Raju Sherigara Vs Ashok Devadiga

THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 05/10/2018, PASSED IN MVC NO.140/2017, ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE ADDITIONAL MACT, UDUPI BY ENHANCING THE COMEPNSATION TO Rs.33,69,568/IN THE INTEREST OF JUSTICE.

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

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CORAM: HON'BLE MR. JUSTICE JAYANT BANERJI

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& HON'BLE MS. JUSTICE TARA VITASTA GANJU

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ORAL JUDGMENT

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(PER: HON'BLE MS. JUSTICE TARA VITASTA GANJU)

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The present appeal seeks to challenge the Judgment

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and Award dated 05.10.2018 in MVC No.140/2017 passed

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by the II Addl. Senior Civil Judge & Addl. MACT, Udupi (hereinafter referred to as the “Impugned Award”). By the Impugned Award, learned Tribunal has awarded a compensation of Rs.10,38,088/- along with interest at 6% per annum from the date of petition till its realisation. The present appeal is filed by the appellants/claimants seeking enhancement.

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We have heard the learned Senior Counsel for the appellants/claimants and the learned counsel for respondent No.2/Insurance Company. Notice to respondent No.1 has been dispensed with, by order dated 07.07.2023.

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The brief facts of the case are that on 25.09.2016 at 04.30 p.m., the deceased was travelling as a pillion rider in a motorcycle bearing registration No.KA-20-ED-1689 along with her son from Pandukallu towards Hebri. At that time, and as a result of the rider of the motorcycle applying the brakes very suddenly, the motorcycle lost control, skid and the deceased fell on the road and the

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deceased sustained grievous injuries including on her head. The deceased was taken to KMC Hospital, Manipal in an ambulance. The deceased was admitted as an inpatient from 25.09.2016 to 29.09.2016 in KMC Hospital

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and on 29.09.2016 she succumbed to her injuries.

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3.1 The claimants being the appellant No.1/husband and appellant Nos.2 and 3 /daughters of the deceased, filed a claim petition stating that they had spent Rs.88,000/towards hospital expenses and medical expenses. In addition it was stated that the deceased was running a dairy farm having five milk giving cows and was selling milk to the Shivapura Milk Society of which she was a member, on a regular basis and she was also doing agricultural work apart from the work of cooking food and washing utensils etc. as a home maker. Based on these contentions, a petition was filed under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the MV Act’) seeking compensation in a sum of Rs.33,24,180/with interest and costs before the MV Act Tribunal.

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3.2 The petition was contested by the Respondent No.2/Insurance Company. Although the owner of the offending vehicle was served, he did not appear and was proceeded with ex parte .

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3.3 Based on the pleadings between the parties, the

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following issues were framed:

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“ISSUES

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1. Whether petitioners prove that on 25.09.2016 at about 16:30 p.m. while the deceased was travelling as pillion rider in Motor Cycle bearing Reg.No.KA-20ED-1689 along with her son Ashok Devadiga from Pandukallu towards Hebri side who was riding Motor Cycle in a rash and negligent manner and suddenly applied the brake and he lost the control over the bike and Smt. Lalitha Sherigarthi who was pillion rider of the Motor Cycle fell down on the road and as a result of the same, Smt. Lalitha Sherigarthi sustained grievous injuries and later succumbed to injuries at Hospital?

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2. Whether petitioners prove that they are entitled for compensation, to what extent?

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3. What order or award?”

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The appellant No.1/claimant being the husband of

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the deceased examined himself as PW-1 and marked

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several documents as Exhibits P1 to P13 including 13 documents as Exhibits P3 (Post-mortem report), P4

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(Mahazar), P5 (AIR report), P6 (charge-sheet), P8 (IMV report), P11 (Death Certificate of the deceased), P12 (Milk Producers Co-operative Society card of the deceased) and P13 (passbook of the deceased). No witness was produced by the respondents. They filed two documents Exhibit R1

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(Case-sheet) and Exhibit R2 (X-Ray).

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4.1 On the basis of the evidence adduced by the parties, the learned Tribunal gave a finding that the rash and negligent riding of the motorcycle was proved. In addition, the learned Tribunal found that although the appellants/claimants had sought for medical and treatment expenses of Rs.88,000/-, no documents in this behalf were produced and thus did not award any amounts on this account. The learned Tribunal thus awarded compensation in an amount of Rs.10,38,088/- along with interest at 6% per annum under the following heads:

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Sl.No.	Heads	Calculation
i	Monthly income	Rs.10,000/-
ii	25% of (i) above to be added	(Rs.10,000/- +
	towards future prospects	Rs.1,000/- = Rs.11,000)

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iii	Deduction of 1/3^rdof income as personal expenses of the deceased.	Rs.11,000/- - Rs.3,666/- = Rs.7,334/-
iv	Compensation after multiplier 13 is applied	Rs.7,334/-x12x11 =Rs. 9,68,088/-
v	Towards Loss of estate	Rs. 15,000/-
vi	Towards loss of consortium	Rs. 40,000/-
vii	Towards funeral expenses	Rs. 15,000/-
	TOTAL COMPENSATION AWARDED	Rs.10,38,088/-

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The learned Senior Counsel for the

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appellants/claimants has raised three challenges to the present award. He submits firstly that the deceased was a home maker and that she should have been given compensation at a higher amount. In this behalf he seeks to rely upon a judgment of the Supreme Court in Kirti and another vs. Oriental Insurance Company Limited¹ to submit that the monthly income adopted by the learned Tribunal to arrive at the compensation was less and at least Rs.15,000/- should have been adopted as the monthly income. Reliance on this behalf is also placed on Exhibit P.12 which is the Milk Producers Co-operative

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1 (2021) 2 SCC 166

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Society card of the deceased to submit that the deceased was regularly selling milk and earning approximately Rs.500/- per month and Rs.15,000/- per month by doing agricultural work. The learned Senior Counsel thus submits that the calculation of monthly income was wrongly undertaken by the learned Tribunal. Secondly, the learned Senior Counsel submits that no amounts have been awarded towards medical expenses despite evidence being produced in this behalf. Lastly, it is contented that the award of amounts on non-pecuniary heads is not in accordance with the judgment in the case of Sarla Verma (Smt.) and Others vs. Delhi Transport Corporation and another² and National Insurance Co.Ltd. Vs. Pranay Sethi³ .

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Learned counsel for the respondent No.2/Insurance

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Company on the other hand submits that the Impugned Order does not suffer from any infirmity. He however

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2 (2009) 6 SCC 121

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3 (2017) 16 SCC 680

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points out that no medical expenses were awarded since no documents were produced by the appellants/claimants.

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The question that arises for determination before this Court is, whether the appellants/claimants are entitled to any amounts as enhanced compensation?

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An examination of the documents before this Court reflects that the deceased was aged about 52 years at the time of her death. It is not disputed that the claim petition was filed by the husband and two children. In addition, there is also no dispute that the deceased passed away on account of rash and negligent riding by the rider of the offending vehicle. The learned Tribunal has found that there are three dependents of the deceased and has thus rightly deducted one-third for living expenses. Since the deceased was 52 years, the multiplier is to be taken as ‘11’. Compensation towards ‘loss of consortium’ though has been awarded, in terms of the judgment of Pranay Sethi at Rs.40,000/- per family member is to be awarded, given that the deceased was survived by her husband, two

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daughters and one son, the learned Tribunal ought to have awarded Rs.1,60,000/- .

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An examination of the Impugned Award shows that

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the learned Tribunal held that for the gratuitous services of the deceased, the income of the deceased can be taken at Rs.10,000/- per month. In addition, calculating ‘loss of dependency’ and ‘future prospects’ at 10%, the deceased calculated compensation of Rs.9,68,088/-. The learned Senior Counsel has relied on the Kirti case to hold that the income of a home maker must be fixed. It was held in

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the Kirti case that no exact calculation or formula can ascertain the value of the services an individual can provide gratuitously. However, the attempt of the Court in such matters should be towards determining the income of

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the deceased:

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“34. However, it must be remembered that all the above methods are merely suggestions. There can be no exact calculation or formula that can magically ascertain the true value provided by an individual gratuitously for those that they are near and dear to. The attempt of the court in such matters should therefore be towards determining, in the best manner possible, the truest approximation of the value added by a homemaker for the purpose of granting monetary compensation.

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35. Whichever method a court ultimately chooses to value the activities of a homemaker, would ultimately depend on the facts and circumstances of the case. The court needs to keep in mind its duty to award just compensation, neither assessing the same conservatively, nor so liberally as to make it a bounty to claimants [National Insurance Co. Ltd. v. Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] ; Kajal v. Jagdish Chand [Kajal v. Jagdish Chand, (2020) 4 SCC 413 : (2020) 3 SCC (Civ) 27 : (2020) 2 SCC (Cri) 577] ].

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xxx xxx xxx

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41. Therefore, on the basis of the above, certain general observations can be made regarding the issue of calculation of notional income for homemakers and the grant of future prospects with respect to them, for the purposes of grant of compensation which can be summarised as follows:

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41.1 Grant of compensation, on a pecuniary basis, with respect to a homemaker, is a settled proposition of law.

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41.2 Taking into account the gendered nature of housework, with an overwhelming percentage of women being engaged in the same as compared to men, the fixing of notional income of a homemaker attains special significance. It becomes a recognition of the work, labour and sacrifices of homemakers and a reflection of changing attitudes. It is also in furtherance of our nation's international law obligations and our constitutional vision of social equality and ensuring dignity to all.

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41.3 Various methods can be employed by the court to fix the notional income of a homemaker, depending on the facts and circumstances of the case.

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41.4 The court should ensure while choosing the method, and fixing the notional income, that the same is just in the facts and circumstances of the particular

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case, neither assessing the compensation too conservatively, nor too liberally.

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41.5 The granting of future prospects, on the notional income calculated in such cases, is a component of just compensation.”

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[Emphasis Supplied]

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9.1 The law in this behalf, has also been examined by

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the Supreme Court in Sunita & Ors. v. Vinod Singh &

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Ors.⁴ , wherein the Court reiterated the principles governing assessment of the contribution of a homemaker and grant of future prospects while awarding just compensation under the Motor Vehicles Act.

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“13. In Rajendra Singh (supra), the Court held:

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‘9. The first deceased was a housewife aged about 30 years. In Lata Wadhwa v. State of Bihar [Lata Wadhwa v. State of Bihar, (2001) 8 SCC 197], this Court had observed that considering the multifarious services rendered by housewives, even on a modest estimation, the income of a housewife between the age group of 34 to 59 years who were active in life should be assessed at Rs. 36,000/- p.a. A distinction was also drawn with regard to elderly ladies in the age group of 62 to 72 who would be more adept in discharge of housewife duties by age and experience, and the value of services rendered by them has been taken at Rs. 20,000/- p.a.

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10. In Arun Kumar Agrawal v. National Insurance Co. Ltd. [Arun Kumar Agrawal v. National Insurance Co. Ltd., (2010) 9 SCC 218 : (2010) 3 SCC (Civ) 664 :

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4 2025 SCC OnLine SC 586

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(2010) 3 SCC (Cri) 1313], the Tribunal assessed the notional income of the housewife at Rs. 5000 per month, but without any rationale or reasoning concluded that she was a non-earning member and reduced the same to Rs. 2500, which was affirmed [Arun Kumar Agrawal v. National Insurance Co. Ltd., FAFO No. 2408 of 2003, order dated 30-42004 (All)] by the High Court. Disapproving the same and restoring the assessed income, this Court observed at paras 26 and 27 as follows : (SCC pp. 237-38)

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“26. In India the courts have recognised that the contribution made by the wife to the house is invaluable and cannot be computed in terms of money. The gratuitous services rendered by the wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with the services rendered by others. A wife/mother does not work by the clock. She is in the constant attendance of the family throughout the day and night unless she is employed and is required to attend the employer's work for particular hours. She takes care of all the requirements of the husband and children including cooking of food, washing of clothes, etc. She teaches small children and provides invaluable guidance to them for their future life. A housekeeper or maidservant can do the household work, such as cooking food, washing clothes and utensils, keeping the house clean, etc., but she can never be a substitute for a wife/mother who renders selfless service to her husband and children.

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27. It is not possible to quantify any amount in lieu of the services rendered by the wife/mother to the family i.e. the husband and children. However, for the purpose of award of compensation to the dependants, some pecuniary estimate has to be made of the services of the housewife/mother. In that context, the term “services” is required to be given a broad meaning and must be construed by taking into account the loss of personal care and attention given by the deceased to her children as a mother and to her husband as a wife. They

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are entitled to adequate compensation in lieu of the loss of gratuitous services rendered by the deceased. The amount payable to the dependants cannot be diminished on the ground that some close relation like a grandmother may volunteer to render some of the services to the family which the deceased was giving earlier.”

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11. The notional income of the first deceased is therefore held to be Rs. 5000 per month at the time of death. The compensation on that basis with a deduction of 1/4th i.e. Rs. 15,000 towards personal expenses with a multiplier of 17 is assessed at Rs. 7,65,000. If the deceased had survived, in view of observations in Lata Wadhwa [Lata Wadhwa v. State of Bihar, (2001) 8 SCC 197], her skills as a matured and skilled housewife in contributing to the welfare and care of the family and in the upbringing of the children would have only been enhanced by time and for which reason we hold that the appellants shall be entitled to future prospects @ 40% in addition to the loss of consortium and future expenses already granted. We therefore assess the total compensation payable to the appellants in the first appeal at Rs. 11,96,000.’ (emphasis supplied) 14. We express our respectful agreement with Rajendra Singh (supra) and, accordingly, assess loss of future prospects at 25%, bearing in mind the dicta in Pranay Sethi (supra). In undertaking the exercise of computation of compensation, we have verily reminded ourselves that the Motor Vehicles Act, 1988 is a beneficial and welfare legislation and it is our duty to award ‘just compensation’ [refer Ningamma v. United India Insurance Company Limited, (2009) 13 SCC 710].”

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[Emphasis Supplied]

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14. We express our respectful agreement with Rajendra Singh (supra) and, accordingly, assess loss of future prospects at 25%, bearing in mind the dicta in Pranay Sethi (supra). In undertaking the exercise of computation of compensation, we have verily reminded ourselves that the Motor Vehicles Act, 1988 is a beneficial and welfare legislation and it is our duty to award

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‘just compensation’ [refer Ningamma v. United India Insurance Company Limited, (2009) 13 SCC 710].” [Emphasis Supplied]

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9.2. In the present case however, the learned Tribunal

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has undertaken calculations based on the evidence adduced and awarded Rs.10,000/- as the monthly income to calculate compensation. The accident took place in the year 2016. Based on this approximation, this Court does not find any infirmity with the calculation of monthly income for a home maker at Rs.10,000/- per month for an accident that took place in the year 2016. In fact, the

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notional income for the year 2016 as per the Karnataka State Legal Services Authority is Rs.9,500/- per month.

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In addition, an examination of the evidence produced

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reflects that no proof of medical expenses or no documents were produced in this behalf, although it is not disputed that after the accident, the deceased spent 4 days in the hospital. Thus, it is clear that the claimants

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would have incurred expenses for those four days including ambulance charges, etc. The Court deems it

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apposite to award Rs.25,000/- hospitalisation expenses. In addition, 10% escalation is also required to be added in terms of the settled law.

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Accordingly, and in view of the aforegoing

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discussions, the compensation awarded by the learned

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Tribunal is reassessed as follows:

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Sl.No.	Heads	Compensation
1	Towards Loss of dependency	Rs. 9,68,088/-
2	Towards Loss of estate	Rs. 16,500/-
3	Towards Loss of consortium	Rs. 1,76,000/-
4	Towards Funeral expenses	Rs. 16,500/-
5	Towards Hospitalisation expenses	Rs. 25,000/-
	Total	Rs.12,02,088/-
	Less awarded by Tribunal	Rs.10,38,088/-
	Enhanced compensation	Rs. 1,64,000/-

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11.1 Hence, the appellants/claimants are entitled to a total compensation of Rs.12,02,088/- along with interest at the rate of 6% per annum from the date of petition till the date of realization.

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Accordingly, the Court proceeds to pass the

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following:

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ORDER

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(i) The appeal is allowed in part ;

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(ii) The Impugned Judgment and Award dated

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05.10.2018 in MVC No.140/2017 passed by the learned II Addl. Senior Civil Judge & Addl. MACT, Udupi, is modified, to the extent that the claimants are entitled to enhanced compensation

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of Rs.1,64,000/- along with interest at the rate of 6% per annum in addition to Rs.10,38,088/- as awarded by the learned Tribunal.

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(iii) The remaining portion of the Impugned Award of the learned Tribunal remains undisturbed.

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(iv) The respondent No.2/Insurance Company shall deposit the enhanced compensation with

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interest applicable thereon, as awarded by the learned Tribunal, within a period of eight weeks

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from the date of receipt of a copy of this judgment;

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(v) On such deposit of compensation, the same shall be released in favour of the appellants/claimants, on filing of an appropriate application by the appellants/claimants for withdrawal of the enhanced amount.

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(vi) The Registry is directed to draw the modified Award accordingly.

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(vii) The Registry is directed to transmit a copy of

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this judgment to the concerned Tribunal along with its records.

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(viii) No order as to costs.

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Sd/(JAYANT BANERJI) JUDGE

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Sd/(TARA VITASTA GANJU) JUDGE