Karnataka High Court
Smt Kusuma W/O Sikandar Katti @ Kamble ... vs Sri Chirag S/O Vinod Mudia And Ors on 21 November, 2023
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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NC: 2023:KHC-K:8721
MFA No. 201431 of 2021
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
MISCL. FIRST APPEAL NO. 201431 OF 2021 (MV-D)
BETWEEN:
1. SMT. KUSUMA
W/O SIKANDAR KATTI @ KAMBLE,
AGE: 54 YEARS, OCC: NIL,
2. SMT. JAYASHREE
W/O SURESH KAMBLE,
AGE: 33 YEARS, OCC: HOUSEHOLD WORK,
3. NIRMALA
D/O SIKANDAR KATTI @ KAMBLE,
AGE: 31 YEARS, OCC: STUDENT,
4. SHRIDEVI
Digitally signed
by D/O SIKANDAR KATTI @ KAMBLE,
LUCYGRACE AGE: 29 YEARS, OCC: STUDENT,
Location: HIGH
COURT OF 5. RAJASHREE
KARNATAKA
D/O SIKANDAR KATTI @ KAMBLE,
AGE: 27 YEARS, OCC. STUDENT,
ALL ARE R/O KODAGANUR,
TQ. ATHANI,
NOW RESIDING AT BIJJARAGI,
TQ. BIJAPUR-586102.
...APPELLANTS
(BY SRI. BASAVARAJ R. MATH, ADVOCATE)
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NC: 2023:KHC-K:8721
MFA No. 201431 of 2021
AND:
1. SRI. CHIRAG
S/O VINOD MUDIA,
AGE: 54 YEARS, OCC: BUSINESS,
R/O 2ND FLOOR, R/19, AROGYA BHUVAN,
196, SCHEME-6, 196/19,
BELABAI WELJI MARG, SION,
MUMBAI- 22,
MAHARASHTRA STATE.
2. THE BRANCH MANAGER
THE ORIENTAL INSURANCE COMPANY LTD.,
S.S. FRONT ROAD,
BIDARI COMPLEX,
BIJAPUR-586101.
3. SRI. ISHWARLAL
S/O MOHDATRAJ LAKHARA,
AGE: 49 YEARS, OCC. BUSINESS,
R/O VHORA BUILDING,
3/21, 30/34, KIKA STREET,
MUMBAI -400064
(MAHARASHTRA)
...RESPONDENTS
(BY SRI. UDAY P. HONGUNTIKAR , ADVOCATE FOR R2;
VIDE ORDER DATED 03.11.2023 NOTICE TO R1
DISPENSED WITH
R3 SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO, MODIFY THE IMPUGNED
JUDGMENT AND AWARD DATED 10.07.2015 PASSED BY THE
PRINCIPAL SENIOR CIVIL JUDGE AND MACT NO.V, VIJAYAPUR
IN MVC NO.857/2012.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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MFA No. 201431 of 2021
JUDGMENT
Though the matter is listed for orders, with the
consent of the learned counsel for the parties, the matter
is taken up for final disposal.
2. The present appeal is filed by the
appellants/claimants against the judgment and award
dated 10.07.2015 passed in MVC No.857/2012 on the file
of the Principal Senior Civil Judge and MACT No.V,
Vijayapur, by which the tribunal while partly allowing the
claim petition had awarded compensation of Rs.7,00,000/-
and had directed the respondent No.1 to pay the
compensation with interest at 9% p.a. from the date of
petition till realization.
3. The accident in question that had occurred on
18.01.2012 involving a motorcycle bearing Registration
No.MH-1/AB-8117 resulting in severe injuries to the
deceased -Sikandar Katti, who eventually died on
28.01.2012 on account of injuries sustained, is not in
dispute. Deceased was aged about 50 years at the time of
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accident and was stated to have been carrying on the
business of Pan-Beeda shop at Mumbai having monthly
income of Rs.9,000/- p.m.. Apart from that he had
agriculture lands in his native place Athani and he was
earning more than Rs.3,00,000/- per annum by growing
sugarcane crop. On these counts the claimants filed the
claim petition claiming compensation of Rs.29,75,000/-.
4. The Tribunal having found that the accident in
question had occurred on account of rash and negligent
riding of the motorcycle by its rider, has awarded
compensation of Rs.7,00,000/-, as noted above. However,
the tribunal having found that the rider of the motorcycle
did not have valid driving license, exonerated the
respondent/Insurance Company from paying the
compensation and directed the respondent No.1/owner of
the vehicle to pay the compensation. Being aggrieved by
the order of the tribunal with regard to quantum and the
liability the appellants/claimants are before this court.
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5. Sri.Basavaraj R.Math, submits that deceased
was aged 50 years and was earning Rs.9,000/- p.m.
however, the tribunal has taken the same at Rs.6,000/-
p.m. which is on the lower side. He submits that tribunal
has not awarded the compensation under the other
conventional heads. As regards to the liability is concerned
learned counsel for the appellants submits the even
though the tribunal has come to the conclusion that want
of driving license by the respondent No.1 has resulted in
exonerating the respondent No.2/Insurance Company
from payment of compensation. He submits that tribunal
ought to have directed the respondent No.2/Insurance
Company to pay the compensation at the first instance
and recover the same from the owner of the vehicle
thereafter. Hence, seeks for allowing of the appeal.
6. Per contra, Sri. Uday P.Honguntikar, learned
counsel for the respondent No.2/Insurance Company
justifying the judgment and award passed by the tribunal
submits that in the absence of any documentary evidence
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award of the tribunal is just and proper and does not
warrants any interference and grant of compensation on
the other heads are also just and reasonable warranting
no interference. Hence, seeks for dismissal of the appeal.
7. Heard the learned counsel for the parties and
perused the records.
8. Accident in question resulting in death of the
deceased is not in question and the rider of the offending
vehicle not possessing the valid driving license at the time
of accident is also not in dispute. The twin issue which is
required to be considered in this appeal is with regard to
quantum and liability of compensation awarded by the
tribunal.
9. Though it is contended that deceased was
earning Rs.9,000/- p.m. from his Pan-Beeda business at
Mumbai, no documents have been produced. This Court in
the absence of documentary evidence takes into
consideration the income of the deceased as per the chart
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prepared by Karnataka State Legal Services Authority, in
that notional income of the victim of the road traffic
accident of the year 2012 is determined at Rs.6,500/-
p.m., the same is takes into consideration instead of
Rs.6,000/- p.m. assessed by tribunal. The claimant No.1 is
the wife and claimant Nos. 2 to 5 are the children of the
deceased. Since the age of the deceased was 50 years at
the time of accident, 10% is required to be added towards
'future prospects'. Thus, considering the number of
dependents ¼th share is deducted towards 'personal and
living expenses' of the deceased. Considering the age of
the deceased about 50 years appropriate multiplier
applicable is '13'.
10. Calculated as above, the claimants are entitled
for Rs.8,36,472/- ([Rs.6,500 X 10%=Rs.7,150 (-) ¼
=Rs.5,362] Rs.5,362 X12 X13) towards 'Loss of
dependency'.
11. In view of the law laid down by the Apex Court
in the case of Magma General Insurance Company
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Limited vs. Nanu Ram Alias Chuhru Ram and others
- (2018) 18 SCC 130, the claimants being legal
representatives of deceased are entitled for Rs.40,000/-
each towards 'loss of consortium'. In addition the
claimants are entitled for Rs.15,000/- towards 'funeral
expenses' and Rs.15,000/- towards 'loss of estate'.
12. Thus, in total the appellants/claimants are
entitled for compensation of Rs.10,66,472/- instead of
Rs.7,00,000/- as awarded by the Tribunal, which is as
under:
Sl. By By
Heads
No. Tribunal this Court
1 Towards loss of dependency Rs.6,24,000/- Rs.8,36,472/-
2 Expenses during treatment Rs. 16,000/- -
3 Loss of consortium Rs. 10,000/- Rs.2,00,000/-
4 Loss of love and affection Rs. 20,000/- -
5 Transportation of dead Rs. 10,000/- -
body
6 Funeral Expenses Rs. 10,000/- Rs. 15,000/-
7 Loss of estate Rs. 10,000/- Rs. 15,000/-
Total Rs.7,00,000/- Rs.10,66,472 /-
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13. In view of the law laid by the Apex Court in the
case of PAPPU AND OTHERS VS. VINOD KUMAR
LAMBA AND ANOTHER reported in (2018) 3 SCC 208
and considering the claimants being dependents of the
deceased this Court is of the considered view that
respondent No.2/Insurance Company be directed to pay
the compensation at the first instance and recover the
same from the owner of the vehicle/respondent No.1
thereafter.
14. For the foregoing reasons, following:
ORDER
a) The appeal is partly allowed.
b) The appellants/claimants are entitled for a total
compensation of Rs.10,66,472/- instead of
Rs.7,00,000/- awarded by the Tribunal with
interest at the rate of 6% per annum from the
date of claim petition till realization. However,
appellants are not entitled to interest for the
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delayed period of 1620 days in filing the
appeal.
c) The tribunal has granted 9% interest, same is
required to be reduced to 6%.
Appellants/Claimants are entitled 6% interest
per annum on the aforesaid compensation.
d) Respondent No.2/Insurance Company shall pay
the aforesaid compensation amount within an
outer limit of six weeks from the date of receipt
of certified copy of this judgment and recover
the same from the respondent No.1/owner of
the vehicle.
e) The award of the Tribunal is modified
accordingly.
Sd/-
JUDGE
RU
