Karnataka High Court
The Manager vs Davalbi on 1 August, 2024
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
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NC: 2024:KHC-D:10868-DB
MFA No. 102260 of 2017
C/W MFA No. 100418 of 2017
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 1ST DAY OF AUGUST, 2024
PRESENT
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO.102260/2017 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO.100418/2017 (MV-D)
IN MFA NO.102260 OF 2017
BETWEEN:
1. DAVALBI W/O. UTTALSAB @ UTNSAB BENAL,
AGE: 44 YEARS, OCC: HOUSE HOLD WORK.
2. DONGRISAB S/O. UTTALSAB @ UTNSAB BENAL,
AGE: 26 YEARS, OCC: STUDENT.
3. DAVALMALIK S/O. UTTALSAB @ UTNSAB BENAL,
Digitally signed AGE: 24 YEARS, OCC: STUDENT.
by JAGADISH T R
Location: High
Court of 4. HUSAINMA W/O. DONGRISAB BENAL,
Karnataka AGE: 70 YEARS, OCC: NIL,
Dharwad Bench
ALL ARE R/O: KALADGI,
TQ & DIST: BAGALKOT-587101.
...APPELLANTS
(BY SRI. SIDDAPPA SAJJAN, ADVOCATE)
AND:
1. CHANDRASHEKHAR SAGARAPPA PATIL,
AGE: 49 YEARS, OCC: OWNER VEHICLE,
R/O. NAGANAPUR-LOKAPUR,
TQ: MUDHOL, DIST: BAGALKOT-587122.
2. THE MANAGER,
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NC: 2024:KHC-D:10868-DB
MFA No. 102260 of 2017
C/W MFA No. 100418 of 2017
SHRIRAM GENERAL INSURANCE COMPANY LIMITED,
E/8, EPIP, RIICO, INDUSTRIAL AREA,
SITAPUR, JAIPUR, RAJASHAN-302022,
(SUMMONS IS TO BE SERVED ON
SHRIRAM GENERAL INSURANCE COMPANY LIMITED,
OPPOSITE CENTRAL BUS-STAND,
NEAR ARADHANA LODGE, BAGALKOT-507101.
...RESPONDENTS
(BY SRI. S. K. KAYAKAMATH, ADV. FOR R2;
NOTICE TO R1 DISPENSED WITH)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
PRAYING TO CALL FOR THE RECORDS AND ON EXAMINATION OF
THE SAME BE PLEASED TO ENHANCE THE COMPENSATION AND
AWRD COMPENSATION AS CLAIMED BY THE APPELLANTS AND
SADDLE THE ENTIRE LIABILITY ON THE RESPONDENTS BY SETTING
ASIDE THE JUDGEMENT AND AWARD, DATED 07/10/2016 IN MVC
NO.64/2013 PASSED BY THE MEMBER MACT-II, BAGALKOT IN THE
INTEREST OF JUSTICE AND EQUITY.
IN MFA NO. 100418 OF 2017
BETWEEN:
THE MANAGER,
SHRIRAM GENERAL INSURANCE
COMPANY LIMITED, E-8, EPIP,
RIICO INDUSTRIAL AREA,
SITAPURA, JAIPUR,
RAJASTHAN-302022.
NOW REPRESENTED BY ITS
AUTHORIZED SIGNATORY,
SHRIRAM GENERAL INSURANCE
COMPANY LTD.,
NO.5/4, 3RD FLOOR,
S. V. ARCADE, BELEKAHALLI MAIN ROAD,
OPP. BANNERUGHATTA ROAD,
IIMB POST, BENGALURU-560076.
...APPELLANT
(BY SRI. S. K. KAYAKAMATH, ADVOCATE)
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MFA No. 102260 of 2017
C/W MFA No. 100418 of 2017
AND:
1. DAVALBI W/O. UTTALSAB @ UTNSAB BENAL,
AGE: 44 YEARS, OCC: HOUSE HOLD WORK.
2. DONGRISAB S/O. UTTALSAB @ UTNSAB BENAL,
AGE: 26 YEARS, OCC: STUDENT.
3. DAVALMALIK S/O. UTTALSAB @ UTNSAB BENAL,
AGE: 24 YEARS, OCC: STUDENT.
4. HUSAINMA W/O. DONGRISAB BENAL,
AGE: 70 YEARS, OCC: NIL.
ALL ARE R/O. KALADGI,
TALUK: BAGALKOT-587101.
5. CHANDRASHEKHAR SAGARAPPA PATIL,
AGE 49 YEARS,
OCC: OWNER OF THE ARTVEH (LORRY)
& TRAILER BEARING REGISTRATION
NO.KA-48/5042 AND KA-48/5043,
R/O: NAGANAPUR-LOKAPUR,
TALUK: MUDHOL,
DIST: BAGALKOT-587101.
...RESPONDENTS
(BY SRI. SIDDAPPA S. SAJJAN, ADV. FOR R1 TO R4;
NOTICE TO R5 SERVED)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, PRAYING TO CALL THE RECORDS, HEAR THE PARTIES, AND
ALLOW THE APPEAL AS PRAYED FOR BY SETTING ASIDE THE
IMPUGNED JUDGMENT AND AWARD DATED 07.10.2016 PASSED BY
THE MEMBER M.A.C.T-II, BAGALKOT, IN MVC NO.64/2013 WITH
COST IN THE INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL
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NC: 2024:KHC-D:10868-DB
MFA No. 102260 of 2017
C/W MFA No. 100418 of 2017
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL)
Though these appeals are listed for admission, with the
consent of learned counsel for both the parties, they are taken
up for final disposal.
2. These appeals are directed against judgment and
award dated 7.10.2016 passed in MVC No.64/2013 on the file
of learned Member, MACT-II Bagalkote1.
3. MFA No.102260/2017 is filed by the claimants
challenging the liability to an extent of 50% saddled on the
deceased, whereas MFA No.100418/2017 is filed by the
Insurance Company challenging the quantum of compensation
awarded by the Tribunal.
4. Brief facts leading to fling of these appeals are that,
on 8.10.2012, one Utalsab @ Utnsab was proceeding from
Lokapur to Kaladagi in his Tata 407 vehicle bearing registration
No.KA-29/9894 with the other labours; at that time, tractor
and trailer bearing registration No.KA-48/5042 & 5043 came in
high speed, rash and negligent manner and hit the vehicle
driven by Utalsab from opposite direction. Due to which,
'Tribunal', for short
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Utalsab sustained grievous injuries and succumbed to the
same. The legal heirs of deceased Utalsab filed claim petition
before the Tribunal seeking compensation.
5. Respondents opposed the claim petition by filing
objections. It is averred that the accident occurred due to rash
and negligent driving by the deceased and sought for dismissal
of the claim petition.
6. The Tribunal on appreciation of oral and
documentary evidence, allowed the claim petition in part by
awarding total compensation of Rs.14,37,069/- with interest at
6% per annum. The Tribunal also held that the deceased was
negligent and contributed to the accident to an extent of 50%.
7. Sri. Siddappa Sajjan, learned counsel appearing for
the appellants/claimants submits that the Tribunal committed
an error in saddling 50% of liability on the deceased holding
that the deceased was negligent and contributed to the extent
of 50%. It is submitted that the Tribunal has not appreciated
the evidence with regard to negligence in its proper
perspective. He seeks to saddle the entire liability on the driver
of the offending vehicle. He submits that insofar as quantum of
compensation awarded by the Tribunal is concerned, the award
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of compensation under the conventional heads is on the lower
sides and seeks to enhance the same.
8. Per contra, Sri. S.K. Kayakamath, learned counsel
appearing for the appellant/Insurance Company submits that
the jurisdictional police after completion of investigation filed
charge sheet against both drivers and taking note of the same,
liability is saddled on both drivers, which does not call for
interference in the appeal filed by the claimants. It is submitted
that the Tribunal erred in assessing the income of the deceased
at Rs.20,000/- per month, which is on the higher side. Further,
the Tribunal awarded compensation on the head of loss of
future prospects at 30%, as the deceased was aged about 45
years and was self-employed. Thus, he seeks to allow the
appeal filed by the insurer and dismiss the appeal of the
claimants.
9. Having heard the arguments of learned counsel for
the parties and on perusal of the material available on record
meticulously, the only point that arises for consideration in
these appeals is, whether the impugned judgment and award of
the Tribunal calls for interference?
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10. The material available on record indicates that the
deceased Utalsab met with road accident on 8.10.2012 and
succumbed to the injuries sustained. The wife, children and
mother of the deceased filed claim petition seeking
compensation for the accidental death of deceased Utalsab. The
pleadings and evidence available on record indicate that the
police after investigation filed charge sheet against deceased as
well as driver of offending vehicle. The charge sheet material
indicates that the deceased was negligent in driving the vehicle.
MVA report at Ex.P6 indicates that Tata 407 bearing
registration No. KA29/9894 has completely damaged and
accident has occurred in the centre of the road. The Tribunal on
appreciation of oral and documentary evidence has recorded a
detailed finding with regard to negligence and contribution of
the deceased in the accident. The said finding of the Tribunal is
based on the evidence on record and same is neither perverse
nor contrary to the evidence calling for interference with regard
to fastening of liability on both the drivers.
11. Insofar as award of compensation by the Tribunal is
concerned, the Tribunal taking note of oral testimony available
on record has assessed the income of the deceased at
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Rs.20,000/- per month for the purpose of determination of
compensation. The material available on record indicates that
the deceased was owner of Tata 407 and also driver of the said
vehicle. In order to prove the income, Ex.P9 to 13 are
produced and they indicate that the deceased used to provide
transport services to the others and used to earn income from
the same. The Tribunal taking note of Ex.P9 to P13 came to a
conclusion that the deceased was earning Rs.20,000/- per
month as a driver as well as income from his vehicle. This
Court on meticulous consideration of aforesaid exhibits and oral
testimony of the claimants, is of the considered view that the
Tribunal is fully justified in assessing the income of the
deceased at Rs.20,000/- per month, which does not warrant
interference at the hands of this Court. The Tribunal has erred
in awarding compensation under the head of loss of future
prospects at 30% of the assessed income of the deceased.
Admittedly, the deceased was aged about 45 years and was
self-employed, in light of decision of Hon'ble Apex Court in the
case of National Insurance Company Limited Vs. Pranay
Sethi & Others2, the claimants would be entitled to addition of
2017(16) SCC 680
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25% of the assessed income towards loss of future prospects.
There is no dispute with regard to deduction of 1/3rd towards
personal and living expenses of the deceased. Thus, the
claimants are entitled to modified compensation under the head
of loss of dependency as under:
Rs.20,000 + 25% x 12 x 14 x 2/3 = Rs.28,00,000/-
12. In terms of decision of Hon'ble Apex Court in the
case of Magma General Insurance Company Limited Vs.
Nanu Ram & Others3, appellants/claimants being wife
children and mother of the deceased are entitled to a sum of
Rs.40,000/- each towards spousal, parental and filial
consortium, besides a sum of Rs.15,000/- under the head of
loss of estate and Rs.15,000/- under the head of
transportation of dead body and funeral expenses.
13. In view of enunciation of law laid down by
co-ordinate Bench of this Court in Chandrakala and another
vs. Dilipkumar & Another4, the appellants/claimants would
not be entitled to interest on the component of loss of future
prospects.
(2018) 18 SCC 130
M.F.A. No.1662/2023 disposed off on 02.07.2024
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14. Thus, the claimants would be entitled to modified
compensation on the following heads:
Particulars Amount
(in Rs.)
Loss of dependency 28,00,000/-
Loss of estate & funeral expenses 30,000/-
Loss of consortium (Rs.40,000/- each) 1,60,000/-
Total 29,90,000/-
Thus, the claimants are entitled to a total compensation
of Rs.29,90,000/- as against Rs.28,74,138/- awarded by the
Tribunal. Since the Tribunal saddled 50% of liability on the
deceased, claimants shall be entitled to total compensation of
Rs.14,95,000/- (Rs.29,90,000 - 50%).
15. In the result, we proceed to pass the following:
ORDER
a) Both appeals stand allowed in part.
b) The impugned judgment and award of the
Tribunal is modified to an extent that the
claimants would be entitled to total
compensation Rs.14,95,000/- as against
Rs.14,37,069/- awarded by the Tribunal,
which shall carry interest at the rate of 6%
per annum from the date of petition till the
date of payment.
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c) As observed above, the claimants shall not be
entitled to interest on the compensation
amount awarded under the head of loss of
future prospects.
d) The appellant-Insurance Company shall
deposit the enhanced compensation amount
with accrued interest before the Tribunal
within a period of six weeks from today.
e) The apportionment, deposit and disbursement
shall be made as per award of the Tribunal.
f) The amount in deposit be transmitted to the
Tribunal forthwith.
g) Draw modified award accordingly.
Sd/-
(KRISHNA S.DIXIT)
JUDGE
Sd/-
(VIJAYKUMAR A.PATIL)
JUDGE
JTR/ct-an
