Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 1335 (KAR)

Ashok v. Raghunath

2020-07-06

S.G.PANDIT, V.SRISHANANDA

body2020
JUDGMENT V. Srishananda, J. - Being not satisfied with the judgment and award dated 06.09.2018, passed in MVC No.2140/2017 on the file of I Additional District Judge and MACT-II, Belagavi, the appellants-claimants have preferred this appeal seeking enhancement of compensation. 2. The brief facts which are necessary for the disposal of the appeal are as under : It is contended in the claim petition that on 07.05.2017, at about 11.15 a.m. when one Kumar Abhishek Ashok Sutar was proceeding on his motorcycle bearing No.MH-09/AF-3164 on Kolhapur Insuli road, near Jaittal Phata, a Scorpio bearing No.MH-09/CM-7438 came in rash and negligent manner and the driver of the said vehicle lost control over it and dashed against the said motorcycle on which Abhishek was moving, resulting in fatal injuries to Abhishek all over his body. He was shifted to the hospital and he was inpatient for two days, on 09.05.2017 he succumbed to the injuries in the City hospital, Kolhapur. Therefore, a claim petition came to be filed seeking grant of adequate compensation. 3. After issuance of notice, both respondents appeared before the tribunal and filed a detailed statement of objections denying the entire petition averments. 4. First respondent however contended that the driver of the said vehicle was holding a valid and effective driving licence as on the date of accident and it was insured with respondent No.2 and in the event of the tribunal adjudging any compensation, the same shall be saddled on the insurance company. 5. Respondent No.2 the Insurance company contended that the accident has not occurred on account of rash and negligent driving of the driver of the Scorpio but, has occurred on account of rash and negligent riding of the motorcycle by the deceased himself and sought for attributing contributory negligence to the extent of 75% to the rider of the motorcycle and 25% to the Insurance company and prayed for dismissal of the petition. 6. Based on the same, the tribunal raised the following issues: 1. Whether the petitioners prove that deceased Shri. Kumar Abhishek S/o. Ashok Sutar died due to injuries sustained in accident occurred on 07.05.2017 at about 11.15 a.m. on Kolhapur-Insuli road, Jaittal Phata, Tq: Karveer, Dist : Kolhapur, due to rash and negligent driving of Scorpio No.MH-09/CM-7438 by its driver? 2. Are petitioners entitled for compensation ? If so, how much and from whom? 3. What order or award? 2. Are petitioners entitled for compensation ? If so, how much and from whom? 3. What order or award? Additional issue : 1. Whether the petitioners proved that they are dependents of the deceased? 7. In order to prove the claim petition, the first claimant namely Ashok S/o.Vishnu Sutar got examined himself as PW1 and 17 documents were produced, marked and exhibited as Exs.P1 to P17. On behalf of respondents, no oral evidence was adduced, but, the insurance policy is marked as Ex.R1. 8. After hearing the parties and after considering the entire material on record, the tribunal answered issue No.1 and additional issue No.1 in the affirmative and Issue No.2 partly in the affirmative and allowed the claim petition by granting a sum of Rs.6,46,069/-with interest @ 9% p.a. 9. It is that judgment which is under challenge in this appeal by the claimants. 10. The learned counsel for the appellantsclaimants vehemently contended that the tribunal has grossly erred in assessing monthly income of the deceased as that of a minor. He also submits that the deceased was actually running 18 years and another 4 to 5 months he was to complete 18 years. The tribunal ought to have considered the earning capacity having regard to the qualification that was possessed by the deceased and sought for grant for appropriate enhancement. He also sought for addition of 40% to the assessed monthly income towards future prospects as per National Insurance Company Limited V/s. Pranay Sethi and others, (2017) AIR SC 5157 and sought for grant of suitable enhancement. 11. Per contra, the learned counsel for the respondent-Insurance company supported the impugned judgment by contending that the tribunal has rightly assessed the monthly income as that of minor, as admittedly the deceased was minor as on the date of accident, therefore the tribunal rightly considered the income of the deceased at Rs.30,000/- per annum i.e., Rs.2,500/- per month, which is perfectly assessed and sought for dismissal of the appeal. 12. Having heard the learned counsel for the parties and on perusal of the material on record, the following points would arise for consideration: 1. Whether the tribunal was justified in taking Rs.30,000/- as income of the deceased notionally ? 2. Whether the claimants have made out a case for addition of 40% to the assessed income? 3. Whether the claimants have made out a case for enhancement of compensation? 13. Whether the tribunal was justified in taking Rs.30,000/- as income of the deceased notionally ? 2. Whether the claimants have made out a case for addition of 40% to the assessed income? 3. Whether the claimants have made out a case for enhancement of compensation? 13. Answer to the above point No.1 in the negative and point Nos.2 and 3 in the affirmative for the following: REASONS 14. The accident occurred on 07.05.2017, involving motor cycle bearing registration No.MH- 09/AF-3164 and Scorpio bearing No.MH-09/CM-7438 and the accidental death of Kumar Abhishek Ashok Sutar is not in dispute. The claimants are before this court aggrieved by the impugned judgment and award passed by the tribunal praying for enhancement of compensation. 15. On record, SSLC certificate is produced and marked as Ex.P11, which shows that the date of birth of the deceased is 08.09.1999. Likewise, on record, Ex.P12 which is certificate issued by the National Institute of Electronics and Information Technology (NIELIT), wherein, the deceased has passed Course of Computer Concepts. 16. On behalf of claimants, Ex.P13 is produced which is a Vocational Training certificate issued by the Secondary and Higher Secondary Education, Pune, wherein, the deceased procured 76.92%. 17. Ex.P12 and P13 when taken into consideration, we find sufficient force in the arguments advanced on behalf of the claimants that the tribunal ought to have considered the monthly earning capacity of the deceased and should have assessed income of the deceased as if he was to be a major and not as a minor. As such, the finding of tribunal in computing the yearly income at Rs.30,000/- per annum notionally needs to be interfered and monthly income is to be assessed notionally. 18. For the accidental claim of the year 2017, this court and Lok Adalaths would normally assess the monthly income at Rs.10,250/- in the absence of any formal proof placed on record. In the present case, we deem it appropriate to assess the monthly income of the deceased at Rs.10,250/- notionally. The legal principles enunciated in Pranay Sethi supra applied to the facts of the present case, the claimants would be entitled for addition of 40% to the assessed monthly income. Therefore, the monthly income of the deceased is to be considered at Rs.10,250X40%=4100 +10250=14350/-. The legal principles enunciated in Pranay Sethi supra applied to the facts of the present case, the claimants would be entitled for addition of 40% to the assessed monthly income. Therefore, the monthly income of the deceased is to be considered at Rs.10,250X40%=4100 +10250=14350/-. Since, the deceased was a bachelor, 50% of the assessed income is to be deducted towards his personal and living expenses, therefore, the compensation on the head of loss of dependency including future prospects would be : 14350X50%=7175X12X18=15,49,800/- 19. By following legal principle enunciated in Pranay Sethi's case, the claimants are entitled for an amount of Rs.50,000/- on conventional heads since the deceased was a bachelor. Therefore, the claimants are entitled to a total compensation of Rs.15,99,800/-. 20. In view of the foregoing discussions, the points are answered accordingly and the following order is passed. ORDER Appeal is allowed in part. Hence, the appellants-claimants are entitled for the modified compensation of Rs.15,99,800/- with interest @ 9% p.a. from the date of petition till realization. The respondent-Insurance company is directed to deposit the compensation awarded by this court with up to date interest within a period of six weeks from the date of receipt of copy of this order. The deposit and apportionment of the enhanced compensation shall hold good as per the order of the tribunal. The registry is directed to draw the modified award accordingly.