Partly allowed

Malan W/O Yashwant Sayanekar v. Parashuram S/O Narayan Nilajkar

Karnataka HC3 Jan 2024MFA/103325/2019

Case brief

AI extract

What is this about?

Claimants sought enhancement of compensation for the accidental death of a pensioner in a car accident. Holding that documented pension income of Rs.23,844 per month must be used instead of notional income, and applying one-third personal-expense deduction per Sarla Verma, the High Court enhanced compensation from Rs.5,02,000 to Rs.15,65,264 with 6% interest on the enhanced amount.

What did the court decide?

Compensation enhanced to Rs.15,65,264; Rs.10,63,264 enhancement with 6% interest to be deposited by insurer within six weeks; claimants 2-5 get Rs.50,000 each.

Malan W/O Yashwant Sayanekar Vs Parashuram S/O Narayan Nilajkar — Insurance | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:133-DB

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MFA No. 103325 of 2019

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 3^RD DAY OF JANUARY, 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 K V ARAVIND

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MISCELLANEOUS FIRST APPEAL NO. 103325 OF 2019 (MV-D)

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BETWEEN:

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MALAN W/O. YASHWANT SAYANEKAR, AGE: 56 YEARS, OCC: HOUSEHOLD WORK, R/O: 3RD CROSS, ANAND NAGAR, VADAGAON, TQ & DIST: BELAGAVI-590005.

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PRASHANT S/O. YASHWANT SAYANEKAR, AGE: 35 YEARS, OCC: SERVICE, R/O: 3RD CROSS, ANAND NAGAR, VADAGAON, TQ & DIST: BELAGAVI-590005.

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PRAVEEN S/O. YASHWANT SAYANEKAR, AGE: 33 YEARS, OCC: SERVICE, R/O: 3RD CROSS, ANAND NAGAR, VADAGAON, TQ & DIST: BELAGAVI-590005.

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CHANDRASHEKARLAXMANKATTIMANI Digitally signed byCHANDRASHEKARLAXMANKATTIMANIDate: 2024.01.11 12:13:14 +0530

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RAJIV S/O. YASHWANT SAYANEKAR, AGE: 30 YEARS, OCC: SERVICE, R/O: 3RD CROSS, ANAND NAGAR, VADAGAON, TQ & DIST: BELAGAVI.

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SANJAY S/O. YASHWANT SAYANEKAR, AGE: 30 YEARS, OCC: SERVICE, R/O: 3RD CROSS, ANAND NAGAR, VADAGAON, TQ & DIST: BELAGAVI-590005.

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…APPELLANTS

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(BY SHRI. YASH R. NADAKARNI, ADVOCATE FOR SHRI. VITTHAL S. TELI, ADVOCATE)

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AND:

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PARASHURAM S/O. NARAYAN NILAJKAR, AGE: 38 YEARS, OCC: BUSINESS,

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2 - NC: 2024:KHC-D:133-DB MFA No. 103325 of 2019

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R/O: H.NO.105, MARUTI GALLI, RAJHANSGAD, POST: NANDIHALLI, BELAGAVI.

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THE DIVISIONAL OFFICER, THE ORIENTAL INSURANCE CO. LTD, 2ND FLOOR, DHAMNEKAR ARCADE, DR. B. R. AMBEDKAR ROAD, BELAGAVI.

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…RESPONDENTS

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(BY SHRI. G. N. RAICHUR, ADVOCATE FOR RESPONDENT NO.2, NOTICE TO RESPONDENT NO.1 DISPENSED WITH)

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THIS MFA IS FILED U/S. 173(1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED 26.10.2017 PASSED IN MVC NO.1342/2016 ON THE FILE OF THE VIII ADDITIONAL DISTRICT AND SESSIONS JUDGE, BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MFA COMING ON FOR ADMISSION, THIS DAY, S G PANDIT, J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Though this appeal is listed for admission, it is taken up for final disposal, with the consent of learned counsel for both the parties.

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2. The appellants-claimants are before this Court dissatisfied with the quantum of compensation awarded under judgment and award dated 26.10.2017 in M.V.C. No.1342/2016 on the file of learned VIII Addl. District and

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Sessions Judge, Belagavi (for short, ‘Tribunal’), praying for enhancement of compensation.

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3. The claimants, who are the wife and children of the deceased Yashwant Sayanekar, filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for the accidental death of Yashwant Sayanekar that occurred on 29.01.2015 involving Omni car bearing registration No.GA-08/F-1732. It is stated that the deceased was aged 60 years as on the date of the accident and he was a pensioner getting pension of Rs.23,000/- per month.

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4. On issuance of notice, respondents No.1 and 2 appeared through their learned counsel. Respondent No.2Insurance Company filed statement of objections denying the allegations made in the claim petition. It was contended that the compensation claimed by the claimants is excessive and exorbitant. Thus, prayed for dismissal of the claim petition.

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5. Before the Tribunal, claimant No.1-wife of the deceased examined herself as PW1 and got marked the documents as Exs.P1 to P14 whereas respondents marked Exhibits R1 and R2 with consent. The Tribunal based on material evidence on record awarded total compensation of Rs.5,02,000/- with interest at 9% per annum on the following heads:

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Loss of Dependency Rs.2,52,000/Loss of consortium Rs.1,00,000/Loss of love and affection Rs.1,00,000/Loss of estate Rs. 25,000/Funeral & transportation of Dead body Rs. 25,000/- Total Rs.5,02,000/-

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6. While awarding the above compensation, the Tribunal assessed notional income of the deceased at Rs.6,000/- per month, deducted 50% of the same towards personal and living expenses of the deceased and applied multiplier of ‘7’. The claimants not being satisfied with the quantum of compensation awarded by the Tribunal are before this Court praying for enhancement of compensation.

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7. Heard learned counsel Sri Yash R.Nadakarni for Sri. Vitthal S.Teli for the appellants-claimants and Sri G.N.Raichur, learned counsel for respondent No.2-Insurance Company and perused the appeal papers along with original records.

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8. Learned counsel for the appellants would vehemently contend that the Tribunal committed a grave error in assessing notional income of the deceased at Rs.6,000/- per month inasmuch as the deceased was a pensioner and getting pension of Rs.23,000/- per month. Learned counsel invites attention of this Court to Ex.P8pension payment order and submits that though the pension payment order indicates pension of Rs.19,500/- sanctioned as on the date of his retirement i.e. on 01.06.2008, but as on the date of death, the deceased was receiving Rs.23,000/- per month as pension. Further learned counsel would contend that the Tribunal also committed an error in deducting 50% of the assessed income towards personal expenses of the deceased. Learned counsel placing reliance

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on the decision of the Hon’ble Apex Court in Sarla Verma &

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Others V/s Delhi Transport Corporation and Another¹

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would submit that when deceased is a married person, the deduction towards personal expenses shall be 1/3^rd and not 50%. Thus, learned counsel would submit that the Tribunal ought to have deducted 1/3^rd towards personal expenses of the deceased. Learned counsel for the appellants-claimants submit that the claimants would be entitled for Rs.40,000/each towards consortium in terms of Magma General

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Insurance Company Ltd. V/s Nanu Ramu and others² .

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Thus, it is prayed for allowing appeal and to enhance the compensation.

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9. Per contra, Sri.G.N.Raichur, learned counsel for respondent No.2-Insurance Company would submit that the compensation awarded by the Tribunal is just compensation, which needs no interference. Further, learned counsel would submit that the Tribunal rightly assessed notional income of the deceased at Rs.6,000/- per month. He submits that wife

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1 (2009) 6 SCC 121

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2 2018 ACJ 2782

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though lost her husband, who was getting pension would receive family pension. Therefore, he submits that when the wife receives family pension, she would not lose any earning of the deceased husband. Therefore, he submits that the Tribunal rightly assessed notional income of the deceased at Rs.6,000/- per month.

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10. Further, learned counsel would submit that the Tribunal has rightly deducted 50% of the assessed income towards personal expenses of the deceased. Learned counsel placing reliance on the decision of the Hon’ble Supreme Court in the case of Sarla Verma (supra) would submit that the Hon’ble Supreme Court has made it clear that wherever deceased is a bachelor and wherever only one dependent, the deduction shall be 50%. He submits that though there are five claimants, only wife is dependant and others are earning members. Therefore, he submits that the Tribunal was justified in deducting 50% of the assessed income towards personal expenses.

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11. Further, learned counsel Sri G.N.Raichur would submit that the Tribunal committed a grave error in

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8 - NC: 2024:KHC-D:133-DB MFA No. 103325 of 2019

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awarding Rs.1,00,000/- towards loss of love and affection and also on the head of loss of estate and towards funeral and transportation of dead body. Learned counsel placing reliance on the decision of Hon’ble Apex Court in the case of

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National Insurance Company Limited V/s Pranay Sethi

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and others³ would submit that the appellants would be entitled for a sum of Rs.70,000/- on conventional heads and the compensation granted on the above heads are in excess. Therefore, prays for reduction of the compensation granted by the Tribunal.

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12. Having heard the learned counsel for the parties and on perusal of the appeal papers along with original records, the points that would fall for consideration in this appeal are as follows:

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i. Whether the Tribunal is justified in assessing notional income of the deceased at Rs.6,000/- per month?

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ii. Whether the Tribunal is right in taking deduction at 50% of the assessed income?

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3 AIR 2017 SC 5157

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13. Answer to the above points would be in the negative for the following reasons.

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14. The accident which occurred on 29.01.2015 involving Omni car bearing registration No.GA-08/F-1732 and the death of Yashwant Sayanekar, husband of the 1^st appellant is not in dispute in this appeal. The appellants are before this Court praying for enhancement of compensation.

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15. The Tribunal committed grave error in assessing the income of the deceased notionally at Rs.6,000/- per month. The appellants had placed on record Ex.P8-pension payment order. In terms of Ex.P8, the deceased was receiving pension and Ex.P14-Bank statement indicates that as on 07.06.2015, the deceased was receiving a sum of Rs.23,844/- as pension. The contention of the respondentInsurance Company that the wife would get family pension, therefore, the Tribunal rightly ignored the pension of the deceased for the purpose of compensation on the head of loss of dependency cannot be accepted. The Hon’ble Apex

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Court in N. Sivammal & Others Vs. Managing Director,

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10 - NC: 2024:KHC-D:133-DB MFA No. 103325 of 2019

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Pandian Roadways Corporation & Another⁴ has not appreciated reduction of compensation taking into consideration pension amount. Loss of dependency is to be assessed based on the income of the deceased. Loss of dependency shall be assessed only based on earnings of the deceased and amount of compensation should be determined having regard to pecuniary loss caused to the dependents by reason of death of the victim.

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16. In the instant case, in terms of Ex.P8-pension payment order and Ex.P14-Bank Statement, it is clear that the deceased was receiving a sum of Rs.23,844/- per month as pension. When the deceased was having definite income by way of pension, the Tribunal is not right and not justified in assessing notional income of the deceased at Rs.6,000/per month. When materials are placed on record to establish income, the Tribunal is duty bound to determine the income based on the materials. Income of a person could be assessed notionally when there is no material to establish income. The Tribunal ought to have assessed income of the

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4 (1985) 1 SCC 18

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deceased at Rs.23,844/- per month. Thus, we are of the considered view that the income of the deceased shall be assessed at Rs.23,844/- per month.

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17. The Tribunal also committed an error in deducting 50% of the assessed income towards personal expenses of the deceased. The Hon’ble Apex Court in Sarla Verma’s case supra at paragraph-30 has held as follows:

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30. Through in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3 one-forth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six.

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18. The above paragraph makes it clear that wherever the deceased is a bachelor, 50% of the assessed income has to be deducted towards personal and living expenses of the deceased; wherever the deceased is a married person, depending on the number of dependents, deduction shall vary from 1/3^rd to 1/5^th . In the instant case, considering the 1^st claimant-wife as only dependent, though

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other claimants are not dependents of the deceased, the Tribunal ought to have deducted 1/3^rd towards personal expenses of the deceased. Thus, it would be just and appropriate to deduct 1/3^rd of the assessed income of the deceased towards personal and living expenses of the deceased. Thus, the claimants would be entitled to a compensation on the head of loss of dependency as follows:

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Rs.23,844 x 12 x 7 x 2/3 = Rs.13,35,264/-

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19. The Tribunal also committed a grave error in awarding higher compensation in a sum of Rs.1,00,000/each on the head of loss of consortium and loss of love and affection. Further, the Tribunal is also not right in awarding a sum of Rs.25,000/- each on the head of loss of estate and funeral expenses. In terms of decision of the Hon’ble Apex Court in the case of Pranay Sethi supra, 1^st claimant-wife of the deceased would be entitled to a sum of Rs.70,000/- on the conventional heads including consortium, loss of estate and transportation of dead body and funeral expenses. The other claimants i.e. claimants No.2 to 5 would be entitled to a sum of Rs.40,000/- each on the head of loss of consortium

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in terms of Magma General Insurance Company Limited

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supra.

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20. Thus, the claimants would be entitled for modified

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compensation on the following heads:

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Sl.	Particulars	Amount
No.
1.	Loss of dependency	Rs.13,35,264/-
2.	Loss of estate & Funeral expenses	Rs. 30,000/-
3.	Spousal and Parental consortium (Rs.40,000/-each)	Rs. 2,00,000/-
	Total	Rs.15,65,264/-

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21. Thus, the claimants would be entitled to total compensation of Rs.15,65,264/- as against Rs.5,02,000/awarded by the Tribunal.

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22. In the result, we proceed to pass the following:

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ORDER

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a) The above appeal is allowed in part .

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b) The impugned judgment and award of the Tribunal is modified to an extent that the claimants are entitled to total compensation of Rs.15,65,264/- as against Rs.5,02,000/awarded by Tribunal.

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c) The enhanced compensation amount of Rs.10,63,264/- will bear interest at the

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rate of 6% per annum from the date of claim petition till date of realization.

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d) The respondent-Insurance Company shall deposit the enhanced compensation amount with accrued interest before the Tribunal within six weeks from the date of receipt of certified copy of this judgment.

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e) Out of the enhanced compensation amount, the claimants No.2 to 5 are entitled for a sum of Rs.50,000/- each and claimant No.1-wife of the deceased is entitled for remaining enhanced compensation amount with accrued interest.

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f) Registry to transmit the records to the Tribunal forthwith.

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g) Draw modified award accordingly.

Sd/JUDGE

Sd/JUDGE

CLK/JTR

List No.: 1 Sl No.: 5

Malan W/O Yashwant Sayanekar v. Parashuram S/O Narayan Nilajkar

Case brief

What is this about?

What did the court decide?

Malan W/O Yashwant Sayanekar v. Parashuram S/O Narayan Nilajkar

Case brief

What is this about?

What did the court decide?

What the court decided

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