Karnataka High Court
Revanasiddappa S/O Veeranna ... vs Dharmanna S/O Vithoba Nilure And ... on 22 June, 2022
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF JUNE 2022
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
MFA No.32617/2013 (MV)
BETWEEN:
1. REVANASIDDAPPA
S/O VEERANNA SUTAR,
AGE: 50 YEARS, OCC: NIL,
2. SHAKUNTALA
W/O REVANASIDDAPPA SUTAR,
BOTH ARE R/O SHAKTI NAGAR,
BIJAPUR-586101.
... APPELLANTS
(BY SRI. SANGANAGOUDA V.BIRADAR, ADVOCATE)
AND:
1. DHARMANNA S/O VITHOBA NILURE,
AGE: 45 YEARS, OCC: BUSINESS,
R/O. DHULKHED, TQ: INDI,
DIST: BIJAPUR-586101.
2. THE BRANCH MANAGER,
NATIONAL INSURANCE COMPANY LTD.,
BIJAPUR-586101.
POLICY NO.602601/31/6300000713,
VALID FROM 25.05.2007 TO 24.05.2008.
... RESPONDENTS
(BY SRI. S.S.ASPALLI, ADVOCATE FOR R2;
V/O DTD. 17.02.2014 NOTICE TO R1 IS DISPENSED WITH)
2
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO
ALLOW THIS APPEAL AND MODIFY THE JUDGMENT AND
AWARD DATED 04.08.2012 PASSED BY THE MACT & FAST
TRACK COURT-I/II, AT BIJAPUR, IN MVC NO.673/2008.
THIS APPEAL COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is filed under Section 173(1) of the Motor
Vehicles Act, 1988 ( 'MV Act' for short) by claimants seeking
enhancement of the compensation awarded by Motor
Accidents Claims Tribunal and Fast Track Court - I/II, Bijapura
('Tribunal' for short), in MVC No.673/2008 vide judgment
and award dated 04.08.2012.
2. For the sake of convenience, the parties herein
are referred as per the ranks occupied by them before the
Tribunal.
3. The brief factual matrix leading to the case are
that on 28.02.2008, while the deceased Anilkumar was
travelling in a jeep bearing Registration No. MH.13/N.8875, at
about 10.00 p.m., near Arajinal Cross on NH-13 road, the
driver of the tractor-trailer bearing Registration No.
KA.28.TA.785 drove in rash and negligent manner and
dashed against the jeep resulting in injuries to the inmates
of the jeep. It is the further case of the claimants that the
deceased Anilkumar sustained fatal injuries and he was
immediately shifted to Yashodara Hospital in Solapur, wherein
he succumbed while undergoing treatment. The petitioners
claiming to be the parents of the deceased filed a claim
petition in MVC No.673/2008 under Section 163(A) of the MV
Act.
4. Respondent No.2-Insurance Company has denied
the petition averments and contended that the tractor-trailer
were not insured and also denied the age, occupation and
income of he deceased. Further, it is contended that there is
contributory negligence on the part of the driver of the jeep
and asserted that the driver of offending vehicle was not
holding valid and effective driving licence as on the date of
accident in question and hence, disputed the liability.
5. After recording the evidence and after hearing
arguments, the Tribunal has partly allowed the claim petition
and awarded compensation Rs.2,25,000/- by fastening the
liability on Respondent No.1-Owner of the tractor-trailer.
Being aggrieved by this judgment and award, the claimants
have filed this appeal seeking enhancement and disputing the
liability being fastened only on Respondent No.1-Owner and
prayed for fastening liability on Respondent No.2-Insurer.
6. Heard the arguments advanced by the learned
counsel for appellant/claimants and the learned counsel for
Respondent No.2/Insurer. Perused the records.
7. Learned counsel for appellants would contend that
the Tribunal erred in taking the income of the deceased at
Rs.2,500/- p.m., which is lower side. He would also contend
that, deduction of 1/2 of the income on the ground that the
deceased was a bachelor, is against the statutory mandate
and the multiplier applied is also on lower side. Hence, he
would seek for enhancement of compensation. Further, he
would contend that, in view of the decision of the Hon'ble
Apex Court in Pappu and others Vs. Vinod Kumar Lamba
and another reported in 2018 ACJ 690, as the deceased
being a third party, the Tribunal ought to have fastened the
liability on the Insurance Company with a direction to pay and
recover,
8. Per contra, learned counsel for respondent No.2
would support the judgment and award passed by the
Tribunal.
9. Having heard the arguments and perusing the
records, it is important to note here that the petition itself is
filed under Section 163(A) of MV Act and as such the
negligence does not have any role for granting compensation
in the structural formula under the Statute. Further, the
Tribunal has considered the fact that, in spite of directions,
respondent No.1 has failed to produce the driving licence of
the driver of the tractor-trailer and thereby an adverse
inference was drawn regarding non-holding of Driving Licence.
Hence, the liability was fastened on Respondent No.1-Owner.
However, in view of the decision of the Hon'ble Apex Court
reported in 2018 ACJ 690 in the case of Pappu and others
V. Vinod Kumar Lamba and another, the Insurance
Company cannot absolve its liability on the ground that the
driver of the offending vehicle was not possessing the driving
licence. Admittedly, the deceased was third party and hence,
in view of the above cited decision, the Insurance Company is
liable to pay the compensation and is at liberty to recover it
from respondent No.1-owner. The Tribunal has erred in
absolving the liability of respondent No.2-Insurance Company
and fastening the liability only on respondent No.1-owner.
10. As regards the quantum, it is evident that the
Tribunal has taken the income of the deceased at Rs.2,500/-
per month. The claimants themselves have specifically
asserted that the deceased was earning Rs.3,000/- per month.
In the absence of any contrary evidence, the Tribunal was not
justified in taking the income on the lower side and that too,
when it is within the statutory limitations. Hence, the income
of the deceased is required to be taken at Rs.3,000/- per
month.
11. The Tribunal has applied the multiplier of 14,
which is on the lower side. As per Schedule-II to the M.V. Act,
multiplier '18' is applicable, since the deceased was aged
about 23 years. Further, as per statute, though the deceased
was a bachelor, since the claim petition is under a structural
formula, 1/3rd is required to be deducted towards personal
expenses of the deceased. Hence, the deceased would have
contributed Rs.12,000/- towards his family, if his annual
income is taken at Rs.36,000/- per annum
(Rs.36,000x1/3=Rs.12,000). Hence, the loss of dependency
would work out to Rs.4,32,000/- (Rs.24,000x18). As such, the
claimants are entitled for total compensation of Rs.4,32,000/-
under the head of loss of dependency.
12. The Tribunal has awarded Rs.5,000/- under the
head of loss of estate, Rs.5,000/- under the head of loss of
expectancy and Rs.5,000/- under the head of funeral
expenses and it is not challenged by the insurance company.
Hence, the claimants are entitled for these sums as awarded
by the Tribunal.
13. Under such circumstances, the claimants are
entitled for total compensation of Rs.4,47,000/- (Rs.4,32,000
+ Rs.5,000 + Rs.5,000/- + Rs.5,000) with interest at the rate
of 6% p.a. as against Rs.2,25,000/- awarded by the Tribunal.
14. Since respondent No.1 has failed to produce the
driving licence of the driver of the offending vehicle, adverse
inference is required to be drawn against him and hence,
respondent No.2-Insurance Company is liable to pay the
compensation with a liberty to recover the same from
respondent No.1-owner. As such, the appeal needs to be
allowed in part. Accordingly, I proceed to pass the following:
ORDER
i. The appeal is allowed in part.
ii. The claimants are held entitled for total
compensation of Rs.4,47,000/- as against
Rs.2,25,000/- awarded by the Tribunal.
iii. The enhanced compensation shall carry interest at
the rate of 6% p.a. from the date of petition till
realization.
iv. Respondent No.2-Insurance Company is directed
to deposit the entire compensation with interest
accrued thereon within six weeks from the date of
this judgment with a liberty to recover the same
from respondent No.1-owner.
v. The deposit and disbursement shall be as per the
award of the Tribunal.
Sd/-
JUDGE
KGR*/LG
