. STUDENT,

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KARIYAPPA S/O. TUKARAM NAYAK @ LAMANI, AGE. 68 YEARS, OCC. COOLIE,

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SMT. RUKMAVVA W/O. KARIYAPPA NAYAK @ LAMANI, AGE. 61 YEARS, OCC. COOLIE, ALL ARE R/O. MUDHOL, TAL. MUDHOL, DIST. BAGALKOT, NOW AT YALLAMMANGUDDA TANDA, TAL.SAUNDATTI, DIST.BELAGAVI-591126.

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NOTE: CROSS OBJECTOR NO.2 AND 3 ARE MINORS REPRESENTED BY THEIR NATURAL GUARDIAN MOTHER AS CROSS OBJECTOR NO.1 SMT. ASHWINI.

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…CROSS OBJECTORS

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(BY SRI G.R. TURAMARI, ADVOCATE)

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AND:

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THE DIVISIONAL MANAGER, RELIANCE GENERAL INSURANCE CO. LTD., R/O. KALBURGI SQUARE, DESAI CROSS, DESHPANDE NAGAR, HUBBALLI, DIST. DHARWAD580029.

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ASHRIAF S/O. NABHI KHAN, AGE. MAJOR, OCC. BUSINESS, R.O. H.NO.66, GALLI, NO.3, S.NO.120, SANTOSH NAGAR, KULKARNI PENTER JAWAL KATRAJ, KUALAKRNI-411046, PUNE MAHARASHTRA.

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…RESPONDENTS (BY SRI G.N. RAICHUR, ADVOCATE FOR R1; NOTICE TO R2 IS DISPENSED WITH)

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THIS MFA.CROB IN MFA NO.101971/2022 (MV-D) IS FILED UNDER ORDER 41 RULE 22 OF CPC., AGAINST THE JUDGMENT AND AWARD DATED 18.02.2022 PASSED IN MVC NO.1536/2020 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, SAUNDATTI AT:SAUNDATTI PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.,

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THESE MFA AND MFA.CROB ARE COMING ON FOR ORDERS, THIS DAY, S G PANDIT, J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Though these appeals are listed for orders, they are taken up for final disposal with the consent of learned counsel for both the parties.

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2. The appeal and the cross objection are directed against the judgment and award dated 18.02.2022 passed in MVC No.1536/2020 on the file of learned Prl. Senior Civil Judge & Addl. MACT., Saundatti (for short, ‘Tribunal’).

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3. The claimants are before this Court in cross objection praying for enhancement of compensation awarded by the Tribunal; whereas, insurer is in appeal questioning quantum of compensation awarded by the Tribunal and praying for reduction in the quantum of compensation awarded.

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4. Brief facts of the case are that, the claimants, who are the wife, children and parents of the deceased Kuber Nayak Lamani, filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for the accidental death of Kuber Nayak Lamani that took place on 04.03.2020 involving motorcycle bearing registration No.KA-29/ED-3015

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and truck bearing registration No.MH-12/RN-8947. It is stated that the deceased was earning Rs.1,00,000/- per month as he was a contractor and a real estate agent. It is submitted that the deceased was also Ex.Vice President of Mudhol Municipal Corporation. The deceased was aged 35 years as on the date of the accident.

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5. The Insurer on appearance, filed its statement of objection denying the entire claim petition averments and further contended that the claim is exorbitant. The insurer also stated that the accident has taken place due to the negligence of the deceased who was riding the motorcycle in high speed without having driving licence. It is stated that there is no negligence on the part of the driver of the truck and it is also contended that the driver of the truck had no effective driving licence as on the date of the accident.

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6. Before the Tribunal, claimant No.1-wife of the deceased examined herself as PW1 apart from examining one more witness as PW2 and got marked 12 documents as Exs.P1 to P12, whereas respondent No.2 examined one witness as RW1 and got marked 2 documents as Exs.R1 and R2. Having

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heard the arguments of both the parties and based on the material on record, the Tribunal allowed the claim petition in part and awarded a total compensation of Rs.29,57,328/- with interest at the rate of 9% per annum from the date of petition

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till realization on the following heads:

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Loss of dependency	Rs.28,67,328/-
Funeral expenses	Rs.15,000/-
Loss of consortium	Rs.40,000/-
Parental consortium	Rs.20,000/-
Loss of estate	Rs.15,000/-
Total	Rs.29,57,328/-

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7. While awarding the above compensation, the Tribunal assessed notional income of the deceased at Rs.16,000/- per month, added 40% of the assessed income towards future prospects, deducted 1/3^rd towards personal expenses of the deceased and applied multiplier of 16. The claimants not being satisfied with the quantum of compensation awarded by the Tribunal, are in cross objection and the Insurance Company is in appeal questioning the quantum of compensation awarded.

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8. Heard the learned counsel Sri.G.R.Turamari for the

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cross objectors-claimants, learned counsel Sri.G.N.Raichur for

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the appellant-Insurance Company and perused the appeal papers.

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9. Sri.G.N.Raichur, learned counsel appearing for the appellant-Insurance Company would contend that the Tribunal committed grave error in assessing the income of the deceased at Rs.16,000/- per month. Learned counsel would submit that though the claimants have stated that the deceased was a contractor and a real estate agent, they have not produced any document to establish his avocation and his income. In the absence of any document to establish the income of the deceased, the Tribunal ought to have assessed notional income in terms of the chart prepared by the Karnataka State Legal Services Authority and ought to have taken income at Rs.13,750/- per month in terms of the said chart. Further, learned counsel would submit that the Tribunal also committed error in awarding interest at the rate of 9% per annum and submits that taking note of present rate of interest at bank, the rate of interest awarded by the Tribunal has to be reduced from 9% to 6% per annum. Thus, he prays for allowing the appeal filed by the appellant-Insurance Company.

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NC: 2024:KHC-D:7940-DB MFA No. 101971 of 2022 C/W MFA.CROB No. 100074 of 2023

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10. Sri.G.R.Turamari, learned counsel appearing for cross objectors-claimants would contend that the income assessed by the Tribunal at Rs.16,000/- per month is taken on the basis of the avocation of the deceased, which is proper, correct and prays to maintain the same. Further, learned counsel would submit that the Tribunal has deducted 1/3^rd of the assessed income towards personal expenses of the deceased, but he submits that the Tribunal ought to have deducted 1/4^th towards personal expenses taking note of 5 dependants. Further, learned counsel would submit that the claimants are wife, children and parents of the deceased who would be entitled for consortium of Rs.40,000/- each in terms of decision of the Hon’ble Apex Court in the case of Magma

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General Insurance Company Ltd., Vs. Nanu Ram and Others¹ . Thus, he prays for allowing the cross objection filed by the claimants.

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11. Having heard the learned counsel for the parties and on perusal of the appeal papers, the only point that falls for our consideration is as to Whether the impugned judgment and award under question requires interference?

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1 2018 ACJ 2782

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The above point is answered in the affirmative for the following reasons:

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12. The accident that took place on 04.03.2020 involving motorcycle bearing registration No.KA-29/ED-3015 and truck bearing registration No.MH-12/RN-8947, resultant death of Kuber Lamani, husband of claimant No.1 is not in dispute in this appeal. The insurer is in appeal questioning quantum of compensation and the claimants have preferred cross-objection praying for enhancement of compensation, awarded by the Tribunal.

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13. Claimant No.1, wife of the deceased examined as PW1 and PW2 is eyewitness of the accident. PW1 in her evidence has stated that the deceased was a contractor and also a real estate agent earning Rs.1,00,000/- per month, but to establish the avocation of the deceased and to establish his income, no material whatsoever is placed on record. In the absence of any material to establish the income of the deceased, it would be appropriate for the Courts and Tribunals to assess the income of the deceased notionally. The notional income fixed for the year 2020 as per chart prepared by the

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Karnataka State Legal Services Authority taking note of the minimum wage and other criteria is Rs.13,750/- per month. It would be appropriate to assess the notional income of the deceased at Rs.13,750/- per month. The Tribunal rightly added 40% of the assessed income towards future prospects since the decease was 35 years as on the date of the accident in terms of judgment of the Hon’ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Others² .

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14. There are five dependants, for five dependants, proper deduction towards personal expenses of the deceased would be 1/4^th . The Tribunal committed error in deducting 1/3^rd towards personal expenses. The multiplier adopted at 16 taking note of the age of the deceased at 35 years, is proper and correct. Thus, the claimants would be entitled for a modified compensation on the head of loss of dependency as under:

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Rs.13,750 + 40%(future prospects) X 12(months) x 16(multiplier) x 3/4(deduction) = Rs.27,72,000/-

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15. In terms of decision of the Hon’ble Apex Court in the case of Magma General Insurance Company Ltd. Referred

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2 2017 (16) SCC 680

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to supra, the claimants are entitled to Rs.40,000/- each under the head of consortium with escalation at the rate of 10% (i.e.Rs.44,000/- each) apart from Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses & transportation of dead body with escalation at the rate of 10%, respectively (i.e.Rs.16,500/- each).

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16. Thus, the claimants would be entitled for modified compensation on the following heads:

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Sl. No.	Particulars	Amount (In Rupees)
1.	Loss of dependency	27,72,000/-
2.	Loss of estate	16,500/-
3.	Funeral expenses & transportation of dead body	16,500/-
4.	Loss of consortium (Rs.44000x5)	2,20,000/-
	Total	30,25,000/-

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17. Learned counsel for the insurer contended that the Tribunal committed error in granting interest at the rate of 9% per annum on the compensation amount. Taking note of the present bank interest rates, he submits that award of interest at the rate of 6% per annum would be appropriate.

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18. The submission of the learned counsel on rate of interest deserves to be accepted. Taking note of today’s rate of

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bank interest, we deem it appropriate to reduce rate of interest from 9% p.a. to 6% p.a.

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19. Thus, the claimants would be entitled to total compensation of Rs.30,25,000/- as against Rs.29,57,328/awarded by the Tribunal along with interest at the rate of 6% from the date of claim petition till realization of the award amount.

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20. Hence, we pass the following:

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ORDER

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a) Both the appeals are allowed in part .

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b) The impugned judgment & award of Tribunal is modified to the extent that the claimants are entitled to total compensation of Rs.30,25,000/- as against Rs.29,57,328/- awarded by the Tribunal.

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