Karnataka High Court
The Divisional Manager vs Asma Begum And Ors on 28 November, 2023
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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NC: 2023:KHC-K:8882
MFA No. 200040 of 2020
C/W MFA No. 200041 of 2020
MFA.CROB No. 200095 of 2023
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
MISCL. FIRST APPEAL NO. 200040 OF 2020 (MV-D)
C/W
MISCL. FIRST APPEAL NO. 200041 OF 2020
MFA CROSS OBJ NO. 200095 OF 2023
IN MFA NO. 200040 OF 2020.
BETWEEN:
THE DIVISIONAL MANAGER
NATIONAL INSURANCE CO. LTD.,
DIVISION OFFICE, 1ST FLOOR,
BILGUNDI COMPLEX,
OPP. MINI VIDHAN SOUDHA,
Digitally signed KALBURGI,
by LUCYGRACE
DIST. KALBURGI-585101.
Location: HIGH
COURT OF
KARNATAKA ...APPELLANT
(BY SRI. SANJAY M. JOSHI, ADVOCATE)
AND:
1. ASMA BEGUM
W/O LATE ATEEQ AHAMED,
AGE:34 YEARS, OCC: HOUSEHOLD,
2. SHAHEED ALTAF
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MFA No. 200040 of 2020
C/W MFA No. 200041 of 2020
MFA.CROB No. 200095 of 2023
S/O LATE ATEEQ AHAMED,
AGE:15 YEARS, OCC: STUDENT,
3. ALTAMASH
S/O LATE ATEEQ AHAMED,
AGE:14 YEARS, OCC: STUDENT,
4. GULNAAZ
D/O LATE ATEEQ AHAMED
AGE: 12 YEARS, OCC: STUDENT,
RESPONDENTS NO 2 TO 4 BEING MINORS UNDER,
GUARDIANSHIP OF THEIR NATURAL MOTHER,
ALL PETITIONERS ARE,
R/O H NO.37-157, SHAH NAGAR GALLI,
BASAVKALYAN,
DISTRICT BIDAR-585403.
5. MR. MUJEEB UR REHMAN BADAL
AGE: MAJOR, OCC: BUSINESS,
OWNER HITACHI CHESDUS NO 140303,
R/O 1-52/A/5-3, ASIAN MALL ROAD,
BEHIND ASIAN MALL,
ASIAN GARDEN,
KALBURGI,
DIST. KALBURGI-585102.
6. ZIYA
S/O ZAFAR SAB KAMALAPURE,
AGE: MAJOR, OCC: BUSINESS,
OWNER OF LORRY REG NO
R/O HOUSE NO 5 DHARAM PETV COLONY,
MANTHAL,
TQ. BASAVKALYAN,
DISTRICT BIDAR-585403.
7. THE MANAGER
RELIANCE GENERAL INSURANCE CO LTD.,
NO 48 BLOCK, ASIAN PLAZA,
BEAR SVP CHOWK, STATION ROAD,
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MFA No. 200040 of 2020
C/W MFA No. 200041 of 2020
MFA.CROB No. 200095 of 2023
KALBURGI-585102.
...RESPONDENTS
(BY SRI. KRUPA SAGAR PATIL, ADVOCATE FOR R1 TO R4;
R2 TO R4 ARE MINORS;
SRI. SUBHASH MALLAPUR, ADVOCATE FOR R7)
THIS MFA IS FILED UNDER SECTION 173 (1) OF MOTOR
VEHICLES ACT, PRAYING TO IMPUGNED JUDGMENT AND
AWARD IN MVC NO.179/2017 DATED 07.08.2019 OF THE II
ADDITIONAL DISTRICT JUDGE AND MACT, BIDAR SITTING AT
BASAVKALYAN, AWARDING RS.13, 30,000/- WITH INTEREST
THEREON AT 9% AND SET ASIDE THE JUDGMENT AND AWARD
AS AGAINST THE APPELLANT INSURANCE COMPANY AND
ALTERNATELY IF THE SAID PRAYER IS FOR ANY REASON
REJECTED IT IS PRAYED THAT THE SAID JUDGMENT AND
AWARD BE KINDLY MODIFIED BY RESTRICTING THE LIABILITY
UPON THE OWNER OF INSURED VEHICLE RESPONDENT NO.1
ONLY TO 50% AND REMAINING LIABILITY BE EQUALLY
APPORTIONED UPON THE ORIGINAL RESPONDENTS 3 AND
ALSO CONSEQUENTLY UPON ORIGINAL RESPONDENT NO.4.
IN MFA NO. 200041 OF 2020.
BETWEEN:
THE DIVISIONAL MANAGER
NATIONAL INSURANCE CO. LTD.,
DIVISION OFFICE, 1ST FLOOR,
BILGUNDI COMPLEX,
OPP: MINI VIDHAN SOUDHA,
KALBURGI,
DIST. KALBURGI-585101.
...APPELLANT
(BY SRI. SANJAY M. JOSHI, ADVOCATE)
AND:
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NC: 2023:KHC-K:8882
MFA No. 200040 of 2020
C/W MFA No. 200041 of 2020
MFA.CROB No. 200095 of 2023
1. PASHA MIYAN
S/O CHANDSAB MASULDAR,
AGE: 55 YEARS, OCC: REAL ESTATE BUSINESS,
AGRICULTURE,
R/O: BLOCK NO. 28, MADINA MANZIL,
OLD KHB COLONY NEAR HARALAYYA CHOWK,
BASAVKALYAN,
TQ. BASAVKALYAN,
DISTRICT BIDAR- 585401.
2. MR. MUJEEB UR REHMAN BASAL
AGE: MAJOR, OCC: BUSINESS,
OWNER HITACHI CHESDUS NO. 140303,
R/O: 1-52/A/5-3,
ASIAN MALL ROAD,
BEHIND ASIAN MALL, ASIAN GARDEN,
KALBURGI,
DIST. KALBURGI-585103.
3. ZIYA
S/O ZAFAR SAB KAMALAPURE,
AGE: MAJOR, OCC: BUSINESS,
OWNER OF LORRY REG. NO. 56 82,
R/O: HOUSE NO. 5 DHARAM PETV COLONY,
MANTHAL, TQ. BASAVKALYAN,
DISTRICT BIDAR.
4. THE MANAGER
RELIANCE GENERAL INSURANCE CO. LTD.,
NO. 48 BLOCK, ASIAN PLAZA BEAR SVP CHOWK,
STATION ROAD, KALBURGI-585102.
...RESPONDENTS
(BY SRI. KRUPA SAGAR PATIL, ADVOCATE FOR R1;
R2 SERVED;
SRI. SUBHASH MALLAPUR, ADVOCATE FOR R4)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO CALL FOR THE ENTIRE RECORDS
IN IMPUGNED JUDGMENT AND AWARD IN MVC NO.181/2017
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MFA No. 200040 of 2020
C/W MFA No. 200041 of 2020
MFA.CROB No. 200095 of 2023
DATED 07.08.2019 OF THE II ADDITIONAL DISTRICT JUDGE
AND MACT, BIDAR, SITTING AT BASAVKALYAN, AWARDING
RS.4,85,000/- WITH INTEREST THEREON AT 9% AND SET
ASIDE THE JUDGMENT AND AWARD AS AGAINST THE
APPELLANT INSURANCE COMPANY AND ALTERNATIVELY IF
THE SAID PRAYER IS FOR ANY REASON REJECTED IT IS
ALTERNATELY PRAYED THAT THE SAID JUDGMENT AND AWARD
BE KINDLY MODIFIED BY RESTRICTING THE LIABILITY UPON
THE OWNER OF THE INSURED VEHICLE VIZ ORL RESP NO.1
ONLY AND BALANCE OF 50% LIABILITY BE EQUALLY
APPORTIONED UPON ORIGINAL RESPONDENT NO.3 AND ALSO
CONSEQUENTLY UPON ORIGINAL RESPONDENT NO.4.
IN MFA CROSS OBJ NO. 200095 OF 2023.
BETWEEN:
1. ASMA BEGUM
W/O LATE ATEEQ AHMED,
AGE: 38 YEARS, OCC: HOUSEHOLD,
2. SHAHEED ALTAF
S/O LATE ATEEQ AHMED,
AGE: 19 YEARS, OCC: STUDENT,
3. ALTAMASH
S/O LATE ATEEQ AHMED,
AGE: 18 YEARS, OCC: STUDENT,
4. GULNAAZ
D/O LATE ATEEQ AHMED,
AGE: 16 YEARS, OCC: STUDENT,
CROSS OBJECTOR NO. 4 IS MINOR U/G OF,
REAL MOTHER, I.E.,
THE CROSS OBJECTOR NO. 1,
ALL ARE RESIDENCE OF H.NO. 37-157,
SHAHNAGAR GALLI,
BASAVAKALYAN,
DIST. BIDAR.
...CROSS OBJECTORS
(BY SRI. KRUPA SAGAR PATIL, ADVOCATE)
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MFA No. 200040 of 2020
C/W MFA No. 200041 of 2020
MFA.CROB No. 200095 of 2023
AND:
1. MUJEEB UR REHMAN BADAL
AGE: MAJOR,
OCC: BUSINESS AND OWNER OF HITACHI,
VEHICLE BEARING CHASSIS NO. 140303,
R/O 1-52/A/5-3,
ASIAN MALL ROAD,
ASIAN GARDEN,
KALABURAGI-585102.
2. THE DIVISIONAL MANAGER,
NATIONAL GENERAL INSURANCE CO. LTD.,
1ST FLOOR, BELGUNDI BUILDING,
OPP. MINI VIDHAN SOUDHA,
KALABURAGI-585102.
3. ZIYA
S/O ZAFAR SAB KAMALAPURE,
AGE: MAJOR,
OCC: BUSINESS AND OWNER OF LORRY BEARING
NO.,
KA-56/2062,
R/O H.NO. 5, DHARAMPET COLONY,
MANTHAL,
TQ. BASAVAKALYAN,
DIST. BIDAR.
4. THE MANAGER,
RELIANCE GENERAL INSURANCE CO. LTD.,
NO. 48 BLOCK, ASIAN PLAZA,
NEAR SVP CHOWK, STATION ROAD,
KALABURAGI-585103.
...RESPONDENTS
(BY SRI. SANJAY M. JOSHI, ADVOCATE FOR R2;
SRI SUBHASH MALLAPUR, ADVOCATE FOR R4)
THIS MFA CROB IS FILED U/O. 41 RULE 22 , PRAYING TO
MODIFY THE JUDGMENT AND AWARD DATED 07-08-2019,
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MFA No. 200040 of 2020
C/W MFA No. 200041 of 2020
MFA.CROB No. 200095 of 2023
PASSED BY THE II ADDITIONAL DISTRICT JUDGE AND MACT,
BIDAR, SITTING AT BASAVAKALYAN, IN FILE BEARING M.V.C.
NO. 179/2017, BY ENHANCING THE COMPENSATION.
THESE APPEALS, COMING ON FOR ORDERS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. Appeal in MFA No.200040/2020 and appeal in
MFA No.200041/2020 is filed by Appellant-Insurance
Company and the MFA cross objection in MFA
No.200095/2023 is filed by the claimants being aggrieved
by the judgment and awards dated 08.09.2019 and
07.08.2019 passed in M.V.C.No.179/2017 and
M.V.C.No.181/2017 respectively on the file of the II
Additional District Judge and M.A.C.T, Bidar, sitting at
Basavakalyan seeking for enhancement of the award.
2. The brief facts of the case are that on 06.03.2017
at about 11.05 a.m., deceased Ateeq Ahamed S/o
Hafeezudfin aged about 44 years was proceeding in his car
bearing registration No.KA-56-M-20586 as a driver along
with one Pashamiya on NH-218 Industrial Area Humnabad.
At that time, one Hitachi vehicle bearing registration
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No.4H 2739/1620174 which was carrying out road repairs
without observing the traffic movement around dashed the
car of the deceased, at the same time another lorry
bearing registration No.KA-56-2062 which was coming
behind the car also dashed the said car resulting in car
turning turtle causing injuries to the deceased resulting his
death on the spot.
3. There upon claim petition was filed by the wife and
children of the deceased in M.V.C.No.179/2017 claiming
that the deceased was working as a driver earning
Rs.10,000/- per month and batta of Rs.200 per day.
Untimely death of the deceased which occurred on account
of the negligent driving of the hitachi vehicle by its driver
has caused financial and emotional distress to the
claimants. Hence, sought for compensation of
Rs.25,00,000/-.
4. One Pashamiya, who was traveling along with the
deceased in the said car has also filed claim petition in
M.V.C.No.181/2017 contending that in the accident he
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sustained injuries causing disabilities and discomfort and
sought for compensation of Rs.4,85,000/-.
5. On service of notice to the respondent No.1-Owner
of the hitachi vehicle and respondent No.3-Owner of lorry
were placed ex-parte. Respondent No.2-National
Insurance Company which had issued the policy in favour
of hitachi vehicle and respondent No.4-General Insurance
Company issued the policy in favour of lorry filed the
statement of objection denying the mode and manner of
the accident and contending that the deceased Ateeq
Ahamed did not possessed valid driving license and was
driving the car in rash and negligent manner and he had
contributed for the occurrence of the accident.
6. On these principle grounds sought for dismissal of
the claim petition. The Tribunal framed issues and
recorded the evidence, three witnesses have been
examined on behalf of the claimants namely Asma Begum
wife of deceased Ateeq Ahamed as PW-1, injured
claimant-Pashamiya as PW-2 and one doctor Yathiraj
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Biradar as PW-3 and exhibited 24 documents marked as
Ex-P1 to Ex-P24. One witness has been examined on
behalf of the respondent-Insurance company as RW-1 and
a document namely copy of the policy marked as R-1. The
tribunal on appreciating of the evidence came to the
conclusion that the accident in question had indeed
occurred on account of rash and negligent driving of the
offending hitachi vehicle by its driver resulting death of
deceased and injuries to the claimant-Pashamiya and
accordingly the partly allowed the claim petition by
granting award of Rs.13,30,000/- to the claimant-legal
representatives of the deceased Ateeq Ahamed and
Rs.4,85,000/- to the injured claimant-Pashamiya.
7. Being aggrieved by the same appellant-Insurance
company who had issued policy in favour of hitachi vehicle
is before this Court in the aforesaid two appeals and legal
representatives of the deceased are before this Court in
the MFA Cross-Objection No. 200095 OF 2023 seeking
enhancement of the compensation.
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8. Heard, Sri. Sanjay M. Joshi, learned counsel for the
appellant-The National Insurance Company and Sri. Krupa
Sagar Patil, learned counsel for the respondents/Cross
Objectors and also Sri. Subhash Mallapur, learned counsel
for the respondent-Reliance General Insurance Company.
9. The only contention urged by learned counsel for
the appellant-Insurance company is that the policy which
was issued in respect of hitachi vehicle was in the nature
of 'Traditional Business Special Contingency' insurance
policy and that the same would not cover the risk of the
third parties as coverable under the provisions of Motor
Vehicle Act. It is also contended that the hitachi machine
not being the motor vehicle, it is not required to be
compulsorily covered under the provisions of Motor Vehicle
Act for loss of any property or injury to third parties. That
since the policy is of the special nature, the same cannot
be invoked to cover the risk of third parties as done in the
instant case and that the Tribunal has failed to appreciate
this crucial aspect of the matter resulting in miscarriage of
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the justice. It is also contended that the charge sheet has
been filed against the drivers of all the three vehicle
involved in the matter and the tribunal aught to have
assessed the negligence on the part of all the drivers of
three vehicles. On these two grounds appeal is sought to
be allowed.
10. Sri. Krupa Sagar Patil, learned counsel for the
respondents/claimants justifying the order passed by the
tribunal fixing the liability on the appellant-Insurance
company submits that issue being raised by the appellant
is covered by the judgment of Divisional Bench of this
Court passed in M.F.A.No.200545/2018 dated 26.11.2021,
in the case of Iffco-Tokio General Vs Taslim Banu and
others. He submits that, in terms of the said decision
which was passed taking into consideration in the earlier
judgment would indicate that hitachi excavator which is
used for the construction activities is also considered as
motor vehicle within the meaning of the MV Act. Thus, he
submits that the said contention is no longer available to
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the appellants. As regards the contention of the negligence
is concerned, it is his submission that, the appellant-
Insurance Company has not led any cogent evidence with
regard to prove that there was any negligence on part of
the deceased Ateeq Ahamed, who was driving the vehicle.
He also refers to the judgment of the Apex Court in the
case of Khenyei vs New India Assurance Co. Ltd., &
Ors reported in AIR 2015 Supreme Court 2261 and
submits that even if there was a case of contributing
negligence, it is the choice of the claimants to go against
any of the offending vehicles involved accident.
11. As regards the grounds urged in the MFA Cross-
Objection No. 200095 OF 2023 seeking enhancement of
the compensation, he submits that the deceased was a
professional driver holding a valid driving license.
Therefore, it cannot be held that he was not earning any
amount. He submits that the Tribunal grossly erred in
arriving at a notional income of the deceased at
Rs.10,000/-. He submits that the Tribunal also has not
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awarded the compensation under the conventional heads,
which requires to be granted.
12. Heard. Perused the records.
13. As regards the first contention raised by the
appellant, in view of the judgment of Divisional Bench of
this Court passed in M.F.A.No.200545/2018 dated
26.11.2021, covering similar issue with regard to the
nature of excavator involved in the accident, even Sri.
Sanjay M. Joshi, learned counsel for the appellant-The
National Insurance Company fairly submits that the said
ground no more available and he would not press the said
ground.
14. Submission is taken on record.
15. As regard the negligence is concerned, learned
counsel for the appellant-The National Insurance Company
submits that since the charge-sheet was filed against the
drivers of all the three vehicles the tribunal aught to have
assessed and attributed the negligence on part of all the
three vehicles. It is necessary to note that negligence is a
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question of fact and as to be proved by producing cogent
and acceptable evidence. There is no eye-witness to the
incident, the witness who has been examined on behalf of
the respondent is the Administrative Officer who has
spoken from the records and has not seen/witnessed the
incident. The narration of the facts in the claim petition
and in the police records would indicate that the hitachi
vehicle was in operation on the road at the relevant time
and lorry was proceeding behind the car being driven by
the deceased Ateeq Ahamed. It is also revealed from the
record that hitachi vehicle hit the car at the first instance
and the lorry apparently attempting to avoid the accident
had hit the car from behind. In the fact situation of this
matter and in absence of any other material evidence, the
version of the claimant and the police records cannot be
discredited, wherein taking into consideration of the same
the tribunal has attributed the negligence on the part of
the driver of the hitachi vehicle. Since the aforesaid
aspect of the matter has not been disputed by the
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appellant-Insurance company by producing any material
evidence worth consideration, this Court is of the
considered view that the said finding and conclusion
awarded by the tribunal warrants any interference.
16. As such the grounds urged by the appellant-
Insurance Company in these two appeals cannot be
considered and appeals are rejected.
17. As regards the cross-objection is concerned, the
claimant was admittedly working as a driver holding valid
driving license, he was aged about 44 years. Therefore,
the assessment of income at Rs.10,000/- by the tribunal is
not justified. In the facts and circumstance of the matter,
this Court is of the view that the sum of Rs.12,000/- be
considered as the income, particularly in view of the fact
that the deceased was a driver, and as per chart multiplier
'14' is applicable.
18. Calculated as above loss of dependency of the
claimants would be;
(Rs.12,000/-X12X14X1/4=5,04,000/-)
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19. The tribunal has not awarded 'future prospects',
in terms of the law laid down by the Apex Court in the
case of National Insurance Company Limited vs.
Pranay Sethi and Others -2017 ACJ 2700 considering
the age of the deceased being 44, 25% of the income
needs to be added towards 'future prospects'. In addition
in terms of the law laid down by the Apex Court in the
case of in the case of MAGMA GENERAL INSURANCE
COMPANY LIMITED VS. NANU RAM ALIAS CHUHRU
RAM AND OTHERS reported in (2018) 18 SCC 130 the
Apex Court had also held that legal representatives of the
deceased are also entitled for compensation under the
heads of 'loss of consortium' at Rs.40,000/- each.
Claimants being dependents are entitled for Rs.15,000/-
each towards 'loss of estate' and 'funeral expenses' and
10% of the compensation under the conventional heads.
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(a) Appellants wife and children of the deceased are
entitled for a sum of Rs.1,20,000/- (Rs.40,000 x 4)
towards 'loss of consortium'.
(b) That apart the appellants/claimants would also be
entitled for a sum of Rs.15,000/- towards 'funeral
expenses' and a sum of Rs.15,000/- towards 'loss of
estate'.
20. Thus, in total the appellants/claimants are held
entitled for compensation of Rs.19,14,000/- instead of
Rs. 13,30,000/- as awarded by the Tribunal, which is as
under:
Sl.
Heads By Tribunal By This Court
No
1. Towards Loss of dependency Rs.12,60,000/- Rs.17,64,000/-
2. Other heads Rs.70,000 /- Nil
3. Towards loss of consortium - Rs.1,20,000/-
4. Loss of Estate - Rs.15,000/-
5. Towards funeral expenses - Rs.15,000/-
Total Rs.13,30,000/- Rs.19,14,000/-
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21. For the foregoing reasons, following:
ORDER
a) The Cross-Objection filed by the
claimants/Objectors is partly allowed subject to
condition that they shall not be entitled for the
interest for the delayed period of 408 days.
b) The appellants/claimants are entitled for a total
compensation of Rs.19,14,000/- instead of Rs.
13,30,000/- awarded by the Tribunal.
c) Appellant- The National Insurance Co Ltd., shall
pay the aforesaid compensation amount within an
outer limit of six weeks from the date of receipt of
certified copy of this judgment.
With the above observation, the appeals filed by the
Appellant-The National Insurance Co Ltd., are dismissed
and M.F.A. Cross-Objection filed by the claimants is partly
allowed.
Sd/-
JUDGE
RL
