LAKSHMI BAI W/O SRINIVAS RAO ALAVANDIKAR vs. G ADINARAYAN S/O G. KONDANNA

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 7TH DAY OF DECEMBER, 2021 BEFORE THE HON’BLE MR.JUSTICE RAVI V. HOSMANI

M.F.A.NO.104164/2018 (MV-D) C/W. M.F.A.NO.104162/2018 (MV - I) M.F.A.NO. 104163/2018 (MV - ) M.F.A.NO.104165/2018 (MV -I) M.F.A.NO. 101411/2020 (MV) In MFA No.104164/2018

BETWEEN:

1.Smt. Padma W/o S Thrinatha Reddy Aged: 45 years Occ: Nil.

All are r/o Sangapur village, Tq: Ganagvthi, Dist: Koppal. ...APPELLANTS.

(BY SHRI RAJASHEKAR GUNJALLI , ADVOCATE.)

2 AND:

…Respondents.

(BY SHRI B.D. NARASAGOND,ADVOCATE, FOR R.1 & R2) (BY G.N. RAICHUR, ADVOCATE FOR R.3)

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, AGAINSGT THE JUDGMENT AND AWARD DATED 09.10.2018 PASSED IN MVC NO.363/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL, GANGAVATHI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

3 In MFA No.104162/2018

BETWEEN:

1(a) Sridhar Alavandikar S/o Srinivas Age: 57 years R/at 1121246 Ward No.1, Satynarayanapee Gangavathi, Dist: Koppal ...APPELLANT. (BY SHRI RAJASHEKAR GUNJALLI , VIJAYA S CHINWAR ADVOCATES)

AND:

4 Divisional Office, Priyadarshini Hotel Compound Station Road, Hospete, Dist: Ballary.

…Respondents.

(BY SHRI B.D. NARASAGOND, ADVOCATE, FOR R.1 & R2) (BY G.N. RAICHUR, ADVOCATE FOR R.3)

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, AGAINSGT THE JUDGMENT AND AWARD DATED 09.10.2018 PASSED IN MVC NO.364/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL, GANGAVATHI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. In MFA No.104163/2018

BETWEEN:

Both r/o Gangavathi,Tq: Gangavathi Dist: Koppal. ...APPELLANTS.

(BY SHRI RAJASHEKAR GUNJALLI , ADVOCATE)

AND:

5 1. G Adinarayan S/o G Kondanna Aged about 45 years Occ: Driver of lorry bearing No.AP-21/TY-3108 R/o Edavaulaparthi village, Bukkarayasamudram Mandal Dist: Anantapur, Andra Pradesh State,

…Respondents.

(BY SHRI B.D. NARASAGOND, ADVOCATE, FOR R.1 & R2) (BY G.N. RAICHUR, ADVOCATE FOR R.3)

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, AGAINSGT THE JUDGMENT AND AWARD DATED 09.10.2018 PASSED IN MVC NO.365/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL, GANGAVATHI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

6 IN MFA.NO.104165/2018:

BETWEEN:

K Venkatesh S/o Guruswamy Aged about 47 years Occ: Business, R/o Gangavagthi Tq: Gangavathi, Dist: Koppal ...APPELLANT.

(BY SHRI RAJASHEKAR GUNJALLI , ADVOCATE)

AND:

…Respondents.

(BY SHRI B.D. NARASAGOND, ADVOCATE, FOR R.1 & R2) (BY G.N. RAICHUR, ADVOCATE FOR R.3)

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, AGAINSGT THE JUDGMENT AND AWARD DATED 09.10.2018 PASSED IN MVC NO.360/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL, GANGAVATHI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

IN MFA.NO.101411/2020:

BETWEEN:

Appellants No:2 & 3 being Minors Are represented by their minor guardian-Mother Appellant No.1: Smt. A Srividya

8 All are R/o Veerasavarkar Marga, Gangavathi, Tq: Gangavathi, Dt. Koppa, P.C.No.583 235l ...APPELLANTS. (BY SHRI P.G. MOGALI, ADVOCATE)

AND:

…Respondents. (BY SHRI B.D. NARASAGOND, ADVOCATE, FOR R.1 & R2) (BY G.N. RAICHUR, ADVOCATE FOR R.3)

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, AGAINSGT THE JUDGMENT AND AWARD DATED 09.10.2018 PASSED IN MVC NO.375/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL, GANGAVATHI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

JUDGMENT Though these appeals are listed for admission, with consent of learned counsel for parties, they are taken up together for final disposal. 2. Challenging judgment and award dated 09.10.2018 passed by Senior Civil Judge & MACT, Gangavathi, (hereinafter referred to as ‘Tribunal’), in MVC Nos.363/2016, 364/2016, 365/2016, 360/2016 and MVC.No.375/2016, these appeals are filed. 3. Brief facts as stated are that on 26.12.2015, one Bheemanagouda Partha Patil was traveling in Maruti Omni Van bearing registration No.KA -37/M-3215 with six other inmates. At about 2 a.m. on Ananthapur-Chennai (N.H.42), it met with an accident when lorry bearing registration No.AP-21/TY-3108 dashed it. Due to rash and negligent driving by its driver Bheemana Gouda Patil died on spot, while remaining three

10 sustained grievous injuries. Claiming compensation, three separate claim petitions were filed under Section 166 of Motor Vehicle Act, (hereinafter referred to as ‘Act’) 1988.

11 rash and negligent driving of lorry by its driver and after assessing compensation, held respondent No.2 liable to pay compensation by discharging liability of respondent no.3 - insurer on the ground that driving licence held by driver of lorry was LMV (transport), while he was driving Heavy goods vehicle (HGV). Not satisfied with quantum of compensation and also assailing finding of tribunal on liability, claimants are in appeal.

13 case for enhancement. As both children of deceased have attained age of majority, claimant no.1 - wife would be only dependent and therefore, deduction towards personal expenses would be ½.

14 10. Re. Point No.1 (Common in all appeals): Ex.R3 –Driving licence extract got marked by insurer clearly establishes that driver of lorry was holding LMV (transport) driving licence. In view of amendment to Section 10(1)(e) of the M.V.Act, by Act No.54 of 1994 substituting classification of vehicles brought under category of transport vehicle and earlier classification HGV and LGV were substituted. Therefore, driver having LMV (transport) driving licence would be authorized to drive any goods vehicle. Amendment to provisions was w.e.f. 14.1.1994 and said amendment was in force as on date of accident. Therefore, insurer cannot escape liability. Hence, finding of tribunal regarding liability requires to be set aside. Insurer would be liable to pay compensation to claimants. Point no.1 for consideration is answered in negative. 11. Point No.2 in MFA No.104164/2018(MVC No.363/2015): Admittedly, deceased Thrinath Reddy was an agriculturist/ astrologer . Though is monthly income was stated to be Rs.40,000/- ,there is no evidence led to establish same. Income tax returns are also not filed. In the absence of any

15 specific evidence, tribunal would be justified in assessing monthly income on notional basis. Accident occurred on 26.12.2015. Notional income for 2015 is Rs.8,000/- as per the norms adopted for settlement cases before Lok Adalth. Claimants are wife and two unmarried daughters. Deceased was aged about 53 years, an agriculturist i.e., self employed. As per decision of Hon’ble Supreme Court in the decision of National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in AIR 2017 SC 5157, addition of 25% has to be awarded towards future prospects. Deduction towards personal expenses has to be at ‘1/3’, as deceased was married and having unmarried daughter and multiplier applicable would be ‘11’.Thus compensation towards loss of dependency would be Rs.8,000 + 25% - 1/3 X 12 X 11=Rs.8,80,000/-. In addition, claimant no.1 would be entitled to Rs.40,000/- towards ‘spousal consortium’. Claimants No.2 and 3 are entitled to Rs.40,000/- each towards ‘parental consortium’; Further, claimants are entitled to Rs.15,000/- towards ‘funeral expenses and Rs.15,000/- towards ‘loss of estate’. Since more than three years have been lapsed after rendering decision in Pranay

16 Sethi’s case, there has to be addition of 10% to award under conventional heads, which works out to Rs.1,65,000/-. Thus, claimants are entitled to total compensation of Rs.10,45,000/- (Rs.8,80,000 /-+ 1,65,000/-). Accordingly, point for consideration is answered partly in affirmative. 12. In MFA No.104162/2018 (MVC No.364/2016): This appeal is field challenging award in MVC No.364/2016 filed for compensation towards death of Bheemasenrao, aged about 62 years working as a tax consultant. Learned counsel for claimant submitted that income tax returns of deceased were filed as per Exs.P.44 to P.48. Tribunal erroneously considered income tax return for assessment year 2013-2014 instead of income tax return for 2015-2016. Though said submission is opposed by learned counsel for insurer on the ground that accident occurred on 26.12.2015. Income tax return of immediate preceding year has to be considered as done by tribunal. But, from Ex.P.47 – income tax returns for 2015-2016 is filed on 07.08.2015, which is prior to date of

17 accident. Therefore, tribunal committed material irregularities in taking the income tax for previous year for assessment of compensation. Gross annual income declared in Ex.P.47 is Rs.3,47,816/-. For said assessment year income up to Rs.3,00,000/- was exempted from income tax. Income above Rs.3,00,000/- attracts tax at 10% i.e., Rs.47,816/- X 10% = Rs.4,781/- rounded off to Rs.4,700/- per annum and Rs.2,400/- per annum towards professional tax was deducted, which works out to Rs.5,91,391/- per month and Rs.200/- per month. Monthly income of deceased would be Rs.3,47,816/- divided by 12 = Rs.28,984/-. After deducting income tax and professional tax of Rs.591/-, it would be Rs.28,393/-. Deceased was aged 62 years. Claimant is mother, therefore, deduction towards personal expenses will be ‘½’. There would be no addition of ‘future prospects’. Multiplier applicable would be ‘7’. ‘Loss of dependency’ would be Rs.28,983 – ½ X 12 X 7 = Rs.11,92,506/-. Claimant would be entitled to Rs.70,000/- towards conventional heads (Rs.40,000/- (consortium) + 15,000/- (funeral expenses and

18 Rs.15,000/- towards ‘loss of estate’). Since more than three years have been lapsed after rendering decision in Pranay Sethi’s case, there has to be addition of 10% award under conventional heads, which comes to Rs.77,000/-. Thus, claimants are entitled to total compensation of Rs.12,69,506/- (Rs.11,92,506/- + 77,000/-). Accordingly, point for consideration is answered partly in affirmative. 13. In MFA No.104163/2018 (MVC No.365/2016): This appeal is filed against award passed in MVC No.365/2016 in respect of death of Bheemanagouda Partha Patil, a businessman/agriculturist, aged 48 years. Claimants are wife and dependent son, aged 19 years. Though, learned counsel for claimants submitted that monthly income of deceased at Rs.40,000/- established by production of record of rights of lands held by him, tribunal considered meager monthly income at Rs.6,000/-. On the other hand learned counsel for insurer submitted that monthly income claimed would attract income tax, but

19 income tax returns were not filed. Therefore, tribunal was justified in taking notional income. Admittedly, accident occurred on 26.12.2015. Notional income for said period is Rs.8,000/-. Therefore, tribunal would not be justified in taking it at Rs.6,000/-. Claimants are wife and dependant son. Deceased was aged 48 years and self- employed. As per decision of Hon’ble Supreme Court in the case of ‘National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in AIR 2017 SC 5157, there has to be addition of 25% towards ‘future prospects’. Deduction towards ‘personal expenses’ has to be at ‘1/3’, and multiplier applicable would be ‘13’. Therefore, ‘loss of dependency’ would be Rs.8,000/- + 25% - 1/3 X 12 X 13 = Rs.10,40,000/-. In addition, claimant no.1 would be entitled to Rs.40,000/- towards ‘spousal consortium’, claimant No.2 would be entitled to Rs.40,000/- towards ‘parental consortium’. In addition, they would be entitled to Rs.15,000/- towards ‘funeral expenses’ and Rs.15,000/- towards ‘loss of estate’. Since more than three years have been lapsed after rendering decision in

20 Pranay Sethi’s case, there has to be addition of 10% to award under conventional heads. Thus, claimants are entitled to total compensation of Rs.11,61,000/- (Rs.10,40,000/- + 1,21,000/-). Accordingly, point for consideration is answered partly in affirmative. 14. In MFA No.104165/2018 (MVC No.360/2016): This appeal is filed against award passed in MVC No.360/2016 in respect of injury caused to K Venkatesh, an agriculturist, aged 46 years. As per Ex.P.56 - disability certificate, claimant sustained fracture of middle 1/3 of left femur. Dr. Mallikarjun Kunchigi, who examined claimant noted that fracture was mal-united and assessed his permanent physical disability at 26 to 28% to whole body and 38 to 40% to affected part. Though Shri Rajashekar Gunjali learned counsel for claimant submitted that assessment of his functional disability at 10% was on lower side, as also award under other heads. Shri G.N.Raichur, learned counsel for respondent-insurer would

21 oppose same on the ground that disability would not affect his earning capacity and award on over all consideration was just and proper. 15. Admittedly, claimant was an agriculturist. There is no dispute about his age. In order to establish his income, claimant has produced statement of income submitted along with his income tax return and income tax returns. Tribunal has taken annual income at Rs.1,95,500/- and determined monthly income of Rs.16,292/-. Taking note of the assessment of limb disability to an extent of 38 to 40% and 26 to 28 % to whole body, tribunal considered functional disability to an extent of 10% and awarded sum of Rs.2,54,155/-, which appears just and proper. Tribunal has also awarded Rs.28,211/- towards medical expenses for the bills produced. It has also awarded Rs,10,000/- towards loss of amenities; Rs.39,876/- towards ‘loss of earning during treatment’ and Rs.10,000/- towards ‘food, attendant conveyance and other incidental charges’ which are also just and proper. But claimant has sustained fracture of left femur, which is a major fracture. Therefore, award of

22 Rs.10,000/- towards p and s would be inadequate, it would be just and proper to award a sum of Rs.35,000/- towards same instead. Thus, point no.2 is answered partly in affirmative holding claimant entitled for total compensation of Rs.3,77,242/-. 16. In MFA No.101411/2020 (MVC No.375/2016): This appeal is filed against award passed in MVC No.375/2016 in respect of death of A Vishwajith Shetty, aged 34 years, in private service. Though, learned counsel for claimant/appellant submitted that deceased was survived by wife, two minor children, mother and younger brother, tribunal awarded sum of Rs.50,000/- towards ‘loss of consortium’ and Rs.60,000/- towards ‘love and affection’, and sought enhancement only insofar as these heads. But learned counsel for insurer would oppose same on the ground that tribunal had added 50% towards future prospects, though deceased was in private service and tribunal has also awarded Rs.25,000/- towards ‘funeral expenses’ and Rs.25,000/- ‘loss of estate’

23 which were excessive and would in any case, set off enhancement under other heads.

24 Hence, I pass following: ORDER i) MFA.No.104164/2018 C/w MFA. No.104162/2018, MFA.No.104163/2018, MFA.No.104165/2018 and MFA.No.101411 of 2018 are allowed in part with cost.

ii) In MFA No.101164/2018 compensation is enhanced from Rs.6,58,000/- to Rs.10,45,000/- with interest at 6% per annum from date of petition till deposit. Respondent no.3 - Oriental insurance company is held liable to pay compensation. It is directed to deposit the compensation within six weeks from date of receipt of certified copy of this order. On deposit, out of total compensation 25% each is apportioned in favour of two daughters and remaining 50% is apportioned to claimant no.1-wife. The proportion of deposit and release of compensation in favour of claimants

25 would be in the same proportion as in the award of tribunal.

iii) In MFA No.104162/2018 claimants are held entitled for Rs.12,69,506/-. Respondent no.3 - Oriental insurance company is held liable to pay compensation. It is directed to deposit the compensation within six weeks from date of receipt of certified copy of this order. On deposit, 75% of enhanced compensation to be kept in fixed deposit in any nationalised bank or post office for a period of three years and remaining 25% to be released on proper identification.

iv) In MFA No.104163/2018 claimants are held entitled for total compensation of Rs.11,61,000/-. Respondent no.3 - Oriental insurance company is held liable to pay compensation. It is directed to deposit the compensation within six weeks from date of receipt of certified copy of this order.

26 On deposit, out of enhanced compensation, claimant No.1 - wife is entitled for 75% and remaining 25% to claimant no.2 -son. Out of the amount apportioned in favour of claimant no.1, 75% to be kept in Fixed deposit in any Nationalised bank or Post office for a period of five years and remaining 25% to be released on proper identification. Entire compensation apportioned in favour of claimant no.2 is ordered to be released.

v) MFA No.104165/2018 on reassessment claimant is held entitled for additional compensation of Rs.25,000/-. Respondent no.3 - Oriental insurance company is held liable to pay compensation. It is directed to deposit the compensation within six weeks from date of receipt of certified copy of this order. Entire enhanced compensation is ordered to be released on proper identification.

vi) In MFA No.101411/2020, Respondent no.3 - Oriental insurance company is liable to

27 pay compensation and directed to deposit compensation within six weeks from date of receipt of certified copy of this order. The direction issued by tribunal regarding apportionment, proportion of deposit and release of compensation shall be as ordered by tribunal.

Sd/- JUDGE

Psg*