Karnataka High Court
Rekha vs Zaheer Khan And Anr on 4 April, 2024
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
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MFA No.203711 of 2023
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 4TH 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.203711 OF 2023 (MV-D)
BETWEEN:
REKHA W/O RAJU KAMBLE
AGE: 54 YEARS
OCC: HOUSE WIFE
R/O SAVATGAVHAN
TQ: MALSHIRAS, DIST: SOLAPUR
NOW IN RAM NAGAR, VIJAYAPURA - 586 101.
...APPELLANT
(BY SRI KOUJALAGI CHANDRAKANT LAXMAN, ADVOCATE)
AND:
Digitally signed by 1. MR. ZAHEER KHAN
BASALINGAPPA
SHIVARAJ S/O S.H.GAFOOR
DHUTTARGAON
Location: HIGH
AGE: MAJOR
COURT OF
KARNATAKA OCC: BUSINESS
R/O SHOP NO.14, DDA COMPLEX
T.C. NEW SABZI MANDI, DELHI.
(OWNER OF TRUCK NO.HR-74/A-7490)
2. THE BRANCH MANAGER
THE ORIENTAL INSURANCE CO. LTD.
ABOVE S.B.I., S.S. ROAD
VIJAYAPURA, KARNATAKA - 586 101.
...RESPONDENTS
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R2
NOTICE TO R1 DISPENSED WITH)
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MFA No.203711 of 2023
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO MODIFY THE IMPUGNED
JUDGMENT AND AWARD DATED 12.04.2023 PASSED IN M.V.C.
NO.800/2019 ON THE FILE OF THE COURT OF IV ADDITIONAL
SENIOR CIVIL JUDGE AND MEMBER MOTOR ACCIDENT CLAIMS
TRIBUNAL NO.XV, VIJAYAPURA AT VIJAYAPURA AND ALLOW
THIS APPEAL GRANTING COMPENSATION AMOUNT BY
RS.22,00,900/- ONLY AS CLAIMED BY THE APPELLANTS
BEFORE THIS HON'BLE COURT.
THIS MFA COMING ON FOR ORDERS 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 claimant being aggrieved by
the judgment and award dated 12.04.2023 passed by the
IV Additional Senior Civil Judge and MACT-XV, Vijayapur in
MVC No.800/2019.
2. Facts giving rise to the filing of the appeal briefly
stated are that on 25.12.2017 at about 5.30 a.m., on
Akluj-Temburni road, when the deceased Raju Kamble
along with his two sons were proceeding on foot on the
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extreme edge of the road, at that time, one truck No.HR-
74/A-7490 came there being driven by its driver in high
speed and in rash and negligent manner and dashed to the
deceased Raju Kamble resulting in the accident. As a
result of the accident, the deceased sustained fatal injuries
and died on the spot.
3. The claimant 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
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 another witness as
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PW-2 and got exhibited documents namely Ex.P1 to Ex.P6.
The respondent No.2 has not examined any witness but
exhibited insurance policy 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
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.7,99,100/- along with
interest at the rate of 6% p.a. and directed the respondent
No.2 to deposit the compensation amount along with
interest. Being aggrieved, this appeal has been filed.
6. The learned counsel for the claimants has raised the
following contentions:
a) Firstly, as per the law laid down by the Hon'ble Apex
Court in the case of SARLA VERMA VS. DELHI
TRANSPORT CORPORATION [(2009) 6 SCC 121], the
Tribunal instead of deducting 1/3rd of the income of the
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deceased for personal expenses, wrongly deducted 50% of
the income of the deceased.
b) Secondly, 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], the claimant is entitled for compensation of
Rs.40,000/- under the head of 'loss of love and affection
and consortium'.
7. On the other hand, the learned counsel for the
Insurance Company has raised the following counter-
contentions:
a) Firstly, the claimant is only dependent of the
deceased. Hence, the Tribunal has rightly deducted 50%
of the income of the deceased for personal expenses.
b) Secondly, 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, she prays for
dismissal of the appeal.
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8. Heard the learned counsel for the parties and
perused the judgment and award of the Tribunal.
9. It is not in dispute that Raju Kamble died in the road
traffic accident occurred on 25.12.2017 due to rash and
negligent driving of truck bearing registration No.HR-74/A-
7490 by its driver. The claimant is the wife of the
deceased. Hence, in view of judgment of the Hon'ble
Supreme Court in the case of SARLA VERMA (supra)
1/3rd of the income of the deceased has to be deducted for
personal expenses instead of 50%. Accordingly, 1/3rd of
the income of the deceased has to be deducted for
personal expenses. The Tribunal has rightly assessed the
monthly income of the deceased at Rs.10,250/- and
rightly added 10% of the income for future prospects.
Even the Tribunal has rightly applied the multiplier of '11'
to his age group. Thus, the claimants are entitled to
compensation of Rs.9,92,244/- (Rs.7,517*12*11*) on
account of 'loss of dependency'.
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10. 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'.
11. In view of the law laid down by the Supreme Court in
the case of 'MAGMA GENERAL INSURANCE' (supra),
claimant-wife of the deceased is entitled for compensation
of Rs.40,000/- under the head of 'loss of spousal
consortium'.
12. Thus, the claimants are entitled to the following
compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 9,92,244
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Total 10,62,244
13. In the result, the following order is passed:
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ORDER
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.10,62,244/- as against Rs.7,99,100/- 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
