ANJANADEVI vs. DUDANI EXPORTERS PVT.TD.,

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 22ND DAY OF JULY 2021 BEFORE THE HON’BLE MR.JUSTICE RAVI V.HOSMANI

MFA NO.25044/2013(MV)

BETWEEN:

BOTH ARE R/O: PLOT NO.235, 5TH CROSS, RAJARAM NAGAR, TILAKWADI, BELAGAVI. DIST: BELAGAVI.

...APPELLANTS (BY SRI.: SHIVAKUMAR S BADAWADAGI, ADV.)

AND:

THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLE ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED: 30.06.2011, PASSED IN MVC. NO.1741/2010 ON THE FILE OF THE FAST

2 TRACT COURT-I AND MEMBER ADDITIONAL MACT BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.,

THIS APPEAL IS COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT

Challenging the judgment and award dated 30.06.2011 passed by the Presiding Officer, FTC-I and Member, Additional MACT (hereinafter referred to as ‘tribunal’), Belgaum in MVC No.1741/2010, this appeal is filed under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as M.V. Act). 2. Though this appeal is listed for admission, with the consent of learned counsel for parties, it is taken up for final disposal. 3. For the sake of convenience, the parties will be referred to as per their respective ranks before the tribunal. 4. Brief facts as stated are that on 20.05.2010, at 1.45 p.m., Subhash was crossing the road within the limits of Kadrolli village. At that time, a vehicle bearing No.KA-02/MC-1600 came

3 from Dharwad in rash and negligent manner, dashed against said Subhash. Due to the accident, Subhash died on the spot. As on the date of death, he was 59 years of age, working as teacher in Government High School and was earning Rs.24,000/- per month. Alleging loss of dependency due to his untimely death, his wife and son filed claim petition under Section 166 of M.V. Act, against the owner and insurer of offending vehicle. 5. On service of notice, respondent No.1-owner did not contest the claim and was placed exparte. Respondent No.2-insurer entered appearance and filed objections denying the claim petition averments. The age, occupation and income of deceased was also denied. The negligence on the part of driver of the insured vehicle was denied. Though issuance of policy was admitted, it was contended that the same was subject to terms and conditions and there was violation of the same as the driver did not have valid driving licence as on the date of accident. 6. Based on pleadings, following issues were framed : 1. Whether the petitioners prove that on 20-5-2010 at about 3.45 p.m., when the deceased was

4 crossing Dharwad-Belagavi road, within the limits of Kadrolli village TOYOTA COROLLA vehicle No.KA-02/MC-1600 dashed to the deceased, who died on the spot due to rash and negligent driving by its owner? 2. Whether the petitioners are entitled for compensation as prayed for in the petition? 3. What order?

5 10. Sri. S.S. Sajjan, learned counsel appearing for Sri. S.S. Badawadagi, for the claimants/appellants submitted that compensation determined by the tribunal was not commensurate to the facts and evidence on record. The tribunal committed grave error in not awarding future prospects. It also erred in not taking gross salary of deceased, though he was working as a Government High School teacher. Enhancement was also sought under the conventional heads. 11. On the other hand, Sri. M.K. Soudhagar, learned counsel for the respondent-insurer submitted that the award passed by tribunal on overall consideration is justified. There is no scope for enhancement. Learned counsel relying upon the decision of Division Bench of this court in MFA No.20727/2010 and other connected matters, disposed of on 08.12.2016, submits that deceased admittedly was at the fag end of the service, was not having more than two months of service, the said aspect has been spoken to by PW2-Head Master of the school, as noted by tribunal. Learned counsel therefore, submits that as per the decision of the Hon’ble Supreme Court in the case of Puttamma and others V/s.

6 K.L.Narayana Reddy and another, reported in 2014 ACJ 526, split multiplier method has to be applied and if the compensation is recomputed by applying split multiplier method, then there would be no scope for enhancement. relevant para of the said judgment is extracted hereunder : “20. Therefore, on considering the judgments referred to above what can be noticed very much is that for applying the split multiplier method, reasons must be given. Without assigning any reasons, the compensation towards “loss of dependency” cannot be determined by splitting the multiplier. In fact, this is the ratio laid down by the Hon’ble Supreme Court in the case of K.R. Madhusudhan and in the case of Puttamma, the same has been reiterated.” 12. Learned counsel for appellants/claimants in reply relying upon the decision of Division Bench of this court in MFA No.4474/2013, disposed of on 26.08.2020, has recently held that split multiplier method cannot be applied in the absence of specific reasons and evidence on record, as the regular method as indicated

7 in Sarala Varma and others V/s. Delhi Transport Corporation and Another, reported in (2009) 6 SCC 1216 should be applied. 13. From the above submissions, occurrence of the accident involving insured vehicle resulting in death of husband of claimant No.1 due to rash and negligent driving of the car by its driver of the insured vehicle is not in dispute. Issuance of policy as on the date of accident, are also not in dispute. The insurer has not challenged the award. Claimants are in appeal seeking enhancement of compensation, Therefore, the point arises for consideration in this appeal is : “Whether the claimants are entitled for enhancement of compensation as sought for ?”

8 Rs.24,510/-. It is submitted that out of it, a sum of Rs.200/- is deducted towards professional tax, no amount is deducted towards income tax. It is submitted at the Bar that for the relevant year, an amount of Rs.1,60,000/- was the non taxable income. From Rs.1,60,000/- to Rs.5,00,000/- the tax to be assessed at 10%. If monthly income is Rs.24,510/- ; the annual income would be Rs.2,94,120/-. If the non taxable amount is deducted from the same and if the remaining 10% held to be deducted as income tax, it would be Rs.1,34,120/-. When the same is apportioned then it would be Rs.1,11,117/-. Therefore, monthly income of deceased after deduction of tax would be : Rs. 24,510/- Rs. 200/- Rs. 1,117/- Rs. 23,193/-

9 added towards future prospects and the claimants are dependents, who are two in numbers as deduction towards personal expenses would be 1/3. Therefore, the loss of dependency will be as follows:

17,781.3X9X12=19,20,380/-

10 the Hon’ble Supreme Court in Magma General Insurance Company Limited V/s Nanu Ram @ Chuhru Ram and others, reported in 2018 ACJ 2782, claimant No.1-wife would be entitled compensation towards loss of consortium at Rs.40,000/-, claimant No.2 would be entitled compensation towards loss of filial consortium at Rs.40,000/-. They would also be entitled to a sum of Rs.15,000/- towards funeral expenses and Rs.15,000/- towards loss of estate. Since more than three years have lapsed after the decision of the Hon’ble Supreme Court in the case of National Insurance Company Limited V/s. Pranay Sethi and others, reported in AIR 2017 SC 5157, the claimants would also be entitled to addition of 10% of award under conventional heads, which comes to Rs.11,000/-. Therefore, the award under conventional heads would be Rs.1,21,000/-. Therefore, claimants would be entitled reassessed compensation as under :

Loss of dependency Rs.19,20,380/-

Conventional heads Rs. 1,21,000/-

Total Rs.20,41,380/-

11 17. In view of the above, point for consideration answered in the affirmative as above. 18. In the result, appeal is allowed in part with costs. The compensation is enhanced to Rs.20,41,380/- as against Rs.6,06,000/- awarded by tribunal. 19. Insofar as rate of interest is concerned, a division Bench of this court in Shriram General Insurance Company Ltd., Rajasthan V/s. Sri.Laxmi and others reported in 2018(4) AKR 808 has held that the rate of interest in accident claims has to be @ 6% p.a. as per Section 34 of the Code of Civil Procedure, 1908. Hence, the rate of interest is reduced from 9% awarded by the tribunal to 6% p.a. from the date of claim petition till date of deposit. 20. Insurer is directed to deposit the same before the tribunal within six weeks from date of receipt of copy of this judgment.

12 21. The direction issued by tribunal regarding apportionment will apply to enhanced compensation also proportionately. 22. Out of compensation awarded, in respect of claimant No.1, an extent of 75% share shall be kept in fixed deposit initially for a period of five years and remaining 25% shall be released in favour of claimant No.1 on proper identification. Claimant No.1 is entitled to draw periodical interest. The entire award of compensation in respect of claimant No.2 shall be released in his favour.

Sd/- JUDGE

MNS/