Karnataka High Court
Shridevi And Anr vs Karan Ajay Bathla And Anr on 25 July, 2024
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MFA No.202640 of 2022
C/W MFA No.202641 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.202640 OF 2022 (MV-D)
C/W
MISCL. FIRST APPEAL NO.202641 OF 2022 (MV-D)
IN M.F.A.NO.202640 OF 2022
BETWEEN:
1. SHRIDEVI
W/O VIRUPAKASHI WALI,
AGE: 51 YEARS,
OCC: HOUSEHOLD WORK,
Digitally signed R/O NEAR SHANMUKHSWAMI MATH,
by
BASALINGAPPA BENDIGERI GALLI, STATION ROAD,
SHIVARAJ
DHUTTARGAON VIJAYAPURA - 586 101.
Location: HIGH
COURT OF
KARNATAKA 2. CHETAN
S/O VIRUPAKSHI WALI,
AGE: 28 YEARS,
OCC: STUDENT,
R/O NEAR SHANMUKHSWAMI MATH,
BENDIGERI GALLI, STATION ROAD,
VIJAYAPURA - 586 101.
GURUBAI W/O GURUPAD WALI
(DIED ON 05.08.2019 AND
HER LRS ALREADY ON RECORD)
...APPELLANTS
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MFA No.202640 of 2022
C/W MFA No.202641 of 2022
(BY SRI SANGANABASAVA B.PATIL, ADVOCATE)
AND:
1. KARAN AJAY BATHLA
AGE: MAJOR,
OCC: BUSINESS,
R/O C-150, 1ST FLOOR, RISHI NAGAR,
RANI BAGH, PITAMPURA,
SARASWATI VIHAR, DELHI,
NORTH WEST DELHI - 110 034.
(OWNER OF TATA LPT
-2518 NO.HR-55/EA-0806)
2. THE MANAGER LEGAL,
ICICI LOMBARD
GENERAL INSURANCE CO. LTD.,
COURT ROAD, KOTHARI COMPLEX,
KALABURAGI - 585 101.
(POLICY NO:3003/TM-100128946/00/000
VALID FROM 01.09.2018 TO 31.08.2019)
...RESPONDENTS
(BY SRI MANJUNATH MALLAYYA SHETTY, ADVOCATE FOR R2;
V/O DTD. 16.06.2023 NOTICE TO R1 STANDS DISMISSED
WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS
AND MODIFY THE JUDGEMENT AND AWARD PASSED BY THE
COURT OF IV ADDL. SENIOR CIVIL JUDGE AND MEMBER, MACT
NO.-XV VIJAYAPUR AT VIJAYAPUR IN MVC NO.540/2019 DATED
10.12.2021 AND BE PLEASED TO ALLOW THE CLAIM PETITION
BY ENHANCING GRANTING THE RELIEF AS PRAYED FAR BY THE
APPELLANTS HEREIN THE INTEREST OF JUSTICE AND EQUITY.
IN M.F.A.NO.202641 OF 2022
BETWEEN:
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MFA No.202640 of 2022
C/W MFA No.202641 of 2022
1. RUKUMABAI
W/O SHARANABASAPPA KATTIMANI,
AGE: 55 YEARS,
OCC: HOUSEHOLD WORK,
R/O: BENDIGERI GALLI,
STATION ROAD,
VIJAYAPURA - 586 101.
2. VIKAS SHARANABASAPPA KATTIMANI
AGE: 31 YEARS,
OCC: STUDENT,
R/O: BENDIGERI GALLI,
STATION ROAD,
VIJAYAPURA - 586 101.
3. VIJAY SHARANABASAPPA KATTIMANI I.,
AGE: 29 YEARS,
OCC: STUDENT,
R/O: BENDIGERI GALLI,
STATION ROAD,
VIJAYAPURA - 586 101.
GURUBAI W/O GURUPAD WALI
(DIED ON 05.08.2019 AND
HER LRS ALREADY ON RECORD)
...APPELLANTS
(BY SRI SANGANABASAVA B.PATIL, ADVOCATE)
AND:
1. KARAN AJAY BATHLA
AGE: MAJOR,
OCC: BUSINESS,
R/O C-150, 1ST FLOOR, RISHI NAGAR,
RANI BAGH, PITAMPURA,
SARASWATI VIHAR, DELHI,
NORTH WEST DELHI - 110 034.
(OWNER OF TATA LPT
-2518 NO.HR-55/EA-0806)
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MFA No.202640 of 2022
C/W MFA No.202641 of 2022
2. THE MANAGER LEGAL,
ICICI LOMBARD
GENERAL INSURANCE CO. LTD.,
COURT ROAD, KOTHARI COMPLEX,
KALABURAGI - 585 101.
(POLICY NO:3003/TM-100128946/00/000
VALID FROM 01.09.2018 TO 31.08.2019)
...RESPONDENTS
(BY SRI MANJUNATH MALLAYYA SHETTY, ADVOCATE FOR R2;
V/O DTD. 16.06.2023 NOTICE TO R1 STANDS DISMISSED
WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS
AND MODIFY THE JUDGEMENT AND AWARD PASSED BY THE
COURT OF IV ADDL. SENIOR CIVIL JUDGE AND MEMBER, MACT
NO.-XV VIJAYAPUR AT VIJAYAPUR IN MVC NO.536/2019 DATED
10.12.2021 AND BE PLEASED TO ALLOW THE CLAIM PETITION
BY ENHANCING GRANTING THE RELIEF AS PRAYED FAR BY THE
APPELLANTS HEREIN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEALS, COMING ON FOR FINAL HEARING, 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.202640 of 2022
C/W MFA No.202641 of 2022
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE ASHOK S. KINAGI)
These two appeals are arising out of judgment and
award dated 10.12.2021 passed in MVC Nos.536/2019 and
540/2019 by the II Additional Senior Civil Judge and
Member, MACT-XV, Vijayapura.
2. For the sake of convenience the parties are
referred to as per their ranking before the Tribunal. In MFA
No.202640/2022, appellants are petitioners in MVC
No.540/2019, respondents are common in both MVC
Nos.536/2019 and 540/2019. In MFA No.202641/2022,
appellants are petitioners in MVC No.536/2019.
3. Brief facts leading rise to filing of this appeal
are as under;
That on 21.01.2019, at about 3.00 p.m., on Hubli
Vijayapura road on NH-218 near Kerur in Badami Taluka
of Bagalkot District when the deceased person were going
towards Hubli in Maxi Cab No.KA-28-C-4869, at that time,
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TATA truck No.HR-55/EA-0806 came from opposite side
being driven by its driver in high speed and in rash and
negligent manner and dashed to their Maxi Cab and
caused accident. Due to the impact, both Sharanabasappa
and Virupakshi @ Virupaxi sustained fatal injuries and
succumb to the injuries. It is contended that the
petitioners are legal representatives of both deceased
Sharanabasappa and Virupakshi @ Virupaxi were
depending on the income of the deceased persons. Hence,
filed the claim petitions under Section 166 of M.V.Act
seeing for the compensation on the account of death of
Sharanabasappa and Virupakshi @ Virupaxi in the road
traffic accident.
4. Respondent No.1 was placed exparte.
Respondent No.2 filed the written statement denying the
averments made in the claim petition. It is contended that
the accident was occurred due to rash and negligent
driving of the driver of the offending vehicle. Hence,
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prayed to dismiss the claim petitions against respondent
No.2.
5. The Tribunal on the basis of the pleadings of
the parties framed the issues. Both the claim petitions are
clubbed together by the Tribunal and common evidence
was recorded. The petitioners were examined as PW.1 and
2 and got marked 23 documents as Exs.P1 to 23. On the
contrary respondent NO.2 has not led any evidence.
6. The tribunal after recording the evidence,
hearing the learned counsel for the parties and on the
assessment of oral and documentary evidence allowed the
claim petitions in part with costs. It is ordered that
petitioners in MVC No.536/2019 are entitled for
compensation of Rs.13,63,000/- and petitioners in MVC
No.540/2019 are entitled for compensation of
Rs.15,96,000/- with interest @ 6% p.a. from the date of
petition till realization. It is also held that respondent
Nos.1 and 2 are jointly and severally liable to pay the
compensation amount to the petitioners and directed
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respondent No.2 to deposit the compensation amount
before the Tribunal within a period of two months from the
date of receipt of copy of the order.
7. The petitioners being dissastified with the
compensation awarded by the Tribunal filed these
Miscellaneous First Appeals seeking for enhancement of
compensation.
8. Heard the learned counsel for the petitioners
and also learned counsel for respondent No.2.
9. Learned counsel for the petitioners submits that
compensation awarded by the Tribunal is on lower side.
Hence, on these grounds, he prays to allow the appeals.
10. Per contra, learned counsel for respondent No.2
supports the impugned judgment and hence, prayed to
dismiss the appeals.
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 is with regard to
quantum of compensation.
12. It is not in dispute that the Sharanabasappa
and Virupakshi @ Virupaxi met with an accident and
sustained injuries and succumbed to the injuries. In order
to establish that the accident was occurred due to rash
and negligent driving of the driver of the offending vehicle,
the petitioners have produced certified copy of FIR marked
as Ex.P1 and produced certified copy of the charge sheet
marked as Ex.P15. Ex.P15 discloses that accident was
occurred due to rash and negligent driving of the driver of
the offending vehicle.
13. Insofar as quantum is concerned in MFA
No.202640/2022:
Though the petitioners contended that deceased
Virupakshi @ Virupaxi was carrying on a business of Xerox
and earning Rs.1,00,000/- per month. In order to
substantiate the income, the petitioners have not
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produced any income proof. In the absence of income
proof, the Tribunal has taken notional income of
Rs.13,250/-. As the accident is of the year 2019, the
Tribunal was justified in assessing notional income of the
deceased at Rs.13,250/- and the Tribunal has also added
10% income towards future prospects. The deceased was
aged about 56 years as on the date of accident and rightly
added 10% future prospects to the notional income and
rightly taken notional income and rightly applied multiplier
and granted compensation amount of Rs.15,96,000/-.
Hence, we do not find any error in the impugned
judgment.
14. The Tribunal without considering the law laid
down by the Hon'ble Apex Court in the case of Magma
General Insurance Company Limited vs. Nanu Ram
Alias Chuhru Ram & Others reported in (2018) 18 SCC
130, each petitioners are entitled to a sum of Rs.44,000/-
towards loss of consortium. There are 2 petitioners. Thus,
the petitioners are entitled for compensation of
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Rs.88,000/- (44,000 x 2) towards loss of consortium. In
addition, the petitioners are entitled to a sum of
Rs.15,000/- towards funeral expenses and Rs.15,000/-
under the head of loss of estate.
15. Thus, the petitioners are entitled for a total
compensation of Rs.17,14,000/- as against Rs.15,96,000/-
awarded by the Tribunal. Hence, the petitioners are
entitled for an enhanced compensation of Rs.1,18,000/-
with interest @ 6% p.a.
16. Insofar as quantum is concerned in MFA
No.202641/2022:
Though the petitioners contended that deceased
Sharanabasappa Kattimani was self employed and owner
of barber saloon. The Tribunal has taken notional income
of Rs.9,717/-. As the accident is of the year 2019, the
Tribunal was justified in assessing notional income of the
deceased. The deceased was aged about 55 years as on
the date of accident and rightly taken notional income and
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rightly applied multiplier and granted compensation
amount of Rs.13,63,000/-. Hence, we do not find any
error in the impugned judgment.
17. The Tribunal without considering the law laid
down by the Hon'ble Apex Court in the case of Magma
General Insurance Company Limited vs. Nanu Ram
Alias Chuhru Ram & Others reported in (2018) 18 SCC
130, each petitioners are entitled to a sum of Rs.44,000/-
towards loss of consortium. There are 3 petitioners. Thus,
the petitioners are entitled for compensation of
Rs.1,32,000/- (44,000 x 3) towards loss of consortium. In
addition, the petitioners are entitled to a sum of
Rs.15,000/- towards funeral expenses and Rs.15,000/-
under the head of loss of estate.
18. Thus, the petitioners are entitled for a total
compensation of Rs.15,25,000/- as against Rs.13,63,000/-
awarded by the Tribunal. Hence, the petitioners are
entitled for an enhanced compensation of Rs.1,62,000/-
with interest @ 6% p.a.
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19. In view of the above discussion, we proceed to
pass the following:
ORDER
(a) The appeals are allowed in part.
(b) The impugned judgment and award dated
10.12.2021 passed by the Tribunal is
modified.
(c) The petitioners are entitled for enhanced
compensation of Rs.1,18,000/- in MVC
No.540/2019 and the petitioners are
entitled for enhanced compensation of
Rs.1,62,000/- in MVC No.536/2019 along
with interest at the rate of 6% per annum
from the date of petition till realization.
(d) The respondent No.2 is directed to deposit
the enhanced compensation amount before
the Tribunal with interest within a period of
eight weeks from the date of receipt of
certified copy of this judgment.
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(e) Registry to transmit the Trial Court records
to the Tribunal.
Sd/-
(ASHOK S. KINAGI)
JUDGE
Sd/-
(RAJESH RAI K)
JUDGE
SKS,VNR
