Karnataka High Court
The Divisional Manager vs Smt.Shalan W/O Kallappa Kokitkar on 23 February, 2022
Bench: S.Vishwajith Shetty
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23 R D DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY
M.F.A. No.104579/2019
C/W M.F.A. No.103753/2019 (MV)
IN MFA No.104 579/2019
BET WEEN
1. SMT.SHALAN,
W/O KALLAPPA KOKITKAR,
AGE: 33 YEARS,
OCC: HOU SEHOLD WORK,
R/O YELIMU NNOLI-591309,
TQ: HUKKERI, DIS T: B ELAGAVI.
2. MISS SHRUT I,
D/ O KALLAPPA KOKIT KAR,
AGE: 18 YEARS, OCC: STUDENT .
3. SUJ AN KALLAPPA KOKITKAR,
AGE: 12 YEARS, OCC: STUDENT ,
APPELLANT NO.3 IS MINOR,
REP.B Y HIS NEX T FRIEND-NATU RAL
MOT HER APPELLAN T NO.1-SMT.SHALAN,
W/O KALLAPPA KOKITKAR.
...APPELLANTS
(BY SMT.SUNANDA P.PATIL, ADVOCAT E)
AND
1. SHRI MARUT I S/O SIDDAPPA HALATT I,
AGE: 40 YEARS, OCC: BU SINESS,
R/O A/P: SHIRA HAT TI B .K.-591305,
TQ: HUKKERI, DIS T: B ELAGAVI.
2
2. THE DIV IS IONAL MANAGER,
NAT IONAL INSU RANCE COMPANY LIMIT ED,
RAMDEV GALL I, B ELAGAV I-59 0 00 1.
...RESPONDENTS
(BY SRI G.N.RAICHU R, ADVOCATE FOR R2;
NOTICE TO R1 DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE J UDGMENT AND AWARD DATED 02.07.2 019 PASS ED IN
MVC No.923/ 2017 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND ADDIT IONAL MOTOR ACCIDENT CLAIMS
TRIB UNAL, HUKKERI, PARTLY ALLOWING THE CLAIM
PET IT ION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
IN MFA No.103 753/2019
BET WEEN
THE DIV IS IONAL MANAGER,
NATIONAL INSURANCE COMPANY LIMITED,
RAMDEV GALLI, B ELAGAVI-590 001,
REP.B Y ITS ADMINISTRAT IVE OFFICER
AND AUT HORIZ ED SIGNAT ORY.
...APPEL LANT
(BY SRI G.N.RAICHU R, ADVOCATE)
AND
1. SMT.SHALAN,
W/O KALLAPPA KOKITKAR,
AGE: 33 YEARS,
OCC: HOU SEHOLD WORK,
R/O YELIMU NNOLI-591309,
TQ: HUKKERI, DIS T: B ELAGAVI.
2. KUM. SHRUT I D/O KALLAPPA KOKITK AR,
AGE: 18 YEARS, OCC: STUDENT ,
R/O YELIMU NNOLI-591309,
TQ: HUKKERI, DIS T: B ELAGAVI.
3. KUM. SU JAN KALLAPPA KOK ITKAR,
AGE: 12 YEARS, OCC: STUDENT ,
R/O YELIMU NNOLI-591309,
TQ: HUKKERI, DIS T: B ELAGAVI.
3
RESPONDENT NO.3 MINOR,
R/B Y THEIR NEX T FRIEND NATU RAL
MOT HER RESP ODE NT NO.1.
4. SRI MARU TI SIDDAPPA HALATT I,
AGE: 40 YEARS, OCC: BU SINESS,
R/O A/P: SHIRA HAT TI B .K.-591305,
TQ: HUKKERI, DIS T: B ELAGAVI.
...RESPONDENTS
(BY SMT.SUNANDA P.PATIL, ADVOCAT E FOR C/R1-R3;
SRI K.P.SHIRA GAONKAR, ADVOCATE FOR R4)
THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE J UDGMENT AND AWARD DATED 02.07.2 019 PASS ED IN
MVC No.923/ 2017 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND ADDIT IONAL MOTOR ACCIDENT CLAIMS
TRIB UNAL, HUKKERI, AWARDING COMPENSATION OF
`14,39, 530/- WIT H INTEREST AT 6% P.A. FROM THE DATE
OF PET ITION TILL ITS REALIZATION.
THESE A PPEA LS COMING ON FOR ADMISS ION, T HIS
DAY THE COU RT DELIVERED THE FOLLOW ING:
JUDGMENT
The claimants and the insurer of the offending
motorcycle bearing registration No.KA-49/L-7256 have
preferred these two appeals as ag ainst the judgment
and award dated 02.07.2019 passed by the Court of
Senior Civil Judge and Addl.M.A.C.T., Hukkeri
(hereinafter referred to as the 'Tribunal', for brevity)
in MVC No.923/2017.
2. Though the appeals are listed for
admission, with the consent of the learned counsels
appearing for the parties, the same are taken up for
final disposal. The parties are referred to by their
rankings before the Tribunal for the sake of
convenience.
3. Brief facts of the case as revealed from the
records are:
On 07.04.2017 at about 21.00 hours, the
deceased Kallappa Dundappa Kokitkar was proceeding
in the motorcycle bearing registration No.KA-23/
W-4922 as a pillion rider from Hukkeri town towards
Yalimunnoli village and one Jinnappa Huvappa
Khanapur was the rider of the said motorcycle. When
the said motorcycle bearing registration No.KA-23/
W-4922 reached near Swamigol shopping complex on
Hukkeri-Sankeshwar road, the offending motorcycle
bearing registration No.KA-49/L-7256 which was driven
in a rash and neglig ent manner by its rid er came from
Sankeshwar sid e and d ashed ag ainst the motorcycle
bearing registration No.KA-23/W-4922 and caused the
accid ent. In the said accident, Kallappa sustained
grievous injuries and he was immed iately shifted to
Government Hospital, Hukkeri and thereafterwards to
Gadhinglaj High Tech ICU Hospital, wherein he
succumbed to the injuries sustained by him in the
accid ent. It is und er these circumstances, the
claimants who are the wife, children and the mother
had filed a claim petition under Section 166 of the
Motor Vehicles Act, 1988 (for short, the 'Act')
claiming compensation of `40,00,000/- from the
owner and insurer of the offend ing motorcycle bearing
registration No.KA-46/L-7256. During the pendency of
the p etition, the 4 t h claimant who was the mother of
the deceased had died . The claim petition was partly
allowed by the Tribunal and a compensation of
`14,39,530/- with interest at 6% per annum from the
date of petition till realization was awarded. Being
not satisfied with the quantum of compensation, the
claimants have preferred MFA No.104579/2019 while
the insurer of the offending motorcycle has preferred
MFA No.103753/2019 challenging the impugned
judgment and award on the ground of quantum as
well as on liability.
4. Learned counsel for the claimants submits
that the deceased was aged about 35 years as on the
date of accident and the notional income of the
deceased was considered on the lower side which has
resulted in awarding lower compensation. She
submits that even under the conventional heads, the
compensation awarded is on the lower side and
accordingly prays to enhance the compensation
amount.
5. Per contra, learned counsel appearing for
the insurer submits that the compensation amount
awarded is on the higher side and needs to be
reduced. He submits that the rider of the motorcycle
in which the deceased Kallappa was traveling did not
have valid and effective driving licence as on the
date of accident and therefore he was charge sheeted
for the offence punishable under Section 3 of the Act
and since the vehicle in which the deceased was
traveling did not have a valid insurance coverage,
Section 181, 146 and 197 of the Act were invoked as
against owner-cum-rider of the said motorcycle. He
therefore submits that the claimants are not entitled
for any enhancement of compensation amount and in
this regard, he has relied upon the judgment of the
division bench of this Court rendered in MFA
No.103367/2016 disposed off on 30.08.2019 in
the case of Smt.Susalawwa and others V/s
Rajendra and others. He submits that there is a
delay in lodging the complaint which has not been
properly appreciated by the Tribunal. He submits that
the delay was caused only for the purpose of falsely
implicating the vehicle which is insured by the
insurer herein so as to enable the claimants to make
a false claim. Therefore he submits that the Tribunal
had erred in holding the owner and insurer of the
offending vehicle jointly liable to pay the
compensation amount. Accordingly, he prays to allow
the appeal filed by the insurer and dismiss the appeal
filed by the claimants.
6. I have given my anxious consideration to
the rival arguments addressed on both sides and also
perused the material available on record.
7. The undisputed facts of the case are, on
07.04.2017, the deceased Kallappa was traveling in
the motorcycle bearing registration No.KA-23/W-4922
as a pillion rider and one Jinnappa Huvappa Khanapur
who was also the owner of the said vehicle was riding
the same. The offend ing motorcycle bearing
registration No.KA-49/L-7256 had d ashed ag ainst the
motorcycle bearing reg istration No.KA-23/W-4922 and
caused the accident. Charg e sheet has been filed as
against the rider of the motorcycle bearing registration
No.KA-49/L-7256 which was insured by the appellant-
insurer for the offences p unishable under Sections
304-A, 229 and 338 of I.P.C., whereas the charg e
sheet is filed against the rider of the motorcycle in
which the deceased Kallapp a was traveling only und er
the p rovisions of the Act for the reason that the rider
of the motorcycle in which the deceased Kallapp a was
traveling did not possess a valid driving licence and the
said vehicle was not covered und er any insurance
policy. Therefore, it is very clear that the charge sheet
filed by the police was only as ag ainst the rid er of the
offending motorcycle for rash and neglig ent driving and
for causing the d eath of the deceased Kallapp a.
8. Learned counsel for the insurer has raised a
contention that since the rid er of the motorcycle in
which the deceased Kallappa was traveling did not
possess a valid driving licence to drive the motorcycle,
the claimants herein are not entitled for any
enhancement of compensation and the very petition
und er Section 166 of the Act was not maintainab le. In
this regard , he has relied upon the judgment of division
bench of this Court in the case of Smt.Susalawwa and
others V/s Rajendra and others. The said jud gment
would not be applicab le to the facts of the p resent case
for the simple reason that in the said case, the
claimants were the leg al representatives of the
deceased who himself was a tortfeasor and who was
driving the vehicle without any driving licence at the
time of accid ent. In the case on hand , the claimants
are the leg al representatives of the deceased Kallapp a
who was a pillion rider and therefore the judgment
relied upon by the learned counsel for the insurer
cannot be mad e applicable to the facts of the present
case.
9. The material on record would go to show that
the charge sheet has been filed only against the rid er
of the offending vehicle for the offences punishable
und er Sections 304-A, 229 and 338 of I.P.C. Learned
counsel for the insurer of the offending vehicle has
placed reliance on Ex.R6 which is a certified copy of
the panchanama along with the sketch and has
contend ed that the rider of the motorcycle was also
guilty of contributory neg ligence. However the fact
remains that the insurer or the owner of the offending
motorcycle have not led-in any independent witness to
prove the contributory neglig ence of the rid er of the
motorcycle in which the deceased was traveling . The
rider of the offending motorcycle would have been the
best witness to speak about the nature of accid ent and
the contributory negligence, if any by the rider of the
vehicle in which the d eceased Kallapp a was traveling.
He has not been examined before the Trib unal and
therefore merely by placing reliance on Ex.R6, it
cannot be held that the rider of the motorcycle in which
the deceased Kallapp a was traveling was also guilty of
contributory negligence. Moreover since the deceased
Kallapp a was only a pillion rider, the question of
contributory negligence would not come in the way of
the claimants who are the leg al rep resentatives of the
deceased in maintaining a claim petition und er Section
166 of the Act. Therefore, I find no merit in the
contentions urg ed by the learned counsel for the
insurer.
10. Though the learned counsel for the insurer
has submitted that there was delay in lodging the
complaint and the said d elay was only for the p urpose
of false implication of the offending motorcycle, the
material on record would go to show that the accident
in question had taken place on 07.04.2017 at about
21.00 hours and the FIR was registered on 08.04.2017.
In the said accident that had taken place on
07.04.2017, Kallappa Dundappa Kokitkar, who was a
pillion rider, had died and the rider of the motorcycle
Jinnappa also had sustained grievous injuries. The
complaint has been lodged on the next day by the
nephew of Jinnappa who was injured in the accident
and in the said accident, the particulars of the
offending motorcycle including the registered number
and the name of the rider was mentioned. The FIR
has been registered at 9.00 a.m. on 08.04.2017 on
the basis of the complaint received from Mahaveer
Bharamappa Khanapure, the nephew of Jinnappa,
who was injured in the accident. Therefore, it cannot
be said that there was an inordinate delay in filing
the complaint, more so when the pillion rider of the
motorcycle had died and when the rider was injured
and admitted in the hospital. Under the
circumstances, I find no merit in this contention
urged by the learned counsel for the insurer.
11. The app eal filed by the claimants is seeking
enhancement of the compensation. The deceased was
aged about 35 years as on the date of accident. The
accid ent is of the year 2017, therefore the notional
income of the deceased was req uired to be taken into
consid eration at `10,250/- per month having reg ard to
the year of accident in view of the income chart
maintained by the Karnataka Legal Services Authority
for the purpose of disposal of motor accident cases in
the Lok Adalath and 40% of the said income is
required to be considered towards loss of future
prospects of the deceased and out of the same, 1/3 r d
is required to be deducted towards personal expenses
of the deceased. The proper multiplier applicable
would be '16' and in the said event, towards loss of
dependency, the claimants would be entitled for a
total compensation of `18,36,864/- which is rounded
off to `18,36,800/-. In addition to the same, the
claimants are also entitled for a compensation of
`40,000/- each towards loss of consortium and loss
of filial love and affection. The claimants are also
entitled for compensation of `30,000/- towards
funeral expenses and loss of estate. The claimants
are further entitled for a sum of `25,530/- towards
reimbursement of the medical expenses. Therefore in
all, the claimants are totally entitled for a
compensation of `20,12,330/- as against
`14,39,530/- awarded by the Tribunal.
12. The enhanced amount of compensation
shall carry interest at 6% per annum. Accordingly,
the following:
ORDER
The Miscellaneous First Appeal filed by
the claimants is partly allowed and the
appeal filed by the insurer is dismissed.
The claimants are held entitled for a
total compensation of `20,12,330/- as
against the compensation amount of
`14,39,530/- awarded by the Tribunal. The
enhanced amount of compensation shall
carry interest at 6% per annum from the
date of petition till realization.
The Insurer of the offending vehicle is
directed to deposit the balance amount of
compensation with interest before the
Tribunal within a period of six weeks from
the date of receipt of the certified copy of
this judgment.
The amount in deposit MFA
No.103753/2019 filed by the insurer is
directed to be transferred to the Tribunal
for the purpose of disbursement.
The order passed by the Tribunal
insofar as it relates to apportionment,
disbursement, deposit etc., remains
unaltered and shall be applicable even to
the enhanced amount of compensation.
In view of disposal of the appeals,
pending applications if any, will not survive
for consideration.
Sd/-
JUDGE
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