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NC: 2024:KHC:41545-DB MFA No.9/2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF OCTOBER, 2024 PRESENT THE HON'BLE MRS JUSTICE K.S.MUDAGAL AND THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO.9/2018 (MV-D) BETWEEN:
ANITHA ACHARYA AGED ABOUT 46 YEARS W/O LATE ANANTHAPADMANABHA ACHARYA
AKSHATHA ACHARYA AGED ABOUT 21 YEARS D/O LATE ANANTHAPADMANABHA ACHARYA
MINOR ABHISHEK ACHARYA AGED ABOUT 13 YEARS S/O LATE ANANTHAPADMANABHA ACHARYA
APPELLANT NO.3 IS MINORS REP: BY GUARDIAN MOTHER 1ST APPELLANT ANITHA ACHARYA
SARASWATHI ACHARYA AGED ABOUT 76 YEARS W/O LATE RANGACHAR
ALL ARE R/AT GOKARNA MATA NEAR SYNDICATE BANK, BASROOR VILLAGE KUNDAPURA TALUK-576 101 … APPELLANTS
(BY SMT.SWATI G HEGDE, ADVOCATE FOR SRI. PAVANA CHANDRA SHETTY H, ADVOCATE) AND:
NARESH ACHARYA S/O LATE RANGACHAR R/O GOKARNA MATA NEAR SYNDICATE BANK BASROOR VILLAGE KUNDAPURA TALUK – 576 101
Digitally signed by K S RENUKAMBA Location: High Court of Karnataka
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NC: 2024:KHC:41545-DB MFA No.9/2018
THE UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE: KUNDAPURA SRI LAXMI NARASIMHA COMPLEX OPP: KSRTC DEPOT, N.H-66 VADERHOBLI, KUNDAPURA UDUPI DISTRICT – 576 101 REP: BY ITS BRANCH MANAGER … RESPONDENTS
(BY SRI. O MAHESH, ADVOCATE FOR R2; NOTICE TO R1 IS DISPENSED WITH V/O DTD:22.07.2019)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 07.12.2017 PASSED IN MVC NO.42/2016 ON THE FILE OF THE ADDITIONAL DISTRICT JUDGE & ADDITIONAL MACT, UDUPI (SITTING AT KUNDAPURA), KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL AND HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
ORAL JUDGMENT (PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)
Though the matter is listed for admission, with consent of both Counsel, the matter is taken up for disposal.
“Whether the compensation awarded to the appellants/claimants under the impugned award is just?” is the question involved in this case.
Appellant No.1 is the wife, appellant Nos.2 and 3 are the children and appellant No.4 is the mother of the deceased Ananthapadmanabha Acharya.
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NC: 2024:KHC:41545-DB MFA No.9/2018
On 26.09.2015 at about 5:30 p.m when Ananthapadmanabha Acharya was traveling on motorcycle bearing registration No.KA-20-X-7274 as a pillion rider, the said motorcycle met with an accident near Panakada Katte of Basroor village, Kundapura Taluk. In the accident, Ananthapadmanabha Acharya suffered grievous injuries and succumbed to the injuries on his way to the hospital. At the relevant time, respondent No.1 was rider cum registered owner of the motorcycle bearing registration No.KA-20-X-7274. Respondent No.2 was insurer of the said vehicle.
On the complaint of one Sri Diwakara Bhat, Kundapura Traffic police registered FIR as per Ex.P1 against respondent No.1 in Crime No.118/2015. Appellants filed MVC No.42/2016 before the Addl. District Judge and Addl.MACT, Udupi, (sitting at Kundapura), Kundapura claiming compensation of Rs.50,00,000/- on the ground that the deceased was earning Rs.30,000/- by his avocation of priest and they were all dependent on his income. They claimed that the accident in question and death of Ananthapadmanabha Acharya occurred solely due to actionable negligence on the
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NC: 2024:KHC:41545-DB MFA No.9/2018
part of respondent No.1. Therefore, respondent Nos.1 and 2 are liable to compensate the damages.
Respondent No.1 did not contest the matter. Respondent No.2 alone contested the matter denying occurrence of accident, negligence on the part of respondent No.1, age, occupation, income of the deceased and its liability to pay the compensation.
Before the Tribunal to substantiate their claim, claimant No.1 was examined as PW.1, eyewitness to the incident was examined as PW.2. On behalf of claimants, Exs.P1 to P14 were marked. Respondents did not lead any oral evidence. On behalf of respondent No.2, insurance policy was marked at Ex.R1.
The Tribunal on hearing the parties by the impugned judgment and award held that the accident occurred due to actionable negligence on the part of respondent No.1. The Tribunal notionally assessed income of the deceased at Rs.10,000/- per month. Based on Ex.P14 Aadhaar Card of the deceased, considered his age 50 years, applied 13 multiplier and deducted 1/4th from the income of the deceased for his
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NC: 2024:KHC:41545-DB MFA No.9/2018
personal expenses and awarded compensation of Rs.11,70,000/- on the head of loss of dependency. The Tribunal in all awarded compensation of Rs.12,80,000/- on different heads as follows: Sl. No. Particulars Compensation awarded in Rs. 1. Loss of dependency 11,70,000/- 2. Loss of estate 15,000/- 3. Loss of Consortium 40,000/- 4. Loss of love and affection 40,000/- 5. Transportation and funeral expenses 15,000/-
Total 12,80,000/-
The Tribunal further held that the above said compensation is payable with interest at 6% per annum by respondent No.2/insurer. Claimants have preferred the above appeal challenging adequacy of compensation.
The finding of the Tribunal that the accident occurred due to actionable negligence on the part of respondent No.1/rider of motorcycle is not questioned by any of the respondents, therefore, that has attained finality.
So far as income of the deceased, Smt. Swati.G Hegde, learned Counsel submits that though there were no
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NC: 2024:KHC:41545-DB MFA No.9/2018
income tax returns or any proof of regular income of the deceased, Exs.P6 to P13 LIC premium paid certificate, SBI premium paid certificate, F.D certificates, Pigmy payment certificate, share transaction details etc., show that the deceased was capable of investing his money and that goes to show that he had good income. Therefore, Rs.30,000/- income claimed by the appellant should have been considered by the Tribunal.
Though the claimants contended that the deceased was working as priest and earning Rs.30,000/- per month, there was no document in proof of his regular income of Rs.30,000/- or he being employed in any institution as priest and getting such income. Further nobody was examined to prove the source of payments under Exs.P6 to P13. Therefore, the Tribunal was justified in assessing income of the deceased notionally. The Tribunal considered income of Rs.10,000/- per month which is not challenged by the respondents. Therefore, this Court has to uphold the same.
As per the post mortem report, the deceased was aged 49 years. In Ex.P-14 Aadhaar Card, his year of birth is shown as 1965, but no date and month is mentioned in the
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NC: 2024:KHC:41545-DB MFA No.9/2018
same. Therefore, age of the deceased has to be considered below 50 years. In view of the judgment of Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and Others1, the Tribunal ought to have added 25% to the income of the deceased by way of future prospects. Since the deceased had 4 dependants, as per the judgment of Supreme Court in the case of Sarla Verma and others vs. Delhi Transport Corporation and another2, 1/4th out of the income of the deceased has to be deducted towards his personal expenses. Therefore, his contribution to the family comes to Rs.9,375/- p.m (Rs.10,000/- + 25% - 1/4). The applicable multiplier is 13. Therefore, the compensation payable on the head of loss of dependency is Rs.14,62,500/- p.a. (Rs.9375 X 12 X 13).
In view of the judgment of Supreme Court in Pranay Sethi’s case referred to supra and in Magma General Insurance Company Limited vs. Nanu Ram & Ors3, the Tribunal ought to have awarded compensation of Rs.40,000/- each to the claimants/appellants Nos.1 to 4, therefore, the claimants are entitled to compensation of Rs.1,60,000/- on the head of
1 (2017) 16 SCC 680 2 (2009) 6 SCC 121 3 (2018) 18 SCC 130
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NC: 2024:KHC:41545-DB MFA No.9/2018
loss of consortium. On the heads of loss of estate and funeral expenses, the claimants are entitled to compensation of Rs.15,000/- each. Therefore, the just compensation payable is as follows: Particulars Amount (Rs.) Loss of dependency 14,62,500 Loss of consortium 1,60,000 Loss of estate 15,000 Funeral expenses 15,000 Total 16,52,500 Awarded by Tribunal 12,80,000 Enhanced compensation 3,72,500
The claimants are entitled to enhanced compensation of Rs.3,72,500/- with interest at 6% p.a. on the enhanced compensation. The appeal deserves to be allowed in part. Hence, the following: ORDER
i. The appeal is allowed in part. ii. The claimants are entitled to enhanced compensation of Rs.3,72,500/- with interest thereon at 6% p.a. from the date of petition till realization.
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NC: 2024:KHC:41545-DB MFA No.9/2018
iii. Respondent No.2 - insurer shall deposit the said amount within four weeks from the date of receipt of copy of this order. iv. The order of the Tribunal with regard to apportionment and investment is maintained. v. Registry shall transmit the TCRs to the Tribunal forthwith.
Sd/- (K.S.MUDAGAL) JUDGE
Sd/- (VIJAYKUMAR A. PATIL) JUDGE
PKN,BSR List No.: 1 Sl No.: 29