Karnataka High Court
The Divisional Manager, vs Banu @ Balawwa W/O Rasulsab ... on 13 January, 2021
Author: Ashok S. Kinagi
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
MFA No.24598/2013 (MV-I)
C/w. MFA No.23191/2013 (MV-D)
IN MFA NO.24598/2013:
BETWEEN:
1. Smt. Banu @ BAlawwa W/o. Rasulsab Multani,
Age 36 years, Housewife,
R/o.: Sultanpur, Hukkeri Taluk,
Belgaum District.
2. Shamashad D/o. Rasulsab Multani,
Age 21 years, Occ: Nil,
Physically handicapped,
R/o.: Sultanpur, Hukkeri Taluk,
Belgaum District.
3. Shanul S/o.Rasulsab Multani,
Age 20 years, Student,
R/o.: Sultanpur, Hukkeri Taluk,
Belgaum District.
4. Suban S/o.Rasulsab Multani,
Age 19 years, R/o.: Sultanpur,
Hukkeri Taluk, Belgaum District.
5. Smt.Fathima W/o.Rajesab Multani,
Age 73 years, R/o.: Sultanpur,
Hukkeri Taluk, Belgaum District.
... Appellants
(By Shri Y.Lakshmikant Reddy, Advocate)
2
And:
1. Mallikarjuna S/o.Sattyappa Benawadi,
Age major, Owner of Maruti Alto
No.KA-49/M-1171,
R/o.: Ashirwad Building, H.No.516,
Mahantesh Nagar, Ghataprabha,
Gokak Taluka, Belgaum District.
2. The Divisional Manager,
The National Insurance Co. Ltd.,
Ramdev Galli, Belgaum.
3. Pundalik Kallappa Hattarwat,
Age major, Owner of Bajaj M-80
No.KA-23/H-7647, R/at Mallapur Post,
Ghataprabha Taluka, Gokak Taluka,
Belgaum District.
4. Basawani Shivaling Marabasannavar,
Age major, Present owner of Bajaj
M-80 No.KA-23/H-7647, R/at Nejanal,
Hukkeri Taluk, Belgaum District.
... Respondents
(By Shri Santosh B. Rawoot, Advocate for R1;
Smt. Veena Hegde, Advocate for R2;
Shri Vittal S. Teli, Advocate for R4;
Respondent No.3 - served)
This MFA is filed u/S.173(1) of M.V. Act, against the
judgment and award dated 27.04.2013, passed in MVC
No.2122/2010 on the file of the Presiding Officer, Fast Track
Court-IV, Belgaum, partly allowing the claim petition for
compensation and seeking enhancement of compensation.
IN MFA NO.23191/2013:
Between:
The Divisional Manager,
3
The National Insurance Co. Ltd.,
Ramdev Gallio, Belgaum.
... Appellant
(By Smt. Veena Hegde, Advocate)
And:
1. Smt. Banu @ BAlawwa,
W/o. Rasulsab Multani,
Age 38 years, Household work,
R/o.: Sultanpur, Hukkeri Taluk,
Belgaum District.
2. Kumari Shamashad D/o. Rasulsab Multani,
Age 21 years, Occ: Nil,
R/o.: Sultanpur, Hukkeri Taluk,
Belgaum District.
3. Kumar Shanul S/o.Rasulsab Multani,
Age 20 years, Occ: Student,
R/o.: Sultanpur, Hukkeri Taluk,
Belgaum District.
4. Suban S/o.Rasulsab Multani,
Age 19 years, Occ: Student,
R/o.: Sultanpur, Hukkeri Taluk,
Belgaum District.
5. Smt.Fathima W/o.Rajesab Multani,
Age 73 years, Occ: Household work,
R/o.: Sultanpur, Hukkeri Taluk,
Belgaum District.
6. Mallikarjuna S/o.Sattyappa Benawadi,
Age major, Occ: Busienss,
R/o.: Ashirwad Building, H.No.516,
Mahantesh Nagar,
Ghataprabha, Gokak Taluka,
Belgaum District.
7. Pundalik Kallappa Hattarwat,
Age major, Occ: Business,
4
R/o: at/post Mallapur P.G.,
Post Ghataprabha, Gokak Taluka,
Belgaum District.
Since deceased by his LRs.
7(a) Smt. Sushila
W/o. Late Pundlik Hattarwat,
Age 36 years, Occ: Housewife,
7(b) Sachin
S/o. Late Pundlik Hattarwat,
Age 19 years, Occ: Student,
7(c) Swapna
D/o. Late Pundlik Hattarwat,
Age 17 years, Occ: Student
8. Shri Basawani Shivaling Marabasannavar,
Age major, Occ: Business, 0
R/at Nejanal, Hukkeri Taluk,
Belgaum District.
... Respondents
(By Shri Santosh B.Rawoot, Advocate for R6;
Shri Vittal S. Teli, Advocate for R8;
R1, R2, R5, R7(a) and R7(b) - served;
Notice to respondent No.7(c) - held sufficient)
This MFA is filed u/S. 173(1) of M.V. Act, against the
judgment and award dated 27.04.2013, passed in MVC
No.2122/2010 on the file of the Presiding Officer, Fast Track
Court-IV, Belgaum, awarding the compensation of Rs.4,26,000/-
with interest at the rate of 9% p.a. from the date of petition till
the date of deposit.
These appeals coming on for orders, this day the Court
delivered the following:
5
JUDGMENT
1. The appellants in MFA No.24598 of 2013 aggrieved
by the judgment and award dated 27.04.2013, passed in MVC
No.2122/2010 by the Presiding Officer, Fast Track Court-IV,
Belgaum (for short "the tribunal"). Further the appellant-
Insurance Company has also filed appeal in MFA No.23191/2013
challenging the very same judgment and award passed by the
tribunal on the ground of negligence.
2. For the sake of convenience, the parties would be
referred to as per their ranking before the tribunal.
3. The brief facts of the case is that on 18.09.2010 at
about 4:00 p.m. the deceased-Rasulsab Rajesab Multani was
proceeding on his Bajaj M80 bearing registration
No.KA-23/H-7647 along with his friend on his correct side of the
road. When he came near Gajabarawadi Cross within the limits
of Hukeri Police Station on Hukeri Ghataprabha road, a Maruti
Alto Car bearing registration No.KA-49/M-1171 came on wrong
side in a rash and negligent manner without following the traffic
rules, lost control over his car and dashed to the Bajaj M80 and
thereby caused the accident. Due to the impact, the deceased
Rasulsab Rajesab Multani sustained fatal injuries and died on the
spot. The deceased was aged about 40 years, doing coolie work,
getting daily wages of Rs.100/- and was maintaining the family.
Due to the sudden death of Rasulsab Rajesab Multani, the
claimants have been put to great and irreparable loss and put
into starvation as he was the only bread earner in the family.
Hence, the petitioners-claimants have filed the claim petition
seeking for compensation.
4. Originally, the claim petition was filed under Section
163-A of the M.V. Act against the respondent Nos.1 and 2 i.e.,
owner of Maruti Alto Car and the Insurance Company.
Subsequently, an application was filed for impleading the owner
of the motor vehicle involved in the accident i.e., Bajaj M80
bearing registration No.KA-23/H-7647.
5. The owner of the motor vehicle filed objections
denying the petition averments. He has also denied the age,
income, occupation of the deceased and has stated that the
compensation claimed by the petitioners is exorbitant and
excessive. It is stated that the accident occurred due to rash and
negligent riding the motor vehicle bearing registration
No.KA-23/H-7647 by the deceased himself. The offending car is
insured with the National Insurance Co. Ltd., The Insurance
Company filed its written statement denying the averments
made in the claim petition and has not admitted the age, income
and occupation of the deceased. The respondent No.2 -
Insurance Company reiterated the statement of objections filed
by the owner of the offending car. Hence, he prayed to dismiss
the petition.
6. The tribunal based on the pleadings, framed three
issues and additional issue.
7. In order to prove the case of the claimants, the
claimant No.1 was examined as PW1 and got marked Exs.P1 to
P6. Respondent No.1 was examined as RW1 and respondent
No.2 has not adduced any oral and documentary evidence. The
tribunal after taking into consideration the pleadings and
documents produced by the parties has held that the petitioner
has proved that the deceased Rasulsab Rajesab Multani died in
the accident, which occurred due to the use and involvement of
the car bearing registration No.KA-49/M-1171 and also held that
the claimants-petitioners are entitled to compensation of Rs.
4,26,000/-.
8. Insofar as the liability is concerned, the tribunal has
held that there was contributory negligence on the part of the
driver of the car and also the rider of the motor vehicle and
fastened the liability of 90% on respondent Nos.1 and 2 and
10% on respondent Nos.3 and 4 jointly and severally.
9. The claimants-petitioners have filed the appeal in
MFA No.24598/2013 challenging the liability of 10% fastened on
respondent Nos.3 and 4. Further, the tribunal has committed an
error in applying the multiplier of 14 instead of 15. On these two
grounds, the claimants have filed this appeal.
10. Perused the records.
11. The learned counsel for the petitioner submits that
the tribunal has committed an error in applying the multiplier of
14 instead of 15 by considering the age mentioned in the
postmortem report. As per the chart to second schedule of the
M.V. Act, 1988, if a person's age group between 40 years but not
exceeding 45 years, the multiplier applicable is 15. He further
submits that the tribunal has committed an error in deducting
personal expenses of 1/4th instead of 1/3rd. He further submits
with regard to negligence, the tribunal cannot be considered any
proceedings under Section 163A of M.V. Act. It is not open for
the insurer to raise any defence on the part of the victims. He
submits that the tribunal has committed an error in fastening
liability of 10% on respondent Nos.3 and 4. Hence, he prays to
allow the appeal filed by the petitioners-claimants and also
prayed to dismiss the appeal filed by the respondent No.2-
Insurance Company.
12. Per contra, the learned counsel for the second
respondent - Insurance Company submits that the tribunal was
justified in fastening 10% liability on respondent Nos.3 and 4.
She further submits that the tribunal has committed an error in
awarding 9% p.a. interest instead of 6% p.a. However, she
agrees with the submission made by the learned counsel for the
claimants that the tribunal has committed an error in deducting
personal expenses of the deceased at 1/4th instead of 1/3rd.
Hence, she prays to allow the appeal.
13. I have considered the submissions of the learned
counsel appearing for the parties. The admitted fact that the
deceased - Rasulsab Rajesab Multani died in the accident, which
occurred on 18.09.2010. The petitioners have not produced any
record to show about the age of the deceased - Rasulsab Rajesab
Multani. The tribunal taking into consideration the postmortem
report at Ex.P5, the age of deceased is taken as 45 years. The
said fact has not been seriously disputed by the insurance
Company. The only contention raised by the insurance company
is contributory negligence. Admittedly the claim petition is filed
under Section 163-A of the M.V. Act. When a claim petition filed
under Section 163-A of the M.V. Act, it is not open for the insurer
to raise any defence of negligence on the part of the victims.
14. It is clear that the grant of compensation in a petition
filed under Section 163-A of the M.V. Act on the basis of
structured formula is in the nature of final award and
adjudication thereunder is required to be made without any
requirement of any proof of negligence of the driver/owner of the
vehicle involved in the accident. The said view is supported by
the judgment of the Hon'ble Supreme Court in the case of
United India Insurance Co. Ltd., v. Sunil Kumar and
another reported in 2018 ACJ 1 and also in the case of
Chandrakanta Tiwari vs. New India Assurance Co. Ltd.,
and another reported in 2020 ACJ 2552, wherein the Hon'ble
Apex court has held that from the personal of Section 163-A of
the M.V. Act, the claimant need not plead or establish that the
death in respect of which the claim was made, was due to any
negligence or default of the owner of the vehicle or of any other
person. Hence, in view of the law laid down by the Hon'ble
Supreme Court that the claimant need not prove the negligence
of the driver/owner of the vehicle involved in the accident. The
submission of the learned counsel for the second respondent
does not hold water in view of the law laid down by the Hon'ble
Supreme Court and the liability fixed on respondent Nos.3 and 4
is concerned, the tribunal has committed an error in fastening
the liability of 10% on respondent Nos.3 and 4. As discussed
above and also the law laid down by the Hon'ble Supreme Court
as there is no requirement under Section 163-A of the M.V. Act
to prove the negligence of vehicle involved in the accident.
15. As far as the age of the deceased is concerned, the
tribunal taking into consideration Ex.P5 and has taken the age of
the deceased as 45 years, adopted multiplier of 14. From the
perusal of chart to second schedule to the M.V. Act, the
applicable multiplier for the age group above 40 years but not
exceeding 45 years would be 15. The tribunal erred in applying
the multiplier as 14, whereas the proper multiplier applicable is
15. Though the claimants have not produced any documents to
show the income of the deceased, the tribunal has considered
the income of the deceased at Rs.3,300/- per month. Further,
the tribunal erred in deducting 1/4th towards personal expenses
of the deceased instead of 1/3rd since there were five dependents
to the deceased. Hence, the loss of dependency would be
recalculated as under:
16. Rs.3,300/- x 12 x 15 x 2/3 = Rs.3,96,000/-.
17. Further, as per second schedule to Section 163-A of
the M.V. Act, the claimants would be entitled to a sum of
Rs.2,000/- toward funeral expenses, Rs.5,000/- towards loss of
consortium and Rs.2,500/- toward loss of estate.
18. Thus, in all the claimants would be entitled to a
compensation of Rs.4,05,500/- instead of Rs.4,26,000/- awarded
by the tribunal with interest at the rate of 6% p.a from the date
of petition till the date of realization.
19. Accordingly, the appeals filed by the claimants as
well as the Insurance Company are allowed in part. The
judgment and award dated 27.04.2013, passed in MVC
No.2122/2010 by the Presiding Officer, Fast Track Court-IV,
Belgaum is hereby modified.
20. The Insurance Company is directed to deposit the
entire compensation amount before the tribunal within a period
of four weeks from the date of receipt of a copy of this order.
21. The amount in deposit, if any, before this Court is
ordered to be transmitted to the tribunal for disbursement.
SD/-
JUDGE
Vnp*
