Karnataka High Court
Smt. Sarojini W/O Mahabaleshwar ... vs Mustaq S/O Shahamad Sayyad on 9 December, 2021
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 9 T H DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
M.F.A.No.21665/2010 (MV-D)
C/W
MFA CROB No.781 /2011
IN MFA 21665/2010:
BETWEEN:
The New I ndia Assurance Co ., Ltd.,
Issuing Office Hutatma S mruti Mandir,
Complex Park So lapur
Through its D ivisio nal Manager
The New I ndia Assurance Co ., Ltd.,
Club Ro ad, Be lgaum
Represented by its Regio nal Manage r
Regional Office 2- B
Unity Building Annexe,
P Kalinga Rao Ro ad
(Mission Road) Bangalore
... APPELLANT
(BY SRI. G.N. RAI CHUR, ADV OCATE)
AND:
1. S mt. Saroj ini
W/o Mahabale swar Hosmath
Age: 52 ye ars
Occupation: House ho ld wo rk
R/o Soppadla
2
Tq Soudatti
Dt.Be lgaum
2. Mr. Mastaq
S/o Shahamad
Age: 40 ye ars
Occ: Business
R/o H No .236 J ail road
New Pachcha Pe th Solapur (MS)
... RES PONDENTS
(BY SRI. H.M. D HA RIGOND, ADVOCA TE)
THIS MFA IS FILED UNDER SECTI ON 173(1) OF M.V . A CT,
1988 A GAINST THE JUDGMENT AND AWARD DATED 10.11.2009
PASSED IN MVC.N O.2692/2008 ON THE FILE OF THE II ADDL.
CIVIL JUD GE (SR.DN.) & ADDL. MA CT, BELGA UM, AW ARDING
THE COMPENSATION OF RS .4.97,200/- WITH INTERES T AT THE
RATE OF 6% P.A . FROM THE DATE OF PETITION TILL DATE OF
ACTUAL DEPOSIT.
MFA CROB No.781 /2011
BETWEEN:
Smt. S aroj ini
W/o Mahabale swar Hosmath
Age: 55 ye ars
Occ: Ho useho ld work
R/o Soppadla
Tq Soudatti Dt.Be lgaum
...Cross-objector
(BY SRI. H.M. D HA RIGOND, ADVOCA TE)
3
AND:
1. Mr. Mastaq
S/o Shahamad
Age: 40 ye ars
Occ: Business
R/o H No .236 J ail road
New Pachcha Pe th Solapur (MS)
2. The New I ndia Assurance Co., Ltd.,
Issuing Office Hutatma S mruti Mandir,
Complex Park So lapur
Through its D ivisio nal Manager
The New I ndia Assurance Co ., Ltd.,
Divisional Office ,
Club Ro ad, Be lgaum.
... Respondents
(BY SRI. G.N. RAI CHUR, ADV OCATE FOR R2)
Notice to R.1 dispensed with.
THIS MEMORANDUM OF CROSS-OBJECTION IS FILED
UNDER ORD ER 40 RULE 22 OF THE CPC, A GAIN ST THE
JUDGMENT AND AWARD DATED 30.11.2009 PA SSED IN
MVC.NO.2692/ 2008 ON THE FI LE OF THE II ADDL. CIVIL JUDGE
(SR.DN.) & ADDL. MACT., BELGA UM AT BELGAUM , PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COM PENSATION.
THIS MFA AND MFA CROB IN MFA.NO.21665/ 2010
COMING ON FOR ADMISSION THIS DAY, THE COURT,
DELIVERED THE F OLLOWING:
4
JUDGMENT
This appeal and MFA - CROB are filed by insurer and
claimant respectively challenging judgment and award
dated 30.11.2009 passed by II Addl. Civil Judge (Sr.Dn.)
& MACT Belgaum, (for short 'Tribunal') in MVC
No.2692/2008.
2. Brief facts as stated are that on 10.05.2008, one
Mahabaleshwar was riding motorcycle bearing registration
no.KA-23/R-6334 along with his wife towards Bailhongal.
At 3.00 p.m., Eicher lorry bearing registration No.MH-
12/AQ-7965 driven by its driver in rash and negligent
manner dashed to motorcycle. Due to the impact,
Mahabalaeshwar fell down, sustained fatal injuries and
died. His wife Smt. Sarrojini sustained grievous injuries.
Separate claim petitions were filed by her against owner
and insurer of lorry under Section 166 of Motor Vehicle
Act, 1988 (Hereinafter referred to as 'MV Act).
3. On contest, insurer opposed claim petitions not
only denying negligence and lack of driving licence of
deceased, but also on the ground of violation of terms and
conditions of insurance policy. Tribunal held that accident
occurred due to sole negligence of lorry driver and
determined age of deceased as 59 years, occupation as
retired Head Master, monthly income at Rs.6,600/- and
deducting '1/3 towards personal expenses, applying
multiplier '9', awarded Rs.4,75,200/- towards 'loss of
dependency' and Rs.22,000/- under conventional heads
and granted total compensation of Rs.4,97,200/-.
Aggrieved by same, insurer is in appeal.
4. Shri G.N. Raichur, learned counsel for
appellant/insurer submitted that deceased was a retired
head master and pensioner. He was getting pension of
Rs.8,400/- per month. After his death his wife was getting
family pension. Though tribunal observed that out of
pension of Rs.8,400/- commuted pension was Rs.2,800/-
and after reducing same, pension works out to Rs.5,600/-,
it ought to have deducted family pension and awarded
compensation accordingly.
5. Learned counsel further submitted that wife of
deceased was only dependant, deduction towards personal
expenses ought to be ' ½' instead '1/3'.
6. On the other hand, H.M. Dharigond, learned
counsel for claimants-cross-objector opposed insurer's
appeal and submitted that claimant is entitled for
enhanced compensation mainly on the ground that
tribunal has not added 'future prospects' and tribunal
erred in considering pension as income which is contrary
to decision of Hon'ble Supreme Court in the case of
United India Insurance Co., Vs. Patricia Jean
Mahajan & Others, reported in (2002) 6 SCC 281.
7. Heard learned counsel for both parties and
perused records.
8. From the above submission occurrence of
accident due to rash and negligent driving of lorry by its
driver, death of Mahabaleshwar-claimant's husband in the
said accident and issuance of policy and its validity as on
date of accident are not in dispute. Tribunal determined
age of claimant as 59 years and his occupation as retired
headmaster, which are not disputed. While insurer has
challenged award on the ground of dependency and
income; claimant is seeking enhancement of compensation
by addition of future prospects and adequate award under
conventional heads. Therefore, the points that arise for
consideration in this appeal are:
" 1) Whether tribunal was justified in
fastening entire liability upon insurer?
ii) Whether award passed by tribunal
requires modification as sought for?"
9. Sri G.N. Raichur, learned counsel submitted that
deceased was possessing only learners licence. But
tribunal determined entire negligence against driver of
lorry.
10. On the other hand, H.M. Dharigond, learned
counsel submitted that complaint was registered against
driver of lorry. On independent investigation, police filed
charge sheet against lorry driver. Though Ex.R.2 as issued
on 16.10.2004 and valid upto 15.04.2005 had expired as
on date of accident, as claimant was admittedly a third
party, in view of decision of Full Bench decision of this
Court in the case of New India Assurance Co., Ltd., Vs.
Yellavva & another, reported in 2020(2) KCCR 1405,
insurer would be liable to pay compensation to third
party,\ and the only remedy available would be to pay
compensation to claimant with liberty to recover same
from insured.
11. On consideration of said evidence, tribunal held
that accident occurred due to sole negligence of lorry
driver. Under these circumstances as deceased was a third
party, possession of learners licence would
inconsequential, insofar as liability of insured is
concerned. Respondent - insurer has not led any rebuttal
evidence insofar as negligence aspect is concerned.
Therefore, challenge of insurer on the ground of liability
would not be justified. Accordingly, point no.1 is answered
partly in affirmative.
Point No.2:
12. In order to establish age, occupation and income
of deceased, claimants produced record of rights, share
certificate, consultation card, PAN card, pension payment
order and record of rights marked at Exs.P.6 to 12
respectively. Date of birth mentioned in pan card i.e.,
25.05.1949. Therefore, age of deceased as on date of
accident would be 59 years. Contents of Ex.P.11 establish
that deceased was a retired Head Master in a Government
High School and earning Rs.8,400/- per month from
pension. Apart from the above, Ex.P.7 would indicate that
he had invested in shares. As per Exs.P.6 to P.12,
deceased was holding agricultural lands.
Though, it is stated that apart from earning pension,
deceased was earning income from share holding/trading,
there are no documents to substantiate the income.
Tribunal has, however taken pension as his income and
added Rs.1,000/- as income from agriculture to determine
his income, which does not appear to be proper. Pension
cannot be taken as income. Claimant would have earned
income apart from pension. Accident is of the year 2008.
Notional income for the said period would be Rs.4,250/-.
As deceased was 59 years, 'future prospects' at '15%' has
to be added. Deceased was married. Therefore, '1/3' has
to be deducted towards personal expenses. Multiplier
corresponding to age of deceased would be '9'. Hence 'loss
of dependency' would be Rs.4,250/- + 15% - 1/3 X 12 X 9
= Rs.3,51,900/-.
13. As per decision of Hon'ble Supreme Court in the
case of National Insurance Co.,Ltd., Vs. Pranay Sethi
& Ors. reported in AIR 2017 5157, claimant would be
entitled to a sum of Rs.70,000/- under conventional heads.
Since more than three years have lapsed after
rendering decision in Pranay Sethi's case, claimant is
entitled to addition of award at 10% under conventional
heads, which comes to Rs.77,000/-. Thus, compensation
is reduced from 4,87,200/- to Rs.4,28,900/-. Point for
consideration is answered partly in affirmative.
In the result, I pass the following:
ORDER
i. MFA No.21665/2010 is allowed in part.
ii. Compensation granted by the tribunal is
reduced from Rs.4,97,200/- to
Rs.4,28,900/- which shall carry interest
at the rate of 6% per annum from the
date of petition till payment.
iii. Directions issued by Tribunal regarding
deposit and release shall apply to
modified compensation also.
iv. Insurer is directed to deposit modified
compensation along with interest at 6%
per annum within six weeks from the date
of receipt of a copy of this order.
v. MFA Crob.No.781/2011 is allowed in part
insofar as addition of future prospects
and revision of award under conventional
heads with resultant compensation as
stated above.
Sd/-
JUDGE
Psg
