Karnataka High Court
Smt Yashodamma vs Satish on 8 January, 2024
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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MFA No. 920 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO. 920 OF 2021 (MV-D)
BETWEEN:
1. SMT. YASHODAMMA,
W/O NAGARAJ,
AGED ABOUT 48 YEARS,
R/O SHANTHINAGAR,
CHORADI VILLAGE,
SHIVAMOGGA TALUK,
SHIVAMOGGA DISTRICT - 577 208.
2. JYOTHI,
D/O NAGARAJ,
AGED ABOUT 48 YEARS
R/O SHANTHINAGAR
CHORADI VILLAGE,
SHIVAMOGGA TALUK,
SHIVAMOGGA DISTRICT - 577 208.
3. MANJUNATH,
Digitally S/O NAGARAJ,
signed by B AGED ABOUT 24 YEARS,
LAVANYA R/O SHANTHINAGAR,
Location: CHORADI VILLAGE,
HIGH SHIVAMOGGA TALUK,
COURT OF SHIVAMOGGA DISTRICT -577 208.
KARNATAKA
4. SANJU,
S/O NAGARAJ,
AGED ABOUT 21 YEARS,
SHANTHINAGAR,
CHORADI VILLAGE,
SHIVAMOGGA TALUK,
SHIVAOGGA DISTRICT - 577 208.
...APPELLANTS
(BY SRI. GANAPATHI., ADVOCATE)
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MFA No. 920 of 2021
AND:
1. SATISH,
S/O SEENA SHETTI,
AGED ABOUT 41 YEARS,
R/O BOMMATHI VILLAGE,
SAGAR TALUK,
SHIMOGGA DISTRICT - 577 404.
2. RAMESH,
S/O SEENA SHETTI,
AGED ABOUT 55 YEARS,
R/O BOMMATHI VILLAGE,
SAGAR TALUK,
SHIMOGGA DISTRICT - 577 404.
3. THE MANAGER,
THE ORIENTAL INSURANCE CO. LTD.,
SAGAR BRANCH,
SAGAR,
SHIMOGGA DISTRICT - 577 401.
POLICY NO.472792/31/2017/283
VALID FROM 18-04-2017
...RESPONDENTS
(BY SRI. ASHOK.N.PATIL.,ADVOCATE FOR R3)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 02.12.2019 PASSED IN MVC
NO.20/2017 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL
JUDGE AND ADDITIONAL MACT - VII, SHIVAMOGGA, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION AND ETC.,
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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MFA No. 920 of 2021
JUDGMENT
This appeal is preferred by the claimants challenging the
judgment and award dated 02.12.2019 passed by the I
Additional Senior Civil Judge and Additional MACT-VII, at
Shivamogga (for short 'the Tribunal') in MVC.No.20/2017. This
appeal is founded on the premise of inadequacy of
compensation. Hence, the appellants seek enhancement of
compensation.
2. Parties to the appeal shall be referred to as per their
status before the Tribunal.
3. Brief facts of the case are as under:
That on 16.07.2016 at about 8.30 p.m., the deceased
Nagaraj after finishing his mason work was returning to his
house by walk from Choradi bus stand towards Sagar on the
left side of the road. At that point of time, a rider of the
motorcycle bearing registration No.KA 15 S 8492 driven by
respondent No.1 came from Shivamogga side to go towards
Sagar in a very rash and negligent manner with an high speed
so as to endanger the human life and has negligently dashed
his motorcycle against the deceased on its backside and caused
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the accident. Due to which the deceased Nagaraj fell down and
sustained grievous bleeding injury. The deceased Nagaraj was
immediately taken to Mc.ganna Hospital, Shivamogga for
treatment in an ambulance but however Nagaraj succumbed to
the injuries on the same day at 10:30 p.m.
3.1. The claimants are the wife and children of the
deceased Nagaraj. The deceased Nagaraj was aged about 50
years, working as mason and earning Rs.20,000/- to
Rs.22,000/- p.m. In view of sudden and untimely death of the
deceased, the claimants have lost their bread earner, his love
and affection and also mentally and financially. Hence, they
filed a claim petition seeking compensation.
3.2. On service of notice, respondent Nos.1 to 3 have
appeared through their respective counsel and filed their
separate objection statement. Respondent No.2 filed his
objection statement. However respondent No.1 adopted the
objection statement filed by respondent No.2. Respondent No.3
- Insurance Company has also filed his objection statement.
3.3. Respondent No.2 has denied the whole averments
of the petition by filing objection statement and denied that due
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to his rash and negligent driving of the motor cyclist the
accident occurred, wherein, Nagaraj met with an accident and
succumbed for the injuries. Respondent No.2 admitting the fact
that he is the absolute owner of the bike bearing No.KA 15 S
8492 and as there was no rashness and negligent driving of his
motor cycle by respondent No.1 and even respondent No.1 has
not caused any accident by driving the motorcycle in a rash and
negligent manner and as such these respondents are not liable
to pay any compensation. This respondent No.1 by observing
all the Traffic rules and regulations was proceeding in his
motorcycle. The alleged accident took place due to the fault of
the deceased himself. As the death is due to the fault of the
deceased himself, the claimant is not entitled for any
compensation and respondent is not liable to pay any
compensation. The claim made by the claimant is exorbitant,
excessive and not in accordance with law. Hence, prays to
dismiss the claim petition against respondent Nos.1 and 2.
3.4. Respondent No.3 has denied the whole averments
of the petition by filing objection statement. The compensation
claimed is highly excessive and exorbitant. This respondent
admits that the vehicle bearing No.KA - 15 - 6869 was duly
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insured with this respondent. The liability of this respondent is
subject to the terms and conditions of the insurance policy with
interest at 6% p.a. There is no rashness and negligent driving
of the rider of the said motor cycle at the time of accident.
Respondent No.1 was driving the said motorcycle without
holding a valid and effective driving licence to drive the class of
vehicle at the time of accident. This respondent is under
protection of Sections 147 and 149 of IMV Act. Respondent
No.2 has committed breach of policy conditions by allowing
respondent No.1 to drive the vehicle without holding a valid
driving licence. Respondent No.2 has violated the permit
conditions of the vehicle. Hence, he has prayed to dismiss the
petition. Respondent No.2 has not complied the mandatory
provisions of Section 158(6) of IMV Act, 1988. The quantum of
compensation claimed by the petitioners with different heads is
excessive and exorbitant. Hence, prays to dismiss the petition
against the third respondent.
3.5. On the basis of pleadings, the Tribunal framed
relevant issues for consideration.
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3.6. In order to substantiate the issues and to establish
the case, claimant No.3 got examined himself as PW.1 and got
examined one eyewitness as PW.2 and got marked documents
as Exs.P1 to P10. On the other hand, the R.T.O, official from
the side of respondent No.3 examined as R.W.1 and from his
side the documents Exs.R1 to R3 were marked. The Assistant
Manager of respondent No.3 got examined as RW.2 and from
his side three documents were marked as Exs.R4 to R6.
3.7. On the basis of material evidence both oral and
documentary and on hearing the submissions of learned
counsel for both parties, the tribunal awarded compensation of
Rs.8,31,400/- with interest @ 6% p.a. to the claimants from
the date of the petition till the date of deposit.
3.8. Being aggrieved by the meager compensation
awarded by the Tribunal, the claimants are before this Court
challenging the impugned judgment and award, seeking
enhancement of compensation.
4. The main contention of the learned counsel for the
claimants is that the Tribunal has misdirected itself in not
assessing the proper income and has committed an error in not
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awarding appropriate compensation and also in not awarding
loss of consortium as contemplated in the judgment of the
Hon'ble Apex Court. Accordingly, he seeks enhancement of
compensation and to allow the appeal preferred by the
claimants.
5. Per contra, learned counsel for the Insurance
Company sustains the judgment and award of the Tribunal and
contends that as there is no proof of income, the Tribunal is
right in awarding just and reasonable compensation, which
does not call for interference. Therefore, on these grounds, he
seeks to dismiss the appeal.
6. Having perused the entire material evidence both
oral and documentary and the impugned judgment and award
and having heard the submission of learned counsel, there is no
dispute with regard to occurrence of accident, involvement of
vehicle and death having occurred due to the accident and the
liability is not questioned or challenged by the Insurance
Company. The accident occurred on 16.07.2016 at about 8:30
p.m. The deceased Nagaraj was aged about 50 years as on the
date of occurrence of the accident. It is claimed that the
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deceased was working as Mason and earning Rs.20,000/- to
Rs.22,000/- per month, but no documentary proof was placed
on record in proof of income. The deceased was a pedestrian
was knocked down by motorcycle bearing registration No.KA 15
S 8492 ridden by respondent No.1.
7. The Tribunal has taken the income of the deceased
at Rs.8,000/- per month, whereas admittedly, there is no proof
of income, the tribunal and this Court will have to rely upon the
notional income chart prescribed by the Legal Services
Authority. Accordingly, it is taken as Rs.9,500/- per month for
the accident of the year 2016. Accordingly, the same requires
to be taken as the income of the deceased for computation.
8. The Tribunal has awarded 10% towards future
prospects, which does not call for interference.
9. The Tribunal deducted half of the income towards
personal and living expenses of the deceased. Whereas, there
are four dependants. But out of four, claimant Nos.2 and 3 are
married and settled and they are not dependants on the
deceased as on the date of occurrence of the accident. Taking
into consideration of the same and accepting the contentions of
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the learned counsel for the respondent - Insurance Company,
this Court deems it appropriate to deduct 1/3rd instead of ½.
Hence, Rs.6,967/- would be the income for calculation of loss of
dependency i.e., Rs.9,500 + 10% = Rs.10,450/-. On deduction
of 1/3rd, the income would be calculated at Rs.6,967/-. As the
deceased was aged 50 years, the appropriate multiplier would
be '13'. Therefore, the loss of dependency would be Rs.6,967/-
x 12 x 13 = Rs.10,86,852/- as against Rs.6,86,400/-.
10. Towards loss of consortium and love and affection,
the Tribunal has awarded Rs.1,00,000/- i.e., Rs.40,000/- and
Rs.60,000/-, respectively. As there are four dependents, each
would be entitled to a sum of Rs.40,000/- as per the judgment
of the Hon'ble Apex Court in the case of National Insurance
Company Limited vs. Pranay Sethi and others reported in
(2017) 16 Supreme Court Cases 680, which has been
subsequently followed by the Hon'ble Apex Court in the cases
of Magma General Insurance Co.Ltd. vs. Nanu Ram and
others, reported in (2018) 18 SCC 130 and United India
Insurance Co. Ltd. v. Satinder Kaur Alias Satwinder Kaur
reported in AIR 2020 SC 3076. Therefore, Rs.1,60,000/-
would be awarded under the head of consortium plus 10% as
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escalation for one block period, it should be Rs.16,000/-, in
all, Rs.1,76,000/-.
(b) The Tribunal has awarded Rs.15,000/- towards loss of
estate and Rs.30,000/- towards transportation of dead body,
funeral and miscellaneous expenses, which are on higher side.
Therefore, Rs.15,000/- towards loss of estate and Rs.15,000/-
towards transportation of dead body, funeral and miscellaneous
expenses are awarded in consonance with the judgment of
PRANAY SETHI, stated supra, Rs.30,000/- plus 10% would
be Rs.3,000/- as escalation, in all Rs.33,000/- under
conventional heads.
(c) In view of the above, the claimants would be entitled
to a total compensation of Rs.12,95,852/- as against
Rs.8,31,400/- as mentioned in the table below:
Heads Amount in Rs.
Loss of dependency 10,86,852-00
Loss of consortium 1,76,000-00
Loss of Estate and Transportation of 33,000-00
dead body funeral expenses charges
and miscellaneous expenses
TOTAL 12,95,852-00
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11. The Tribunal has dismissed the claim petition as
against respondents No.3 - Insurance Company and fastened
the liability against respondents No.1 and 2, the driver and
owner of the offending vehicle. I am in agreement with the
learned counsel for the appellants/claimants that the Tribunal
has committed an error in fastening the liability exclusively on
respondents No.1 and 2 and has absolved the liability against
the Insurance Company. The liability fixed by the Tribunal as
against respondent Nos.1 and 2 may not be correct proposition
of law as liability would be jointly and severally as against
respondent Nos.1 to 3, the owner, driver as well as the
Insurance Company as the Policy was in force as on the date of
occurrence of the accident. However, the Insurance Company
would be entitled to pay the compensation and recover the
same from respondent Nos.1 and 2.
12. Accordingly, I pass the following:
ORDER
i) The appeal is allowed-in-part;
ii) The judgment and award dated 02.12.2019 passed by
the I Additional Senior Civil Judge and Additional
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MACT-VII, at Shivamogga in MVC.No.20/2017 is
modified;
iii) The claimants would be entitled to a sum of
Rs.12,95,852/- as against Rs.8,31,400/- with
interest @ 6% p.a., from the date of petition till
realization;
iv) The liability is fastened jointly against respondents
No.1 to 3 in view of subsistence of policy. Respondent
No.3 is directed to pay the compensation amount;
v) The balance enhanced compensation shall be paid by
the respondent - Insurance Company within a period
of four weeks with interest @ 6% p.a., from the date
of receipt of copy of this order;
vi) All other terms and conditions of the Tribunal shall
stand intact;
vii) Registry is directed to transmit the original records to
the jurisdictional Tribunal.
Sd/-
JUDGE
CP
