Karnataka High Court
Jyothi And Ors vs Santosh And Anr on 5 January, 2024
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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MFA No.201462 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
MISCL. FIRST APPEAL NO.201462 OF 2018 (MV-D)
BETWEEN:
1. JYOTHI
W/O LATE SHASHIKANTH TELANG
AGE: 32 YEARS
OCC: HOUSEHOLD
R/O KANKATTA
TQ: HUMNABAD
DIST: BIDAR - 585 330
2. KEERTHI
D/O LATE SHASHIKANTH TELANG
Digitally signed by
SWETA KULKARNI AGE: 10 YEARS, MINOR
Location: High
Court Of Karnataka U/G OF HER REAL AND
NATURAL MOTHER APPELLANT NO.1
R/O REST AS ABOVE.
NAGAYYA S/O SHIVAYYA (DIED) Deleted, as per order
dtd.05.01.2024.
3. SHANTAMMA
W/O NAGAYYA TELANG
AGE: 72 YEARS
OCC: HOUSEHOLD
R/O VILLAGE KANKATTA
TQ: HUMNABAD
DSIT: BIDAR - 585 330.
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MFA No.201462 of 2018
4. PREETI
D/O LATE SHASHIKANTH TELANG Appellant No.4 inserted as
AGE ABOUT 3½ YEARS per order dtd.05.01.2024.
MINOR UNDER GUARDIAN OF
APPELLANT NO.1.
...APPELLANTS
(BY SRI. BASAVARAJ R. MATH, ADVOCATE)
AND:
1. SANTOSH
S/O NAGNATH GOULI
AGE: MAJOR,
OCC: OWNER OF THE TATA MAGIC JEEP
R/O H.NO.6-401/18, JAGATH MAIN ROAD
GULBARGA - 585 102
W.F.12-6-12
2. THE GENERAL MANAGER
RELIANCE GENERAL INSURANCE CO.
472 & 474, V.A. KALABURAGI SQUARE
DESAI CROSS, DESHPANDE NAGAR
HUBLI - 580 029.
...RESPONDENTS
(BY SRI SUBHASH MALLAPUR, ADVOCATE FOR R2;
NOTICE TO R1 IS HELD SUFFICIENT V/O. DATED 24.05.2022)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO SET ASIDE THE IMPUGNED
JUDGMENT AND AWARD DATED 25.04.2018 PASSED BY THE
SENIOR CIVIL JUDGE AND MACT., HUMNABAD IN
M.V.C.NO.166/2016 AND PLEASED TO ALLOW THE CLAIM
PETITION, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
B.M.SHYAM PRASAD J., DELIVERED THE FOLLOWING:
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MFA No.201462 of 2018
JUDGMENT
The appellants' claim petition in MVC No.166/2016 on
the file of the Senior Civil Judge and MACT, Humnabad [for
short, 'the Tribunal'] is rejected by the impugned judgment
and award dated 25.04.2018. The appellants are
the wife, children and mother of Sri Shashikanth Telang
[deceased]. Sri Shashikanth Telang, who was employed as
the Superintendent with Gulbarga Electricity Supply
Company Limited [GESCOM] , has died because of the fatal
injuries suffered by him in a road accident on 10.12.2015
when the Tata Magic Ace Jeep bearing Reg. No.KA-32/M-
8449 [the offending vehicle] hit him. The appellants assert
that Sri Shashikanth Telang was returning from Humnabad
[his place of work] to Kanakatta [his village] by foot.
2. The appellants have filed their claim petition
asserting the afore, and the owner of the offending vehicle
has filed the objection denying the involvement of the
offending vehicle. The Insurer has also filed its similar
written statement but without denying that the offending
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vehicle is insured. It is brought on record that on a
complaint lodged, the jurisdictional police have registered
FIR and conducted investigation resulting in charge-sheet
against the driver of the vehicle who has stood trial in
CC No.62/2016 on the file of the JMFC, Humnabad.
3. The appellants, to establish the accident and the
involvement of the offending vehicle, have examined a
certain Sri Sanjeev S/o Vithal as PW-2. This witness has
stated that he and another, Sri Hanmanth, were proceeding
on his two-wheeler to go to Humnabad to board a bus to
travel to Hyderabad to buy a pump set and that the
offending vehicle, which overtook them, hit Sri Shashikanth
Telang. The appellants, apart from examining this witness,
have also marked the records in the criminal proceedings
which include the spot mahazar, inquest panchanama and
motor vehicle inspection report. The owner of the offending
vehicle has not let in any evidence.
4. The owner of the offending vehicle has not
examined any witness but the Insurer has examined its
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authorized officer, Sri Prabhakar S/o Nagappa, as RW-1.
Sri Prabhakar has deposed in his chief-examination that
there is doubt about the involvement of the vehicle because
the accident is in the early hours on 10.12.2015 when there
would be darkness. Sri Prabhakar has referred to
Sri Sanjeev's evidence in CC No.62/2016 as P.W.4, and the
deposition is marked as Ex.R4. Sri Sanjeev even in his
evidence before the criminal case in CC No.62/2016 is
consistent in stating that he was traveling with
Sri Hanmanth on his two-wheeler in the early hours to go to
Hyderabad to buy pump set and that the offending vehicle
overtook them and they could see the vehicle hit
Sri Shashikanth Telang who was walking on the side of the
road.
5. The Tribunal, which was considering the issue on
whether the appellants prove that the deceased had died in
a road traffic accident involving the offending vehicle, has
referred to the evidence including the documentary evidence
and has disbelieved the appellants' case about the
involvement of the offending vehicle. The Tribunal has
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opined that the witness, Sri Sanjeev, has stated in evidence
that he had to cross Humnabad Police Station to go to
Humnabad Bus-Stand to take a bus to Hyderabad but he
did not stop at the police station to inform the police, and
this creates serious suspicion about the involvement of the
offending vehicle. The Tribunal has further opined that the
witness has not supported the prosecution's case in the
criminal proceedings.
6. The appellants, as regards the income of the
deceased, have marked Ex.P8, P12 and P131. These are
salary certificates for the months of May and November
2015. It is seen from the records that the appellants have
filed an application under the provisions of Order XVI of
Code of Civil Procedure, 1908 for issuance of witness
summons to the Accountant with GESCOM, Humnabad and
the Tribunal has allowed this application on a cost of
Rs.250/-. Sri Sham Dani S/o Hanumantappa, who is thus
summoned, is examined as RW2. He has stated in his
1 Note: Ex.P8 and P13 are the salary certificates of same month i.e., May, 2015.
Ex.P8 is the hand written copy and Ex.P13 is the typed copy.
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evidence, in consonance with the salary certificates, that
Sri Shashikanth Telang, who was in permanent employment
as a Superintendent with the GESCOM, Humnabad, is paid
a sum of Rs.30,253/- as salary for the month of May 2015
and he is paid a sum of Rs.23,383/- as salary for the month
of November 2015. This witness has stated that
Sri Shashikanth Telang could be paid less in the month of
November 2015 because he was on leave.
7. Sri Basavaraj R. Math, the learned counsel for
the appellants, and Sri Subhash Mallapur, the learned
counsel for the Insurer, are heard in the light of these
circumstances for final disposal of the appeal. This Court is
of the considered view that the points for consideration
would be:
Whether this Court can opine that the Tribunal is
justified in rejecting the appellants' claim petition
on the ground that they have failed to establish the
involvement of the offending vehicle in the accident
on 10.12.2015 in which Sri Shashikanth Telang
has died, and if the answer to the afore is in the
negative, what would be the just and reasonable
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compensation that should be awarded to the
appellants.
8. This Court must, at the very outset, observe that
there cannot be any dispute about Sri Shashikanth Telang's
death because of the injuries suffered in a road accident on
10.12.2015. This is not just because of the tenor of the
defense put up by both the owner and the Insurer but also
because of the police records such as spot mahazar,
postmortem report and inquest panchanama. The doctor,
who had conducted the panchanama, has opined that the
"death was due to acute cardio- respiratory arrest secondary
to the acute shock and hemorrhage as a result of head and
brain matter injury and chest lung matter injures" and in the
spot mahazar drawn indicating that Sri Shashikanth Telang
has died on the spot in a road traffic accident on Kanakatta
- Humnabad road. Further, the police have seized the
offending vehicle two days after the accident, and the
jurisdictional Assistant Regional Transport Officer has also
filed the Motor Vehicle Report. This report categorically
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records that the offending vehicle's front right side wheel
fender is damaged.
9. Sri Sanjeev S/o Vithal, the eyewitness, as first
mentioned above, is consistent in his evidence that the
offending vehicle overtook him and his pillion when they
were traveling on his two-wheeler, and that he saw the
offending vehicle hit Sri Shashikanth Telang. This witness
is consistent in this regard both in the criminal proceedings
and before the Tribunal. The Assistant Public Prosecutor
has cross-examined this witness in the criminal
proceedings, after the witness is treated as hostile, only
because he has stated that he could not name the driver
who was driving the offending vehicle or give the registration
number of the vehicle.
10. Significantly, this witness, as also observed by
the Tribunal, has stated that he called the police over his
telephone to inform but they did not respond and that
though the Humnabad Police Station is adjacent to
Humnabad Bus-stand from where he took a bus to go to
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Hyderabad, he did not inform the police immediately.
However, in the same breath, this witness has stated that
after he boarded the bus he called upon Sri Shashikanth
Telang's wife and informed her about the accident. This
evidence is not undermined in any manner. This Court, in
the light of these overwhelming circumstances, is not
persuaded to opine that the Tribunal is justified in
concluding that the involvement of the offending vehicle is in
serious doubt only because the accident is in the early hours
of the day and the witness, Sri Sanjeev S/o Vithal, did not
inform the police before taking the bus to Humnabad. The
appellants have placed sufficient material on record, which
when appreciated on the scale of preponderance of
probabilities, indicate the involvement of the offending
vehicle and hence the owner/Insurer of the offending vehicle
will be liable to answer the claim. The first part of the
question is answered accordingly.
11. Sri Shashikanth Telang being employed as a
Superintendent with GESCOM is established by the
evidence of the Accountant, who is summoned and
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examined as RW-2. The salary certificates are also marked
as Ex. P8, P12 and P13. If the salary for the month of May
2015 is in a sum of Rs.30,253/-, the salary for the month of
November 2015, the month just before the month of
accident, is shown as Rs.23,383/-. This difference is
explained by the Accountant stating that if an employee is
on an unauthorized leave, there would be deductions. This
Court is therefore of the considered view that a sum of
Rs.30,253/- should be taken as the income of
Sri Shashikanth Telang for the purpose of computing loss of
dependency subject to appropriate deductions.
12. In the light of the fact that it is undisputed that
for the relevant assessment year, the standard deduction
was Rs.2,50,000/- and that the tax payable on the amount
above Rs.2,50,000/- but below Rs.5,00,000/- is 10%, this
Court, at the first instance, must allow for deduction in a
sum of Rs.2,400/- from the annual income towards
professional tax and a sum of Rs.11,063/- towards income
tax. The net annual income will be therefore Rs.3,49,573/-.
It is undisputed that Sri Shashikanth Telang was aged
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about 40 years and four members [the appellants], were
dependent on him. There must be capitalization of loss of
dependency deducting 1/4th towards personal expenses but
with addition of 30% towards future prospects in view of the
decision of the Hon'ble Supreme Court in the case of
National Insurance Company Ltd. Vs. Pranay Sethi &
Ors2 and applying the multiplier of 15. The loss of
dependency when computed, will be in a sum of
Rs.51,12,505/- determined in the following manner:
Description Amount
Annual Income Rs.3,49,573/-
Addition of 30% towards
Rs.1,04,871/-
future prospects
After addition of 30%, the
Rs.4,54,444/-
annual income would be:
Deduction of 1/4th towards
Rs.1,13,611/-
personal expenses
After deduction, the annual
Rs.3,40,833/-
income would be
Loss of Dependency Rs.51,12,495/-
(2017) 16 SCC 680
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13. The appellants, in addition to the above, will be
entitled to a sum of Rs.48,000/- towards loss of consortium,
and the appellants would also be entitled for a sum
Rs.36,000/- towards transportation of dead body, loss of
estate and funeral expenses3. Thus, the appellants will be
entitled a total sum of Rs.51,96,495/- as detailed below:
Description Amount
Loss of Dependency Rs.51,12,495/-
Towards loss of consortium Rs.48,000/-
Transportation of dead body,
loss of estate and funeral Rs.36,000/-
expenses
Total Rs.51,96,495/-
14. The first appellant is the wife, the second
appellant is the daughter, who was aged only 08 years as of
the date of the accident, and the fourth appellant, who is
another daughter was aged 1 and ½ years as of the date of
the accident. The third appellant is the mother, who as of
the date of the accident was aged about 70 years. There is
no evidence to indicate that Sri Shashikanth Telang was the
3 These amounts will be with addition of 10% as accepted by
Sri. Subhash Mallapur
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only son of the third appellant. This Court is of the
considered view that the apportionment of the compensation
amongst the four appellants must be in the ratio of
40:25:10:25. For the foregoing, the following:
ORDER
[i] The appeal is allowed, and the Tribunal's
judgment and award dated 25.04.2018 in
MVC No.166/2016 is set aside granting a
total compensation of Rs.51,96,495/-.
[ii] The second respondent - Insurer shall pay
the compensation along with interest at the
rate of 6% p.a. within a period of eight weeks
[8] from the date of receipt of a certified copy
of this order.
[iii] The first appellant shall be entitled for
disbursement of 30% out of 40%
compensation apportioned to her and the
remaining 10% shall be kept in deposit in
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any nationalized bank for a period of three [3]
years.
[iv] The 10% of the compensation apportioned to
the third appellant shall be disbursed
forthwith on the deposit subject to identity.
[v] The compensation apportioned to the second
and fourth respondent at the rate of 25%
each shall be invested in fixed deposit in a
nationalized bank for the period until they
attain the age of majority.
[vi] The Registry is directed to send back the
trial court records to the Tribunal.
Sd/-
JUDGE
Sd/-
JUDGE
BL
CT;Vk
