Karnataka High Court
Divisional Manager vs Megha W/O Rajkumar Alase on 5 January, 2024
Author: S G Pandit
Bench: S G Pandit
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MFA No. 102698 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE K V ARAVIND
MISCELLANEOUS FIRST APPEAL NO.102698 OF 2023 (MV-D)
BETWEEN:
DIVISIONAL MANAGER,
UNITED INDIA INSURANCE COMPANY LTD,
MARUTI GALLI,
TQ. DIST. BELAGAVI.
REPT. BY ITS
AUTHORIZED SIGNATORY
DIVISIONAL MANAGER.
...APPELLANT
Digitally signed by
CHANDRASHEKAR
CHANDRASHEKAR LAXMAN
LAXMAN
KATTIMANI
KATTIMANI
Date: 2024.01.11
12:12:49 +0530
(BY SRI. SHARANAPPA S. KOLIWAD, ADVOCATE)
AND:
1. SMT. MEGHA
W/O. RAJKUMAR ALASE,
AGE: 41 YEARS,
OCC: HOUSEHOLD WORK.
2. KUM. PRATHMESH
S/O. RAJKUMAR ALASE,
AGE: 23 YEARS,
OCC: STUDENT.
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MFA No. 102698 of 2023
3. KUM. SHREYAS
S/O. RAJKUMAR ALASE,
AGE: 20 YEARS,
OCC: STUDENT,
ALL ARE R/O. ICHALKARANJI,
STATE: MAHARASHTRA,
NOW R/O. NEJ VILLAGE,
TQ. CHIKODI,
DIST: BELAGAVI-591201.
4. SRI. MEHBOOB HAJILAL SHAIKH
AGE: MAJOR, OCC. BUSINESS,
R/O. OL NO. H/5, UJALAI NAGAR,
NRITAMGAON ROAD,
UJALAIWADI, TQ. KARVEER,
DIST. KOLHAPUR,
STATE: MAHARASHTRA-416004.
...RESPONDENTS
(BY SRI. SANTOSH S. HATTIKATAGI, ADVOCATE FOR R1 TO R3,
SRI. R. M. JAVED, ADVOCATE FOR RESPONDENT NO. 4)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, CALL FOR THE RECORDS CONNECTED WITH MVC
NO.1663/2018 PASSED BY BEFORE THE ADDITIONAL MOTOR
ACCIDENTS CLAIMS TRIBUNAL AND PRINCIPAL SENIOR CIVIL
JUDGE AT CHIKODI, EXAMINE THE SAME AND SET ASIDE THE
AWARD DATED 04-02-2023 AS AGAINST THE APPELLANT IN
THE INTEREST OF JUSTICE.
THIS MFA, COMING ON FOR HEARING ON
INTERLOCUTORY APPLICATION, THIS DAY, S G PANDIT, J.,
DELIVERED THE FOLLOWING:
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MFA No. 102698 of 2023
JUDGMENT
1. Though the appeal is listed for orders on IA
3/2023 with the consent of learned counsels for the parties
the appeal is taken up for disposal.
2. Insurance company is in appeal questioning the
liability as well as quantum of compensation awarded
under judgment and award dated 04.02.2023 in MVC No.
1663/2018 on the file of the Additional Motor Accidents
Claims Tribunal and Principal Senior Civil Judge at Chikodi
(for short Tribunal).
3. Heard learned counsel Shri. S.S. Koliwad for
appellant Insurance Company and learned counsel Shri.
Santosh S. Hattikatgi for respondent Nos.1 to 3. Perused
the appeal papers including the Tribunal records.
4. Appellant was respondent No.2 and respondents
1 to 3 herein were claimants before the Tribunal. Parties to
the appeal would be referred to as they stand before the
Tribunal.
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5. Petitioners filed claim petition under Section 166
of the Motor Vehicles Act 1988 claiming compensation for
the accidental death of one Rajkumar, husband of the first
petitioner in a road traffic accident that took place on
11.04.2018 involving Motorcycle bearing No. MH-09-BU-
4949 and Tavera Car bearing No.MH-09/BA-8863. It is
stated that the deceased was running manufacturing
business and was earning more than Rs.5,00,000/-per
annum. The deceased was aged 47 years as on the date of
accident. Respondent Insurance Company on appearance
filed its objections denying the claim petition averments.
Further it is specifically contended that the accident took
place due to the sole negligence of the deceased and
further stated that deceased equally contributed to the
accident which took place on 11.04.2018.
6. The first claimant, wife of the deceased,
examined herself as PW-1 and also examined another
witness as PW-2 apart from marking Ex.P1 to Ex.P26.
Respondents also examined RW-1 officer of the Insurance
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Company and marked Ex.R1 to R9. The Tribunal on
scrutiny of the material on record awarded total
compensation of Rs.44,99,485/- on the following heads:
Sl. Heads of
Amount in Rupees
No. Compensation
1 Loss of Dependency 43,46,485=00
2 Loss of consortium 1,20,000=00
3 Loss of Estate 15,000=00
4 Funeral expenses 15,000=00
5 Conveyance 3,000=00
TOTAL 44,99,485=00
While awarding the above compensation the Tribunal
adopted multiplier of 13 added 25% of the assessed
income towards future prospects and assessed the income
of the deceased at Rs.4,01,214/- p.a. and saddled entire
liability on respondent Nos.1 and 2 and directed second
respondent Insurance Company to deposit the entire
amount of compensation. The Insurance Company being
aggrieved by fixing of entire liability and as well as
questioning the quantum of compensation is before this
Court in this appeal.
7. Learned counsel, Shri. Koliwad for respondent
No.2-insurance company (appellant herein) would submit
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that the accident occurred solely due to the negligence of
the deceased. It is submitted that deceased was riding
motorcycle and was proceeding towards Kolhapur from
IchalKaranji and the offending vehicle was coming from
Kolhapur to IchalKaranji, and the accident took place in the
middle of the road. Further, to substantiate the contention
of the appellant, learned counsel would invite attention of
this Court to Ex.P-4(a) sketch and submits that the rider of
the motorcycle i.e., deceased had crossed centre of the
road on the right side and the insured offending vehicle
was proceeding on the left side from Kolahpur of
IchalKaranji. The learned counsel would also submit that if
the deceased rider of the motorcycle had not come totally
on the right side of the road, the accident would not have
occurred. Thus, the learned counsel would submit that the
Tribunal committed an error in not considering the
contention of the appellant with regard to contributing
negligence. Learned counsel inviting attention of the Court
to paragraph No.14 of the judgment would submit that the
Tribunal having observed that the vehicle driven by the
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deceased had crossed centre of the road, ought to have
saddled the liability on the deceased.
8. The learned counsel for the respondent No.2-
insurance company further contended that the accident
had taken place on 11.04.2018 and the complaint was
lodged only on 20.04.2018 by the pillion rider. There is an
unexplained delay of more than nine days in filing the
complaint. Further, it is also submitted that the spot
mahazar was conducted on 12.04.2018 based on the MLC
intimation forwarded by the hospital. As there is an
unexplained delay in lodging the complaint, the learned
counsel would express doubt with regard to the occurrence
of the accident itself.
9. Thirdly, learned counsel for the appellant would
submit that the income assessed by the Tribunal is
erroneous. The Tribunal has assessed the income based on
the Income-Tax Returns filed by the claimants which are
marked as Exs.P.15, P.16, and P.17. The learned counsel
would submit that instead of taking average income of the
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three preceding assessment years, the Tribunal has
erroneously assessed the income considering the annual
income as shown in Ex.P.15, the Income-Tax Returns filed
for the Assessment Year 2017-2018. Thus, the learned
counsel would pray for assessing the income of the
deceased by taking the average of the annual income
mentioned in Exs.P.15, P.16, and P.17. Thus, learned
counsel for the appellant-insurance company would pray
for allowing the appeal.
10. Per contra, the learned counsel for the
claimants/respondents would submit that except Ex.P.4(a),
the appellant-insurance company has not placed on record
any corroborative evidence to substantiate the contention
of contributory negligence. The learned counsel would
submit that the appellant-insurance company has not
examined the driver of the offending vehicle nor has
examined any eye witness to the accident. Moreover, the
learned counsel would submit that the road width, where
the accident had taken place, is about 20 feet and the
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accident has taken place at 9 feet from the edge of the
northern side of the road. It is submitted that there was
still 12 feet left on the southern side of the road. Hence, he
submits that it cannot be said that the rider of the motor
cycle i.e., deceased was riding the motorcycle on the
extreme right side of the road. Thus, he submits that the
Tribunal has rightly rejected the contention of the
respondent-insurance company with regard to contributory
negligence.
11. With regard to contention of delay in lodging the
complaint, the learned counsel for the
claimants/respondents would submit that the complaint is
lodged by the pillion rider; that the pillion rider had also
sustained head injury in the accident and he was not in a
position to lodge the complaint in time; the pillion rider,
after discharge from the hospital, had lodged the complaint
on 20.04.2018; however, before lodging of such complaint,
intimation of MLC was forwarded from the hospital to the
police station on the basis of which the police authorities
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had conducted spot mahazar of the accident. Learned
counsel would further submit that the police have filed
charge sheet against the driver of the offending vehicle.
Thus, he would submit that the delay would not be fatal in
the present case.
12. Learned counsel for the claimants/respondents
would justify the income of the deceased assessed by the
Tribunal at Rs.4,01,214/-. The learned counsel would
submit that the income is assessed by the Tribunal taking
note of Ex.P.15, the Income-Tax Returns for the
Assessment Year 2017-18. The deceased was carrying on
manufacturing business/engineering job works. Since the
Tribunal has assessed the income based on Ex.P.15,
Income-Tax Returns, the learned counsel would submit
that the same requires no interference and prays for
dismissal of the appeal.
13. Having heard the learned counsels for the
parties and on perusal of the appeal papers including the
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Tribunal records, the following points would arise for
consideration:
i) Whether the Tribunal is justified in rejecting
the contention of the respondent-insurance
company with regard to the contributory
negligence?
ii) Whether the Tribunal is justified in
assessing the income of the deceased at
Rs.4,01,214/- per annum?
14. Our answers to the above points would be in the
affirmative and in the negative respectively for the
following reasons:
(a) This appeal arises from the accident that occurred on
11.04.2018 involving the motor cycle bearing
registration No.MH-09/BU-4949 which was driven by
the deceased, and the Tavera Car bearing registration
No.MH-09/BA-8863. The deceased, on his motor
cycle, was proceeding from Ichalkaranji to Kolhapur,
whereas the offending vehicle Tavera Car was coming
from Kolhapur to Ichalkaranji. Ex.P.4 is the sketch of
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the spot of the accident, which is in Marathi language,
and Ex.P.4(a) is the Kannada translation of the sketch
at Ex.P.4. On comparing Ex.P.4 and Ex.P.4(a), we
find that there is some discrepancy. Though the width
of the road is shown as 20 feet, while giving
measurement of the spot of the road from the edge of
the road, it is shown as 12 feet to the North and 17
feet to the South from the edge of the road in
translated copy i.e., Ex.P.4(a). From Ex.P.4, it is seen
that the accident had taken place about 9 feet from
the North egde of the road and from the accident spot
there was 12 feet to the South edge of the road. That
means, the accident had not taken place on the
middle of the road, as contended by the learned
counsel for the appellant-insurance company. It has
come on record that it was a head on collusion which
means that the driver of the Tavera Car had driven
the car to the extreme right of the road. The
respondent No.2/appellant-insurance company to
substantiate its contention of contributory negligence
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has not placed on record any material or examined
any witness. The insurance company has not
examined the driver of the offending vehicle who
would have explained the occurrence of the accident
nor any witness. In the absence of any corroborative
evidence, we are not inclined to disturb the finding of
the Tribunal on the aspect of the contributory
negligence.
(b) The respondent No.2/appellant-insurance company
also contended that there is delay in lodging the
complaint in respect of the accident which had taken
placed on 11.04.2018. Though the accident had taken
place on 11.04.2018, the complaint is lodged before
the police on 20.04.2018. In the meanwhile, the
hospital authorities had forwarded the intimation of
MLC to the police, on the basis of which the police
authorities had conducted spot mahazar, and in the
meanwhile, driver of the Tavera car had also
surrendered. It is significant to note that the
complainant is the pillion rider. The pillion rider had
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also suffered head injury in the accident. It is stated
that on discharge from the hospital, the pillion rider
lodged the complaint. In the above circumstances, it
cannot be said that delay in lodging the complaint
was intentional. Moreover, in the instant case, based
on the other materials, we hold that the delay in
lodging the complaint would not be fatal to the case
of claimants.
(c) The Tribunal has assessed the income of the
deceased at Rs.4,01,214/- per annum based on
Ex.P.15. The deceased husband of the first petitioner
was carrying on manufacturing business/engineering
job works. The deceased was an income tax
assessee. Claimants had produced on record
Exs.P.15, P.16, and P.17 the Income-Tax Returns for
the Assessment Years 2017-18, 2017-16, and 2016-
15 respectively. Ex.P.15 shows the annual income of
the deceased at Rs.4,01,214/-; Ex.P.16 shows the
annual income at Rs.2,92,831/-; and Ex.P.17
indicates the annual income of the deceased at
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Rs.2,89,139/-. Where the income tax returns for the
different assessment years are placed on record, it is
always for the Court take average income of
immediate preceding three years to determine the
income. In the instant case, the Tribunal instead of
assessing the income of the deceased taking average
of three immediate previous assessment years,
committed an error in determining the income only on
the basis of Ex.P.15 which is the Income-Tax Returns
filed for the Assessment Years 2017-18. If the
average of income for immediate preceding three
years as shown in Exs.P.15, P.16 and P.17 is taken
for assessing the income of the deceased, it would
come to Rs.3,27,728/- per annum. Therefore, we are
of the view that it would be appropriate to assess the
income of the deceased taking average of the income
of the three Assessment Years from 2015-16 to 2017-
18 at Rs.3,27,728/- per annum. The deceased was
aged 47 years and the Tribunal has rightly taken the
multiplier 13, and so also, the Tribunal has rightly
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added income towards future prospects at the rate of
25% of the assessed income, and has also rightly
deducted 1/3rd of the assessed income towards
personal expenses of the deceased. Thus, the
claimants would be entitled for compensation under
the head 'loss of dependency' at Rs.35,50,378/-
[Rs.3,27,728/- (annual income) + 25% = Rs.81,932/- (25% of
annual income) = Rs.4,09,660 less 1/3rd (towards personal
expense) = Rs.2,73,106 x 13 (multiplier)].
15. The Tribunal has rightly awarded the
compensation under the conventional heads i.e., towards
'loss of consortium', 'loss of estate' and 'funeral expenses',
and the same requires no interference.
16. Thus, the claimants would be entitled for
modified compensation as under:
1) Loss of Dependency Rs. 35,50,378/-
2) Loss of consortium Rs. 1,20,000/-
3) Loss of Estate Rs. 15,000/-
4) Funeral expenses Rs. 15,000/-
TOTAL Rs. 37,00,378/-
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Thus, the claimants would be entitled to reduced
compensation of Rs.37,00,378/-.
17. In the result, we pass the following:
ORDER
a) The appeal is allowed in part.
b) The impugned judgment and award, dated
04.02.2023, passed in M.V.C. No.1663/2018 by
the Tribunal is hereby modified. The claimants
are entitled to reduced compensation
Rs.37,00,378/- instead of Rs.44,99,485/-
awarded by the Tribunal, with interest as
awarded by the Tribunal.
c) The amount in deposit before this Court, if any,
shall be transmitted to the Tribunal forthwith.
d) Since it is submitted by the learned counsel for
the appellant-Insurance Company that entire
compensation amount, as awarded by the
Tribunal is deposited before the Tribunal, and
since the compensation amount payable to the
claimants is reduced, the Tribunal shall refund
the excess amount in deposit to the appellant-
insurance company.
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e) Apportionment, deposit and disbursement of the
compensation shall be made as per the award
of the Tribunal.
f) Draw modified award accordingly.
Registry to transmit the records to the Tribunal
forthwith.
No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
RKM,KMS
