Karnataka High Court
Rukumabai And Ors vs Karan Ajay Bathla And Anr on 25 July, 2024
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NC: 2024:KHC-K:5320-DB
MFA No.202640 of 2022
C/W MFA No.202641 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
MISCL. FIRST APPEAL NO.202640 OF 2022 (MV-D)
C/W
MISCL. FIRST APPEAL NO.202641 OF 2022 (MV-D)
IN M.F.A.NO.202640 OF 2022
BETWEEN:
1. SHRIDEVI
W/O VIRUPAKASHI WALI,
AGE: 51 YEARS,
OCC: HOUSEHOLD WORK,
Digitally signed R/O NEAR SHANMUKHSWAMI MATH,
by
BASALINGAPPA BENDIGERI GALLI, STATION ROAD,
SHIVARAJ
DHUTTARGAON VIJAYAPURA - 586 101.
Location: HIGH
COURT OF
KARNATAKA 2. CHETAN
S/O VIRUPAKSHI WALI,
AGE: 28 YEARS,
OCC: STUDENT,
R/O NEAR SHANMUKHSWAMI MATH,
BENDIGERI GALLI, STATION ROAD,
VIJAYAPURA - 586 101.
GURUBAI W/O GURUPAD WALI
(DIED ON 05.08.2019 AND
HER LRS ALREADY ON RECORD)
...APPELLANTS
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MFA No.202640 of 2022
C/W MFA No.202641 of 2022
(BY SRI SANGANABASAVA B.PATIL, ADVOCATE)
AND:
1. KARAN AJAY BATHLA
AGE: MAJOR,
OCC: BUSINESS,
R/O C-150, 1ST FLOOR, RISHI NAGAR,
RANI BAGH, PITAMPURA,
SARASWATI VIHAR, DELHI,
NORTH WEST DELHI - 110 034.
(OWNER OF TATA LPT
-2518 NO.HR-55/EA-0806)
2. THE MANAGER LEGAL,
ICICI LOMBARD
GENERAL INSURANCE CO. LTD.,
COURT ROAD, KOTHARI COMPLEX,
KALABURAGI - 585 101.
(POLICY NO:3003/TM-100128946/00/000
VALID FROM 01.09.2018 TO 31.08.2019)
...RESPONDENTS
(BY SRI MANJUNATH MALLAYYA SHETTY, ADVOCATE FOR R2;
V/O DTD. 16.06.2023 NOTICE TO R1 STANDS DISMISSED
WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS
AND MODIFY THE JUDGEMENT AND AWARD PASSED BY THE
COURT OF IV ADDL. SENIOR CIVIL JUDGE AND MEMBER, MACT
NO.-XV VIJAYAPUR AT VIJAYAPUR IN MVC NO.540/2019 DATED
10.12.2021 AND BE PLEASED TO ALLOW THE CLAIM PETITION
BY ENHANCING GRANTING THE RELIEF AS PRAYED FAR BY THE
APPELLANTS HEREIN THE INTEREST OF JUSTICE AND EQUITY.
IN M.F.A.NO.202641 OF 2022
BETWEEN:
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NC: 2024:KHC-K:5320-DB
MFA No.202640 of 2022
C/W MFA No.202641 of 2022
1. RUKUMABAI
W/O SHARANABASAPPA KATTIMANI,
AGE: 55 YEARS,
OCC: HOUSEHOLD WORK,
R/O: BENDIGERI GALLI,
STATION ROAD,
VIJAYAPURA - 586 101.
2. VIKAS SHARANABASAPPA KATTIMANI
AGE: 31 YEARS,
OCC: STUDENT,
R/O: BENDIGERI GALLI,
STATION ROAD,
VIJAYAPURA - 586 101.
3. VIJAY SHARANABASAPPA KATTIMANI I.,
AGE: 29 YEARS,
OCC: STUDENT,
R/O: BENDIGERI GALLI,
STATION ROAD,
VIJAYAPURA - 586 101.
GURUBAI W/O GURUPAD WALI
(DIED ON 05.08.2019 AND
HER LRS ALREADY ON RECORD)
...APPELLANTS
(BY SRI SANGANABASAVA B.PATIL, ADVOCATE)
AND:
1. KARAN AJAY BATHLA
AGE: MAJOR,
OCC: BUSINESS,
R/O C-150, 1ST FLOOR, RISHI NAGAR,
RANI BAGH, PITAMPURA,
SARASWATI VIHAR, DELHI,
NORTH WEST DELHI - 110 034.
(OWNER OF TATA LPT
-2518 NO.HR-55/EA-0806)
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NC: 2024:KHC-K:5320-DB
MFA No.202640 of 2022
C/W MFA No.202641 of 2022
2. THE MANAGER LEGAL,
ICICI LOMBARD
GENERAL INSURANCE CO. LTD.,
COURT ROAD, KOTHARI COMPLEX,
KALABURAGI - 585 101.
(POLICY NO:3003/TM-100128946/00/000
VALID FROM 01.09.2018 TO 31.08.2019)
...RESPONDENTS
(BY SRI MANJUNATH MALLAYYA SHETTY, ADVOCATE FOR R2;
V/O DTD. 16.06.2023 NOTICE TO R1 STANDS DISMISSED
WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS
AND MODIFY THE JUDGEMENT AND AWARD PASSED BY THE
COURT OF IV ADDL. SENIOR CIVIL JUDGE AND MEMBER, MACT
NO.-XV VIJAYAPUR AT VIJAYAPUR IN MVC NO.536/2019 DATED
10.12.2021 AND BE PLEASED TO ALLOW THE CLAIM PETITION
BY ENHANCING GRANTING THE RELIEF AS PRAYED FAR BY THE
APPELLANTS HEREIN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
HON'BLE MR. JUSTICE RAJESH RAI K
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MFA No.202640 of 2022
C/W MFA No.202641 of 2022
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE ASHOK S. KINAGI) These two appeals are arising out of judgment and award dated 10.12.2021 passed in MVC Nos.536/2019 and 540/2019 by the II Additional Senior Civil Judge and Member, MACT-XV, Vijayapura.
2. For the sake of convenience the parties are referred to as per their ranking before the Tribunal. In MFA No.202640/2022, appellants are petitioners in MVC No.540/2019, respondents are common in both MVC Nos.536/2019 and 540/2019. In MFA No.202641/2022, appellants are petitioners in MVC No.536/2019.
3. Brief facts leading rise to filing of this appeal are as under;
That on 21.01.2019, at about 3.00 p.m., on Hubli Vijayapura road on NH-218 near Kerur in Badami Taluka of Bagalkot District when the deceased person were going towards Hubli in Maxi Cab No.KA-28-C-4869, at that time, -6- NC: 2024:KHC-K:5320-DB MFA No.202640 of 2022 C/W MFA No.202641 of 2022 TATA truck No.HR-55/EA-0806 came from opposite side being driven by its driver in high speed and in rash and negligent manner and dashed to their Maxi Cab and caused accident. Due to the impact, both Sharanabasappa and Virupakshi @ Virupaxi sustained fatal injuries and succumb to the injuries. It is contended that the petitioners are legal representatives of both deceased Sharanabasappa and Virupakshi @ Virupaxi were depending on the income of the deceased persons. Hence, filed the claim petitions under Section 166 of M.V.Act seeing for the compensation on the account of death of Sharanabasappa and Virupakshi @ Virupaxi in the road traffic accident.
4. Respondent No.1 was placed exparte. Respondent No.2 filed the written statement denying the averments made in the claim petition. It is contended that the accident was occurred due to rash and negligent driving of the driver of the offending vehicle. Hence, -7- NC: 2024:KHC-K:5320-DB MFA No.202640 of 2022 C/W MFA No.202641 of 2022 prayed to dismiss the claim petitions against respondent No.2.
5. The Tribunal on the basis of the pleadings of the parties framed the issues. Both the claim petitions are clubbed together by the Tribunal and common evidence was recorded. The petitioners were examined as PW.1 and 2 and got marked 23 documents as Exs.P1 to 23. On the contrary respondent NO.2 has not led any evidence.
6. The tribunal after recording the evidence, hearing the learned counsel for the parties and on the assessment of oral and documentary evidence allowed the claim petitions in part with costs. It is ordered that petitioners in MVC No.536/2019 are entitled for compensation of Rs.13,63,000/- and petitioners in MVC No.540/2019 are entitled for compensation of Rs.15,96,000/- with interest @ 6% p.a. from the date of petition till realization. It is also held that respondent Nos.1 and 2 are jointly and severally liable to pay the compensation amount to the petitioners and directed -8- NC: 2024:KHC-K:5320-DB MFA No.202640 of 2022 C/W MFA No.202641 of 2022 respondent No.2 to deposit the compensation amount before the Tribunal within a period of two months from the date of receipt of copy of the order.
7. The petitioners being dissastified with the compensation awarded by the Tribunal filed these Miscellaneous First Appeals seeking for enhancement of compensation.
8. Heard the learned counsel for the petitioners and also learned counsel for respondent No.2.
9. Learned counsel for the petitioners submits that compensation awarded by the Tribunal is on lower side. Hence, on these grounds, he prays to allow the appeals.
10. Per contra, learned counsel for respondent No.2 supports the impugned judgment and hence, prayed to dismiss the appeals.
11. Perused the records and considered the submissions of the learned counsel for the parties. The -9- NC: 2024:KHC-K:5320-DB MFA No.202640 of 2022 C/W MFA No.202641 of 2022 point that arises for our consideration is with regard to quantum of compensation.
12. It is not in dispute that the Sharanabasappa and Virupakshi @ Virupaxi met with an accident and sustained injuries and succumbed to the injuries. In order to establish that the accident was occurred due to rash and negligent driving of the driver of the offending vehicle, the petitioners have produced certified copy of FIR marked as Ex.P1 and produced certified copy of the charge sheet marked as Ex.P15. Ex.P15 discloses that accident was occurred due to rash and negligent driving of the driver of the offending vehicle.
13. Insofar as quantum is concerned in MFA No.202640/2022:
Though the petitioners contended that deceased Virupakshi @ Virupaxi was carrying on a business of Xerox and earning Rs.1,00,000/- per month. In order to substantiate the income, the petitioners have not
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NC: 2024:KHC-K:5320-DB MFA No.202640 of 2022 C/W MFA No.202641 of 2022 produced any income proof. In the absence of income proof, the Tribunal has taken notional income of Rs.13,250/-. As the accident is of the year 2019, the Tribunal was justified in assessing notional income of the deceased at Rs.13,250/- and the Tribunal has also added 10% income towards future prospects. The deceased was aged about 56 years as on the date of accident and rightly added 10% future prospects to the notional income and rightly taken notional income and rightly applied multiplier and granted compensation amount of Rs.15,96,000/-. Hence, we do not find any error in the impugned judgment.
14. The Tribunal without considering the law laid down by the Hon'ble Apex Court in the case of Magma General Insurance Company Limited vs. Nanu Ram Alias Chuhru Ram & Others reported in (2018) 18 SCC 130, each petitioners are entitled to a sum of Rs.44,000/- towards loss of consortium. There are 2 petitioners. Thus, the petitioners are entitled for compensation of
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NC: 2024:KHC-K:5320-DB MFA No.202640 of 2022 C/W MFA No.202641 of 2022 Rs.88,000/- (44,000 x 2) towards loss of consortium. In addition, the petitioners are entitled to a sum of Rs.15,000/- towards funeral expenses and Rs.15,000/- under the head of loss of estate.
15. Thus, the petitioners are entitled for a total compensation of Rs.17,14,000/- as against Rs.15,96,000/- awarded by the Tribunal. Hence, the petitioners are entitled for an enhanced compensation of Rs.1,18,000/- with interest @ 6% p.a.
16. Insofar as quantum is concerned in MFA No.202641/2022:
Though the petitioners contended that deceased Sharanabasappa Kattimani was self employed and owner of barber saloon. The Tribunal has taken notional income of Rs.9,717/-. As the accident is of the year 2019, the Tribunal was justified in assessing notional income of the deceased. The deceased was aged about 55 years as on the date of accident and rightly taken notional income and
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NC: 2024:KHC-K:5320-DB MFA No.202640 of 2022 C/W MFA No.202641 of 2022 rightly applied multiplier and granted compensation amount of Rs.13,63,000/-. Hence, we do not find any error in the impugned judgment.
17. The Tribunal without considering the law laid down by the Hon'ble Apex Court in the case of Magma General Insurance Company Limited vs. Nanu Ram Alias Chuhru Ram & Others reported in (2018) 18 SCC 130, each petitioners are entitled to a sum of Rs.44,000/- towards loss of consortium. There are 3 petitioners. Thus, the petitioners are entitled for compensation of Rs.1,32,000/- (44,000 x 3) towards loss of consortium. In addition, the petitioners are entitled to a sum of Rs.15,000/- towards funeral expenses and Rs.15,000/- under the head of loss of estate.
18. Thus, the petitioners are entitled for a total compensation of Rs.15,25,000/- as against Rs.13,63,000/- awarded by the Tribunal. Hence, the petitioners are entitled for an enhanced compensation of Rs.1,62,000/- with interest @ 6% p.a.
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19. In view of the above discussion, we proceed to pass the following:
ORDER
(a) The appeals are allowed in part.
(b) The impugned judgment and award dated 10.12.2021 passed by the Tribunal is modified.
(c) The petitioners are entitled for enhanced compensation of Rs.1,18,000/- in MVC No.540/2019 and the petitioners are entitled for enhanced compensation of Rs.1,62,000/- in MVC No.536/2019 along with interest at the rate of 6% per annum from the date of petition till realization.
(d) The respondent No.2 is directed to deposit the enhanced compensation amount before the Tribunal with interest within a period of eight weeks from the date of receipt of certified copy of this judgment.
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(e) Registry to transmit the Trial Court records to the Tribunal.
Sd/-
(ASHOK S. KINAGI) JUDGE Sd/-
(RAJESH RAI K) JUDGE SKS,VNR List No.: 1 Sl No.: 9