Karnataka High Court
The Divisional Manager vs Smt Rizwana W/O Bashasab Mulla on 4 July, 2024
Author: S G Pandit
Bench: S G Pandit
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MFA NO.102141/2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 04TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
MFA NO.102141 OF 2022 (MV-D)
BETWEEN:
THE DIVISIONAL MANAGER
NATIONAL INSURANCE COMPANY LIMITED,
OPP. SBI ZONAL OFFICE,
KUSUGAL ROAD, KESHWAPUR, HUBBALLI,
NOW R/BY ITS AUTHORIZED SIGNATORY.
...APPELLANT
(BY SRI. S.K. KAYAKMATH, ADVOCATE)
AND:
1. SMT. RIZWANA W/O BASHASAB MULLA
AGE. 32 YEARS, OCC. HOUSEHOLD,
2. SRI. MOHAMMED MUSTAFA MULLA
S/O BASHASAB
AGE. 12 YEARS, OCC. STUDENT,
3. KUMARI APHSANABANU MULLA
D/O BASHASAB
Digitally
signed by
JAGADISH T
R
AGE. 11 YEARS, OCC. STUDENT,
JAGADISH Location:
TR HIGH
RESPONDENT NO.2 & 3 ARE MINORS,
COURT OF
KARNATAKA
DHARWAD
BENCH
R/BY. THEIR MINOR GUARDIAN
NATURAL MOTHER RESPONDENT NO.1.
4. SALEEMSAB S/O. AKBARSAB MULLA
AGE. 65 YEARS, OCC. AGRICULTURE,
5. SMT. MEHABOOBI W/O. SALEEMSAB MULLA
AGE. 55 YEARS, OCC. HOUSEHOLD WORK,
ALL ARE R/O. K.K. NAGAR,
4TH CROSS, BIDNAL ROAD, HUBBALLI-580020.
TQ. HUBBALLI DIST. DHARWAD.
6. SRI. MANJUNATH S/O BASAPPA KOLUR
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MFA NO.102141/2022
AGE. MAJOR, OCC. OWNER OF TT UNIT
BEARING REGISTRATION NO.KA-25/T-3878-3879,
R/O. AT POST. RAYANAL,
TQ. HUBBALLI, DIST. DHARWAD-580001.
...RESPONDENTS
(BY SRI. HARISH S. MAIGUR, ADVOCATE FOR C/R1 TO R5
SRI. PRAKASH ANDANIMATH, ADVOCATE FOR R6)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED 11.03.2022
PASSED IN MVC NO.333/2020 ON THE FILE OF I ADDL. SENIOR
CIVIL JUDGE AND ADDL. MACT, HUBBALLI, AWARDING
COMPENSATION OF RS.59,70,580/- WITH INTEREST AT 6 PERCENT
P.A. FROM THE DATE OF PETITION TILL ITS DEPOSIT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
25.06.2024 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT
The insurance company is in appeal challenging the
liability saddled on it as well as quantum of compensation
awarded under judgment and award dated 11.03.2022
passed in MVC No.333/2020 on the file of learned I Addl.
Senior Civil Judge and Member, Addl. MACT, Hubballi (for
short, 'Tribunal').
2. The claimants, who are the wife, children and
parents of the deceased Bashasab Mulla, filed a claim
petition under Section 166 of the Motor Vehicles Act, 1988
before the Tribunal seeking compensation for the accidental
death of deceased Bashasab Mulla that took place on
22.11.2019 involving motorcycle bearing registration No.KA-
63/H-6400 and Tractor-trailer bearing registration No.KA-
25/G-3878 & 3879. It is stated that the deceased was aged
about 33 years as on the date of accident and he was
working as driver as well as doing business, earning
Rs.28,948/- per month.
3. On issuance of notice, respondent No.2/Insurance
Company appeared and filed statement of objections denying
the entire claim petition averments. It also denied that the
accident occurred due to negligent act of the driver of the
tractor-trailer. It further contended that the driver of the
Tractor-trailer was not holding valid and effective driving
license and tractor was also not having valid permit and
fitness as on the date of accident. Thus, prayed for dismissal
of the claim petition.
4. Before the Tribunal, claimant No.1-wife of the
deceased was examined herself as PW1 and got marked the
documents as Exs.P1 to P14. On behalf of the respondents,
Assistant Manager of respondent No.2 examined as RW1 and
got marked insurance policy as Ex.R1. The Tribunal on
scrutiny of entire material evidence on record awarded total
compensation of Rs.59,70,580/- with interest at 6% per
annum on the following heads:
Loss of dependency Rs.57,80,580/-
Funeral expenses Rs. 15,000/-
Loss of estate Rs. 15,000/-
Loss of consortium Rs. 1,60,000/-
Total Rs.59,70,580/-
5. While awarding the above compensation, the
Tribunal assessed income of the deceased at Rs.3,44,082/-
per annum, added 40% of the assessed income towards
future prospects and deducted 1/4th towards personal and
living expenses of the deceased. Aggrieved by saddling of
liability as well as quantum of compensation, the insurance
company is in appeal.
6. Heard Sri.S.K.Kayakamath, learned counsel for
the appellant-Insurer as well as Sri.Harish S Maigur, learned
counsel for the respondents/claimants and perused the
appeal papers along with original records of the Tribunal.
7. Sri.S.K.Kayakamath, learned counsel for the
appellant-Insurance Company with vehemence would
contend that the Tribunal committed an error in saddling
liability on the appellant/insurance company, since the driver
of tractor-trailer had no valid and effective driving license as
on the date of accident. He further contends that the
Tribunal also committed an error in directing the
appellant/Insurance Company to pay compensation at the
first instance with liberty to recover the same from the
owner of the offending vehicle. Further, learned counsel
would submit that when there is no license and when owner
or driver of the Tractor has failed to produced driving license
of driver, the Tribunal ought not to have saddled liability on
the insurance company.
8. As regards the quantum of compensation, learned
counsel Sri. S.K.Kayakamth would submit that the Tribunal
committed an error in assessing the income of the deceased
at Rs.3,47,580/- based on Ex.P8-Income Tax returns for the
Assessment Year 2018-19. Learned counsel would submit
that the claim petition states that the deceased was working
as driver and also doing business, but Ex.P8-
acknowledgement for having paid income tax for A.Y.2018-
19 discloses gross income of the deceased at Rs.3,47,580/-
per annum. Learned counsel would point out that the
claimants have not placed on record income tax returns for
the assessment years prior to 2018-19. Further he would
contend that no corroborative document in support of Ex.P8
or avocation of the deceased is produced. Hence, he
submits that Ex.P8 cannot be believed. Thus, he submits that
the income of the deceased assessed by the Tribunal at
Rs.3,44,082/- per annum is on the higher side and prays for
reassessing the income on downward. Further, Sri.
S.K.Kayakamath would submit that in the absence of
acceptable or credible document to establish the income of
the deceased, it is for the Tribunal to assess the income of
the deceased notionally taking note of income chart prepared
by KSLSA. He therefore, submit that as per income chart
prepared by KSLSA, notional income for the accident of the
year 2019 would be Rs.13,250/- per month. Thus, he prays
for allowing the appeal filed by the Insurance Company.
9. Per contra, Sri.Harish S Maigur, learned counsel
for the respondents-claimants supporting impugned
judgment and award of the Tribunal would submit that the
Tribunal has rightly directed the insurance company to pay
compensation at the first instance with liberty to recover the
same from the owner of tractor-trailer. He submits that the
Hon'ble Apex Court in the case of Shamanna & Another
Vs. Divisional Manager, Oriental Insurance Company
Limited & Others1, has made it very clear that wherever
the driver would not possess valid and effective driving
license, it would be the case of 'Pay and Recover'. With
regard to assessment of income of the deceased by the
Tribunal, learned counsel would submit that the claimants
have placed on record Ex.P8-Income Tax returns for
A.Y.2018-19 and the Tribunal rightly placing on Ex.P8 has
assessed the income of the deceased, which needs no
interference. Learned counsel would further submit that the
deceased was doing vegetable business and from vegetable
business, he had earned gross income of Rs.3,47,580/- per
annum for A.Y. 2018-19 and he has paid income tax of
Rs.3,498/-. Thus, he submits that the Tribunal is right in
assessing the income of the deceased based on Ex.P8.
Hence, he prays for dismissal of the appeal filed by the
Insurance Company.
2018 (9) SCC 650
10. Having heard the learned counsel for the parties
and on perusal of the appeal papers along with original
records, the following points would arise for consideration:
a) Whether the Tribunal is justified in directing
the insurance company to pay compensation
at the first instance with liberty to recover the
same from the owner of the offending
vehicle?
b) Whether the Tribunal is justified in assessing
the income of the deceased based on Ex.P8-
Income tax returns for A.Y.2018-19?
11. Our answer to the above points would be in the
"affirmative" and "negative" respectively for the following
reasons:
12. There is no dispute with regard to the accident
occurred on 22.11.2019 involving motorcycle bearing
registration No.KA-63/H-6400 and Tractor-trailer bearing
registration No.KA-25/G-3878 & 3879, resultant death of
deceased Bashasab Mulla in this appeal. The insurance
company is in appeal challenging the liability as well as
quantum of compensation.
13. The Tribunal on analysis of the material on record
has come to a conclusion that the driver of the offending
tractor-trailer was not possessing valid and effective driving
license as on the date of accident. In that circumstance, the
Tribunal placing reliance on the decision of the Hon'ble Apex
Court in Shamanna's case supra has rightly directed the
insurance company to pay compensation at the first instance
with liberty to recover the same from the owner of the
offending vehicle. We do not find any infirmity in the said
finding recorded by the Tribunal, which needs no interference
at the hands of this Court.
14. Insofar as quantum of compensation is
concerned, the Tribunal assessed income of the deceased at
Rs.3,47,580/- per annum placing reliance on Ex.P8-Income
tax returns for A.Y.2018-19. Except Ex.P8, no other
corroborative document is placed on record to substantiate
the income of the deceased. It is stated that the deceased
was working as driver as well as doing vegetable business
and earning Rs.28,948/- per month. The claimants have not
placed on record any document to establish the avocation of
the deceased as driver and no DL of the deceased is placed
on record. It is also stated that the deceased was doing
vegetable business. However, to establish the same, no
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document whatsoever is placed on record. The claimants
have placed on record Ex.P8-Income tax returns only for the
A.Y.2018-19. No income tax returns prior to A.Y.2018-19
are placed on record. In the absence of any other
corroborative document, it would not inspire the confidence
of the Court to consider Ex.P8 to determine the income.
Only Ex.P8 cannot be the basis to determine or assess the
income of the deceased. Therefore, in the above
circumstances, we are of the considered view that Ex.P8
cannot be believed or taken into consideration to establish
the income of the deceased. Since there is no acceptable or
credible document on record to establish income of the
deceased, we deem it appropriate to assess the income of
the deceased notionally at Rs.13,250/- per month in terms of
notional income chart prepared by KSLSA.
15. There is no dispute with regard to age of the
deceased as 33 years, applicable multiplier of 16, deduction
of 1/4th towards personal and living expenses of the
deceased, since there are five dependents and addition of
40% of the assessed income towards future prospects.
Thus, the claimants would be entitled for modified
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compensation on the head of loss of dependency at
Rs.26,71,200/- (13,250 + 40/100 x 12 x 16 x 3/4).
16. The award of compensation by the Tribunal on
the heads of funeral expenses and loss of estate is just and
proper, needs no interference. It is well settled law that the
claimants would be entitled to a sum of Rs.44,000/- each
on the head of loss of consortium including 10% escalation.
Thus, the claimants would be entitled for modified
compensation on the following heads:
Sl.No. Particulars Amount
1. Loss of dependency Rs.26,71,200/-
2. Loss of estate & Funeral Rs. 33,000/-
expenses
3. Loss of consortium Rs. 2,20,000/-
(Rs.44,000/- each)
Total Rs.29,24,200/-
17. Thus, the claimants would be entitled to total
compensation of Rs.29,24,200/- as against Rs.59,70,580/-
awarded by the Tribunal.
18. In the result, we proceed to pass the following:
ORDER
a) Appeal stands allowed in part.
b) The impugned judgment and award of
Tribunal is modified to an extent that
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claimants would be entitled for total
compensation of Rs.29,24,200/- as
against Rs.59,70,580/- awarded by
Tribunal.
c) The entire compensation amount will bear
interest at the rate of 6% per annum from
the date of petition its realization.
d) The apportionment, disbursement and
deposit of compensation amount shall be
made as per the award of the Tribunal.
e) The amount in deposit shall be transmitted
to the concerned Tribunal along with TCR.
f) It is made clear that the Insurance
Company shall pay the compensation
amount at the first instance with liberty to
recover the same from the owner of the
offending tractor-trailer.
g) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
JTR
