Karnataka High Court
Smt. Ranjana And Anr vs Sri Abasaheb And Anr on 18 April, 2024
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
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MFA No.200521 of 2022
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF APRIL, 2024
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE K V ARAVIND
MISCL. FIRST APPEAL NO.200521 OF 2022 (MV-D)
BETWEEN:
1. SMT. RANJANA
W/O SHIVAJI GAVADE
AGED ABOUT 37 YEARS
OCC: COOLIE
2. SRI CHINGU @ CHINGUBAI
W/O SADASHIV GAVADE
AGED ABOUT 72 YEARS
OCC: NIL
Digitally signed by BOTH ARE R/O GHERADI
BASALINGAPPA
SHIVARAJ TQ: SANGOLA, DIST: SOLAPUR
DHUTTARGAON
Location: HIGH NOW RESIDING AT
COURT OF TAKE, VIJAYAPUR - 586 101.
KARNATAKA
...APPELLANTS
(BY SRI S.S. MAMADAPUR, ADVOCATE)
AND:
1. SRI ABASAHEB
S/O RAJARAM PAWAR
AGED ABOUT 47 YEARS
OCC: BUSINESS
R/O AWAHALWADI WAGHULI
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MFA No.200521 of 2022
TQ: HAVELI
PUNE - 412 207
MAHARASHTRA.
2. THE BRANCH MANAGER
I.C.I.C.I. LOMBARD GENERAL
INSURANCE CO. LTD
RAM MANDIR ROAD
VIJAYAPURA - 586 101.
...RESPONDENTS
(BY SRI SUBHASH MALLAPUR, ADVOCATE FOR R2;
V/O DATED 22.02.2023 NOTICE TO R1 DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO ENHANCE THE
COMPENSATION AMOUNT BY SUITABLY MODIFYING THE
JUDGMENT AND AWARD DATED 27.11.2021 PASSED BY THE
HON'BLE II ADDITIONAL SENIOR CIVIL JUDGE AND M.A.C.T.-
VII, VIJAYPUR IN M.V.C. NO.634/2019, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS MFA COMING ON FOR ADMISSION THIS DAY
H.T.NARENDRA PRASAD J., DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal under Section 173(1) of the Motor
Vehicles Act, 1988 (hereinafter referred to as 'the Act', for
short) has been filed by the claimants being aggrieved by
the judgment and award dated 27.11.2021 passed by the
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II Additional Senior Civil Judge and MACT-VII, Vijayapura
in MVC No.634/2019.
2. Facts giving rise to the filing of the appeal briefly
stated are that on 15.04.2019, when the deceased Shivaji
S/o Sadashiv Gavade was proceeding on bearing
registration No.MH-04/K-7300 from Gheradi to Jevala. At
about 4.10 p.m., at that time, a TATA trailer bearing
registration No.MH-12/FZ-3815 which was being driven in
a rash and negligent manner, dashed against the
deceased. As a result of the aforesaid accident, the
deceased sustained grievous injuries and succumbed to
the injuries.
3. The claimants filed a petition under Section 166 of
the Act seeking compensation for the death of the
deceased along with interest.
4. On service of summons, the respondent No.2
appeared through counsel and filed written statement
denying the averments made in the claim petition. The
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respondent No.1 did not appear before the Tribunal inspite
of service of notice and hence was placed ex-parte.
5. On the basis of the pleadings of the parties, the
Claims Tribunal framed the issues and thereafter recorded
the evidence. The claimants, in order to prove the case,
examined claimant No.1 as PW-1 and got exhibited
documents namely Ex.P1 to Ex.P9. On behalf of
respondents, neither examined any witness nor exhibited
any document. The Claims Tribunal, by the impugned
judgment, inter alia, held that the accident took place on
account of rash and negligent driving of the offending
vehicle by its driver, as a result of which, the deceased
sustained injuries and succumbed to the injuries. The
Tribunal further held that the claimants are entitled to a
compensation of Rs.11,18,000/- along with interest at the
rate of 6% p.a. and directed the respondent No.1 to
deposit the compensation amount along with interest.
Being aggrieved, this appeal has been filed.
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6. The learned counsel for the claimants has raised the
following contentions:
a) Firstly, even though the Tribunal held that driver of
the offending vehicle was not having valid and effective
driving licence as on the date of accident and the insured
has violated the policy conditions, in view of the judgment
of the Hon'ble Apex Court in the case PAPPU AND
OTHERS VS. VINOD KUMAR LAMBA AND ANOTHER,
[(2018) 3 SCC 208] and the decision of the Full Bench
judgment of this Court in the case of NEW INDIA
ASSURANCE CO. LTD. BIJAPUR VS. YALLAVVA AND
ANOTHER [ILR 2020 KAR.2239] in respect of claimant
is concerned, the Insurance Company has to pay
compensation and later recover the same from the owner
of the offending vehicle. The Tribunal erred in exonerating
the Insurance Company from the liability.
b) Secondly, in respect of quantum, he contended that
at the time of the accident, the deceased was earning
Rs.20,000/- per month. The Tribunal has assessed the
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notional income of the deceased at Rs.9,000/- per month
which is on the lower side.
c) Thirdly, as per the law laid down by the Hon'ble
Supreme Court in the case of NATIONAL INSURANCE CO.
LTD. -v- PRANAY SETHI AND OTHERS [AIR 2017 SC
5157], 25% of the income of the deceased has to be
added towards future prospects.
d) Lastly, as per the judgment of the Hon'ble Supreme
Court in the case of MAGMA GENERAL INSURANCE CO.
LTD. -V- NANU RAM AND OTHERS [2018 ACJ 2782], each
of the claimants are entitled for compensation of
Rs.40,000/- under the head of 'loss of love and affection
and consortium'. Hence, he prays for allowing the appeal.
7. On the other hand, the learned counsel for the
Insurance Company has raised the following counter-
contentions:
a) Firstly, it is not in dispute that owner of the offending
vehicle was not having valid and effective driving licence
since the insured has violated the policy conditions, the
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Insurance Company is not liable to pay compensation.
Therefore, the Tribunal has rightly exonerated the
Insurance Company from the liability of paying
compensation.
b) Secondly, even though the claimants claim that the
deceased was earning Rs.20,000/- per month, the same is
not established by the claimants by producing documents.
Therefore, the Tribunal has rightly assessed the income of
the deceased notionally.
c) Thirdly, since the claimants have not established the
income of the deceased, they are not entitled for
compensation towards 'future prospects'.
d) Fourthly, on appreciation of oral and documentary
evidence and considering the age and avocation of the
deceased, the overall compensation awarded by the
Tribunal is just and reasonable. Hence, he prays for
dismissal of the appeal.
8. Heard the learned counsel for the parties and
perused the judgment and award of the Tribunal.
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9. It is not in dispute that deceased-Shivaji died in the
road traffic accident occurred on 15.04.2019 due to rash
and negligent driving of the offending vehicle by its driver.
The Tribunal has given a finding that the driver of the
offending vehicle was not holding valid and effective
driving licence and exonerated the Insurance Company
from the liability of paying compensation on the ground
that the insured has violated the policy conditions.
However, in view of the judgment of the Hon'ble Apex
Court in the case of PAPPU (supra) and full bench
decision of this Court in the case of YALLAVVA (supra), in
respect of third parties are concerned, the Insurance
Company has to pay the compensation with liberty to
recover the same since the offending vehicle is covered by
the valid insurance policy, therefore, the Insurance
Company is liable to pay compensation amount with librty
to recover the same from the owner of the offending
vehicle.
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10. In respect of quantum, the claimants claim that
deceased was earning Rs.20,000/- per month. But they
have not produced any documents to prove the income of
the deceased. In the absence of proof of income, the
notional income has to be assessed. As per the guidelines
issued by the Karnataka State Legal Services Authority,
for the accident taken place in the year 2019, the notional
income of the deceased has to be taken at Rs.13,250/-
p.m. To the aforesaid income, 25% has to be added on
account of future prospects in view of the law laid down by
the Constitution Bench of the Supreme Court in 'PRANAY
SETHI' (supra). Thus, the monthly income comes to
Rs.16,563/-. The Tribunal has rightly deducted 1/3rd of the
income of the deceased towards his personal expenses.
The deceased was aged about 45 years at the time of the
accident and multiplier applicable to his age group is '14'.
Thus, the claimants are entitled to compensation of
Rs.18,55,056/- (Rs.11042x12x14) on account of 'loss of
dependency'.
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11. In addition, the claimants are entitled to
compensation of Rs.15,000/- on account of 'loss of estate'
and compensation of Rs.15,000/- on account of 'funeral
expenses'.
12. The compensation awarded by the Tribunal under the
head of 'loss of consortium' is just and reasonable.
13. Thus, the claimants are entitled to the following
compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 18,55,056
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of Filial consortium 40,000
Total 19,65,056
14. In the result, the following order is passed:
ORDER
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a) The appeal is allowed in part.
b) The judgment of the Claims Tribunal is modified.
c) The claimants are entitled to a total
compensation of Rs.19,65,056/- as against
Rs.11,18,000/- awarded by the Tribunal.
d) The Insurance Company is directed to deposit
the compensation amount along with interest at 6%
p.a. from the date of filing of the claim petition till
the date of realization, within a period of six weeks
from the date of receipt of copy of this judgment.
e) The apportionment, deposit and release of
amount shall be made in terms of the award of the
Tribunal.
Sd/-
JUDGE
Sd/-
JUDGE
VNR
