Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 1279 (KAR)

Parvati v. Anil

2020-06-30

S.G.PANDIT, V.SRISHANANDA

body2020
JUDGMENT S.G. Pandit, J. - The claimants are before this Court in this appeal not being satisfied with the quantum of compensation awarded and also praying to shift the liability from respondent No.1 to respondent No.4 Insurance Company under the judgment and award dated 21.11.2014 in M.V.C. No.143 of 2009 on the file of the Member, I-Additional Motor Accident Claims Tribunal, Karwar, (for short 'the Tribunal'), and praying for enhancement of the compensation. 2. The claimants are the wife and son of the deceased Shankar S/o. Subray Bhat. The accident occurred on 27.02.2008 involving the motorcycle bearing No.KA-30/K-8171 and KA-31/K-7164 and the accidental death of Shankar S/o.Subray Bhat is not in dispute in this appeal. The claimants are in appeal praying for enhancement of compensation and also shifting the liability from respondent No.1, the owner to the insurer of the motorcycle bearing No. KA-31/K-7164 to respondent Nos.4 and 5. 3. The tribunal on considering the material on record awarded total compensation of Rs.30,48,624/-with interest at the rate of 6% p.a. from the date of petition till realization on the following heads: 1) Loss of dependency Rs.30,03,624/- 2) Loss of consortium & love Rs.20,000/- and affection 3) Funeral expenses Rs.10,000/- 4) Loss of estate Rs.10,000/- 5) Transportation of dead body Rs.5,000/- TOTAL Rs.30,48,624/- 4. While assessing the above compensation, the tribunal assessed the monthly income of the deceased at Rs.24,068/- and added 30% of the assessed income towards future prospects, since the deceased was 47 years old and also deducted 1/3rd towards his personal expresses by applying the multiplier of 13. 5. Heard the learned counsel for the appellants and the learned counsel for respondent Nos.1 to 4. Perused the Trial Court records. 6. Learned counsel for the appellants would submit that the Tribunal failed to award proper compensation on the conventional head and further submits that the compensation awarded on the head 'love and affection' is on the lower side. He further submits that the second claimant is the son of the deceased and has lost parental love. Hence, he would be entitled to Rs.40,000/- towards parental consortium, relying on the decision of the Hon'ble Apex Court in the case of Magma General Insurance Company Ltd. Vs. Nanuram and Others, (2018) ACJ 2782 . He also submits that the third claimant, the mother of the deceased died during the pendency of the appeal. Hence, he would be entitled to Rs.40,000/- towards parental consortium, relying on the decision of the Hon'ble Apex Court in the case of Magma General Insurance Company Ltd. Vs. Nanuram and Others, (2018) ACJ 2782 . He also submits that the third claimant, the mother of the deceased died during the pendency of the appeal. He further submits that the tribunal has fixed the liability on respondent NO.1, the owner of the motorcycle bearing No.KA-30/K-8171. It is his submission that the tribunal committed the error in saddling the liability on respondent No.1, the owner of motorcycle bearing No.KA-30/K-8171. 7. Learned counsel for the appellant would submit that the deceased was pedestrian and the motorcycles bearing Nos.KA-31/K-7164 and KA-30/K-8171 colluded each other and as the rider of the motorcycle bearing No/ KA-31/K-7164 lost control, dashed to the deceased. Due to which he sustained injuries and succumbed to the injuries subsequently, as such he is third party to the motorcycle bearing No.KA-31/K-7164. Hence, the insurer of the motorcycle bearing No.KA-31/K-7164 is liable to pay the compensation and to recover the same from its owner. Thus, he prays for shifting the liability from respondent No.1 to respondent Nos.4 and 5, the owner and the insurer of the motorcycle bearing No.KA-31/K-7164. 8. Per contra, learned counsel for respondent Nos.4 and 5 submits that the compensation awarded by the tribunal is just compensation, which needs no interference. It is submitted that the deceased was working as a lecturer in Government College and as per Ex.P6, the salary certificate, the monthly income of the deceased is taken correctly at Rs.24,068/, which needs no interference. With regard to shifting of the liability, the learned counsel relying on Ex.P1-FIR submits that the deceased was proceeding as a pillion rider in the motorcycle bearing No.KA-31/K-7164 and he was not a pedestrian, as contended by the learned counsel for the claimant. 9. Having heard the learned counsel appearing for the parties and on perusal of the Trial Court records, the following points would arise for our consideration: (i) Whether the tribunal is justified in saddling the liability on respondent No.1, the owner of the motorcycle bearing No.KA-30/K-8171? (ii) Whether the claimants would be entitled for enhancement of compensation? 10. We answer the above points in the affirmative for the following reason: 11. (ii) Whether the claimants would be entitled for enhancement of compensation? 10. We answer the above points in the affirmative for the following reason: 11. The accident involving the motorcycles bearing Nos.KA-30/K-8171 and KA-31/7164 and the accidental death of Shankar S/o.Subray Bhat on 27.02.2008 is not in dispute in this appeal. It is an admitted fact that the motorcycle bearing No.KA-30/K-8171 was not covered with the Insurance and the rider of the motorcycle was not having license as on the date of accident. Learned counsel for the appellant contended that he was proceeding as pedestrian and the motorcycle bearing No.KA-31/K-7164 was dashed to the deceased, due to which he sustained injuries and succumbed to the said injuries. In support of his contention, no materials have been placed on record. The rider of the motorcycle bearing No.KA-31/K-7164 would have been the best witness to establish whether the deceased was proceeding as a pedestrian or as pillion rider. In the absence of material to establish that the deceased was a pedestrian and not pillion rider, the tribunal is justified in saddling the liability on respondent No.1, the owner of the motorcycle bearing No.KA-30/K-8171. 12. The deceased was aged about 47 years and was working as a lecturer in Government College. Ex.P6, the salary certificate is placed on record to establish the income of the deceased. As per Ex.P6, the income of the deceased is assessed at Rs.24,068/- per month after deducting Professional Tax and Income Tax, which needs no interference. Further, the tribunal added 30% towards future prospects, which is also proper and correct, in view of the decision of the Hon'ble Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and others, (2017) AIR SC 5157 , which also needs no interference. The tribunal deducted 1/3rd towards personal expenses and also adopted multiplier of 13 taking the age of the deceased as 47 years, which needs no interference. The tribunal has awarded compensation of Rs.45,000/- towards conventional heads. The Hon'ble Apex Court in the case of Pranay Sethi and others supra has held that the claimant would be entitled for Rs.70,000/- on conventional heads . Hence, the claimants would be entitled to Rs.70,000/- on conventional heads as against Rs.45,000/- awarded by the Tribunal. 13. The tribunal has awarded compensation of Rs.45,000/- towards conventional heads. The Hon'ble Apex Court in the case of Pranay Sethi and others supra has held that the claimant would be entitled for Rs.70,000/- on conventional heads . Hence, the claimants would be entitled to Rs.70,000/- on conventional heads as against Rs.45,000/- awarded by the Tribunal. 13. Further the second claimant is the son of the deceased, who was aged about 15 years as on the date of accident, who has lost the parental love for rest of his life. Hence, he would be entitled for Rs.40,000/- towards parental consortium as held by the Hon'ble Apex Court in the case of Magma General Insurance Company Ltd. Supra. Thus, the claimants would be entitled for the following modified compensation: 1) Loss of dependency Rs.30,03,624/- 2) Parental consortium to second claimant Rs.40,000/- 3) Towards conventional heads Rs.70,000/- TOTAL Rs.31,13 ,624/- 14. Thus, the claimants would be entitled for total compensation of Rs.31,13,624/- as against Rs.30,48,624/- awarded by the Tribunal with interest at 6% per annum from the date of petition till the date of realization. The liability saddled on respondent No.1 is not disturbed, which remains as ordered by the tribunal. Accordingly, we proceed to pass the following: ORDER (i) The appeal is allowed in part. (ii) The judgment and award of the Tribunal is modified to the extent that the claimants would be entitled for total compensation of Rs.31,13,624/- as against Rs.30,48,624/- awarded by the Tribunal with interest at the rate of 6% per annum from the date of petition till realization. (iii) The apportionment, deposit and disbursement shall be as ordered by the Tribunal in the same proportion. (iv) Draw the modified award accordingly.