Shantavva W/O Parayya Kallimath vs Husensab S/O Meerasab Hunnur,
2021 Latest Caselaw 2562 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

         DATED THIS THE 2ND DAY OF JULY, 2021

                         BEFORE

       THE HON'BLE MR.JUSTICE RAVI V.HOSMANI

               M.F.A. No. 20002/2013 (MV)
BETWEEN:

1.    SMT. SHANTAVVA W/O PARAYYA KALLIMATH,
      AGE-56 YEARS, OCC-HOUSEHOLD WORK,

2.    MAHALINGAYYA S/O PARAYYA KALLIMATH,
      AGE-26 YEARS, OCC-NIL.

BOTH ARE R/O MAHALINGAPUR, TQ: MUDHOL,
DIST: BAGALKOT, NOW RESIDING AT
HOSUR VILLAGE, TQ: JAMKHANDI, DIST: BAGALKOT.
                                          -   APPELLANTS
(BY SRI HARISH MAIGUR, ADVOCATE)

AND

1.    HUSENSAB S/O MEERASAB HUNNUR,
      AGE-MAJOR, OCC-OWNER OF TRUCK,
      R/O KOUJALAGI, TQ: GOKAK, DIST; BELGAUM.

2.   THE DIVISIONAL MANAGER,
     THE NEW INDIA ASSURANCE COMPANY LTD.,
     DIVISIONAL OFFICE,
     NEAR KITTAL COLLEGE, DHARWAD.
                                        -  RESPONDENTS
(BY SRI N.R. KUPPELUR, ADVOCATE FOR R2,
NOTICE TO R1 IS SERVED)
                                  2




     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF M.V. ACT AGAINST THE JUDGMENT AND
AWARD DATED 09.02.2010 PASSED IN M.V.C. NO. 470/2009 ON
THE FILE OF THE MEMBER, MACT NO.VI, JAMKHANDI & ETC.

     THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR FINAL
HEARING THIS DAY, THE COURT, DELIVERED THE FOLLOWING:

                            JUDGMENT

Challenging the judgment and award dated 09.02.2010

passed in M.V.C. No. 470/2009 on the file of the Member, MACT

No.VI, Jamkhandi (hereinafter referred to as 'the Tribunal'), this

appeal is filed u/s 173(1) of M.V. Act. The parties shall be referred

to as per their ranking before the tribunal, for the sake of

convenience.

2. Brief facts as stated are that on 18.05.2009 Channayya was

walking towards bus stand at Ranebennur. When he was near

kirana shop of vandal at Mahalingapur, a lorry bearing no. KA-23/A-

6357 driven by its driver in a rash and negligent manner, dashed

against him. Channayya sustained fatal injuries and died on the

spot. As on the date of accident, he was 20 years of age, working

as Coolie and earning `6,000/- per month. Alleging loss of

dependency due to untimely death of Channayya, his mother and

brother filed claim petition against the owner and insurer of the

lorry u/s 163-A of M.V. Act.

3. On service of summons, owner and insurer entered

appearance and filed objections. Owner submitted that vehicle was

insured with the respondent No.2 and the policy was in force as on

the date of accident. Respondent No.2-insurer apart from denying

claim petition averments contended that its liability was subject to

the terms and conditions of the policy and there was breach of

same as driver of the lorry did not have valid and effective licence

to drive the same.

4. Based on pleadings, tribunal framed following issues:

1. Whether the petitioners prove that, on 18.05.2009 at about 14.15 hours deceased Channayya Kallimath met with an accident near Vandal Kirana Shop at Mahalingapur due to rash and negligent driving of the driver of Truck bearing Reg. No. KA-23/A-6357 and died on the spot as stated in the petition?

2. Whether petitioners prove the age and income of the deceased?

3. Whether respondent No.2 proves that there are violations of terms and conditions of Insurance Policy, hence their

company is not liable to pay the compensation to the petitioners?

4. Whether the petitioners are entitled for compensation? If so, to what extent and from whom?

5. What order or award?

5. In order to substantiate claim petition, claimant No.1 got

herself examined as PW1. Exs.P.1 to P.9 were marked. On behalf

of respondents, no evidence was led. On consideration, tribunal

answered issue no.1 in affirmative, issue no.2 partly in affirmative,

issue no.3 in negative, issue nos.4 and 5 by allowing claim petition

in part, assessing total compensation of `3,03,000/- with interest at

6% p.a. and holding respondent No.2-insurer liable to pay the

same. Assailing the award and seeking for enhancement, the

claimant is in appeal.

6. Sri Harish S. Maigur, learned counsel for appellants-claimants

submitted that the tribunal while passing the impugned award

committed grave error in applying multiplier corresponding to the

age of the claimant though claim was filed u/s 163-A of M.V. Act

and the multiplier applicable would be the one corresponding to the

age of the victim, which would be '16'.

7. Learned counsel fairly conceded that award under

conventional heads granted by the tribunal at `10,000/- towards

love and affection and `5,000/- towards funeral expenses, would be

required to be modified to `2,000/- towards funeral expenses and

`25,000/- towards loss of estate.

8. On the other hand, Sri N.R. Kuppelur, learned counsel for

insurer sought to support impugned award.

9. From the above, occurrence of accident on 18.05.2009 and

victim-Channayya died, issuance of policy is not in dispute. The

appeal filed by the insurer in M.F.A. No. 24215/2010 against the

very same award came to be dismissed on 12.07.2011. Therefore,

the only point for consideration that arises in this case is:

"Whether claimant is entitled for enhancement of compensation as sought for?"

10. It is settled law that in respect of a claim petition filed u/s

163-A of M.V. Act, multiplier is required to be applied corresponding

to the age of the victim. Age of the victim in this case determined

by the tribunal is 20 years. Therefore, multiplier applicable would

be '16'. The tribunal on considering income of the deceased at

`3,600/- p.a. Deduction towards personal expenses in case of

claim petition u/s 163-A will be 1/3. Thus, loss of dependency

would be `3,84,000/-. In addition, the claimants would be entitled

to a sum of `2,000/- towards funeral expenses and `2,500/-

towards loss of estate. Thus, claimants would be entitled to

`3,88,500/-. In view of the above, point for consideration is

answered in the affirmative as above.

11. In the result, appeal is allowed in part with costs. Claimant

No.1 being the mother of deceased, would be entitled to receive

entire compensation and is entitled to re-assessed compensation of

`3,88,500/- as against `3,03,000/- awarded by the tribunal with

interest at 6% p.a. from the date of petition till deposit except for

the period of delay in filing the appeal, i.e., for 951 days as per the

order dated 17.06.2014.

Respondent-insurer is directed to deposit entire compensation

amount with up to date interest within six weeks from the date of

receipt of a copy of this judgment.

SD JUDGE bvv