Karnataka High Court
The Divisional Manager vs Smt Rizwana W/O Bashasab Mulla on 4 July, 2024
Author: S G Pandit
Bench: S G Pandit
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MFA NO.102141/2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 04TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
MFA NO.102141 OF 2022 (MV-D)
BETWEEN:
THE DIVISIONAL MANAGER
NATIONAL INSURANCE COMPANY LIMITED,
OPP. SBI ZONAL OFFICE,
KUSUGAL ROAD, KESHWAPUR, HUBBALLI,
NOW R/BY ITS AUTHORIZED SIGNATORY.
...APPELLANT
(BY SRI. S.K. KAYAKMATH, ADVOCATE)
AND:
1. SMT. RIZWANA W/O BASHASAB MULLA
AGE. 32 YEARS, OCC. HOUSEHOLD,
2. SRI. MOHAMMED MUSTAFA MULLA
S/O BASHASAB
AGE. 12 YEARS, OCC. STUDENT,
3. KUMARI APHSANABANU MULLA
D/O BASHASAB
Digitally
signed by
JAGADISH T
R
AGE. 11 YEARS, OCC. STUDENT,
JAGADISH Location:
TR HIGH
RESPONDENT NO.2 & 3 ARE MINORS,
COURT OF
KARNATAKA
DHARWAD
BENCH
R/BY. THEIR MINOR GUARDIAN
NATURAL MOTHER RESPONDENT NO.1.
4. SALEEMSAB S/O. AKBARSAB MULLA
AGE. 65 YEARS, OCC. AGRICULTURE,
5. SMT. MEHABOOBI W/O. SALEEMSAB MULLA
AGE. 55 YEARS, OCC. HOUSEHOLD WORK,
ALL ARE R/O. K.K. NAGAR,
4TH CROSS, BIDNAL ROAD, HUBBALLI-580020.
TQ. HUBBALLI DIST. DHARWAD.
6. SRI. MANJUNATH S/O BASAPPA KOLUR
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MFA NO.102141/2022
AGE. MAJOR, OCC. OWNER OF TT UNIT
BEARING REGISTRATION NO.KA-25/T-3878-3879,
R/O. AT POST. RAYANAL,
TQ. HUBBALLI, DIST. DHARWAD-580001.
...RESPONDENTS
(BY SRI. HARISH S. MAIGUR, ADVOCATE FOR C/R1 TO R5
SRI. PRAKASH ANDANIMATH, ADVOCATE FOR R6)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED 11.03.2022
PASSED IN MVC NO.333/2020 ON THE FILE OF I ADDL. SENIOR
CIVIL JUDGE AND ADDL. MACT, HUBBALLI, AWARDING
COMPENSATION OF RS.59,70,580/- WITH INTEREST AT 6 PERCENT
P.A. FROM THE DATE OF PETITION TILL ITS DEPOSIT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
25.06.2024 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT
The insurance company is in appeal challenging the liability saddled on it as well as quantum of compensation awarded under judgment and award dated 11.03.2022 passed in MVC No.333/2020 on the file of learned I Addl. Senior Civil Judge and Member, Addl. MACT, Hubballi (for short, 'Tribunal').
2. The claimants, who are the wife, children and parents of the deceased Bashasab Mulla, filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 before the Tribunal seeking compensation for the accidental death of deceased Bashasab Mulla that took place on -3- MFA NO.102141/2022 22.11.2019 involving motorcycle bearing registration No.KA- 63/H-6400 and Tractor-trailer bearing registration No.KA- 25/G-3878 & 3879. It is stated that the deceased was aged about 33 years as on the date of accident and he was working as driver as well as doing business, earning Rs.28,948/- per month.
3. On issuance of notice, respondent No.2/Insurance Company appeared and filed statement of objections denying the entire claim petition averments. It also denied that the accident occurred due to negligent act of the driver of the tractor-trailer. It further contended that the driver of the Tractor-trailer was not holding valid and effective driving license and tractor was also not having valid permit and fitness as on the date of accident. Thus, prayed for dismissal of the claim petition.
4. Before the Tribunal, claimant No.1-wife of the deceased was examined herself as PW1 and got marked the documents as Exs.P1 to P14. On behalf of the respondents, Assistant Manager of respondent No.2 examined as RW1 and got marked insurance policy as Ex.R1. The Tribunal on scrutiny of entire material evidence on record awarded total -4- MFA NO.102141/2022 compensation of Rs.59,70,580/- with interest at 6% per annum on the following heads:
Loss of dependency Rs.57,80,580/-
Funeral expenses Rs. 15,000/-
Loss of estate Rs. 15,000/-
Loss of consortium Rs. 1,60,000/-
Total Rs.59,70,580/-
5. While awarding the above compensation, the Tribunal assessed income of the deceased at Rs.3,44,082/- per annum, added 40% of the assessed income towards future prospects and deducted 1/4th towards personal and living expenses of the deceased. Aggrieved by saddling of liability as well as quantum of compensation, the insurance company is in appeal.
6. Heard Sri.S.K.Kayakamath, learned counsel for the appellant-Insurer as well as Sri.Harish S Maigur, learned counsel for the respondents/claimants and perused the appeal papers along with original records of the Tribunal.
7. Sri.S.K.Kayakamath, learned counsel for the appellant-Insurance Company with vehemence would contend that the Tribunal committed an error in saddling liability on the appellant/insurance company, since the driver of tractor-trailer had no valid and effective driving license as -5- MFA NO.102141/2022 on the date of accident. He further contends that the Tribunal also committed an error in directing the appellant/Insurance Company to pay compensation at the first instance with liberty to recover the same from the owner of the offending vehicle. Further, learned counsel would submit that when there is no license and when owner or driver of the Tractor has failed to produced driving license of driver, the Tribunal ought not to have saddled liability on the insurance company.
8. As regards the quantum of compensation, learned counsel Sri. S.K.Kayakamth would submit that the Tribunal committed an error in assessing the income of the deceased at Rs.3,47,580/- based on Ex.P8-Income Tax returns for the Assessment Year 2018-19. Learned counsel would submit that the claim petition states that the deceased was working as driver and also doing business, but Ex.P8- acknowledgement for having paid income tax for A.Y.2018- 19 discloses gross income of the deceased at Rs.3,47,580/- per annum. Learned counsel would point out that the claimants have not placed on record income tax returns for -6- MFA NO.102141/2022 the assessment years prior to 2018-19. Further he would contend that no corroborative document in support of Ex.P8 or avocation of the deceased is produced. Hence, he submits that Ex.P8 cannot be believed. Thus, he submits that the income of the deceased assessed by the Tribunal at Rs.3,44,082/- per annum is on the higher side and prays for reassessing the income on downward. Further, Sri. S.K.Kayakamath would submit that in the absence of acceptable or credible document to establish the income of the deceased, it is for the Tribunal to assess the income of the deceased notionally taking note of income chart prepared by KSLSA. He therefore, submit that as per income chart prepared by KSLSA, notional income for the accident of the year 2019 would be Rs.13,250/- per month. Thus, he prays for allowing the appeal filed by the Insurance Company.
9. Per contra, Sri.Harish S Maigur, learned counsel for the respondents-claimants supporting impugned judgment and award of the Tribunal would submit that the Tribunal has rightly directed the insurance company to pay compensation at the first instance with liberty to recover the same from the owner of tractor-trailer. He submits that the -7- MFA NO.102141/2022 Hon'ble Apex Court in the case of Shamanna & Another Vs. Divisional Manager, Oriental Insurance Company Limited & Others1, has made it very clear that wherever the driver would not possess valid and effective driving license, it would be the case of 'Pay and Recover'. With regard to assessment of income of the deceased by the Tribunal, learned counsel would submit that the claimants have placed on record Ex.P8-Income Tax returns for A.Y.2018-19 and the Tribunal rightly placing on Ex.P8 has assessed the income of the deceased, which needs no interference. Learned counsel would further submit that the deceased was doing vegetable business and from vegetable business, he had earned gross income of Rs.3,47,580/- per annum for A.Y. 2018-19 and he has paid income tax of Rs.3,498/-. Thus, he submits that the Tribunal is right in assessing the income of the deceased based on Ex.P8. Hence, he prays for dismissal of the appeal filed by the Insurance Company.
1 2018 (9) SCC 650 -8- MFA NO.102141/2022
10. Having heard the learned counsel for the parties and on perusal of the appeal papers along with original records, the following points would arise for consideration:
a) Whether the Tribunal is justified in directing the insurance company to pay compensation at the first instance with liberty to recover the same from the owner of the offending vehicle?
b) Whether the Tribunal is justified in assessing the income of the deceased based on Ex.P8-
Income tax returns for A.Y.2018-19?
11. Our answer to the above points would be in the "affirmative" and "negative" respectively for the following reasons:
12. There is no dispute with regard to the accident occurred on 22.11.2019 involving motorcycle bearing registration No.KA-63/H-6400 and Tractor-trailer bearing registration No.KA-25/G-3878 & 3879, resultant death of deceased Bashasab Mulla in this appeal. The insurance company is in appeal challenging the liability as well as quantum of compensation.
13. The Tribunal on analysis of the material on record has come to a conclusion that the driver of the offending -9- MFA NO.102141/2022 tractor-trailer was not possessing valid and effective driving license as on the date of accident. In that circumstance, the Tribunal placing reliance on the decision of the Hon'ble Apex Court in Shamanna's case supra has rightly directed the insurance company to pay compensation at the first instance with liberty to recover the same from the owner of the offending vehicle. We do not find any infirmity in the said finding recorded by the Tribunal, which needs no interference at the hands of this Court.
14. Insofar as quantum of compensation is concerned, the Tribunal assessed income of the deceased at Rs.3,47,580/- per annum placing reliance on Ex.P8-Income tax returns for A.Y.2018-19. Except Ex.P8, no other corroborative document is placed on record to substantiate the income of the deceased. It is stated that the deceased was working as driver as well as doing vegetable business and earning Rs.28,948/- per month. The claimants have not placed on record any document to establish the avocation of the deceased as driver and no DL of the deceased is placed on record. It is also stated that the deceased was doing vegetable business. However, to establish the same, no
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MFA NO.102141/2022document whatsoever is placed on record. The claimants have placed on record Ex.P8-Income tax returns only for the A.Y.2018-19. No income tax returns prior to A.Y.2018-19 are placed on record. In the absence of any other corroborative document, it would not inspire the confidence of the Court to consider Ex.P8 to determine the income. Only Ex.P8 cannot be the basis to determine or assess the income of the deceased. Therefore, in the above circumstances, we are of the considered view that Ex.P8 cannot be believed or taken into consideration to establish the income of the deceased. Since there is no acceptable or credible document on record to establish income of the deceased, we deem it appropriate to assess the income of the deceased notionally at Rs.13,250/- per month in terms of notional income chart prepared by KSLSA.
15. There is no dispute with regard to age of the deceased as 33 years, applicable multiplier of 16, deduction of 1/4th towards personal and living expenses of the deceased, since there are five dependents and addition of 40% of the assessed income towards future prospects. Thus, the claimants would be entitled for modified
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MFA NO.102141/2022compensation on the head of loss of dependency at Rs.26,71,200/- (13,250 + 40/100 x 12 x 16 x 3/4).
16. The award of compensation by the Tribunal on the heads of funeral expenses and loss of estate is just and proper, needs no interference. It is well settled law that the claimants would be entitled to a sum of Rs.44,000/- each on the head of loss of consortium including 10% escalation. Thus, the claimants would be entitled for modified compensation on the following heads:
Sl.No. Particulars Amount
1. Loss of dependency Rs.26,71,200/-
2. Loss of estate & Funeral Rs. 33,000/-
expenses
3. Loss of consortium Rs. 2,20,000/-
(Rs.44,000/- each)
Total Rs.29,24,200/-
17. Thus, the claimants would be entitled to total compensation of Rs.29,24,200/- as against Rs.59,70,580/- awarded by the Tribunal.
18. In the result, we proceed to pass the following:
ORDER
a) Appeal stands allowed in part.
b) The impugned judgment and award of Tribunal is modified to an extent that
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claimants would be entitled for total
compensation of Rs.29,24,200/- as
against Rs.59,70,580/- awarded by
Tribunal.
c) The entire compensation amount will bear interest at the rate of 6% per annum from the date of petition its realization.
d) The apportionment, disbursement and deposit of compensation amount shall be made as per the award of the Tribunal.
e) The amount in deposit shall be transmitted to the concerned Tribunal along with TCR.
f) It is made clear that the Insurance
Company shall pay the compensation
amount at the first instance with liberty to recover the same from the owner of the offending tractor-trailer.
g) Draw modified award accordingly.
Sd/-
JUDGE Sd/-
JUDGE JTR