Karnataka High Court
Kumari. Akshata D/O Narayan Sarawad vs Narayan S/O Timmanna Sarawad on 4 January, 2024
Author: V.Srishananda
Bench: V.Srishananda
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MFA No. 100473 of 2016
C/W MFA No. 100474 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
MISCELLANEOUS FIRST APPEAL NO. 100473 OF 2016 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 100474 OF 2016
IN M. F. A. NO. 100473 OF 2016
BETWEEN:
1. KUMARI. AKSHATA
D/O. NARAYAN SARAWAD,
AGE: 23 YEARS, OCC: STUDENT,
2. KUMAR.VENKATESH
S/O. NARAYAN SARAWAD,
AGE: 20 YEARS, OCC: NIL,
BOTH ARE R/O: HOUSING COLONY,
MUDHOL, DIST: BAGALKOT.
...APPELLANTS
(BY SRI. HARISH S.MAIGUR, ADVOCATE)
AND:
Digitally 1. NARAYAN
signed by S/O. TIMMANNA SARAWAD,
BHARATHI H
BHARATHI M AGE: 44 YEARS, OCC: AGRICULTURE,
HM Date:
2024.01.18 R/O: HOUSING COLONY, MUDHOL.
12:27:28
+0530
2. THE MANAGER,
BAJAJ ALLIANCE GENERAL INSURANCE CO. LTD.,
MADIWALE ARCADE, BELAGAVI.
3. VENKANAGOUDA
S/O. MALLANAGOUDA PATIL,
AGE: MAJOR, OCC: BUSINESS,
R/O: VARCHAGAL, TQ: MUDHOL.
...RESPONDENTS
(BY SRI. S.K. KAYAKAMATH, ADVOCATE FOR R2;
SRI. R.K. KULKARNI, ADVOCATE FOR R3;
NOTICE TO R1 SERVED)
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MFA No. 100473 of 2016
C/W MFA No. 100474 of 2016
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, AGAINST JUDGMENT AND AWARD
DATED 05.08.2015, PASSED IN MVC NO.386/2012 ON THE FILE OF
THE MOTOR VEHICLE ACCIDENT CLAIMS TRIBUNAL-IX, MUDHOL,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
IN M. F. A. NO. 100474 OF 2016
BETWEEN:
SMT. SANGAMMA
W/O. SHIVANAND BATAKURKI,
AGE: 39 YEARS, OCC: MILK VENDING, NOW NILL,
R/O: HOUSING COLONY,
MUDHOL, DIST: BAGALKOT.
...APPELLANT
(BY SRI. HARISH S.MAIGUR, ADVOCATE)
AND:
1. NARAYAN
S/O. TIMMANNA SARAWAD,
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O: HOUSING COLONY, MUDHOL.
2. THE MANAGER,
BAJAJ ALLIANCE GENERAL INSURANCE CO. LTD.,
MADIWALE ARCADE, BELAGAVI.
3. VENKANAGOUDA
S/O. MALLANAGOUDA PATIL,
AGE: MAJOR, OCC: BUSINESS,
R/O: VARCHAGAL, TQ: MUDHOL.
...RESPONDENTS
(BY SRI. S.K. KAYAKAMATH, ADVOCATE FOR R2;
SRI. R.K. KULKARNI, ADVOCATE FOR R3;
NOTICE TO R1 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, AGAINST JUDGMENT
AND AWARD DATED 05.08.2015, PASSED IN MVC NO.387/2012 ON
THE FILE OF THE MOTOR VEHICLE ACCIDENT CLAIMS TRIBUNAL-IX,
MUDHOL, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
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MFA No. 100473 of 2016
C/W MFA No. 100474 of 2016
THESE MISCELLANEOUS FIRST APPEALS, COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri.Harish S Maigur, learned counsel for the
appellants and Sri.S.K.Kayakamath, learned counsel for
the respondent - Insurance Company.
2. These two appeals arise out of a common
judgment and award passed in MVC Nos.386/2012 and
387/2012 dated 05.08.2015 on the file of Motor Vehicle
Accident Claims Tribunal-IX, Mudhol (hereinafter referred
to as 'Tribunal' for brevity).
3. In MFA No.100473/2016, the dependants have
filed the claim petition in MVC No.386/2012 on account of
death of Meenaxi who was the wife of Narayan Sarawad.
Whereas, in MFA No.100474/2016, is filed by the injured
claimant in MVC No.387/2012.
4. Both the claim petitions were filed under
Section 163-A of Motor Vehicles Act. Both the claim
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petitions were decided by the Tribunal by passing the
following order:
"Claim Petition in MVC.No.386/2012 filed by the
Petitioners U/Sec.163-A of M.V. Act is partly allowed with
costs of the Petition.
Petitioners of MVC.No.386/2012 are awarded just
and reasonable compensation of ₹.3,88,500/- (Three-
Lakhs Eighty-Eight-Thousand Five-Hundred Only) with
Interest at the rate of 9% p.a. from the date of petition to
till the date of depositing of the compensation amount in
the court.
Respondent No.1 and 2 are jointly and severally
liable to pay the compensation of 25% in the amount of
₹.3,88,500/- which comes to ₹.97,125/- to the
petitioners in MVC.No.386/2012. Respondent No.2/
Insurance Company is directed to deposit the
awarded compensation amount to the petitioners in
the court within 1 month from the date of this
judgment.
Respondent No.3 is liable to pay the compensation
of 75% in the amount of ₹.3,88,500/- which comes
to ₹.2,91,375/- to the petitioners in MVC.No.386/2012.
Respondent No.3 is directed to deposit the awarded
compensation amount to the petitioners in the court
within 3 months from the date of this judgment.
Draw Award Accordingly.
": APPORTIONMENT IN MVC.NO.386/2012:
On Deposit of the compensation amount Petitioner No.1
daughter of deceased is entitled at the rate of 50% in the
compensation amount. Petitioner No.2 son of deceased is
entitled at the rate of 50% in the compensation amount.
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On deposit of compensation amount Petitioner NO.1 shall
deposit 50% of her share in the compensation amount in any of
the Nationalized Banks as F.D. for a period of 3 years.
After completion of period of fixed deposit the Bank
Authorities are at liberty to release the amount shown in the
F.D. to the concerned depositor in accordance with rules and
regulations of the bank after proper identification of the
depositor.
Remaining 50% amount is to be paid to Petitioner No.1
under A/c. payee non-transferable crossed-cheque after due
Identification as per rules and after verifying the stay order
from the Hon'ble Appellate Court.
Petitioner No.2 Is minor. Hence, entire amount fallen to
the share of Minor Petitioner No.2 shall be deposited in any of
the Nationalized Banks of the choice of Guardian Petitioner No.1
in the name of Minor Petitioner No.2 showing the Petitioner
No.1 as Natural Sister and Guardian of Minor Petitioner No.2, till
Minor Petitioner No.2 attain the age of majority.
Petitioner No.1 Minor Guardian is not entitled to raise any
kind of loan on the deposit of the minor.
Bank Authorities are directed not to advance any kind of loan
on deposit of minor. Bank authorities should directly credit the
periodical interest on the Minors deposit directly to the account
of the guardian.
After Petitioner No.2 attain the age of majority the bank
authorities are at liberty to release the deposited amount in
favour of the depositor after verifying the age proof of the
depositor.
The Guardian is entitled to receive the periodical interest
on the deposit of the Minor and it should be used for the benefit
of the Minor.
Claim Petition in MVC.No.387/2012 filed by the Petitioner
U/Sec.163-A of M.V. Act is dismissed as not maintainable.
Since common judgment is passed in these cases original
shall be kept in MVC.No.386/2012 and copy of the same shall
be placed in another clubbed case."
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5. Being aggrieved by the dismissal of the claim
petition in MVC No.387/2012, the claimant who was an
injured has filed appeal in MFA No.100474/2016, whereas
granting of compensation and fixing the liability on the
Insurance Company to the extent of 25% on account of
contributory negligence in respect of claim with regard to
death of Meenaxi, MFA No.100473/2016 is preferred.
6. Sri.Harish S Maigur, learned counsel for the
appellants in both the cases, vehemently contended that
Division Bench of this Court in the case of Sharabai and
Another vs. P. Sahebkhan and Others reported in
2006 ACJ 229 has held that when the Court is of the
opinion that the income claimed by the claimant exceeds
the maximum limit of Rs.40,000/- by taking into the claim
petition averments, the claimant may be permitted to
restrict income to Rs.40,000/- so as to fall within the
income brackets of Rs.40,000/- to claim compensation
under Section 163(A) of the Motor Vehicles Act.
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7. He further contended that in case of claim
petition filed by the minor children of deceased Meenaxi,
fixing of contributory negligence to the extent of 75% on
the driver of the car when the offending car did not
possess valid insurance policy as on the date of the
accident, has resulted in injustice and sought for allowing
the appeals to the extent by holding that 50% of
contributory negligence should be placed on both vehicles.
8. He also pressed into service that the claimant in
MVC No.387/2012 cannot be penalized for the accident
that has occurred on account of rash and negligent driving
of the rider of the car which is depicted in the sketch.
9. Per contra, Sri.S.K.Kayakamath, learned
counsel representing the Insurance Company of the car in
question contended that, since the offending car did not
have proper insurance policy as on the date of the
accident and the driver of the car did not possess the
driving licence, no contributory negligence could have
been attributed to the driver of the car and therefore
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ordering 25% contributory negligence on the driver of the
car and directing the Insurance Company to pay the
compensation itself is incorrect.
10. In respect of claim in MVC No.387/2012 is
concerned, he submits that the income of the claimant has
been shown as more than Rs.40,000/- which exceeds the
limit contemplated under Section 163-A of Motor Vehicles
Act. The same is properly appreciated by the Tribunal and
has rightly dismissed the said claim petition and sought for
dismissal of both the appeals.
11. In view of the rival contentions of the parties,
this Court perused the material on record meticulously. On
such perusal, it is not in dispute that the driver of the car
had no valid driving licence and also car was not insured
as on the date of the accident. Therefore, taking note of all
these aspects of the matter, the Tribunal allowed the claim
petition in MVC No.386/2012 and granted a sum of
Rs.3,88,500/- as compensation with interest at 9% p.a.
and directed the Insurance Company of the car to pay the
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compensation to the extent of 25% and balance amount
was ordered to be recovered from the owner of the
offending car.
12. It is to be noted that in MVC No.386/2012, the
Tribunal has wrongly taken the multiplier as 16, but the
deceased was aged 35 years at the time of death and
therefore proper multiplier would be 17. Therefore, the
compensation towards loss of dependency has to be
reassessed in a sum of Rs.4,08,000/- as against
Rs.3,84,000/-. Hence, the claimants in MVC No.386/2012
would be entitled to total compensation of Rs.4,12,500/-.
13. Accordingly, the quantum of compensation
amount is reassessed at Rs.4,12,500/- as against
Rs.3,88,500/-. 25% of the same works out to
Rs.1,03,125/- as against Rs.97,125/-. The same is
payable by the respondent No.2 - Insurance Company and
balance amount is to be recovered from the respondent
No.3 - owner.
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14. Accordingly, to that extent MFA
No.100473/2016 needs to be allowed in part.
15. Insofar as MFA No.100474/2016 is concerned,
the Tribunal has dismissed the claim petition on the
ground that the income claimed by the claimant would
cross Rs.40,000/- p.a. The said finding of the Tribunal is
incorrect in view of the principles of law enunciated in
Sharabai supra by the Division Bench of this Court, the
Tribunal was bound to consider the income by restricting
the same to Rs.40,000/- p.a. Therefore, the claim petition
needs to be considered on merits.
16. Hence, the quantum of compensation for the
injuries sustained by the claimant would be as under:
Towards loss of future Rs.54,400/-
earnings
Rs.40,000 (income) x 17
(multiplier) x 8% (disability)
Towards pain and suffering Rs.5,000/-
Towards medical expenses Rs.15,000/-
Towards loss of income Rs.10,000/-
during laid up period
Total Rs.84,400/-
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17. Accordingly, a case is made out for allowing the
appeal filed by the claimant in MVC No.387/2012 by
granting total compensation of Rs.84,400/-.
18. In view of the foregoing discussion, following
order is passed:
ORDER
(i) MFA No.100473/2016 is allowed in part.
(ii) As against the compensation awarded in a sum
of Rs.3,88,500/-, the claimant would be entitled
to Rs.4,12,500/- of which 25% of compensation
in a sum of Rs.1,03,125/- would be payable by
the Insurance Company of the car who is
respondent No.2. Balance 75% of compensation
is payable by the owner of the car who is
respondent No.3. The compensation shall carry
interest at the rate of 6% p.a. from the date of
petition till realisation.
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(iii) MFA No.100474/2016 is allowed by setting
aside the judgment and award passed in MVC
No.387/2012 dismissing the claim petition and
the claimant would be entitled to Rs.84,400/-
with interest at 6% p.a. from the date of
petition till realisation.
(iv) Out of the said compensation, 25% would be
payable by the Insurance Company of the car
who is respondent No.2 and balance 75% of
compensation is payable by the owner of the
car who is respondent No.3.
(v) The impugned judgment and award stand
modified to the above extent.
(vi) Four weeks time is granted to make the
payment.
Sd/-
JUDGE
SH
