Karnataka High Court

The Branch Manager vs Shah Hussain S/O Sayedsab ... on 1 February, 2023

Bench: Sreenivas Harish Kumar, T G Gowda

       IN THE HIGH COURT OF KARNATAKA
              KALABURAGI BENCH

     DATED THIS THE 1ST DAY OF FEBRUARY 2023
                      PRESENT
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
                         AND
THE HON'BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA

     MISC.FIRST APPEAL NO.201839/2018(MV)
                     C/W.
     MISC.FIRST APPEAL NO.201512/2018(MV)
     MISC.FIRST APPEAL NO.201513/2018(MV)
     MISC.FIRST APPEAL NO.201847/2018(MV)

IN MFA No.201839/2018

BETWEEN:

1.   Shah Hussain S/o Sayedsab Makandar,
     Age: 35 Years, Occ: Tailoring,
     R/o: Near Jhanda Katta,
     J.M.Road,
     Vijayapura-586101.

2.   Maheboob S/o Sayedsab Makandar,
     Age: 31 Years, Occ: Private Service,
     R/o: Near Jhanda Katta,
     J.M.Road,
     Vijayapura-586101.                 .. APPELLANTS

(By Sri Koujalagi Chandrakant Laxman, Advocate)
                        MFA No.201839/2018 c/w MFA No.201512/2018
                         MFA No.201513/2018, MFA No.201847/2018

                              2


AND:

1.     Rajaram S/o Champaklal Bhung,
       Age: 81 Years, Occ: Business,
       Owner of Ambassador Car bearing
       No.MYR-599, R/o: E-19,
       Near Hanuman Mandir Market Yard,
       Latur-413512
       (Maharashtra State).

2.     The Branch Manager,
       The National Insurance Company Ltd.,
       S.S. Road,
       Vijayapura-586101.               ... Respondents

(By Sri.Sharanabasappa M. Patil, Advocate for R2;
R1-Served, un-represented)

       This Miscellaneous First Appeal is filed under Section
173(1) of MV Act, praying to modify the judgment and
award dated 30.06.2018 passed in MVC No.757/2015 on
the file of Court of the III Additional Senior Civil Judge and
Motor Accident Claims Tribunal No.XII Vijayapura, at
Vijayapura and to allow this appeal by enhancing the
compensation amount of Rs.25,08,000/- only as claimed
by the appellants before this Hon'ble Court, in the interest
of justice.

IN MFA No.201512/2018

BETWEEN:

The Branch Manager,
National Insurance Co. Ltd.,
S.S. Road,
Vijayapur,
Through its Authorized Signatory
The Divisional Manager,
National Insurance Co. Ltd.,
                       MFA No.201839/2018 c/w MFA No.201512/2018
                        MFA No.201513/2018, MFA No.201847/2018

                              3


Bilgundi Complex 1st Floor,
Opp: Mini Vidhana Soudha,
Kalaburagi,
Now represented by its
Authorized Signatory.                      ... Appellant

(By Sri Sharanabasappa M. Patil, Advocate)

AND:

1.     Basamma W/o Basavanthraigouda Patil
       @ Dodamani,
       Age: 58 years, Occ: Household work,
       R/o: Chincholi,
       Now residing at
       Ibrahimpur, B. Bagewadi Road,
       Vijayapura-586203.

2.     Mallangouda S/o Basavanthraigouda
       Patil @ Dodamani,
       Age: 40 years, Occ: Agriculture,
       R/o: Chincholi,
       Now residing at
       Ibrahimpur, B. Bagewadi Road,
       Vijayapura-586203.

3.     Rajaram S/o Champaklal Bhung,
       Age: 81 years, Occ: Business,
       R/o: E-19, Near Hanuman Mandir,
       Market Yard,
       Latur
       (Maharashtra State)-413512      ... Respondents

(By Sri Koujalagi Chandrakant, Advocate for R1 & R2;
Sri Nandkishore Boob, Advocate for R3)

      This Miscellaneous First Appeal is filed under Section
173(1) of MV Act, praying to modify the order of the
Tribunal and call for the Trial Court Records and hear the
                        MFA No.201839/2018 c/w MFA No.201512/2018
                         MFA No.201513/2018, MFA No.201847/2018

                              4


parties and set aside the judgment dated 30.06.2018 and
award dated 06.07.2018 in MVC No.758/2015 in the Court
of III Addl. Senior Civil Judge and Motor Accident Claims
Tribunal No.XII, Vijayapur, in the interest of justice and
equity.

IN MFA No.201513/2018

BETWEEN:

The Branch Manager,
National Insurance Co. Ltd.,
S.S. Road,
Vijayapur,
Through its Authorized Signatory,
The Divisional Manager,
National Insurance Co. Ltd.,
Bilgundi Complex 1st Floor,
Opp: Mini Vidhana Soudha,
Kalaburagi,
Now represented by its
Authorized Signatory.                       ... Appellant

(By Sri Sharanabasappa M. Patil, Advocate)

AND:

1.     Shah Hussain S/o Sayedsab Makandar,
       Age: 35 Years, Occ: Tailoring,
       R/o: Near Jhanda Katta,
       J.M. Road,
       Vijayapur-586101.

2.     Maheboob S/o Sayedsab Makandar,
       Age: 31 Years, Occ: Private Service,
       R/o: Near Jhanda Katta, J.M. Road,
       Vijayapur-586101.

3.     Rajaram S/o Champaklal Bhung,
                       MFA No.201839/2018 c/w MFA No.201512/2018
                        MFA No.201513/2018, MFA No.201847/2018

                             5


     Age: 82 years, Occ: Business,
     R/o: E-19, Near Hanuman Mandir,
     Market Yard,
     Latur
     (Maharashtra State)-413512.     ... Respondents

(By Sri Koujalagi Chandrakant, Advocate for R1 & R2;
Sri Nandkishore Boob, Advocate for R3)

      This Miscellaneous First Appeal is filed under Section
173(1) of MV Act, praying to modify the order of the
Tribunal, call for the Trial Court Records, hear the parties
and set aside the judgment dated 30.06.2018 and award
dated 06.07.2018 in MVC No.757/2015 in the Court of III
Addl. Senior Civil Judge and Motor Accident Claims
Tribunal No.XII, Vijayapur, in the interest of justice and
equity.

IN MFA No.201847/2018

BETWEEN:

1.   Basamma W/o Basavanthraigouda Patil
     @ Dodamani,
     Age: 58 Years, Occ: Household work,
     R/o: Chincholi
     Now Residing at Imbrahimpur,
     Basavana Bagewadi Road,
     Vijayapura-586101.

2.    Mallangouda S/o Basavanthraigouda Patil
      @ Dodamani,
      Age: 40 years, Occ: Agriculture,
      R/o: Chincholi
      Now Residing at Imbrahimpur,
      Basavana Bagewadi Road,
      Vijayapura-586101.
                                           ... Appellants
(By Sri Koujalagi Chandrakant Laxman, Advocate)
                       MFA No.201839/2018 c/w MFA No.201512/2018
                        MFA No.201513/2018, MFA No.201847/2018

                             6


AND:

1.     Rajaram S/o Champaklal Bhung,
       Age: 81 Years, Occ: Business,
       Near Hanuman Mandir Market Yard,
       Latur-413512
       (Maharashtra State).

2.     The Branch Manager,
       The National Insurance Company Ltd.,
       S.S.Road,
       Vijayapura-586101.               ... Respondents

(By Sri.G.B. Yadav, Advocate for R1;
Sri Rahul R. Asture & Sri Sharanabasappa M. Patil,
Advocates for R2)


     This Miscellaneous First Appeal is filed under
Section 173(1) of M.V.Act, praying to modify the
judgment and award dated 30.06.2018 passed in MVC
No.758/2015 on the file of Court of the III Additional
Senior Civil Judge and Motor Accident Claims Tribunal
No.XII Vijayapura at Vijayapura and allow this appeal
by    enhancing    the   compensation       amount     of
Rs.23,24,000/- only as claimed by the appellants
before this Hon'ble Court, in the interest of justice.

     These appeals having been heard through
physical hearing / video conference and reserved for
Judgment     on    10.01.2023,    coming   on    for
pronouncement     of   Judgment    this  day,  T.G.
Shivashankare Gowda, J., delivered the following:
                           MFA No.201839/2018 c/w MFA No.201512/2018
                            MFA No.201513/2018, MFA No.201847/2018

                                  7


                          JUDGMENT

In M.F.A.No.201512/2018 and M.F.A.No.

201513/2018, the Insurance Company and in

M.F.A.No.201847/2018 and M.F.A.No.201839/2018,

the petitioners have challenged the judgment dated

30.06.2018 passed in M.V.C.No.757/2015 and

M.V.C.No.758/2015 on the file of the III Additional

Senior Civil Judge and Motor Accident Claims Tribunal

No.XII, Vijaypur (hereinafter referred to as 'Tribunal'

for short).

2. The parties will be referred with respect to

their status before the Tribunal for the sake of

convenience.

3. Briefly stated, the facts are that, the

petitioners in M.V.C.No.757/2015 are the children of

one Sayedsab Makandar, deceased No.1 and the

petitioners in M.V.C.No.758/2015 are the wife and son MFA No.201839/2018 c/w MFA No.201512/2018 MFA No.201513/2018, MFA No.201847/2018

of Basvantharaigouda Patil, deceased No.2. Both the

deceased while traveling from Mumbai to Shorapur in

an Ambassador car bearing No.MYR-599 were killed at

the spot when their vehicle met with an accident that

took place at a place, which was at a distance of 4

Kms. from Theur Fata in Maharashtra State.

4. The petitioners approached the Tribunal

seeking compensation. The claim was opposed by the

Insurance Company on the grounds that the claim is

hopelessly barred by limitation and there was no

insurance coverage for the car in question. The

Tribunal ignored the contention of the Insurance

Company and assessed the compensation at

Rs.1,92,000/- in M.V.C.No.757/2015 and

Rs.3,76,000/- in M.V.C.No.758/2015 and fastened the

liability against the Insurance Company. In both

cases, the Insurance Company assailed the impugned MFA No.201839/2018 c/w MFA No.201512/2018 MFA No.201513/2018, MFA No.201847/2018

judgment and the petitioners in both cases are before

this court seeking enhancement.

5. It is the contention of the learned counsel for

the petitioners that the deceased in both cases were

earning more than Rs.8,000/- per month, but the

Tribunal did not consider it, the compensation to be

awarded on conventional heads are assessed on the

lower side and hence, they sought for enhancement.

In order to answer the liability of the Insurance

Company, he has relied on the judgment of the

Hon'ble Apex Court in Dhannalal -vs-

D.P.Vijayvargiya and others - (1996) 4 SCC 652.

6. Per contra, learned counsel for the Insurance

Company has contended that the accident took place

on 06.02.1989 and the claim petitions were filed in

the year 2015 after an inordinate delay of 26 years.

On the date of the accident, the applicable law for MFA No.201839/2018 c/w MFA No.201512/2018 MFA No.201513/2018, MFA No.201847/2018

claiming of compensation was Section 110A(3) of the

Motor Vehicles Act, 1939 where the period of

limitation was fixed as six months from the date of

accident and therefore, claim petitions were time

barred. It is also contended that the car was not

insured, the policy of insurance produced pertains to

insurance coverage provided to a goods vehicle and

therefore, fastening of liability on the Insurance

Company is erroneous. To buttress his arguments,

learned counsel has relied upon the judgment of the

Hon'ble Apex Court in Purohit and Company -vs-

Khatoonbee and Another - (2017) 4 SCC 783.

7. We have given our anxious consideration to

the arguments addressed on behalf of the parties and

perused the records.

8. On a careful perusal of the impugned

judgment, the undisputed facts are that the accident MFA No.201839/2018 c/w MFA No.201512/2018 MFA No.201513/2018, MFA No.201847/2018

took place on 06.02.1989 when both the deceased

were travelling as passengers in the car, met with an

accident, sustained injuries and succumbed to them.

The petitioners in M.V.C.No.757/2015 are the sons of

deceased No.1 whereas the petitioners in

M.V.C.No.758/2015 are the wife and son of deceased

No.2. Both the petitioners are entitled to claim

compensation.

9. The Tribunal considered the income at

Rs.3,000/- per month, calculated the loss of

dependency. 30% of the same is awarded as loss of

estate in favour of the petitioners in

M.V.C.No.757/2015 as they are the major sons and

not the dependants of deceased No.1, relying on the

judgment in the case of A.Manavalagan -vs-

A.Krishnamurthy and others - ILR 2004 KAR

3268.

MFA No.201839/2018 c/w MFA No.201512/2018 MFA No.201513/2018, MFA No.201847/2018

10. As we notice from the reasoning assigned by

the Tribunal, the Tribunal did consider the claim on

the date of filing though the accident was in the year

1989. In the year 1989, the petitioners in

M.V.C.No.757/2015 were aged 6 and 2 years, though

were minors on the date of accident, they are

certainly the dependants and therefore, the

assessment of 30% loss of estate by the Tribunal is

not proper. Hence, the Tribunal ought to have

considered the assessment of compensation towards

loss of dependency for the said petitioners also.

11. As we notice that in the year 1989, earning

capacity of a person of this nature will not be less than

Rs.50/- per day and income ought to have been taken

at Rs.1,500/- per month. For assessing the loss of

dependency, if it is taken into consideration, the

deceased No.1 was aged 40 years, the multiplier

applicable is '15' whereas, the deceased No.2 was MFA No.201839/2018 c/w MFA No.201512/2018 MFA No.201513/2018, MFA No.201847/2018

aged 45 years, for his age, the multiplier applicable is

'14'.

12. Keeping all these aspects into consideration,

if we assess the compensation in M.V.C.No.757/2015,

the compensation will come at Rs.50/-x30 =

Rs.1,500/-, out of which, if 1/3rd is deducted towards

persona expenses, it comes to Rs.1,000/-, if 30%

future prospects is added it comes to Rs.1,300/-, then

the compensation towards loss of dependency comes

to Rs.2,34,000/- (Rs.1,300/-x12x15 multiplier).

13. Towards loss of love and affection, if

Rs.20,000/- is assessed and towards loss of estate

and funeral expenses Rs.3,000/ each is assessed,

then the compensation comes to Rs.2,60,000/- as

against Rs.1,92,000/- assessed by the Tribunal.

14. In respect of deceased No.2 in

M.V.C.No.758/2015 is concerned, if income is taken at MFA No.201839/2018 c/w MFA No.201512/2018 MFA No.201513/2018, MFA No.201847/2018

Rs.50/- per day, it comes to Rs.1,500/- per month, if

1/3rd is deducted towards personal expenses, it comes

to Rs.1,000/-. If 30% future prospects is added, it

comes to Rs.1,300/-. The multiplier applicable is '14'.

Then the compensation towards loss of dependency

would come to Rs.2,18,400/- (Rs.1,300/-x12x14).

15. If Rs.10,000/- each is awarded towards loss

of love and affection to the petitioners, it comes to

Rs.20,000/-, loss of estate and funeral expenses of

Rs.3,000/- each is added, it comes to Rs.2,44,400/-

as against Rs.3,76,000/- as assessed by the Tribunal.

If the claim petition is to be allowed, the petitioners

are entitled to the compensation accordingly.

16. Now, insofar as the contention of the

Insurance Company that the car was not insured with,

the copy of the insurance policy is produced, its

recitals show that policy was in force from 16.10.1988 MFA No.201839/2018 c/w MFA No.201512/2018 MFA No.201513/2018, MFA No.201847/2018

to 15.10.1989 issued in respect of Ambassador car

bearing No.MYR-599. The Insurance Company though

contended that this insurance policy was issued in

respect of a goods vehicle, we do not find any

contrary material. The contention of the Insurance

Company thereby answered that on the date of

accident, the car was covered with insurance.

17. Adverting to the contention of the learned

counsel for the Insurance Company regarding

inordinate delay in filing the claim petitions, we have

carefully perused the impugned judgment. The

Tribunal has relied upon the judgment of the Hon'ble

Apex Court in Dhannalal (supra). In this judgment,

it was held that inspite of the amendment to the Motor

Vehicles Act, the period of limitation will not be

applicable and therefore, the Tribunal has jurisdiction

to entertain the claim. Learned counsel for the

petitioners also submitted that the claim can be made MFA No.201839/2018 c/w MFA No.201512/2018 MFA No.201513/2018, MFA No.201847/2018

irrespective of the point of limitation by virtue of the

amendment to Section 166(3) of the M.V.Act, which

came into force w.e.f. 14.11.1994.

18. We have carefully perused the judgment in

Purohit and Company (supra). The Hon'ble Apex

Court distinguished the judgment in Dhannalal

(supra) at para-15 of its judgment, which reads thus:

"15. . . . . . . We say so, because in Dhannalal case, the question of inordinate delay in approaching the Motor Accidents Claims Tribunal, was not considered........."

The Hon'ble Apex Court further referred to the

amendment to the Motor Vehicles Act and has made

an elaborate discussion at paragraphs-16, 17 and 18,

which read thus:

"16. The question of reasonability would naturally depend on the facts and circumstances of each case. We are however, satisfied, that a delay of 28 years, even without reference to any other fact, cannot be considered as a prima facie reasonable period, for approaching the Motor Accident Claims Tribunal. The only justification indicated by the MFA No.201839/2018 c/w MFA No.201512/2018 MFA No.201513/2018, MFA No.201847/2018

respondents, for initiating proceedings after a lapse of 28 years, emerges from paragraph 4, contained in the application for condonation of delay, filed by the claimants, before the Tribunal. Paragraph 4 aforementioned is extracted hereunder:

"4. That the Petitioners are poor person and they have no knowledge about the Law. Also the Respondent has not pay the single pie towards any compensation."

17. Having given our thoughtful consideration to the justification expressed at the behest of the respondents, for approaching the Tribunal, after a period of 28 years, we are of the view, that the explanation tendered, cannot be accepted. Undoubtedly, the claim (pertaining to an accident which had occurred on 02.02.1977), in the facts and circumstances of the instant case, was stale, and ought to have been treated as a dead claim, at the point of time, when the respondents approached the Tribunal by filing a claim petition, on 23.02.2005.

18. In view of the reasons recorded hereinabove, we hereby set aside the impugned order dated 07.07.2015, and allow the instant appeal, by holding, that the claim raised by the respondents before the Motor Accident Claims Tribunal, was not a surviving claim, when the respondents approached the said Tribunal."

19. In the case on hand, delay was more than 26

years whereas the Hon'ble Apex Court was dealing MFA No.201839/2018 c/w MFA No.201512/2018 MFA No.201513/2018, MFA No.201847/2018

with the case where the claim was made for the year

2005 in respect of the accident that took place in the

year 1977 i.e., 28 years after the accident. It was

held that such claim would not survive for

consideration. In view of the law being settled and

the claim of both the petitioners is time-barred and it

is not a surviving claim when they approached the

Tribunal in the year 2015. Hence, the assessment of

compensation by the Tribunal is not proper, it is

erroneous and the petitioners are not entitled to claim