Partly allowed

P.R. Nagarathna @ Kavya v. Yogish Kutkunje Pai

Karnataka HC25 Oct 2024MFA/4396/2020

Case brief

AI extract

What is this about?

Appeal by dependants of a KSRTC driver killed in a car-motorcycle collision seeking enhancement of Tribunal-awarded compensation. Court added 50% future prospects, recomputed consortium and other heads per Supreme Court precedent, and enhanced compensation by Rs.8,20,300 with 6% interest.

What did the court decide?

Enhanced compensation of Rs.8,20,300 with 6% p.a. interest from date of petition till realization; insurer to deposit within four weeks.

P.R. Nagarathna @ Kavya Vs Yogish Kutkunje Pai — Motor Accident Claims | Karnataka HC (2024)

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1 - NC: 2024:KHC:43104-DB MFA No.4396/2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25^TH DAY OF OCTOBER, 2024 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 VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO.4396/2020 (MV-D)

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BETWEEN:

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P.R.NAGARATHNA @ KAVYA W/O SHEKHARAPPA H AGED ABOUT 29 YEARS

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JEETU

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S/O SHEKHARAPPA H AGED ABOUT 11 YEARS MINOR REP. THROUGH HIS NATURAL GUARDIAN I.E, MOTHER APPELLANT NO.1

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NAGAMMA W/O HANUMANTHAPPA AGED ABOUT 54 YEARS

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

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HANUMANTHAPPA S/O HANUMANTHAPPA AGED ABOUT 62 YEARS

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ALL ARE R/O GUDALU VILLAGE AND POST, DAVANAGERE – 577 003 … APPELLANTS

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(BY SRI.A.HANUMANTHAPPA A, ADVOCATE)

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AND:

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YOGISH KUTKUNJE PAI S/O RAM MOHAN K PAI AGED ABOUT 38 YEARS DRIVER CUM OWNER OF CAR BEARING REG. NO.KA-05/MV 2504 R/O B5 804, ELITA PROMINADAE J P NAGAR, 7^TH PHASE BANGALORE - 560 078

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NC: 2024:KHC:43104-DB MFA No.4396/2020

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2. THE MANAGER

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IFFCO-TOKIO GENERAL INSURANCE COMPANY LTD. IFFCO TOWER, 4^TH AND 5TH FLOORS PLOT NO.3, SECTION 29 GURGAON REP. THROUGH, THE MANAGER IFFCO-TOKIO GENERAL INSURANCE COMPANY LTD, BRANCH OFFICE LAWYER STREET, K B EXTENSION DAVANAGERE – 577 001 … RESPONDENTS

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(BY SRI.MURALIDHARA N, ADVOCATE FOR R2; NOTICE TO R1 IS DISPENSED WITH V/O DTD:28.03.2024)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 13.11.2018 PASSED IN MVC NO.240/2018 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE, MEMBER, MACT-IV, DAVANGERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL AND HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT

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(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)

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“Whether the compensation awarded to the

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

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Appellants were claimant Nos.1 to 4 and respondents were respondent Nos.1 and 2 in MVC No.240/2018 before the Tribunal. For the purpose of convenience, the parties

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NC: 2024:KHC:43104-DB MFA No.4396/2020

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are referred to henceforth according to their ranks before the Tribunal.

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Claimant No.1 is the wife, claimant No.2 is the minor son, claimant Nos.3 and 4 are the parents of the deceased Shekharappa.H. On 08.12.2017 at 6:15 p.m., when Shekharappa.H and his co-brother Thippeswamy were traveling on motorcycle bearing registration No.K.A-17-X-2690 near Hunasekatte village, respondent No.1 the driver of the Car bearing registration No.K.A-05-MV-2504 hit their motorcycle. In the accident, both Shekharappa.H, the rider of the motorcycle and Thippeswamy the pillion rider suffered injuries. Shekharappa.H succumbed to the injuries on his way to the hospital. At the time of accident, respondent Nos.1 and 2 were the registered owner and insurer of the Car bearing registration No.K.A-05-MV-2504.

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Claimants filed MVC No.240/2018 claiming compensation of Rs.80,00,000/- on the ground that the deceased Shekharappa.H was working as KSRTC driver cum conductor and they were all dependent on his income, due to his death, they have suffered the damages and respondents are liable to compensate the said damages. Thippeswamy filed

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NC: 2024:KHC:43104-DB MFA No.4396/2020

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MVC No.241/2018 seeking compensation for the injuries suffered by him.

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Respondent Nos.1 and 2 contested the petition denying actionable negligence on the part of respondent No.1 the driver of the car, age, occupation, income of the deceased and their liability to pay the compensation.

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The Tribunal consolidated MVC Nos.240/2018 and 241/2018 and recorded common evidence. On behalf of claimants, PWs.1 to P4 were examined and Exs.P1 to 28 were marked. Respondents did not lead any oral evidence. The Tribunal on hearing the parties by the impugned common judgment and award held that the accident occurred due to actionable negligence on the part of respondent No.1.

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The Tribunal based on the evidence of PW.4 and Ex.P12 the pay slips held that, Shekharappa.H was working as driver cum conductor in KSRTC, Davanagere division. Based on Ex.P12, the Tribunal assessed his monthly income at Rs.24,502.84/-, added 30% to the same by way of future prospects, deducted 1/4^th from his income for his personal

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5 - NC: 2024:KHC:43104-DB MFA No.4396/2020

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expenses, applied 16 multiplier and awarded compensation of

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Rs.45,86,932/- on the head of loss of dependency.

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The Tribunal in all awarded compensation of

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Rs.46,56,932/- on different heads as per the table below:

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Sl. No.	Particulars	Compensation awarded in Rs.
1.	Loss of dependency	45,86,932/-
2.	Loss of estate	40,000/-
3.	Loss of Consortium	15,000/-
4.	Funeral expenses	15,000/-
	Total	46,56,932/-

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The Tribunal awarded interest at 8% per annum and directed respondent No.2-insurer to pay the said compensation.

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Claimants have challenged the award on the ground that the compensation awarded is not just and fair and is inadequate. Respondents have not challenged the award on any of the grounds. Therefore, award against them has become final.

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Sri A Hanumanthappa, learned Counsel for the appellants/claimants submits that having regard to the evidence of PW.4 and nature of employment of the deceased,

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the Tribunal ought to have added 50% to the income of the deceased by way of future prospects and compensation awarded on the other heads is on the lower side.

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Sri Muralidhara N, learned Standing Counsel for respondent No.2 justifies the impugned award claiming that out of the income of the deceased, Income Tax and Professional Tax has to be deducted.

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This Court has to examine whether compensation awarded is just and fair. The evidence of PW.4, Exs.P9, 10 and 12 i.e., I.D card of the deceased, his driving licence and pay slips respectively, show that deceased was working as driver cum conductor in KSRTC, Davanagere division. That fact was not disputed also. As per Ex.P12 his last gross salary was Rs.24,502.84/-. Out of the said amount, Rs.200/- has to be deducted for Professional Tax. PWs.1 and 4 were not crossexamined by the respondents to show that the income of deceased had crossed exempted limit and was taxable and tax had to be deducted. Even Ex.P12 salary slips did not show his income had crossed exempted limit. Therefore, at this stage, it is not open to the respondents to contend that tax ought to

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have been deducted. On deducting Professional Tax, his monthly income comes to Rs.24,302/-.

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The deceased was permanently employed and aged 35 years. Therefore, having regard to the judgment of Hon'ble Supreme Court in the case of National Insurance Company Limited vs . Pranay Sethi and Others¹ , 50% has to be added to the income of the deceased by way of future prospects. Hence, his monthly income comes to Rs.36,453/- (24,302 + 12,151) and his annual income comes to Rs.4,37,436/- (36,453 x 12). The applicable multiplier is 16. As deceased had four dependants, 1/4^th has to be deducted for his personal expenses and 3/4^th has to be taken for assessing loss of dependency. Therefore, compensation payable on the head of loss of dependency comes to Rs.52,49,232/- (4,37,436 x 16 x ¾).

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In view of the judgment of Supreme Court in the cases of Pranay Sethi’s referred to supra and Magma General Insurance Company Limited vs. Nanu Ram & Ors² , compensation of Rs.40,000/- to each of the claimants under the head of loss of consortium with escalation of 10% for every three years has to be given, which comes to Rs.1,92,000/-.

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1 (2017) 16 SCC 680

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2 (2018) 18 SCC 130

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Similarly on the heads of funeral expenses and loss of estate, sum of Rs.15,000/- + Rs.15,000/- with escalation at 10% for every three years has to be awarded which comes to Rs.36,000/-. Therefore, the just compensation payable is as

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follows:

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Particulars	Amount (Rs.)
Loss of dependency	52,49,232/-
Loss of consortium	1,92,000/-
Loss of estate	18,000
Funeral expenses	18,000
Total	54,77,232/-
Awarded by Tribunal	46,56,932/-
Enhanced compensation	8,20,300/-