Karnataka High Court
The Manager vs Smt.Pushpa Kallappa Kitale on 16 December, 2021
Bench: S.Sunil Dutt Yadav, S Rachaiah
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16TH DAY OF DECEMBER, 2021
PRESENT
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
AND
THE HON'BLE MR.JUSTICE S. RACHAIAH
MFA No.104683/2019 (MV)
BETWEEN:
THE MANAGER
THE NATIONAL INSURANCE CO. LTD.
ASHOK NAGAR, NIPPANI TALUKA,
CHIKODI DIST., BELAGAVI
REPRESENTED BY ITS
ADMINISTRATIVE OFFICER,
R.O, HUBBALLI - 591 201.
....APPELLANT
(BY SMT.SHARMILA M.PATIL, ADVOCATE)
AND:
1. SMT.PUSHPA KALLAPPA KITALE
AGE : 49 YEARS,
OCC : HOUSEHOLD,
R/O KOTHALI, TQ: CHIKODI,
NOW RESIDING AT
MEKHALI TALUKA, RAIBAG,
DIST; BELAGAVI - 591317.
2. SHRI SANTOSH KALLAPPA KITALE
AGE : 31 YEARS,
OCC : COOLIE
R/O KOTHALI, TQ: CHIKODI,
2
TALUKA: RAIBAG,
DIST; BELAGAVI - 591287
3. SHRI YOGARAJ KALLAPPA KITALE
AGE : 29 YEARS,
OCC : COOLIE
R/O KOTHALI, TQ: CHIKODI,
TALUKA: RAIBAG,
DIST; BELAGAVI - 591317
4. SHRI SANJAY RAJARAM SAPKAL
AGE : 41 YEARS,
OCC: AGRICULTURE,
R/O OF MIRAJ (GANESH TALAV,
MANGALWAR PETH)
TALUKA: MIRAJ,
DIST: SANGLI - 416410.
....RESPONDENTS
(BY SRI.S.S.HATTIKATAGI, ADVOCATE FOR R1 TO R3;
R4-SERVED)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF
MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND
AWARD DATED 25.09.2019 PASSED IN MVC NO.11/2018 ON
THE FILE OF THE XI ADDITIONAL DISTRICT JUDGE AND
ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,
BELAGAVI, AWARDING COMPENSATION OF RS.20,17,000/-
WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION
TILL ITS PAYMENT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 23.11.2021, COMING FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, S.RACHAIAH J.,
DELIVERED THE FOLLOWING:
3
JUDGMENT
This appeal is filed by the appellant/respondent
No.2-The National Insurance Company Ltd. challenging the
judgment and award dated 25.09.2019 passed in MVC
No.11/2018 by the XI Additional District Judge and
Additional MACT, Belagavi (hereinafter referred to as
'Tribunal') on the ground that there is negligence on the
part of the rider of the motorcycle, and the quantum of
compensation passed by the Tribunal is contrary to
accepted principles. The appellant has filed this appeal
seeking to set aside the judgment and award of the
Tribunal on those two grounds stated above.
2. The brief facts of the case are that on
09.04.2017 at about 3.30 p.m the deceased Manjunath
Kallappa Kitale was returning to his house at Kothali
Village, Chikodi on a motorcycle bearing registration
No.KA-23/EL-3739 and when he came near the land of
Tawale Family on Chikkodi-Nipani Road, the driver of the
Omni Car bearing registration No.MH-10/E-8745 came
from the opposite direction by driving his vehicle in high
speed, in a rash and negligent manner and having lost his
control over the vehicle, dashed to the motorcycle of the
deceased and thereby the deceased sustained fatal injuries
and later succumbed to the same at Civil Hospital, Chikodi
on 23.07.2017. The Tribunal after taking note of the oral
and documentary evidence of the respondents/petitioners
has passed the following order which is as under:
"The petition filed under Section 166
of M.V Act by the petitioners is hereby
partly allowed with costs.
The claim of petitioner No.2 and 3 is
hereby rejected.
The respondent No.1 and 2 are
jointly and severally liable to pay
compensation amount of Rs.20,17,000/-
with interest at 6% per annum from the
date of petition till its payment.
Respondent No.2 is hereby directed
to deposit the compensation amount
determined along with accrued interest
within one month from the date of this
order.
On deposit of the compensation
amount, 60% of the amount shall be
deposited in fixed deposit in the name of
the petitioner No.1 in any nationalized
bank for period of 6 years and remaining
40% amount shall be released in favour
of the petitioner by account payee
cheque on proper identification
The advocate fee is fixed at
Rs.1,000/-.
Draw award accordingly."
3. It is the submission of the learned counsel for
the appellant/insurance company that the Tribunal has
committed an error in not considering the liability of the
deceased. The learned counsel further submitted that the
income on the loss of dependency is concerned, the
Tribunal has wrongly assessed the income of the deceased
at Rs.12,000/- p.m instead of taking the notional income
as stipulated in the National Lok Adalat income chart.
Hence, the learned counsel seeks for setting aside the
award passed by the Tribunal with respect to loss of
dependency and also prays to modify the quantum
accordingly.
4. Per contra, the learned counsel for the
respondents supports the judgment and award passed by
the Tribunal. Further, he submitted that the Tribunal has
rightly calculated the income of the deceased and also
rightly not fastened the liability as regards contributory
negligence. Further, he submitted that the insurance
company has failed to prove the negligence on the part of
the deceased. Hence, the learned counsel seeks to dismiss
the appeal filed by the insurance company with exemplary
costs.
5. Heard the learned counsel appearing for both
the parties.
6. After having perused the judgment and award
passed by the Tribunal, on the rival contentions raised by
both the parties the point that arises for our consideration
is as under:
1. Whether the appellant has made
out a ground to interfere with the finding
of the Tribunal with respect to the liability
and quantum?
2. What orders?
7. On perusal of the entire documents produced
and also the grounds urged in the appeal by the insurance
company, it is necessary to answer the point with regard
to liability and also the quantum which the Tribunal has
awarded compensation.
8. As regards liability is concerned, the contention
of the insurance company is that the deceased had no
driving licence at the time of driving the motorcycle. The
Tribunal ought to have considered the negligence of the
deceased and should have deducted the compensation in
the light of contributory negligence while passing the
award. The contention raised by the insurance company is
not tenable because, it was the duty of insurance company
to prove that the accident has occurred on account of
negligence and also rash driving of the deceased and that
he had no driving licence at the time of accident. In the
present case, in the cross examination of PW1 the
insurance company has put a question to the claimant that
the deceased did not possess valid driving licence at the
time of accident, but she denied the same and she has
asserted that he had the driving licence which she could
not produce it before the Court. Such being the fact, the
insurance company had not made any effort to make PW1
to produce the document before the Court. Further, the
insurance company has failed to prove the liability on the
ground of negligence on the part of the deceased. The
documents like Ex.P2-Spot Panchanama and Ex.P3-Spot
sketch which clearly indicates that the accident has
occurred due to rash and negligent driving of the driver of
Maruthi van and he is the person who is responsible for the
said accident. Keeping in view the above said observation
made by this Court, we are of the considered opinion that
the accident has occurred exclusively on account of rash
and negligent driving of the Maruthi van i.e. offending
vehicle, not by the negligence on the part of the
deceased. Hence, we decline to consider the prayer made
by the insurance company with respect to liability and
contributory negligence.
9. As regards the income of the deceased is
concerned, at the time of accident the deceased was aged
about 27 years and he was a bachelor. The claimant-
mother was a sole dependent. As per the award passed by
the Tribunal on the head of loss of dependency is
concerned, it is needless to say that on perusal of the
document which the claimant has produced clearly
indicates that the claimant has failed to produce the
suitable document pertaining to the income of the
deceased. As she has failed to produce the document
pertaining to the income of the deceased, the Tribunal has
committed an error in taking the income of Rs.12,000/-
per month. However, it is necessary to re-calculate after
taking into consideration the notional income of the
deceased as per the chart indicated. As per the Lok Adalat
Notional Income chart, the income pertaining to the year
2017 is Rs.10,250/-p.m. However, it is needless to say
that the deceased was young and studied Diploma and he
was about to join the Department of Survey as Surveyor.
After perusing the marks cards and other documents, this
Court comes to the conclusion that it is reasonable to
enhance Rs.11,000/- p.m. instead of Rs.10,250/-. Hence,
he is entitled to the benefit of 40% future prospects out of
which 50% has to be deducted as statutory deduction and
also the deceased was entitled to get a multiplier of '17'.
Taking into consideration the calculation together which
reads as under:
Rs.11,000.00+40% minus 50%x12x17= Rs.15,70,800/-
10. According to the calculation made above, the
claimant is entitled to compensation of Rs.15,70,800/-
instead of Rs.17,13,600/- under the head of Loss of
Dependency.
11. As regards the other conventional heads are
concerned, it is relevant to place reliance on the judgment
of the Hon'ble Supreme Court in the case of MAGMA
GENERAL INSURANCE CO. LTD. v. NANU RAM AND
OTHERS reported in (2018) 18 SCC 130, wherein the
Hon'ble Supreme Court has categorically stated that the
Motor Vehicles Act is a beneficial and welfare legislation.
The court is duty bound and entitled to award "just
compensation", irrespective of whether any plea in that
behalf was raised by the claimant. In the above judgment,
the Hon'ble Supreme Court has considered one of the
conventional head as "Loss of Consortium". In the said
Loss of Consortium, one of the consortium is filial
consortium which is recognized as right of the parents for
a compensation. In the case of an accidental death of a
child, an accident leading to the death of the child causes
great shock and agony to the parents and family of the
deceased. The greatest agony for a parent is to lose their
child during their lifetime. Children are valued for their
love and affection, companionship and their love, affection,
companionship and their role in the family unit.
12. In view of the judgment of the Hon'ble
Supreme Court in the case of National Insurance
Co.Ltd. Vs. Pranay Sethi and others reported in
(2017) 16 SCC 680 para 59.8 reads as thus:-
"59.8 Reasonable figures on conventional
heads, namely, loss of estate, loss of consortium
and funeral expenses should be Rs.15,000,
Rs.40,000 and Rs.15,000 respectively. The
aforesaid amounts should be enhanced at the
rate of 10% in every three years."
13. Taking into consideration the above guidelines, it
is necessary in this case to order compensation on the
following heads:-
HEADS Amount awarded Amount
by Tribunal awarded by
Rs. High Court
Rs.
Loss of Dependency 17,13,600/- 15,70,800/-
(Rs.11,000+40%-
50%X12x17
Loss of Consortium 40,000/-
- Filial
10% of enhanced rate 7,000/-
for every three years on
conventional heads
Loss of estate 15,000/- 15,000/-
Funeral Expenses 15,000/- 15,000/-
Medical expenses 2,48,000/- 2,48,000/-
TOTAL 20,16,600/- 18,95,800/-
Rounded of to with 9%
20,17,000/- p.a. interest
Thus as per the calculation made above, the
claimant is entitled for a total compensation of
Rs.18,95,800/- as against Rs.20,17,000/- awarded by the
Tribunal. Accordingly, the point No.1 is answered in
affirmative. Hence, we pass the following:
ORDER
1. The appeal allowed in part.
2. In modification of the judgment and award passed
by the Tribunal, the claimant is entitled for total
compensation of Rs.18,95,800/- (Rupees Eighteen
Lakh Ninety Five Thousand Eight Hundred only) as
against Rs.20,17,000/- awarded by the Tribunal with
interest at the rate of 9% p.a. from the date of filing
of the petition till the realization of the said amount.
3. The statutory deposit deposited in this Court shall be
transmitted to the Tribunal along with the TCRs
forthwith.
4. Such amount shall be deposited within a period of
eight weeks from the date of this order.
5. The amount shall be disbursed on deposit by
respondent No.2 in accordance with the award
passed by the Tribunal.
Sd/-
JUDGE
Sd/-
JUDGE
UN
