Karnataka High Court
The Branch Manager vs Smt. Shakuntala W/O Sangappa ... on 1 August, 2022
Bench: H.P.Sandesh
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MFA No. 104076 of 2018
C/W MFA No. 104077 of 2018
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 01ST DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 104076 OF 2018 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 104077 OF 2018
IN M.F.A.No.104076/2018
BETWEEN:
1. THE BRANCH MANAGER,
CHOLAMANDALAM M S GENERAL
INSURANCE CO LTD.,
1ST FLOOR, KALBURGI SQUARE,
DESHPANDE NAGAR,
HUBBALLI 580029
NOW REPRESENTED BY ITS
AUTHORISED SIGNATORY
...APPELLANT
(BY SRI. SUBHASH J.BADDI.,ADVOCATE)
AND:
1. SMT. SHAKUNTALA W/O SANGAPPA SHIKKERI
AGE:46 YEARS, OCC:HOUSE HOLD,
J
Digitally signed by
J MAMATHA 2. SANGAPPA S/O HANAMANTAPPA SHIKKERI
Location: Dharwad
MAMATHA Date: 2022.08.02 AGED ABOUT 54 YEARS,
16:55:50 +0530
OCC:COOLIE
3. RENUKA D/O SANGAPPA SHIKKERI
AGED ABOUT 23 YEARS, OCC:STUDENT,
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MFA No. 104076 of 2018
C/W MFA No. 104077 of 2018
4. PARASHURAM S/O SANGAPPA SHIKKERI
AGED ABOUT 21 YEARS, OCC:STUDENT,
ALL ARE R/O KAMATAGI,
TQ:HUNGUND, DIST:BAGALKOT 587120
5. DAVALSAB S/O BASHASAB BEPARI
AGED ABOUT 49 YEARS,
OCC:BUSINESS,
R/O AT BESIDE GAJANAN WEIGHT BRIDGE,
KEMPKERI, KARWAR ROAD,
OLD HUBBALLI,
HUBBALLI 5800018
...RESPONDENTS
(BY SRI.GIRISH A.YADAWAD, ADVOCATE FOR R1 TO R4,
R5 SERVED)
THIS MFA FILED U/S.173(1) OF MV ACT, 1988, AGAINST THE
JUDGMENT AND AWARD DATED 18.08.2018 PASSED IN MVC
NO.281/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL-X, HUNGUND,
AWARDING COMPENSATION OF Rs.19,25,400/- WITH INTEREST AT
7% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.
IN M.F.A.No.104077/2018
BETWEEN
1. THE BRANCH MANAGER,
CHOLAMANDALAM MS GENERAL INSURANCE CO LTD.,
1ST FLOOR, KALBURGI SQUARE,
DESHPANDE NAGAR,
HUBBALLI 580029
NOW REPRESENTED BY ITS
AUTHORISED SIGNATORY
...APPELLANT
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MFA No. 104076 of 2018
C/W MFA No. 104077 of 2018
(BY SHRI SUBHASH J BADDI, ADV.)
AND
1. SMT. SATYAVVA W/O HANAMANTA NIMBALAGUNDI
AGE:25 YEARS,
OCC:HOUSE HOLD,
2. PRAVEEN S/O HANAMANTA NIMBALAGUNDI
AGED ABOUT 07 YEARS,
3. RENUKA D/O HANAMANTA NIMBALAGUNDI
AGED ABOUT 05 YEARS,
4. SUVARNA D/O HANAMANTA NIMBALAGUNDI
AGED ABOUT 03 YEARS,
5. PARASAPPA S/O HANAMAPPA NIMBALAGUNDI
AGED ABOUT 61 YEARS,
OCC:NIL
RESPONDENT NO.2 TO 4 SINCE MINOR REPRESENTED BY THEIR
N.G.M
I.E. RESPONDENT NO.1
ALL ARE R/O KAMATAGI, TQ:HUNGUND,
DIST:BAGALKOT 587120.
6. DAVALSAB JS/O BASHASAB BEPARI
AGED ABOUT 49 YEARS,
OCC:BUSINESS,
R/O AT :BESIDE GAJANAN WEIGHT BRIDGE,
KEMPKERI,
KARWAR ROAD,
OLD HUBBALLI,
HUBBALLI 5800018
... RESPONDENTS
(BY SHRI GIRISH A.YADAWAD, ADV. FOR R1 TO R4,
R2 TO R4 ARE MINORS REPRESENTED BY R1,
R5 SERVED)
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MFA No. 104076 of 2018
C/W MFA No. 104077 of 2018
THIS MFA IS FILED U/S.173(1) OF MV ACT, 1988,
AGAINST THE JUDGMENT AND AWARD DATED 18.08.2018
PASSED IN MVC NO.282/2017 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND MEMBER, MOTOR ACCIDENT CLAIMS
TRIBUNAL-X, HUNGUND, AWARDING COMPENSATION OF
Rs.20,78,800/- WITH INTEREST AT 7% P.A. FROM THE DATE
OF PETITION TILL ITS REALIZATION.
THESE APPEALS COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING.
JUDGMENT
Though these matters are listed for admission, with the
consent of learned counsel appearing for the parties, the
matters are taken up for final disposal.
2. The factual matrix of the case of the claimants
before the Tribunal is that on 29.09.2016 at about 7.30 p.m.,
the deceased Hanamant Sikkeri and Hanamanth Nimbalagundi
along with others were standing on the Hungund-Bagalkot
State Highway near Bharath Gas go-down situated at Kamatagi
village of Hungund taluk, to enquire in respect of death of two
goats in an accident in the said spot. At that time, a lorry
bearing registration No.KA-25/D-7991 came from Hungund side
towards Bagalkot, in a rash and negligent manner so as to
endanger human life and dashed against the above mentioned
MFA No. 104076 of 2018
C/W MFA No. 104077 of 2018
persons and the others. In the said accident, Hanamant Sikkeri
and Hanamant Nimbalagundi and others sustained grievous
injuries. Hanamant Sikkeri and Hanamant Nimbalagundi died
on the way to hospital. It was the claim of the claimants that
prior to the accident, the deceased were hale and healthy and
doing coolie work and thereby earning Rs.12,000/- and
maintaining their family. Hence, the claimants filed claim
petitions before the Tribunal seeking for compensation. The
Tribunal after assessment of oral and documentary evidence
available on record, awarded compensation of Rs.19,25,400/-
in M.V.C.No.281/2017 and Rs.20,78,800/- in
M.V.C.No.282/2017 with interest at the rate of 7% p.a. Hence,
the Insurance Company has preferred these two appeals on the
ground of quantum of compensation and also on the ground of
contributory negligence on the part of the deceased which the
Tribunal has not taken into consideration and also that the
interest awarded by the Tribunal at the rate of 7% is on the
higher side.
3. Learned counsel appearing for the
appellant/Insurance Company reiterating the grounds urged in
MFA No. 104076 of 2018
C/W MFA No. 104077 of 2018
the appeal memo would contend that the Tribunal erred in
taking the income of both the deceased at Rs.9,000/- p.m. but
the same ought to have been taken at Rs.8,750/- being the
notional income since the accident is of the year 2016. He also
contends that the rate of interest of 7% p.a. awarded by the
Tribunal requires to be reduced. It is his further contention
that the deceased persons were also negligent in standing on
the State Highway instead of they being standing by the side of
the road. Hence, the deceased also contributed negligence to
the occurrence of the accident and the judgment and award of
the Tribunal requires to be modified.
4. Per contra, the learned counsel for the
claimants/respondents would vehemently contend that as there
was an accident in which two goats had died, the deceased
were watching the accident spot. At that time, the driver of the
offending vehicle drove his vehicle in a very rash and
negligence manner as a result of which he dashed the said
vehicle to the deceased and they succumbed to the injuries.
Hence, no negligence can be attributed on the part of the
deceased persons and it was the driver of the offending vehicle
MFA No. 104076 of 2018
C/W MFA No. 104077 of 2018
who ought to have driven the vehicle with care and caution. He
fairly submits that the income taken by the Tribunal is slightly
on the higher side and the same can be reduced marginally as
contended by the learned counsel for the appellant/Insurance
Company but he submits that the rate of interest awarded is
just and reasonable. Hence, the impugned judgment and
award does not require any interference.
5. Having heard the learned counsel appearing for the
parties and also on perusal of the material available on record,
the point that arises for consideration of this Court are:
i) Whether the Tribunal has awarded exorbitant
compensation as contended by the learned counsel
appearing for the appellant/Insurance Company in
both the cases?
ii) Whether the Tribunal committed an error in not
attributing the contributory negligence as
contended by the learned counsel for the Insurance
Company?
MFA No. 104076 of 2018
C/W MFA No. 104077 of 2018
iii) Whether the interest awarded by the Tribunal is on
the higher side as contended by the Insurance
Company?
iv) What order?
Reg: Point No.2:
6. The main contention of the learned counsel for the
appellant/Insurance Company is that the deceased persons
were standing on the State Highway as a result of which the
accident has occurred due to their negligence. In order to
prove the said contention, the Insurance Company has not
examined any of the witnesses. He further relies on the
charge-sheet along with the spot panchanama which disclose
that an accident had occurred whereby two goats had died at
the spot and that the people were standing in the State
Highway and watching the place of accident. When such being
the case, the contention of the Insurance Company that the
deceased were not expected to stand on a State Highway and
watch the accident spot cannot be accepted. It was more
expected by the driver of the offending vehicle that when
people had gathered near the place of accident, he should have
MFA No. 104076 of 2018
C/W MFA No. 104077 of 2018
taken note of the same and would have driven the vehicle in a
care and cautious manner. Accordingly, point No.2 is answered
in the negative.
Reg: Point No.1:
7. In M.F.A.No.104076/2008, the deceased was aged
about 24 years and he was working as a clerk in Vishwachetan
Convent School, Kamtagi and was drawing a salary of
Rs.12,600/- and to substantiate the same, no documents were
produced. While calculating the loss of dependency, the
Tribunal has taken the income of the deceased at Rs.9,000/-
p.m. and has added future prospects of 40% to it. In the
absence of any material document, the Tribunal has considered
the notional income of Rs.9,000/- p.m. instead of Rs.8,750/-.
But, the Tribunal committed an error in deducting only 1/3rd
towards the personal expenses of the deceased but it ought to
be 50% as the deceased was a bachelor. Hence, the same
requires to be re-calculated and having taken the income of
Rs.8,750/- and adding 40% and also considering the age of the
victim and applying multiplier of 18, it comes to Rs.13,23,000/-
(Rs.8750+40% i.e., Rs.3,500 = 12,250X18X12X50%).
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MFA No. 104076 of 2018
C/W MFA No. 104077 of 2018
8. The claimants being the mother, father, sister and
brother are entitled for compensation of Rs.40,000/- each
which comes to Rs.1,60,000/- towards loss of love and
affection.
9. The claimants are also entitled for a sum of
Rs.30,000/- towards funeral expenses and also loss of estate.
10. In all, the claimants are entitled to a sum of
Rs.15,13,000/-.
11. In M.F.A.No.104077/2018 in respect of
M.V.C.No.282/2017, the claimants are the wife, children and
father of the deceased. In this case also, the Tribunal has
taken the income of Rs.9,000/- p.m. In the absence of any
material, the Tribunal ought to have taken the notional income
at Rs.8,750/- and added 40% to his income which comes to
Rs.12,250/-/. Out of the said amount, 1/4th has to be deducted
towards the personal expenses of the deceased. As the
deceased was 28 years, the correct multiplier applicable was
17. Hence, the claimants are entitled to Rs.18,74,148/-
towards loss of dependency.
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MFA No. 104076 of 2018
C/W MFA No. 104077 of 2018
12. The claimants being the wife, children and father
are entitled for compensation of Rs.40,000/- each which comes
to Rs.2,00,000/- towards loss of love and affection.
13. The claimants are also entitled for a sum of
Rs.30,000/- towards funeral expenses and loss of estate.
14. In all, the claimants are entitled to a sum of
Rs.21,04,148/-.
Reg:Point No.3:
15. The accident is of the year 2016 and rate of interest
awarded by the Tribunal is at 7% p.a. which is on the higher
side. Having taken note of the interest payable by the
nationalized banks, same has to be reduced to 6% p.a. instead
of 7% p.a. Hence, I answer point No.3 as affirmative.
16. In view of the above discussions, I pass the
following:
ORDER
i) The appeals are allowed in part,
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MFA No. 104076 of 2018
C/W MFA No. 104077 of 2018
ii) The judgment and award dated 18.08.2018 passed
by the Senior Civil Judge and MACT-X, Hungund, in
M.V.C.Nos.281/2017 and 282/2017 stand modified,
iii) The claimants in M.V.C.No.281/2017 are entitled to
total compensation of Rs15,13,300/- as against the
sum of Rs.19,25,400/- awarded by the Tribunal.
iv) The claimants in M.V.C.No.282/2017 are entitled to
total compensation of Rs.21,04,148/- as against
the sum of Rs.20,78,800/- awarded by the
Tribunal.
v) The enhanced compensation shall carry interest at
the rate of 6% p.a. from the date of petition till
realization.
vi) The order of the Tribunal with regard to
apportionment and release of the amount is
undisturbed.
vii) The amount deposited by the Insurance Company is
ordered to be transferred to the Tribunal forthwith
and directed to pay the difference amount within
six weeks from today.
(Sd/-)
JUDGE
Jm/-
