Karnataka High Court

Chandsab @ Chodaso S/O Ambri Mulani And ... vs Rajak S/O Admin Mulani And Anr on 18 April, 2024

Author: H.T.Narendra Prasad

Bench: H.T.Narendra Prasad

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                                                          MFA No.200237 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.200237 OF 2022 (MV-D)

                      BETWEEN:

                      1.   CHANDSAB @ CHODASO
                           S/O AMBRI MULANI
                           AGE: 50 YEARS, OCC: NIL

                      2.   RASHIDA W/O CHANDASAB
                           @ CHODASO MULANI
                           AGE: 45 YEARS, OCC: NIL

                           ALL ARE R/O. SHAIKH COLONY
                           VIJAYAPURA - 586 108.
Digitally signed by
                                                                   ...APPELLANTS
BASALINGAPPA
SHIVARAJ
DHUTTARGAON
Location: HIGH        (BY SRI SANGANAGOUDA V.BIRADAR, ADVOCATE)
COURT OF
KARNATAKA

                      AND:

                      1.   RAJAK
                           S/O AMIN MULANI
                           AGE: 45 YEARS
                           OCC: BUSINESS
                           R/O. DONAJ
                           TALUK: MANGALWEDHA
                           DISTRICT: SOLAPUR - 413 319.
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                                  MFA No.200237 of 2022




2.   THE BRANCH MANAGER
     ORIENTAL INSURANCE COMPANY LIMITED
     1ST FLOOR, BIDARI COMPLEX
     S.S. FRONT ROAD
     VIJAYAPURA - 586 101.
                                          ...RESPONDENTS

(BY SRI SANJAY M. JOSHI, ADVOCATE FOR R2;
V/O DATED 20.03.2024 NOTICE TO R1 IS DISPENSED WITH)

      THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO ALLOW THIS APPEAL AND
ENHANCE THE COMPENSATION AS CLAIMED IN THE CLAIM
PETITION BY MODIFYING THE JUDGMENT AND AWARD DATED
12.05.2021 PASSED BY THE COURT OF IV ADDITIONAL
DISTRICT AND SESSIONS JUDGE AND MEMBER, M.A.C.T.-XIII,
AT VIJAYAPURA IN M.V.C.NO.502/2015, IN THE INTEREST OF
JUSTICE AND EQUITY.

      THIS MFA COMING ON FOR ADMISSION THIS DAY,
H.T.NARENDRA PRASAD J., DELIVERED THE FOLLOWING:


                      JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 has been filed by the claimants being

aggrieved by the judgment and award dated 12.05.2021

passed by the IV Addl. District and Sessions Judge and

Member, MACT-XIII, Vijayapura in MVC No.502/2015.

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2. Facts giving rise to the filing of the appeal

briefly stated are that, on 18.10.2014 at 12:00 hours near

Kamti village, deceased Ambir was traveling as a pillion

rider on motorcycle bearing Reg.No.MH-13-BS-2904, the

rider of the motorcycle drove the vehicle in high speed, in

a rash and negligent manner, endangers to human life and

unable to control it and turtle the same causing accident.

As a result, deceased sustained grievous injuries and

immediately he was shifted to Civil Hospital, Solapur,

wherein he was treated as in-door patient and he died

during the course of treatment. The deceased was aged

25 years at the time of accident and working in a private

service and was earning Rs.10,000/- p.m. and contributing

the same to his family.

3. The claimants being the dependents of the

deceased filed claim petition under Section 166 of the

Motor Vehicles Act seeking compensation for the death of

deceased along with interest.

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4. On service of summons, the respondent No.1

remained absent and hence placed ex parte. Respondent

No.2 appeared through counsel and filed its written

statement denying the petition averments.

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.2 as PW-1 and another witness as

PW-2 and got exhibited documents namely, Ex.P1 to

Ex.P13. One on behalf of respondents, one witness is

examined as R.W.1 and a copy of the insurance policy is

marked as Ex.R.1. The Claims Tribunal, by the impugned

judgment inter alia held that the accident took place on

account of rash and negligent riding of the offending

vehicle by its rider, as a result of which, the deceased,

being pillion rider sustained injuries and succumbed to the

said injuries. The Tribunal further held that the claimants

are entitled to a compensation of Rs.8,04,853/- along with

interest at the rate of 6% p.a. and directed the respondent

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No.2 to deposit the entire compensation along with

interest though holding that the deceased himself was

negligent to the extent of 20% in causing the accident.

Being aggrieved by the same, this appeal has been filed.

6. Learned counsel Sri Sanganagouda V. Biradar,

the learned counsel appearing for the claimants contended

that deceased was traveling as a pillion rider and due to

negligence of rider of the offending motorcycle, he fell

down and sustained injuries and succumbed to the same.

The Tribunal after holding that the rider of the motorcycle

was negligent in causing the accident erred in fastening

liability to the extent of 20% on the deceased as he has

contributed negligence in causing the accident. He further

contended that at the time of the accident, the deceased

was earning Rs.9,492/- per month as a Junior Assistant

working in Manappuram Finance Limited and in support of

this claimants have produced and got marked the Salary

Certificate at Ex.P.8. But, the Tribunal has considered the

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notional income of the deceased as Rs.7,500/-, the same

is on the lower side.

7. Secondly, 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], 50% of the income of the

deceased has to be added towards his monthly income

while granting compensation under the head 'loss of future

prospects'.

8. Thirdly, as per the judgment of the Hon'ble

Supreme Court in the case of MAGMA GENERAL

INSURANCE CO. LTD. -V- NANU RAM [2018 ACJ 2782],

each of the claimants herein are entitled for compensation

of Rs.40,000/- under the head of 'loss of filial consortium'.

9. Lastly, considering the age and avocation of the

deceased, the overall compensation awarded by the

Tribunal is on the lower side. Hence, he prays for allowing

the appeal.

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10. On the other hand, Sri Sanjay M. Joshi, the

learned counsel for the Insurance Company has raised the

following counter-contentions:

11. Firstly, it is contended that it is an admitted fact

that the rider of the motorcycle was proceeding along with

two pillion riders. Thus, since three persons were riding

on the offending motorcycle, they have violated the

provisions of Motor Vehicles Act and therefore, since the

insured has violated the policy conditions, the Tribunal has

rightly fastened 20% liability on the deceased holding that

the deceased has contributed in causing the acceding by

traveling three persons on the motorcycle.

12. Secondly, even though the claimants claim that

the deceased was earning Rs.9,492/- per month, the same

is not established by the claimants by producing

documents. But the claimants examined the Employer of

the Finance as P.W.2 to prove that, the deceased was

getting monthly income of Rs.9,492/- by working as Junior

Assistant in the said finance company. Therefore, the

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Tribunal has rightly assessed the income of the deceased

at Rs.7,500/- p.m.

13. Thirdly, since the claimants have not

established the income of the deceased, the Tribunal has

rightly not awarded compensation under the head 'loss of

future prospects'.

14. Lastly, 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.

15. Heard the learned counsel for the parties and

perused the judgment and award of the Tribunal.

16. It is not in dispute that on 18.10.2014 at 12:00

hours near Kamti village, deceased Ambir was traveling as

a pillion rider on motorcycle bearing Reg.No.MH-13-BS-

2904, rider of the motorcycle rode the vehicle in speed, in

a rash and negligent manner, endangers to human life and

unable to control it and turtle the same and caused

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accident and deceased was sustained grievous injuries and

immediately he was shifted to Civil Hospital, Solapur,

there he was treated as in-door patient and he died during

course of treatment.

17. It is not in dispute that the insured was riding

the vehicle with two pillion riders. Under Motor Vehicles

Act, driving of a motorcycle by three persons is an offence

but the Tribunal has answered issue No.1 in the

Affirmative holding that the rider of the motorcycle alone

is negligent in causing the accident. Under such

circumstances, the Tribunal erred in fastening 20% of the

liability only because he was traveling along with rider and

another pillion rider on the motorcycle. Unless it is proved

that the deceased was contributed to the accident, it

cannot be held that he is not entitled for compensation to

the extent of 20%. Under those circumstances, we are of

the opinion that the finding given by the Tribunal that the

deceased contributed 20% to the accident is

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unsustainable. The driver of the offending vehicle is alone

negligent in causing the accident

18. In respect of the quantum of compensation, it is

the specific case of the claimants that the deceased was

working as Junior Assistant in Manappuram Finance

Limited and to evidence the same the claimants have

produced Salary Certificate of the deceased and same is

marked at Ex.P.8. The said Salary Certificate pertains to

the month of July, 2013. On perusal of the same, the

total monthly income of the deceased was shown as

Rs.9,492/-. After deduction of Rs.243/- i.e. Loss of Pay

(LOP) and Rs.500/- i.e., other deductions, the monthly

income comes to Rs.8,749/-. Accordingly, monthly income

of the deceased is considered at Rs.8,749/-. At the time

of accident, the deceased was aged about 28 years. To

the aforesaid income, 40% 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 of the

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deceased comes to Rs.12,248/- [Rs.8,749/- + 40%

(Rs.3,499/-)]. The Tribunal taking not that since the

deceased was bachelor at the relevant point of time has

rightly deducted 50% of the income towards his personal

expenses. Taking the age of the deceased as 28 years, the

applicable multiplier is '17'. Thus, the claimants are

entitled to compensation of Rs.12,49,296/- (Rs.12,248/-

less 50%=Rs.6,124/-*12*17*) on account of 'loss of

dependency'.

19. 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'.

20. In view of the law laid down by the Supreme

Court in the case of 'MAGMA GENERAL INSURANCE'

(supra), claimant Nos.1 and 2 being the parents of the

deceased are entitled for compensation of Rs.40,000/-

each under the head 'loss of filial consortium'. The

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compensation awarded under the head 'medical expenses'

is retained.

21. Thus, the claimants are entitled to the following

compensation:

             Compensation under                 Amount in
               different Heads                    (Rs.)

            Loss of dependency                   12,49,296/-

            Funeral expenses                           15,000/-

            Loss of estate                             15,000/-

            Loss of Filial consortium                  80,000/-

            Medical expenses                            9,853/-

                             Total             13,69,149/-

22. In the result, the following order is passed: