S.Shainaj W/O Late Jeelan Basha vs M.Basavaraj S/O Alte Kenchappa
2022 Latest Caselaw 784 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

      DATED THIS THE 18 T H DAY OF JANUARY, 2022

                         BEFORE

     THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY

              M.F.A. No.102321/2019 (MV)

BET WEEN

1.    S.SHAINAJ,
      W/O LATE JEELAN BASHA,
      AGE: 26 YEARS,
      R/O G.T.COMPOU ND,
      HOSAPETE.

2.    ROOSHAN JAMEER,
      S/O LAT E JEELAN B ASHA,
      AGE: 5 YEARS,
      R/O G.T.COMPOU ND,
      HOSAPETE.

3.    MAHAMMAD GHOUSE,
      S/O LAT E JEELAN B ASHA,
      AGE: 7 YEARS,
      R/O G.T.COMPOU ND,
      HOSAPETE.
      (APPELLANT NOS.2 AND 3 ARE
      MINOR R/B Y N/G MOTHER APPELLANT NO.1)

4.    ALAM B ASHA S/O N.B ASHA SAB,
      AGE: 61 YEARS,
      R/O H.No.14820, 10 T H WARD,
      G.T.COMPOU ND, HOSAPET E.
                                           ...APPELLANTS

(BY SRI CHANDRASHEKHAR M.HOSAMANI, ADVOCATE)

AND

1.    M.BASAVARAJ,
      S/O LAT E KENCHAPPA,
                                 2




      AGE: 32 YEARS,
      OCC: DRIVER OF LORRY B EARING
      NO.KA-35/ 4722,
      R/O HAMPINA KAT TI,
      KARIGANUR-58322 3,
      HOSAPETE, DIST: B ALLARI.

2.    B .RAMALINGAPPA,
      S/O B AJJAPPA,
      AGE: 52 YEARS,
      OCC: OWNER OF THE LORRY
      B EARING REG.NO. KA-35/ 4722,
      R/O NEAR MASJ ID,
      KARIGANUR-58322 3,
      HOSAPETE, DIST: B ALLARI.

3.    THE DIV IS IONAL MANAGER,
      U NIT ED INDIA INSU RANCE COMPANY LIMIT ED,
      U MAMAHESHWARI B UILDING,
      STATION ROAD,
      HOSAPETE - 583201,
      DISTR ICT: BALLARI.
                                         ...RESPONDENTS

(BY SRI S.S.KOLIWAD, ADVOCAT E FOR R3;
 NOTICE TO R1 AND R2 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 08.04.2 019 PASS ED IN
MVC   No.888/2017    ON   THE       FILE   OF   THE   ADDIT IONA L
SENIOR   CIVIL   J UDGE   AND       J.M.F.C-CUM-M.A.C.T-VII    AT
HOSAPETE, PARTL Y ALLOWING THE CLAIM PET IT ION FOR
COMPENSATION        AND    SEEKING          ENHANCEMENT        OF
COMPENSAT ION.


      THIS APPEA L COMING ON FOR ADMISSION, TH IS DAY
THE COU RT DELIVERED THE FOLL OWING:
                              3




                          JUDGMENT

The claimants have p referred this appeal

challenging the judgment and award passed by the

Court of Addl.Senior Civil Judge and J.M.F.C. cum

M.A.C.T-VII at Hosapete (hereinafter referred to as

the 'Tribunal', for brevity) in MVC No.888/2017 dated

08.04.2019 on the question of liability as well as

quantum of compensation awarded.

2. Though this appeal is listed for admission,

with the consent of the learned counsels appearing

for the parties, the appeal is taken up for final

disposal. The parties to this appeal are referred to by

their rankings assigned to them before the Tribunal

for the purpose of convenience.

3. The undisputed facts of the case that would

be relevant for the purpose of disposal of this appeal

are:

The deceased Jeelan Basha was traveling in a

motorcycle bearing registration No.KA-35/EA-4330 on

24.02.2017 and at about 12.30 p.m. the offending

lorry bearing registration No.KA-35/4722 which was

driven in a rash and negligent manner dashed against

the motorcycle of the deceased and caused the

accident. The deceased Jeelan Basha sustained

grievous injuries in the said accident and later on

succumbed to the same. The deceased was said to be

a driver by avocation, the claimants being wife,

children and father of the deceased had filed a claim

petition under Section 166 of the Motor Vehicles Act,

1988 (for short, the 'Act') claiming compensation

from the respondents in respect of the death of

deceased Jeelan Basha in the road traffic accident

that had taken place on 24.02.2017. The said claim

petition was partly allowed and compensation of

`14,80,600/- awarded to the claimants with interest

at 9% per annum. The liability to pay the

compensation amount was saddled on the owner of

the offending lorry on the ground that the driver of

the said lorry was not holding effective and valid

driving licence to drive a Heavy Motor Vehicle

(transport) as on the date of accident. Being

aggrieved by the same, the claimants are before this

Court.

4. Learned counsel for the claimants submits

that the Tribunal had erred in saddling the liability to

pay the compensation on the owner of the vehicle. He

submits that driver of the offending lorry had a valid

licence as on the date of accident. He submits that

perusal of the said licence which is produced before

this Court would go to show that as on the date of

accident, the driver was possessing valid and

effective driving licence to drive Heavy Motor Vehicle

(transport). He further submits that the

compensation awarded by the Tribunal is on the

lower side. He submits that the notional income of

the deceased has been wrongly assessed by the

Tribunal and he also submits that the compensation

awarded under conventional heads is also on the

lower side.

5. Per contra, learned counsel appearing for

the insurer has argued in support of the impugned

judgment and award and submits that just and proper

compensation has been awarded by the Tribunal

which needs no interference. However after perusal

of the driving licence of the driver of the offending

lorry, learned counsel does not seriously dispute that

for the period from 16.01.2015 to 16.01.2018, the

driver of the offending lorry had a valid and effecting

driving licence to drive the Heavy Motor Vehicle

(transport).

6. I have carefully appreciated the arguments

addressed on both sides and also perused the

material available on record.

7. The accident in question is not disputed, so

also the fact that the offending lorry bearing

registration No.KA-35/4722 was involved in the said

accident which had resulted in the death of deceased

Jeelan Basha. It is also not in dispute that as on the

date of accident, the offending lorry was duly insured

by the 3rd respondent-insurer. The Tribunal had

absolved the liability of the insurer on the ground

that the driver of the offending lorry was not

possessing a valid and effecting driving licence to

drive Heavy Motor Vehicle (transport) as on the date

of the accident. It is under these circumstances the

owner of the offending lorry was saddled with the

liability to pay the compensation amount. The driving

licence of the 1 s t respondent who was the driver of

the offending lorry as on the date of accident is made

available to this Court. A perusal of the same would

make it very clear that the 1 s t respondent-driver was

holding a valid and effective driving licence for the

period between 16.01.2015 to 16.01.2018 to drive

Heavy Motor Vehicle (transport). The accident in

question had taken place on 24.02.2107. Therefore,

as on the said date the 1 s t respondent-driver had a

valid driving licence to drive the offending lorry. The

Tribunal therefore was not justified in saddling the

liability to pay the compensation amount on the

owner of the offending lorry when admittedly the said

lorry was duly insured with the 3rd respondent-

insurer. Under the circumstances, I am of the

considered view that the said finding of the Tribunal

cannot be sustained and therefore the liability to pay

compensation amount is required to be saddled on

the 3 r d respondent-insurer.

8. Insofar as compensation awarded by the

Tribunal is concerned, the deceased was aged 27

years as on the date of his death. The notional

income of the deceased was taken at `8,000/- per

month as against `10,250/- as provided under the

income chart maintained by the Karnataka Legal

Services Authority for the purpose of disposal of

motor accident cases in the Lok Adalath. Having

regard to the age of the deceased, 40% of his income

is required to be considered towards loss of his

future prospects and the proper multiplier applicable

would be '17'. 1/4 t h of his total income is required to

be deducted towards his personal expenses. In the

said event, the claimants would be entitled for a total

compensation of `21,95,550/- towards loss of

dependency.

9. Under the conventional heads, the

claimants are entitled for a sum of `40,000/- each

towards loss of consortium, filial love and affection.

In addition to the same, the claimants are together

entitled for a sum of `30,000/- towards funeral

expenses and loss of estate. Therefore under the

conventional heads, the claimants are totally entitled

for a sum of `1,90,000/- in addition to the

compensation amount of `21,95,550/-. In all, the

claimants are therefore entitled for a sum of

`23,85,550/-. The compensation amount awarded to

the claimants would carry interest at 6% per annum

from the date of petition till realization.

The insurer of the offending lorry bearing

registration No.KA-35/4722 who is held liable to pay

the compensation amount is directed to deposit the

entire compensation amount with interest before the

Tribunal within a period of eight weeks from the date

of receipt of certified copy of this order.

The order passed by the Tribunal insofar as it

relates to apportionment, disbursement and deposit

etc., shall remain unaltered.

The appeal is accordingly partly allowed.

Sd/-

JUDGE

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