Karnataka High Court
The Branch Manager The Oriental ... vs Jayashree And Ors on 25 July, 2024
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NC: 2024:KHC-K:5377-DB
MFA No. 202908 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. 202908 OF 2022 (MV-D)
BETWEEN:
THE BRANCH MANAGER
THE ORIENTAL INSURANCE CO. LTD.,
S S FRONT ROAD,
BIDARI COMPLEX, VIJAYPUR.
(NOW REPRESENTED BY AUTHORIZED
SIGNATORY, R.O. HUBLI)
...APPELLANT
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
AND:
Digitally signed
by
BASALINGAPPA 1. JAYASHREE
SHIVARAJ
DHUTTARGAON W/O RAJIV GHANTE,
Location: HIGH AGE: 42 YEARS,
COURT OF
KARNATAKA OCC: H H WORK.
2. ANJALI
D/O RAJIV GHANTE,
AGE: 19 YEARS,
OCC: STUDENT.
3. NAGANATH
S/O RAJIV GHANTE,
AGE: 19 YEARS,
OCC: STUDENT.
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NC: 2024:KHC-K:5377-DB
MFA No. 202908 of 2022
4. NAGAWWA
W/O NAGANATH GHANTE,
AGE: 71 YEARS,
OCC: H H WORK,
ALL R/O MANGOLI, WANGHI,
TQ. SOUTH SOLAPUR,
NOW R/O AT CIB COLONY,
KALABURAGI - 585 101.
5. ANAND
S/O CHANDRAM KORE
AGE: 49 YEARS,
OCC: BUSINESS,
KANDALGAON,
TQ. SOUTH SOLAPUR,
DISTRICT: SOLAPUR - 413 001.
...RESPONDENTS
(BY SRI. BASAVARAJ R. MATH, ADV. FOR R1 AND R4;
NOTICE TO R2, R3, AND R5 ARE SERVED)
THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING TO
ALLOW THE ABOVE APPEAL BY SETTING ASIDE THE IMPUGNED
JUDGMENT AND AWARD DATED 27.07.2022 IN MVC
NO.585/2018 PASSED BY THE PRL SENIOR CIVIL JUDGE AND
MACT AT KALABURAGI, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, 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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NC: 2024:KHC-K:5377-DB
MFA No. 202908 of 2022
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Miscellaneous First Appeal is filed challenging the judgment and award dated 27.07.2022 passed in M.V.C.No.585/2018 by the Prl. Senior Civil Judge and MACT, Kalaburagi (hereinafter referred to as 'the Tribunal', for short).
2. For the sake of convenience, parties are referred to as per their ranking before the Claims Tribunal.
3. The brief facts leading rise to filing of this appeal are as under:
On 09.07.2017 in the evening hours, Rajiv Ghante (deceased in this case) was returning towards his house at Managoli, Wangi of South Solapur after completing his duty. When he was near Soregaon Bus Stop at Soregaon village on Solapur to Vijayapur Highway road, at about 09:15 p.m., the rider of the motorcycle bearing Registration No.MH-13/CP-0737 came in high speed and in -4- NC: 2024:KHC-K:5377-DB MFA No. 202908 of 2022 a rash and negligent manner and dashed to Rajiv Ghante, due to which, he sustained grievous injuries and succumbed to the injuries during the treatment period. It is contended that the deceased was 43 years and was working as Technician in Maharashtra State Electricity Distribution Company Limited, Solapur and drawing a monthly salary of Rs.45,481/-. It is contended that, the claimants being the legal representatives of the deceased Rajiv Ghante filed the claim petition under Section 166 of Motor Vehicles Act, seeking compensation on the account of death of deceased Rajiv Ghante in a road traffic accident.
4. Respondent No.1 placed exparte. Respondent No.2 filed the written statement contending that offending motorcycle was not insured with respondent Company and denied age, occupation and income of the deceased and also denied the rash and negligent riding of the rider of the motorcycle. It is contended that rider of the motorcycle was not possessing valid and effective driving -5- NC: 2024:KHC-K:5377-DB MFA No. 202908 of 2022 license as on the date of accident. Hence, insurance company is not liable to pay the compensation amount as claimed by the petitioners. Hence, prayed to dismiss the petition against respondent No.2.
5. The Tribunal on the basis of the pleadings of the parties framed the relevant issues. The petitioners in order to prove the claim petition petitioner No.1 was examined as PW.1 and also examined doctor as PW.2 and got marked 16 documents as Exs.P1 to 16. The Respondent No.2- insurance company examined the Investigating Officer as RW.1 and its official as RW.2 and got marked one document as Ex.R1.
6. The Tribunal after recording the evidence of the parties, hearing on both sides and on the assessment of oral and documentary evidence, allowed the claim petition in part with costs. It is held that the petitioners are entitle for compensation of Rs.73,44,000/- and held that respondent Nos.1 and 2 are jointly and severally liable to pay the compensation amount along with interest @ 6% -6- NC: 2024:KHC-K:5377-DB MFA No. 202908 of 2022 p.a. from the date of petition till the actual realization of the entire amount and directed respondent No.2 to deposit the compensation amount.
7. Respondent No.2, aggrieved by the judgment and award passed by the Tribunal in MVC No.585/2018, has filed this Miscellaneous First Appeal.
8. Heard the learned counsel for respondent No.2 and also learned counsel for the petitioners.
9. Learned counsel for respondent No.2 submits that police have filed a false charge sheet implicating offending motorcycle. She submits that there was no negligence on the part of the rider of the offending vehicle and said vehicle has been falsely implicated in order to claim the compensation and the Tribunal has committed an error in recording the finding that the accident was occurred due to rash and negligent riding of the rider of the offending vehicle. She further submits that -7- NC: 2024:KHC-K:5377-DB MFA No. 202908 of 2022 compensation awarded by the Tribunal is on higher side. Hence, on these grounds, she prays to allow the appeal.
10. Per contra, learned counsel for the petitioners submits that accident was occurred on 09.07.2017 and complaint was filed on 10.07.2017. The police after investigation filed the charge sheet. He further submits that the accident was occurred due to rash and negligent riding of the rider of the motorcycle and submits that neither respondent No.2 has challenged the charge sheet filed against the rider of the motorcycle. Hence, he submits that the Tribunal placing the reliance on Ex.P3 i.e., charge sheet has rightly exonerated the liability on the respondent Nos.1 and 2 jointly. Hence, he further submits that compensation awarded by the Tribunal is just and proper and does not call for any interference. Hence, on these grounds, he prays to dismiss the appeal.
11. Perused the records and considered the submissions of the learned counsel for the parties. The -8- NC: 2024:KHC-K:5377-DB MFA No. 202908 of 2022 point that arises for our consideration are liability and quantum.
12. Insofar as the liability is concerned:
It is not in dispute that Rajiv Ghante met with an accident and sustained grievous injuries and succumb to the injuries. In order to establish that the accident was occurred due to rash and negligent riding of the rider of the motorcycle, the petitioners produced certified copy of the FIR marked as Ex.P1. It's translation copy marked as Ex.P1(a). The police after investigation filed the charge sheet marked as Ex.P3 and it's translation copy marked as Ex.P3(a). From the perusal of Ex.P3(a), it discloses that accident was occurred due to rash and negligent riding of the rider of the offending vehicle. Further, respondent has examined Investigating Officer as RW.1. He has deposed that after investigation, he filed the charge sheet as per Ex.P3 and he has also deposed that accident was occurred due to rash and negligent riding of the rider of the motorcycle. The Tribunal considering the evidence of -9- NC: 2024:KHC-K:5377-DB MFA No. 202908 of 2022 PW.1, was justified in recording its finding that the accident was occurred due to rash and negligent riding of the rider of the offending vehicle.
13. Insofar as quantum: Though it is the case of the petitioners that petitioner was working in Maharashtra State Electricity Distribution Company Limited, Solapur and drawing a monthly salary of Rs.44,481/-, in order to establish that the petitioner was working in Maharashtra State Electricity Distribution Company Limited, examined its officer as RW.2, who has deposed that he was working at Maharashtra State Electricity Distribution Company Limited, Solapur. Further, the petitioners have produced the copy of salary certificate of deceased marked as Exs.P5 to 10. The deceased was drawing a salary of Rs.33,524/- after deduction. The deceased was aged about 42 years. On going through Ex.P5 to 10, the deceased was drawing regular salary of Rs.33,524/-. Thus, annual income of the deceased would be Rs.4,02,288/-. As per the Income Tax slab for the
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NC: 2024:KHC-K:5377-DB MFA No. 202908 of 2022 financial year 2017-18, up to Rs.3,00,000/- Income Tax is exempted, exceeding Rs.3,00,000/- to Rs.5,00,000/-, 10%, which comes to Rs.33,524X 12 = Rs.4,02,288 - Rs.3,00,000 = Rs.1,02,288/-. Rs.1,02,288 X 10%= Rs.10,288/- and professional tax has to be deducted i.e., Rs.2,400/-. Thus, the petitioners are entitled for Rs.12,628/-, which has to be deducted out of (Rs.4,02,288
-Rs.3,89,660/-). In addition to it, as per the law laid down by the Hon'ble Apex Court in the case of NATIONAL INSURANCE CO., LTD., VS. PRANAY SETHI AND OTHERS REPORTED IN AIR 2017 SC 5157 , 30% has to be added towards future prospects i.e., Rs.1,16,898/-. Thus annual income of the deceased was Rs.5,06,558/-.
14. There are four claimants. Hence, 1/4th has to be deducted towards personal expenses of the deceased i.e., Rs.5,06,558- Rs.1,26,639 = Rs.3,79,919/-. As on the date of the accident, the deceased was aged 42 years, as per the decision of Hon'ble Apex Court in the case of SARLA VERMA (SMT) & OTHERS VS. DELHI TRANSPORT CORPORATION
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NC: 2024:KHC-K:5377-DB MFA No. 202908 of 2022 & ANOTHER, REPORTED IN (2009) 6 SCC 121, the multiplier applied to the age group of the petitioner is '14' which is rightly taken by the tribunal. Therefore, the petitioners are entitled for a sum of Rs.53,18,866/-(3,79,919 X14) on account of loss of dependency, wherein the Tribunal has granted Rs.71,54,210/- which needs to be reduced. Thus we assess the income of compensation under the head of 'Loss of dependency' as Rs.53,18,866/-.
15. There are four petitioners. In view of the law laid down by the Hon'ble Supreme Court in MAGMA GENERAL INSURANCE COMPANY LIMITED VS. NANU RAM ALIAS CHUHRU RAM & OTHERS reported in 2018 ACJ 2782, each of the petitioners are entitled for a sum of Rs.44,000/- under the head of 'loss of consortium', which comes to Rs.1,76,000/- (Rs.44,000 X 4). In addition to it, the petitioners are entitled for Rs.16,500/- towards funeral expenses and Rs.16,500/- towards loss of estate.
16. Thus, the petitioners are entitled for total compensation of Rs.55,27,866/- as against Rs.73,44,000/-
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NC: 2024:KHC-K:5377-DB MFA No. 202908 of 2022 The compensation awarded by the tribunal has to be reduced.
17. Accordingly, we proceed to pass the following;
ORDER
(a) The appeal is allowed in part.
(b) The judgment and award passed by the Tribunal is modified.
(c) The petitioners are entitled for total compensation of Rs.55,27,866/- with interest @ 6% p.a. from the date of petition till the realization of amount.
(d) Respondent No.2 is directed to deposit entire compensation amount within a period of eight weeks from the date of receipt of copy of this judgment.
(e) Amount and deposit to be transmitted to the Tribunal.
(f) Office is directed to transmit the trial Court records to the Tribunal forthwith.
Sd/-
(ASHOK S. KINAGI) JUDGE Sd/-
(RAJESH RAI K) JUDGE HKV,SKS List No.: 1 Sl No.: 23