Karnataka High Court
Bibi Ayesha vs Khalandar on 5 January, 2023
Bench: Ravi V.Hosmani
-1-
MFA No. 102169 of 2015
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 5TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
MISCELLANEOUS FIRST APPEAL NO.102169 OF 2015 (MV-)
BETWEEN:
1. SMT. BIBI AYESHA W/O MUKHTAR AHMED
BALIBHAVI @ NARALBOUDI, AGE: 23 YEARS,
OCC: HOUSEWIFE, R/O: SAVANUR,
TQ: SAVANUR, DIST: HAVERI.
2. SMT. HASINABI W/O IBRAHIMSAB BALIBHAVI
@ NARALBOUDI, AGE: 53 YEARS,
OCC: HOUSEWIFE, R/O: SAVANUR,
TQ: SAVANUR, DIST: HAVERI.
...APPELLANTS
(BY SHRI CHANDRASHEKHAR M HOSAMANI FOR
SHRI HARISH S. MAIGUR, ADVOCATE)
AND:
1. KHALANDAR S/O ABDULNAZEEM,
AGE: MAJOR, OCC: BUSINESS,
ANNAPURNA
CHINNAPPA R/O: H.NO.592, NAVELIM DONGREM,
DANDAGAL SALCETE GOA, STATE: GOA.
Digitally signed by
ANNAPURNA CHINNAPPA
DANDAGAL
Location: High court of
2. THE DIVISIONAL MANAGER
Karnataka, Dharwad Bench,
Dharwad
Date: 2023.01.17 11:04:53 -
UNITED INDIA INSURANCE CO.LTD.,
0800
ENKAY COMPLEX, KESHWAPUR,
HUBBALLI, DIST: DHARWAD.
...RESPONDENTS
(BY SHRI N. R. KUPPELUR, ADVOCATE FOR R2;
SERVICE OF NOTICE TO R1-DISPENSED WITH)
-2-
MFA No. 102169 of 2015
THIS MFA IS FILED U/S 173(1) OF MV ACT 1988,
AGAINST THE JUDGMENT AND AWARD DATED 10.11.2014
PASSED IN MVC NO.76/2012 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND MEMBER ADDITIONAL MOTOR ACCIDENT
CLAIMS TRIBUNAL, BAILHONGAL, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for admission,
with consent of learned counsel for parties, it is
taken up for final disposal.
2. Heard Shri Harish S. Maigur, learned
counsel for appellant and Shri N.R.Kuppelur,
learned counsel for respondent no.2-insurer.
3. Challenging judgment and award dated
10.11.2014 passed by Additional Senior Civil Judge
and Additional M.A.C.T, Haveri (for short,
'tribunal') in MVC No.76/2012, this appeal is filed
by claimants seeking compensation.
MFA No. 102169 of 2015
4. This is claimants appeal for award of
compensation as claim petition was dismissed by
Tribunal on ground that borrower of offending
vehicle could not maintain claim petition under
Section 163-A of Motor Vehicles Act.
5. Relying upon decision of Hon'ble Supreme
Court in case of United India Insurance
Company Limited Vs Sunil Kumar and another
reported in 2018 ACJ 1, learned counsel for
appellant submits that in a claim petition under
Section 163-A of M.V.Act, there would be no
question of deciding negligence and denial of
compensation would not be justified.
6. It was submitted that on 20.09.2011 at
9:30 a.m, Mukhtar Ahmad Balibhavi @ Naralboudi
was riding a motorcycle bearing registration
No.GA-02/P-0995 from Savanur towards Goa, near
Kanchin Bagilu village of Ankola Taluka, there was
MFA No. 102169 of 2015
slope when he applied brakes, he lost control over
vehicle and fell down. Due to accident, he
sustained grievous injuries. He was admitted to
Government Hospital, Ankola and thereafter to KLE
Hospital, Belagavi. However, he died during
treatment. Claiming compensation for same, his
wife and mother filed claim petition against owner
and insurer of motorcycle under Section 163-A of
M.V.Act. It was submitted that claimants would
thus be entitled for compensation towards loss of
dependency, towards funeral expenses, towards
loss of estate and towards loss of consortium.
7. On other hand, Shri N.R.Kuppelur,
learned counsel for respondent-insurer supported
award and opposed appeal.
8. It was submitted that Tribunal had relied
upon decision of Hon'ble Supreme Court in case of
Ningamma and another Vs United India
MFA No. 102169 of 2015
Insurance Company Limited reported in 2009
ACJ 2020 and therefore, award did not call for any
modification.
9. From above submission, only point that
arises for consideration is:
"Whether award passed by Tribunal calls
for interference?"
10. On perusal of impugned award, it is seen
that Tribunal has relied upon two Judges Bench
decision of Honb'le Supreme Court in Ningamma's
case (supra) to come to a conclusion that deceased
Mukhtar Ahmad admittedly being borrower of
vehicle would step into shoes of owner and could
not maintain claim petition under Section 163-A of
M.V. Act. However, three Judges Bench decision of
Honb'le Supreme Court in its later decision in case
of Sunil Kumar (Supra) has held that in a claim
petition under Section 163-A of M.V.Act it was not
MFA No. 102169 of 2015
open for insurer to raise a defence or plea of
negligence and only question that would be
determined is quantum of compensation as per
structured formula. Thus, dismissal of claim
petition would not be justified.
11. Insofar as quantum of compensation, it is
seen that there is no dispute about fact that
deceased Mukhtar Ahmad was aged about 26
years, doing scrap business and earning about
Rs.3,200/- per month. Claimants are wife and
mother of deceased. Since, annual income of
deceased is less than Rs.40,000/-, claim petition
filed under Section 163-A of M.V.Act would be
tenable. From II-schedule, multiplier applicable
would be '18'. Considering same, compensation
towards loss of dependency would be:
Rs.3,200 x 2/3 x 12 x 18= Rs.4,60,799/-
rounded off to Rs.4,60,800/-.
MFA No. 102169 of 2015
12. Apart from above, II-schedule provides
for award of total sum of Rs.9,500/- towards
conventional heads, to which claimants would be
entitled to. Thus, claimants would be entitled for
total compensation of Rs.4,70,300/-. Point for
consideration is thus answered partly in affirmative
as above.
13. In the result, I pass following:
ORDER
i. Appeal is allowed in part.
ii. Claimants are held entitled for
compensation of Rs.4,70,300/- along
with interest at 6% per annum from date
of claim petition till deposit.
iii. Insurer is directed to deposit
compensation within six weeks from date
of receipt of certified copy of this order.
iv. On deposit, claimant no.1 is held
entitled for 70% of award amount and
MFA No. 102169 of 2015
claimant no.2 for remaining 30% of
award amount.
v. Tribunal is directed to keep 50% of same
in fixed deposit initially for a period of
three years and release remaining 50%
of award amount in favour of claimants
on proper identification.
Sd/-
JUDGE
AM
