Karnataka High Court
Smt. Poonam W/O. Shrishail ... vs Sri. M.D.Farooque Matke And Ors on 25 March, 2022
Bench: Ashok S. Kinagi
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
MFA No.201157/2014 (MV)
C/w
MFA No.200310/2015 (MV)
In MFA No.201157/2014
Between:
1. Smt. Poonam W/o Shrishail Birajdar,
Age: 21 years, Occ: Coolie,
R/o. Shivaji Peth, Bijapur-586 101.
2. Smt. Gajara W/o Gurunath Birajdar,
Age: 46 years, Occ: Coolie,
R/o. Shivaji Peth, Bijapur-586 101.
... Appellants
(By Sri S.S.Mamadapur, Advocate)
And:
1. Sri. M.D.Farooque Matke,
Age: Major, Occ: Truck Owner,
R/o No.72, Dhanalaxmi Nagar,
Swagat Nagar,
Solapur-416 416 (Maharashtra)
2. The Manager,
United India Insurance Co. Ltd.,
Osmanabad,
Represented by The Manager,
2
United India Insurance Co. Ltd.,
Bijapur-586 101.
3. Mainoddin Maqbuil Hekhadakhan,
Age: Major, Occ: Truck Owner,
R/o Indira Nagar, Naladurg,
Tq. & Dist: Osmanabad-413602
(Maharashtra)
... Respondents
(By Sri Sudarshan M., Advocate for R2;
V/o dated 08.12.2014 notice to R1 & R3 are
dispensed with)
This Miscellaneous First Appeal is filed under Section
173(1) of the M.V. Act praying to enhance the
compensation amount payable to the appellants by
suitably modifying the judgment and award dated
23.06.2014 passed by the learned member, MACT-XII,
Bijapur, in MVC No.18/2013.
In MFA No.200310/2015
Between:
The Manager,
United India Insurance Co. Ltd.,
Osmanabad,
Policy No.162700/31/12/02/00004947,
From: 13-10-12 to 12-10-13,
Represented by Manager,
United India Insurance Co. Ltd.,
Bijapur-586 101.
... Appellant
(By Sri Sudarshan M., Advocate)
3
And:
1. Smt. Poonam W/o Shrishail Birajdar,
Age about 22 years, Occ: Coolie,
R/o. Shivaji Peth, Bijapur-586 101.
2. Smt. Gajara W/o Gurunath Birajdar,
Aged about 47 years, Occ: Coolie,
R/o. Shivaji Peth, Bijapur-586 101.
3. Sri. M.D.Farooque Matke,
Age: Major, Occ: Truck Owner
No.MH-04/AY-2160,
R/o No.72, Dhanalaxmi Nagar,
Swagat Nagar,
Solapur, Maharashtra-413 500.
4. Mainuddin Maqbuil Hekhadakhan,
Age: Major, Occ: Truck Owner,
No.MH-04/AY-2160,
R/o Indira Nagar, Naladurg,
Tq. & Dist: Osmanabad-413602
(Maharashtra)
... Respondents
(By Sri S.S.Mamadapur, Advocate for R1 & R2;
Notice to R3 & R4 are served)
This Miscellaneous First Appeal is filed under Section
173(1) of the M.V. Act praying to call for records in MVC
No.18/2013 on the file of the Motor Accident Claims
Tribunal No.XII, Bijapur. Set aside the judgment and
award dated 23.06.2014 passed in MVC No.18/2013 by the
Motor Accident Claims Tribunal No.XII, Bijapur.
4
These appeals coming on for Hearing, this day, the
Court delivered the following:-
JUDGMENT
These two appeals filed under Section 173(1) of
the Motor Vehicles Act (for short 'the Act') arise out of
the judgment and award dated 23.06.2014 passed by
the Member, Motor Accident Claims Tribunal No.XII,
Bijapur, (for short hereinafter referred to as 'the
Tribunal') in MVC No.18/2013.
2. Parties are referred to as per their ranking
before the Tribunal. Appellants are petitioners and
the respondents are respondents before the Tribunal.
3. Facts giving rise to filing of these appeal
are that on 30.10.2012 at about 11.30 p.m., the
deceased-Shrishail Birajadar was going to Jewali in
motorcycle at that time, the truck No.MH-04/AY-2160
being driven by its driver came in a high speed and in
a rash and negligent manner and dashed to the
motorcycle on which the deceased was proceeding.
As a result, the deceased sustained injuries and
succumbed to the injuries. The petitioners being the
legal representatives of the deceased-Shrishail filed
claim petition under Section 166 of the Act seeking
compensation on account of the death of Shrishail in
the road traffic accident.
4. Inspite of service of notice, respondent
No.3 remained absent before the Tribunal and he was
placed exparte. Respondent Nos.1 and 2 appeared
and filed separate written statement.
5. Respondent No.1 filed written statement
contending that the accident has occurred due to the
negligence of the deceased himself. It is contended
that the driver of truck was holding valid licence at the
time of accident and there is no negligence on the part
of the driver of the truck and prayed to dismiss the
claim petition.
6. Respondent No.2 filed written statement
denying the averments made in the claim petition and
also denied the manner of the accident. It is
contended that there was no negligence on the part of
the driver of the offending vehicle. Respondent No.2
denied the date, time and place of the accident and
also income of the deceased. On these grounds,
respondent No.2 prayed to dismiss the claim petition.
7. The Tribunal on the basis of the pleadings
of the parties framed the issues and recorded
evidence. In order to prove the case, petitioners
examined petitioner No.1 as PW.1 and got marked the
documents as Exs.P1 to P6. The respondents did not
examine any witnesses but got marked insurance
policy as Ex.R1.
8. The Tribunal after recording the evidence
and after considering the material on record allowed
the claim petition in part and awarded compensation
of Rs.7,60,000/- with interest at the rate of 6% per
annum from the date of claim petition till the date of
realization and further held that respondent No.2 is
liable to pay compensation and directed respondent
No.2 deposit the compensation amount with interest.
9. MFA No.201157/2014 is filed by the
petitioners seeking enhancement of compensation.
MFA No.200310/2015 is filed by the Insurance
company challenging the liability.
10. Heard the learned counsel for the
petitioners and the learned counsel for respondent
No.2/Insurance company.
11. The learned counsel for the petitioners
submits that the compensation awarded by the
Tribunal is on the lower side and he submits that the
Tribunal was justified in fastening the liability on the
Insurance company and prays to allow the appeal filed
by the petitioners and to dismiss the appeal filed by
the respondent No.2/Insurance company.
12. Per contra, learned counsel appearing for
respondent No.2/Insurance company submits that the
driver of the offending vehicle was not possessing
valid and effective driving licence as on the date of the
accident therefore, the Tribunal has committed an
error in fastening the liability on respondent No.2. He
further submits that the compensation awarded by the
Tribunal is just and proper and does not call for
interference. On these grounds, he prays to allow the
appeal filed by the Insurance company and to dismiss
the appeal filed by the petitioners.
13. I have perused the records and considered
the submissions made by the learned counsel for the
parties. The point that arises for consideration is with
regard to quantum of compensation and liability.
14. The occurrence of the accident,
involvement of the offending vehicle in the accident
and death of the deceased-Shrishail in the accident
are not in dispute. In order to prove that the
accident has occurred due to the rash and negligent
driving of the driver of the offending vehicle, the
petitioners have produced copy of the charge sheet
which is marked as Ex.P5. Ex.P5 discloses that the
accident has occurred due to rash and negligent
driving of the driver of the offending vehicle.
15. Insofar as liability is concerned, it is the
specific case of respondent No.2 that the driver of the
offending vehicle was not possessing valid and
effective driving licence as on the date of the accident.
In order to substantiate the said defence, respondent
No.2 has not entered into witness box and has not
produced any records to establish that the driver of
the offending vehicle was not possessing valid and
effective driving licence as on the date of the accident.
Further, initial burden is on respondent No.2 to prove
that the driver was not possessing valid and effective
driving licence. The said burden is not discharged by
respondent No.2 by leading cogent evidence.
Therefore, the Tribunal was justified in saddling the
liability jointly and severally on respondent Nos.1 to 3.
The finding recorded by the Tribunal, insofar as
liability is concerned, is just and proper.
16. Perusal of the impugned judgment would
indicate that the petitioners/appellants have
contended that the deceased was doing driving work
and was earning Rs.20,000/- per month. In order to
substantiate the same, the petitioners did not tender
any evidence before the Tribunal. In the absence of
proof of income, the notional income of the deceased
will have to be taken as per the chart provided by the
Karnataka State Legal Services Authority. In terms of
the chart, for the accident of the year 2012, the
notional income of the deceased will have to be taken
at Rs.6,500/- as against Rs.5,000/- per month taken
by the Tribunal. To the aforesaid amount, as the
deceased was aged 24 years, 40% of the said amount
has to be added on account of future prospects in
view of the law laid down by the Constitution Bench of
the Supreme Court in the case of National
Insurance Company Limited vs. Pranay Sethi and
Others reported in AIR 2017 SC 5157. Thus, the
monthly income comes to Rs.9,100/-. Out of which,
considering that there are two dependents, I deem it
appropriate to deduct 1/3rd of the said income towards
personal expenses of the deceased and therefore, the
monthly income of the deceased comes to Rs.6,067/-.
Taking into account the age of the deceased which
was 24 years at the time of accident, multiplier of 18
has to be adopted as per the judgment of the Hon'ble
Supreme Court in the case of Sarla Verma vs. Delhi
Transport Corporation reported in (2009) 6 SCC
121. Therefore, the petitioners are entitled to a sum
of Rs.13,10,472/- (6,067 x 12 x 18) on account of
loss of dependency as against Rs.7,20,000/- awarded
by the Tribunal.
17. Further, in view of the law laid down by the
Hon'ble Supreme Court in the case of Magma
General Insurance Company Limited vs. Nanu
Ram Alias Chuhru Ram & Others reported in
(2018) 18 SCC 130, each petitioner is entitled to a
sum of Rs.40,000/- towards loss of consortium. The
petitioners are two in number, hence the
compensation towards loss of consortium would be
Rs.80,000/- (40,000 x 2). In addition, the
petitioners/appellants are entitled a sum of
Rs.15,000/- towards funeral expenses and
Rs.15,000/- under the head of loss of estate.
18. Thus, in all, the petitioners are entitled to a
sum of Rs.14,20,472/- as against Rs.7,60,000/-
awarded by the Tribunal.
19. In view of the above discussion, I proceed
to pass the following:
ORDER
i. The appeal filed by the petitioners is
allowed in part. The appeal filed by
the Insurance company is dismissed.
ii. The impugned judgment and award
passed by the Tribunal is modified.
iii. The petitioners are entitled to an
enhanced compensation of
Rs.6,60,472/- along with interest at
the rate of 6% per annum from the
date of petition till the date of
realization.
iv. Respondent No.2/Insurance company
is directed to deposit the
compensation amount before the
Tribunal within a period of eight
weeks from date of the receipt of
certified copy of this judgment.
v. The amount in deposit be transmitted
to the Tribunal.
Sd/-
JUDGE
NB*
