Karnataka High Court
The Divisional Manager vs Smt. Hanamawwa Shivaji Talawar on 12 June, 2023
Bench: S G Pandit, Vijaykumar A.Patil
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MFA No. 104549 of 2022
C/W MFA No. 100452 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 12TH 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. 104549 OF 2022
(MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 100452 OF 2023
IN MFA NO. 104549/2022.
BETWEEN:
THE DIVISIONAL MANAGER,
THE NEW INDIA ASSURANCE COMPANY LTD,
DIVISIONAL OFFICE, MUDALGI BUILDING CLUB ROAD,
BELAGAVI-590009.
SERVICE OF SUMMONS THROUGH SHIVAMOGA
Digitally signed
DIVISIONAL OFFICE UNIT 680100.
by
MOHANKUMAR
B SHELAR
MOHANKUMAR Location: High
MALLAPPA COMPLEX B.H. ROAD SHIVAMOGA-577203.
B SHELAR Court of
Karnataka,
Dharwad
(INSURER OF TRUCK BEARING REGN NO. KA-14A/3953
Date: 2023.06.15
11:05:13 +0530
POLICY NO. 68010081200000013475 (RENEWED)
VALID FROM 03.10.2020 TO 02.10.2021)
REPTD BY ITS DULY CONSTITUTED ATTORNEY
(POLICY NO. 67200031130100000473)
VALID FROM 12-06-2013 TO 11-0-2014,
DATE OF ACCIDENT 27-02-2014).
...APPELLANT.
(BY SRI. G. N. RAICHUR, ADVOCATE).
AND:
1. SMT. HANAMAWWA SHIVAJI TALAWAR,
AGE. 30 YRS, OCC. NIL, R/O. LAXMI GALLI, NAVAGE
VILLAGE TALUKA & DIST. BELAGAVI-590012.
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MFA No. 104549 of 2022
C/W MFA No. 100452 of 2023
2. SHRI. ANANDA NAGAPPA TALAWAR,
AGE. 67 YRS, OCC. NIL, R/O. LAXMI GALLI,
NAVAGE VILLAGE, TALUKA & DIST. BELAGAVI-590012.
3. SMT. YASHODA W/O. ANANDA TALAWAR
AGE: 57 YRS, OCC. NIL,
R/O. LAXMI GALLI, NAVAGE VILLAGE,
TALUKA AND DIST. BELAGAVI-590012.
4. MR. MADHUSUDAMI S/O. ARUN KATKE,
AGE: MAJOR, OCC. BUSINESS,
R/O. M/S. KATKE EARTH MOVERS SAGAR ROAD,
GADIKOPPA SHIVAMOGA, TALUKA AND DIST
SHIVAMOGA-577204.
...RESPONDENTS
(BY SRI. SANJAY S. KATAGERI ADV. FOR R1 TO R3,
NOTICE TO R4 DISPENSED WITH),
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED 04.11.2022 PASSED
IN MVC NO.1549/2020 ON THE FILE OF THE VIII ADDITIONAL
DISTRICT JUDGE AND IX ADDITIONAL MOTOR ACCIDENT
CLAIMS TRIBUNAL, BELAGAVI, AWARDING COMPENSATION OF
Rs.40,43,000/- WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE
OF PETITION.
IN MFA NO. 100452/2023.
BETWEEN:
1. SMT. HANAMAWWA SHIVAJI TALAWAR,
AGE. 30 YRS, OCC. NIL,
R/O. LAXMI GALLI, NAVAGE VILLAGE,
TALUKA & DIST. BELAGAVI
2. SHRI. ANANDA NAGAPPA TALAWAR,
AGE. 67 YRS, OCC. NIL,
R/O. LAXMI GALLI, NAVAGE VILLAGE,
TALUKA & DIST. BELAGAVI.
3. SMT. YASHODA W/O. ANANDA TALAWAR
AGE: 57 YRS, OCC. NIL,
R/O. LAXMI GALLI, NAVAGE VILLAGE,
TALUKA AND DIST. BELAGAVI.
...APPELLANTS.
(BY SRI. SANJAY S. KATAGERI, ADVOCATE).
AND:
1. MR. MADHUSUDAMI S/O. ARUN KATKE,
AGE: MAJOR, OCC. BUSINESS,
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MFA No. 104549 of 2022
C/W MFA No. 100452 of 2023
R/O. M/S. KATKE EARTH MOVERS, SAGAR ROAD,
GADIKOPPA SHIVAMOGA, TALUKA AND DIST
SHIVAMOGA-577204. (OWNER OF THE TRUCK
BEARING REG. NO. KA-14/A-3953).
2. THE DIVISIONAL MANAGER,
THE NEW INDIA ASSURANCE COMPANY LTD,
DIVISIONAL OFFICE, MUDALGI BUILDING, CLUB ROAD,
BELAGAVI SERVICE OF SUMMONS THROUGH SHIVAMOGA
DIVISIONAL OFFICE UNIT 680100, MALLAPPA COMPLEX
B.H. ROAD, SHIVAMOGA-577204, DIST: SHIVAMOGGA
(INSURER OF TRUCK BEARING REGN NO. KA-14A/3953)
POLICY NO. 68010081200000013475 (RENEWED)
VALID FROM 03.10.2020 TO 02.10.2021).
...RESPONDENTS
(BY SRI. G. N. RAICHUR, ADV. FOR R2,
NOTICE TO R1 DISPENSED WITH).
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED 04.11.2022
PASSED IN MVC NO.1549/2020 ON THE FILE OF THE VIII
ADDITIONAL DISTRICT JUDGE AND IX ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL, BELAGAVI AT BELAGAVI, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THESE APPEALS, COMING ON FOR ADMISSIONS, THIS DAY,
S.G.PANDIT, J., DELIVERED THE FOLLOWING:
JUDGMENT
Both the above appeals are against the Judgment
and award dated 04.11.2022 in MVC No.1549/2020 on the
file of the VIII Additional District Judge and IX Additional
MACT, Belagavi, at Belagavi.
MFA No. 104549 of 2022
C/W MFA No. 100452 of 2023
2. The Insurance company is in appeal in MFA
No.104549/2022, questioning saddling of the liablity,
whereas, the claimants are in appeal in MFA
No.100452/2023, praying for enhancement of
compensation, not being satisfied with the quantum of
compensation.
3. Heard Sri. G.N.Raichur, learned counsel for the
Insurance company through Video Conference and Sri.
Sanjay S. Katageri, learned counsel for the claimants, who
is present before the Court. Perused the trial Court
records, as well as the appeal papers.
4. The claimants are the wife and parents of the
deceased one Shri. Shivaji Nagappa Talawar, who was
serving in the defence. The claimants filed claim petition
under Section 166 of Motor Vehicles Act, claiming
compensation for the accidental death of Shri. Shivaji
Nagappa Talawar in a road traffic accident that has
occurred on 04.10.2020 involving motorcycle bearing
registration No.KA-22/HD-4316 and truck bearing
MFA No. 104549 of 2022
C/W MFA No. 100452 of 2023
registration No.KA-14A/3953. It is averred that, the
deceased was Military person aged 36 years and was
drawing salary of Rs.52,753/- as on the date of the
accident. On service of notice, the respondent No.1
remained ex-parte and respondent No.2 appeared through
its counsel and filed statement of objections. In its
statement of objections, the Insurance company denied
the claim petition averments and further contended that,
the driver of the truck as well as the deceased were not
holding valid and effective driving licence as on the date of
the accident. It is also further averred that, the offending
truck was used as a commercial goods carrying vehicle
without a valid requisition, as such, it is contended that,
there is violation of policy condition. The claimant No.1 i.e.
wife of the deceased examined herself as P.W.1 apart from
examining other three witnesses. The document at Ex.P.1
to Ex.P.35 were marked on behalf of the claimants. The
respondent-Insurance company examined two witnesses
as R.W.1 and R.W.2 and marked two documents as Ex.R.1
and Ex.R.2. The tribunal based on the materials available
MFA No. 104549 of 2022
C/W MFA No. 100452 of 2023
on record, awarded total compensation of Rs.80,86,295/-
under the following heads:
Sl.No. Particulars Compensation amount
1 Loss of dependency Rs.79,76,295/-
2 Funeral expenses Rs.15,000/-
3 Loss of consortium Rs.40,000/-
4 Loss of estate Rs.15,000/-
5 Filial consortium Rs.40,000/-
Total Rs.80,86,295/-
5. The tribunal assessed the income of the
deceased at Rs.47,478/- after deducting income tax,
applying multiplier of '15', taking the age of the deceased
as 36 years, adding 40% of the assessed income towards
future prospects and deducted 1/3rd towards the personal
expenses of the deceased.
6. Learned counsel Sri. G.N.Raichur, appearing for
the Insurance company would submit that, the tribunal
committed grave error in saddling liability on the
Insurance company as the accident had occurred due to
the total negligence of the rider of the motorcycle. Learned
MFA No. 104549 of 2022
C/W MFA No. 100452 of 2023
counsel would submit that, abated charge-sheet is filed
against the deceased. Learned counsel would invite
attention of this Court to Ex.P.3 i.e. sketch of the spot of
the accident and submitted that the truck was coming
from Birur to Tarikere and the motorcycle was coming
from Tarikere to Birur. The rider of the motorcycle took his
motorcycle totally to the right side of the road and dashed
to the on coming truck. As the rider of the motorcycle took
his motorcycle on the right side of the road, dashed to the
on coming truck, which would be total negligence on the
part of the rider of the motorcycle. Learned counsel would
further submit that, the driver of the truck was coming on
the left side of the road from Birur to Tarikere and from
the material on record, it cannot be said that the accident
has taken place due to the negligence of the driver of the
lorry. Learned counsel would further invite attention of this
Court to the charge-sheet at Ex.P.8 and would submit
that, as per the charge-sheet total negligence is on the
part of the rider of the motorcycle. He would also submit
that, the Insurance company examined R.W.2, the driver
MFA No. 104549 of 2022
C/W MFA No. 100452 of 2023
of the truck who has stated that the accident has taken
place due to the negligence on the part of the rider of the
motorcycle. It is submitted that, there is no material to
come to the conclusion that the accident had taken place
due to the negligence on the part of the rider of the truck.
Therefore, he submits that, the tribunal has committed an
error in fastening the liability on the Insurer to an extent
of 50%. Learned counsel would further submit that, the
tribunal has erred in awarding interest at the rate of 9%
per annum and he submits that, taking note of the
prevailing Bank interest rate, he prays for reducing the
interest rate to 6% per annum on the compensation
amount. Thus, he prays for allowing the appeal filed by
the Insurance company.
7. Per contra, Sri. Sanjay S. Katageri, learned
counsel appearing for the claimants would submit that, the
accident had taken place totally due to the negligence of
the driver of the truck. He further submits that, merely
because abated charge-sheet is filed against the deceased,
MFA No. 104549 of 2022
C/W MFA No. 100452 of 2023
the argument of the learned counsel for the Insurance
company cannot be accepted to say that, the accident has
taken place due to the negligence of the deceased. Further
learned counsel would submit that, on behalf of the
claimants, P.W.2 eyewitness was examined, who has
clearly stated that the accident had taken place due to the
negligence of the driver of the vehicle and nothing is
elicited in the cross examination in favour of the
respondents from P.W.2 eyewitness. He also submits that,
the charge-sheet filed against the deceased is challenged
in Criminal Petition No.6560/2021 before the High Court of
Karnataka, Bengaluru, which is pending for consideration.
8. Insofar as the quantum of compensation
awarded by the tribunal is concerned, the learned counsel
Sri. Sanjay S. Katageri submits that, the tribunal
committed an error in adding 40% towards future
prospects. It is submitted that, 50% of the assessed
income towards future prospects has to be added, as the
deceased was permanent employee in the Army. Thus,
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MFA No. 104549 of 2022
C/W MFA No. 100452 of 2023
placing reliance on the decision of the Hon'ble Apex Court
in the case of National Insurance Company Limited
Vs. Pranay Sethi and others, reported in (2017) 16
SCC 680, the learned counsel would submit that, the
claimants would be entitle for adding 50% of the assessed
income towards future prospects. Learned counsel would
submit that, the claimants would be entitled for
Rs.40,000/- each under the head of spousal and filial
consortium as held by the Hon'ble Apex Court in the case
of Magma General Insurance Company Limited Vs.
Nanu Ram alias Chuhru Ram and others, reported in
(2018) 18 SCC 130. Thus, he prays for allowing the
appeal filed by the claimants by dismissing the appeal filed
by the Insurance company.
9. On hearing the learned counsel for the parties
and on perusal of the records as well as the appeal papers,
the following points would arise for our consideration:
(i) Whether the tribunal is justified in coming to
the conclusion that the accident had taken place due
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MFA No. 104549 of 2022
C/W MFA No. 100452 of 2023
to the equal negligence of the rider of the
motorcycle as well the driver of the truck ?
(ii) Whether the claimants would be entitle for
enhanced compensation ?
10. We answer both the points in the affirmative for
the following reasons:
The tribunal based on the material on record, has
fixed 50:50 contributory negligence on both, i.e. rider of
the motorcycle as well the driver of the truck. No doubt,
abated charge-sheet is filed against the rider of the
motorcycle i.e. deceased. The said charge-sheet is under
challenge in Criminal Petition No.6560/2021 before the
High Court of Karnataka, Bengaluru.
P.W.2 Sri. Ashok Savadatti, eyewitness is examined
on behalf of the claimants. As on the date of accident, he
was working in Railway Track Maintenance. He has
categorically stated that the accident took place in the
middle of the road due to the rash and negligent driving of
the driver of the truck. He also stated that the motorcycle
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MFA No. 104549 of 2022
C/W MFA No. 100452 of 2023
was dragged by truck up to the level of the housing
chassis of the body of the truck and it was head-on
collusion between the motorcycle and the truck. The
Insurance company has cross-examined P.W.2. In the
cross-examination nothing in support of Insurer's case is
elicited. R.W.2 is the driver of the truck. R.W.2 has stated
that the accident had taken place due to the negligent
driving of the rider of the motorcycle. Since R.W.2 is an
interested witness, no reliance could be placed on his
evidence. The accident has taken place on 04.10.2020,
whereas, the complaint was filed on the next day i.e. on
05.10.2020 by the brother of the deceased. The
Panchanama and spot inspection have taken place on the
next day i.e. on 06.10.2020, which is clear from the
evidence of R.W.2, who has admitted that the
Panchanama i.e. Mahazar has taken place on 06.10.2020.
In the lorry, apart from the driver, cleaner was also
traveling. It is the evidence of R.W.2 that immediately
after the accident, they went to Police Station, but they
have not filed complaint and nothing prevented the driver
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MFA No. 104549 of 2022
C/W MFA No. 100452 of 2023
as well the cleaner to file complaint against the deceased,
if the accident had taken place due to the total negligence
of the deceased i.e. rider of the motorcycle. It has come
on record that, the deceased being a Military person was
riding the motorcycle with all care and caution by wearing
helmet. Though the deceased was cautious, a careful
scrutiny of Ex. P3-Sketch and Ex.P8-Charge Sheet, it
would attribute some degree of negligence on the part of
the deceased, but it cannot be total negligence. Thus, on
looking into the entire material on record, we are of the
considered view that, the tribunal is justified in holing that
the accident had taken place due to the equal negligence
of the rider of the motorcycle as well the driver of the
truck, which needs no interference by this Court.
Admittedly, the deceased was Havaldhar in Indian
Army. The tribunal has assessed the income of the
deceased at Rs.47,478/- per month, after deducting 10%
of the salary towards income tax placing reliance at
Ex.P.21 and Ex.P.22, which is proper and correct.
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MFA No. 104549 of 2022
C/W MFA No. 100452 of 2023
The tribunal has committed an error in adding only
40% of the assessed income towards future prospects. In
terms of the Pranay Sethi case (supra), a person who is
having permanent job and below the age of 40 years,
would be entitled for adding 50% of the assessed income
towards future prospects. In the present case, since the
deceased was serving in the Defence and aged 36 years,
the claimants are entitle for 50% of the assessed income
towards future prospects. The tribunal deducted 1/3rd
towards personal expenses of the deceased since there are
three dependents i.e. wife and parents. The deduction
given by the tribunal towards personal expenses is proper
and correct. The deceased was aged 36 years and the
multiplier applied is '15'. The same is proper and correct.
The tribunal has awarded loss of consortium of
Rs.40,000/- and filial consortium of Rs.40,000/-, whereas,
the claimants would be entitle for Rs.40,000/- each under
the head of loss of spousal and filial consortium. The
compensation awarded under the head of funeral expenses
and loss of estate is proper and correct. Thus, the
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MFA No. 104549 of 2022
C/W MFA No. 100452 of 2023
claimants would be entitle for the following modified
compensation:
The loss of dependency would be as under:
Rs.47,478/- + 50% (Rs.23,739/0) = Rs.71,487/-
Rs.71,487/- X 1/3 (deduction) = Rs.23,829/-
Rs.71,487/- minus Rs.23,829/- = Rs.47,658/-.
Rs.47,658/- X 12 X 15 = Rs.85,78,440/-.
11. Thus, the claimants would be entitled for
modified compensation on the following heads:
Sl.No. Particulars Compensation Compensation
awarded by awarded by
tribunal this Court
1 Loss of dependency Rs.79,76,295/- Rs.85,78,440/-
2 Funeral expenses Rs.15,000/- Rs.15,000/-
3 Loss of consortium Rs.40,000/- Rs.1,20,000/-
(spousal and filial)
4 Loss of estate Rs.15,000/- Rs.15,000/-
Rs.40,000/-
Total Rs.80,86,295/- Rs.87,28,440/-
12. Hence, the claimants would be entitled to the
total compensation of Rs.87,28,440/- with 6% interest as
against Rs.80,86,295/- awarded by the Tribunal.
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MFA No. 104549 of 2022
C/W MFA No. 100452 of 2023
13. The tribunal has awarded interest at the rate of
9% per annum on the compensation amount. Learned
counsel for the Insurance company submits that, normally
this Court grants 6% interest on the award amount.
Considering the submissions of the learned counsel for the
Insurance company and taking note of the fact of present
day Bank interest rate, it would be just and proper to
award interest at the rate of 6% per annum on the total
compensation amount.
Hence, we pass the following:
ORDER
(i) The appeal filed by the Insurance company
i.e. MFA No.104549/2022 as well as and MFA
No.100452/2023 filed by the claimants are
allowed in part.
(ii) The impugned judgment and award dated
04.11.2022 in M.V.C. No.1549/2020 passed
by the VIII Additional District Judge and IX
Additional MACT, Belagavi, at Belagavi is
modified and the claimants are entitled for
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MFA No. 104549 of 2022
C/W MFA No. 100452 of 2023
total compensation of Rs.87,28,440/- with
interest at the rate of 6% per annum from
the date of claim petition till date of
realization, as against Rs.80,86,295/-
awarded by the tribunal.
(iii) The respondent-Insurance Company shall
deposit the enhanced compensation amount
with accrued interest before the Tribunal
within six weeks from the date of receipt of
certified copy of this judgment.
(iv) Apportionment, deposit and disbursement of
the enhanced compensation shall be made as
per the award of the Tribunal.
(v) The rate of interest is reduced to 6% as
against 9% on the total compensation amount
awarded by the tribunal.
(vi) The amount in deposit if any, shall be
transmitted to the concerned tribunal,
forthwith.
(vii) Draw modified award accordingly.
(viii) Registry to transmit the records, if any, to the
Tribunal forthwith.
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MFA No. 104549 of 2022
C/W MFA No. 100452 of 2023
(ix) No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
SVH
