Bharati W/O Late Apparao ... vs Mrs.Akshatha Kamath And Ors
2021 Latest Caselaw 2714 Kant

            IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

       DATED THIS THE 8TH DAY OF JULY, 2021

                      BEFORE

     THE HON'BLE MR. JUSTICE ASHOK S. KINAGI


           M.F.A.NO.200396 OF 2014 (MV)
                          C/W

             M.F.A.NO.200475 OF 2014
              M.F.A.NO.32922 OF 2013
              M.F.A.NO.32923 OF 2013


IN MFA NO.200396/2014

BETWEEN:

1 . BHARATI
W/O LATE APPARAO DAPLAPURE
AGE: 27 YEARS, OCC: HOUSEHOLD

2 . ASMITA
D/O LATE APPARAO DAPLAPURE
AGE: 7 YEARS, MINOR

3 . YASH
S/O LATE APPARAO DAPLAPURE
AGE: 6 YEARS, MINOR

4 . JATINGRAYA
S/O NAMADER DAPLAPURE
AGE: 68 YEARS, OCC: NIL
                           2




5 . BHEEMBAI
W/O JATINGRAYA DAPLAPURE
AGE: 65 YEARS, OCC: HOUSEHOLD

6 . DEEPIKA
D/O JATINGRAO DAPLAPURE
AGE: 25 YEARS, OCC : STUDENT

APPELLANTS NO.2 AND 3 ARE MINORS
U/G OF THEIR REAL MOTHER APPELLANT NO.1

ALL ARE R/O JANWADA ROAD, VIJAY COLONY
NAVADAGERI, BIDAR
                                          ...APPELLANTS

(BY SRI. SANTOSH BIRADAR, ADV.)

AND

1. MRS.AKSHATHA KAMATH
W/O.K.NAGARAJ V. MATH,
AGE: MAJOR, OCC:BUSINESS,
R/O: SHRI SHANTHADURGA CASHEW PROCESIRS,
KALLAMUNDKUR POST, BANGADY,
TQ. & DIST: MANGALORE

2 . SHANTHKUMAR
S/O HASHAPPA
AGE:MAJOR, OCC:AGRICULTURE
R/O: BENKEPALLI
TQ: CHINCHOLI, DIST:GULBARGA

3 . THE DIVISIONAL MANAGER,
ORIENTAL INSURANCE COMPANY LTD.
DIVISION OFFICE OPP:MINI VIDHAN SOUDHA,
GULBARGA
REPRESENTED BY ITS BRANCH MANAGER,
OFFICE KAMSHETTY COMPLEX
UDGIR ROAD, BIDAR
                                     ...RESPONDENTS
                           3




(BY SMT. PREETI PATIL MELKUNDI, ADV. FOR R3
    NOTICE TO R1 - SERVED
    NOTICE TO R2 - HELD SUFFICIENT)


     THIS MFA IS FILED U/S. 173(1) OF MV ACT, AGAINST
THE JUDGMENT AND AWARD DATED 31.07.2013 PASSED IN
MVC NO.127/2011 ON THE FILE OF PRL. SENIOR CIVIL
JUDGE AND CJM AND MACT-II BIDAR, PARTLY ALLOWING
THE CLAIM PETITION AND SEEKING ENHANCEMENT OF
COMPENSATION.


IN MFA NO.200475/2014

BETWEEN:

1 . RANGAMMA
W/O RAMCHANDRA
AGE: 50 YEARS, OCC: HOUSEHOLD

2 . RAMACHANDRA
S/O BAKKAPPA KECHANUR
AGE: 58 YEARS, OCC: HOUSEHOLD

3 . MANIKSHI
D/O RAMACHANDRA KECHANUR
AGE: 29 YEARS, OCC: HOUSEHOLD

4 . SRIDEVI
D/O RAMCHANDRA KECHANUR
AGE: 27 YEARS, OCC: HOUSEHOLD

5 . KALAWATI
D/O RAMCHANDRA KECHANUR
AGE: 18 YEARS, OCC: HOUSEHOLD,
                            4




ALL ARE R/O KARAKNALLI
NOW AT LABOUR COLONY
OUTSIDE SHAHGUNJ, BIDAR
                                         ...APPELLANTS
(BY SRI. SANTOSH BIRADAR, ADV.)

AND

1 . MRS. AKSHATA KAMATH
W/O K.NAGRAJ V. MATH
AGE:MAJOR, OCC: BUSINESS
R/O SHRI SHANTHURGA CASHEW PROCESIRS
KALLAMUNDKUR POST BANGADY,
TQ. & DIST. MANGALORE - 576101

2 . SHANTHKUMAR
S/O HASHAPPA
AGE: MAJOR, OCC: AGRICULTURE,
R/O BENKEPALLI, TQ. CHINCHOLI,
DIST. GULBARGA - 585307

3 . THE DIVISIONAL MANAGER
ORIENTAL INSURANCE COMPANY LTD.
DIVISION OFFICE OPP: MINI VIDHAN SOUDHA GULBARGA,
REPRESENTED BY ITS BRANCH MANAGER,
OFFICE KAMSHETTY COMPLEX,
UDGIR ROAD, BIDAR
                                      ...RESPONDENTS

(BY SMT. PREETI PATIL MELKUNDI, ADV. FOR R3
    NOTICE TO R1 - SERVED
    NOTICE TO R2 - HELD SUFFICIENT)


      THIS MFA IS FILED U/S. 173(1) OF MV ACT, AGAINST
THE JUDGMENT AND AWARD DATED 31.07.2013 PASSED IN
MVC NO.126/2011 ON THE FILE OF PRL. SENIOR CIVIL
JUDGE AND CJM AND MACT-II BIDAR, PARTLY ALLOWING
                           5




THE CLAIM PETITION AND SEEKING ENHANCEMENT OF
COMPENSATION.


IN MFA NO.32922/2013

BETWEEN:

THE DIVISIONAL MANAGER
ORIENTAL INSURANCE COMPANY LTD.,
DIVISION OFFICE, OPP. MINI VIDHAN SOUDHA,
GULBARGA
REPRESENTED BY ITS BRANCH MANAGER,
BR. OFFICE, KAMSHETTY COMPLEX,
UDGIR ROAD, BIDAR.
(NOW REPRESENTED THROUGH
SR. DIVL. MANAGER, GULBARGA)
                                            ...APPELLANT

(BY SMT. PREETI PATIL MELKUNDI, ADV.)

AND

1 . RANGAMMA
W/O RAMCHANDRA
AGE: 49 YEARS, OCC: HOUSEHOLD

2 . RAMCHANDRA
S/O BAKKAPPA KECHANUR
AGE: 57 YEARS, OCC: HOUSEHOLD

3 . MINAKSHI
D/O RAMCHANDRA KECHANUR
AGE: 28 YEARS, OCC: HOUSEHOLD

4 . SRIDEVI
D/O RAMCHANDRA KECHANUR
AGE: 26 YEARS, OCC: HOUSEHOLD
                            6




5 . KALAVATI
D/O RAMCHANDRA KECHANUR
AGE: 17 YEARS, MINOR STUDENT
U/G REAL MOTHER CLAIMANT NO.1
RANGAMMA

ALL ARE R/O KARAKNALLI NOW AT LABOUR COLONY,
OUTSIDE SHAHGUNJ, BIDAR - 585401

6 . MRS. AKSHATA KAMATH
W/O K. NAGRAJ V. MATH
AGE: MAJOR, OCC: BUSINESS,
R/O SHRI SHANTHDURGA CASHEW PROCESIRS,
KALLAMUNDKUR POST, BANGADY,
TQ. & DIST. MANGALORE - 575001

7 . SHANTHKUMAR
S/O HASHAPPA
AGE: MAJOR, OCC: AGRICULTURE
R/O BENKEPALLI, TQ. CHINCHOLI
DIST. GULBARGA - 585307
                                        ...RESPONDENTS

(BY SRI. SANTOSH BIRADAR, ADV. FOR R1 TO R4
    R5 - MINOR REP. BY R1
    SRI. MANJUNATHA M. CHIDALLI, ADV. FOR R6
    NOTICE TO R7 - HELD SUFFICIENT)


     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 31.07.2013 PASSED IN
MVC NO. 126/2011 ON THE FILE OF THE PRL. SENIOR CIVIL
JUDGE AND CJM AND MACT-II BIDAR, PARTLY ALLOWING
THE CLAIM PETITION AND AWARDING COMPENSATION OF
RS.6,49,000/- WITH INTEREST AT 6 P.A.
                           7




IN MFA NO.32923/2013

BETWEEN:

THE DIVISIONAL MANAGER
ORIENTAL INSURANCE COMPANY LTD.,
DIVISION OFFICE, OPP. MINI VIDHAN SOUDHA, GULBARGA,
REPRESENTED BY ITS BRANCH MANAGER,
BR. OFFICE, KAMSHETTY COMPLEX,
UDGIR ROAD, BIDAR.
(NOW REPRESENTED THROUGH
SR. DIVL. MANAGER, GULBARGA)
                                         ...APPELLANT
(BY SMT. PREETI PATIL MELKUNDI, ADV.)

AND

1 . BHARATI
W/O LATE APPARAO DAPLAPURE
AGE: 26 YEARS, OCC: HOUSEHOLD

2 . ASMITA
D/O LATE APPARAO DAPLAPURE
AGE: 6 YEARS, MINOR

3 . YASH
S/O LATE APPARAO DAPLAPURE
AGE: 5 YEARS, MINOR

4 . JATINGRAYA
S/O NAMDEV DAPLAPURE
AGE: 67 YEARS, OCC: NIL

5 . BHEEMBAI
W/O JATINGRAYA DAPLAPURE
AGE: 64 YEARS, OCC: HOUSEHOLD

6 . DEEPIKA
D/O JATINGRAYA DAPLAPURE
AGE: 24 YEARS, OCC: STUDENT
                           8




ALL ARE R/O JANWADA ROAD, VIJAY COLONY,
NAVADGERI, BIDAR - 585401

7 . MRS. AKSHATA KAMATH
W/O K.NAGRAJ V.MATH
AGE: MAJOR, OCC: BUSINESS,
R/O SHRI SHANTHDURGA CASHEW PROCE SIRS,
KALLAMUNDKUR POST, BANGADY,
TQ. & DIST. MANGALORE - 575001

8 . SHANTHKUMAR
S/O HASHAPPA
AGE: MAJOR, OCC: AGRICULTURE
R/O BENKEPALLI, TQ. CHINCHOLI
DIST. GULBARGA - 585307
                                         ...RESPONDENTS

(BY SRI. SANTOSH BIRADAR, ADV. FOR R1, R4 TO R6
    R2 AND R3 - MINORS REP. BY R1
    SRI. MANJUNATH M. CHIDDALI, ADV. FOR R7
    NOTICE TO R8 - HELD SUFFICIENT)


     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 31.07.2013 PASSED IN
MVC NO.127/2011 ON THE FILE OF THE PRL. SENIOR CIVIL
JUDGE AND CJM AND MACT-II BIDAR, PARTLY ALLOWING
THE CLAIM PETITION AND AWARDING COMPENSATION OF
RS.7,28,500/- WITH INTEREST AT 6% P.A.

     THESE APPEALS COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
                                   9




                           JUDGMENT

MFA Nos.200396/2014 and 200475/2014 are filed

by the claimants and MFA Nos.32922/2013 and

32923/2013 are filed by the Insurance Company under

Section 173(1) of the Motor Vehicles Act, 1988

(hereinafter referred to as 'the Act', for short) against

the common judgment and award passed in MVC

Nos.126/2011 and 127/2011 dated 31.07.2013, by the

Motor Accident Claims Tribunal, Bidar.

Since all the appeals arise out of common

judgment and award, they are taken up together for

final disposal.

2. For the sake of convenience, the parties are

referred as per their ranking before the Tribunal.

3. Facts giving rise to filing of these appeals

briefly stated are that on 06.12.2010, deceased

Bakkappa and deceased Apparao were proceeding

towards Ghulkheda Village, Indi Taluka on motorcycle

bearing Reg.No.KA-38-J-8444, at about 8 p.m. when

they came in front of Bharat Petrol Pump on Bijapur-

Sholapur road, a cruiser jeep bearing Reg.No.KA-13-P-

5915 came in a high speed and in rash and negligent

manner and dashed against the motorcycle of the

deceased. As a result of the aforesaid accident, the

deceased Bakkappa and Apparao sustained grievous

injuries and both succumbed to the said injuries on the

spot. A criminal case was registered against the driver

of the offending vehicle. The claimants being the

legal representatives of the deceased filed separate

claim petitions under Section 166 of the Act.

3.1. Respondent No.1 has filed written statement

stating that he had sold the offending vehicle in favour

of respondent No.2, but the policy is still in his name

and the claimants, taking undue advantage of this fact,

have made him as a party. Hence, prayed to dismiss

the claim petitions against him.

3.2. Respondent No.2, owner of the vehicle has

filed the written statement contending that the offending

vehicle is insured with the respondent No.3 and that the

respondent No.3 has to indemnify the owner of the

offending vehicle. Further, the age, avocation and

income of the deceased are denied. Hence, prayed to

dismiss the claim petitions.

3.3. Respondent No.3, Insurance Company has

filed the written statement denying the age, avocation

and income of the deceased. It was contended that the

rider of the motorcycle was not having a valid and

effective driving licence. It was further contended that

the Insurance policy of the offending vehicle was not

transferred in the name of respondent No.2 and there is

violation of policy conditions. Hence, prayed to dismiss

the claim petitions.

3.4. On the basis of the pleadings of the parties, the Tribunal framed the following issues: In MVC No.126/2011

1) Whether the petitioners prove that Bakkappa who died in the motor vehicle accident that was occurred on 6-12-2010 at about 8.00 p.m. in front of Bhagat Petrol Pump on Solapur-Bijapur road in the limits of Nodani, due to user of cruiser Jeep bearing Reg.No.KA-19-P-5915 being driven by its driver in an actionable negligence manner?

  2)    Whether the petitioners are entitled for
        compensation?       If  so, from   which
        respondent, to what extent?

  3)    What order or award ?

  In MVC No.126/2011

    1) Whether      the petitioners prove that
       Apparao who died in the motor vehicle

accident that was occurred on 6-12-2010 at about 8.00 p.m. in front of Bhagat Petrol Pump on Solapur-Bijapur road in the limits of Nodani, due to user of cruiser Jeep bearing Reg.No.KA-19-P-5915 being driven by its driver in an actionable negligence manner?

2) Whether the petitioners are entitled for compensation? If so, from which respondent, to what extent?

3) What order or award ?

3.5. In order to prove the case of the claimants,

claimant No.4 in MVC No.126/2011 examined herself as

PW-1 and claimant No.6 in MVC No.127/2011 examined

herself as PW-2 and got exhibited documents namely

Ex.P1 to Ex.P13. On behalf of the respondents, neither

oral nor documentary evidence are adduced. The

Tribunal, after recording the evidence, has held that the

accident took place on account of rash and negligent

driving of the offending vehicle. It was further held, that

as a result of aforesaid accident, the deceased sustained

injuries and succumbed to the same. It is further held

that the claimants in MVC No.126/2011 are entitled to a

compensation of Rs.6,49,000/- along with interest at the

rate of 6% per annum and the claimants in MVC

No.127/2011 are entitled to a compensation of

Rs.7,28,500/- along with interest at the rate of 6% per

annum. The Tribunal has further held respondent No.3

liable to pay the compensation and directed to deposit

the compensation amount within a period of two months

from the date of award.

4. Claimants being dissatisfied with the

compensation awarded by the Tribunal, have filed the

appeals seeking for enhancement of compensation and

respondent No.3 Insurance Company has filed the

appeals challenging the liability.

5. Learned counsel for respondent No.3 prays to

allow the appeals filed by the Insurance Company and

dismiss the appeals filed by the claimants, on the

following grounds:

Firstly, that the deceased have contributed for

cause of the accident and that there is contributory

negligence on the part of the rider of the motorcycle.

Secondly, that the FIR was registered against

unknown person and the claimants colluding with the

police officer, got filed the false charge-sheet.

Thirdly, that in MVC No.126/2011, since deceased

was a bachelor, Tribunal ought to have deducted 50%

instead of 1/3rd towards personal expenses.

6. Per contra, learned counsel for the claimants

submits that the charge-sheet is filed against the driver

of the offending vehicle and no charge-sheet is filed

against the rider of the motorcycle. He further submits

that though FIR is registered against an unknown

person, the police officer after investigation has filed

charge-sheet against respondent No.1. Hence he

submits that the Tribunal, after considering the material

on record, was justified in fastening the liability on the

Insurance Company. He further submits that the

compensation awarded by the Tribunal is on a lower

side. Hence, prays to allow the appeal filed by the

claimants and dismiss the appeals filed by the Insurance

Company.

7. Heard learned counsel for the parties and

perused the records and also considered the

submissions made by the learned counsel.

8. The point that arises for consideration is with

regard to the quantum of compensation and liability.

9. It is not in dispute that deceased Bakkappa

and Apparao succumbed to the injuries sustained due to

the alleged road traffic accident. In order to prove the

negligence on the part of the driver of the offending

vehicle, the claimants have produced copy of complaint,

panchanama, charge-sheet, etc. Ex.P9 charge-sheet

discloses that the accident occurred due to rash and

negligent driving of the driver of the offending vehicle.

Though FIR was registered against an unknown person,

police authorities after investigation filed a charge-sheet

against respondent No.1. Neither respondent No.1 nor

the Insurance Company have challenged the charge-

sheet filed against the respondent No.1. The Hon'ble

Supreme Court in the case of MANGLA RAM VS. THE

ORIENTAL INSURANCE COMPANY [(2018) 5 SCC 656]

has held that proceeding under the Act has to be

decided on the basis of preponderance of probabilities

and claimant is not required to prove the accident

beyond reasonable doubt. When respondent No.3 did

not challenge the FIR and charge-sheet, respondent

No.3 has no right to take a defence that the police

authorities colluding with the claimants have filed a false

charge-sheet.

10. As far as contributory negligence is concerned,

respondent No.3, except taking a defence in the written

statement, has not led the evidence of the driver of the

offending vehicle and also no charge-sheet was filed

against the rider of the motorcycle. In the absence of

necessary oral and documentary evidence, the Tribunal

was justified in holding that the deceased have not

contributed any negligence for the cause of the accident.

The general rule is that the vehicle should be driven at a

speed which enables the driver to stop within the limits

of his vision and failure to do this will almost always

result in the driver being held in whole or in part

responsible for the collusion. The Hon'ble Supreme

Court in the case of THE MUNICIPAL CORPORATION OF

GREATER BOMBAY VS. LAXMAN IYER & ANR. [AIR 2003

SC 4182] held that the finding with regard to

contributory negligence has to be recorded on the basis

of proper consideration of the pleadings and legal

evidence adduced by both the parties and the same

cannot be based merely on police records. The burden

is on the Insurance Company and the Insurance

Company has failed to discharge the burden. The

findings recorded by the Tribunal in regard to rash and

negligent driving of the driver of the offending vehicle is

just and proper and based on the records produced by

the claimants, Tribunal was justified in fastening the

liability on the Insurance Company.

11. Insofar as quantum is concerned, the

claimants in MVC No.126/2011 have not produced any

evidence with regard to the income of deceased

Bakkappa. The accident is of the year 2010. The

deceased was aged about 22 years at the time of

accident and was working as a driver. Therefore, even if

notional income of the deceased is assessed as per the

guidelines issued by the Karnataka Legal Services

Authority, notional income comes to Rs.5,500/- per

month. In view of the law laid down by the Constitution

Bench of the Supreme Court in the case of NATIONAL

INSURANCE COMPANY LIMITED VS. PRANAY SETHI & ORS.

[AIR 2017 SC 5157], 40% of the amount has to be

added on account of future prospects. Thus, the

monthly income comes to Rs.7,700/-. Since, the

deceased was a bachelor, 50% has to be deducted

towards personal expenses and therefore, the monthly

income comes to Rs.3,850/-. Taking into account the

age of the deceased at the time of accident, the

multiplier '18' has to be adopted. Therefore, the

claimants are entitled to (Rs.3,850x12x18) i.e.,

Rs.8,31,600/- on account of loss of dependency.

12. In view of laid down by the Supreme Court in

MAGMA GENERAL INSURANCE CO. LTD. -V- NANU RAM &

OTHERS [(2018) 18 SCC 130], which has been

subsequently clarified by the Supreme Court in UNITED

INDIA INSURANCE CO. LTD. VS. SATINDER KAUR & ORS.

[AIR 2020 SC 3076], each of the claimants are entitled

to a sum of Rs.40,000/- on account of loss of

consortium. Thus, the claimants are entitled to

Rs.2,00,000/-. In addition, the claimants are entitled to

Rs.15,000/- on account of 'loss of estate'; Rs.15,000/-

on account of 'funeral expenses'.

13. Thus, in all, the claimants in MVC

No.126/2011 are entitled to a total compensation of

Rs.10,61,600/- as against Rs.6,49,000/-.

14. Insofar as quantum is concerned, the

claimants in MVC No.127/2011 have not produced any

evidence with regard to the income of the deceased

Apparao. The accident is of the year 2010. The

deceased was aged about 27 years at the time of

accident and was doing tailoring work. Therefore, even

if notional income of the deceased is assessed as per the

guidelines issued by the Karnataka Legal Services

Authority, notional income comes to Rs.5,500/- per

month. In view of the law laid down by the Constitution

Bench of the Supreme Court in the case of PRANAY

SETHI (SUPRA), 40% of the amount has to be added on

account of future prospects. Thus, the monthly income

comes to Rs.7,700/-. Since, the number of dependents

are 6, therefore, 1/4th of the amount has to be deducted

towards personal expenses and therefore, the monthly

income comes to Rs.5,775/-. Taking into account the

age of the deceased at the time of accident, the

multiplier '17' has to be adopted. Therefore, the

claimants are entitled to (Rs.5,775x12x17) i.e.,

Rs.11,78,100/- on account of loss of dependency.

15. In view of laid down by the Supreme Court in

the case of MAGMA GENERAL INSURANCE CO. LTD.

(SUPRA), each of the claimants are entitled to a sum of

Rs.40,000/- on account of loss of consortium. Thus, the

claimants are entitled to Rs.2,40,000/-. In addition, the

claimants are entitled to Rs.15,000/- on account of 'loss

of estate'; Rs.15,000/- on account of 'funeral expenses'.

16. Thus, in all, the claimants in MVC

No.127/2011 are entitled to a total compensation of

Rs.14,48,100/- as against Rs.7,28,500/-.

In view of the above discussion, I proceed to pass

the following:

ORDER

MFA Nos.32922/2013 and 32923/2013 filed by the Insurance Company are dismissed.

            MFA          Nos.200396/2014                 and
     200475/2014        filed   by   the   claimants     are
     allowed in part.
            The judgment and award passed by the
     Tribunal is modified.
            The claimants in MFA No.200475/2014
     (MVC    No.126/2011)        are   entitled    for    an

enhanced compensation of Rs.4,12,600/- and the claimants in MFA No.200396/2014 (MVC No.127/2011) are entitled for an enhanced compensation of Rs.7,19,600/-, along with interest at the rate of 6% p.a. from the date of filing of the petition till the date of realization.

Respondent No.3 Insurance Company is directed to deposit the compensation amount within a period of eight weeks from the date of receipt of a copy of this order.

            The     amount      in   deposit      may     be
     transmitted to the Tribunal.




                                            SD/-
                                           JUDGE

RD