Karnataka High Court
Shri.Ashpak Hasansab Fattekhan vs Smt.Umera W/O Mukkimkhan Pathan @ Khan on 28 May, 2024
Author: S G Pandit
Bench: S G Pandit
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MFA No. 101714 of 2017
C/W MFA No. 103081 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF MAY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO.101714 OF 2017 (MV)
C/W
MISCELLANEOUS FIRST APPEAL NO.103081 OF 2017
IN MFA NO.101714 OF 2017
BETWEEN:
SHRI ASHPAK HASANSAB FATTEKHAN,
AGE. 34 YEARS, OCC. BUSINESS,
R/O. WARD NO.52, CCB 750,
2ND CROSS AZAD NAGAR, BELAGAVI
PIN CODE: 590016.
...APPELLANT
(BY SRI SANJAY S.KATAGERI, ADVOCATE)
Digitally signed by AND:
VINAYAKA B V
Location: HIGH 1. SMT.UMERA WD/O MUKKIMKHAN PATHAN @ KHAN,
COURT OF AGE: 27 YEARS, OCC.HOUSEHOLD WORK
KARNATAKA
R/O. H.NO.2716, KASAI GALLI, BELAGAVI
PIN CODE:590001.
2. KUM. MOHINUL ISLAM
S/O. MUKKIMKHAN PATHAN @ KHAN,
AGE: 6 YEARS, OCC. NIL,
R/O. H.NO.2716, KASAI GALLI,
BELAGAVI PIN CODE:590001,
RESPONDENT NO.2 IS REPRESENTED
HER MOTHER RESPONDENT NO.1.
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MFA No. 101714 of 2017
C/W MFA No. 103081 of 2017
3. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO.LTD.,
1568, SITA SMRUTI, MARUTI GALLI,
BELAGAVI PIN CODE: 590001.
...RESPONDENTS
(BY SRI HARISH S.MAIGUR, ADVOCATE FOR R1 AND R2;
SRI S.S. KOLIWAD, ADVOCATE FOR R3)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
U/S.173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE
JUDGMENT AND AWARD DATED 04.02.2017 PASSED IN MVC
NO. 2334/2011 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND CHIEF JUDICIAL MAGISTRATE AND MEMBER
ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI,
IN AWARDING THE COMPENSATION OF RS. 4,95,000/- WITH
INTEREST AT THE RATE OF 6% P.A FROM THE DATE OF
PETITION, TILL THE DATE OF PAYMENT, BY HOLDING THE
APPELLANT HEREIN LIABLE TO PAY THE COMPENSATION BE
KINDLY SET ASIDE, BY ALLOWING THIS APPEAL AND THEREBY
SADDLING THE LIABILITY TO PAY THE COMPENSATION ON
RESPONDENT NO.3 HEREIN/INSURANCE COMPANY, IN THE
INTEREST OF JUSTICE AND EQUITY.
IN MFA NO. 103081 OF 2017
BETWEEN:
1. SMT. UMERA WD/O. MUKKIMKHAN PATHAN @ KHAN,
AGE: 27 YEARS, OCC.HOUSE HOLD WORK,
R/O. H.NO.2716, KASAI GALLI, BELAGAVI,
T & D BELAGAVI-590001.
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MFA No. 101714 of 2017
C/W MFA No. 103081 of 2017
2. KUM. MOHINUL ISLAM
MUKKIMKHAN PATHAN @ KHAN,
AGE: 8 YEARS, OCC. NIL,
R/O. H.NO.2716, KASAI GALLI,
BELAGAVI T & D BELAGAVI-590001.
...APPELLANTS
(BY SRI HARISH S.MAIGUR, ADVOCATE)
AND:
1. SHRI ASHPAK HASANSAB FATTEKHAN,
AGE. MAJOR YEARS, OCC. BUSINESS,
R/O. WARD NO.52, CCB 750, 2ND CROSS,
AZAD NAGAR, BELAGAVI-590016.
2. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO.LTD.,
1568, SITA SMRUTI, MARUTI GALLI,
BELAGAVI TAL & DIST:BELAGAVI-590002.
...RESPONDENTS
(BY SRI S.S. KOLIWAD, ADVOCATE FOR R2;
NOTICE TO R1 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
U/S.173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE
JUDGMENT AND AWARD DATED 04.02.2017 PASSED IN MVC
NO. 2334/2011 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND CHIEF JUDICIAL MAGISTRATE AND MEMBER
ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR
ADMISSION, THIS DAY, G BASAVARAJA, J., DELIVERED THE
FOLLOWING:
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MFA No. 101714 of 2017
C/W MFA No. 103081 of 2017
JUDGMENT
Though these appeals are listed for admission, they are
taken up for final disposal with the consent of learned counsel
for both the parties.
2. The claimants as well as owner are in appeal
against the judgment and award dated 04.02.2017 passed in
MVC No.2334/2011 on the file of learned Principal Senior Civil
Judge and Addl. M.A.C.T., Belagavi (for short, 'Tribunal').
3. The parties are referred to as per their ranks before
the Tribunal for the purpose of convenience.
4. MFA.No.101714/2017 is filed by the respondent
No.1 who is the owner of TATA Ace bearing Registration No.KA-
22/B-2059 praying for setting aside the judgment and award
passed by the Tribunal, challenging the saddling of liability on
him; whereas MFA.No.103081/2017 is filed by the claimants
praying for enhancement of compensation.
5. Brief relevant facts leading to file these appeals are
that, the claimants, who are the wife and minor son of the
deceased Mukkimkhan Pathan, filed a claim petition under
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Section 166 of the Motor Vehicles Act, 1988 seeking
compensation for the accidental death of Mukkimkhan that took
place on 08.10.2011 involving TATA Ace bearing Registration
No.KA-22/B-2059. It is further stated that as on the date of
accident, deceased was working as a coolie on the above said
vehicle.
6. On issuance of notice, respondents No.1 and 2
appeared before the Court and filed their statement of
objections denying the entire claim petition averments. On the
basis of pleading, the issues were framed by the Tribunal. To
substantiate the case of the claimants, claimant No.1 herself
examined as PW1 and another witness was examined as PW2.
The claimants got marked 14 documents as Exs.P1 to P14,
whereas the respondent No.1 himself got examined as RW1
and got marked insurance policy as Ex.R1 and D.L as Ex.R2.
The Tribunal based on the material on record allowed the claim
petition in part saddling the entire liability on respondent
No.1/owner and awarded a total compensation of Rs.4,95,000/-
with interest at 6% per annum from the date of petition till
realization. Being aggrieved by the judgment and award passed
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by the Tribunal, the owner and the claimants are before this
Court in these appeals.
7. Heard the learned counsel Sri.Sanjay S.Kategeri for
the owner, learned counsel Sri.Harish S.Maigur for the
claimants as well as learned counsel Sri.S.S.Koliwad for
Insurance Company and perused the appeal papers along with
original records.
Submissions of the learned counsel for the parties are as
under:
8. Sri.Sanjay S.Katageri, learned counsel appearing
for the owner in support of his appeal would submit that the
Tribunal committed grave error in fastening the liability on the
respondent No.1/owner of TATA Ace bearing Registration
No.KA-22/B-2059 to pay the compensation to the claimants by
exonerating the respondent No.2/Insurance Company on the
ground that the deceased Mukkimkhan Pathan was traveling as
a gratuitous passenger in the said offending vehicle as shown in
copy of complaint-Ex.P2 and as per the statement recorded by
the Police under Section 161 of Code of Criminal Procedure,
(i.e. Ex.P9). Further, he would submit that the claimants have
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pleaded in claim petition that the deceased Mukkimkhan was
working as a coolie of above stated vehicle and as on date of
the accident, the deceased had loaded the cloth bundles in the
said vehicle to transport the same from Belgaum to Bijapur and
it is pleaded in the claim petition that, after loading cloth
bundles in the said vehicle, the deceased and the driver seated
in the cabin and the owner of cloth bundles sat back side of the
vehicle; to substantiate this, PW1 Smt.Umera W/o.
Mukkimkhan Pathan has stated the same in her evidence. It is
further submitted that PW2-Sufiyankhan Sultankhan Pathan,
who is shown as an eyewitness and injured in the chargesheet
as CW13 has clearly deposed in his evidence that on
08.10.2011 he along with other persons hired TATA Ace
bearing Registration No.KA-22/B-2059 to carry their cloth
bundles from Belgaum to Bijapur and the deceased
Mukkimkhan who was the Cleaner-cum-Coolie on the said
vehicle has loaded the bundles in the said vehicle. Further, it is
submitted that RW1-Owner of the offending vehicle has also
deposed in his evidence that the deceased Mukkimkhan was
working has Cleaner-cum-Coolie on the said vehicle. It is
submitted that the insurance company has not produced any
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material to show that the deceased was traveling as a
gratuitous passenger in the said vehicle, however, the Tribunal
has ignored the evidence of PW1, PW2 and RW1 which is not
sustainable under law. Admittedly, the policy was in force at
the time of the accident. Therefore, the insurance company is
liable to pay the compensation. Thus, he seeks to allow the
appeal filed by the owner of the offending vehicle.
9. Sri.Harish S.Maigur, learned counsel for claimants
would submit that the Tribunal has not awarded the
compensation in accordance with law and as per the decisions
of the Hon'ble Apex Court on all the heads. The Tribunal has
committed an error in assessing the income of the deceased at
Rs.3,000/- per month without there being any material on
record. Learned counsel would submit that as the claimants
have not placed any material on record to establish the income
of the deceased, the Tribunal could have taken the notional
income of the deceased at Rs.6,000/- per month as per the
chart prepared by the KSLSA for the accident of the year 2011.
Thus, he seeks to allow the appeal filed by the claimants by
enhancing the compensation appropriately on all the heads.
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10. Per contra, Sri.S.S.Koliwad, learned counsel for
appellant/insurance company would contend that the Tribunal
has properly appreciated the evidence on record in accordance
with law and facts and has come to the conclusion that the
insurance company is not liable to pay any compensation to the
claimants. Further, he submits that the Tribunal has rightly
passed the judgment and award and there are no grounds to
interfere with the same. Thus, he seeks to dismiss both the
appeals.
11. Having heard the learned counsel for the parties
and on perusal of the appeal papers along with original records,
the following points would arise for consideration:
a) Whether the Tribunal is justified in fastening
the liability on respondent No.1/owner of the
offending vehicle to pay the compensation?
b) Whether the claimants would be entitled for
enhanced compensation?
Point No.(a) is answered in the negative and Point No.(b)
is answered partly in the affirmative for the following reasons:
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12. We have carefully examined the material available
on record. The accident that took place on 08.10.2011
involving TATA Ace bearing Registration No.KA-22/B-2059,
resultant death of the deceased Mukkimkhan, is not in dispute
in these appeals. The claimants as well as owner are in
appeals challenging the quantum of compensation as well as
fastening of liability.
13. On the basis of the complaint filed by the
Nafeenkhan Pathan, Lokapur Police have registered the case in
Crime No.115/2011 against Ijajahamad Noorahamad
Nesaragikar for the commission of offences punishable under
Sections 279, 337 and 338 of IPC and submitted FIR to the
Court. Thereafter, the Police have rushed to the spot and
conducted spot panchanama, prepared rough sketch, inquest
panchanama and the Investigating Officer conducted
investigation, obtained PM Report, MV Report and submitted
the chargesheet against the driver of the offending vehicle for
the commission of offences punishable under Sections 279,
337, 338 and 304 of IPC and Section 194 of the Motor Vehicles
Act. The claimants have specifically pleaded in their claim
petition that the deceased was working as a coolie on the
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offending vehicle as on the date of the accident, he has loaded
the cloth bundles in the said vehicle to transport the same from
Belgaum to Bijapur. The respondent No.1 has filed his objection
to the claim petition in which he has clearly admitted that the
deceased was working as a Cleaner-cum-Coolie on the said
vehicle as on the date of the accident. To substantiate the case
of the claimants, PW1 and PW2 examined before the Court.
PW1 is the wife of the deceased and PW2 is one of the
eyewitnesses and also an injured who has shown as CW13 in
the chargesheet. Both of them have clearly deposed in their
evidence that the deceased was working as a coolie on the
offending vehicle as on the date of the accident and also that
he has loaded the cloth bundles into the vehicle to transport
the same from Belgaum to Bijapur.
14. RW1 has deposed that the deceased was working as
cleaner cum coolie in his vehicle as on the date of the accident.
Though, PW1, PW2 and RW1 have deposed that the deceased
was working as a coolie, the Tribunal has ignored the same
only on the ground of recitals of Ex.P2 and P9 which are
complaint and statement of PW1-Smt.Umera recorded under
Section 161 of Cr.P.C. The said Umera examined before the
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Court as PW1 but has not deposed as per the statement
recorded by the Police under Section 161 of Cr.P.C, however,
the Tribunal has accepted the contents of Ex.P9 which is not
admissible in evidence.
15. Ex.P2 is a copy of the complaint filed by one
NafeenKhan Pathan. The said Nafeenkhan Pathan is not
examined before the Court to prove the contents of Ex.P2 and
respondent No.2/Insurance company has also not examined
Nafeenkhan or the driver of the offending vehicle to prove that
the deceased was traveling as a gratuitous passenger in the
offending vehicle as on the date of the accident. However, the
Tribunal has ignored the legal evidence placed by the claimants
and the owner of the vehicle and come to a wrong conclusion
that the deceased was traveling as a gratuitous passenger in
the offending vehicle as on the date of the accident on the
basis of Ex.P2 and P9 which are not admissible in evidence
without proof. Accordingly, the Tribunal has committed an error
in appreciating the evidence on record in accordance with law
and facts.
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16. On re-appreciating the evidence on record, we are
of the considered opinion that the owner of the vehicle has not
violated any terms and conditions of the policy. Accordingly
the insurance company is liable to pay the compensation to the
claimants. Hence, we answer the above Point No.1 in the
'negative'.
17. It is the contention of the appellants/claimants that
the Tribunal committed an error in assessing the income of the
deceased at Rs.3,000/- per month, which is on the lower side.
Admittedly, the deceased was working as a coolie. In order to
prove the income of the deceased, no cogent or acceptable
document is placed on record. In the absence of any
documentary evidence to establish the avocation and income of
the deceased, this Court and Lok Adalath while settling the
accidental claims, would normally assess notional income
relying on the chart prepared by Karnataka State Legal
Services Authority. Therefore, we are of the opinion that it
would be just and appropriate to determine notional income of
the deceased at Rs.6,000/- p.m., taking note of the income
chart prepared by KSLSA.
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18. With regard to award of future prospects, the
Tribunal committed an error in not awarding any compensation
on the head of loss of future prospects. Admittedly, the
deceased was aged about 27 years. In terms of decision of
Hon'ble Apex Court in the case of National Insurance
Company Limited Vs. Pranay Sethi & Others1 supra, the
claimants would be entitled to an addition of 40% of the
assessed income towards future prospects of the deceased. The
proper multiplier applicable to the age of the deceased is 17.
There is no dispute with regard to deduction of 1/3rd. Thus, the
claimants would be entitled for modified compensation on the
head of loss of dependency as under:
Rs.6,000 (income) x 12 (months) + 40%(future prospects) x
17(multiplier) x 2/3(deduction) = Rs.11,42,400/-.
19. Further, each of the claimants would be entitled to
Rs.40,000/- towards loss of consortium, besides Rs.15,000/-
towards loss of estate and Rs.15,000/- towards funeral
expenses. The award of compensation by the Tribunal under
2017 (16) SCC 680
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the head of 'medical expenses, attendant charge, food and
conveyance charges' is unaltered.
20. Thus, the claimants would be entitled for modified
compensation on the following heads:
Sl. Particulars Amount
No. (In Rupees)
1. Loss of dependency 11,42,400/-
2. Loss of estate & Funeral 30,000/-
expenses
3. Loss of consortium 80,000/-
(Rs.40,000x3)
4. Medical expenses, attendant 50,000/-
charges, food and conveyance
charges
Total 13,02,400/-
21. Thus, the claimants would be entitled to total
compensation of Rs.13,02,400/- as against Rs.4,95,000/-
awarded by the Tribunal.
22. Hence, we pass the following:
ORDER
a) MFA.No.101714/2017 is allowed and
MFA.No.103081/2017 is allowed in part.
b) The impugned judgment & award of Tribunal
is modified holding that the claimants are
entitled to total compensation of
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Rs.13,02,400/- as against Rs.4,95,000/-
awarded by the Tribunal.
c) The compensation shall carry interest at the
rate of 6% p.a. from the date of claim
petition till realization.
d) The appellant-Insurer is liable to pay the
compensation and shall deposit the
compensation amount with accrued interest
before the Tribunal within a period of six
weeks from the date of receipt of certified
copy of this judgment.
e) Apportionment, deposit & disbursement shall
be made as per award of Tribunal.
f) Registry to transmit the records, if any, to the
Tribunal, forthwith.
g) The amount in deposit, if any, by the owner
shall be refunded in accordance with law.
h) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
RH
