Karnataka High Court
Damu S/O Maruti Mane vs Manjula W/O Govind Chavan on 6 September, 2022
Bench: H.P.Sandesh
-1-
MFA No. 102300 of 2016
C/W MFA No. 101087 of 2016,
MFA No. 101088 of 2016,
MFA No. 102299 of 2016
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 6TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 102300 OF 2016 (MV-)
C/W
MISCELLANEOUS FIRST APPEAL NO. 101087 OF 2016
MISCELLANEOUS FIRST APPEAL NO. 101088 OF 2016
MISCELLANEOUS FIRST APPEAL NO. 102299 OF 2016
IN M.F.A.No.102300/2016
BETWEEN:
1. SMT.MANJULA
W/O GOVIND CHAVAN,
AGED ABOUT 38 YEARS,
OCC: HOUSEHOLD WORK,
2. KUMARI KAVITA
D/O GOVIND CHAVAN,
AGED ABOUT 22 YEARS,
OCC: STUDENT,
3. KUMARI KAJAL
D/O GOVIND CHAVAN,
AGED ABOUT 20 YEARS,
OCC: STUDENT,
4. KUMAR RAHUL
Digitally signed
by J MAMATHA
S/O GOVIND CHAVAN,
J Location: AGED ABOUT 18 YEARS,
Dharwad
MAMATHA Date: OCC: STUDENT,
2022.09.09
11:13:00 +0530
5. KUMAR KIRAN,
S/O GOVIND CHAVAN,
-2-
MFA No. 102300 of 2016
C/W MFA No. 101087 of 2016,
MFA No. 101088 of 2016,
MFA No. 102299 of 2016
AGED ABOUT 17 YEARS,
OCC: SINCE MINOR,
6. KUMARI RUAPLI
D/O GOVIND CHAVAN,
AGED ABOUT 16 YEARS,
OCC: SINCE MINOR,
7. KUMARI DEEPALI
D/O GOVIND CHAVAN,
AGED ABOUT 15 YEARS,
OCC: SINCE MINOR,
(APPELLANTS 5 TO 7 ARE REPRESENTED BY
M/G NATURAL MOTHER APPELLANT NO.1)
8. SMT.JANABAI
W/O AMBADAS CHAVAN,
AGED ABOUT 58 YEARS,
OCC: COOLIE (NOW NIL),
ALL ARE R/O NAGANUR K.D.,
TALUK HUKKERI,
DISTRICT: BELAGAVI.
...APPELLANTS
(BY SRI. UMESH C AINAPUR, ADVOCATE)
AND:
1. SHRI.DAMU S/O MARUTI MANE,
AGE: MAJOR,
OCC: TRANSPORT BUSINESS,
R/O: A/P HALDAHIWADI,
TALUK SANGOLA,
DISTRICT: SOLAPUR,
STATE MAHARASHTRA.
2. BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
CITY PRIDE OFFICER NO-4-8,
2ND FLOOR, 162, RAILWAY LINES,
NEAR EMPLOYMENT CHOWK,
SOLAPUR-01.
-3-
MFA No. 102300 of 2016
C/W MFA No. 101087 of 2016,
MFA No. 101088 of 2016,
MFA No. 102299 of 2016
THROUGH ITS DIVISIONAL OFFICER,
1ST FLOOR, MADIWAL ARCADE,
CLUB ROAD, BELAGAVI,
...RESPONDENTS
(BY SRI.M.K.SOUDAGAR, ADVOCATE FOR R2,
R1 SERVED)
THIS MFA FILED U/S.173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED 23.01.2016 PASSED IN MVC
NO.963/2013 ON THE FILE OF THE X-ADDITIONAL DISTRICT
AND SESSIONS JUDGE AND MEMBER, ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
IN MFA No.101087/2016
BETWEEN
1. DAMU S/O MARUTI MANE
AGE:MAJOR, OCC. TRANSPORT BUSINESS
R/O AT/POST HALDAHIWADI
TQ. SANGOLA, DIST. SOLAPUR
STATE. MAHARASHTRA. ... APPELLANT
(BY SHRI RAMACHANDRA MALI, ADV.)
AND
1. MANJULA W/O GOVIND CHAVAN
AGED ABOUT 38 YEARS
OCC:HOUSEHOLD
2. KUMARI. KAVITA D/O GOVIND CHAVAN
AGED ABOUT 22 YEARS
OCC. STUDENT
3. KUMARI. KAJAL D/O GOVIND CHAVAN
-4-
MFA No. 102300 of 2016
C/W MFA No. 101087 of 2016,
MFA No. 101088 of 2016,
MFA No. 102299 of 2016
AGED ABOUT 20 YEARS
OCC. STUDENT
4. KUMAR. RAHUL S/O GOVIND CHAVAN
AGED ABOUT 18 YEARS
OCC. STUDENT
5. KUMARI. KIRAN D/O GOVIND CHAVAN
AGED ABOUT 17 YEARS
OCC. STUDENT
6. KUMARI. RUPALI D/O GOVIND CHAVAN
AGED ABOUT 16 YEARS
OCC. STUDENT
7. KUMARI. DEEPALI D/O GOVIND CHAVAN
AGED ABOUT 14 YEARS
OCC. STUDENT
RESPONDENTS NO.5 TO 7 SINCE MINORS
REP BY NG MOTHER R-1.
8. SMT. JANABAI W/O AMBADAS CHAVAN
AGED ABOUT 58 YEARS
OCC. COOLIE (NOW NIL)
ALL ARE R/O NAGANUR K.D.,
TAL. HUKKERI, DIST. BELAGAVI
9. BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD.,
CITY PRIDE OFFICE, NO.4-8
2ND FLOOR, 162, RAILWAY LINES
NEAR EMPLOYMENT CHOWK
SOLAPUR-01
THROUGH ITS DIVISIONAL OFFICE
1ST FLOOR, MADIWAL ARCADE
CLUB ROAD, BELAGAVI. ... RESPONDENTS
(BY SHRI M.K.SOUDAGAR, ADV. FOR R9,
-5-
MFA No. 102300 of 2016
C/W MFA No. 101087 of 2016,
MFA No. 101088 of 2016,
MFA No. 102299 of 2016
R1 TO R4, R8 ARE SERVED,
R5 TO R7 ARE MINORS REP BY R1)
THIS MFA IS FILED U/S.173(1) OF MV ACT, 1988,
AGAINST THE JUDGMENT AND AWARD DATED 23.01.20156
PASSED IN MVC NO.963/2013 ON THE FILE OF THE X-
ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER,
ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,
BELAGAVI, AWARDING COMPENSATION OF Rs.12,39,000/-
WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION
TILL ITS DEPOSIT.
IN MFA No.101088/2016
BETWEEN
1. DAMU S/O MARUTI MANE
AGE: MAJOR, OCC: TRANSPORT BUSINESS,
R/O: A/P. HALDAHIWADI,
TQ: SANGOLA, DIST: SOLAOPUR,
STATE: MAHARASHTRA.
..APPELLANT
(BY SHRI RAMACHANDRA MALI, ADV. )
AND
1. JANABAI W/O AMBADAS CHAVAN
AGED ABOUT 58 YEARS,
OCC: COOLIE (NOW NIL),
R/O: NAGANUR K.D. TQ: HUKKERI,
DIST: BELAGAVI.
2. BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD.,
CITY PRIDE OFFICE NO.4-8,
2ND FLOOR, 162 RAILWAY LINES,
NEAR EMPLOYMENT CHOWK,
SOLAPUR-01,
-6-
MFA No. 102300 of 2016
C/W MFA No. 101087 of 2016,
MFA No. 101088 of 2016,
MFA No. 102299 of 2016
THROUGH ITS DIVISIONAL OFFICE,
IST FLOOR, MADIWAL ARCADE,
CLUB ROAD, BELAGAVI.
...RESPONDENTS
(BY SHRI M.K.SOUDAGAR, ADV. FOR R2,
R1 SERVED)
THIS APPEAL IS FILED UNDER SECTION 173 (1) OF THE
MV ACT, 1988, AGAINST THE JUDGMENT AND AWARD
DATED:23.01.2016 IN MVC NO.962/2013, ON THE FILE OF THE
X-ADDITIONAL DISTRICT AND SESSIONS JUDGE AND
MEMBER, ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,
BELAGAVI, AWARDING COMPENSATION OF Rs.31,615/- WITH
INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL ITS
DEPOSIT.
IN MFA No.102299/2016
BETWEEN
1 . SMT.JANABAI
W/O AMBADAS CHAVAN,
AGED ABOUT 58 YEARS,
OCC: COOLIE (NOW NIL)
R/O: NAGANUR K.D.,
TALUK KHUKKERI,
DISTRICT: BELAGAVI.
..APPELLANT
(BY SHRI UMESH C AINAPUR, ADV.)
AND
1 . SHRI.DAMU S/O MARUTI MANE,
AGE: MAJOR,
OCC: TRANSPORT BUSINESS,
R/O: A/P HALDAHIWADI,
TALUK SANGOLA,
DISTRICT: SOLAPUR,
-7-
MFA No. 102300 of 2016
C/W MFA No. 101087 of 2016,
MFA No. 101088 of 2016,
MFA No. 102299 of 2016
STATE MAHARASHTRA.
2 . BAJAJ ALLIANZ GENERAL
INSURANCE CO. LTD.,
CITY PRIDE OFFICER NO-4-8,
2ND FLOOR, 162,
RAILWAY LINES,
NEAR EMPLOYMENT CHOWK,
SOLAPUR-01,
THROUGH ITS DIVISIONAL OFFICER,
1ST FLOOR, MADIWAL ARCADE,
CLUB ROAD,
BELAGAVI,
...RESPONDENTS
(BY SHRI M.K.SOUDAGAR, ADV. FOR R2 )
THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED 23.01.2016 PASSED IN MVC
NO.962/2013 ON THE FILE OF THE X-ADDITIONAL DISTIRCT
AND SESSIONS JUDGE AND MEMBER, ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel appearing for the appellants
and the learned counsel appearing for the respondents.
MFA No. 102300 of 2016
C/W MFA No. 101087 of 2016,
MFA No. 101088 of 2016,
MFA No. 102299 of 2016
2. These appeals are filed by the claimants as well as
the owner questioning the liability as well as quantum of
compensation awarded by the Tribunal.
3. The factual matrix of the case of the claimant in
M.V.C.No.962/2013 was that she was the pillion rider, her son
was riding motorcycle bearing registration No.MH-09/C-1861.
The claimants in M.V.C.No.693/2013 are the legal heirs of the
rider Shri Govind. When the son and mother were proceeding
on a motorcycle on 11.05.2013 at about 8.30 p.m., near
Shegaon village, a Mahindra Pick Up Van bearing No.MH-
45/3519 driven by its driver in a rash and negligent manner
dashed to the motorcycle. As a result of the same, Shri Govind
died on the spot and his mother sustained injuries. the
claimant in M.V.C.No.962/2013 was working as coolie and she
was earning a sum of Rs.200/- per day whereas her son was
working as coolie and he was earning a sum of Rs.300/- per
day. Respondent No.1 being the owner of the offending vehicle
and the same is insured with respondent No.2. Hence, both of
them are liable to pay the compensation.
MFA No. 102300 of 2016
C/W MFA No. 101087 of 2016,
MFA No. 101088 of 2016,
MFA No. 102299 of 2016
4. In order to substantiate their claim, the claimants
got examined PWs-1 and 2 and got marked documents Ex.P.1
to Ex.P.11. On the other hand, respondents examined one
witness as RW-1 and got marked documents Ex.R.1 to Ex.R.14.
The Tribunal after assessing both oral and documentary
evidence came to the conclusion that the driver of the offending
vehicle did not possess valid driving licence and hence,
fastened the liability to pay the compensation on the owner and
allowed the claim petitions awarding compensation of
Rs.31,615/- in M.V.C.No.962/2013 (M.F.A.No.102299/2016)
and Rs.12,39,000/- in M.V.C.No.963/2013
(M.F.A.No.102300/2016) with interest at the rate of 6% p.a.
Being aggrieved by the judgment and award, the claimants and
the owner have both filed the present appeal seeking for
enhancement of compensation and to set aside the liability
fastened on the owner.
5. The main contention of the learned counsel for the
claimants/appellants in M.F.A.No.102300/2016 is that the
Tribunal committed an error in taking the income of the
deceased only at Rs.6,000/- p.m. and has not added future
- 10 -
MFA No. 102300 of 2016
C/W MFA No. 101087 of 2016,
MFA No. 101088 of 2016,
MFA No. 102299 of 2016
prospects to the income of the deceased. He also contends
that the Tribunal has not awarded any compensation under the
conventional heads and that the liability fastened on the
insured is also erroneous. Hence, the same calls for
interference of this Court.
6. Learned counsel appearing for the insured/owner
would vehemently contend that the Tribunal has failed to
appreciate the original driving licence of the driver of the pick
up van produced by way of memo dated 11.01.2010 on the
ground that it was a created one. He also contends that when
the claimants were the third parties, the liability ought to have
been fixed on the Insurance Company and thereafter, an order
can be passed to recover the same from the insured. Hence,
he submits that the impugned judgment and award calls for
interference.
7. Learned counsel appearing for the Insurance
Company would submit that the document Ex.P.14 marked
through RW-1 would show that the licence was not renewed
from time to time and the same expired in the year 2009 itself
- 11 -
MFA No. 102300 of 2016
C/W MFA No. 101087 of 2016,
MFA No. 101088 of 2016,
MFA No. 102299 of 2016
and the accident has taken place in the year 2013. Hence, he
submits that the Tribunal has rightly come to the conclusion
that the Insurance Company is not liable to pay the
compensation.
8. In reply, Shri Ramachandra M.Mali, learned counsel
appearing for the owner would submits that if the driver of the
offending vehicle was not holding a valid licence he ought to
have been charge sheeted for committed an offence under
Section 3 read with Section 181 of the M.V.Act but the charge-
sheet produced at Ex.P.11 does not disclose the same and he is
charge-sheeted only for the offences punishable under Sections
279, 304-A, 337, 338, 427 of IPC and Sections 184, 134, 177
of the M.V.Act. Thus, the said fact made it clear that the driver
of the offending vehicle was holding a valid licence and hence
the same has not been considered by the Tribunal.
9. Having heard the learned counsel appearing for the
parties and also on perusal of the material available on record,
no doubt it is seen that the owner is represented before the
Tribunal through a counsel and also filed the written statement
- 12 -
MFA No. 102300 of 2016
C/W MFA No. 101087 of 2016,
MFA No. 101088 of 2016,
MFA No. 102299 of 2016
but he has not entered the witness box. The contention of the
Insurance Company is that the driver of the offending vehicle
did not have valid driving licence and in order to substantiate
the same, they rely upon the document marked as Ex.R.14
which discloses that the driving licence expired on 06.07.2009
and no document is placed before the Tribunal to show that the
driving licence was renewed. Even though respondent No.1
filed the memo along with the document to show that the
driving licence was renewed, as I have already pointed out the
owner has not entered the witness box to prove the same and
the said document is also not marked.
10. The other contention that the charge-sheet was
filed for the offences punishable under Sections 279, 304-A,
337, 338, 427 of IPC and Sections 184, 134, 177 of the
M.V.Act.under cannot be a ground to show that document was
placed before the Court. However, in view of judgment of the
Hon'ble Apex Court in PAPPU VS. VINOD KUMAR LAMBA
(2018 (3) SCC 208), the Insurance Company has to pay and
recover the compensation from the owner in respect of third
parties and in the present case also when the claimants are
- 13 -
MFA No. 102300 of 2016
C/W MFA No. 101087 of 2016,
MFA No. 101088 of 2016,
MFA No. 102299 of 2016
third parties, this Court finds that the Tribunal committed error
in directing the owner to pay the compensation. Hence, the
judgment has to be modified only to the extent of pay and
recovery.
11. With regard to the claim of the claimants in
M.F.A.No.102300/2016 regarding enhancement of
compensation, the income of the deceased is taken at
Rs.6,000/- p.m. When there is no proof with regard to the
income, notional income of Rs.7,000/- has to be taken in the
absence of any documentary evidence. In terms of the post
mortem report, the age of the deceased is mentioned as 40
years and it is not clear as to whether he completed 40 years
or was below the age of 40 years. In the cross-examination of
P.W.-2 with regard to the age of the deceased it is suggested
that her husband was aged more than 50 years at the time of
the accident and the same is denied. In order to get more
compensation, in the claim petition she has stated as 40 years.
She has admitted that her husband possessed driving licence
but the same has not been placed before the Court. In the
absence of any document produced to show that the deceased
- 14 -
MFA No. 102300 of 2016
C/W MFA No. 101087 of 2016,
MFA No. 101088 of 2016,
MFA No. 102299 of 2016
was below the age of 40 years, the age of the deceased has to
be taken as 50 years since the driving licence has not been
produced intentionally though claims having the driving licence.
12. In view of the judgment of the Hon'ble Apex Court in
NATIONAL INSURANCE COMPANY LIMITED VS. PRANAY
SETHI AND OTHERS reported in AIR 2017 SC 5157 that if
the deceased is below the age of 40 years 40% has to be
added towards future prospects and in between the age of 40
to 50 years, 25% has to be added. Hence, in the present case
25% has to be added. Hence, the income of the deceased
would come to Rs.8,750 (Rs.7,000+Rs.1750). As the
dependants are 8 in number, out of the said amount, 1/5th has
to be deducted towards personal expenses of the deceased
which comes to Rs.7,000/-. The correct multiplier applicable
would be 15. Having considered the same, the claimants would
be entitled to compensation of Rs.12,60,000/-
(Rs.7000X12X15) towards loss of dependency.
- 15 -
MFA No. 102300 of 2016
C/W MFA No. 101087 of 2016,
MFA No. 101088 of 2016,
MFA No. 102299 of 2016
13. The claimants being the wife, children and mother would
be entitled to Rs.40,000/- each towards loss of consortium and
loss of love and affection which comes to Rs.3,20,000/-.
14. The claimants are also entitled for a sum of Rs.33,000/-
towards loss of estate and funeral expenses.
15. In all, the claimants in M.F.A.No.102300/2016 are
entitled to a total compensation of Rs.16,13,000/- as against
the sum of Rs.12,39,000/- awarded by the Tribunal.
16. So far as the claim in M.F.A.No.102299/2016 is
concerned, the Tribunal while considering the nature of injuries
sustained by the appellant has taken into consideration Ex.P.7,
the wound certificate and the discharge card Ex.P.8 which
shows that she was an inpatient only for a period of 4 days, has
awarded medical expenses of Rs.1,615/-, Rs.20,000/- towards
pain and suffering and Rs.10,000/- towards transport, food and
attendant charges. Hence, I not find any merit in the appeal to
enhance the compensation as contended by the learned counsel
for the appellant/claimant.
- 16 -
MFA No. 102300 of 2016
C/W MFA No. 101087 of 2016,
MFA No. 101088 of 2016,
MFA No. 102299 of 2016
17. In view of the above discussions, I pass the
following:
ORDER
i) The appeal in M.F.A.No.102300/2016 is allowed in
part,
ii) The appeals in M.F.A.Nos.101087/2016,
101088/2016 and 102299/2016 are dismissed.
iii) The judgment and award dated 23.01.2016 passed
by the X Addl. District and Sessions Judge and
Member, Addl. MACT, Belagavi, in
M.V.C.Nos.962/2013 and 963/2013 stands
modified.
iv) The claimants in M.F.A.No.102300/2016 are
entitled to total compensation of Rs.12,39,000/- as
against the sum of Rs.12,39,000/- awarded by the
Tribunal.
v) The enhanced compensation shall carry interest at
the rate of 6% p.a. from the date of petition till
realization.
- 17 -
MFA No. 102300 of 2016
C/W MFA No. 101087 of 2016,
MFA No. 101088 of 2016,
MFA No. 102299 of 2016
vi) The said amount shall be apportioned in the ratio of
25% to the wife, 10% to the mother and remaining
amount shall be equally distributed to the children
along with proportionate interest. The minor's
share shall be kept in fixed deposit till they attain
the age of majority.
vii) The Insurance Company is directed to pay the
compensation to the claimants within a period of six
weeks and recover the same from the owner in the
same proceedings,
viii) The statutory deposit made by the appellants in all
the appeals is ordered to be transmitted to the
Tribunal.
ix) The registry is directed to send back the TCR
forthwith.
(Sd/-)
JUDGE
JM
