Karnataka High Court
Ashok Shankar Mayanache vs Ramesh Sadashiva Mayanache on 2 February, 2024
Author: V.Srishananda
Bench: V.Srishananda
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MFA No. 21183 of 2012
C/W MFA No. 20768 of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 2ND DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
MISCELLANEOUS FIRST APPEAL NO.21183 OF 2012 (MV-
D)
C/W
MISCELLANEOUS FIRST APPEAL NO.20768 OF 2012
IN M. F. A. NO.21183 OF 2012
BETWEEN:
SHRI. RAMESH SADASHIV MAYANNACHE,
AGE: 31 YEARS, OCC: BUSINESS,
R/O. KALAMESHWAR GALLI, KADOLI-591143,
TQ and DIST: BELAGAVI.
...APPELLANT
(BY SRI. MAHANTESH R.PATIL, ADVOCATE)
AND:
Digitally
signed by
SAROJA SHRI. ASHOK SHANKAR MAYANNACHE
SAROJA HANGARAKI
HANGARAKI Date: SINCE DECEASED BY HIS LRS.
2024.02.19
15:59:43
+0530
1. SMT. ANJANA W/O. ASHOK MAYANNACHE,
AGE: 46 YEARS, OCC: HOUSE HOLD,
R/O. KADOLI-591143,
TQ and DIST: BELAGAVI.
2. MISS. DEEPA D/O. ASHOK MAYANNACHE,
AGE: 18 YEARS, OCC: STUDENT,
R/O: KADOLI-591143,
TQ and DIST: BELAGAVI.
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MFA No. 21183 of 2012
C/W MFA No. 20768 of 2012
3. MR. SUKESH S/O. ASHOK MAYANNACHE,
AGE: 15 YEARS, OCC: STUDENT,
BEING MINOR, REPTED. BY HIS NATURAL
MOTHER GUARDIAN RESP.NO.1
4. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
MARUTI GALLI, BELAGAVI-590002,
(INSURER OF TATA 407 TEMPO NO.KA-22/2784)
(NOTE: THE ORIGINAL CLAIMANT NO.1 NAMELY ASHOK
SHANKAR MAYANNACHE DIED ON 03.03.2012. HIS LEGAL
REPRESENTATIVES ARE ALREADY ON RECORD AS
RESPONDENTS 1 TO 3)
...RESPONDENTS
(BY SRI. HARISH S.MAIGUR, ADVOCATE FOR R1-R3;
SRI. R.R. MANE, ADVOCATE FOR R4)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/SEC.173(1)
OF MV ACT, 1988, AGAINST THE JUDGMENT AND AWARD DTD:25-
11-2011 PASSED IN MVC.NO.395/2011 ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACK COURT-II AND MEMBER, ADDL.
MACT, BELAGAVI, AWARDING THE COMPENSATION OF
RS.4,05,000/- WITH INTEREST AT THE RATE OF 9% P.A., FROM THE
DATE OF PETITION TILL ITS REALISATION.
IN M. F. A. NO.20768 OF 2012
BETWEEN:
1. SHRI. ASHOK SHANKAR MAYANACHE,
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O. KADOLI, TQ and DIST: BELAGAVI.
2. SMT. ANJANA W/O. ASHOK MAYANACHE,
AGE: 46 YEARS, OCC: HOUSE HOLD,
R/O. KADOLI, TQ and DIST: BELAGAVI.
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MFA No. 21183 of 2012
C/W MFA No. 20768 of 2012
3. MISS. DEEPA D/O. ASHOK MAYANACHE,
AGE: 17 YEARS 09 MONTHS, OCC: STUDENT,
SINCE MINOR REPRESENTED BY NATURAL FATHER
AS M/G APPELLANT NO.1.
4. MR. SUKESH S/O. ASHOK MAYANACHE,
AGE: 15 YEARS, OCC: STUDENT,
SINCE MINOR REPRESENTED BY NATURAL
FATHER AS M/G APPELLANT NO.1.
...APPELLANTS
(BY SRI. HARISH S.MAIGUR, ADVOCATE)
AND:
1. SHRI. RAMESH SADASHIV MAYANACHE,
AGE: MAJOR, OCC: BUSINESS,
R/O. KALMESHWAR GALLI, KADOLI,
TQ and DIST: BELAGAVI.
2. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
MARUTI GALLI, BELAGAVI.
(INSURER OF TATA 407 TEMPO NO.KA-22/2784)
...RESPONDENTS
(BY SRI. MAHANTESH R.PATIL, ADVOCATE FOR R1;
SRI. R.R. MANE, ADVOCATE FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/SEC.173(1)
OF MV ACT, 1988, AGAINST THE JUDGMENT AND AWARD DTD: 25-
11-2011 PASSED IN MVC.NO.395/2011 ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACK COURT-II AND MEMBER, ADDL.
MACT, BELAGAVI, PARTLY ALLOWING THE CLAIM PETITIONF FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MISCELLANEOUS FIRST APPEALS, COMING ON FOR
HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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MFA No. 21183 of 2012
C/W MFA No. 20768 of 2012
JUDGMENT
Heard Sri.Mahantesh R Patil, Sri.Harish S Maigur and
Sri.R.R.Mane.
2. These two appeals are filed by the owner and
claimants challenging the validity of judgment and award
passed in MVC No.395/2011 on the file of Additional Motor
Accident Claims Tribunal, Belagavi dated 25.11.2011.
3. Facts in brief which are utmost necessary for
disposal of these cases are as under:
3.1 Father, mother, sister and brother of deceased
- Dinesh are the claimants who laid a claim under Section
166 of Motor Vehicles Act before the Tribunal.
3.2 The claim petition averments reveal that on
17.06.2010 at about 7.30 a.m. when Dinesh was
proceeding from Kadoli to Belagavi in a TATA 407 vehicle
bearing No.KA-22/2784, after loading vegetables grown in
his land towards vegetable market near Alataga bridge,
due to rash and negligent driving of driver of vehicle, there
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was an accident and due to impact of the accident Dinesh
sustained injuries and he died.
3.3 Claimants being the dependants, filed a claim
petition for awarding suitable compensation.
3.4 The claim petition was resisted by filing
necessary written statement by the owner of the vehicle
as well as Insurance Company.
3.5 Owner of the vehicle contended that the
offending vehicle was duly insured and deceased was
proceeding in the said vehicle along with goods. Therefore,
Insurance Company is liable to pay compensation.
3.6 Whereas, Insurance Company opposed the
claim by denying the claim petition averments.
3.7 In view of the rival contentions of the parties,
Tribunal raised the following issues:
1. Whether the petitioners prove that deceased Dinesh
Ashok Mayanache has died due to injuries sustained in
alleged accident caused on 17.06.2010 at 7.30 a.m. while
she was proceeding in Tata 407 Tempo No.KA- 22/2784
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near Alataga Bridge on Belgaum Kadoli road, due to rash
and negligent act of the driver of the Tata 407 Tempo
No.KA- 22/2784?
2. Whether the petitioners are entitled for compensation?
If so, for how much and from whom?
3. What order or award?
3.8 In order to prove the case of claimants,
claimant No.2 got examined herself as PW.1 and alleged
eyewitness to the accident by name Nago Kakatkar as
PW.2. Claimants placed on record 14 documents which
were exhibited and marked as Ex.P.1 to P.14.
3.9 As against evidence placed on record, on behalf
of respondents four witnesses were examined as RW.1 to
RW.4. Among them, RW.1 is the owner of offending
vehicle by name Ramesh Mayannache. Sanju is the scribe
of complaint and relative of the claimants who is examined
as RW.2. RW.3 is Yallappa. According to him he is inquest
witness to the inquest mahazar of deceased. RW.4 is
Anupama, officer of Insurance Company.
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3.10 On behalf of respondents, as many as 12
documents were placed on record which were exhibited
and marked as Ex.R.1 to R.12.
3.11 Tribunal after considering the oral and
documentary evidence placed on record, heard arguments
in detail and allowed the claim petition in part and granted
compensation in a sum of Rs.4,05,000/- with interest at
9% per annum from the date of petition till realisation
recoverable from the owner of offending vehicle as the
deceased was a gratuitous passenger.
4. Being aggrieved by the said judgment, owner of
the vehicle and claimants have preferred the aforesaid
appeals.
5. Sri.Mahantesh R Patil, learned counsel
representing the owner of the offending vehicle contended
that the deceased was not a gratuitous passenger and he
was moving in the offending vehicle on the fateful day
along with goods namely cabbage bags which were grown
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in the agricultural land of claimants. Therefore, fastening
of liability on the owner of vehicle is incorrect.
6. He further contended that quantum of
compensation is on higher side and rate of interest allowed
by the Tribunal at 9% is incorrect and sought for allowing
the appeal.
7. Per contra, Sri.Harish S Maigur, learned counsel
for the claimants while supporting the arguments put
forward on behalf of owner insofar as the fact that
deceased was proceeding in the vehicle along with goods
and not as a gratuitous passenger, contended that the
quantum of compensation awarded by the Tribunal is
incorrect as the Tribunal has not taken proper income of
the deceased and failed to add 40% towards future
prospects as per the dictum in the case of National
Insurance Company Limited vs. Pranay Sethi and
Others reported in AIR 2017 SC 5157 and sought for
enhancement.
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8. He also pointed out that compensation is not
properly awarded on the head of loss of consortium and
sought for enhancement.
9. He further contended that since the deceased
was not a gratuitous passenger as is held by the Tribunal,
fastening liability on the owner is incorrect and sought for
shifting liability on to the Insurance Company as the
vehicle was duly insured as on the date of the accident.
10. He also pointed out that awarding interest at
9% by the Tribunal is just and proper.
11. Per contra, Sri.R.R.Mane learned counsel
representing the Insurance Company in both appeals,
supported the impugned judgment.
12. Insofar as fastening liability on the owner of
vehicle, he contended that as there is compelling evidence
on record to hold that deceased was not travelling along
with goods, he has been rightly termed as gratuitous
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passenger by the Tribunal and sought for dismissal of the
appeal of the owner.
13. Insofar as quantum of compensation is
concerned, he fairly submitted that suitable enhancement
be made in view of the judgment of the Hon'ble Apex
Court in the case of Pranay Sethi supra.
14. In view of the rival contentions of the parties,
this Court perused the material on record meticulously.
15. On such perusal of material on record, it is
crystal clear that Dinesh lost his life in a road traffic
accident occurred on 17.06.2010 involving TATA 407
vehicle bearing No.KA-22/2784.
16. According to the claim petition averments,
Dinesh was proceeding in the vehicle along with cabbage
bags weighting about 50 kgs each. Therefore, he should
not be termed as a gratuitous passenger.
17. Said aspect of the matter was seriously
disputed by the Insurance Company.
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18. Owner has taken responsibility to lead evidence
to establish the fact that Dinesh was proceeding in the
vehicle along with cabbage bags. Claimants have also
placed on record materials and also oral evidence of PW.2
who is alleged eyewitness to the accident.
19. Fact remains that RW.2 is scribe of Ex.P.1 -
complaint. The said complaint is in Marathi language. In
his cross-examination, RW.2 has categorically admits that
he is the scribe and he has drafted the complaint based on
the information provided by the police and 4-5 persons
who were present at the place of accident and he has read
over contents of the complaint to them.
20. Admittedly, none of the dependants are
eyewitnesses to the incident. Therefore, complaint has
been drafted by RW.2 based on the version given by 4-5
persons who were present in the hospital when the injured
was shifted to Civil Hospital. PW.2 is not one among them.
RW.2 categorically admits in his cross-examination that
there is no mention that Dinesh was travelling in the
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offending vehicle as on the date of accident along with
goods i.e. cabbage bags grown in his land.
21. No doubt, few documentary evidence is placed
on record on behalf of claimants to show that they were
supplying vegetables to the shop of vegetable vendor. For
the reasons best known to the claimant, the said
vegetable vendor is not examined.
22. When the author of the Ex.P.2 - complaint in his
evidence categorically admitted that there is no mention
that deceased was travelling along with goods and in the
spot mahazar also there is no mention that vehicle
contained cabbage bags, this Court cannot hold that the
deceased was travelling in the vehicle along with goods.
23. Therefore, the Tribunal was justified in terming
the deceased as a gratuitous passenger. RW.2 who is
inquest witness does not know how to write and read
Kannada.
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24. RW.4 officer of Insurance Company specifically
stated that deceased was a gratuitous passenger.
25. When the evidence on record placed by the
claimant and the respondents is analysed for the purpose
of finding out whether Dinesh was a gratuitous passenger
or not, this Court is of the considered opinion that the
averments of complaint itself does not mention about
transportation of goods (cabbage bags) in the offending
vehicle as on the date of accident.
26. Thus, contentions urged on behalf of claimants
that the deceased was proceeding with goods in the
vehicle cannot be countenanced in law. Therefore, appeal
of the owner to the extent of seeking relief of shifting
liability on the Insurance Company cannot be
countenanced in law.
27. This would take this Court to the next question
i.e. whether adequate compensation is awarded by the
Tribunal or not?
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28. For the loss of life of Dinesh, admittedly the
Tribunal has not assessed notional income in a proper
manner and not added future prospects. Therefore, a case
is made out for re-assessment of compensation as under:
Loss of dependency Rs.8,31,600/-
[Rs.5,500 (income) + 40%
(addition) x 12 (months) x
18 (multiplier) - 50%
(deduction)]
Funeral expenses and loss Rs.30,000/-
of estate
Parental affection Rs.80,000/-
(For appellants No.1 and 2,
Rs.40,000 each)
Total Rs.9,41,600/-
29. Since quantum of compensation is now
reassessed, interest rate that is payable is at 6% per
annum from the date of petition till realisation as is rightly
contended by the owner of the vehicle.
30. Accordingly to the extent of interest is
concerned, appeal filed by the owner needs to be
modified.
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31. Further, since claimants have made out a case
for enhancement of compensation, as per the dictum of
Hon'ble Apex Court in the case of Pranay Sethi, Magma
General Insurance Company Limited vs. Nanu Ram
and Others reported in 2018 ACJ 2782 and United
India Insurance Company Limited vs. Satinder Kaur
alias Satwinder Kaur and Others reported in AIR 2020
SC 3076, appeal of the claimants needs to be allowed.
32. In view of the foregoing discussion, following
order is passed:
ORDER
(i) Appeal filed by the owner in MFA
No.21183/2012 is allowed in part only with
regard to modification of interest rate is
concerned from 9% to 6% per annum from the
date of petition till realization.
(ii) Appeal filed by the claimants in MFA
No.20768/2012 is allowed.
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(iii) As against a sum of Rs.4,05,000/- awarded by
the Tribunal, claimants are entitled to
Rs.9,41,600/- with interest at 6% per annum
from the date of petition till realisation payable
by the owner of offending vehicle.
(iv) Amount in deposit is ordered to be transmitted
to the concerned Tribunal for disbursement in
accordance with law.
(v) Balance amount is ordered to be paid by the
owner of the offending vehicle within four weeks
from today.
Sd/-
JUDGE
SH
