Karnataka High Court
Divisional Manager vs Sharada W/O Sambhaji Desai on 3 March, 2022
Bench: S.Sunil Dutt Yadav, K.S.Hemalekha
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 03RD DAY OF MARCH, 2022
PRESENT
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
AND
THE HON'BLE MRS.JUSTICE K.S. HEMALEKHA
M.F.A No.100307/2017 (MV)
C/W
M.F.A No.101489/2017(MV)
IN M.F.A No.100307/2017
BETWEEN:
DIVISIONAL MANAGER,
NEW INDIA ASSURANCE COMPANY LIMITED,
CLUB ROAD, BELAGAVI.
REP: CHEIF REGIONAL MANAGER,
NEW INDIA ASSURANCE COMPANY LIMITED,
T.P. HUB, SRINATH COMPLEX, II FLOOR,
NEW COTTON MARKET, HUBBALLI-580022.
....APPELLANT
(BY SRI.M.K.SOUDAGAR, ADVOCATE)
AND:
1. SMT. SHARADA W/O SAMBHAJI DESAI,
AGE:43 YEARS, OCC. NIL,
R/O: SHANTI NAGAR,
SYNDICATE BANK COLONY,
AT/POST: KANGRALI B.K. VILLAGE,
TAL AND DIST: BELAGAVI-590001.
2
2. MISS KALYANI D/O SAMBHAJI DESAI,
AGE: 20 YEARS, OCC. NIL,
R/O SHANTI NAGAR
SYNDICATE BANK COLONY
AT/POST: KANGRALI B.K. VILLAGE
TAL AND DIST. BELAGAVI-590001.
3. SHRI SIDDANGOUDA NAYAKAPPA PATIL,
AGE: MAJOR, OCC. NOT KNOWN,
R/O MANGALESHVAR GALLI,
AT/POST: MAVINKATTI,
TAL AND DIST: BELAGAVI-590001.
....RESPONDENTS
(BY SRI.VITTAL S. TELI, ADVOCATE FOR R1 AND R2;
R3 SERVED)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF
MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND
AWARD DATED 23.11.2016 PASSED IN MVC No.582/2016 ON
THE FILE OF THE XI-ADDITIONAL DISTRICT AND SESSIONS
JUDGE AND MEMBER, ADDITIONAL MOTOR ACCIDENT
CLAIMS TRIBUNAL, BELAGAVI AWARDING COMPENSATION
OF RS.10,85,800/- WITH INTEREST AT 9% P.A. FROM THE
DATE OF PETITION TILL ITS REALIZATION.
IN M.F.A No.101489/2017 (MV)
BETWEEN
1. SMT. SHARADAW/O SAMBHAJI DESAI,
AGE: 43 YEARS, OCC: NIL,
2. MISS KALYANI D/O SAMBHAJI DESAI,
AGE: 20 YEARS, OCC. NIL,
R/O SHANTI NAGAR
3
SYNDICATE BANK COLONY
AT/POST: KANGRALI B.K. VILLAGE
TAL AND DIST. BELAGAVI-590001.
....APPELLANT
(BY SRI.VITTAL S. TELI, ADVOCATE)
AND:
1. SIDDANGOUDA NAYAKAPPA PATIL,
AGE: MAJOR, OCC.BUSINESS,
R/O MANGALESHVAR GALLI,
AT/POST: MAVINKATTI,
TAL AND DIST: BELAGAVI-591103.
2. THE DIVISIONAL MANAGER,
THE NEW INDIA ASSURANCE COMPANY LIMITED,
CLUB ROAD, BELAGAVI-590001.
....RESPONDENTS
(BY SRI.M.K.SOUDAGAR, ADVOCATE FOR R2;
NOTICE TO R1 DISPENSED WITH)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF
MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND
AWARD DATED 23.11.2016 PASSED IN MVC No.582/2016 ON
THE FILE OF THE XI-ADDITIONAL DISTRICT AND SESSIONS
JUDGE AND MEMBER, ADDITIONAL MOTOR ACCIDENT
CLAIMS TRIBUNAL, BELAGAVI AWARDING COMPENSATION
OF RS.10,85,800/- WITH INTEREST AT 9% P.A. FROM THE
DATE OF PETITION TILL ITS REALIZATION.
THESE APPEALS COMING ON FOR HEARING THIS DAY,
K.S. HEMALEKHA J., DELIVERED THE FOLLOWING:
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JUDGMENT
Both these appeals are directed against the
judgment and award dated 23.11.2016 passed in MVC No.
582/2016 on the file of the learned XI-Additional District
and Sessions Judge & Member, Addl. MACT, Belagavi, (for
short 'Tribunal').
2. MFA No.100307/2017 is filed by the Insurance
Company questioning fastening of liability as well as
quantum. MFA No.101489/2017 is filed by the claimants
seeking enhancement of compensation.
3. The parties herein above are referred to as per
their rankings before the Tribunal for the sake of
convenience.
4. Brief facts are that, claim petition was filed
under Section 166 of the Motor Vehicles Act, 1988,
claiming compensation of Rs.40,00,000/- on account of
death of one Sri. Sambhaji Bapu Desai, who succumbed
to the injuries on fatal road traffic accident that occurred
on 17.10.2015, when the rider of the motorcycle bearing
registration No.KA-22/EM-7078 came in a rash and
negligent manner to endanger the human life and dashed
against bicycle of the deceased from backside, due to
which deceased suffered grievous injuries and died during
treatment. The claimants being the wife and daughter of
the deceased, it averred that they were solely dependent
on the income of the deceased and the deceased was hale
and healthy at the time of accident.
5. On issuance of notice by the Tribunal,
respondents appeared through their counsels and
respondent No.2-Insurance Company filed objections
denying entire claim petition averments and that the
accident occurred due to rash and negligent riding of the
motorcycle bearing registration No.KA-22/EM-7078. It is
further contended that the rider of the offending vehicle
had no valid and effective driving license as on the date of
accident.
6. The Tribunal on the basis of the pleadings
framed following issues:
i) Whether the petitioners prove
that on 17.10.2015 at 7.30 p.m.
near gas godowon on Belagavi-
Sambra road, at Ganesh Nagar,
Sambra, one Sambhaji Bapu
Desai died in the accident
occurred due to the rash or
negligent riding of the vehicle
bearing regn.No.KA-22/EM-7078
by its rider?
ii) Whether the petitioners were the
dependents of the deceased
Sambhaji Bapu Desai?
iii) Whether petitioners are entitled
for compensation? If so, to what
amount and from whom?
7. In order to substantiate their claim, wife of the
deceased examined herself as PW.1 and got marked 10
documents at Exs.P.1 to ExP.10. On the other hand,
respondent No.2-Insurance Company did not lead any
evidence, however, got marked the Insurance Policy as
Ex.R.1.
8. The Tribunal on appreciation of oral and
documentary evidence on record held that the accident
occurred due to rash and negligent riding of the motor
cycle bearing registration No.KA-22/EM-7078 and awarded
a total compensation of Rs.10,85,800/- with interest at the
rate of 9% per annum from the date of petition till
realization and fastened the liability on the insurance
company to pay the compensation.
9. Aggrieved by the fastening of liability and the
quantum of the compensation, the insurance company is in
appeal and the claimants are also in appeal aggrieved by
the quantum of compensation as being on the lower side.
10. Heard the learned counsel for the claimants as
well as learned counsel for the Insurance Company and
perused the material on record.
11. Sri. M.K. Soudagar, learned counsel for the
Insurance Company would contend that the accident
occurred due to own negligence of the deceased, being an
old person, while crossing road negligently and contended
that fastening of the liability by the Tribunal on the
Insurance Company is without considering the aspect of
negligence on the part of the deceased. Thus, he sought to
absolve the liability of the Insurance Company to pay the
compensation.
12. Insofar as quantum of compensation is
concerned, it is contended by the learned counsel for the
insurer that the Tribunal in the absence of any material
evidence assessed the notional income of the deceased at
Rs.9,000/- per month, which is on the higher side. He
further submits that as per the guidelines issued by the
Karnataka State Legal Services Authority, the income of
the deceased ought to have been taken at Rs.8,000/- per
month for the accidental claims of the year 2015. It is also
contended that the Tribunal committed an error in adding
15% of the assessed income of the deceased towards
future prospects instead of 10% as per the dictum of the
Hon'ble Apex Court in the case of National Insurance
Company Limited Vs. Pranay Sethi and others
reported in 2017 ACJ 2700. He further contended that
under the conventional heads, the Tribunal has awarded a
sum of Rs.1,75,000/-, but in view of the dictum of the
Hon'ble Apex court in the case of United India
Insurance Company Limited V/s Satinder Kaur and
others reported in AIR 2020 SC 3076 and Magma
General Insurance Company Ltd. Vs. Nanu Ram &
Others reported in 2018 ACJ 2782, the Tribunal ought to
have awarded a compensation of Rs.1,10,000/- under the
conventional heads. It is also contended that the interest
at the rate of 9% per annum awarded by the Tribunal on
the compensation amount is on the higher side and not as
per usual practice, which is followed by the Tribunal and
this Court.
13. Per contra, Sri. Vitthal S Teli, learned counsel
for the claimants would contend that the contention of the
insurance company that there was negligence on the part
of deceased due to which, he succumbed to the injuries is
not sustainable for the reason that the insurance company
has not led any evidence to prove the aspect of negligence
on part of the deceased and said contention is not
sustainable. Insofar as the quantum of compensation is
concerned, it is contended by the learned counsel that the
award of compensation is just fair and proper and does not
call for interference in the hands of this Court.
14. Having heard the learned counsel for the
parties and on perusal the material on record, the points
that would arise for consideration in these appeals are:
i) Whether judgment and award of
the tribunal insofar as fastening
the liability on the Insurance
Company warrants any
interference by this Court ?
ii) Whether the judgment and award
of the Tribunal warrants any
interference insofar as quantum of
compensation is concerned?
15. Point No.1:- It is the contention of the
Insurance Company that there was negligence on the part
of the deceased, who was aged about 55 years and that
the accident occurred due to his own negligence. Looking
into Ex.P1 to Ex.P.7, police records more particularly a
careful perusal of Ex.P.3-spot panchanama and Ex.P7-
charge sheet clearly depicts the fact that the rider of
motorcycle was charge sheeted for the offence punishable
under Sections 279 and 304A of IPC, which establishes the
fact that the accident occurred due to rash and negligent
riding of rider of the motorcycle in question and the same
cannot be attributed to be negligence on the part of the
deceased. Though the Insurance Company tried to put up
stand that there was negligence on the part of the
deceased, however, no rebuttal evidence is led by the
Insurance Company to prove the aspect of negligence on
the part of the deceased. Thus, considering Exs.P1 to
Ex.P7 corroborated with the evidence of PW.1, we are of
the considered view that the Tribunal was justified in
fastening the liability on the Insurance Company to pay
the compensation. Thus, we answer Point No.1 in the
affirmative holding that the insurance company is liable to
pay compensation amount.
16. Point No.2:- Insofar as quantum of
compensation is concerned, it is contended by the
insurance company that the award of compensation by the
Tribunal is not as per the dictum of the Hon'ble Apex Court
in the case of Pranay Sethi (supra) and Magma General
Insurance Company (supra) and thus contended that the
award of compensation by the Tribunal needs to be
reassessed. In the absence of cogent material evidence on
record to establish the income of the deceased, the
Tribunal has taken the income of the deceased at
Rs.9,000/- per month. Taking into consideration the
guidelines issued by the Karnataka State Legal Services
Authority for the accidental claims of the year 2015, the
notional income of the deceased has to be assessed at
Rs.8,000/- per month. As per the dictum of the Hon'ble
Apex Court in the case of Pranay Sethi (supra), the
claimants would be entitled for addition of 10% of the
notional income towards future prospects as against 15%
taken by the Tribunal. The age of the deceased was 55
years, multiplier of '11' and deduction of 1/3rd towards
personal expenses of the deceased are not in dispute in
these appeals. Thus, the claimants would be entitled for
compensation under the head of loss of dependency at
Rs.7,74,400/- (Rs.8,000 + 10% (Rs.800) x 12 x 11 x
2/3).
17. Further, claimant No.1-wife of the deceased
would be entitled to Rs.40,000/- towards spousal
consortium and claimant No.2-daughter of the deceased
would be entitled to Rs.40,000/- towards parental
consortium as per dictum of the Hon'ble Apex Court in the
case of Satinder Kaur (supra) and Magma General
Insurance Company Ltd. (supra). Besides, the
claimants would be entitled to Rs.15,000/- each towards
loss of estate and funeral expenses respectively.
18. Thus, the quantum of compensation to be
awarded to the claimants is reassessed under the following
heads:
Particulars Amount
Loss of dependency Rs.7,74,400/-
Spousal and parental Rs. 80,000/-
consortium (Rs.40,000x2)
Transportation of dead body Rs. 15,000/-
and funeral expenses
Loss of estate Rs. 15,000/-
Total Rs.8,84,400/-
19. Accordingly, we answer point No.2 in the
affirmative holding that the claimants would be entitled for
total compensation of Rs.8,84,400/- as against
Rs.10,85,800/- awarded by the Tribunal.
20. Insofar as award of rate of interest is
concerned, the Tribunal awarded at 9% per annum on the
compensation amount. Looking into the peculiar facts and
circumstances of the case and also the fact that the
amount of compensation awarded by the Tribunal is
reduced by this Court, we are of the considered view that
the award of interest at the rate of 9% per annum is just
and proper.
21. In the result, we pass the following:
ORDER
i) MFA No.100307/2017 filed by the insurance
company is allowed in part.
ii) MFA No.101489/2017 filed by the claimants
is dismissed.
iii) The impugned judgment and award of the
Tribunal is modified to the extent that the
claimants are entitled for total
compensation of Rs.8,84,400/- as against
Rs.10,85,800/- awarded by the Tribunal
with interest at the rate of 9% per annum
from the date of petition till realization.
iv) Amount in deposit, if any, be transmitted to
the Tribunal forthwith for disbursement.
v) The Insurance Company is directed to
deposit the compensation amount with
proportionate interest at the rate of 9% per
annum from the date of petition till
realization within eight weeks from the date
of release of this judgment.
vi) Apportionment, disbursement and deposit
of the compensation amount would be as
per order of the Tribunal.
vii) Draw modified award accordingly.
viii) No order as to costs.
ix) Pending applications, if any, do not survive
for consideration and accordingly, they are
disposed of.
SD
JUDGE
SD
JUDGE
AC/JTR
