SUBBA POOJARY vs A RAMANAGOWDA
- Court
- Karnataka High Court
NC: 2026:KHC:26553-DB
MFA No. 696 of 2017
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 4 DAY OF JUNE, 2026
R
PRESENT
HON'BLE MR. JUSTICE JAYANT BANERJI
AND
HON'BLE MS. JUSTICE TARA VITASTA GANJU
MISCELLANEOUS FIRST APPEAL NO. 696 OF 2017 (MV-D)
BETWEEN:
1.
1(a)
SUBBA POOJARY
AGED ABOUT 68 YEARS,
S/O LATE NAGA POOJARY,
SINCE DECEASED
REP. BY HIS LR’S
SUSHEELA,
AGED ABOUT 50 YEARS,
W/O NAGA POOJARY,
1(b) SHEKAR POOJARY
AGED ABOUT 48 YEARS,
S/O LATE SUBBA POOJARY,
1(c) VANAJA POOJARY
AGED ABOUT 44 YEARS,
W/O NANDAYYAPPA POOJARY,
2. SUBU POOJARY
AGED ABOUT 64 YEARS,
W/O SUBBA POOJARY,
ALL ARE RESIDING AT GANESH NILAYA,
SASHI HITHLU, ALOOR VILLAGE AND POST,
KUNDAPURA TALUK-576201.
…APPELLANTS
(BY SRI. PAVANA CHANDRA SHETTY., ADVOCATE)
Digitally signed by
SUMATHY
KANNAN
Location: HIGH
COURT OF
KARNTAKA
1
NC: 2026:KHC:26553-DB
MFA No. 696 of 2017
HC-KAR
AND:
1. A.RAMANAGOWDA
AGED ABOUT 33 YEARS,
S/O BASAVARAJ,
R/O ADDGODYARA TALAKAL,
HANSI KOODLAGI TALUK,
BALLARI DISTRICT-577010.
2. B.VIVEKANANDA
AGED ABOUT 36 YEARS,
S/O B.RAMAKRISHNA SHERIGAR,
R/O NAGASHREE NIVAS,
BATRAHADI, NH-66,
KUNDAPURA KASBA,
KUNDAPURA TALUK-576201.
3.
THE UNITED INDIA INSURANCE CO. LTD.,
SRI. LAXMINARASIMHA COMPLEX,
NEAR KSRTC DEPOT, NH-66,
VODERHOBLI, KUNDAPURA-576201.
REPRESENTED BY ITS BRANCH MANAGER.
4. RAVINDRA POOJARY
AGED ABOUT 32 YEARS,
S/O MANJU POOJARY,
R/O HOSAMANE ULLOOR,
KUNDAPURA-576201.
5. SANJEEVA POOJARY
AGED ABOUT 53 YEARS,
S/O SHESHA POOJARY,
R/O MAKKIMANE, BASRUR VILLAGE,
KUNDAPURA TALUK-576201.
6.
NATIONAL INSURANCE CO. LTD.,
BRANCH OFFICE: KUNDAPURA,
GANESH MAHAL, MUNICIPAL MAIN ROAD,
KUNDAPURA-576201.
REP: BY ITS BRANCH MANAGER.
7.
SAROJA POOJARTHI
AGED ABOUT 38 YEARS,
2
NC: 2026:KHC:26553-DB
MFA No. 696 of 2017
HC-KAR
W/O LATE SHANKARA POOJARY,
8. MINOR SWAPNA
AGED ABOUT 15 YEARS,
D/O LATE SHANKARA POOJARY,
9. MINOR SWAYAM
AGED ABOUT 10 YEARS,
S/O LATE SHANKARA POOJARY,
RESPONDENT NO.8 & 9 ARE MINORS,
REP: BY THEIR MOTHER NEXT FRIEND,
GUARDIAN RESPONDENT NO.7.
ALL ARE RESIDENT OF
HOSAMANE ULLOOR,
KUNDAPURA-576201.
…RESPONDENTS
(BY SRI. O.MAHESH., ADVOCATE FOR R3;
NOTICE TO R1, R2, R4 TO R9 ARE D/W V/O/D.05.12.2017)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENTAND AWARD DATED17.05.2016PASSED IN MVC
NO.846/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
ADDL.MOTOR VEHICLE ACCIDENT CLAIMS TRIBUNAL AT
KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT
WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE JAYANT BANERJI
&
HON'BLE MS. JUSTICE TARA VITASTA GANJU
3
NC: 2026:KHC:26553-DB
MFA No. 696 of 2017
HC-KAR
ORAL JUDGMENT
(PER: HON'BLE MS. JUSTICE TARA VITASTA GANJU)
1. The present appeal has been filed seeking to challenge
the Judgment and Award dated 17.05.2016 in MVC
No.846/2013 passed by the Senior Civil Judge & AMACT,
Kundapura (hereinafter referred to as the “Impugned
Award”). By the Impugned Award, the learned Tribunal has
awarded compensation in a sum of Rs.33,08,445/- to the
claimants along with interest at 6% per annum from the
date of petition till the date of deposit.
2. The challenge in the present appeal is by the
appellants/claimants who are parents of the deceased.
Notice to respondent Nos.1, 2, 4, to 9 is dispensed with by
the order of this Court dated 05.12.2017. The appeal has
been contested by the appellants/claimants and the learned
counsel for the Respondent No.6/Insurance Company.
2.1 This Court by its order dated 08.07.2019 has
condoned the delay of 141 days in filing the appeal, subject
to there being no interest for the period of delay, in the
event compensation is enhanced in this appeal.
4
NC: 2026:KHC:26553-DB
MFA No. 696 of 2017
HC-KAR
3. The brief facts are that on 22.04.2013 at around 02.15
p.m. when the deceased Shankar Poojary was travelling as
a passenger in Maruthi Omni Car bearing registration
No.KA-20-B-4172, the Tipper Lorry bearing registration
No.KA-20-C-3657 being driven in a high speed and rash and
negligent manner collided with the Omni Car. As a result of
the accident, the deceased sustained fatal injuries and was
shifted to Chinmayi Hospital, Kundapura and thereafter to
KMC Hospital, Manipal. The deceased succumbed to his
injuries in the hospital on 30.05.2013.
3.1. A claim petition was filed by the parents of the
deceased only. However, the wife and the children of the
deceased were made as respondents. It was contended that
the deceased was working in Kenya and earning
approximately Rs.50,000/- per month. The petition was
contested by the Respondent No.6/Insurance company.
3.2 Based on the pleadings between the parties, the
following issues were framed by the learned Tribunal:
“1. Whether the petitioners prove that the deceased
Shankar Poojary had sustained injuries and succumbed
to the injuries in a road traffic accident alleged to have
5
NC: 2026:KHC:26553-DB
MFA No. 696 of 2017
HC-KAR
taken place on 22.04.2013 at about 2.00 p.m. on near
Kattinamakki, Smt.Suguna Muroor Bus Stop, Haklady
Village, Kundapura Taluk, due to the rash and negligent
driving of the driver of the Tippe Lorry bearing Reg.
No.KA-20-C-3657?
2. Whether the Respondent No.3 proves that the accident
has taken place due to contributory negligence of the
driver of the Maruthi Omni Car Reg.No.KA-20-B-3657?
3.Whether the respondent No.3 proves that the petitioner
is bad for mis-joinder of necessary and proper parties,
i.e., owner and insurer of the Lorry bearing No.KA-20-C-
3657?
4. Whether respondent No.6 proves that the driver of the
Maruthi Omni Car Reg.No.KA-20-B-4172 had no valid and
effective driving licence to drive the said vehicle at the
time of accident?
5.Whether the petitioners are entitled
for compensation? If so, what is the quantum?
From whom?
6.What order or award?”
4. The mother of the deceased gave evidence as P.W.1
and exhibited the documents as Ex.P1 to P8 which included
FIR with complaint (Ex.P1), Spot Mahazar (Ex.P2), Spot
Sketch (Ex.P3), IMV Report (Ex.P4), Post Mortem Report
(Ex.P5), Inquest Mahazar (Ex.P6), Charge Sheet (Ex.P7)
and Accident Information Report (Ex.P8). The wife of the
deceased gave evidence as R.W.1 and exhibited ten
documents as Exs.R1 to R10 which included Salary
Certificate of the deceased (Ex.R1), Passport (Ex.R2),
6
NC: 2026:KHC:26553-DB
MFA No. 696 of 2017
HC-KAR
Passbook of Bank of Baroda (Exs.R3 & R4), Account Extracts
(Exs.R5 & R6), Medical Certificate (Ex.R7), School Receipt
(Ex.R8), Notarised copy of sale deed (Ex.R9) and Medical
Bills (Ex.R10). No evidence was produced on behalf of the
respondent No.6/Insurance Company.
5. The learned Tribunal after examining the evidence
produced found that rash and negligent driving was proved.
However, the learned Tribunal found that that there was no
definite income of the deceased and held that the deceased
would be getting Rs.18,000/- per month. In addition, the
learned Tribunal added future prospects to the amount and
th
deducted 1/4 towards personal expenses of the deceased
as there were five dependants and awarded the
compensation of Rs.29,48,400/- towards loss of
dependency. In addition, the compensation in following
amounts were awarded by the Tribunal:
Sl.No. Particulars Amount (Rs.)
01 Loss of dependency Rs.29,48,400-00
02 Consortium Rs. 25,000-00
03 Loss of Love and
Affection
Rs. 20,000-00
04 Towards loss of estate Rs. 25,000-00
05 Medical expenses Rs.2,65,045-00
7
NC: 2026:KHC:26553-DB
MFA No. 696 of 2017
HC-KAR
06 Funeral Expenses and
Transportation charges
Rs. 25,000-00
TOTAL Rs.33,08,445-00
6. Learned counsel for the appellants/claimants has raised
a challenge on the calculation of loss of dependency by the
learned Tribunal. He submits that the claimants had produced
the salary certificate as well as bank statements in original
along with the passport and other documents and these
documents were exhibited before the learned Tribunal as
Exs.R1 to R7. However, these documents were not taken into
consideration while calculating the loss of dependency.
6.1. The learned counsel for the appellants/claimants has
further contended that the deceased was survived by his aged
parents, young children and wife. He was the sole earning
member. He was also on his visit to India when he died in an
unfortunate car accident. He was hospitalised for 38 days and
in a coma for those days. It is thus contended that no amounts
for loss of pain and suffering have been awarded by the
Tribunal.
8
NC: 2026:KHC:26553-DB
MFA No. 696 of 2017
HC-KAR
7. The learned counsel for the respondent No.6/Insurance
Company on the other hand contended that the award does
not require any modification. He further submits that by order
dated 08.07.2019, it was directed that no interest would be
awarded for 141 days of delay in filing of the present appeal.
It was further contended by the learned counsel for the
Insurance company that since the accident happened in the
year 2013 and the award was passed in the year 2016, the
law as applicable in the year 2026 cannot be taken into
consideration. The other issue raised by learned counsel for
the respondent No.6/Insurance Company is that if the salary
of the deceased is being considered by this Court, Income Tax
should be deducted while calculating compensation.
8. The issue that arises in the present appeal, is whether
the compensation awarded is in accordance with the settled
legal principles?
9. The examination of the record reflects that the
deceased had produced not only a salary certificate in original
(Ex.R1) but had also produced passport (Ex.R2), passbook of
9
NC: 2026:KHC:26553-DB
MFA No. 696 of 2017
HC-KAR
Bank of Baroda (Exs.R3 & R4) and Account Extracts (Exs.R5
& R6). The Salary Certificate/Terms and Conditions for
Contract, produced by the appellants/ claimants reflects that
the deceased was working in M/s Haandi Twenty Four Carats
Ltd., Nairobi, Kenya, as a Hotel Manager and getting Ksh
48,000/- per month. It is apposite to extract the Salary
Certificate/Contract of Terms and conditions of employment
as under:
th
“13 January, 2009
Mr.Shankar Subba Poojari
Ganesh Nilaya (House)
Alur Village (P.O.)
Kundapur (Taluka)
Udupi (Dist) Karnataka (State)
India
TERMS & CONDITIONS FOR CONTRACT
EMPLOYMENT WITH HAANDI TWENTY FOUR
CARAT
We are pleased to inform you that your Work Permit
Application has been approved by the Ministry of Tourism
th
Ref letter HRA/EP/159 dated 7 January’ 2009. We, as
discussed and agreed, we offer you a contract to work
with us at the following terms and conditions:
1. Salary : Ksh.48,000/= per month
2. Accommodation : Provided by the
company Sharing basis
3. Annual Leave : One Month
4. Return Ticket : B1 Annually
5. Medical : Medical Insurance with
Health First as Well as
service of the company
general practitioner.
We hope you find the above in agreement.
10
NC: 2026:KHC:26553-DB
MFA No. 696 of 2017
HC-KAR
Thanking you,
Yours faithfully,
P.MULLICK
MD”
[Emphasis Supplied]
9.1 An examination of the above document shows that the
deceased was provided with the salary of Ksh 48,000/- per
1
month which was at approximately Rs.1.5 to each Kenyan
Shilling, in the year 2009. In addition, the original passport
of the deceased which has been exhibited as Ex.R2 is also
on record reflecting the visa as well as entries to Kenya. The
documents namely, the passport (Ex.R2), passbook of Bank
of Baroda (Exs.R3 & R4) and Accounts Extracts (Exs.R5 &
R6) all reflect that the deceased was in fact working in
Nairobi, Kenya as a Hotel Manager since 2009. It further
reflects that the deceased was regularly sending amounts
between Rs.15,000/- and Rs.35,000/- a month and on
certain occasions sending larger amounts ranging between
Rs.1 Lakh to Rs.2 Lakhs to his wife and children residing in
India.
1
Based on Exchange Rates Currency Converter.org.uk.
11
NC: 2026:KHC:26553-DB
MFA No. 696 of 2017
HC-KAR
9.2 Thus, the appellants/claimants have proved that the
deceased was gainfully employed in a foreign country and
earning approximately Rs.72,000/- per month in the year
2009 to Rs.91,200/- in the year 2011. The Learned Tribunal
has however after examining the documents produced, held
that there was no definitive income proved by the
claimants. This Court is unable to agree with this finding.
So far as concerns the documents produced by the
claimants, they do reflect a contract between an entity in
Kenya called M/s Haandi Twenty Four Carats Ltd., P.O.Box
13855-00800, Nairobi, Kenya and the deceased of the year
2009 for providing hotel management services at Kenya. It
also provides for the fact that the deceased was sending
regular amounts to his dependents/family members.
10. The Supreme Court in Rajwati Rajjo and Others Vs.
2
United India Insurance Company Ltd. And Others has
held that proceedings under the Motor Vehicles Act are
summary in nature and the Act being a beneficial
2
2022 SCC OnLine SC 1699
12
NC: 2026:KHC:26553-DB
MFA No. 696 of 2017
HC-KAR
legislation, strict rules of pleadings and evidence are
inapplicable. The standard of proof is one of preponderance
of probabilities, and once the occurrence of the accident is
established, the Tribunal is required to award just
compensation. Accordingly, the Court held that salary
documents could not be discarded merely because the
issuing authority was not examined, particularly when such
documents stood corroborated by oral evidence, and
restored the income assessment made by the Tribunal. The
relevant extract is set out below:
“11. Mr. Anuj Bhandari, Learned Counsel appearing on
behalf of the Appellants argued that the High Court
was not justifying in rejecting the pay slip and
salary certificate of the deceased by holding that the
person issuing the said documents was not
examined. It was contended that the deceased's wife
(Appellant No. 1 herein) had testified before the Learned
Tribunal that the deceased was earning around Rs.
17,000/- from his employment as a driver and also by
doing agricultural work. The same had been testified by
his co-workers (who were also eye-witnesses to the
accident) as well. It was further contended that Appellant
No. 1's evidence with regard to the salary of the deceased
was corroborated by the salary certificate and pay slip of
the deceased. There was no occasion for the High Court to
set aside the Learned Tribunal's order with respect to a
pure finding of fact and re-appreciate the entire evidence.
It was also mentioned that the Appellants could not
inadvertently produce the pass-book of the deceased
(reflecting his salary as Rs. 12,000/- per month) before
the Learned Tribunal, and copies of the same have been
filed before this Court.
xxx xxx xxx
13
NC: 2026:KHC:26553-DB
MFA No. 696 of 2017
HC-KAR
20. It is well settled that Motor Vehicles Act, 1988 is
a beneficial piece of legislation and as such, while
dealing with compensation cases, once the actual
occurrence of the accident has been established, the
Tribunal's role would be to award just and fair
compensation. As held by this Court
in Sunita (Supra) and Kusum Lata (Supra), strict
rules of evidence as applicable in a criminal trial, are
not applicable in motor accident compensation
cases, i.e., to say, “the standard of proof to be borne
in mind must be of preponderance of probability and
not the strict standard of proof beyond all
reasonable doubt which is followed in criminal
cases”.
21. In view of the above, we do not agree with the
view taken by the High Court while rejecting the
salary certificate (Exhibit 19) and pay slip (Exhibit
20) of the deceased merely on the ground that the
person issuing the two aforementioned documents
was not examined before the Learned Tribunal. The
said documents are conclusive proof of the income
of the deceased and were also corroborated by the
statements of the deceased's wife (Appellant No. 1
herein) and his co-workers. As such, the High Court
was not justified in assessing the income of the deceased
at Rs. 4,836/- per month on the basis of minimum wages
fixed by the State at the relevant time. Resultantly, we
affirm the findings of the Learned Tribunal so far as they
relate to assessing the deceased's income at Rs. 11,225/-
per month on the basis of aforementioned two documents.
Annual income of the deceased, therefore, amounts to, Rs.
11,225/- × 12 = Rs. 1,34,700/-.”
[Emphasis Supplied]
11. The other challenge which has been raised by the
respondent No.6/Insurance Company is on the applicability
of the law. It is contended that the law as is applicable in
the year 2016 must be taken to award compensation. This
Court is unable to agree with this contention either. An
14
NC: 2026:KHC:26553-DB
MFA No. 696 of 2017
HC-KAR
appeal is a continuation of the proceedings before the
Tribunal. The matter has not attained finality.
11.1 The Supreme Court in Shivaleela & Ors. Vs.
Divisional Manager, United India Insurance Co. Ltd. &
3
Ors . , while relying on the case of K. Ramya & Ors. Vs.
4
National Insurance Co. Ltd. & Anr. and Ningamma &
5
Anr. Vs. United India Insurance Co. Ltd. , has held that
the Motor Vehicles Act, 1988 is a beneficial and welfare
legislation intended to provide compensation based on the
contemporaneous position of an individual, adopting a
forward-looking approach aimed at ensuring stability and
continuity in the lives of victims and their dependents. This
Court has taken a view given in a beneficial legislation, if
any enhancement is to be given, it is to be made in terms
of the law as on that date. The relevant extract of
Shivaleela case is below:
“13. Thus, on an overall circumspection of the entire facts
and circumstances of the cases and material on record,
we opine that it may be reasonably assumed that
the deceased was having a monthly income of Rs.
15,000/- (Rupees Fifteen Thousand) per month. The
3
2025 SCC Online SC 563
4
2022 SCC Online SC 1338
5
(2009) 13 SCC 710
15
NC: 2026:KHC:26553-DB
MFA No. 696 of 2017
HC-KAR
compensation awarded by the High Court under the other
heads, being in conformity with the law laid down by this
Court in the decisions in Smt. Sarla Verma v. Delhi
Transport Corporation, (2009) 6 SCC 121 and National
Insurance Company Ltd. v. Pranay Sethi, (2017) 16 SCC
680, does not require any interference. In K Ramya v.
National Insurance Co. Ltd., 2022 SCC OnLine SC
1338, after taking note of, inter alia, Ningamma v.
United India Insurance Co. Ltd., (2009) 13 SCC 710,
the Court held that the ‘… Motor Vehicles Act of 1988
is a beneficial and welfare legislation that seeks to
provide compensation as per the contemporaneous
position of an individual which is essentially
forwardlooking. Unlike tortious liability, which is
chiefly concerned with making up for the past and
reinstating a claimant to his original position, the
compensation under the Act is concerned with
providing stability and continuity in peoples’ lives in
the future. …’ The present coram has respectfully
restated the said observations in S Vishnu Ganga v.
Oriental Insurance Company Limited, 2025 SCC OnLine SC
182.”
[Emphasis Supplied]
11.2 The Supreme Court in the case of New India
6
Assurance Co. Ltd. v. Sonigra Juhi Uttamchand , while
relying to the M.A.Murthy case, has held that once a
principle of law is enunciated by this Court, it has to be
taken as the law from inception and is applicable to all
pending matters, irrespective of the stage at which they
stand. At the same time, it was clarified that such
enunciation of law will not have the effect of reopening
6
(2025) 3 SCC 23
16
NC: 2026:KHC:26553-DB
MFA No. 696 of 2017
HC-KAR
matters which have already attained finality solely for the
purpose of applying the principle so laid down. It was held
that awards and judgments passed prior to the
pronouncement in Pranay Sethi case cannot be faulted for
having fixed amounts under the conventional heads in
excess of what was prescribed later. The relevant extract of
the Sonigra Juhi Uttamchand case is set out below:
“12. In tune with the question of law No. ‘C’, the
respondent insurer took a ground in the appeal
contending that the High Court had gone wrong in
granting amount in excess of Rs 70,000 under the
conventional heads. In this context, the learned
counsel appearing for the respondent drew our
attention to the law laid down by this Court in
National Insurance Co. Ltd. v. Pranay Sethi [National
Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 :
(2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205]. Para
59.8 of the said decision would reveal that this Court held
that under the conventional heads, only a total amount of
Rs 70,000; the split-up being Rs 15,000 under the head
loss of estate, Rs 40,000 under the head loss of
consortium and Rs 15,000 towards funeral expenses, is
grantable.
13. It is to be noted that after having held thus, this Court
went on to hold that the amounts thus fixed under the
conventional heads should be revisited every three years
and the enhancement should be @ 10% in a span of three
years. Even while taking into account the said position laid
down by this Court in Pranay Sethi case [National
Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 :
(2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205 ], we
are of the view that the Tribunal and the High Court
cannot be found at fault with fixing the amounts in
excess of the aforesaid amounts fixed by this Court
as the award and the judgment of the High Courts
were passed prior to the pronouncement of the
judgment of this Court in Pranay Sethi case [National
17
NC: 2026:KHC:26553-DB
MFA No. 696 of 2017
HC-KAR
Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 :
(2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205].
14. But at the same time, it is to be noted that in the
decision in M.A. Murthy v. State of Karnataka [M.A.
Murthy v. State of Karnataka, (2003) 7 SCC 517 :
2003 SCC (L&S) 1076 : (2003) 264 ITR 1 : 2003
INSC 447], this Court held that when in a decision
this Court enunciates a principle of law, it is
applicable to all cases irrespective of the stage of
pendency thereof because it is to be assumed that
what is enunciated by this Court is, in fact, the law
from inception. We may hasten to add that we shall
not be understood to have held that pursuant to
enunciation of a principle of law, matters that
attained finality shall be reopened solely for the
purpose of applying the law thus laid. But at the
same time, if the matter is pending, then,
irrespective of the stage, the principle cannot be
ignored.
15. Now, we will consider the contention of the respondent
insurer regarding the failure of the High Court to deduct
one-third of the income while calculating the
compensation payable by way of enhancement, in terms
of the decision of this Court in Sarla Verma case [Sarla
Verma v. DTC, (2009) 6 SCC 121. This is because the
decision in Sarla Verma case [Sarla Verma v. DTC,
(2009) 6 SCC 121 was very much in force as a
precedent since 15-4-2009 . In view of the same, we
are of the view that the respondents are justified in
contending that the High Court ought to have deducted
one-third of the income while calculating the
compensation by way of enhancement, in terms of Sarla
Verma case [Sarla Verma v. DTC, (2009) 6 SCC 121”
[Emphasis Supplied]
12. Lastly, the other issue raised by learned counsel for
the respondent No.6/Insurance Company is that if a salary
of Rs.70,000/- is being considered by this Court, income tax
deducted therefrom should also be considered. The record
18
NC: 2026:KHC:26553-DB
MFA No. 696 of 2017
HC-KAR
before us shows that the deceased was appointed to work
in Kenya in the year 2009 and he lived there. An
examination of the defence/counter statement taken by the
Respondent No.6/Insurance Company reflects that this
aspect has not been adverted to. Be that as it may, the fact
of the matter was that the deceased who was employed in
the year 2009 was living and residing abroad and earning
in foreign currency since 2009, while the accident took place
5 years later. His liability to pay income tax would have only
been arisen in certain circumstances. Although this aspect
was not raised by the respondent No.6/Insurance Company
in his written statement/statement of defence and there is
no evidence in this behalf filed, in terms of the settled law
it would be apposite to deduct taxes. Accordingly, deducting
30% from an average income of Rs.70,000/- per month for
the purposes of income tax leviable, an income of
Rs.50,000/- per month can be fixed.
13. In addition, there is no dispute about the age and
dependents of the deceased. Thus, for the purposes of
calculation of loss of dependency, the income of
19
NC: 2026:KHC:26553-DB
MFA No. 696 of 2017
HC-KAR
Rs.50,000/- can be taken into consideration and the future
prospects needs to be added at 25%. The multiplier of ‘14’
th
is to be taken and 1/4 deduction is to be done since there
were five dependent members.Since the deceased was
survived by five dependent members, the loss of
consortium has to be at the rate of Rs.40,000/- per person
with 10% escalation, which would amount to
Rs.2,20,000/-. The amount of Rs.15,000/- each should be
awarded for loss of estate and loss of funeral expenses with
escalation of 10%. Accordingly, the amount towards loss of
dependency is worked out as follows:
Heads Amout(Rs.)
Loss of dependency Rs.50,000+25%=62 , 500/-
Rs.62,500x12x 3/4 x14=78,75,0000/-
14. Thus, the compensation awarded is to be recalculated
in the following manner:
Sl.No. Particulars Amount (Rs.)
01 Loss of dependency Rs. 78,75,000-00
02 Loss of consortium
Rs. 2,20,000-00
(Rs.44,000x5)
03 Medical Expenses Rs. 2,65,045-00
04 Towards loss of estate and
Rs. 33,000-00
funeral expenses
05 Pain and suffering Rs. 50,000-00
20
NC: 2026:KHC:26553-DB
MFA No. 696 of 2017
HC-KAR
TOTAL Rs. 84,43,045-00
Less: Awarded by the Tribunal Rs. 33,08,445-00
ENHANCED COMPENSATION Rs. 51,34,600-00
15. Accordingly, the Court proceeds to pass the following
directions:
ORDER
(i) The appeal is allowed.
sass
(ii) The Impugned Judgment and Award dated
17.05.2016 in MVC No.846/2013 passed by the Senior
Civil Judge & AMACT, Kundapura, is modified to the
extent that the claimants are entitled to enhanced
compensation of Rs.51,34,600/- along with interest
at the rate of 6% per annum from the date of petition
till the date of realization, in addition to
Rs.33,08,445/- that has been awarded by the
Tribunal.
(iii) The remaining portion of the Impugned Award of
the Tribunal remains undisturbed.
(iv) The Insurance Company shall deposit the
enhanced compensation with interest at 6% p.a. less
21
NC: 2026:KHC:26553-DB
MFA No. 696 of 2017
HC-KAR
the interest for 141 days delay in filing the appeal,
within a period of eight weeks from the date of receipt
of the judgment.
(v) On such deposit, the same shall be released in
favour of the appellants/claimants in the ratio
apportioned by the Tribunal.
(vi) The Registry is directed to draw the modified
Award accordingly.
(vii) The Registry is directed transmit a copy of this
judgment to the concerned Tribunal, along with its
records.
(viii) No order as to costs.
Sd/-
(JAYANT BANERJI)
JUDGE
Sd/-
(TARA VITASTA GANJU)
JUDGE
YN
List No.: 1 Sl No.: 30
22