The Divisional Manager New India ... vs Ambu @ Ambavva W/O Rajshekhar ...
2022 Latest Caselaw 5241 Kant

                              1




          IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

     DATED THIS THE 23RD DAY OF MARCH, 2022

                          BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI


               MFA NO.201076/2016 (MV)


Between:

The Divisional Manager,
New India Insurance Co., Ltd.,
Through its Divisional Officer,
Sangameshwar Colony, Kalaburagi.
                                             ... Appellant
(By Sri. S.S.Aspalli, Advocate)

And:

1.     Ambu @ Ambavva W/o Rajshekhar Desai,
       Age: 50 years, Occ: Household,

2.     Santosh S/o Rajashekhar Desai,
       Age: 27 years, Occ: Coolie,

       Both R/o Jewargi Dist. Kalaburagi
       Now at present Ganganagar
       Brahampur, Kalaburagi-585 101.

3.     Mallappa S/o Shivappa Kori,
       Age: 36 years, Occ: Driver of 407
       Tempo Regn. No.KA-28-A-7914,
       R/o Basava Nagar, Devarhippargi,
       Tq. Sindagi, Dist. Bijapur-586 101.
                              2




4.    Kallappa S/o Gurappa Devarmani,
      Age: 32 years, Occ: Owner of 407-Tempo
      Regn.No.KA-28/A-7914,
      R/o Devarhippargi, Tq. Sindagi,
      Dist. Bijapur-586 101.
                                          ... Respondents
(By Sri. Ganesh Naik, Advocate for R3 & R4;
Notice to R2 served)
      This Miscellaneous First Appeal is filed under Section
173(1) of M.V.Act, praying to call for the records in MVC
No.648/2014 on the file of the III-Addl. Sr.Civil Judge &
MACT Kalaburagi dated 08.03.2016. Set aside the
judgment and award dated 08.03.2016 passed by the III-
Addl. Sr.Civil Judge & MACT, Kalaburagi, by allowing the
above appeal.

      This appeal coming on for orders, this day, the Court
delivered the following:-


                       JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) has been filed by the Insurance Company

challenging the judgment and award dated

08.03.2016 passed in MVC No.648/2014 by the Motor

Accident Claims Tribunal.

For the sake of convenience, parties are referred

to as per their ranking before the Claims Tribunal.

Appellant is respondent No.3, respondent Nos.1 and 2

are the petitioners and respondent No.3 is respondent

No.1 before the tribunal.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 01.04.2014 the deceased

Shivakumar met with an accident and he was

proceeding on Shahapur-Jewargi road near Mudabal

(B) Cross, on his motorcycle bearing registration

No.KA-27/H-5985 and at that time, a tempo bearing

registration No.KA-28/A-7917 which was being driven

by its driver in a rash and negligent manner, dashed

against the motorcycle. As a result of the aforesaid

accident, the deceased sustained grievous injuries and

succumbed to the injuries.

3. The petitioners being the legal

representatives of deceased filed a petition under

Section 166 of the Act seeking compensation for the

death of deceased.

4. The respondent No.3 Insurance Company

appeared through counsel and filed written statement

denying the averments made in the petition and

denied that the deceased was working as a tailor and

earning Rs.20,000/- per month. The age, occupation

and income of the deceased are denied. It was further

pleaded that the quantum of compensation claimed by

the petitioners is exorbitant. Hence, he sought for

dismissal of the petition.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The petitioners, in order to

prove their case, examined petitioner No.1 examined

as PW-1 and got exhibited documents namely Ex.P1

to Ex.P8. The Insurance Company has not lead any

evidence but the insurance policy is marked as Ex.D1

with the consent. The Tribunal after considering the

material on record, by the impugned judgment, inter

alia, held that the petitioners have proved that

deceased Shivakumar met with an accident and died

due to rash and negligent driving of the offending

vehicle by its driver and further held that the

petitioner No.1 is entitled to a compensation of

Rs.9,83,000/- along with interest at the rate of 6%

p.a. from the date of petition till realization. Being

dissatisfied with the compensation awarded by the

Tribunal, the respondent No.3 filed the present

appeal.

6. Heard the learned counsel for respondent

No.3 and learned counsel for the petitioners.

7. Learned counsel for respondent No.3

submits that the compensation awarded by the

tribunal is on the higher side. Hence, on this ground

alone prays to allow the appeal.

8. Per contra, the learned counsel for the

petitioners submits that the impugned judgment and

award passed by the Tribunal is just and reasonable

and does not calls for interference. Hence, prays for

dismissal of the appeal.

9. Heard the learned counsel for the parties

and perused the records.

10. The only point that arise for consideration

is with regard to quantum of compensation.

11. It is not in dispute that deceased

Shivakumar met with an accident and died in the road

traffic accident occurred due to rash and negligent

driving of the offending vehicle by its driver. In order

to prove the rash and negligent driving of the driver of

the offending vehicle, the petitioners produced charge

sheet which is marked as Ex.P7. Ex.P7 discloses that

the accident was occurred due to rash and negligent

driving of the driver of the offending vehicle.

12. Insofar as quantum of compensation is

concerned, it is contended that deceased Shivakumar

was doing tailoring work and earning Rs.20,000/- per

month. In support of their contention, the petitioners

have not tendered any evidence in so far as income

proof. The tribunal has taken notional income of the

deceased at Rs.6,000/- per month and awarded

compensation of Rs.9,83,000/-. The deceased was

aged about 27 years and the multiplier applied to his

age group is "18". However, the deceased was a

bachelor and deducted 50% towards his personal

expenses and awarded compensation. Though the

accident is of the year 2014, as per the notional

income is to be taken as Rs.7,500/-, wherein the

tribunal has taken the notional income at Rs.6,000/-

per month. The petitioners have not challenged the

judgment and award passed by the tribunal. The

compensation awarded by the tribunal is just and

proper.

13. In view of the same, the judgment and

award passed by the tribunal is just and proper and

does not call for any interference.

Accordingly, the appeal is dismissed.

Sd/-

JUDGE

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