Karnataka High Court
Smt. Bharathi W/Olate ... vs Jamal Shareef And Ors on 29 March, 2022
Bench: Ashok S. Kinagi
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
MFA No.201338/2014 (MV)
Between:
1. Smt. Bharathi
W/o Late Ayyanagouda Police Patil,
Age: 35 years, Occ: House hold,
2. Kum. Suchitra
D/o Late Ayyanagouda Police Patil,
Age: 13 years, Occ: Student,
Both R/o Hindupur, tq: Makhal,
Dist: Maheboob Nagar,
Now R/o H.No.1-10-81,
Near City Talkies, Makthal Pet,
Raichur, appellant No.2 is minor
U/G mother Appellant No.1.
... Appellants
(By Sri Mallikarjun Sahukar, Advocate)
And:
1. Jamal Shareef S/o Latheef,
Age: Major, Occ: Driver of Tanker
Bearing No.AP-09/V-0019,
R/o H.No.12-10-68,
Seethafal Mandi, Secunderabad,
2
Hyderabad-400 001.
2. Srinivas Reddy K.,
Since dead by LRs;
2(a) K.Damayanthi
W/o Late Srinivas Reddy,
Age: 51 years, Occ: Business,
R/o Industrial Estate Park,
Hyderabad-400 001.
3. The Branch Manager,
Reliance General Insurance Co. Ltd.,
Kalburgi Complex,
Deshpande Nagar, Hubli-580 021.
... Respondents
(By Sri. Rahul R. Asture, Advocate for R3;
V/o dated 04.12.2017 notice to R1 & R2
dispensed with)
This Miscellaneous First Appeal is filed under Section
173(1) of the MV Act praying to allow the top noted appeal
and modify the judgment and award dated 06.02.2014
passed by Member MACT and II-ADJ, Raichur in MVC
No.703 of 2011, by holding that the accident occurred due
to sole negligence of the respondent No.1 and fastening
the entire liability on the 3rd respondent, and enhance the
compensation as sought for by the claimant.
This appeal coming on for Hearing, this day, the
Court delivered the following:-
3
JUDGMENT
This appeal is filed by the petitioners under Section
173(1) of the Motor Vehicles Act (for short 'the Act')
challenging the judgment and award dated 06.02.2014
passed by the Member, Motor Accident Claims Tribunal
and II-Additional District Judge, Raichur (for short
hereinafter referred to as 'the Tribunal') in MVC
No.703/2011.
2. Parties are referred to as per their ranking
before the Tribunal. Appellants are the petitioners and
the respondents are the respondents before the
Tribunal.
3. Facts giving rise to filing of this appeal are
that on 06.04.2011 at about 2.00 p.m., on Makthal-
Hindupur main road near electrical sub-station, husband
of petitioner No.1 and father of petitioner No.2 by name
Ayyangouda Police Patil was proceeding on his
motorcycle after completion of his work, at that time,
respondent No.1/driver of tanker lorry bearing No.AP-
09/V-0019 came from opposite side in a high speed and
in a rash and negligent manner and dashed to the
motorcycle of the deceased and caused the accident. As
a result, said Ayyangouda Police Patil sustained fatal
injuries and died on the spot. Petitioners being the legal
representatives of the deceased filed claim petition
under Section 166 of the Act seeking compensation on
account of death of Ayyangouda Police Patil in the road
traffic accident.
4. Respondent No.3 filed written statement
denying the averments made in the claim petition and
denied the age of the deceased and negligence on the
part of the driver of the offending vehicle. It is
contended that respondent No.2 has violated the terms
of the policy and hence, it is not liable to pay
compensation and on these grounds, prayed to dismiss
the claim petition.
5. 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 P15. Respondent No.3 examined its official as RW.1
and got marked the documents as Exs.R1 to R4.
6. The Tribunal after recording the evidence
and after considering the material on record allowed the
claim petition in part and held that the deceased has
contributed for the cause of the accident and saddled
liability of 50% on the deceased-Ayyangouda Police Patil
and 50% on respondent Nos.1 to 3 and awarded
compensation of Rs.5,01,500/- 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
Nos.1 to 3 are jointly and severally liable to pay
compensation of Rs.5,01,500/- and directed respondent
No.3 to pay compensation.
7. Being aggrieved by the judgment and award
passed by the Tribunal, the petitioners/appellants have
filed this appeal on the ground of liability and quantum
of compensation.
8. Heard the learned counsel for the petitioners
and the learned counsel for respondent No.3/Insurance
company.
9. The learned counsel for the petitioners
submits that the Tribunal has committed an error in
fastening the liability on the deceased as respondent
No.3 has not led any evidence in order to show that the
deceased has contributed to the cause of the accident.
He further submitted that the charge sheet is filed
against the driver of the offending vehicle, but not
against the deceased-Ayyangouda Police Patil. He
further submits that the compensation awarded by the
Tribunal is on the lower side and on these grounds, he
prays to allow the appeal.
10. Per contra, the learned counsel appearing for
respondent No.3/Insurance company supports the
impugned judgment and award passed by the Tribunal
and submits that the compensation awarded by the
Tribunal is just and proper and does not call for
interference and prays to dismiss the appeal.
11. 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 liability and quantum of compensation.
12. The occurrence of the accident, involvement
of the offending vehicle in the accident and death of the
deceased-Ayyangouda Police Patil, 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 charge sheet which is marked as
Ex.P7. From perusal of Ex.P7, it would disclose that the
charge sheet is filed against the driver of the offending
vehicle and it also discloses that the accident has
occurred due to rash and negligent driving of the driver
of the offending vehicle.
13. Insofar as liability is concerned, it is the case
of respondent No.3 that the deceased-Ayyangouda
Police Patil has contributed for the cause of the accident.
In order to substantiate its defence, respondent No.3
has not examined any eyewitness. Further, from
perusal of Ex.P7, it is clear that the accident occurred
due to rash and negligent driving of the driver of the
offending vehicle. The Tribunal merely relying on the
evidence of RW.1 who is not the eyewitness to the
accident has recorded finding that the deceased-
Ayyangouda Police Patil has contributed to the cause of
the accident and fastened liability of 50% on the
deceased and 50% on respondent Nos.1 to 3. The
Tribunal has committed an error in fastening the liability
on the deceased. Thus, finding recorded by the Tribunal
insofar as liability is concerned requires interference.
14. Perusal of the impugned judgment would
indicate that the petitioners have contended that the
deceased-Ayyanagouda Police Patil was aged about 38
years and was earning Rs.3,00,000/- per annum by
doing agriculture and contract work and was
contributing to his family. But, in order to substantiate
the said contention, 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 2011, the notional income of
the deceased will have to be taken at Rs.6,000/- per
month. The Tribunal has rightly taken the income of the
deceased at Rs.6,000/- per month. As per the
postmortem report, age of the deceased as on the date
of the accident was 35 years. To the aforesaid amount,
as the deceased was aged 35 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.8,400/-. 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.5,600/-. Taking
into account the age of the deceased which was 35
years at the time of accident, multiplier of 16 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.10,75,200/- (5,600 x 12 x 16) on account of loss of
dependency as against Rs.7,68,000/- awarded by the
Tribunal.
15. 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.
16. Thus, in all, the petitioners are entitled to a
sum of Rs.11,85,200/- as against Rs.5,01,500/-
awarded by the Tribunal.
17. In view of the above discussion, I proceed to
pass the following:
ORDER
i. The appeal is allowed in part.
ii. The impugned judgment and award
passed by the Tribunal is modified.
iii. The petitioners are entitled to an
enhanced compensation of
Rs.6,83,700/- along with interest at the
rate of 6% per annum from the date of
petition till the date of realization.
iv. Respondent Nos.1 to 3 are jointly and
severally liable to pay compensation.
Respondent No.3/Insurance Company
is directed to deposit the entire
compensation amount before the
Tribunal within a period of eight weeks
from date of the receipt of certified
copy of this judgment.
Sd/-
JUDGE
NB*
