Karnataka High Court

The Manage, Shri Ram General Insurance ... vs Reshma D/O Late Ishwar Mamane And Ors on 25 July, 2024

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                                                      MFA No. 200733 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. 200733 OF 2022 (MV-D)

                   BETWEEN:

                   THE MANAGER
                   SHRIRAM GENERAL
                   INSURANCE CO. LTD.,
                   E-8, EPIP, RIICO INDUSTRIAL AREA,
                   SITAPUR, JAYAPUR
                   (RAJASTAN-302022) INDIA,
                   PRESENTLY REPRESENTED BY ITS
                   SHRIRAM GENERAL INSURANCE CO. LTD.,
                   NO.3/4, 3RD FLOOR,
                   S V ARCADE, BELEKAHALLI MAIN ROAD,
Digitally signed
by                 OFF BHANNERUGHATTA ROAD,
BASALINGAPPA
SHIVARAJ           IIMB POST, BENGALURU-560076.
DHUTTARGAON
Location: HIGH                                                   ...APPELLANT
COURT OF
KARNATAKA          (BY SRI. SUDARSHAN M., ADVOCATE)

                   AND:

                   1.   RESHMA
                        D/O LATE ISHWAR MAMANE,
                        AGE: 29 YEARS,
                        OCC: HOUSEHOLD,
                        R/O. VILLAGE MANTHAL,
                        TALUK: BASAVAKALYAN,
                        DISTRICT: BIDAR- 585 327.
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                                  MFA No. 200733 of 2022




2.   PRITAM
     S/O LATE ISHWAR MAMANE,
     AGE: 9 YEARS.

3.   ISHITA
     D/O LATE ISHWAR MAMANE
     AGE: 7 YEARS.

4.   LAXMIBAI
     W/O VIJAYAKUMAR MAMANE
     AGE: 48 YEARS,
     OCC: HOUSEHOLD,
     R/O. VILLAGE MANTHAL,
     TALUK: BASAVAKALYAN,
     DISTRICT: BIDAR - 585 327.
     THE RESPONDENT NO.2 & 3 ARE MINOR,
     U/G OF THEIR NATURAL MOTHER I.E.,
     RESPONDENT NO.1.

5.   SAJID HUSSAIN
     S/O ZAHED HUSSAIN,
     AGE: MAJOR,
     OCC: OWNER OF APE AUTO,
     BEARING REGISTER NO.KA-56/1048,
     R/O. H.NO. 29-39, TRIPURANTH,
     BASAVAKALYAN,
     DISTRICT: BIDAR.

                                          ...RESPONDENTS

(BY SRI. SANJEEVKUMAR C. PATIL, ADV. FOR R1 TO R4;
    SRI. SHAMBULING S. SALIMATH, ADV. FOR R5)

     THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO
SET ASIDE THE JUDGMENT AND AWARD DATED 30.01.2021
PASSED IN MVC NO.695/2015 II ADDL. DISTRICT AND
SESSIONS JUDGE AND ADDL. MACT, BIDAR, SITTING AT
BASAVAKALYAN.

     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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                                    MFA No. 200733 of 2022




CORAM:    HON'BLE MR. JUSTICE ASHOK S. KINAGI
          AND
          HON'BLE MR. JUSTICE RAJESH RAI K

                     ORAL JUDGMENT

(PER: HON'BLE MR. JUSTICE RAJESH RAI K)

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act', for

short) has been filed by the appellant-Insurance Company

herein i.e., respondent No.2 therein being aggrieved by

the judgment and award dated 30.01.2021 passed in

M.V.C.No.695/2015 by the Court of II Additional District

and Sessions Judge and Additional MACT, Bidar, Sitting at

Basavakalyan, (hereinafter referred to as 'the Tribunal', for

short), wherein the Tribunal partly allowed the claim

petition filed by the respondents for grant of compensation

under Section 166 of Motor Vehicles Act.

2. For the sake of convenience, parties are referred

to as per their ranking before the Tribunal. The appellant

is the respondent No.2, respondent Nos.1 to 4 are the

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petitioners and respondent No.5 is the respondent No.1

before the Tribunal.

3. The facts giving rise to the filing of the appeal

briefly stated are that:

On 06.06.2015 at about 05:30 p.m., one Ishwar

Mamane (deceased in this case) boarded Ape Auto

Rickshaw bearing Registration No.KA-56/1048 to go to

Manthal from Basavakalyan and the driver of the said Auto

Rickshaw drove the same in a rash and negligent manner,

due to which, the Auto Rickshaw turned turtle near

Athlapur Cross on NH-09. As a result, Ishwar Mamane fell

down and struck under the offending Auto Rickshaw and

succumbed on the spot. As such, the claimants being the

legal representatives of the said Inshwar Mamane have

filed the claim petition before the Tribunal under Section

166 of the Motor Vehicles Act.

4. After service of notice, respondent Nos.1 and 2

appeared and filed their written statement denying the

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contents of the claim petition and sought for dismissal of

the claim petition.

5. On the basis of pleadings, the Tribunal framed

relevant issues for consideration. In order to substantiate

the issues and to establish the case, petitioner No.1 got

examined as PW.1 and got marked 16 documents as

Exs.P1 to P16. On the other hand, respondent No.2

examined its official as RW.1 and got examined another

witness as RW.2 and got marked 3 documents as per

Exs.R1 to R3.

6. After assessment of oral and documentary

evidence, the Tribunal partly allowed the claim petition

filed by the petitioners and awarded a compensation of

Rs.16,83,000/- with interest at the rate of 7% per annum

from the date of petition till its realization. The said

judgment and award is challenged by the Insurance

Company in this appeal.

7. We have heard the learned counsel Sri Sudarshan

M., for appellant, learned counsel Sri Sanjeev Kumar C.

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Patil for respondent Nos.1 to 4 and Sri Shambuling S

Salimath for respondent No.5.

8. It is the primary contention of the learned counsel

for the appellant that the Tribunal grossly erred while

allowing the claim petition filed by the claimants for the

reason that, the charge sheet placed by the petitioner as

per Ex.P6 depicts that the vehicle is seized from the

accident spot on 07.06.2015 and on 19.08.2015 it is

shown to have been released in favour of the owner.

However, as per Ex.P7-spot panchanama drawn on

07.06.2015, the vehicle was seized on the same day by

showing the damage on the left side of body of the Auto

Rickshaw. In such circumstance, there is a doubt arise

about the involvement of the vehicle in the alleged

accident. Further, the Motor Vehicle Inspector has

inspected the vehicle on 25.06.2016 in the Police Station

premises, who has opined that there is no visible damages

found on the Auto Rickshaw. Hence, the involvement of

the said Auto Rickshaw in the accident is not proved by

the above circumstance. He would also contend that the

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Tribunal has also awarded interest at the rate of 7%

instead of 6% to the compensation awarded. Accordingly,

he prays to allow the appeal.

9. Per contra, learned counsel for the respondents

supported the impugned judgment and award and

submitted that the Tribunal, after meticulously considering

the documents and evidence, has rightly allowed the claim

petition in part in a well reasoned judgment which does

not call for any interference. Accordingly, he prays to

dismiss the appeal.

10. Having heard the learned counsel for the parties

so also having perused the records made available before

us, the only point that would arise for our consideration is:

"Whether the judgment and award passed by the Tribunal suffers from any perversity and requires any interference by this Court?"

11. As could be seen from records, in order to

prove the accident in question, the petitioners relied the

FIR and complaint registered by the jurisdiction Police

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against the driver of the Auto Rickshaw bearing

Registration No.KA-56/1048 in Crime No.78/2015 for the

offences punishable under Sections 279 and 304-A of IPC.

Subsequently, the said Police also filed charge sheet as

per Ex.P6 against the driver of Auto Rickshaw. Admittedly,

the said charge sheet has not been challenged by the

Insurance Company before the Tribunal. Nevertheless, the

spot mahazar placed at Ex.P8 also depicts that the

accident was caused on 06.06.2015 at Athlapur cross due

to the negligent riding of the Auto Rickshaw by its driver

and due to which, Ishwar died. Moreover, the coverage of

the Insurance Policy of the appellant-Insurance Company

to the offending vehicle is not disputed by the appellant.

In such circumstance, the Tribunal rightly fastened the

liability to the Insurance Company.

12. As far as the quantum of compensation is

concerned, the Tribunal rightly assessed the compensation

by considering the notional monthly income of the

deceased at Rs.8,000/- along with future prospect 40%

since the age of the petitioner was below 40 years at the

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time of incident. Further, the Tribunal rightly deducted

1/3rd of his income and considered the multiplier at '18'

and granted Rs.16,12,872/- towards loss of dependency.

Further, the Tribunal also granted Rs.70,000/- towards

loss of consortium thus, totaling to Rs.16,83,000/- along

with interest at the rate of 7% per annum. Thus, we find

no error in the compensation awarded by the Tribunal,

however the interest conferred by the Tribunal at the rate

of 7% is on higher side and the same has to be modified

to 6% to the compensation amount. In view of the same,

we answer the point raised above in partly affirmative and

proceed to pass the following:

ORDER

i. The appeal filed by the appellant/Insurance Company is allowed in part.

       ii. The   judgment        and       award     dated
          30.01.2021                   passed            in

M.V.C.No.695/2015 by the Court of II Additional District and Sessions Judge and Additional MACT, Bidar, Sitting at Basavakalyan is modified only in

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respect of the interest conferred by the Tribunal.

iii. The appellant/Insurance Company is directed to pay the interest at the rate of 6% to the compensation amount instead of 7% conferred by the Tribunal.