Karnataka High Court
Pappu And Anr vs Ashis And Anr on 25 July, 2024
-1-
NC: 2024:KHC-K:5324-DB
MFA No.200826 of 2023
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.200826 OF 2023 (MV-D)
BETWEEN:
1. PAPPU
S/O PANDURANG BANDGAR,
AGED ABOUT 32 YEARS,
OCC: COOLIE,
2. BALIKA
D/O PANDURANG BANDGAR,
W/O DHANAJI
AGE: 30 YEARS,
OCC: HOUSEHOLD,
Digitally signed by
BASALINGAPPA
SHIVARAJ BOTH R/O BANDGARWADI,
DHUTTARGAON
Location: HIGH
TQ: BASAVAKALYAN
COURT OF DIST: BIDAR - 585 327.
KARNATAKA
...APPELLANTS
(BY SRI SHAMBULING S.SALE, ADVOCATE)
AND:
1. ASHISH
S/O GAYANCHAND JAIN
AGE: MAJOR,
OCC: BUSINESS
AND OWNER OF TATA
-2-
NC: 2024:KHC-K:5324-DB
MFA No.200826 of 2023
TANKER VEHICLE MH-46/F-5509,
R/O C-901, TIARA RESIDENCY COMPLEX,
PLOT NO.184, SECT-13,
KHARGHAR, TQ: PANVEL,
DIST: RAIGAD, MAHARASTRA - 410 206.
2. THE DIVISIONAL MANAGER
NEW INDIA ASSURANCE COMPANY, LTD.,
10-2-7, P.B.12, II FLOOR,
S.B. TEMPLE ROAD,
SANGAMESHWAR COLONY,
KALABURAGI - 585 102.
...RESPONDENTS
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R2;
V/O DTD. 21.03.2023 NOTICE TO R1 DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO ALLOW THE APPEAL,
MODIFY THE IMPUGNED JUDGMENT AND AWARD DATED
22.11.2016 PASSED BY THE COURT OF THE II-ADDL. DISTRICT
AND SESSIONS COURT AND ADDL. MACT, BIDAR, SITTING AT
BASAVAKALYAN, IN MVC NO.473/2015, AND ENHANCE THE
COMPENSATION AS PRAYED FOR, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS MFA 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
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Miscellaneous First Appeal is filed by the claimants/appellants under Section 173(1) of the Motor -3- NC: 2024:KHC-K:5324-DB MFA No.200826 of 2023 Vehicles Act (for short, hereinafter referred to as 'the Act') against the judgment and award dated 22.11.2016 passed by II-Additional District and Sessions Court and Additional Motor Accident Claims Tribunal, Bidar sitting at Basavakalyan, in MVC No.473/2015.
2. Parties to the appeal shall be referred to as per their status before the Tribunal.
3. Brief facts giving rise to filing of this appeal are that on 27.06.2015 at 4.00 p.m., the deceased- Sukumarbai W/o Pandurang Bandgar who was proceeding towards Bandgarwadi in the Ape auto bearing registration No.MH-25/M-0651 met with accident due to rash and negligent driving of the driver of Tata Tanker bearing registration No.MH-46/F-5509. The accident has occurred due to rash and negligent driving of the driver of the offending Tanker. In the said accident, the deceased- Sukumarbai sustained grievous injuries and succumbed to the injuries. The petitioners being the legal representatives of the deceased-Sukumarbai filed claim -4- NC: 2024:KHC-K:5324-DB MFA No.200826 of 2023 petition under Section 166 of the Act seeking compensation on account of the death of Sukumarbai in the road traffic accident.
4. Respondent Nos.1 and 2 filed separate written statements denying the averments made in the claim petition. It is contended by respondent No.1 that the driver of the Tanker was holding valid and effective driving licence as on the date of the accident and the insurance policy was in force and as such, respondent No.2 is liable to pay the compensation and prayed to dismiss the claim petition against respondent No.1.
5. It is contended by respondent No.2 that the driver of the offending Tanker was not possessing valid and effective driving licence as on the date of the accident and hence, respondent No.2 is not liable to pay compensation as claimed by the petitioners and prayed to dismiss the claim petition against respondent No.2. -5-
NC: 2024:KHC-K:5324-DB MFA No.200826 of 2023
6. The Tribunal on the basis of pleadings of the parties framed the issues for its consideration.
7. In order to prove the claim petition before the Tribunal, petitioner No.2 examined herself as PW.1 and got marked 12 documents as Exs.P1 to P12. However, the respondents neither led any oral evidence nor produced any documentary evidence.
8. The Tribunal after recording the evidence of PW.1, hearing on both sides and on assessment of oral and documentary evidence, allowed the claim petition in part with costs. It is ordered that the petitioners are entitled for compensation of Rs.7,70,000/- with interest at the rate of 7% per annum from the date of petition till its complete realization. It is also held that respondent Nos.1 and 2 are jointly and severally liable to pay the compensation and directed respondent No.2 to deposit the compensation amount within two months from the date of passing of the award.
-6-
NC: 2024:KHC-K:5324-DB MFA No.200826 of 2023
9. The petitioners being dissatisfied with the compensation awarded by the Tribunal in the aforesaid claim petition filed this appeal seeking for enhancement of compensation.
10. We have heard the learned counsel for the appellants/petitioners and learned counsel for respondent No.2-Insurance Company.
11. Learned counsel for the petitioners submits that the compensation awarded by the Tribunal is on the lower side and on these grounds, he prays to allow the appeal.
12. Per contra, learned counsel for respondent No.2
-Insurance Company supports the impugned judgment and award passed by the Tribunal and submits that the compensation awarded by the Tribunal is just and proper and the same does not call for any interference. On these grounds, she prays to dismiss the appeal.
13. Perused the records and considered the submissions of learned counsel for the parties. -7-
NC: 2024:KHC-K:5324-DB MFA No.200826 of 2023
14. The point that arises for our consideration is with regard to quantum of compensation.
15. It is not in dispute that the deceased- Sukumarbai met with accident and sustained grievous injuries and succumbed to the injuries. In order to establish that the accident has occurred due to rash and negligent driving of the driver of the offending Tanker, the petitioners have produced certified copy of the FIR marked as Ex.P1 and its translation in English is marked as Ex.P1(a). From perusal of Ex.P1, it discloses that the accident has occurred due to rash and negligent driving of the driver of the offending Tanker. Therefore, the Tribunal was justified in recording a finding that the accident has occurred due to rash and negligent driving of the driver of the offending Tanker.
16. Insofar as quantum of compensation is concerned, it is the case of the petitioners that deceased- Sukumarbai was working as coolie and was earning a sum -8- NC: 2024:KHC-K:5324-DB MFA No.200826 of 2023 of Rs.2,00,000/- per annum. However, in order to substantiate the same, the petitioners have not produced any income proof. In the absence of proof of income, the notional income of the deceased will have to be taken as per the chart provided by the Karnataka State Legal Services Authority. In terms of the chart, for the accident of the year 2015, the notional income of the deceased will have to be taken at Rs.8,000/- as against Rs.6,000/- per month taken by the Tribunal. To the aforesaid amount, as the deceased was aged 40 years, 25% of the said amount has to be added on account of future prospects in view of the law laid down by the Constitution Bench of the Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and Others reported in AIR 2017 SC 5157. Thus, the monthly income comes to Rs.10,000/-. Out of which, considering that there are two dependents, we deem it appropriate to deduct 1/3rd of the said income towards personal expenses of the deceased and therefore, the monthly income of the deceased comes to Rs.6,667/-. Taking into account the -9- NC: 2024:KHC-K:5324-DB MFA No.200826 of 2023 age of the deceased which was 40 years at the time of accident, multiplier of 15 has to be adopted as per the judgment of the Hon'ble Supreme Court in the case of Sarla Verma vs. Delhi Transport Corporation reported in (2009) 6 SCC 121. Therefore, the petitioners are entitled to a sum of Rs.12,00,060/- (Rs.6,667/- x 12 x 15) on account of loss of dependency.
17. Further, in view of the law laid down by the Hon'ble Supreme Court in the case of Magma General Insurance Company Limited vs. Nanu Ram Alias Chuhru Ram & Others reported in (2018) 18 SCC 130, each petitioner is entitled to a sum of Rs.44,000/- towards loss of consortium. The petitioners are two in number, hence, the compensation towards loss of consortium would be Rs.88,000/- (44,000 x 2). In addition, the petitioners/appellants are entitled a sum of Rs.16,500/- towards funeral expenses and other ceremonies and a sum of Rs.16,500/- towards loss of estate.
- 10 -
NC: 2024:KHC-K:5324-DB MFA No.200826 of 2023
18. Thus, in all, the petitioners are entitled to a total compensation of Rs.13,21,060/- as against Rs.7,70,000/- awarded by the Tribunal. The petitioners entitled for an enhanced compensation of Rs.5,51,060/-.
19. In view of the above discussion, we proceed to pass the following:
ORDER i. The appeal is allowed in part.
ii. The impugned judgment and award
passed by the Tribunal is modified.
iii. The petitioners are entitled to total
compensation of Rs.13,21,060/- as
against Rs.7,70,000/- awarded by the Tribunal. Hence, the petitioners are entitled to enhanced compensation of Rs.5,51,060/- along with interest at the rate of 6% per annum from the date of petition till the date of realization.
iv. Respondent No.2/Insurance Company is
directed to deposit the enhanced
compensation amount before the Tribunal
- 11 -
NC: 2024:KHC-K:5324-DB MFA No.200826 of 2023 within a period of eight weeks from the date of the receipt of certified copy of this judgment.
v. On deposit of enhanced compensation amount by respondent No.2-Insurance Company, the Tribunal is directed to release the entire compensation amount in favour of the petitioners as per the apportionment made by the Tribunal.
vi. Rest of the judgment is maintained.
Sd/-
JUDGE Sd/-
JUDGE NB List No.: 1 Sl No.: 24 Ct;Vk