- 1 - NC: 2025:KHC:13039-DB MFA No.6810/2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF MARCH, 2025 PRESENT THE HON'BLE MRS JUSTICE K.S.MUDAGAL AND THE HON'BLE MR JUSTICE M.G.S. KAMAL MISCELLANEOUS FIRST APPEAL NO.6810/2023 (MV-D) BETWEEN: 1. SMT SABINA BANU W/O LATE BASHA SAB AGED ABOUT 53 YEARS 2. SRI ASIFULLA AHAMED S/O LATE BASHA SAB AGED ABOUT 36 YEARS 3. SRI MAHAMED IRFAN BHASHA S/O LATE BASHA SAB AGED ABOUT 35 YEARS 4. SMT RUKSANA BANU W/O SHEK NOORULLA D/O LATE BASHA SAB AGED 33 YEARS R/O HANAMBI ROAD, GULAMUDDIN ROAD, SAGAR, SHIVAMOGGA – 577 401 5. SRI HAFEEZ ULLA S/O LATE BASHA SAB AGED ABOUT 28 YEARS APPELLANT NOS.1 TO 3 AND 5 ARE R/O NO.349, AYANURU KOTE AYANURU, SHIVAMOGGA TALUK AND DISTRICT – 577 201 … APPELLANTS (BY SRI. K V SATEESH CHANDRA, ADVOCATE) Digitally signed by ROOPA R U Location: High Court of Karnataka - 2 - NC: 2025:KHC:13039-DB MFA No.6810/2023 AND: 1. SRI SHIVAKUMAR T S/O THIMMAPPA AGED ABOUT 38 YEARS R/O DEVAKATIKOPPA VILLAGE KOTEGANGOOR POST SHIVAMOGGA TALUK, SHIVAMOGGA – 577 202 2. MANAGER CHOLAMANDALAM MS GEN. INSURANCE CO. LTD. R/O UNIT NO.4, 9TH FLOOR (LEVEL-06) GOLDEN HEIGHTS, 59TH C CROSS INDUSTRIAL SUBURB, 4TH ‘M’ BLOCK RAJAJINAGAR, BENGALURU – 560 010 … RESPONDENTS (BY SRI.B.PRADEEP, ADVOCATE FOR R2; NOTICE TO R1 IS DISPENSED WITH V/O DTD: 27.10.2023) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 03.12.2022 PASSED IN MVC NO.174/2021 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT, SHIVAMOGGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL and HON'BLE MR JUSTICE M.G.S. KAMAL ORAL JUDGMENT (PER: HON'BLE MRS JUSTICE K.S.MUDAGAL) Though the matter is listed for hearing on interlocutory application, with consent of both parties, the matter is taken up for final disposal. - 3 - NC: 2025:KHC:13039-DB MFA No.6810/2023 2. “Whether the compensation awarded under the impugned award in M.V.C.No.174/2021 passed by the Principal Senior Civil Judge and Additional MACT-6, Shivamogga is just and fair one?” is the question involved in this case. 3. Appellants are wife and children of the deceased Basha Sab. On 18.01.2020 at 3.00 p.m. when Basha Sab was traveling in Ashok Leyland Dost vehicle bearing registration No.KA-14-C-0983 as loader, the Tipper lorry bearing registration No.KA-15-6273 hit the Ashok Leyland Dost vehicle bearing registration No.KA-14-C-0983 near Ayanuru village, Shivamogga Taluk. In the accident Basha Sab suffered the injuries and succumbed to the injuries at the spot. At the time of accident, respondent Nos.1 and 2 were the registered owner and insurer of Tipper lorry bearing registration No.KA-15-6273. 4. Appellants filed MVC No.174/2021 before the Tribunal claiming compensation of Rs.67,55,000/- from the respondents alleging that the accident and death of Basha Sab occurred due to actionable negligence on the part of driver of Tipper lorry bearing registration No.KA-15-6273. They further contended that the deceased was working as loader, earning - 4 - NC: 2025:KHC:13039-DB MFA No.6810/2023 Rs.15,000/- per month and they were dependent on his income. They claimed that due to his accidental death, they have suffered pecuniary and non-pecuniary damages. The respondents are liable to compensate the damages. 5. Respondent No.1 did not contest the petition. Respondent No.2 contested the petition denying actionable negligence on the part of driver of Tipper lorry No.KA-15-6273, age, occupation, income of the deceased and its liability to pay the compensation. 6. The Tribunal on hearing the parties by the impugned award held that the accident occurred due to actionable negligence on the part of the driver of the tipper lorry bearing registration No.KA-15-6273. The Tribunal considered the age of the deceased as 60 years, assessed his income notionally at Rs.12,500/- per month, added 10% to the same as future prospects, deducted 1/3rd out of the same for his personal expenses, applied 9 multiplier and awarded compensation of Rs.9,72,000/- on the head of loss of dependency. - 5 - NC: 2025:KHC:13039-DB MFA No.6810/2023 7. The Tribunal in all awarded compensation of Rs.12,02,000/- on the different heads is as follows: Particulars Amount (Rs.) Towards loss of dependency 9,72,000/- Towards loss of estate 15,000/- Towards transportation of dead body and funeral expenses 15,000/- Towards loss of spousal and parental consortium 2,00,000/- Total 12,02,000/- The Tribunal directed that respondent No.2/insurer shall pay the said amount with interest at 6% per annum. The claimants have challenged the said award in the above appeal on the ground that the compensation awarded is inadequate one. 8. Sri K.V Sateesh Chandra, learned Counsel for appellants submits that deceased was aged 52 years and the Tribunal was in error in considering his age as 60 years. Notional income considered by the Tribunal is on the lower side. Compensation awarded on the other heads is also on the lower side. 9. Sri B Pradeep, learned Counsel for respondent No.2 justifies the impugned award on the ground that as per Ex.P2 claimants’ own document, the deceased was aged 60 years. - 6 - NC: 2025:KHC:13039-DB MFA No.6810/2023 Therefore, the Tribunal was justified in considering his age accordingly. He submits that as there was no proof of income, income considered by the Tribunal is just one. Analysis: 10. The respondents have not challenged the award on any grounds. It is submitted that respondent No.2 has satisfied the award. Therefore, findings of the Tribunal against respondents have attained finality. Appellants/claimants contended that the deceased was aged 52 years. 11. Learned Counsel for appellants submits that as per Ex.P6/postmortem report, age of the deceased was 52 years, therefore, that has to be taken. Ex.P2 genealogical tree/pedigree was issued by the Tashildar, Shivamogga Taluk on the request of the appellants themselves. Needless to say that the age mentioned in postmortem report is the approximate age assessed by the doctor. Whereas, pedigree would be issued by the Tahsildar after holding the local enquiry and after recording the statements of the applicants themselves. Therefore, the said document is more reliable as compared to postmortem and inquest report. In Ex.P2 age of deceased is shown as 60 years and that has to be considered. - 7 - NC: 2025:KHC:13039-DB MFA No.6810/2023 The Hon’ble Supreme Court in Oriental Insurance Company Ltd., V/s Premlata Shukla and Others1 has held that when a party produces a document, that amounts to his own admission, he cannot ask the Court to rely only one part of the document and reject other part of the document. It was held that he cannot aprobate and reprobate together. 12. So far as income of the deceased, it is not disputed that he was working as loader. Considering the prevailing wage rates of the loaders during the relevant period and cost of living, income assessed by the Tribunal notionally is on the lower side. The same can be reasonably assessed at Rs.14,500/- per month. As per the judgment in National Insurance Company Limited v. Pranay Sethi2 case, since the deceased was aged 60 years, 10% has to be superadded to his income. 13. As the deceased had five surviving heirs, as per judgment in Sarla Verma & Ors. v. Delhi Transport Corporation & Anr.3 case , 1/4th has to be deducted for the personal expenses of the deceased. Therefore, his contribution to the 1(2007)13 SCC 476 2 AIR 2017 SC 5157 3 (2009) 6 SCC 121 - 8 - NC: 2025:KHC:13039-DB MFA No.6810/2023 family would be (Rs.14,500 + 1450 x 3/4=)Rs.11,962.5/-, rounded to Rs.11,963/-. Applicable multiplier is 9. Therefore, compensation payable on the head of loss of dependency is (Rs.11,963 x 12 x 9=)Rs.12,92,004/-. 14. The compensation awarded on the other heads is just one. As the claim petition was disposed of within two years and the award has been satisfied, no escalation can be granted on the compensation awarded under conventional heads. Therefore, just compensation payable in the case is as follows: Particulars Amount (Rs.) Loss of dependency 12,92,004/- Loss of consortium 2,00,000/- Loss of estate 15,000/- Loss of funeral expenses and transportation of dead body 15,000/- Total 15,22,004/- Awarded by the Tribunal 12,02,000/- Enhancement 3,20,004/- 15. Therefore, the appeal deserves to be allowed in part. Hence, the following: ORDER i. The appeal is allowed in part. - 9 - NC: 2025:KHC:13039-DB MFA No.6810/2023 ii. The appellants/claimants are entitled to enhanced compensation of Rs.3,20,004/- with interest thereon at 6% p.a. from the date of petition till its realization. iii. Respondent No.2 - insurer shall deposit the said amount before the Tribunal within four weeks from the date of receipt of copy of this order. iv. The order of the Tribunal with regard to apportionment and investment is maintained. v. Registry shall transmit the TCRs to the Tribunal forthwith. Sd/- (K.S.MUDAGAL) JUDGE Sd/- (M.G.S. KAMAL) JUDGE KSR,PKN List No.: 1 Sl No.: 25