Karnataka High Court

Pappu And Anr vs Ashis And Anr on 25 July, 2024

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                                                       MFA No.200826 of 2023




                                 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.200826 OF 2023 (MV-D)

                      BETWEEN:

                      1.   PAPPU
                           S/O PANDURANG BANDGAR,
                           AGED ABOUT 32 YEARS,
                           OCC: COOLIE,

                      2.   BALIKA
                           D/O PANDURANG BANDGAR,
                           W/O DHANAJI
                           AGE: 30 YEARS,
                           OCC: HOUSEHOLD,
Digitally signed by
BASALINGAPPA
SHIVARAJ                   BOTH R/O BANDGARWADI,
DHUTTARGAON
Location: HIGH
                           TQ: BASAVAKALYAN
COURT OF                   DIST: BIDAR - 585 327.
KARNATAKA
                                                                ...APPELLANTS

                      (BY SRI SHAMBULING S.SALE, ADVOCATE)

                      AND:

                      1.   ASHISH
                           S/O GAYANCHAND JAIN
                           AGE: MAJOR,
                           OCC: BUSINESS
                           AND OWNER OF TATA
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                                  NC: 2024:KHC-K:5324-DB
                                  MFA No.200826 of 2023




     TANKER VEHICLE MH-46/F-5509,
     R/O C-901, TIARA RESIDENCY COMPLEX,
     PLOT NO.184, SECT-13,
     KHARGHAR, TQ: PANVEL,
     DIST: RAIGAD, MAHARASTRA - 410 206.

2.   THE DIVISIONAL MANAGER
     NEW INDIA ASSURANCE COMPANY, LTD.,
     10-2-7, P.B.12, II FLOOR,
     S.B. TEMPLE ROAD,
     SANGAMESHWAR COLONY,
     KALABURAGI - 585 102.
                                           ...RESPONDENTS

(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R2;
V/O DTD. 21.03.2023 NOTICE TO R1 DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO ALLOW THE APPEAL,
MODIFY THE IMPUGNED JUDGMENT AND AWARD DATED
22.11.2016 PASSED BY THE COURT OF THE II-ADDL. DISTRICT
AND SESSIONS COURT AND ADDL. MACT, BIDAR, SITTING AT
BASAVAKALYAN, IN MVC NO.473/2015, AND ENHANCE THE
COMPENSATION AS PRAYED FOR,       IN THE INTEREST OF
JUSTICE AND EQUITY.

    THIS MFA 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


                    ORAL JUDGMENT

(PER: HON'BLE MR. JUSTICE ASHOK S. KINAGI)

This Miscellaneous First Appeal is filed by the

claimants/appellants under Section 173(1) of the Motor

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Vehicles Act (for short, hereinafter referred to as 'the Act')

against the judgment and award dated 22.11.2016 passed

by II-Additional District and Sessions Court and Additional

Motor Accident Claims Tribunal, Bidar sitting at

Basavakalyan, in MVC No.473/2015.

2. Parties to the appeal shall be referred to as per

their status before the Tribunal.

3. Brief facts giving rise to filing of this appeal are

that on 27.06.2015 at 4.00 p.m., the deceased-

Sukumarbai W/o Pandurang Bandgar who was proceeding

towards Bandgarwadi in the Ape auto bearing registration

No.MH-25/M-0651 met with accident due to rash and

negligent driving of the driver of Tata Tanker bearing

registration No.MH-46/F-5509. The accident has occurred

due to rash and negligent driving of the driver of the

offending Tanker. In the said accident, the deceased-

Sukumarbai sustained grievous injuries and succumbed to

the injuries. The petitioners being the legal

representatives of the deceased-Sukumarbai filed claim

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petition under Section 166 of the Act seeking

compensation on account of the death of Sukumarbai in

the road traffic accident.

4. Respondent Nos.1 and 2 filed separate written

statements denying the averments made in the claim

petition. It is contended by respondent No.1 that the

driver of the Tanker was holding valid and effective driving

licence as on the date of the accident and the insurance

policy was in force and as such, respondent No.2 is liable

to pay the compensation and prayed to dismiss the claim

petition against respondent No.1.

5. It is contended by respondent No.2 that the

driver of the offending Tanker was not possessing valid

and effective driving licence as on the date of the accident

and hence, respondent No.2 is not liable to pay

compensation as claimed by the petitioners and prayed to

dismiss the claim petition against respondent No.2.

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6. The Tribunal on the basis of pleadings of the

parties framed the issues for its consideration.

7. In order to prove the claim petition before the

Tribunal, petitioner No.2 examined herself as PW.1 and

got marked 12 documents as Exs.P1 to P12. However, the

respondents neither led any oral evidence nor produced

any documentary evidence.

8. The Tribunal after recording the evidence of

PW.1, hearing on both sides and on assessment of oral

and documentary evidence, allowed the claim petition in

part with costs. It is ordered that the petitioners are

entitled for compensation of Rs.7,70,000/- with interest at

the rate of 7% per annum from the date of petition till its

complete realization. It is also held that respondent Nos.1

and 2 are jointly and severally liable to pay the

compensation and directed respondent No.2 to deposit the

compensation amount within two months from the date of

passing of the award.

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9. The petitioners being dissatisfied with the

compensation awarded by the Tribunal in the aforesaid

claim petition filed this appeal seeking for enhancement of

compensation.

10. We have heard the learned counsel for the

appellants/petitioners and learned counsel for respondent

No.2-Insurance Company.

11. Learned counsel for the petitioners submits that

the compensation awarded by the Tribunal is on the lower

side and on these grounds, he prays to allow the appeal.

12. Per contra, learned counsel for respondent No.2

-Insurance Company supports the impugned judgment

and award passed by the Tribunal and submits that the

compensation awarded by the Tribunal is just and proper

and the same does not call for any interference. On these

grounds, she prays to dismiss the appeal.

13. Perused the records and considered the

submissions of learned counsel for the parties.

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14. The point that arises for our consideration is

with regard to quantum of compensation.

15. It is not in dispute that the deceased-

Sukumarbai met with accident and sustained grievous

injuries and succumbed to the injuries. In order to

establish that the accident has occurred due to rash and

negligent driving of the driver of the offending Tanker, the

petitioners have produced certified copy of the FIR marked

as Ex.P1 and its translation in English is marked as

Ex.P1(a). From perusal of Ex.P1, it discloses that the

accident has occurred due to rash and negligent driving of

the driver of the offending Tanker. Therefore, the Tribunal

was justified in recording a finding that the accident has

occurred due to rash and negligent driving of the driver of

the offending Tanker.

16. Insofar as quantum of compensation is

concerned, it is the case of the petitioners that deceased-

Sukumarbai was working as coolie and was earning a sum

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of Rs.2,00,000/- per annum. However, in order to

substantiate the same, the petitioners have not produced

any income proof. In the absence of proof of income, the

notional income of the deceased will have to be taken as

per the chart provided by the Karnataka State Legal

Services Authority. In terms of the chart, for the accident

of the year 2015, the notional income of the deceased will

have to be taken at Rs.8,000/- as against Rs.6,000/- per

month taken by the Tribunal. To the aforesaid amount, as

the deceased was aged 40 years, 25% of the said amount

has to be added on account of future prospects in view of

the law laid down by the Constitution Bench of the Hon'ble

Supreme Court in the case of National Insurance

Company Limited vs. Pranay Sethi and Others

reported in AIR 2017 SC 5157. Thus, the monthly

income comes to Rs.10,000/-. Out of which, considering

that there are two dependents, we deem it appropriate to

deduct 1/3rd of the said income towards personal expenses

of the deceased and therefore, the monthly income of the

deceased comes to Rs.6,667/-. Taking into account the

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age of the deceased which was 40 years at the time of

accident, multiplier of 15 has to be adopted as per the

judgment of the Hon'ble Supreme Court in the case of

Sarla Verma vs. Delhi Transport Corporation reported

in (2009) 6 SCC 121. Therefore, the petitioners are

entitled to a sum of Rs.12,00,060/- (Rs.6,667/- x 12 x 15)

on account of loss of dependency.

17. Further, in view of the law laid down by the

Hon'ble Supreme Court in the case of Magma General

Insurance Company Limited vs. Nanu Ram Alias

Chuhru Ram & Others reported in (2018) 18 SCC 130,

each petitioner is entitled to a sum of Rs.44,000/- towards

loss of consortium. The petitioners are two in number,

hence, the compensation towards loss of consortium would

be Rs.88,000/- (44,000 x 2). In addition, the

petitioners/appellants are entitled a sum of Rs.16,500/-

towards funeral expenses and other ceremonies and a

sum of Rs.16,500/- towards loss of estate.

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18. Thus, in all, the petitioners are entitled to a

total compensation of Rs.13,21,060/- as against

Rs.7,70,000/- awarded by the Tribunal. The petitioners

entitled for an enhanced compensation of Rs.5,51,060/-.

19. In view of the above discussion, we proceed to

pass the following:

ORDER

i. The appeal is allowed in part.

    ii.         The   impugned          judgment             and      award
                passed by the Tribunal is modified.


   iii.         The   petitioners        are         entitled    to     total
                compensation          of        Rs.13,21,060/-            as

against Rs.7,70,000/- awarded by the Tribunal. Hence, the petitioners are entitled to enhanced compensation of Rs.5,51,060/- along with interest at the rate of 6% per annum from the date of petition till the date of realization.



   iv.          Respondent No.2/Insurance Company is
                directed     to       deposit          the      enhanced

compensation amount before the Tribunal

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within a period of eight weeks from the date of the receipt of certified copy of this judgment.

v. On deposit of enhanced compensation amount by respondent No.2-Insurance Company, the Tribunal is directed to release the entire compensation amount in favour of the petitioners as per the apportionment made by the Tribunal.