Karnataka High Court
Smt. Seema W/O Sambhaji Kadlekar vs Shri. Awadhoot S/O. Krishnarao Patil on 8 February, 2024
Author: S G Pandit
Bench: S G Pandit
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MFA No. 101991 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE K V ARAVIND
MISCELLANEOUS FIRST APPEAL NO.101991 OF 2021 (MV-D)
BETWEEN:
1. SMT. SEEMA W/O. SAMBHAJI KADLEKAR,
AGE. 47 YEARS, OCC. HOUSEHOLD WORK,
R/O.#12, HANUMAN GALLI,
RAMNAGAR, DIST. UTTAR KANNADA
2. MS. POOJA D/O SAMBHAJI KADLEKAR,
AGE. 28 YEARS, OCC. HOUSE HOLD WORK,
3. MS. KAVITHA D/O SAMBHAJI KADLIKAR
AGE 25 YEARS, OCC. STUDENT,
PRESENTLY ALL ARE R/O RAJU CHIKKODI BUILDING,
2ND MAIN, 4TH CROSS,
SADASHIVANAGAR, DIST. BELAGAVI.
...APPELLANTS
(BY SRI. S.B. PATIL, ADVOCATE)
AND:
Digitally
signed by K M
1. SHRI. AWADHOOT S/O. KRISHNARAO PATIL
SOMASHEKAR
KM
SOMASHEKAR Date:
2024.02.15
10:34:57
+0530
AGE. 36 YEARS, OCC. BUSINESS,
R/O. H.NO.3234, NEAR SADHANA HIGH
SCHOOL, GADHINGLAJ, DIST. KOLHAPUR.
(OWNER OF HYUNDAI XCENT PRIME CAR
BEARING NO.MH-09/EM-3606)
2. THE NEW INDIA ASSURANCE CO., LTD.,
REPRESENTED BY THE DIVISIONAL MANAGER,
D.O. CLUB ROAD, BELAGAVI,
[INSURER OF THE HYUNDAI XCENT
PRIME CAR NO. MH -09/EM-3606]
...RESPONDENTS
(BY SRI. RAVINDRA R. MANE, ADVOCATE FOR R2) (R1-SERVED)
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MFA No. 101991 of 2021
THIS MFA IS FILED U/S.173 (1) OF MOTOR VEHICLES ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED 30.04.2021
PASSED IN MVC NO.1989/2019 ON THE FILE OF THE IX ADDITIONAL
DISTRICT AND SESSIONS JUDGE AND ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
S G PANDIT, J., DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for admission, it is taken up
for final disposal, with the consent of learned counsel for both
the parties.
2. The claimants are before this Court challenging the
saddling of 25% contributory negligence as well as quantum of
compensation awarded under judgment and award dated
30.04.2021 passed in MVC No.1989/2019 on the file of learned
IX Addl. District and Sessions Judge and Member, Addl. MACT,
Belagavi (for short, 'Tribunal'), praying for enhancement of
compensation.
3. The claimants, who are the mother and sisters of
deceased Amar Kadlekar, filed a claim petition under Section
166 of the Motor Vehicles Act, 1988 seeking compensation for
the accidental death of Amar Kadlekar that took place on
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24.02.2019 involving Motorcycle bearing registration No.KA-
22/EX-5908 and Hyundai Car bearing registration No.MH-
09/EM-3606. It is stated that the deceased was aged 27 years
as on the date of accident and was working as salesman in
Unlimited Shopping Mall, Belagavi, earning Rs.20,000/- per
month.
appeared through their learned counsel and filed statement of
objections denying the claim petition averments. Respondent
No.2-Insurance Company contended that the accident occurred
due to rash and negligent riding of rider of motorcycle i.e.
deceased. It was contended that rider of motorcycle was not
having valid and effective driving license as on the date of the
accident. Thus, prayed for dismissal of the claim petition.
5. Before the Tribunal, 1st claimant-mother of the
deceased examined herself as PW1 and also friend of the
deceased examined as PW2 apart from marking the documents
as Exs.P1 to P15. Respondent No.2-Insurer did not examine
any witness, but got marked insurance policy as Ex.R1. The
Tribunal based on the material evidence on record held that the
deceased also contributed to the accident to an extent of 25%
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and awarded total compensation of Rs.25,77,800/- with
interest at 9% per annum on the following heads:
Loss of Dependency Rs.25,22,800/-
Funeral expenses Rs. 15,000/-
Loss of love & affection Rs. 25,000/-
Loss of Estate Rs. 15,000/-
Total Rs.25,77,800/-
6. While awarding the above compensation, the
Tribunal assessed notional income of the deceased at
Rs.13,250/- per month, added 40% of the same towards future
prospects, deducted 50% towards personal and living expenses
of the deceased and applied multiplier of 17. The claimants not
being satisfied with saddling of contributory negligence to an
extent of 25% as well as quantum of compensation awarded by
the Tribunal are before this Court praying for enhancement of
compensation.
7. Heard Sri. S.B. Patil, learned counsel for the
appellants-claimants as well as Sri. R.R.Mane, learned counsel
for the respondent-Insurance Company and perused the appeal
papers along with original records.
8. Sri. S.B. Patil, learned counsel for the appellants-
claimants would submit that the Tribunal committed an error in
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assessing notional income of the deceased at Rs.13,250/- per
month ignoring Ex.P12-payslip, which would disclose that the
deceased was getting gross salary of Rs.20,553/- per month.
It is further submitted that the Tribunal committed an error in
not awarding compensation on the head of filial consortium,
which the claimant No.1-mother of the deceased would be
entitled to Rs.40,000/- as held by the Hon'ble Apex Court in the
case of Magma General Insurance Company Ltd., Vs.
Nanu Ram and Others1. He further submits that in terms of
decision of Hon'ble Apex Court in the case of National
Insurance Company Limited Vs. Pranay Sethi & Others2,
the claimants would be entitled for 10% escalation towards
conventional heads. As regards contributory negligence,
learned counsel would submit that the Tribunal grossly erred in
fixing contributory negligence to an extent of 25% on the
deceased merely because the deceased was not having valid
and effective driving license as on the date of the accident. In
support of said contention, learned counsel places reliance on a
decision of the Hon'ble Apex Court in the case of Sudhir
2018 ACJ 2782
2017 (16) SCC 680
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Kumar Rana Vs. Surinder Singh3 and submit that if a person
drives without a license, it is an offence, but the same does not
amount to contributory negligence. Thus, he prays for allowing
the appeal.
9. Per contra, Sri. R.R.Mane, learned counsel
appearing for the respondent-Insurance Company would
contend that in the absence of any corroborative document to
prove the income of the deceased, the Tribunal is justified in
assessing notional income of the deceased at Rs.13,250/- per
month, which is just and proper. Moreover, he submits that in
order to prove Ex.P12-pay slip, author is not examined. He
further submits that since the claimants did not produce driving
license, the Tribunal rightly fixed 25% contributory negligence
on the deceased. He further submits that the Tribunal on
appreciation of the material on record awarded just and
reasonable compensation under various heads, which does not
call for any interference at the hands of this Court. Thus, he
prays for dismissal of the appeal.
(2008) 12 SCC 436
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10. Having heard the learned counsel for the parties
and on perusal of the appeal papers, the following points would
arise for consideration:
a) Whether the Tribunal is justified in saddling
25% contributory negligence on the part of the
deceased?
b) Whether the claimants have made out any case
for enhanced compensation?
11. Our answer to the above points would be in the
negative and partly affirmative respectively for the following
reasons:
12. The occurrence of accident on 24.02.2019 involving
Motorcycle bearing registration No.KA-22/EX-5908 and Hyundai
Car bearing registration No.MH-09/EM-3606, resultant death of
Amar Kadlekar is not in dispute in this appeal.
13. The first issue is with regard to contributory
negligence. It is the contention of the respondent/insurance
company that rider of the motorcycle i.e. deceased was not
having valid and effective driving license as on the date of the
accident, hence, the Tribunal rightly saddled 25% contributory
negligence on the deceased.
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14. Section 3 of the MV Act contemplates necessity for
driving license, which reads under:
No person shall drive a motor vehicle in any public
place unless he holds an effective driving license
issued to him authorizing him to drive the vehicle;
and no person shall so drive a transport vehicle
(other than a motor cab or motorcycle) hired for his
own use or rented under any scheme made under
sub-section(2) of Section 75) unless his driving
license specifically entitles him so to do so.
15. Section 181 of the MV Act provides driving vehicles
without possession of driving license, which reads as under:
Whoever drives a motor vehicle in contravention of
Section 3 or 4 shall be punishable with imprisonment
for a term which may extend to three months, or
with fine (of five thousand rupees), or with both.
A perusal of the above provisions would make it clear that
whoever drives a motor vehicle without valid and effective
driving license is an offence under Section 181 of the MV Act.
Mere non-possession of driving license while driving/riding a
motor vehicle itself cannot be held to be a ground for saddling
contributory negligence. The MV Act does not provide for
absolving the liability of the insurance company on the ground
of non-possession of driving license.
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16. The Hon'ble Apex Court in the case of Sudhir
Kumar Rana Vs. Surinder Singh & Others4, at paragraphs-9
has held as follows:
9. If a person, drives a vehicle without a
license, he commits an offence. The same, by itself,
in our opinion, may not lead to a finding of
negligence as regards the accident. It has been held
by the Courts below that it was the driver of the mini
truck who was driving rashly and negligently. It is
one thing to say that the appellant was not
possessing any license but no finding of fact has been
arrived at that he was driving the two-wheeler rashly
and negligently. If he was not driving rashly and
negligently which contributed to the accident, we fail
to see as to how, only because he was not having a
license, he would be held to be guilty of contributory
negligence.
(Underlined by us)
17. A reading of the above paragraph, it is very clear
that merely because deceased rider of motorcycle was not
having driving license, that itself cannot be held to be guilty of
contributory negligence. Negligence cannot be fixed on the
shoulders of the rider of the motorcycle merely for not having
driving license. Therefore, it cannot be said that there was
contributory negligence on part of the rider due to which the
accident has occurred. Moreover, it is for the insurer who
contends that rider of the motorcycle had no license to prove
the same. There is no material to that effect and also there is
(2008) 12 SCC 436
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no material evidence to say that negligence of the rider
contributed to the occurrence of accident. Thus, the contention
of the insurance company cannot be acceded to and same is
liable to be rejected. Therefore, in the present facts and
circumstances of the case, we are of the considered view that
finding recorded by the Tribunal with regard to contributory
negligence to an extent of 25% on the deceased is wholly
unsustainable and same is modified holding that due to sole
negligence on the part of the driver of offending car, the
accident took place. Hence, Issue No.1 is answered in the
negative holding that the insurance company is liable to pay
entire compensation amount.
18. The next issue is with regard to quantum of
compensation. It is the contention of appellants-claimants that
the Tribunal committed an error in assessing notional income of
the deceased at Rs.13,250/- per month, ignoring Ex.P12-pay
slip issued by Team Lease Services Limited, which discloses the
gross salary of the deceased for the month of February, 2019
at Rs.20,553/-. Admittedly, in order to prove the genuineness
and veracity of the said Ex.P12, the claimants have not
produced any corroborative document nor examined any author
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of the said pay slip. In the absence of any author of said pay
slip being examined coupled with corroborative document, we
are of the view that the Tribunal is justified in assessing the
income of the deceased notionally, taking note of the year of
accident as well as income chart prepared by KSLSA based on
various factors including the minimum wage fixed. The Tribunal
has taken the age of the deceased as 27 years, adopted
multiplier of 17, added 40% of the assessed income towards
future prospects and deducted 50% towards personal expenses
of the deceased, which according to us are just and proper,
needs no interference. Thus, the Tribunal awarded
compensation of Rs.25,22,800/- on the head of loss of
dependency, which is just and proper and requires no
interference.
19. It is well settled law that mother of the deceased
would be entitled to Rs.40,000/- towards filial consortium as
held by the Hon'ble Apex Court in the case of Magma General
Insurance Co. Ltd. (supra). The Tribunal rightly awarded a
sum of Rs.15,000/- towards loss of estate and Rs.15,000/-
towards transportation of dead body and funeral expenses and
same is undisturbed. In terms of decision of Hon'ble Apex Court
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in the case of Pranay Sethi (supra), the claimants would be
entitled to 10% escalation on the compensation awarded under
conventional heads i.e., loss of estate, loss of consortium and
funeral expenses.
20. Thus, the claimants would be entitled for modified
compensation on the following heads:
Sl. No. Particulars Amount
1. Loss of dependency Rs.25,22,800/-
2. Loss of estate & Funeral Rs. 33,000/-
expenses
3. Filial consortium Rs. 44,000/-
Total Rs.25,99,800/-
21. Thus, the claimants would be entitled to total
compensation of Rs.25,99,800/- as against Rs.19,33,350/-
awarded by the Tribunal.
22. In the result, we proceed to pass the following:
ORDER
a) The above appeal is allowed in part.
b) The impugned judgment and award of the
Tribunal is modified to an extent that the
claimants are entitled to total
compensation Rs.25,99,800/- as against
Rs.19,33,350/- awarded by the Tribunal.
c) The enhanced compensation amount will
bear interest at the rate of 6% per annum
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from the date of claim petition till date of
realization.
d) The respondent-Insurance Company shall
deposit the enhanced compensation
amount with accrued interest before the
Tribunal within six weeks from the date of
receipt of certified copy of this judgment.
e) Apportionment, deposit & disbursement of
the entire compensation shall be made as
per the award of the Tribunal.
f) Registry to transmit the TCR to the
Tribunal forthwith.
g) Draw modified award accordingly.
h) No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
JTR
