Karnataka High Court

Arati vs Dayanand Gopal Dalavi on 27 January, 2022

Bench: S G Pandit, Anant Ramanath Hegde

         IN THE HIGH COURT OF KARNATAKA,
                  DHARWAD BENCH

       DATED THIS THE 27TH DAY OF JANUARY 2022

                        PRESENT

        THE HON'BLE MR. JUSTICE S.G. PANDIT

                          AND

 THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

               MFA No.100397/2016 (MV)

BETWEEN:

SMT. ARATI W/O SUBHASH SHIVAGAN,
AGE: 29 YEARS, OCC: HOUSEHOLD,
R/O: SHIVAJI NAGAR, BELAGAVI.
                                          ...APPELLANT
(BY SRI.B M PATIL, ADVOCATE)

AND

1.    SRI.DAYANAND GOPAL DALAVI
      AGE: 32 YEARS, OCC: BUSINES,
      R/O: KOLHI, POSAT: KAMAN,
      TQ: VASAI, DT: THANE,
      MAHARASHTRA-401208
      (OWNER OF GEEP BEARING
      REG.NO.MH-48/G-1287)

2.    IFFCO TOKIO GENERAL
      INSURANCE CO.LTD.,
      BRANCH OFFICE 2ND FLOOR,
      SHIKSHAK BHAVAN,
      OPP: SANMAN HOTEL, COLLEGE ROAD,
      BELAGAVI,
      (INSURANCE OF GEEP BEARING
      REG.NO.MH-48/G-1287
      POLICY NO.83079905
                              2



     VALIDITY FORM 01/03/2013 TO
     28/02/2014)

3.   SRI.SHRIPATI KRISHNA SHIVAGAN
     AGE: 61 YEARS, OCC: COOLIE,
     R/O: GANDHI NAGAR, BELAGAVI.

4.   SMT.LAXMI SHRIPATI SHIVAGAN
     AGE: 50 YEARS,
     OCC: HOUSEHOLD,
     R/O: GANDHI NAGAR, BELAGAVI.

                                      ...RESPONDENTS
(BY SRI.M.K.SOUDAGAR, ADVOCATE FOR R2,
 SMT.GIRIJA S HIREMATH, ADVOCATE FOR R4,
 NOTICE TO R1 IS DISPENSED WITH)

     THIS APPEAL IS FILED U/S.173(1) OF MOTOR VEHICLES
ACT, AGAINST THE JUDGMENT & AWARD DATED:02.11.2015,
PASSED IN MVC.NO.423/2014 ON THE FILE OF THE XI
ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER
ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI,
DISMISSING THE PETITION FILED U/SEC. 166 OF M.V. ACT.

     THIS APPEAL COMING ON FOR FURTHER HEARING, THIS
DAY, ANANT RAMANATH HEGDE J., DELIVERED THE
FOLLOWING:

                       JUDGMENT

Mr Subhash Shivagan died on account of a motor

vehicle accident which took place on 01.12.2013 involving

motorcycle bearing registration No.MH-4/DL-9977. His wife

is yet to receive compensation though the negligence on

the part of the rider of the bike as well as the coverage of

insurance is established before the Tribunal. The Tribunal

found it appropriate to dismiss the petition for want of

jurisdiction on the premise that the accident has taken

place in Maharashtra and the Claims Tribunal at Belagavi

does not have jurisdiction to decide the claim petition filed

under section 166 of the Motor Vehicles Act.

2. It is to be noticed that the issue relating to

jurisdiction was not framed and there was no plea relating

to territorial jurisdiction raised by the insurer. Aggrieved

by the dismissal of the petition, the wife of the deceased is

before this Court seeking compensation.

3. It is a well-settled principle of law that

whenever a matter before a forum is brought for

adjudication, the plea of territorial jurisdiction should be

taken at the first instance. The objection to the territorial

jurisdiction should not be allowed to be taken at the fag

end of the proceeding. And as long as the objection is not

relating to inherent lack of jurisdiction to try the matter,

the plea of jurisdiction cannot be allowed to be entertained

at the fag end of the trial unless it is established that lack

of jurisdiction has occasioned a failure of justice. The

Tribunals under the Motor Vehicles Act can also follow the

procedure contemplated under the Code of Civil Procedure

wherever it is permissible. Section 21(1) of the Code of

Civil Procedure also contemplates that objection relating to

the territorial jurisdiction has to be raised at the first

instance or at least at or before the settlement of issues

and the same shall not be allowed to be raised before

Appellate or Revisional Court. The objection relating to

territorial jurisdiction can be allowed to be raised in

Appellate or Revisional Court only under circumstances

where it is established that lack of territorial jurisdiction

has resulted in failure of justice. After participating in the

full-fledged trial it was not open to the insurer to contend

that the Tribunal has no territorial jurisdiction. The Hon'ble

Apex Court in the matter of Malati Sardar vs. National

Insurance Company Limited and Others [(2016) 3

SCC 43] has held that the Section 166 of the Motor

Vehicles Act, 1988 dealing with the territorial jurisdiction of

the Tribunal should be interpreted consistent with the

object of facilitating remedies for the victims of motor

vehicle accident especially in cases where the insurer is the

contesting party.

4. The compensation payable under the Motor

Vehicles Act, 1988 does not vary from State to State. The

yardstick applicable to assess the compensation is the

same throughout India. Under these circumstances, the

contention of the respondent insurer that the Claims

Tribunal in Karnataka does not have jurisdiction to

entertain the claim petition is not entertained by this Court

and the matter is taken up for consideration on merits to

decide the compensation payable to the wife of deceased

Subhash Shivagan.

5. The insurer has not disputed the issuance of

the insurance policy as well as coverage. Though the

Tribunal has not gone into the quantum of compensation

payable to the claimant, since the case is involving the

death of the husband of the claimant who died in the year

2013, this Court instead of remitting back the matter to

the Tribunal for assessing the compensation, has

proceeded to quantify the compensation. This exercise is

done keeping in mind the fact that the evidence necessary

to determine the compensation is already led before the

Tribunal.

6. Learned counsel for the insurer, Sri.

M.K.Soudagar would urge before the Court that the

deceased himself was responsible for the accident as such

the claimant is not entitled to compensation.

7. This Court has gone through the records

placed before the Tribunal as well as the impugned

judgement. The Tribunal while considering issue No.1 has

concluded that the accident in question has occurred on

account of rash and negligent driving of the driver of the

Mahindra pick up Jeep bearing registration No.MH-48/G-

1287. This finding is supported by the charge sheet as well

as oral evidence led in support of the allegation of

negligence on the part of the driver of the Mahindra pickup

Jeep referred above. To establish the contention relating to

negligence on the claimant, the insurer or the owner have

not led any evidence. Under these circumstances, the

contention of the insurer that the deceased himself was

negligent for the accident is not established.

8. The evidence on record would disclose that the

deceased was aged 35 at the time of the accident. It is

claimed by the wife of the deceased that the deceased was

earning Rs.20,000.00 per month. The materials placed on

the record do not indicate anything about the income of

the deceased. Under the circumstances, this Court is left

with no other option but to assess the notional income of

the deceased. The chart prepared by the Karnataka State

Legal Services Authority would be a guide to assess the

notional income of the deceased.

9. Given the fact that the claimant's husband died

in the year 2013, Rs.7,000.00 per month would be taken

as the notional income of the deceased to assess

compensation. Since the deceased was aged 35, 40% is to

be added towards future prospects and 16 is the multiplier

to be adopted. Since the deceased is survived by his wife,

father and mother, 1/3rd is to be deducted towards the

personal expenditure of the deceased. Thus, the

compensation payable under the head of loss of

dependency would be,

Rs.7,000 (income per month) + Rs.2,800.00 (40%

addition towards future prospects) = Rs.9,800 - 3,266

(1/3rd deduction towards personal expenditure) = 6,534 x

12 x 16 = Rs.12,54,528.00

10. The wife is also entitled to a spousal

consortium of Rs.40,000.00 as per the ratio laid down in

Magma General Insurance Co.Ltd Vs Nanu Ram and

Others (2018 ACJ 2782)., in addition to Rs.15,000.00

towards funeral expenses and Rs.15,000.00 towards loss

of estate. The parents of the deceased are entitled to filial

compensation of Rs.40,000.00 each as per the ratio laid

down in Magma (supra). Accordingly, the compensation

payable would be,

Heads Amount in (Rs.) Loss of dependency 12,54,528.00 Spousal consortium to wife 40,000.00 Loss of estate 15,000.00 Funeral expenses 15,000.00 Filial consortium to parents 80,000.00 (40,000 x 2) Total 14,04,528.00 Rounded off 14,04,530.00

11. Hence, we pass the following:

ORDER

The appeal is allowed in part.

The judgment and award passed by the Tribunal in

MVC No.423/2014 are dated on the file of the XI Addl.

District and Sessions Judge and Addl. MACT, Belagavi is

set aside.

The claimant is entitled to compensation of

Rs.14,04,530.00 with interest at the rate of 6% p.a. from

the date of petition till the date of actual payment.

The insurer is liable to pay the aforementioned

compensation along with interest.