Karnataka High Court
M/S Shriram General Insruance Co. Ltd vs Smt. Doulat Bee And Ors on 23 November, 2023
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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MFA No. 201336 of 2019
C/W MFA No. 200750 of 2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
MISCL. FIRST APPEAL NO. 201336 OF 2019 (MV-D)
C/W
MISCL. FIRST APPEAL NO. 200750 OF 2019
IN MFA NO. 201336 OF 2019.
BETWEEN:
1. SMT. DOULAT BEE
W/O LATE IMAMSAB MULLAWALE,
AGE: 28 YEARS OCC: HOUSEHOLD,
2. NAMATHABAI
W/O MAULASAB MULLAWALE,
AGE: 54 YEARS OCC: HOUSEHOLD,
Digitally signed
by LUCYGRACE 3. MOULASAB
Location: HIGH S/O MASHAKSAB MULLAWALE,
COURT OF AGE: 64 YEARS OCC: NIL,
KARNATAKA
4. ALL RASOOL
S/O MAULASAB MULLAWALE,
AGE: 22 YEARS OCC: NIL,
5. BASHAMIYAN
S/O MAULASAB MULLAWALE,
AGE: 26 YEARS,
OCC: AGRICULTURE LABOUR,
ALL R/O SAVALGI -B VILLAGE,
TQ. & DIST. KALABURAGI,
NOW AT YARGAL VILLAGE,
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MFA No. 201336 of 2019
C/W MFA No. 200750 of 2019
TQ. CHITTAPUR, DIST. KALABURAGI.
...APPELLANTS
(BY SRI. SANJEEV PATIL, ADVOCATE)
AND:
1. GIREPPA
S/O GOVINDAPPA,
AGE: MAJOR, OCC: AGRICULTURE, OWNER OF
VEHICLE,
TRACTOR NO.KA-AP/C-1901 AND TRAILER NO.,
AP-23/C-2360,
R/O BELUR-J VILLAGE,
TQ. & DIST. KALABURAGI-585105.
2. SHRIRAM GENERAL INSURANCE OC. LTD.,
E-8, EPIP RW-II CO. INDUSTRIAL AREA,
SITAPURA, JAIPUR-302022,
RAJASTHAN,
REPRESENTED BY ITS,
AUTHORIZED OFFICER
...RESPONDENTS
( R1 DISPENSED WITH
BY SRI. SUDARSHAN M., ADVOCATE FOR R2)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO, MODIFY THE JUDGMENT AND
AWARD DATED 01.12.2018 PASSED BY THE LEARNED III
ADDITIONAL SENIOR CIVIL JUDGE AND MACT, KALABURAGI
IN MVC NO.172/2015 BY ENHANCING THE COMPENSATION
AMOUNT FROM RS.12,58,000/- TO RS.15,00,000/-.
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MFA No. 201336 of 2019
C/W MFA No. 200750 of 2019
IN MFA NO. 200750 OF 2019.
BETWEEN:
M/S SHRIRAM GENERAL INSURANCE CO. LTD,
E-8, EPIP, RW-II CO. INDUSTRIAL AREA,
SITAPURA,
JAIPUR-302022,
RAJASTAN,
REPRESENTED BY ITS,
AUTHORIZED OFFICER.
PRESENTLY REPRESENTED BY ITS,
OFFICER/MANAGER,
SHRIRAM GENERAL INSURANCE CO. LTD.,
NO.5/4, 3RD FLOOR, S V ARCADE,
BELEKAHALLI MAIN ROAD,
OFF BANNERUGHATTA ROAD,
IIMB POST,
BENGALURU-560076.
...APPELLANT
(BY SRI. SUDARSHAN M., ADVOCATE)
AND:
1. SMT. DOULAT BEE
W/O LATE IMAMSAB MULLAWALE,
AGED ABOUT 28 YEARS, OCC: HOUSEHOLD WORK,
2. SMT. NAMATHABAI
W/O MAULASAB MULLAWALE,
AGED ABOUT 54 YEARS, OCC: HOUSEHOLD WORK,
3. SRI. MOULASAB
S/O MASHAKSAB MULLAWALE,
AGED ABOUT 64 YEARS, OCC: NIL,
4. ALL-RASOOL
S/O MOULASAB MULLAWALE,
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MFA No. 201336 of 2019
C/W MFA No. 200750 of 2019
AGED ABOUT 22 YEARS, OCC: NIL,
5. SRI. BASHAMIYAN
S/O MOULASAB MULLAWALE,
AGED ABOUT 26 YEARS, OCC: AGRICULTURE
LABOUR
ALL R/AT VILLAGE SAVALAGI-B,
TALUK & DISTRICT: GULBARGA,
NOW RESIDING AT VILLAGE YARGAL,
TALUK: CHITTAPUR,
DISTRICT: GULBARGA-585211.
6. SRI. GIREPPA
S/O GOVINDAPPA,
AGE: MAJOR, OCC: AGRICULTURE, OWNER OF
TRACTOR,
NO.AP-23/C-1901, AND TRAILER NO. AP-23/ C-2360,
R/O VILLAGE BELUR-J,
TALUK & DISTRICT: GULBARGA-585313.
...RESPONDENTS
(BY SRI. SANJEEV PATIL, ADVOCATE FOR R1 TO R5;
R6 DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173 (1) OF MOTOR
VEHICLES ACT, PRAYING TO, SET ASIDE THE JUDGMENT AND
AWARD DATED 01.12.2018 PASSED IN MVC NO.172/2015 BY
THE III ADDITIONAL SENIOR CIVIL JUDGE AND MACT,
KALABURAGI.
THESE APPEALS, COMING ON FOR ORDERS, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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MFA No. 201336 of 2019
C/W MFA No. 200750 of 2019
JUDGMENT
MFA No. 201336/2019 is by the claimants and MFA
No. 200750/2019 is by the appellant/Insurance Company
being aggrieved by the order dated 01.12.2018 passed in
MVC No.172/2015 on the file of III Additional Senior Civil
Judge, and MACT, Kalaburagi, by which, the tribunal while
partly allowing the claim petition has awarded
compensation of Rs. 12,58,000/- with interest @6% p.a.
from the date of petition till realization and has directed
the respondent/Insurance company to pay the same.
2. Brief facts of the cases are that;
(a) On 25.06.2014 at about 9.30 p.m. husband of
the appellant No.1 namely, Imamsab was returning home
on his motorcycle bearing Registration No.KA-32/Y-4667
after closing his Bakery shop business on Gulbarga-Aland
Road near Keribosga cross, at that time, a Tractor Trailer
bearing registration No.AP-23/C-1901, AP-23/C-2360
being driven by its driver in rash and negligent manner
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dashed the motorcycle resulting in the said Imamsab
sustaining grievous injuries and succumbed to death on
the spot. Thereafter, a case in Crime No.247/2014 was
registered and thereupon a claim petition was filed seeking
compensation of Rs.40,00,000/- under Section 166 of the
Motor Vehicles Act, 1988, on the premise that the
deceased was earning Rs.25,000/- p.m. and was
contributing his income to the family. An untimely death of
the deceased has caused financial and emotional distress
to the claimants.
(b) Though notice was served on the Respondent
No.1, he remained absent and placed ex-parte and
respondent No.2-Insurance Company appeared through
counsel and filed statement of objection denying the
contents of the petition, mode and manner of the accident
and also contended that the insured/offending vehicle has
been falsely implicated in the case.
(c) Based on the pleadings the tribunal framed the
issues and recorded the evidence. The appellant/claimant
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No.1 has examined as PW.1, and one eye-witness
namely, Dastagir S/o Babumiyan Ladaf has been
examined as PW.2 and 9 documents were exhibited and
marked as Ex.P1 to Ex.P9. On behalf of the respondents,
two witnesses have been examined as RW 1 and RW.2.
Five documents are marked as Exs.R1 to R5.
(d) On appreciation of material evidence, the
tribunal has held that the accident in question had
occurred on account of rash and negligent driving of the
driver of the Tractor and Trailer resulting in death of
Imamsab and after assessing the evidence has awarded
the compensation of Rs.12,58,000/- as noted above.
3. Assailing the same, Sri. Sanjeev Patil, learned
counsel for the appellants/claimants submits that the
deceased was earning Rs.25,000/- p.m., but the tribunal
has taken income of the deceased at Rs.8,000/- p.m.
which is on the lower side. He submits that tribunal has
not awarded any compensation under the conventional
heads, such as 'loss of consortium' and 'loss of future
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prospects'. Hence, seeks for enhancement of
compensation.
4. Sri. Sudarshan M, learned counsel for the
respondent/Insurance Company reiterating the grounds
urged in the memorandum of appeal submits that in the
complaint and in the first information report there was no
mention with regard to number or name of the vehicle. He
submits that even the eye-witness in the cross-
examination has admitted that he did not disclose the
number of the vehicle when his statement was recorded
by the Police. Thus, he submits that these circumstances
would indicate that offending vehicle has been falsely
implicated, thereby breaching the terms of the policy.
Hence, seeks for exoneration. As regards the quantum of
compensation he submits that tribunal has rightly taken
Rs.8,000/- p.m. as income of the deceased and has
awarded just compensation warranting no interference.
5. Heard the learned counsel for the parties and
perused the records.
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6. The twin points that arise for consideration is;
(1) Whether the appellants/claimants are
entitled for enhancement of
compensation?
(2) Whether the tribunal was justified in
fastening the liability on the
appellant/Insurance Company?.
7. Accident in question had occurred at about 9.30
p.m. on 25.06.2014 and the complaint and FIR has been
registered on 26.06.2014 at 1.00 a.m.. There is no delay
in filing the FIR. In the complaint and in the FIR the
description of the vehicle is shown as Tractor and Trailer.
It is only thereafter the number of the Tractor and Trailer
and the names of the driver and the owner of the
offending vehicle has been identified by the Investigating
Officer. IMV has been conducted and offending vehicle has
been subjected to inspection. Merely because the
registered number of the vehicle and the name of the
driver of the vehicle was not mentioned in the complaint
or in the FIR, it cannot be said that there is a case of false
implication. More particularly, when the eye-witness has
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been examined as PW.2 who in his deposition has
categorically stated that he was proceeding on motorcycle
behind the deceased Imamsab and he saw the deceased
Imamsab meeting with the accident involving a Tractor
and Trailer. It needs to be noted that the accident has
occurred at 9.30 p.m. In such a situation, it is quite
normal that a person around the accident would not be in
a position to note down everything including the name of
the driver or the register number of the Tractor and
Trailer. More so, when it is a case that the driver of the
Tractor and Trailer had fled the scene. Once the complaint
is lodged it is for the Investigating Officer to investigate
and to file the report which has been done in this case. If
the Insurance Company had found any anomaly or
concoction in the report, nothing prevented the Insurance
Company to have summon the Investigating Officer and
put him for cross-examination. Nothing has been done to
discredit the material evidence placed on record by the
claimants including the deposition of PW.2. In that view of
the matter the only contention urged by the Insurance
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Company with regard to false implication of the vehicle
cannot be countenanced.
8. As regards the claim of the claimants for
enhancement, though it is contended by the claimants that
deceased was earning Rs.25,000/- p.m. no evidence in
this regard has been produced. Accident is of the year
2014. The Tribunal has assessed the notional income of
the deceased at Rs.8,000/- p.m. the appears to be just
and proper warranting no interference. However, the
Tribunal has not awarded future prospects at 40% as per
the law laid down by the Apex Court in the case of
National Insurance Company Limited vs. Pranay
Sethi and Others -2017 ACJ 2700. Further the
deceased has left behind 5 dependents and deduction
ought to have been 1/4th instead of 1/3rd. Considering
the age of the deceased 30 years at the time of accident
appropriate multiplier '17' is applicable as per the Chart
prepared by the Karnataka Legal Services Authority.
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9. Calculated as above, the appellants/claimants
would be entitled for a sum of Rs.16,06,500/- (Rs.7,875
X 12 X 17) (Rs.7,500 X 40%=Rs.3,000+Rs.7500=
Rs.10,500-1/4= Rs.7875) towards 'loss of dependency'
instead of Rs.10,88,000/- as awarded by the Tribunal.
10. In terms of the law laid by the Apex Court in
the case of Magma General Insurance Company
Limited vs. Nanu Ram Alias Chuhru Ram and others
- (2018) 18 SCC 130 and clarified by its judgment in the
case of United India Insurance Co. Ltd., v. Satinder
Kaur alias Satwinder Kaur and others, reported in
AIR 2020 SC 3076, the claimant No.1 being the wife and
claimant Nos. 2 and 3 being the parents of the deceased
are entitled for Rs.40,000/- each towards 'loss of spousal
consortium and parental consortium'. That apart they are
also entitled for Rs. 15,000/- towards 'loss of estate' and
Rs.15,000/- towards 'funeral expenses'. Claimants are also
entitled for 10% interest on the conventional heads.
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11. Thus, in total the appellants/claimants are
entitled for compensation of Rs.18,55,500/- instead of
Rs.12,58,000/- as awarded by the Tribunal, which is as
under:
Sl. By By
Heads
No. Tribunal this Court
1 Towards Love and affection Rs. 1,00,000/- -
2 Towards loss of consortium Rs. 40,000/- Rs. 2,00,000/-
3 Towards funeral expenses Rs. 15,000/- Rs. 15,000/-
4 Toward loss of dependency Rs. 10,88,000/- Rs.16,06,500/-
5 Loss of estate Rs. 15,000/- Rs. 15,000/-
6 On conventional heads - Rs. 19,000/-
Total Rs.12,58,000/- Rs.18,55,500/-
12. For the foregoing reasons, following:
ORDER
a) The appeal in MFA No.201336/2019 filed by the
appellants is partly allowed and appeal in MFA
No.200750/2019 filed by the Insurance
Company is dismissed.
b) The appellants/claimants are entitled for a total
compensation of Rs.18,55,500/- instead of
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Rs.12,58,000/- awarded by the Tribunal with
interest at the rate of 6% per annum from the
date of claim petition till realization.
c) Respondent No.2/Insurance Company shall pay
the aforesaid compensation amount within an
outer limit of four weeks from the date of
receipt of certified copy of this judgment.
d) Amount in deposit if any shall be transmitted to
the trial Court with original records.
e) The award of the Tribunal is modified
accordingly.
Sd/-
JUDGE
RU
