The Divisional Manager vs Shantavva W/O Basappa Donner
2022 Latest Caselaw 1928 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

      DATED THIS THE 08 T H DAY OF FEBRUARY 2022

                       BEFORE

     THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY

            M.F.A. No.102383/2017 (MV)

BET WEEN

THE DIV IS IONAL MANAGER,
NATIONAL INSURANCE COMPANY LIMITED,
DIV IS IONAL OFFICE,
KRISHNA AGENCIES BU ILDIN G,
P.B . ROAD, HAVERI- 581110
REPRES ENTED THROU GH ITS
ADMISTRATIVE OF FICER.                  .. APPELLANT

(BY SRI.N.R.KUPPELUR, ADVOCATE)

AND

1.    SHANTAVVA W/O B ASAPPA DONNER,
      @ DONNI, AGE: 57 YEARS,
      OCC: HOU SE HOLD WORK,
      R/O: SUDAMBI, TQ: BYADAGI,
      DIST: HAVER I-58112 0.

2.    SHIVASHANKAR GOU DA S/O PARVATGOU DA PATIL,
      AGE: MAJOR, OCC: BUSINESS,
      R/O SAGARAVALLI, TQ: HANAGAL,
      DIST: HAVER I-58110 4.      .. RESPONDENTS

(BY SRI.HARIS H S. MAIGUR, ADVOCAT E FOR R1;
BY SRI. T .R. PATIL, ADVOCATE FOR R2)

     THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE J UDGMENT AND AWARD DATED 23.03.2 017 PASS ED IN
MVC No.75/2015 ON THE FILE OF T HE ADDIT IONAL S ENIOR
CIVIL JU DGE AND MEMBER, ADDITIONAL MOTOR ACCIDENT
CLAIMS TR IB U NAL, HAVER I, AWARDING COMPENSAT ION OF
                                 2




`6,68,600/- WIT H INTEREST AT 7% P.A. FROM THE DAT E OF
PET IT ION T ILL ITS REALIZ ATION.

     THIS APPEA L COMING ON FOR HEARING, TH IS DAY
THE COU RT DELIVERED THE FOLL OWING:

                      J U D G M E N T

The insurer of the motor cycle, which was involved

in a road traffic accid ent that had taken place on

14.11.2012, has preferred this appeal challeng ing the

judgment and award dated 23 r d March 2017 passed

by the Court of Additional Senior Civil Judge and

Addl.M.A.C.T., Haveri (hereinafter referred to as the

'Tribunal', for brevity) in MVC No.75/2015, both on

the ground of liability as well as quantum of

compensation.

2. The parties to this appeal are referred to by

their rankings before the Tribunal for the sake of

convenience.

3. The undisputed facts of the case are, on

14.11.2012, when the deceased Bharamappa s/o

Basappa Donni was riding the motor cycle bearing

registration No.KA-27/S-5019 along with his friend as

a pillion rider, the motor cycle bearing registration

No.KA-51/E-9756 which was allegedly driven in a

rash and negligent manner dashed against the motor

cycle in which the deceased Bharamappa was

traveling and caused the accident. In the said

accident, the deceased Bharamappa had suffered

grievous injuries on his body and he had succumbed

to the same. The claimant being the mother of the

deceased had filed a claim petition under Section

163-A of the Motor Vehicles Act 1988 (for short, 'the

Act') claiming compensation from the owner and

insurer of the motor cycle in which the deceased was

riding.

4. The Tribunal partly allowed the claim petition

and awarded compensation of `6,68,600/- with

interest @ 7% per annum from the date of petition

till realization and had saddled the liability to pay the

compensation on the insurer of the motor cycle

bearing registration No.KA-51/E-9756. Being

aggrieved by the liability as well as quantum of

compensation, the insurer is before this court.

5. Learned counsel for the insurer submits that

the rider of the motor cycle, who had died in the

accident, himself was a tortfeasor and therefore, the

claim made as against the owner and insurer of the

vehicle in which he was riding was not maintainable.

He submits that the compensation awarded by the

Tribunal is on the higher side. He submits that the

Tribunal has not deducted any amount towards the

personal expenses of the deceased and the Tribunal

has awarded excess amount under the conventional

heads. Accordingly, he prays to allow the appeal.

6. Per contra, learned counsel appearing for the

claimants submits that having regard to the judgment

of the Hon'ble Supreme Court in the case of United

India Insurance Co.Ltd. -vs- Sunil Kumar and

Another 1 it is not open for the insurer to raise a

contention regarding the negligence of the deceased,

2018 ACJ 1

as the Tribunal is not required to give a finding to

the said effect in a petition filed under Section 163-A

of the Act. He, however, does not dispute the fact

that the Tribunal has not deducted any amount from

the income of the deceased towards his personal

expenses. But he submits that the income has been

considered on lower side and therefore, just and

reasonable compensation has been awarded by the

Tribunal, which requires no interference.

Accordingly, he prays to dismiss the appeal.

7. I have given my anxious consideration to the

arguments addressed on both sides and also perused

the material available on record.

8. The undisputed facts of the case are that, in

the road traffic accident that had taken place on

14.11.2012, the son of the claimant, deceased

Bharamappa, who was riding the motor cycle bearing

registration No.KA-27/S-5019, had sustained

grievous injuries and he had subsequently succumbed

to the said injuries. As rightly contended by the

learned counsel for the claimant, the claim petition

has been filed before the Tribunal under Section 163-

A of the Act. Having regard to the judgment of the

Hon'ble Supreme Court in Sunil Kumar's case, the

Tribunal cannot give any finding with regard to the

negligence of any party in the alleged accident.

Therefore, there is no merit in the contention of the

learned counsel for the appellant that the claim

petition filed by the mother of the deceased, who was

a tortfeasor, was not maintainable and accordingly

said contention is rejected.

9. Insofar as the quantum of compensation

awarded by the Tribunal is concerned, it is not in

dispute that the deceased was a bachelor aged about

32 years as on the date of the accident. The Tribunal

has rightly taken into consideration the income of the

deceased at `40,000/- per annum. But the Tribunal

has failed to deduct 1/3 r d of the said income towards

the personal expenses of the deceased. Having

regard to the age of the deceased, the proper

multiplier would be '17'. In the said event, the

claimant is entitled for a compensation of `4,53,339/-

towards loss of dependency.

10. Further, having regard to the fact that the

claim petition is one under Section 163-A of the Act,

under conventional heads, the claimants would be

entitled only for a sum of `4,500/-. Therefore, in all,

the claimant would be entitled for a compensation of

`4,57,839/- and the said amount of compensation

shall carry interest at 7% per annum from the date of

accident till realization.

11. The appellant/insurer is directed to deposit

the compensation amount with interest before the

Tribunal within a period of six weeks from the date of

receipt of certified copy of this order.

12. The award passed by the Tribunal insofar it

relates to apportionment, disbursement and deposit,

etc., stands undisturbed.

13. The amount in deposit before this court and

the trial court records shall be transmitted to the

Tribunal forthwith.

The Miscellaneous first appeal is partly allowed.

The judgment and award dated 23 r d March 2017

passed by the Court of Additional Senior Civil Judge

and Addl.M.A.C.T., Haveri in MVC No.75/2015, is

accordingly modified.

Sd/-

JUDGE

KNM/-