Karnataka High Court
Gourawwa W/O Basavanni Gokavi vs The Divisional Controller on 5 January, 2024
Author: V.Srishananda
Bench: V.Srishananda
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NC: 2024:KHC-D:271
MFA No. 102397 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
MISCELLANEOUS FIRST APPEAL NO.102397 OF 2016 (MV-D)
BETWEEN:
1. SMT. GOURAWWA W/O. BASAVANNI GOKAVI,
AGE: 72 YEARS, OCC: NIL,
R/O. HATTIALUR, TAL: HUKKERI,
DIST: BELAGAVI.
2. SHRI. BASAVANNI S/O. SHIVARUDRAPPA GOKAVI,
AGE: 82 YEARS, OCC: NIL,
R/O: HATTIALUR, TAL: HUKKERI,
DIST: BELAGAVI.
...APPELLANTS
(BY SMT. GEETHA K.M. @ PAWAR, ADVOCATE)
AND:
1. THE DIVISIONAL CONTROLLER,
DIVISIONAL OFFICE, NWKRTC, BELAGAVI.
2. SMT. NIRMALA, W/O. GIREPPA GOKAVI,
AGE: 32 YEARS, OCC: HOUSEHOLD,
R/O: HATTIALUR, TAL: HUKKERI,
DIST: BELAGAVI.
3. KUMAR SUNIL, S/O. GIREPPA GOKAVI,
AGE: 10 YEARS, OCC: STUDENT,
R/O. HATTIALUR, TAL: HUKKERI,
Digitally
signed by
SAROJA DIST: BELAGAVI.
SAROJA HANGARAKI
HANGARAKI Date:
2024.01.25
11:45:09 4. KUMAR ANIL S/O. GIREPPA GOKAVI,
+0530
AGE: 8 YEARS, OCC: STUDENT,
R/O: HATTIALUR, TQ: HUKKERI,
DIST: BELAGAVI.
(R3 AND R4 ARE REP. BY THEIR NATURAL
GUARDIAN MOTHER, REPSONDENT NO.2)
...RESPONDENTS
(BY SRI. S.C. BHUTI, ADVOCATE FOR R1;
R2 DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION
173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED
08.01.2016 PASSED IN MVC NO.292/2014 ON THE FILE OF THE VI
ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER, ADDITIONAL
MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, DISMISSING THE
PETITION FILED U/S.163-A OF M.V. ACT.
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NC: 2024:KHC-D:271
MFA No. 102397 of 2016
THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR
ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though the matter is listed for orders by the consent
of the parties, matter is taken up for final disposal.
2. Heard learned counsel Smt.Geetha K.M. and
Sri.S.C.Bhuti.
3. In respect of road traffic accident that occurred on
16.09.2012 at about 11.30 am on Gokak-Hidkal dam road,
driver of the bus bearing No.KA-23/F-271 dashed against
the motorcycle and whereby Gireppa Gokavi sustained
grievous injures. He was shifted to hospital. But,
ultimately, he succumbed to injuries. Therefore, a claim
petition was filed seeking compensation under Section
163-A of the MV Act.
4. In the claim petition itself, the claimants contended
that the income of the deceased was in a sum of Rs.110/-
per day, whereby the annual income was Rs.40,150/-.
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5. The claim petition was resisted by the KSRTC by
filing the detailed written statement.
6. Learned trial judge after raising necessary issues and
recording the evidence of first claimant and two other
witnesses on behalf of the KSRTC considered the
documentary evidence placed on record by claimants and
respondents, dismissed the claim petition holding that the
deceased had income more than Rs.40,000/- p.a. and
therefore, claimants are not entitled for compensation
under Section 163-A of MV Act.
7. Being aggrieved by the same, the claimants have
preferred this appeal.
7.1 Smt. Geetha K.M. @ Pawar, counsel reiterated the
grounds urged in the claim petition and contended that
trail court ought not to have dismissed the claim petition
in view of the principles of law enunciated in the case of
Sharabai and Another vs. P.Sahebkhan and Others
reported in 2006 ACJ 229 and sought for allowing the
claim petition.
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8. Learned counsel Sri.S.C.Bhuti however opposes the
appeal grounds contending that when the claimants have
mentioned that the daily income of deceased is Rs.110/-
per day it would exceed the Annual income at Rs.40,000/-
and claim petition filed in MVC No.983/2013 having been
withdrawn, the claimants ought not to have been
permitted to file claim again under Section 163-A. More
so, when claimants themselves have stated that daily
income is Rs.110/- per day and sought for dismissal of the
appeal.
9. In view of the rival contentions of the parties, this
Court perused the material on record meticulously.
10. On such perusal of the material on record, it is
crystal clear that Gireppa succumbed to the accidental
injuries involving a motorcycle and KSRTC bus bearing
No.KA-23/F-271. Material on record also disclose that a
claim petition was filed in MVC No.983/2013 which was
withdrawn and MVC No.292/2014 came to be filed under
Section 163-A of MV Act.
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11. Learned trial judge discussed this aspect of the
matter in paragraph 16 of the impugned judgment in
detail and recorded a finding that claimants themselves
have admitted that deceased had income of Rs.1,50,000/-
p.a. and therefore, petition under Section 163-A of the MV
Act could not have been maintained having regard to the
fact that the deceased is having income more than
Rs.40,000/- p.a.
12. Law on the point is no longer res-integra. A division
Bench of this Court in the case of Sharabai and Another
supra in paragraph 6 has held as under:
"6. Admittedly, the appellants-claimants made
application only under Section 163-A of the Act.
The argument of the learned Counsel for the
Insurance Company is that since in the said
application it was claimed by the claimants that
the deceased was earning yearly income of
Rs. 1,00,000/- and since that income is more than
Rs. 40,000/-, the application filed by them is not
maintainable and that application ought to have
been treated as the one filed under Section 166 of
the Act and dealt with accordingly. This
submission is not acceptable to us for more than
one reason. The pleading of a party can never be
placed on the pedestal of a law. Simply because
the claimants have under a wrong perception or
appreciation of the facts asserted a fact which
NC: 2024:KHC-D:271
they cannot prove, that circumstance itself without
anything further has no legal efficacy to determine
the jurisdiction of the M. A. C. T. The jurisdiction
of the M. A. C. T. is determined by the law and not
by pleading of a party who invokes its jurisdiction.
Be that as it may, it is not a finding of the M. A. C.
T. that the yearly income of the deceased was
more than Rs. 40,000/-. On appreciation of oral
and documentary evidence, the Tribunal has
recorded a finding that the deceased was earning
only Rs. 2,400/- per month. That means that the
deceased was earning Rs. 28,800/- per annum.
Therefore, we hold that the Tribunal had
jurisdiction to entertain the application filed by the
appellants-claimants under Section 163-A of the
Act and that in entertaining that application the M.
A. C. T. has not committed any illegality as
contended by the learned Standing Counsel for the
Insurance Company."
13. On applying the principles of law enunciated in the
said judgment to the facts of this case, even though
claimants have claimed sum of Rs.1,50,000/- as annual
income, the tribunal failed to independently assess the
annual income of the deceased by assigning the proper
reasons. Therefore, in such circumstances, the annual
income can be restricted to Rs.40,000/- and claim petition
should have been allowed.
14. Accordingly, claimants have made out a case for
allowing the claim petition.
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15. This would take this court to next stage of the appeal
namely the quantum of compensation that the claimants
are entitled.
16. Taking note that the deceased was aged 39 years as
on the date of accident, based on the II schedule to the
MV Act, claimants would be entitled to the following
quantum of compensation:
Sl.No. Name of heads Amount(Rs.)
1 Loss of dependency 4,26,672-00
2 Loss of consortium 5,000-00
3 Loss of Estate 2500-00
4 Funeral and other expenses 2000-00
Total 4,36,172-00
17. Accordingly, the claimants are entitled for a sum of
Rs.4,36,172-00 with interest at 6% p.a.
18. Hence, the following :
ORDER
i) Appeal is allowed.
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ii) Impugned judgment and award
dismissing the claim petition in MVC
No.292/2014 dated 08.01.2010 is hereby set
aside.
iii) By allowing the claim petition, it is
ordered that claimants are entitled for a sum of
Rs. Rs.4,36,172-00 with interest at 6% p.a.
from the date of petition till realization.
iv) Out of compensation amount, 30% of
compensation is to be paid to wife of the
deceased and 30% of compensation is to be paid
to parents of deceased.
v) Remaining 40% is ordered to be
apportioned equally among the children of the
deceased and the same is to be kept in fixed
deposit in any nationalized bank till they attain
the age of majority.
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vi) It is ordered that the entire
compensation awarded in respect of wife of
deceased and parents of deceased is to be
released in their favour on due identification.
vii) No orders as to costs.
Sd/-
JUDGE
HMB
