Karnataka High Court
Smt. Gangawwa W/O Fakkirappa ... vs Shri. Manjunath Basavanneppa ... on 1 July, 2022
Bench: Pradeep Singh Bypsyj
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 1st DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
M.F.A.NO.101117/2018 (MV)
C/w. MFA. CROB.NO.100069/2018 (MV)
IN MFA.NO.101117/18
BETWEEN
THE BRANCH MANAGER,
THE ORIENTAL INSURANCE CO. LTD.,
THE MERCHANTS CO-OP BANK BUILDING,
S.R. CIRCLE, BAILHONGAL, DIST: BELAGAVI,
REPRESENTED BY DEPUTY MANAGER,
THE ORIENTAL INSURANCE CO. LTD.,
REGIONAL OFFICE, LAMINGATON ROAD,
HUBBALLI-580023.
....APPELLANT
(BY SRI S.V.YAJI, ADVOCATE)
AND :
1. SMT. GANGAVVA W/O FAKIRAPPA HAKKI,
AGE: 77 YEARS, OCC: HOUSEHOLD,
R/O: GUDIKOTABAGI, TQ: BAILHONGAL,
DIST: BELAGAVI-591306.
2. SMT.RUDRAWWA W/O NAGAPPA HAKKI,
AGE: 40 YEARS, OCC: HOUSEHOLD,
R/O: GUDIKOTABAGI, TQ: BAILHONGAL,
DIST: BELAGAVI-591306.
3. SHRI GANGAPPA S/O NAGAPPA HAKKI,
AGE: 21 YEARS, OCC: AGRICULTURE,
R/O: GUDIKOTABAGI, TQ: BAILHONGAL,
DIST: BELAGAVI-591306.
2
4. KUMARI AKSHATA D/O. NAGAPPA HAKKI,
AGE: 18 YEARS, OCC: STUDENT,
R/O: GUDIKOTABAGI, TQ: BAILHONGAL,
DIST: BELAGAVI-591306.
5. KUMAR SIDDAPPA S/O NAGAPPA HAKKI,
AGE: 16 YEARS, OCC: STUDENT,
R/O: GUDIKOTABAGI, TQ: BAILHONGAL,
DIST: BELAGAVI-591306.
MINOR, REPRESENTED BY
NATURAL MOTHER PETITIONERS NO.2.
6. KUMARI PAVITRA D/O NAGAPPA HAKKI,
AGE: 14 YEARS, OCC: STUDENT,
R/O: GUDIKOTABAGI, TQ: BAILHONGAL,
DIST: BELAGAVI-591306.
MINOR, REPRESENTED BY
NATURAL MOTHER PETITIONERS NO.2.
7. SHRI MANJUNATH BASAVANNEPPA HONGAL,
AGE: MAJOR, OCC: BUSINESS,
R/O: CHIKKABAGEWADI, TQ: BAILHONGAL,
DIST: BELAGAVI-591109.
...RESPONDENTS
(BY SRI S.P.HUDEDAGADDI, ADV. FOR RESPONDENT
NOS.1 TO 3)
(RESPONDENT NOS.5 AND 6-ARE MINOR REPRESENTED
BY RESPONDENT NO.2)
THIS M.F.A. IS FILED U/S.173(1) OF MOTOR
VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND
AWARD DATED 06.12.2017 PASSED IN
MVC.NO.1330/2016 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, BAILHONGAL, AWARDING COMPENSATION OF
RS.11,32,000/- WITH INTEREST AT 9% P.A. FROM THE
DATE OF PETITION TILL ITS REALISATION.
3
IN MFA.CROB.NO.100069/18
BETWEEN
1. SMT. GANGAVVA W/O FAKIRAPPA HAKKI,
AGE: 75 YEARS, OCC: HOUSEHOLD (OLD AGE),
R/O: GUDIKOTABAGI, TQ: BAILHONGAL,
2. SMT.RUDRAWWA W/O NAGAPPA HAKKI,
AGED ABOUT 38 YEARS,
OCC: HOUSEHOLD (OLD AGE),
R/O: GUDIKOTABAGI, TQ: BAILHONGAL.
3. SRI GANGAPPA S/O NAGAPPA HAKKI,
AGED ABOUT 21 YEARS, OCC: AGRICULTURE,
R/O: GUDIKOTABAGI, TQ: BAILHONGAL.
4. KUMARI AKSHATA D/O. NAGAPPA HAKKI,
AGE: 17 YEARS, OCC: STUDENT,
R/O: GUDIKOTABAGI, TQ: BAILHONGAL.
5. KUMAR SIDDAPPA S/O. NAGAPPA HAKKI,
AGE: 15 YEARS, OCC: STUDENT,
R/O: GUDIKOTABAGI, TQ: BAILHONGAL,
6. KUMARI PAVITRA D/O NAGAPPA HAKKI,
AGE: 13 YEARS, OCC: STUDENT,
R/O: GUDIKOTABAGI, TQ: BAILHONGAL.
...... CROSS-OBJECTORS
(CROSS OBJECTOR NOS.4 TO 6 ARE MINORS
REPRESENTED BY THEIR NATURAL MOTHER-CROSS
OBJECTOR No.2)
(BY SRI SURESH P.HUDEDAGADDI, ADVOCATE)
AND
1. SHRI MANJUNATH BASAVANNEPPA HONGAL,
AGE-MAJOR, OCC-BUSINESS,
R/O.CHIKKABAGEWADI, TAL-BAILHONGAL,
(OWNER OF 407 GOODS VEHICLE BEARING NO.
KA-01/A-3875).
4
2. THE BRANCH MANAGER,
THE ORIENTAL INSURANCE CO. LTD.,
THE MERCHANTS CO-OP BANK BUILDING,
S.R. CIRCLE, BAILHONGAL, DIST: BELAGAVI.
....RESPONDENT
(SERVICE OF NOTICE TO RESPONDENT NO.1-DISPENSED
WITH)
(BY SRI S.V.YAJI, ADVOCATE FOR RESPONDENT NO.2)
THIS M.F.A. CROSS OBJECTION IS FILED UNDER
ORDER 41 RULE 22 C.P.C., PRAYING TO MODIFY THE
JUDGMENT AND AWARD DATED 06.12.2017 PASSED IN
MVC.NO. 1330/2016 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, BAILHONGAL, BY AWARDING COMPENSATION
AS CLAIMED BY THE CLAIMANTS BEFORE THE MACT
BAILHONGAL BY ALLOWING THIS CROSS OBJECTION.
THESE APPEAL AND CROSS OBJECTION ARE
COMING ON FOR ADMISSION, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
These appeal and Cross Objection are preferred
challenging the judgment and award passed by the
Senior Civil Judge and Addl. M.A.C.T., Bailhongal
(hereinafter referred as 'Tribunal' for short) in MVC.
No.1330/2016 dated 06.12.2017.
2. Appeal is preferred by the Insurance
Company on the ground of exorbitant compensation and
saddling the liability on the Insurance Company and
interest being high at the rate of 9% per annum.
Whereas, cross objection is preferred by the claimants
on the ground that the compensation awarded by the
Tribunal is inadequate and meager. Consequently,
seeking enhancement of compensation.
3. Parties to the appeal and cross-objection shall
be referred to as per their status before the Tribunal.
4. Brief facts of the case are as under:
On 31.12.2015 Nagappa Fakirappa Hakki was
proceeding from Itagi cross road towards Gudikotabagi
on his motorcycle bearing No.KA-24/K-4971 in a slow
and cautious manner and observing rules and
regulations of the road traffic, when he came near the
land of one Kulkarni at Hunashikatti village at 4.00 p.m.
the driver of 407 goods vehicle bearing No.KA-01/A-
3875 came from the opposite direction in a rash and
negligent manner so as to endanger human life and
safety and dashed against the motorcycle of Nagappa
Fakkirappa Hakki, due to which, he sustained grievous
injuries to his head and other vital parts of the body,
thereafter due to cardio respiratory arrest he died on
the spot.
5. Prior to the accident, deceased-Nagappa Hakki
was hale healthy, doing agricultural work and earning
Rs.25,000/- per months. Due to the sudden and
untimely death of deceased-Nagappa in the road traffic
accident caused by the sole negligence of driver of the
offending vehicle, claimants who are dependants of
deceased have lost the sole bread winner of the family
along with loosing the financial and emotional support.
Hence, claimants preferred claim petition seeking
compensation against the respondents.
6. On service of notice, respondents appeared and
filed their statement of objections. Respondent No.1,
owner of the offending vehicle pleaded that he is the
owner of goods vehicle 407 and that the same was
insured with the 2nd respondent, he also pleaded that he
had a valid insurance coverage as on date of occurrence
of accident. It was further pleaded that the accident
occurred due to a dog suddenly coming on to the road
and the goods vehicle which was driven by the driver
suddenly lost control of the vehicle and dashed against
the motorcycle. Therefore, he pleaded that there was no
fault of the driver of the offending vehicle and sought
dismissal of the claim petition.
7. The 2nd respondent-Insurer inter alia denied the
contents of the claim petition. It is also pleaded that
the driver of offending vehicle did not have a valid and
effective driving licence. It further pleaded that the
petition was bad for non joinder and mis-joinder of
necessary parties as two vehicles were involved in the
accident. The insurer of the motorcycle is not made a
party to the proceedings, which is detrimental to the
case of claimants. It is also contended that there was
contributory negligence on the part of the rider of the
motorcycle, deceased herein. It also denied the age,
avocation and income of the deceased. However, the 2nd
respondent-Insurer admitted the issuance of insurance
coverage policy to the 1st respondent-offending vehicle.
On this basis, he sought for dismissal of the claim
petition.
8. On the basis of pleadings, the Tribunal has
framed relevant issues for consideration.
9. In order to establish the case and substantiate
the issues, claimant No.3 examined himself as P.W.1
and got marked Exs.P.1 to 13. Whereas, the 2nd
respondent did not adduce any evidence, however got
marked Ex.R-1 to 3 being the copy of Insurance Policy,
copy of DL and copy of insurance policy with consent.
10. On the basis of material evidence both oral
and documentary and having heard the learned counsel
for both parties, Tribunal awarded the compensation of
Rs.11,32,000/- with interest @ 9% p.a. and held
liability against the 2nd respondent-Insurer. However,
claim petition against respondent No.1 came to be
dismissed.
11. Learned counsel for the Insurer vehemently
contends that the judgment and award passed by the
Tribunal is liable to be set aside as it is contrary to the
material evidence placed on record including the oral
evidence and the documentary evidence in the form of
exhibit documents. He further contends that the
Tribunal has committed a gross error in awarding
exorbitant compensation under the conventional heads.
It is further contended that the Tribunal has failed to
appreciate the damages caused to the vehicles involved
in the accident. Whereby, it clearly indicates that two
wheeler was responsible for the occurrence of accident.
The learned counsel further contends that the Tribunal
has erred in assessing the income of the deceased at
Rs.7,000/- per month without there being any proof of
material evidence.
12. Learned counsel further contends that the
Tribunal has committed a gross error in not attributing
negligence on behalf of the deceased being the rider of
the motorcycle, who came from the opposite direction
and dashed against the 407 goods vehicle by way of
head on collision. Learned counsel further contends that
the Tribunal has committed a serious error in awarding
interest at the rate of 9% p.a. it is highly exorbitant and
contrary to the Motor Vehicles Act as well as the code of
Civil Procedure.
13. Learned counsel further contends that the
Tribunal has erred in awarding excess compensation on
other heads including the aspect of claimants being
dependent on the deceased. Therefore, the multiplier
and the loss of dependency is erroneous, which requires
to be set aside and modified. On these grounds, he
seeks to allow his appeal and set aside the Judgment
and Award passed by the Tribunal and modify the award
suitably.
14. It is the vehement contention of learned
counsel for appellant-claimants that the Judgment and
Award passed by the Tribunal is contrary to the material
evidence placed on record and the Tribunal has awarded
meager compensation. Learned counsel further
contends that the Tribunal miserably failed to assess
proper income of the deceased despite leading evidence
that he was earning Rs.25,000/- per month, but the
Tribunal has awarded only Rs.7,000/- which is
inadequate, meager and same requires to be enhanced.
It is further contention of learned counsel that Tribunal
has committed gross error in awarding meager
compensation towards consortium, love and affection
and same requires to be enhanced in favour of the
claimants. It is further contended by the learned
counsel that the Tribunal has committed a gross error in
not awarding future prospects on the income of the
deceased. The learned counsel further contends that the
Tribunal has rightly assessed the deduction of personal
and living expenses 1/4th in view of there being 6
dependants and the multiplier of 14 being adopted by
the Tribunal is correct and the same does not call for
any interference. On these grounds, he seeks to allow
the cross objection and to enhance the compensation
awarded by the Tribunal.
15. Having heard the learned counsel for the
Insurer and learned counsel for the claimants, the
points that would arise for consideration before this
Court are:
i) Whether the Judgment and Award
passed by the Tribunal is erroneous
and calls for interference?
ii) Whether the claimants are entitled for
enhancement of compensation?
iii) Whether the interest awarded by the
Tribunal requires to be reduced from
9% per annum to 6% per annum?
iv) What order?
16. It is not in dispute that the accident occurred
on 31.12.2015 and on the basis of material evidence
placed before the Court and Ex.P.1 to 7, it is apparent
without any ambiguity that the criminal case has been
registered against the driver of the offending vehicle
and the charge sheet has also been filed against him for
the offences punishable stated therein. There is no
contrary material placed either before the Tribunal or
this Court to disprove Ex.P.1 to 7 or the evidentiary
value of Ex.P.1 to 7 being doubtful. Hence, the same
will have to be accepted as per the Indian Evidence Act,
1872 and accordingly, it is accepted. This Court would
not want to delve into the occurrence of accident,
involvement of offending vehicle 407 goods vehicle and
the motorcycle ridden by the deceased and filing of
criminal case and the charge sheet against the driver of
the offending 407 goods vehicle and the death having
resulted due to the injuries sustained by the deceased.
17. Now coming to the aspect of age, avocation
and income of the deceased. It is seen that admittedly,
the deceased was aged 45 years as on the date of
occurrence of accident. Though, the claimants have
stated that the deceased was earning Rs.25,000/- per
month from agriculture. Nothing material has been
placed before the Court to prove the same, in the
absence of any such material, the Tribunal has assessed
the income at Rs.7,000/- per month.
18. I am in agreement with the learned counsel
appearing on behalf of claimants that the income ought
to have been taken at Rs.8,000/- per month, which has
been grossly erred by the Tribunal. In the absence of
any proof of income, the Tribunal and this Court will
have to do guess work to assess the income on the
basis of avocation of the deceased. In order to arrive at
standard method of assessment the Karnataka Legal
Services Authority has prepared notional income chart.
For the accident year 2015 the notional income chart
has prescribed the income at Rs.8,000/- per month, the
same is taken as monthly income as against Rs.7,000/-
per month assessed by the Tribunal.
19. In view of the fact that the deceased was
aged 45 years, 25% of the income assessed will have to
be added (Rs.8,000/- + 25 % (Rs.2,000/-) =
Rs.10,000/-) towards future prospects as per the
Judgment of the Hon'ble Apex Court in the case of
National Insurance Company Limited vs. Pranay
Sethi and others, reported in (2017) 16 Supreme
Court Cases 680. It is also admitted that the
deceased left behind six dependants. Accordingly,
1/4th of the income assessed will have to be deducted
(Rs.10,000/- - 1/4th = Rs.7,500/-) towards personal
and living expenses of the deceased. Accordingly, it
comes to (Rs.7,500/- X 12 X 14 =) Rs.12,60,000/-
towards loss of dependency as against Rs.8,82,000/.
20. The Tribunal has awarded a sum of
Rs.2,50,000/- under the conventional heads.
21. I am in agreement with the learned counsel
appearing for Insurance Company that this is on the
higher side as the consortium has to be awarded in
accordance to the Judgment of the Hon'ble Apex Court
in the case of Pranay Sethi (supra) Rs.40,000/- per
head will have to be awarded towards love and
affection. Therefore, Rs.40,000/- X 6 dependants,
would be at Rs.2,40,000/-. Towards loss of
transportation of dead body and funeral expenses,
Rs.15,000/- requires to be awarded and another
Rs.15,000/- is to be awarded towards loss of estate.
Therefore, Rs.2,70,000/- requires to be awarded
under the conventional heads as against Rs.2,50,000/-
22. I am also in agreement with the learned
counsel for the Insurance Company that the Tribunal
has awarded exorbitant interest at the rate of 9% per
annum, which is not contemplated in the Motor
Vehicles Act or the Rules and when there is no interest
contemplated in the Act or the Rules, this Court will
have to rely on Section 34 of the Code of Civil
Procedure, where, 6% per annum would be the
reasonable rate of interest to be awarded.
Accordingly, the interest at the rate of 9% per annum
deserves to be reduced to 6% per annum.
Accordingly, it is reduced to 6% per annum.
23. In view of the above discussion, the
claimants would be entitled to total compensation of
Rs.15,30,000/- as per the table below.
Head As awarded by As awarded by
the Tribunal this Court
(Rs.) (Rs.)
Towards loss of 8,82,000 12,60,000
dependency
Towards loss of consortium 1,00,000
to petitioner No.2. 2,40,000
Towards loss of love and 1,25,000
affection to claimant
Nos.1, 3, 4, 5 and 6.
(Rs.25,000/- each)
Towards transportation of Rs.25,000 15,000
dead body and funeral
expenses.
Towards loss of estate. - 15,000
TOTAL 11,32,000 15,30,000
24. For the foregoing reasons, I pass the
following:
ORDER
i) Both appeal and cross objection are allowed
in part.
ii) The Judgment and Award passed by Senior
Civil Judge and Additional M.A.C.T.,
Bailhongal passed in MVC.No.1330/2016
dated 06.12.2017, is modified;
iii) The claimants are entitled for total
compensation of Rs.15,30,000/- as against
Rs.11,32,000/-.
iv) Interest rate is reduced from 9% per annum
to 6% per annum from the date of filing of
the petition.
v) All other terms and conditions stipulated by
the Tribunal shall stand intact and same is
not interfered.
vi) Amount deposited in MFA.No.101117/2018
shall be transmitted to the concerned
Tribunal forthwith.
sd
JUDGE
ckk
