Karnataka High Court
The Divisional Manager vs Smt. Bibi Asma W/O. Nissar Ahmed on 6 June, 2023
Bench: S G Pandit, Vijaykumar A.Patil
-1-
MFA No. 100349 of 2018
C/W MFA.CROB No. 100042 of 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 6TH DAY OF JUNE, 2023
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 100349 OF 2018 (MV-D)
C/W
MFA CROSS OBJ NO. 100042 OF 2018
IN MFA NO. 100349/2018.
BETWEEN:
THE DIVISIONAL MANAGER,
SHRIRAM GENERAL INSURANCE COM LTD.,
E-8, EPIP, RIICO, SITAPUR INDUSTRIAL AREA,
JAIPUR, RAJASTHAN-302022,
REPTD BY AUTHORIZED SIGNATORY.
MOHANKUMAR
B SHELAR
...APPELLANT.
(BY SRI. NAGARAJ C. KOLLOORI, ADVOCATE).
Digitally signed by
MOHANKUMAR B
SHELAR
Location: High Court of
AND:
Karnataka, Dharwad
Date: 2023.06.12
11:51:58 +0530
1. SMT. BIBI ASMA W/O. NISSAR AHMED MAWADA,
AGE: 49 YEARS, OCC: HOUSEHOLD,
R/O: USMAN NAGAR, 2ND CROSS,
TAKIKAI KALIYA HOUSE, BHATKAL,
TQ: BHATKAL, DIST: KARWAR. PINCODE-581354.
2. NISAR AHMAD S/O. ABDUL REHMAN MAWADA,
AGE: 62 YEARS, OCC:BUSINESS,
R/O: USMAN NAGAR, 2ND CROSS,
TAKIKAI KALIYA HOUSE, BHATKAL,
TQ: BHATKAL, DIST: KARWAR. PINCODE-581354.
3. HALEEMA NISHATH W/O. SYED NASIR,
D/O. NISAR AHAMED,
AGE: 32 YEARS, OCC: HOUSEWORK,
-2-
MFA No. 100349 of 2018
C/W MFA.CROB No. 100042 of 2018
R/O. MADINA COLONY, BHATKAL, TQ: BHATKAL,
DIST: KARWAR. PINCODE-581354.
4. NAFIYA SARWAR W/O. SHAH FAISAL,
D/O. NISAR AHAMED,
AGE: 30 YEARS, OCC: HOUSEWORK,
R/O. USMAN NAGAR, BHATKAL, TQ: BHATKAL,
DIST:KARWAR. PINCODE-581354.
5. UMAISE AHMED S/O. NISAR AHAMED,
AGE: 29 YEARS, OCC:BUSINESS,
R/O. USMAN NAGAR, BHATKAL, TQ: BHATKAL,
DIST: KARWAR. PINCODE-581354.
6. NIHA ANJUM W/O. AMEER, D/O. NISAR AHAMED,
AGE: 27 YEARS, OCC: HOUSEWORK,
C/O. MAGADUM COLONY, BHATKAL, TQ: BHATKAL,
DIST: KARWAR. PINCODE-581354.
7. KHATIJA NIDA W/O. IMRAN KHUSHAL,
D/O. NISAR AHAMED,
AGE: 24 YEARS, OCC: HOUSEWORK,
R/O. USMAN NAGAR, BHATKAL, TQ: BHATKAL,
DIST: KARWAR. PINCODE-581354.
8. HANUMANTHA S/O. RUKMAYYA NAIK,
AGE: MAJOR, OCC: BUISINESS,
R/O. DEVAR HITTALU, BELKE, BHATKAL,
TQ: BHATKAL, DIST: KARWAR. PINCODE-581354.
...RESPONDENTS
(BY SRI. VISHWANATH HEGDE, ADV. FOR R1 TO R7,
NOTICE TO R8 SERVED).
THIS MFA FILED U/S.173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED 02.11.2017 PASSED
IN MVC NO.226/2014 ON THE FILE OF THE CIVIL JUDGE AND
ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, HANGAL,
AWARDING COMPENSATION OF Rs.9,50,000/- WITH INTEREST AT
7% P.A. FROM THE DATE OF PETITION TILL ITS REALISATION.
IN MFA NO. 100042/2018.
BETWEEN:
1. SMT. BIBI ASMA W/O. NISSAR AHMED MAWADA,
AGE: 49 YEARS, OCC: HOUSEHOLD,
R/O: USMAN NAGAR, 2ND CROSS,
TAKIKAI KALIYA HOUSE, BHATKAL,
TQ: BHATKAL, DIST: UTTARA KANNADA-581354.
2. NISAR AHMAD S/O. ABDUL REHMAN MAWADA,
MFA No. 100349 of 2018
C/W MFA.CROB No. 100042 of 2018
AGE: 62 YEARS, OCC:BUSINESS,
R/O: USMAN NAGAR, 2ND CROSS,
TAKIKAI KALIYA HOUSE, BHATKAL,
TQ: BHATKAL, DIST: UTTARA KANNADA-581354.
3. HALEEMA NISHATH W/O. SYED NASIR,
(D/O. NISAR AHAMED)
AGE: 32 YEARS, OCC: HOUSEWORK,
R/O. MADINA COLONY, BHATKAL, TQ: BHATKAL,
DIST: UTTARA KANNADA-581354.
4. NAFIYA SARWAR W/O. SHAH FAISAL,
(D/O. NISAR AHAMED)
AGE: 30 YEARS, OCC: HOUSEWORK,
R/O. USMAN NAGAR, BHATKAL, TQ: BHATKAL,
DIST: UTTARA KANNADA-581354.
5. UMAISE AHMED S/O. NISAR AHAMED,
AGE: 29 YEARS, OCC: BUSINESS,
R/O. USMAN NAGAR, BHATKAL, TQ: BHATKAL,
DIST: UTTARA KANNADA-581354.
6. NIHA ANJUM W/O. AMEER,
(D/O. NISAR AHAMED)
AGE: 27 YEARS, OCC: HOUSEWORK,
C/O. MAGADUM COLONY, BHATKAL, TQ: BHATKAL,
DIST: UTTARA KANNADA-581354.
7. KHATIJA NIDA W/O. IMRAN KHUSHAL,
(D/O. NISAR AHAMED)
AGE: 24 YEARS, OCC: HOUSEWORK,
R/O. USMAN NAGAR, BHATKAL, TQ: BHATKAL,
DIST: UTTARA KANNADA-581354.
...APPELLANT.
(BY SRI. VISHWANATH HEGDE, ADVOCATE).
AND:
1. THE DIVISIONAL MANAGER,
SHRIRAM GENERAL INSURANCE COM LIMITED,
E-8, EPIP, RIICO, SITAPUR INDUSTRIAL AREA,
JAIPUR, RAJASTHAN-302022.
[POLICY NO. 10003/31/14/596941]
[VALID FROM 9-1-2014 TO 8-1-2015].
2. HANUMANTHA S/O. RUKMAYYA NAIK,
AGE: MAJOR, OCC: BUISINESS,
R/O. DEVAR HITTALU, BELKE, BHATKAL,
TQ: BHATKAL, DIST: UTTARA KANNADA-581354.
(OWNER OF TATA AC BEARING NO. KA-47/0720]
...RESPONDENTS
MFA No. 100349 of 2018
C/W MFA.CROB No. 100042 of 2018
(BY SRI. NAGARAJ C. KOLLOORI, ADV. FOR R1,
NOTICE TO R2 SERVED).
THIS MFA. CROB IN MFA NO. 100349/2018 FILED UNDER
ORDER 41 RULE 22 OF CPC, READ WITH SECTION 173(1) OF MOTOR
VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED
02.11.2017 PASSED IN MVC NO.226/2014 ON THE FILE OF THE
CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, HANGAL, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY,
VIJAYKUMAR A. PATIL, J., DELIVERED THE FOLLOWING:
COMMON JUDGMENT
MFA No.100349/2018 filed by the Insurance
company challenging the quantum as well as liability and
MFA Crob. No.100042/2018 filed by the legal heirs of the
deceased seeking for the enhancement of the
compensation. Being aggrieved by the Judgment and
award dated 02.11.2017 passed by Senior Civil Judge and
MACT, Hanagal in MVC No.226/2014.
2. Brief facts giving rise to the filing of these
appeals are, the appellants in MFA Crob. No.100042/2018
have filed claim petition under Section 166 of Motor
Vehicles Act, 1988, claiming compensation for the death of
MFA No. 100349 of 2018
C/W MFA.CROB No. 100042 of 2018
Abdul Rehman Afeef in a road accident. It is averred that,
Abdul Rehman Afeef was proceeding on motorcycle
bearing No.KA-47/J-5721 towards Bhatkal on the left side
of the road, at that time, TATA ACE vehicle bearing
registration No.KA-47/720 came from the backside in a
high speed driven by its driver in a rash and negligently
manner, dashed to the motorcycle, due to which the rider
of the motorcycle Abdul Rehaman fell down sustained
grievous injuries and initially he took treatment at
Government Hospital, Bhatkal and then in Manipal Hospital
and died in the hospital. It is further averred that, Abdul
Rehaman was the only bread earner for the family and the
claimants are dependents and sought for compensation of
Rs.40,00,000/-.
3. The respondent Nos.1 and 2 have entered
appearance before the tribunal, filed objections specifically
denying the age, occupation and income of the deceased.
The respondent No.1 has averred that, at the time of the
accident, TATA ACE bearing registration No.KA-47/720 of
MFA No. 100349 of 2018
C/W MFA.CROB No. 100042 of 2018
the respondent No.1 was insured with respondent No.2
company and the policy is in force and driver of the said
vehicle had valid and effective driving licence as on the
date of accident. It is averred by the respondent No.2 that
the claim is vexatious and they have denied the age,
occupation and income of the deceased and contended
that, at the time of accident, driver of the offending
vehicle bearing registration No.KA-47/720 had no valid
and effective driving licence. Hence, there is a violation of
terms and conditions of the Insurance policy, hence they
are not liable to pay any compensation and sought for
dismissal of the claim petition.
4. The tribunal has framed the issues and
recorded the evidence of the parties. The claimant No.2
has examined as P.W.1 and got marked Ex.P.1 to P.14.
The respondent No.2 has examined its Law Officer as
R.W.1 and got marked Ex.R1 and R2. The tribunal has
awarded total compensation of Rs.9,50,000/- on various
heads.
MFA No. 100349 of 2018
C/W MFA.CROB No. 100042 of 2018
Sl.No. Particulars Amount
1 Towards loss of dependency Rs.8,10,000/-
2 Towards loss of love and Rs.1,00,000/-
affection
3 Towards Funeral Expenses Rs.10,000/-
4 Towards Transportation of dead Rs.10,000/-
body
5 Towards loss of Rs.20,000/-
consortium/Estate
Total Rs.9,50,000/-
5. learned counsel Sri Nagaraj C. Kolloori
appearing for corporation submits that the Tribunal has
committed error in fastening the liability on the
corporation as the driver of the vehicle does not possess
the valid and effective driving licence. It is submitted that
the tribunal has committed error in awarding exorbitant
compensation of Rs.9,50,000/- without looking into
material on record. It is further submitted that the tribunal
has committed error in appreciating the evidence on
record resulted in fastening liability on the insurance
company and awarding exorbitant compensation. Hence
sought for interference in his appeal.
MFA No. 100349 of 2018
C/W MFA.CROB No. 100042 of 2018
6. Per contra, Sri Vishwanath Hegde, learned
counsel for appellant claimants submits that the tribunal
has considered the evidence on record and has given
categorical finding that the driver of the offending vehicle
bearing No.KA-47/720 is responsible for causing accident
and the insurance company has failed to prove that the
driver of the said vehicle was not having the valid and
effective licence on the date of accident. He sought for
allowing the appeal filed by the appellant claimant and
sought for enhancement of compensation.
7. We have heard the learned counsel Sri. Nagaraj
C. Kolloori for the Insurance company and Sri. Vishwanath
Hegde for the appellants/claimants. Perused the
memorandum of appeal and the records.
8. It is not in dispute that, the
appellants/claimants have filed a claim petition seeking for
compensation for the death of Abdul Rehaman in a road
accident occurred on 14.02.2014 between the motorcycle
bearing registration No.KA-47/J-5721 and TATA ACE
MFA No. 100349 of 2018
C/W MFA.CROB No. 100042 of 2018
bearing registration No.KA-47/720 and in the said
accident, Abdulrehaman has succumbed to the injuries.
Considering the evidence on record, the tribunal has
awarded Rs.9,50,000/- as a total compensation on
different heads. Keeping these facts in mind the points
that would arise for consideration before this Court in
these appeals are;
(i) Whether the tribunal is justified in coming
to the conclusion that the respondent No.2 has
failed to prove that, the driver of TATA ACE
vehicle had no valid and effective driving licence
at the time of accident?
(ii) Whether the tribunal is committed any
error in assessing the income of the deceased at
Rs.7,000/-?
(iii) What orders to be passed?
9. The answer to the above points would be in the
affirmative for the following reasons:
The accident in question has occurred on 14.02.2014
between the motorcycle bearing registration No.KA-47/J-
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MFA No. 100349 of 2018
C/W MFA.CROB No. 100042 of 2018
5721 driven by the deceased Abdul Rehman Afeef and
TATA ACE vehicle bearing registration No.KA-47/720. It is
also not in dispute that, the said Abdul Rehaman Afeef has
succumbed to the injuries in the said accident. It is also
not in dispute that, the TATA ACE vehicle belongs to
respondent No.1 was insured with the respondent No.2.
The respondent No.2-Insurance company has filed the
appeal MFA No.100349/2018 assailing the impugned
Judgment and award on the ground that, the driver of
TATA ACE was not having valid and effective driving
licence on the date of the accident. Hence, there is a clear
violation of the terms and conditions of the Insurance
policy, they also challenged the quantum of compensation.
10. On meticulous appreciation of evidence on
record, it is evident that, no material evidence is placed
before the tribunal to substantiate the contention that, the
driver of TATA ACE had no valid and effective driving
licence on the date of accident. In view of the specific
assertion of the respondent No.1, the owner of the vehicle
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MFA No. 100349 of 2018
C/W MFA.CROB No. 100042 of 2018
who has specifically taken the contention that on the date
of accident the driver had valid and effective driving
licence and the vehicle had a fitness certificate also. The
Insurance company ought to have issued notice to the
respondent No.1-owner asking him to produce valid and
effective driving licence, however, they have failed to do
so for the best reason known to them. In the absence of
any contra evidence to the statement of respondent No.1-
owner that, the driver had a valid and effective driving
licence on the date of accident, we do not find any reason
to accept the contentions urged by the Insurance company
and we do not find any error in the finding recorded by the
tribunal on Issue No.2. Hence, we hold that, the appellant
-Insurance company had failed to prove that, the driver of
TATA ACE has no valid and effective licence on the date of
the accident.
11. Insofar as contention of the parties with regard
to the income of the deceased the tribunal has assessed
the income of the deceased at Rs.7,000/-. The claim of the
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MFA No. 100349 of 2018
C/W MFA.CROB No. 100042 of 2018
appellants/claimants that, deceased was earning
Rs.25,000/- per month is without any basis and the
appellant/claimants have not substantiated their claim by
placing on record the cogent and acceptable evidences
before the tribunal. However, the tribunal has committed
error in fixing the notional income of the deceased at
Rs.7,000/- as the accident is of the year 2014. We are of
the view that, the interest of justice would be met if we
assess the income of the deceased at Rs.7,500/- per
month, relying on the chart prepared by the Karnataka
State Legal Services Authority. Hence, we assess the
income of the deceased at Rs.7,500/-. The tribunal has
committed error in not adding 40% of the total income of
the deceased towards future prospects as held by the
Hon'ble Supreme Court in the case of National
Insurance Company Limited Vs. Pranay Sethi and
others, reported in (2017) 16 SCC 680, we are of the
considered view that, the deceased was aged about 23
years as on the date of the accident. Hence, the
appellants/claimants are entitle for 40% addition to the
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MFA No. 100349 of 2018
C/W MFA.CROB No. 100042 of 2018
future prospects. Hence, the loss of dependency would be
as under:
Rs.7,500/- + 40% (Rs.3,000/-) = Rs.10,500 minus
50% deduction towards personal expenses = Rs.5,250/- X
12 X 18 = Rs.11,34,000/-.
12. The tribunal has committed error in not
awarding any compensation towards the loss of
consortium. As per the decision of the Hon'ble Supreme
Court in the case of Magma General Insurance
Company Limited Vs. Nanu Ram alias Chuhru Ram
and others, reported in (2018) 18 SCC 130, the
appellant Nos.1 and 2 i.e. mother and father are entitle for
Rs.40,000/- each as a parental consortium. The other
appellants are not entitle for the consortium. The tribunal
has committed error in awarding Rs.1,00,000/- towards
love and affection which the appellants/claimants are not
entitle. The appellants/claimants are entitle for
Rs.15,000/- towards the funeral expenses, instead of
Rs.10,000/- awarded by the tribunal. Towards the
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MFA No. 100349 of 2018
C/W MFA.CROB No. 100042 of 2018
transportation of dead body, the appellants are entitle for
Rs.15,000/- instead of Rs.10,000/- as awarded by the
tribunal. The appellants are entitle for the interest on the
enhanced compensation at the rate of 6% from the date of
petition, till realization.
13. Thus, in view of the above, the compensation
awarded by the Tribunal and enhanced by this Court are
as under:
Sl.No. Particulars Awarded by Compensation
Tribunal awarded by
this Court
1 Towards loss of Rs.8,10,000/- Rs.11,34,000/-
dependency
and affection
3 Towards Funeral Rs.10,000/- Rs.15,000/-
Expenses
4 Towards Rs.10,000/- Rs.15,000/-
Transportation of
dead body
5 Towards loss of Rs.20,000/- Rs.80,000/-
parental consortium
Rs.40,000/- X 2
Total Rs.9,50,000/- Rs.12,44,000/-
14. Therefore, the claimants are entitled for
additional compensation of Rs.2,94,000/- with interest at
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MFA No. 100349 of 2018
C/W MFA.CROB No. 100042 of 2018
the rate of 6% per annum from the date of filing of the
petition till realization, in addition to what has been
awarded by the Tribunal.
Accordingly, we pass the following:
ORDER
(i) MFA No.100349/2018 is dismissed.
(ii) MFA Crob. No.100042/2018 is partly
allowed. The appellants/claimants are
entitle for total compensation of
Rs.12,44,000/- with 6% interest as
against Rs.9,50,000/- awarded by the
tribunal, from the date of petition till its
realization.
(iii) The judgment and award dated
02.11.2017 passed in M.V.C.No.226/2014
by the Senior Civil Judge and AMACT,
Hangal is hereby modified. The appellant
is entitled for enhanced compensation of
Rs.2,94,000/- with interest at 6% p.a.
from the date of petition till the date of
realisation, in addition to the
compensation awarded by the tribunal.
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MFA No. 100349 of 2018
C/W MFA.CROB No. 100042 of 2018
(iv) The Insurance company is directed to
deposit the compensation amount within
eight weeks from the date of receipt of
certified copy of this Judgment.
(v) The apportionment, deposit and
disbursement shall be made as per the
award of the Tribunal.
(vi) The amount in deposit in MFA
No.100349/2018 shall be transmitted to
the tribunal, forthwith.
(vi) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
Svh/-
