Karnataka High Court
Smt. Rekha W/O. Shivaputra Kamble vs Mr. Gulab S/O. Mahamadali on 27 June, 2023
Bench: S G Bysgpj, Vapj
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MFA No. 101765 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH 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. 101765 OF 2021 (MV-D)
BETWEEN:
1. SMT. REKHA W/O. SHIVAPUTRA KAMBLE,
AGE: 35 YEARS, OCC: HOUSE HOLD WORK,
R/O: SAI NAGAR, UGAR, TAL: ATHANI,
DIST: BELAGAVI-591304.
NOW RESIDING AT AMBEDKAR NAGAR,
BELAGAVI-590001.
2. NANDINI D/O. SHIVAPUTRA KAMBLE,
AGE: 19 YEARS, OCC: STUDENT,
R/O: SAI NAGAR, UGAR, TAL: ATHANI,
DIST: BELAGAVI-591304.
NOW RESIDING AT
AMBEDKAR NAGAR, BELAGAVI-590001.
3. PREM S/O. SHIVAPUTRA KAMBALE,
AGE: 17 YEARS, OCC: STUDENT,
R/O: SAI NAGAR, UGAR, TAL: ATHANI,
DIST: BELAGAVI-591304.
Digitally signed
by JAGADISH T R NOW RESIDING AT
Location:
DHARWAD AMBEDKAR NAGAR, BELAGAVI-590001.
Date: 2023.07.03
15:57:25 -0700 ...APPELLANTS
(BY SRI. ASHOK A. NAIK, ADVOCATE)
AND:
1. MR. GULAB S/O. MAHAMADALI KORABU,
AGE: MAJOR, OCC: BUSINESS,
R/O: TERDAL-587101
TAL: JAMAKHANDI, DIST: BAGALKOT-587101.
2. UNITED INDIA INSURANCE CO. LTD.,
MARUTI GALLI, BELAGAVI-590001.
...RESPONDENTS
(BY SRI. RAVINDRA R. MANE, ADV FOR R2)
(NOTICE TO R1 IS SERVED)
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MFA No. 101765 of 2021
THIS MFA IS FILED U/S.173 (1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED 05.04.2021 PASSED IN
MVC NO.2459/2018 ON THE FILE OF THE V ADDITIONAL DISTRICT
JUDGE AND MEMBER OF ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
S.G. PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for admission, it is taken
up for final disposal, with the consent of learned counsel
for both the parties.
2. The claimants - mother, sister and brother of
the deceased Yuvaraj Shivaputrappa Kamble are in appeal
not being satisfied with the quantum of compensation and
praying for enhancement of compensation under the
judgment and award dated 05.04.2021 in
MVC.No.2459/2018 on the file of the V Additional District
Judge and Member of Additional MACT, Belagavi
(for short, 'Tribunal')
3. Heard the learned counsel Sri.Ashok A. Naik for
appellants and learned counsel Sri.Ravindra R. Mane for
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MFA No. 101765 of 2021
respondent No.2 through video conference. Perused the
appeal papers along with Trial Court Records.
4. The claimants filed claim petition under Section
166 of the Motor Vehicles Act, 1988 (for short, '1988 Act')
claiming compensation for the accidental death of Yuvaraj
Shivaputrappa Kamble in a road traffic accident that
occurred on 14.06.2018, involving Tata Ace Magic Vehicle
bearing registration No.KA-48/M-0950. It is stated that the
deceased was aged 18 years as on the date of the
accident and he was doing a private service earning
Rs.15,000/- per month. The case of the claimants are that
the deceased was contributing his entire earnings towards
the family.
5. On issuance of notice, respondent No.2/insurer
appeared through its counsel before the Tribunal and filed
statement of objections denying the claim petition
averments, but admitted issuance of policy in favour of
respondent No.1 in respect of the offending vehicle. It is
contended that the driver of the offending vehicle had no
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MFA No. 101765 of 2021
valid and effective driving license to drive the said insured
vehicle as on the date of the accident. It is also contended
that the offending vehicle is a private vehicle and it was
found that on the date of the accident, it was carrying fare
paid passengers for commercial purpose. Thus, they
denied their liability to indemnify the owner.
6. Before the Tribunal, mother of the deceased
examined herself as PW1 and got marked the documents
as Exs.P1 to P9. Respondent/insurer also got examined its
official witness as RW1 and got marked documents as
Ex.R1 to R4. The Tribunal based on material evidence on
record, awarded total compensation of Rs.13,59,600/-
with interest at 6% per annum from the date of claim
petition till realization of the entire award amount on the
following heads:
1. Loss of dependency Rs.12,09,600/-
2. Loss of parental Rs.40,000/-
consortium
3. Loss of filial consortium Rs.80,000/-
4. Loss of estate Rs.15,000/-
5. Funeral expenses Rs.15,000/-
Total Rs.13,59,600/-
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MFA No. 101765 of 2021
7. While awarding the above compensation, the
Tribunal assessed notional income of the deceased at
Rs.8,000/- per month, added 40% of the income towards
future prospects, deducted 50% of his notional annual
income towards personal expenses since he was a
bachelor and applied multiplier of 18. The claimants not
being satisfied with the quantum of compensation awarded
by the Tribunal are before this Court praying for
enhancement of compensation.
8. Learned counsel for the appellants-claimants
would submit that the Tribunal committed an error in
assessing the income of the deceased at Rs.8,000/- per
month, instead of Rs.11,750/- based on the chart prepared
by KSLSA, since the accident is of the year 2018. Learned
counsel would submit that the claimants had stated that
deceased was earning more than Rs.15,000/- per month,
but ignoring the evidence on record, the Tribunal
committed an error in assessing the income of the
deceased at Rs.8,000/- per month. Further, learned
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counsel would submit that the Tribunal committed an error
in absolving the insurer and directing the respondent No.1
- owner of the offending vehicle to claim compensation. He
submits that though the Tribunal has held that driver of the
offending vehicle had no valid and effective driving license
as on the date of the accident, it ought to have directed the
insurance company to pay compensation amount at the
first instance with liberty to recover the same from the first
respondent-owner. Thus, he prays for allowing the appeal.
9. Per contra, Sri.Ravindra R. Mane, learned
counsel appearing for the respondent-Insurance Company
would support the impugned judgment and award and
submits that owner of the offending vehicle - first
respondent himself was driving the vehicle and in spite of
the notice issued, he has failed to produce the driving
license. Therefore, the Tribunal justified in giving finding
that the driver-cum-owner had no license as on the date
of the accident. Further, he submits that the Tribunal
justified in giving a finding that vehicle was used to carry
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passengers and he submits that it is well settled law that
a private vehicle, could not be used for carrying
passengers. Thus, he submits that the policy would not
cover the passengers carrying in a private vehicle. With
regard to income of the deceased, he submits that there is
no material to re-assess the income of the deceased and
prays for dismissal of the appeal.
10. Having heard the learned counsel for the parties
and on perusal of the appeal papers, the points that would
fall for consideration in this appeal are,
1) Whether the Tribunal committed an error in
not directing the insurer to pay compensation
amount at the first instance with liberty to
recover the same from the first respondent -
owner of the offending vehicle?
2) Whether the claimants would be entitled for
enhanced compensation?
11. Our answer to the above points is in the
affirmative for the following reasons:
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12. The accident which took place on 14.06.2018
involving Tata Ace Magic Vehicle bearing registration
No.KA-48/M-0950 and the accidental death of Yuvaraj
Shivaputrappa Kamble are not in dispute in this appeal.
13. The claimants stated that deceased was earning
Rs.15,000/- per month, but no material is placed on
record to establish the said income. In the absence of
material to establish the income, it is for the Courts and
Tribunal to assess the income notionally. In the absence of
any material on record to establish the avocation and
earning of the appellant/claimant, this Court and Lok
Adalat while settling the accidental claims of the year
2018, normally would assess notional income at
Rs.11,750/- per month, taking note of the chart prepared
by KSLSA based on various factors including the minimum
wage fixed. In the instant case also, in the absence of any
material evidence to establish the income of the injured,
we are of the opinion that it would be appropriate for us to
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determine the income of the injured at Rs.11,750/- p.m.,
taking note of the income chart prepared by KSLSA.
14. The Tribunal has rightly added 40% future
prospectus which needs no interference. The deceased
was 18 years and the multiplier taken 18 and deduction of
50% since the deceased was bachelor is proper and
correct. Thus, the claimants would be entitled for
compensation on the head of loss of dependency at
Rs.17,76,600/- (Rs.11,750 + 40% x 12 x 18 x 50%).
15. The Tribunal committed an error in awarding
compensation of Rs.80,000/- towards filial consortium,
which the claimant Nos.2 and 3 being sister and brother
would not be entitled.
16. The Tribunal committed an error in not directing
the respondent No.2 - insurer to pay the compensation
amount at the first instance with liberty to recover the
same from the first respondent-owner of the offending
vehicle. It is on record that the first respondent - owner
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himself was driving the vehicle on the fateful day of the
accident. The first respondent, owner-cum-driver is placed
ex-parte before the Tribunal. Ex.R3 and R4 are placed on
record, copy of notice issued to respondent No.1 and
acknowledgement for having served the said notice. In
spite of receipt of the notice to produce the license, the
first respondent, owner-cum-driver has not placed on
record the license, hence the Tribunal is justified in
fastening the liability on respondent No.1. As it is a case of
no license, the Tribunal ought to have directed the insurer
to pay compensation amount at the first instance with
liberty to recover the same from first respondent-owner of
the offending vehicle, in terms of the decision of Full
Bench of this of this Court in the case of New India
Assurance Co. Ltd., Bijapur vs. Yallavva w/o.
Yamanappa Dharanakeri, reported in 2020 (2) AKR
484. Thus, we direct the second respondent-insurer to
pay the compensation determined by this Court to the
claimants with liberty to recover the same from the
owner of the offending vehicle.
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17. Thus, the claimants would be entitled for
modified compensation on the following heads:
Sl.No. Particulars Amount
1. Loss of dependency Rs.17,76,600/-
(Rs.11,750 (income per
month) + Rs.4,700 (40%
future prospects) =16,450 x
12 (months) x 18 (multiplier)
x 1/2 (50% deduction)
2. Parental consortium Rs.40,000/-
3. Loss of estate Rs.15,000/-
4. Funeral expenses Rs.15,000/-
Total Rs.18,46,600/-
18. Thus, the claimants would be entitled to total
compensation of Rs.18,46,600/- as against
Rs.13,59,600/- awarded by the Tribunal.
19. In the result, we proceed to pass the following:
ORDER
a) The above appeal is allowed in part.
b) The impugned judgment and award of the
Tribunal is modified to an extent that the
claimants are entitled to total compensation of
Rs.18,46,600/- as against Rs.13,59,600/-
awarded by the Tribunal.
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c) The enhanced compensation amount will bear
interest at the rate of 6% per annum from the
date of claim petition till date of realization.
d) The second respondent-Insurer at the first
instance to pay compensation determined by
this Court to the claimants, thereafter,
recover the same from the owner of offending
vehicle in an appropriate proceedings.
e) Respondent-Insurer 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.
f) Apportionment, deposit and disbursement of
the enhanced compensation shall be made as
per the award of the Tribunal.
g) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
NC
