Nagaraj S/O Shankar Angadi vs Saleem S/O Subanasab Kazi
2022 Latest Caselaw 6009 Kant

                              IN THE HIGH COURT OF KARNATAKA
                                      DHARWAD BENCH

                           DATED THIS THE 04THDAY OF APRIL, 2022

                                               BEFORE

                       THE HON'BLE MR JUSTICE N.S.SANJAY GOWDA

                               M.F.A. NO.103208 OF 2019 (MV-D)

                      BETWEEN:

                      1.   NAGARAJ S/O SHANKAR ANGADI,
                           AGE: 33 YEARS, OCC: COOLIE,
                      2.   SUDEEP S/O NAGARAJ ANGADI,
                           AGE: 9 YEARS, OCC: STUDENT,
                      3.   SRUSHTI D/O NAGARAJ ANGADI,
                           AGE: 7 YEARS, OCC: STUDENT,
                           ALL ARE R/O YARAGATTI,
                           TQ: SAUNDATTI,DIST: BELAGAVI-591126.
                           APPELLANT NOS.2 &3 ARE MINORS
                           REPRESENTED BY THE MOTOR GUARDIAN
                           FATHER AS APPELLANT NO.1.
                                                                   ... APPELLANTS
                      (BY SRI. G.R. TURAMARI,ADVOCATE)

                      AND:
        Digitally
        signed by J
        MAMATHA
                      1.   SALEEM S/O SUBANASAB KAZI,
J       Location:
MAMATHA Dharwad            AGE: 53 YEARS, OCC: AGRICULTURE,
        Date:
        2022.04.05         R/O : YARAGATTI, TQ : SAUNDATTI,
        10:39:56
        +0530              DIST: BELAGAVI-591126.
                           (OWNER OF HERO HONDA MOTOR CYCLE
                           BEARING KA-24/8814).
                      2.   THE MANAGER,
                           NATIONAL INSURANCE CO.LTD.,
                           BY ITS BR. MANAGER,INGALAGI BUILDING,
                           OLD BUS-STAND ROAD, SAUNDATTI,
                           DISTRICT BELAGAVI-591126.
                                                                  ...RESPONDENTS
                      (BY SRI. NAGARAJ J.APPANNAVAR,ADVOCATE FOR R1;
                       SMT. PREETI SHASHANK, ADVOCATE FOR R2)
                                  -2-




                                             MFA No. 103208 of 2019


     THIS MFA IS FILED U/S.173(1) OF THE MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED 18.05.2019 PASSED
IN MVC NO.1943/2016 ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, SAUNDATTI, PARTLY ALLOWING THE CLAIM PETITION
FOR   COMPENSATION      AND    SEEKING    ENHANCEMENT    OF
COMPENSATION.

     THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

1. For the death of Sangeeta, the wife of the

first appellant and the mother appellant Nos.2 and 3,

the Trib unal has awarded the following sums as

compensation:

1. Loss of dependency Rs.16,12,800/-

      2. Medical expenses                            Rs.57,407/-
      3. Transportation of dead body                 Rs.20,000/-
         & funeral expenditure
      4. Loss of consortium and loss               Rs.1,00,000/-
         of love and affection
      5. Loss of estate                              Rs.50,000/-
                  TOTAL                           Rs.18,40,207/-


      2.   In     this   case,   the    fact    that   an   accident

occurred is not in dispute. However, the contention is

that the rider of the motorcycle did not possess the

driving licence to drive the motorcycle, though he did

possess a driving licence to drive a lig ht motor vehicle

and a tractor.

MFA No. 103208 of 2019

3. Learned counsel for the appellant contends

that since this is admitted ly not a case of fundamental

breach, the principles of pay and recovery would have

to be adopted. He also submitted that immediately

after the accident, the claimant had in fact obtained a

driving licence to drive a motorcycle it will have to be

presumed that he had adequate skill and expertise to

drive a motorcycle on the date of the accident also.

4. Learned counsel also submits that the sums

computed by the Trib unal were incorrect and the same

would have to be recomputed .

5. Admitted ly, in the instant case, it is not in

dispute that the rider of the motorcycle in which the

deceased was riding pillion d id possess a driving

licence to drive a light motor vehicle and tractor. It is

therefore not a case of no driving licence at all. In this

view of the matter, this would be a case to adopt the

pay and recover principle as enunciated in the case of

Papp u and others Vs. Vinod Kumar Lamba and

another reported in (2018) 3 SCC 208and the

MFA No. 103208 of 2019

Insurance Company would therefore be liable to

satisfy the award and thereafter proceed to recover

from the owner.

6. The deceased was aged about 24 years as on

the date of accid ent and the Trib unal has assessed the

monthly income of the deceased at Rs.7,000/- and

also added 60% towards future prospects. In the

absence of any documentary evidence, it would be

appropriate to adopt the monthly income as

determined by the Karnataka State Legal Services

Authority, which would be Rs.8,000/- per month for

the accident occurred during 2016.

7. To this monthly income, 40% will have to be

added towards future prospects as per the decision of

the Apex Court in the case of NATIONAL INSURANCE

COMPANY LIMITED VS. PR ANAY SETHI AND

OTH ERS reported in AIR 2017 SC 5157. Thus, the

monthly income of the deceased after adding 40%

towards future prospects would be Rs.11,200/-

(Rs .80,000 + 40%) .

MFA No. 103208 of 2019

8. Out of the said sum, 1/3 r d will have to be

deducted towards personal expenses of the deceased.

Thus, the monthly income of the deceased after

deducting 1/3 r d towards personal expenses of the

deceased would be Rs.7,466.66 rounded off to

Rs.7,467/- (Rs.11,200/- - 1/3 r d ).

9. The Tribunal has rightly adopted the

appropriate multiplier of 18 considering the age

of the deceased. Thus, the claimants would be

entitled to loss of dependency at Rs.16,12,872/-

(Rs .7,467/- x 12 x 18) .

10. In addition, the claimants being the husband, son

and daughter of the deceased, each of them would be

entitled a sum of Rs.44,000/- towards loss of consortium. Thus,

the claimants would be entitled to total compensation of

Rs.1,3,2000/- (Rs.44,000/- x 3) under this head.

11. Further, a sum of Rs.33,000/- is awarded towards

conventional heads.

MFA No. 103208 of 2019

12. Thus, the claimants would be entitled to a

total compensation as follows:

1. Loss of dependency Rs.16,12,872/-

2. Loss of consortium Rs.1,32,000/-

3. Under conventional heads Rs.33,000/- 4 Medical expenditure Rs.57,407/-

TOTAL Rs.18,35,279/-

13. Accordingly, the appeal is allowed in part.

The Judgment and award passed by the Tribunal is

modified.

14. The claimants would be entitled to a total

compensation of Rs.18,35,279/- as against

Rs.18,40,207/- awarded by the Tribunal along with

interest at the rate of 6% p.a. from the date of

petition till its retaliation.

15. The Insurance Company is directed to

deposit the entire compensation amount along with

interest before the Tribunal within six weeks from the

date of receip t of a certified copy of this judgment.

16. The Insurance Company shall satisfy the

award amount and thereafter proceed to recover the

compensation from the owner of the motorcycle.

MFA No. 103208 of 2019

17. The order of apportionment and deposit

ordered by the Tribunal shall hold good for the

compensation awarded in this app eal.

Since the appeal is d isposed off directing the

Insurance Company to satisfy the compensation

amount, not being necessary to consider the

application filed for production additional documents

and the same is rejected.

Sd/-

JUDGE Vnp*