Karnataka High Court
The Branch Manager The Oriental ... vs Jayashree And Ors on 25 July, 2024
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MFA No. 202908 of 2022
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
MISCL. FIRST APPEAL NO. 202908 OF 2022 (MV-D)
BETWEEN:
THE BRANCH MANAGER
THE ORIENTAL INSURANCE CO. LTD.,
S S FRONT ROAD,
BIDARI COMPLEX, VIJAYPUR.
(NOW REPRESENTED BY AUTHORIZED
SIGNATORY, R.O. HUBLI)
...APPELLANT
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
AND:
Digitally signed
by
BASALINGAPPA 1. JAYASHREE
SHIVARAJ
DHUTTARGAON W/O RAJIV GHANTE,
Location: HIGH AGE: 42 YEARS,
COURT OF
KARNATAKA OCC: H H WORK.
2. ANJALI
D/O RAJIV GHANTE,
AGE: 19 YEARS,
OCC: STUDENT.
3. NAGANATH
S/O RAJIV GHANTE,
AGE: 19 YEARS,
OCC: STUDENT.
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MFA No. 202908 of 2022
4. NAGAWWA
W/O NAGANATH GHANTE,
AGE: 71 YEARS,
OCC: H H WORK,
ALL R/O MANGOLI, WANGHI,
TQ. SOUTH SOLAPUR,
NOW R/O AT CIB COLONY,
KALABURAGI - 585 101.
5. ANAND
S/O CHANDRAM KORE
AGE: 49 YEARS,
OCC: BUSINESS,
KANDALGAON,
TQ. SOUTH SOLAPUR,
DISTRICT: SOLAPUR - 413 001.
...RESPONDENTS
(BY SRI. BASAVARAJ R. MATH, ADV. FOR R1 AND R4;
NOTICE TO R2, R3, AND R5 ARE SERVED)
THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING TO
ALLOW THE ABOVE APPEAL BY SETTING ASIDE THE IMPUGNED
JUDGMENT AND AWARD DATED 27.07.2022 IN MVC
NO.585/2018 PASSED BY THE PRL SENIOR CIVIL JUDGE AND
MACT AT KALABURAGI, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
HON'BLE MR. JUSTICE RAJESH RAI K
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MFA No. 202908 of 2022
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE ASHOK S. KINAGI)
This Miscellaneous First Appeal is filed challenging
the judgment and award dated 27.07.2022 passed in
M.V.C.No.585/2018 by the Prl. Senior Civil Judge and
MACT, Kalaburagi (hereinafter referred to as 'the Tribunal',
for short).
2. For the sake of convenience, parties are
referred to as per their ranking before the Claims Tribunal.
3. The brief facts leading rise to filing of this
appeal are as under:
On 09.07.2017 in the evening hours, Rajiv Ghante
(deceased in this case) was returning towards his house at
Managoli, Wangi of South Solapur after completing his
duty. When he was near Soregaon Bus Stop at Soregaon
village on Solapur to Vijayapur Highway road, at about
09:15 p.m., the rider of the motorcycle bearing
Registration No.MH-13/CP-0737 came in high speed and in
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a rash and negligent manner and dashed to Rajiv Ghante,
due to which, he sustained grievous injuries and
succumbed to the injuries during the treatment period. It
is contended that the deceased was 43 years and was
working as Technician in Maharashtra State Electricity
Distribution Company Limited, Solapur and drawing a
monthly salary of Rs.45,481/-. It is contended that, the
claimants being the legal representatives of the deceased
Rajiv Ghante filed the claim petition under Section 166 of
Motor Vehicles Act, seeking compensation on the account
of death of deceased Rajiv Ghante in a road traffic
accident.
4. Respondent No.1 placed exparte. Respondent
No.2 filed the written statement contending that offending
motorcycle was not insured with respondent Company and
denied age, occupation and income of the deceased and
also denied the rash and negligent riding of the rider of
the motorcycle. It is contended that rider of the
motorcycle was not possessing valid and effective driving
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license as on the date of accident. Hence, insurance
company is not liable to pay the compensation amount as
claimed by the petitioners. Hence, prayed to dismiss the
petition against respondent No.2.
5. The Tribunal on the basis of the pleadings of
the parties framed the relevant issues. The petitioners in
order to prove the claim petition petitioner No.1 was
examined as PW.1 and also examined doctor as PW.2 and
got marked 16 documents as Exs.P1 to 16. The
Respondent No.2- insurance company examined the
Investigating Officer as RW.1 and its official as RW.2 and
got marked one document as Ex.R1.
6. The Tribunal after recording the evidence of the
parties, hearing on both sides and on the assessment of
oral and documentary evidence, allowed the claim petition
in part with costs. It is held that the petitioners are entitle
for compensation of Rs.73,44,000/- and held that
respondent Nos.1 and 2 are jointly and severally liable to
pay the compensation amount along with interest @ 6%
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p.a. from the date of petition till the actual realization of
the entire amount and directed respondent No.2 to deposit
the compensation amount.
7. Respondent No.2, aggrieved by the judgment
and award passed by the Tribunal in MVC No.585/2018,
has filed this Miscellaneous First Appeal.
8. Heard the learned counsel for respondent No.2
and also learned counsel for the petitioners.
9. Learned counsel for respondent No.2 submits
that police have filed a false charge sheet implicating
offending motorcycle. She submits that there was no
negligence on the part of the rider of the offending vehicle
and said vehicle has been falsely implicated in order to
claim the compensation and the Tribunal has committed
an error in recording the finding that the accident was
occurred due to rash and negligent riding of the rider of
the offending vehicle. She further submits that
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compensation awarded by the Tribunal is on higher side.
Hence, on these grounds, she prays to allow the appeal.
10. Per contra, learned counsel for the petitioners
submits that accident was occurred on 09.07.2017 and
complaint was filed on 10.07.2017. The police after
investigation filed the charge sheet. He further submits
that the accident was occurred due to rash and negligent
riding of the rider of the motorcycle and submits that
neither respondent No.2 has challenged the charge sheet
filed against the rider of the motorcycle. Hence, he
submits that the Tribunal placing the reliance on Ex.P3
i.e., charge sheet has rightly exonerated the liability on
the respondent Nos.1 and 2 jointly. Hence, he further
submits that compensation awarded by the Tribunal is just
and proper and does not call for any interference. Hence,
on these grounds, he prays to dismiss the appeal.
11. Perused the records and considered the
submissions of the learned counsel for the parties. The
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point that arises for our consideration are liability and
quantum.
12. Insofar as the liability is concerned:
It is not in dispute that Rajiv Ghante met with an
accident and sustained grievous injuries and succumb to
the injuries. In order to establish that the accident was
occurred due to rash and negligent riding of the rider of
the motorcycle, the petitioners produced certified copy of
the FIR marked as Ex.P1. It's translation copy marked as
Ex.P1(a). The police after investigation filed the charge
sheet marked as Ex.P3 and it's translation copy marked as
Ex.P3(a). From the perusal of Ex.P3(a), it discloses that
accident was occurred due to rash and negligent riding of
the rider of the offending vehicle. Further, respondent has
examined Investigating Officer as RW.1. He has deposed
that after investigation, he filed the charge sheet as per
Ex.P3 and he has also deposed that accident was occurred
due to rash and negligent riding of the rider of the
motorcycle. The Tribunal considering the evidence of
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PW.1, was justified in recording its finding that the
accident was occurred due to rash and negligent riding of
the rider of the offending vehicle.
13. Insofar as quantum: Though it is the case of
the petitioners that petitioner was working in Maharashtra
State Electricity Distribution Company Limited, Solapur
and drawing a monthly salary of Rs.44,481/-, in order to
establish that the petitioner was working in Maharashtra
State Electricity Distribution Company Limited, examined
its officer as RW.2, who has deposed that he was working
at Maharashtra State Electricity Distribution Company
Limited, Solapur. Further, the petitioners have produced
the copy of salary certificate of deceased marked as
Exs.P5 to 10. The deceased was drawing a salary of
Rs.33,524/- after deduction. The deceased was aged
about 42 years. On going through Ex.P5 to 10, the
deceased was drawing regular salary of Rs.33,524/-.
Thus, annual income of the deceased would be
Rs.4,02,288/-. As per the Income Tax slab for the
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financial year 2017-18, up to Rs.3,00,000/- Income Tax is
exempted, exceeding Rs.3,00,000/- to Rs.5,00,000/-,
10%, which comes to Rs.33,524X 12 = Rs.4,02,288 -
Rs.3,00,000 = Rs.1,02,288/-. Rs.1,02,288 X 10%=
Rs.10,288/- and professional tax has to be deducted i.e.,
Rs.2,400/-. Thus, the petitioners are entitled for
Rs.12,628/-, which has to be deducted out of (Rs.4,02,288
-Rs.3,89,660/-). In addition to it, as per the law laid down
by the Hon'ble Apex Court in the case of NATIONAL
INSURANCE CO., LTD., VS. PRANAY SETHI AND OTHERS
REPORTED IN AIR 2017 SC 5157 , 30% has to be added
towards future prospects i.e., Rs.1,16,898/-. Thus annual
income of the deceased was Rs.5,06,558/-.
14. There are four claimants. Hence, 1/4th has to
be deducted towards personal expenses of the deceased
i.e., Rs.5,06,558- Rs.1,26,639 = Rs.3,79,919/-. As on the
date of the accident, the deceased was aged 42 years, as
per the decision of Hon'ble Apex Court in the case of SARLA
VERMA (SMT) & OTHERS VS. DELHI TRANSPORT CORPORATION
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& ANOTHER, REPORTED IN (2009) 6 SCC 121, the multiplier
applied to the age group of the petitioner is '14' which is
rightly taken by the tribunal. Therefore, the petitioners are
entitled for a sum of Rs.53,18,866/-(3,79,919 X14) on
account of loss of dependency, wherein the Tribunal has
granted Rs.71,54,210/- which needs to be reduced. Thus
we assess the income of compensation under the head of
'Loss of dependency' as Rs.53,18,866/-.
15. There are four petitioners. In view of the law
laid down by the Hon'ble Supreme Court in MAGMA
GENERAL INSURANCE COMPANY LIMITED VS. NANU
RAM ALIAS CHUHRU RAM & OTHERS reported in 2018
ACJ 2782, each of the petitioners are entitled for a sum of
Rs.44,000/- under the head of 'loss of consortium', which
comes to Rs.1,76,000/- (Rs.44,000 X 4). In addition to it,
the petitioners are entitled for Rs.16,500/- towards funeral
expenses and Rs.16,500/- towards loss of estate.
16. Thus, the petitioners are entitled for total
compensation of Rs.55,27,866/- as against Rs.73,44,000/-
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The compensation awarded by the tribunal has to be
reduced.
17. Accordingly, we proceed to pass the following;
ORDER
(a) The appeal is allowed in part.
(b) The judgment and award passed by the
Tribunal is modified.
(c) The petitioners are entitled for total
compensation of Rs.55,27,866/- with
interest @ 6% p.a. from the date of
petition till the realization of amount.
(d) Respondent No.2 is directed to deposit
entire compensation amount within a
period of eight weeks from the date of
receipt of copy of this judgment.
(e) Amount and deposit to be transmitted to
the Tribunal.
(f) Office is directed to transmit the trial
Court records to the Tribunal forthwith.
Sd/-
(ASHOK S. KINAGI)
JUDGE
Sd/-
(RAJESH RAI K)
JUDGE
HKV,SKS
