Karnataka High Court
Jayu Rukya Marathi S/O Rukya Marathi vs Sheshagiri Yanku Marathi S/O Yanku ... on 15 February, 2024
Author: V.Srishananda
Bench: V.Srishananda
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NC: 2024:KHC-D:3714
MFA No. 24702 of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 15TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
MISCELLANEOUS FIRST APPEAL NO.24702 OF 2012 (MV)
BETWEEN:
1. JAYU RUKYA MARATHI S/O. RUKYA MARATHI,
AGED ABOUT 59 YEARS, OCC: COOLIE,
RESIDING AT: MANJUGUNI, TQ: SIRSI,
DIST: UTTAR KANNADA.
2. KRISHNA JAYU MARATHI S/O. JAYU MARATHI,
AGED ABOUT 33 YEARS, OCC: COOLIE,
RESIDING AT MANJUGUNI, TQ: SIRSI,
DIST: UTTAR KANNADA.
3. THEEKRU JAYU MARATHI S/O. JAYU MARATHI,
AGED ABOUT 31 YEARS, OCC: COOLIE,
RESIDING AT MANJUGUNI, TQ: SIRSI,
DIST: UTTAR KANNADA.
...APPELLANTS
(BY SMT. VIDYA IYER AND
SRI. K. RAGHAVENDRA RAO, ADVOCATES)
AND:
Digitally signed
by SAMREEN
SAMREEN AYUB 1. SHESHAGIRI YANKU MARATHI
AYUB DESHNUR
DESHNUR Date: S/O. YANKU MARATHI,
2024.02.23
17:59:20 +0530 AGED ABOUT 33 YEARS,
OCC: OWNER OF MOTOR CYCLE
BEARING REG. NO.KA-31/J-2688,
R/O: HEGDEKATTA, SIRSI,
UTTAR KANNADA.
2. THE NEW INDIA ASSURANCE CO. LTD.,
BRANCH OFFICE, PRASAD BUILDING,
HIGH CHURCH ROAD, KARWAR.
...RESPONDENTS
(BY SRI.VISHWANATH HEGDE, ADVOCATE FOR R1;
SRI. RAJASHEKHAR S.ARANI, ADVOCATE FOR R2)
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NC: 2024:KHC-D:3714
MFA No. 24702 of 2012
THIS M.F.A. IS FILED U/S 173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED:21-09-2010 PASSED IN MVC
NO.63/2008 ON THE FILE OF THE PRESIDING OFFICER FAST TRACK
SIRSI, AT:SIRSI, DISMISSING THE FILE UNDER SECTION 166 OF
M.V. ACT.
THIS M.F.A., COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Smt. Vidya Iyer representing Shri. K. Raghavendra
Rao, learned counsel for appellants, Shri. Vishwanath Hegde,
learned counsel for respondent No.1 and Shri. Rajashekhar S.
Arani, learned counsel for respondent No.2.
2. Unsuccessful claimants are the appellants
challenging the validity of judgment and award passed in MVC
No.63/2008 on the file of Fast Track Court, Sirsi dated
21.09.2010.
3. Facts in brief which are utmost necessary for
disposal of the appeal are as under:
3.1. Claimants being husband and children of Smt.
Janaki laid a claim for the accidental death of Janaki in a road
traffic accident occurred on 31.08.2007 at about 6.30 p.m.,
when she was a pillion rider of the motor cycle bearing
registration No.KA-31/J-2688. When the rider and the pillion
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rider were proceedings from Kalgar to Manjuguni, due to the
rash and negligent riding of the motor cycle by its rider, she fell
down and she was shifted to T.S.S. Hospital, Sirsi and then to
Dr. Duggani's Hospital at Hubballi and ultimately lost her life.
4. In pursuance of the notice issued in the claim
petition, owner and the erstwhile owner of the motor cycle
appeared before the Court and did not choose to file written
statement.
5. Insurance Company appeared before the Court and
filed written statement.
6. The Tribunal raised the following issues:
1. Whether the petitioners prove that
deceased Janaku W/o. Jayu Marathi died in a Road
Traffic Accident on 31.08.2007 at about 18.30
hours near Barasguni cross, Manjaguni Sirsi
around due to rash and negligent driving of Motor
cycle No.KA-31/J-2688, by its driver?
2. Whether the petitioner is entitled for
compensation? If so, at what quantum and from
whom?
3. What Order/Award?
7. In order to establish the case of the claimants, first
claimant got examined himself as PW.1 and placed on record
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36 documents which were exhibited and marked as Ex.P.1 to
P.36.
8. On behalf of Insurance Company certified copy of
the authority letter and certified copy of insurance policy were
marked before the oral evidence of officer of the Insurance
Company namely Aravinda Ramakrishna Miskin who is
examined as RW.1.
9. On conclusion of recoding of evidence, the learned
Trial Judge heard the parties in detail and after considering the
material evidence on record, recorded a finding that the pillion
rider is not covered under the insurance policy and the
claimants have failed to prove as to who is the owner of the
motor cycle bearing registration No.KA-31/J-2688 and
therefore, dismissed the claim petition.
10. Being aggrieved by the same, claimants are in
appeal.
11. Reiterating the grounds urged in the appeal
memorandum, Smt. Vidya Iyer, learned counsel for the
appellants vehemently contended that the approach of the
Tribunal in not properly appreciating the material evidence on
record and ignoring the material documentary evidence on
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record, dismissing the claim petition on the ground that there is
confusion as to who is the owner of the motor cycle is incorrect
and sought for allowing the appeal.
12. Shri. Rajashekhar S. Arani, learned counsel for
respondent No.2 - Insurance Company contended that the
motor cycle had only statutory policy and therefore pillion rider
is not covered and the same has been discussed in detail in
paragraph No.12 of the impugned judgment and supported the
impugned judgment insofar as dismissal as against Insurance
Company is concerned.
13. Shri. Vishwanath Hegde, learned counsel for
respondent No.1 - owner of the motor cycle namely Sheshagiri
Yanku Marathi contended that there is a confusion as to the
ownership of the motor cycle inasmuch as, the claim petition
itself.
14. Initially the claimants have impleaded
Laxminarayan N. Koorse, as the owner of the motor cycle and
later on he was deleted and in his place, Sheshagiri Yanku
Marathi, has been impleaded as the owner of the motor cycle
and the same has been rightly taken note of by the Tribunal
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and dismissed the claim petition in a proper manner and sought
for dismissal of the appeal.
15. Having heard the parties in detail, this Court
perused the material on record meticulously.
16. On such perusal of the material on record,
especially charge sheet, it is crystal clear that after the motor
cycle was seized and after the Motor Vehicle Inspector
inspected the motor cycle, the motor cycle was handed over to
the R.C. owner namely Sheshagiri Yanku Marathi.
17. Erstwhile owner of the motor cycle was no doubt
impleaded as a party respondent No.1 at the first instance and
soon after the claimants came to know that who is the proper
R.C. owner as per the charge sheet materials, amendment has
been carried out in the claim petition and registered owner has
been impleaded as the party first respondent in the place of
Laxminarayan N. Koorse.
18. Therefore, the finding recorded by the Tribunal
especially having allowed the amendment and ignoring the
contents of charge sheet material is thus, has resulted in miss-
carriage of justice and dismissal of the claim petition on the
sole ground that there is a confusion as to the ownership of the
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motor cycle is incorrect and needs interference from the hands
of this Court in the present appeal by exercising the power
vested in this Court under Section 173 of the Motor Vehicles
Act, 1988 (for short 'M.V. Act').
19. Having said so, the liability of the Insurance
Company has been rightly exenarated by the Tribunal taking
note of the fact that the insurance policy that was availed by
the owner of the motor cycle was only 'statutory policy' or 'act
only policy'. Under such circumstances, hardly there is a scope
for covering the pillion rider.
20. Further, with regard to quantum of compensation in
concerned, since the deceased is aged 55 years, in the absence
of proper proof of income and the accident has taken place in
the year 2007, the monthly income is to be assessed in a sum
of Rs.4,000/-. Since there are two children and husband are
the dependants, 1/3rd is to be deducted following the dictum of
the Hon'ble Apex Court in the case of Sarla Verma (Smt)
and others vs. Delhi Transport Corporation and
another, reported in (2009) 6 SCC 121 and 55 years was
the age of the deceased, they are entitled for addition on 10%
as per the principles of law enunciated by the Hon'ble Apex
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Court in the case of in National Insurance Company Limited
Vs. Pranay Sethi and others reported in AIR 2017 SCC
5157.
21. On the conventional head the claimants are entitled
to Rs.40,000/- and since there are three claimant each of them
entitled to Rs.40,000/- following the dictum of the Hon'ble Apex
Court enunciated in the case of Magma General Insurance
Company Limited vs. Nanu Ram and Others reported in
2018 ACJ 2782 and in the case of United India Insurance
Company Limited vs. Satinder Kaur alias Satwinder Kaur
and Others reported in AIR 2020 SC 3076
22. Accordingly, the assessment of the quantum of
compensation is made as under:
1 Loss of dependency Rs.3,87,288
4400x3=1466 (4400-1466=2934)
2934x12x11=
2 Towards Conventional head Rs.1,20,000/-
(40,000X3)
Total Rs.5,07,288/-
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23. Accordingly, the following order is passed:
ORDER
(i) Appeal is allowed.
(ii) Impugned judgment and award in MVC
No. 63/2008 is set aside. Claim petition
allowed in part.
(iii) The claimants are entitled the
compensation in a sum of Rs.5,37,288/-
with interest at the rate of 6% per
annum from the date of petition till
realization payable by first respondent
namely Sheshagiri Yanku Marathi.
(iv) No order as to costs.
Sd/-
JUDGE
SMM
