-1- IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 02 ND DAY OF DECEMBER 2020 BEFORE THE HON’BLE MR. JUSTICE V. SRISHANANDA MFA CROB NO.100064/2016 C/W. MFA NO.101828/2014 (MV) IN MFA CROB NO.100064 OF 2016 BETWEEN 1 . MAHADEVI W/O BASAVRAJ KOTABAGI, AGE: 28 YEARS, OCC: HOUSEHOLD WORK, R/O: NOGANIHAL, TQ: HUKKERI, DIST: BELAGAVI. 2 . KUMARI SHUSHMITA D/O BASAVRAJ KOTABAGI, AGE: 13 YEARS, OCC: STUDENT MINOR, R/BY HIS MOTHER MAHADEVI W/O BASAVRAJ KOTABAGI, CROSS OBJECTOR NO.1. R/O: NOGANIHAL, TQ: HUKKERI, DIST: BELAGAVI. 3 . KUMAR SANDEEP S/O BASAVRAJ KOTABAGI, AGE: 11 YEARS, OCC: STUDENT MINOR, R/BY HIS MOTHER MAHADEVI W/O BASAVRAJ KOTABAGI, CROSS OBJECTOR NO.1. R/O: NOGANIHAL, TQ: HUKKERI, DIST: BELAGAVI. 4 . KUMAR GOPAL S/O BASAVRAJ KOTABAGI, AGE: 09 YEARS, OCC: STUDENT MINOR, R/BY HIS MOTHER MAHADEVI -2- W/O BASAVRAJ KOTABAGI, CROSS OBJECTOR NO.1. R/O: NOGANIHAL, TQ: HUKKERI, DIST: BELAGAVI. 5 . SATABALAWWA W/O BASAVENNI KOTABAGI, AGE: 57 YEARS, OCC: NIL, R/O: NOGANIHAL, TQ: HUKKERI, DIST: BELAGAVI. 6 . BASAVENNI SHIVAPPA KOTABAGI, AGE: 64 YEARS, OCC: NIL, R/O: NOGANIHAL, TQ: HUKKERI, DIST: BELAGAVI. ...CROSS OBJECTORS (BY SRI VITTHAL S. TELI, ADV.) AND 1 . SAMBHAJI S/O RAMACHANDRA SHINDE, AGE: 37 YEARS, OCC: AGRICULTURE AND BUSINESS, R/O: NEAR SAI MANDIR SHIVAJI NAGAR, DIST: BELAGAVI. 2 . THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE CO. LTD., DIVISIONAL OFFICE, CLUB ROAD, BELAGAVI. …RESPONDENTS (BY SRI G. N. RAICHUR, ADV. FOR R2 R1 - DISPENSED WITH.) THIS MFA CROB IN MFA NO.101828/2014 IS FILED UNDER ORDER 41 RULE 22 OF CPC., AGAINST THE JUDGMENT AND AWARD DATED: 05.06.2014, PASSED IN MVC NO. 1906/2012 ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER, MACT-V, BELAGAVI, PARTLY ALLOWING THE CLAIM PEDTITION -3- FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. IN MFA NO.101828/2014 BETWEEN THE DIVISIONAL MANAGER THE NEW INDIA ASSURANCE CO. LTD., THROUGH ITS DIVISIONAL OFFICE, CLUB ROAD, BELGAUM INSURER OF CAR BEARING NO.MH-04/Y-7152 COVER NOTE/ POLICY NO.936356 W.E.F. 23.02.2010 TO 22.2.2011) R/BY ITS DEPUTY MANAGER MOTOR THIRD PARTY HUB SRINATH COMPLEX, NEW COTTON MARKET, HUBLI. ...APPELLANT (BY SRI.: G N RAICHUR, ADV.) AND 1 . MAHADEVI W/O. BASAVRAJ KOTABAGI AGE: 28 YEARS, OCC:HOUSE HOLD R/O. NOGANIHAL, TQ: HUKKERI DIST: BELGAUM 2 . KUMARI SHUSHMITA D/O. BASAVRAJ KOTABAGI AGE: 11 YEARS, OCC: STUDENT R/O. NOGANIHAL, TQ: HUKKERI DIST: BELGAUM 3 . KUMAR SANDEEP S/O. BASAVRAJ KOTABAGI -4- AGE: 09 YEARS, OCC: STUDENT R/O. NOGANIHAL, TQ: HUKKERI DIST: BELGAUM 4 . KUMAR GOPAL S/O. BASAVRAJ KOTABAGI AGE: 07 YEARS, OCC: STUDENT R/O. NOGANIHAL, TQ: HUKKERI DIST: BELGAUM PETITIONER NO.2 TO 4 SINCE MINOR REP/BY THEIR NEXT FRIEND MOTHER PETITIONER NO.1 SMT. MAHADEVI W/O. BASAVRAJ KOTABAGI 5 . SATABALAWWA W/O. BASAVENNI KOTABAGI AGE: 57 YEARS, OCC: NIL R/O. NOGANIHAL, TQ: HUKKERI DIST: BELGAUM 6 . BASAVENNI SHIVAPPA KOTABAGI AGE: 64 YEARS, OCC: NIL R/O. NOGANIHAL, TQ: HUKKERI DIST: BELGAUM 7 . SAMBHAJI S/O. RAMACHANDRA SHINDE AGE: 37 YEARS, OCC: AGRICULTURE AND BUSINESS R/O. NEAR SAI MANDIR SHIVAJI NAGAR, DIST: BELGAUM ...RESPONDENTS (BY SRI.: VITTHAL S TELI, ADV. FOR R1-R6 R2 TO R4 ARE MINORS REP/BY R1. R7-SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED: -5- 05.06.2014, PASSED IN MVC NO.1906/2012 ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER MACT-V, BELAGAVI, AWARDING COMPENSATION OF RS.11,97,000/- WITH INTEREST AT 6% P.A., FROM THE DATE OF PETITION TILL THE DATE OF DEPOSITED. THESE MFA CROB AND APPEAL ARE COMING ON FOR ORDERS, THIS DAY, COURT DELIVERED THE FOLLOWING: JUDGMENT Though this cross objection and appeal are listed for orders, with the consent of parties, both are heard finally and matters are taken up final disposal. 2. MFA No.101828/2014 is filed by the Insurance company and MFA Crob No.100064/2016 is filed by the claimants-cross objectors questioning the validity of the judgment and award dated 05.06.2014, passed by IV Additional District and Sessions Judge & Member MACT-V, Belgaum in MVC No.1906/2012. 3. Brief facts which are necessary for the disposal of the cross objection and appeal are as under : -6- A claim petition came to be filed under Section 166 of M.V. Act contending that on 17.07.2010 at about 19.00 hours on Ghataprabha Hukeri road, near Rakshi cross, within the jurisdiction of Hukeri Police Station, one Basavaraj was proceeding on his motor bike bearing No.KA-49/H-7356 by following traffic rules and at that juncture, a car bearing No.MH-04/Y-7152 came from Ghataprabha towards Hukeri i.e., from opposite direction in rash and negligent manner and dashed against the said motorcycle, whereby said Basabaraj (hereinafter referred to as ‘deceased’ for short) sustained grievous injuries and died on the spot. It is further contended that deceased was the bread winner of the family and claimants were the dependant of the income of the deceased. 4. On issuance of notice, first respondent – owner of the car remained absent and placed exparte and respondentNo.2-Insurance company appeared and -7- filed objections denying the petition averments in toto. and prayed for dismissal of the claim petition. 5. Based on the rival contentions, the tribunal raised the following issues: 1. Whether the petitioners prove that on 17.07.2010 at about 19.00 hours one Basavaraj S/o. Basavanni Kotabagi died on ukkeri Ghataprabha road near Rakshi cross, due to rash and negligent driving of the offended car bearing No.MH-04/Y-7152 as alleged in the petition? 2. Whether the respondent No.2 proves that the petition is bad for non joinder of parties? 3. Whether the petitioners are entitled for compensation? If so, what is the amount of compensation and from whom? 4. What order or award? 6. In order to prove the case of the claimants, the first claimant got examined as PW1 and relied on 8 documents on behalf of claimants, which were marked as Ex.P1 to P8. On behalf of respondents, insurance -8- policy got marked and exhibited as Ex.R1. There was no oral evidence adduced. 7. After hearing the parties and on cumulative consideration of the oral and documentary evidence, the tribunal allowed the claim petition in part in a sum of Rs.11,97,000/- with interest @ 6% p.a. from the date of petition till realization. 8. It is that judgment which is under challenge in this cross objection seeking enhancement of the compensation on the ground that the tribunal has not taken into consideration proper income of the deceased, whereas, the insurance company is also challenging the very same judgment on the ground that the compensation amount granted by the tribunal is on the higher side as there is 50% addition towards future prospects and it should have taken addition of 40% towards future prospects as per dictum in the case of National Insurance Company Limited V. Pranay -9- Sethi and Others reported in AIR 2017 Supreme Court 5157 , thus, sought for reassessment of the compensation. 9. In view of the rival contentions urged by the parties, the sole point would arise for consideration is : Whether the quantum of compensation adjudged by the tribunal is just compensation? 10. Answer to the above point is in the negative for the following : REASONS 11. Admittedly, in the absence of formal evidence placed by the claimants as to the income of the deceased, tribunal has taken the income of the deceased at Rs.4,500/- per month notionally. 12. This court and Lok Adalaths would normally assess the income of the deceased for the accidental claims of the year 2010 at Rs.5,500/-. -10- 13. Tribunal has taken into consideration addition of 50% of assessed income towards future prospects. As per the dictum in Pranay Sethi (supra) deceased Basavaraj being aged 30 years at the time of death, he is entitled for addition of 40% towards future prospects and not at 50% as ordered by the tribunal. Tribunal has deducted 1/4 th of the assessed income towards personal expenses of the deceased which is correct having regard to the dictum of Sarala Verma. Having regard to the age of the deceased, tribunal has applied multiplier at ‘16’ which is also correct. Accordingly, the claimants are entitled to a compensation under the head of loss of dependency as below: 5,500X40%= 2200+5500=7700 7700X¼ =1925 (7700-1925) 5775X12X16=11,08,800/- 14. The tribunal has granted Rs.1,00,000/- towards loss of consortium and Rs.1,00,000/- towards -11- loss of care and guidance for minor children, which is incorrect. The claimants No.2 to 4 are being minor children and 5 and 6 are parents of the deceased are entitled to a compensation of Rs.2,10,000/- under the head of loss of consortium and filial affection and an amount of Rs.30,000/- towards funeral expenses. Accordingly, the claimants would be entitled for the compensation under the following heads: 1 Loss of dependency 11,08,800/- 5775X12X16 2 Loss of consortium 2,10,000/- 3 Loss of funeral expenses 30,000/- TOTAL 13,48,800/- Accordingly, point is answered and following order is passed : ORDER MFA Crob No.100064/2016 is allowed in part and appeal filed by the insurance company in MFA No.101828/2014 is hereby allowed in part .