Karnataka High Court

The Divisional Manager vs Smt. Pratibha W/O Harikrishna Pawar on 5 June, 2024

Author: S G Pandit

Bench: S G Pandit

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                                                 MFA No. 101387 of 2016
                                        C/W MFA.CROB No. 100133 of 2016



                  IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                         DATED THIS THE 5TH DAY OF JUNE, 2024

                                        PRESENT
                          THE HON'BLE MR JUSTICE S G PANDIT
                                            AND
                         THE HON'BLE MR JUSTICE G BASAVARAJA
                  MISCELLANEOUS FIRST APPEAL NO.101387 OF 2016 (MV-D)
                                            C/W
                         MFA CROSS-OBJECTION NO.100133 OF 2016

                 IN MFA NO.101387 OF 2016
                 BETWEEN:
                    THE DIVISIONAL MANAGER,
                    RELIANCE GENERAL INSURANCE COMPANY LIMIT,
                    KALBURGI ARCADE DESHPANDE NAGAR, HUBBALLI
                    (POLICY CAR NO.1412542311000012
                    POLICY VALID UP TO 31.12.2014)
                    REPRESENTED BY ITS AUTHORIZED SIGNATORY
                    RELIANCE GENERAL INSURANCE COMPANY LIMITED
                    EAST WING 5TH FLOOR 28 CENTENARY
                    BUILDING M.G. ROAD, BANGALURU.
                                                              ...APPELLANT
Digitally signed by (BY SRI G.N. RAICHUR, ADVOCATE)
VINAYAKA B V
Location: HIGH   AND:
COURT OF
KARNATAKA
                 1.   SMT. PRATIBHA W/O. HARIKRISHNA PAWAR,
                      AGE: 37 YEARS, OCC: HOUSEWIFE,
                      R/O: VICTORIA ROAD HUBLI
                      NOW AT C/O. B.R. GONEPPANAVAR,
                      C.B.NAGAR, DHARWAD.

                 2.   SMT. SANJANA D/O. HARIKRISHNA PAWAR,
                      AGE:17 YEARS, OCC: STUDENT,
                      R/O: VICTORIA ROAD, HUBLI
                      NOW AT C/O. B.R. GONEPPANAVAR,
                      C.B. NAGAR, DHARWAD.
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                                MFA No. 101387 of 2016
                       C/W MFA.CROB No. 100133 of 2016



3.   SMT. SANNIDHI D/O. HARIKRISHNA PAWAR,
     AGE:13 YEARS, OCC: STUDENT,
     R/O: VICTORIA ROAD HUBLI
     NOW AT C/O. B.R. GONEPPANAVAR,
     C.B. NAGAR, DHARWAD.
     (THE RESPONDENT NO.2 AND 3
     ARE MINORS SINCE R/BY THEIR
     NATURAL MOTHER RESPONDENT NO.1.)

4.   FAKRUSAB S/O. KASIMSAB NADAF,
     AGE: MAJOR, OCC: BUSINESS,
     R/O: CHUKANAKALLA, TQ AND DIST: KOPPAL,
     (OWNER OF SWIFT CAR BEARING NO.FA-17/M-9565)

                                        ...RESPONDENTS
(BY SRI S.M. KALWAD, ADVOCATE FOR R1 TO R3;
    R2-R3 MINORS REPTD. BY R1;
    NOTICE TO R4 SERVED)
     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, AGAINST THE
JUDGMENT & AWARD DATED 22.02.2016, PASSED IN
MVC.NO.307/2014 ON THE FILE OF THE III ADDITIONAL
SENIOR CIVIL JUDGE AND MEMBER ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL, DHARWAD, AWARDING THE
COMPENSATION OF RS.45,36,376/- WITH INTEREST AT THE
RATE OF 8% P.A. FROM THE DATE OF PETITION TILL ITS
DEPOSIT.

IN MFA CROB. NO.100133 OF 2016
BETWEEN:
1.   SMT. PRATIBHA W/O. HARIKRISHNA PAWAR,
     AGE: 37 YEARS, OCC: HOUSEWIFE,
     R/O: VICTORIA ROAD HUBBALLI,
     NOW AT C/O. B.R. GONEPPANAVAR,
     C.B.NAGAR, DHARWAD-580001.
2.   SANJANA D/O. HARIKRISHNA PAWAR,
     AGE: 17 YEARS, OCC: STUDENT,
     R/O: VICTORIA ROAD, HUBBALLI
     NOW AT C/O. B.R. GONEPPANAVAR,
     C.B. NAGAR, DHARWAD-580001.
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                                MFA No. 101387 of 2016
                       C/W MFA.CROB No. 100133 of 2016




3.   SANNIDHI D/O. HARIKRISHNA PAWAR,
     AGE:13 YEARS, OCC: STUDENT,
     R/O: VICTORIA ROAD HUBBALLI
     NOW AT C/O. B.R. GONEPPANAVAR,
     C.B. NAGAR, DHARWAD.
    (NOTE: THE CROSS OBJECTOR NO.2 AND 3
    BEING MINORS, REP. BY THEIR
    NATURAL GUARDIAN MOTHER
    CROSS OBJECTOR NO.1.
    SMT. PRATIBHA H.PAWAR)
                                    ...CROSS OBJECTORS
(BY SRI S.M. KALWAD, ADVOCATE)

AND:

1.   FAKRUSAB S/O. KASIMSAB NADAF,
     AGE: MAJOR, OCC: BUSINESS,
     R/O: CHUKANAKALLA,
     TQ AND DIST: KOPPAL-583231.

2.  THE DIVISIONAL MANAGER,
    RELIANCE GENERAL INSURANCE CO. LTD.,
    KALBURGI ARCADE, DESHPANDE NAGAR,
    HUBBALLI-580020.
                                        ...RESPONDENTS
(BY SRI G.N. RAICHUR, ADVOCATE FOR R2;
    NOTICE TO R1 SERVED)

     THIS MFA CROB IS FILED MFA NO.101387/2016 FILED
UNDER ORDER 41 RULE 22 R/W. SECTION 151 OF CPC, 1908,
AGAINST THE JUDGMENT & AWARD DATED 22.02.2016,
PASSED IN MVC.NO.307/2014 ON THE FILE OF THE III
ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MEMBER
MOTOR ACCIDENT CLAIMS TRIBUNAL-DHARWAD, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION AND ETC.,

    THIS MISCELLANEOUS FIRST APPEAL AND MFA CROB.
COMING   ON     FOR   FINAL   HEARING,   THIS DAY,
BASAVARAJA, J., DELIVERED THE FOLLOWING:
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                                     MFA No. 101387 of 2016
                            C/W MFA.CROB No. 100133 of 2016



                        JUDGMENT

Both the appeal and the cross-objections arise out of the

judgment and award dated 22nd February, 2016 passed in MVC

No.307 of 2014 by the III Additional Senior Civil Judge and

Addl. Motor Accident Claims Tribunal, Dharwad (for short

hereinafter referred to as "the Tribunal").

2. For the sake of convenience, the parties in these

appeals are referred to with their rank and status before the

Tribunal.

3. Brief facts leading to this appeal and cross-objections

are that on 05th March, 2014 at about 6.45 pm, when

Harikrishna Pawar, husband of petitioner No.1 and the father of

petitioners 2 and 3, was proceeding on the motorcycle bearing

Registration No.AP-31/AZ-2794 from Mollem on NH4A to attend

his duty and when he reached near Suktolim Mollem near

Rajlaxmi Petrol Pump of Ponda, the driver of the Swift car

bearing Registration No.KA-17/M-9565 came in a high speed,

rash and negligent manner and dashed to the motorcycle of the

said Harikrishna. The impact of the accident is the rider of the

motorcycle sustained fatal injuries and died on the spot. The

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body was shifted to Goa Medical College, Goa where post-

mortem was conducted and the body was handed over to the

petitioners. The petitioners took the dead body in a hired

vehicle to their native place and spent more than Rs.1.00 lakh

towards funeral and transportation charges. The accident

occurred due to rash and negligent driving by the driver of the

offending Swift car. It is stated in the claim petition that the

prior to accident, the deceased was hale and healthy and was

working as a Head Constable in the Central Industrial Security

Force Unit, GSL, Shipyard, Goa and was getting a salary of

Rs.32,719/- per month and due to the unexpected accident,

the petitioners have lost the only bread-earner in the family,

put to hardship and are suffering physically, mentally and

financially. On all these grounds sought to allow the claim

petition.

4. Respondent No.1 owner of the Swift car, resisted the

claim petition by filing objections denying the entire averments

made in the claim petition. It is contended that the accident

occurred due to negligent riding of the motorcycle by its rider.

It is further contended that the driver of the Swift car was

having valid and effective driving licence as on the date of

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accident and the said vehicle insured with respondent No.2-

Insurance Company was in force. It is also contended that the

two vehicles were involved in the accident and the petitioners

have made only the owner and insurer of Swift car as parties to

the proceedings and the owner and the insurer of the

motorcycle are not parties to the petition. Accordingly, the

petition is bad for non-joinder of necessary parties. On all

these grounds, the respondent No.1 sought for dismissal of

claim petition with costs.

5. Respondent No.2-Insurance Company by filing its

statement of objections has resisted the claim petition denying

the entire petition averments. It is further contended that the

petition is bad for non-joinder of necessary parties. The driver

has not been arrayed as party to the proceedings and without

proper parties, it would be difficult to adjudicate the case. It is

also contended that it is the bounden duty of the rider to wear

protective headgear while riding the motorcycle as per the

provisions of Motor Vehicles Act. The deceased has violated the

provisions of the Act by not wearing helmet while riding the

motorcycle and dashed against the Swift car which resulted in

the alleged accident. It is further contended that if the court

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comes to the conclusion that the petitioners are entitled for

compensation, in that event, contributory negligence on the

part of the rider of the motorcycle be considered and award if

any passed, be apportioned amongst both the vehicles. It is

also contended that the owner of the Swift car has violated the

conditions of the insurance policy knowingly and carelessly

entrusting the car to driver who was not holding valid and

effective driving licence and hence, prayed for dismissal of the

claim petition.

6. On the basis of rival pleadings, the Tribunal has

framed issues. To prove the case of the petitioners, petitioner

No.1 was examined as PW1 and got marked nine documents as

Exhibits P1 to P9. On closure of petitioners' side evidence,

respondents have not led any oral evidence nor got marked any

document.

7. Having heard the arguments on both sides, the

Tribunal allowed the claim petition in part and awarded

compensation of Rs.45,36,376/- with interest at the rate of 8%

per annum from the date of petition till realisation. Being

aggrieved by the judgment and award passed by the Tribunal,

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the Insurance Company has preferred MFA No.101387 of 2016

questioning the liability as well as the quantum of

compensation. Being not satisfied with the compensation

awarded by the Tribunal, the claimants have preferred MFA

Crob.No.100133 of 2016 seeking enhancement of

compensation.

8. Sri G.N. Raichur, learned counsel appearing for the

appellant-Insurance Company would submit that the Tribunal

committed an error in coming to the conclusion that the

accident occurred due to the rash and negligent driving of the

driver of the Swift car. He submits that it could be seen from

the records that the deceased, in the process of overtaking,

came and dashed to the Swift car, but the Tribunal, with regard

to negligence, proceeded only on the basis of police records.

Learned counsel submits that it is the settled principle of law

that in Motor Accident Claim proceedings, the negligence aspect

has to be decided independently. Therefore, the finding of the

Tribunal on issue No.1, particularly on the point of negligence,

is erroneous.

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9. The further submission of the learned counsel for the

appellant-Insurance Company is that the Tribunal has

committed an error in deducting only 10% of the income-tax.

Looking to the salary, the income tax comes to the slab of

30%. Therefore, the deduction of income-tax at 10% is

erroneous. He also submits that the Tribunal has committed an

error in not deducting professional tax which is a standard

deduction. The Tribunal has also committed an error in

awarding Rs.4,25,000/- under conventional heads, which is on

the higher side. Further, the Tribunal committed an error in

awarding interest at the rate of 8% per annum instead of

awarding the same at 6% per annum. On all these grounds, he

sought for allowing the appeal.

10. Sri S.M. Kalwad, learned Counsel appearing for the

Cross-objector/claimants would submit that the appeal filed by

respondent No.2 is not maintainable, either in law or on facts.

He submits that the Tribunal ought to have deducted only a

sum of Rs.10,631/- towards income-tax, but committed an

error in deducting 10% out of the gross salary of the deceased

while calculating compensation towards loss of dependency and

if it so done, the claimants are still entitled for a sum of

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Rs.3,26,556/-. He submits that the Tribunal has rightly held

that the accident occurred due to rash and negligent driving of

the driver of Swift car relying upon Exhibits P1 to P6 which are

not disputed by the respondents. The respondents have not

adduced any evidence to discard the evidence placed by the

petitioners. His further submission is that the Tribunal has not

awarded any amount towards loss of consortium as held by the

Hon'ble Supreme Court in the case of RAJESH v. RAJBIR SINGH

reported in (2013)9 SCC 54. Further, he submits that the

Tribunal could have awarded interest at 9% per annum as is

held by the Hon'ble Supreme Court in the above case. On all

these grounds he sought for allowing the appeal by enhancing

the compensation.

11. Having heard the learned counsel for the parties and

upon perusal of appeal papers as well as original records, the

following points would arise for our consideration:

1. Whether the Insurance Company has made out

a ground that the accident occurred due to

contributory negligence on the part of the

deceased?

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2. Whether the Tribunal is justified in awarding

interest at the rate of 8% per annum?

3. Whether the claimants are entitled for

enhancement of compensation?

3. What order or award?

12. Our answer for the above points is as under:

Point No.1: in the negative;

Point No.2: in the negative;

Point No.3: partly in the affirmative; Point No.4: as per final order

Regarding Point No.1:

13. We have carefully examined the material placed

before this Court. It is the case of the petitioner/claimants that

on 05th March, 2014 at about 6.45 pm, when Harikrishna

Pawar-husband of petitioner No.1 and the father of petitioners

2 and 3, was proceeding on motorcycle bearing Registration

No.AP-31/AZ-2794 on NH4A from Mollem to attend his duty

and when he reached near Suktolim Mollem near Rajlaxmi

Petrol Pump of Ponda, the driver of the Swift car bearing

Registration No.KA-17/M-9565 came in a high speed, rash and

negligent manner and dashed to the motorcycle resulting in the

death of Harikrishna on the spot. The body was shifted to Goa

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Medical College, Goa where post-mortem was conducted and

the body was handed over to the petitioners. To substantiate

the case of the petitioners, one witness viz. Smt. Prathiba

Pawar was examined as PW1 and marked nine documents as

Exhibits P1 to P9. A perusal of these documents makes it clear

that on the basis of the complaint filed by one Shamarao,

Collem Police have registered as case in Crime No.11 of 2014

against Mahaboob S/o Moula Saab Badami, driver of the Swift

Car bearing Registration No.KA-17/M-9565 for the commission

of offence punishable under Sections 279 and 304-A and

Section 134(a) and (b) of Motor Vehicles Act, 1988 and

submitted the First Information Report to the Court.

Thereafter, the police have visited the spot, prepared spot

mahazar, prepared rough sketch, conducted inquest

panchanama, obtained post-mortem report and recorded spot

witnesses and on thorough investigation, the investigation

officer filed charge sheet against the accused-Mahaboob

Badami for commission of offence punishable under Sections

279, 304-A and Section 134(a) and (b) of Motor Vehicles Act,

1988. Apart from these, documentary evidence, Pratibha

Pawar, has also deposed in her evidence as to the accident as

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C/W MFA.CROB No. 100133 of 2016

alleged in the claim petition. During the course of cross-

examination of PW1, the respondents have not questioned as

to the charge-sheet submitted by the investigating officer.

Respondents have also not adduced any evidence before the

Tribunal to discard the oral and documentary evidence placed

by the petitioners to prove the contributory negligence of the

deceased as alleged in the statement of objections. If really

the accident occurred due to the contributory negligence on the

part of the deceased, the driver of the offending vehicle would

have lodged a complaint with the police, but he has not done

so. Instead of filing the complaint after the accident, the driver

fled the scene without even informing the police and

accordingly, violated the provisions of Section 134(a) and (b) of

the Motor Vehicles Act, 1988. The driver of the Swift car has

not explained as to why he has not complied with the

mandatory provisions of Section 134(a) and (b) of the Motor

Vehicles Act, 1988 after the accident. The conduct of the driver

of the offending Swift car reveals that the accident occurred

due to rash and negligent act on his part. The Tribunal has

properly appreciated the evidence on record in accordance with

law and facts. On re-consideration, re-examination and of the

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entre evidence on record, we do not find any illegality/legal

infirmity in the finding given by the Tribunal. Accordingly, the

Insurance Company has failed to prove that the accident

occurred due to the contributory negligence on the part of the

deceased. Hence, we answer point No.1 in the negative.

Regarding point No.2:

14. Sri G.N. Raichur, learned counsel appearing for the

appellant Insurance Company submits that the Tribunal has

awarded interest at the rate of 8% per annum from the date of

petition till realisation. The same is on the higher side. We

find force in the submission of the learned counsel. Taking

note of the interest rates paid by the nationalised banks on

fixed deposits as on the date of filing of claim petition, we

deem it just and proper to award the interest at the rate of 6%

per annum. Accordingly, we answer point No.2 in the negative.

Regarding Point No.3:

15. Exhibit P6-post-mortem report reveals that the age

of the deceased as on the date of accident was 46 years. The

petitioners have produced Service certificate of the deceased

and the Driving Licence of the deceased as Exhibits P8 and P9

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respectively, which reveal that date of birth of the deceased

was 14th January, 1968. The accident took place on 05th

March, 2014. Thus, the age of the deceased was 45 years, one

month and 21 days. Accordingly, relying upon the decision of

the Hon'ble Supreme Court in the case of SARLA VERMA AND

OTHERS v. DELHI TRANSPORT CORPORATION AND ANOTHER

reported in (2009)6 SCC 121 the appropriate multiplier would

be 13 and the Tribunal has rightly taken the same. With regard

to income of the deceased is concerned, it is an undisputed fact

that the deceased was working as Head Constable in Central

Industrial Security Force, GSL Shipyard, Goa. Exhibit P7 is the

salary certificate of the deceased issued by the Deputy

Commandant/DDO, CISF Unit, GSL, Goa, which reveals that the

gross salary of the deceased was Rs.34,610/- per month.

Relying upon the decision of the Hon'ble Supreme Court in the

case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY

SETHI reported in AIR 2017 SC 5157, the Tribunal has added

30% of the income towards the future prospects, as deceased

was in a permanent job. Hence, the monthly income of the

deceased would be Rs.44,993/-. The Tribunal has rightly

deducted 10% towards income-tax and assessed the monthly

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income of the deceased at Rs.40,494/-. Since there are three

dependents, in view of the decision of the Hon'ble Supreme

Court in the case of SARLA VERMA (supra), one third has to be

deducted towards the personal and living expenses of the

deceased. Accordingly, the compensation under the head loss

of dependency would be Rs.42,11,376/- (Rs.26,996/- x 12 x

13). As regards loss of consortium is concerned, the Tribunal

has awarded only Rs.50,000/- under the said head. Further,

the Tribunal has awarded higher compensation towards loss of

estate, towards transportation charges and funeral expenses;

and towards loss of estate. The same are not in consonance of

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

PRANAY SETHI (supra) as also the decision of the Hon'ble

Supreme Court in the case of MAGMA GENERAL INSURANCE

COMPANY LIMITED v. NANU RAM AND OTHERS reported in

(2018)18 SCC 130. Keeping in mind the aforesaid decisions of

the Hon'ble Supreme Court, it is just and proper to modify the

compensation as under:

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                                 C/W MFA.CROB No. 100133 of 2016



Sl.No.                      Head                     Amount (in Rs.)
  1.          Loss of dependency                        42,11,376.00
  2.          Loss of consortium
                                                           1,20,000.00
              (Rs.40,000 x 3)
   3.         Loss of Estate                                    15,000.00
   4.         Towards transportation of dead
                                                                15,000.00
              body and funeral charges
                                            Total         43,61,376.00

Accordingly, we answer point No.3, partly in the affirmative.

Regarding Point No.4:

16. For the aforesaid reasons and discussions, we

proceed to pass the following:

ORDER

1. Both appeals are partly allowed;

2. Judgment and Award dated 22nd February, 2016

passed in MVC No.307 of 2014 by the III

Additional Senior Civil Judge and Additional Motor

Accident Claims Tribunal, Dharwad, is modified

holding that the claimants are entitled for

compensation of Rs.43,61,376/- as against

Rs.45,36,376/- awarded by the Tribunal;