Karnataka High Court

Smt.Karunabai And Ors vs Sharnappa And Anr on 29 May, 2024

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                                                      NC: 2024:KHC-K:3402
                                                    MFA No. 201866 of 2017
                                                C/W MFA No. 200705 of 2018




                              IN THE HIGH COURT OF KARNATAKA,

                                     KALABURAGI BENCH

                            DATED THIS THE 29TH DAY OF MAY, 2024

                                            BEFORE
                           THE HON'BLE MR. JUSTICE UMESH M ADIGA


                        MISCL. FIRST APPEAL NO. 201866 OF 2017 (MV-D)
                                             C/W
                        MISCL. FIRST APPEAL NO. 200705 OF 2018 (MV-D)

                   IN MFA.NO. 201866/ 2017:

                   BETWEEN:

                   1.   SMT. KARUNABAI W/O RAJKUMAR,
                        AGE: 41 YEARS, OCC: HOUSEHOLD,

                   2.   AMBIKA D/O RAJKUMAR
                        AGE: 23 YEARS, OCC: HOUSEHOLD,
Digitally signed   3.   DEEPIKA D/O RAJKUMAR
by KHAJAAMEEN
L MALAGHAN              AGE: 22 YEARS, OCC: HOUSEHOLD,
Location: HIGH
COURT OF           4.   MONIKA D/O RAJKUMAR
KARNATAKA               AGE: 20 YEARS, OCC: STUDENT,
                   5.   SUSHILABAI W/O SHIVARAYA
                        AGE: 67 YEARS, OCC: NIL,

                        ALL ARE R/O PLOT NO.511, 4TH CROSS,
                        M.B.NAGAR, KALABURAGI,
                        NOW R/AT VILLAGE MALAGATTI,
                        TQ. CHITTAPUR,
                        DIST. KALABURAGI.

                                                               ...APPELLANTS
                   (BY SRI SANJEEV PATIL, ADVOCATE)
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                                NC: 2024:KHC-K:3402
                                 MFA No. 201866 of 2017
                             C/W MFA No. 200705 of 2018



AND:

1.   SHARNAPPA S/O BASAPPA
     AGE: MAJOR, OCC: NOT KNOWN,
     OWNER OF JEEP NO.KA-16/A-0271,
     R/O VILLAGE M.KODADUR,
     TQ. CHITTAPUR,
     DIST. KALABURAGI.

2.   THE MANAGER
     RELIANCE GENERAL INSURANCE CO. LTD.,
     DIVISIONAL OFFICE, ASIAN PLAZA,
     NEAR TIMMAPURI CIRCLE,
     KALABURAGI-585102.

                                         ...RESPONDENTS

(BY SRI SUBHASH MALLAPUR, ADVOCATE FOR R2;
 R1 IS SERVED)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED-
28.07.2017 PASSED BY THE SENIOR CIVIL JUDGE AND MACT
AT CHITTAPUR IN FILE BEARING MVC NO.988/2015 BY
ENHANCING THE COMPENSATION.

IN MFA.NO. 200705/2018:
BETWEEN:

THE MANAGER
RELIANCE GENERAL INSURANCE CO. LTD.,
DIVN. OFFICE, ASIAN PLAZA,
NEAR TIMMAPURI CIRCLE,
KALABURAGI,
REPRESENTED BY AUTHORISED OFFICER.

                                             ...APPELLANT
(BY SRI SUBHASH MALLAPUR, ADVOCATE)
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                                 NC: 2024:KHC-K:3402
                                 MFA No. 201866 of 2017
                             C/W MFA No. 200705 of 2018



AND:

1.   SMT. KARUNABAI W/O RAJKUMAR
     AGE:42 YEARS, OCC: HOUSEHOLD,

2.   AMBIKA D/O RAJKUMAR
     AGE: 24 YEARS, OCC: HOUSEHOLD,

3.   DEEPIKA D/O RAJKUMAR
     AGE: 23 YEARS, OCC: HOUSEHOLD,

4.   MONIKA D/O RAJKUMAR
     AGE:21 YEARS, OCC: HOUSEHOLD,

5.   SUSHILABAI W/O SHIVARAYA
     AGE:68 YEARS, OCC: NIL,
     ALL R/O PLOT NO.511 4TH CROSS,
     M.B.NAGAR, KALABURAGI,
     NOW AT MALGATTI VILLAGE,
     TQ. CHITTAPUR,
     DIST. KALABURAGI-585102.

6.   SHARNAPPA S/O BASAPPA
     AGE: MAJOR, OCC: NOT KNOWN,
     OWNER OF JEEP NO.KA-16/A-0271,
     R/O VILLAGE M. KODADUR,
     TQ. CHITTAPUR,
     DIST. KALABURAGI-585102.
                                         ...RESPONDENTS

(BY SRI SANJEEV PATIL, ADVOCATE FOR R1 TO R5;
R6 SERVED)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO, ALLOW THE ABOVE APPEAL AND CONSEQUENTLY
BE PLEASED TO SET ASIDE THE JUDGMENT AND AWARD
DATED 28.07.2017 PASSED THE SENIOR CIVIL JUDGE AND
MACT, CHITTAPUR IN MVC NO.988/2015.

     THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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                                      MFA No. 201866 of 2017
                                  C/W MFA No. 200705 of 2018



                          JUDGMENT

Both these appeals arise out of common judgment

and award passed in MVC No.988/2015 dated 28.07.2017

on the file of Senior Civil Judge & MACT, Chittapur

(hereinafter referred to as 'the Tribunal' for short).

2. The claimants have filed appeal in MFA

No.201866/2017 for enhancement of compensation and

insurer has filed appeal in MFA No.200705/2018

questioning the liability as well as the quantum of

compensation awarded by the Tribunal.

3. The parties are referred to as per their ranks

before the Tribunal for the sake of convenience.

4. The case of the claimants is that on 08.04.2015

at about 00-30 hours deceased-Rajkumar Kori was driving

his auto rickshaw bearing Reg.No.KA-32/C-1807 and when

the said auto rickshaw reached near DMK petrol bunk on

Kalaburagi-Humnabad road, driver of a cruiser jeep

bearing Reg.No.KA-16/A-0271 drove his vehicle in a high

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speed and in a rash and negligent manner and dashed

against that auto rickshaw. As a result of which Rajakumar

sustained fatal injuries and died at the spot. The further

case of the claimants is that deceased was aged about 40

years at the time of accident, he was owner cum driver of

the said auto rickshaw and earning Rs.20,000/- per

month. Claimants are his wife, children and mother and

they were depending upon the earnings of the deceased.

With these reasons claimants have prayed to award

compensation of Rs.35,00,000/-.

5. Respondent No.2/insurer has denied the

contentions of the claim petition. It is further stated that

the liability of respondent No.2 is restricted to terms and

conditions of the policy of insurance. With these reasons

prayed to dismiss the claim petition.

6. From the rival contentions of the parties, the

Tribunal had framed the necessary issues.

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7. The claimants to prove their case examined

PW.1 and got marked Exs.P.1 to 9. Respondent No.2

examined RW.1 and got marked Exs.R1 and 2.

8. The Tribunal after hearing both the parties and

appreciating the evidence available on record, by the

impugned judgment, awarded the following amount of

compensation.

          Sl.               Heads                    Amount
          No.
           1.    Loss of dependency and            Rs.12,15,000/-
                 expectancy
          2.     Loss of consortium                   Rs.10,000/-
          3.     Towards love and affection.          Rs.25,000/-
          4.     Towards transportation of             Rs.5,000/-
                 dead body
          5.     Towards funeral expenses             Rs.10,000/-
                                          Total   Rs.12,65,000/-

9. I have heard the arguments of learned counsel

for both the parties.

10. Learned counsel for the claimants submits that

the amount of compensation awarded is not just and

reasonable, income of the deceased is not properly

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considered by the Tribunal and even amount of

compensation awarded on other heads also not justifiable.

Therefore, prayed to award just and reasonable amount of

compensation.

11. Learned counsel for respondent No.2 submits

that considering the mahazar as well as motor vehicle

inspection report, the accident was not caused only due to

the negligence of the driver of the cruiser; on the

contrary, deceased-driver of auto rickshaw equally was

responsible for the accident. In the motor vehicle

inspection report, it is mentioned that left side front door

of cruiser was dented due to the collision between the

vehicles. Driver of the auto rickshaw was driving the

vehicle at the wrong side of the road because of which

there was damage to the left front portion and door of the

cruiser vehicle. It clearly indicates that driver of the auto

rickshaw drove his vehicle on the wrong side of the road

and also responsible for the accident. The negligence can

be apportioned between the driver of the both the vehicles

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and accordingly to that extent amount of compensation be

reduced. He further submits that admittedly there is no

reliable evidence to prove the income of the deceased.

Even if notional income is considered on the basis of

schedule prepared by the KSLSA, the accident occurred

during the year 2015 notional income has to be assessed

as Rs.8,000/- per month. In this case the Tribunal has

assessed the income of the deceased as Rs.9,000/- per

month, which is not in accordance with schedule of the

income of the KSLSA. Considering the same reasonable

amount needs to be awarded.

12. The following questions arise for determination.

i) Whether accident in question was

occurred due to composite negligence

of driver of both the vehicles?

ii) Whether the amount of compensation

awarded is just and reasonable?

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13. The claimants in the claim petition as well in the

evidence consistently stated that accident had taken place

due to rash and negligent driving of cruiser vehicle by its

driver. It is pertinent to note that in the written statement

filed by respondent No.2, there is no defence that driver of

the auto rickshaw had contributed for the accident in

question. In the cross-examination of PW.1, it was

suggested that the said vehicle had been falsely implicated

and accident was not at all caused by the offended cruiser

vehicle.

14. RW.1 was examined and in his evidence also,

he had not stated that accident was taken place due to

negligent driving of the driver of the auto rickshaw. On the

contrary it is stated that driver of the auto rickshaw was

not holding valid permit and driving licence to drive the

said vehicle and even the driver of the jeep was also not

holding valid driving licence and permit. Therefore for the

first time in the appeal defence by respondent No.2 that

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accident had taken place due to contributory negligence of

driver of both vehicles has been raised.

15. The appellant-insurer cannot take a new

defence in an appeal for the first time which was not taken

before the Tribunal. More over the driver of cruiser had

been charge-sheeted for the alleged accident and nowhere

in the prosecution papers it is mentioned that the driver of

the auto rickshaw went to the wrong side of the road and

hit against the left side of the cruiser vehicle. It is not

known on what basis the insurer has been contending that

driver of the auto rickshaw had also contributed to the

accident in question. It appears damage mentioned in the

motor vehicle inspection report, inspired insurer to take

the said new ground in this appeal.

16. It is also pertinent to note that no reliable

evidence had been produced to accept that accident had

taken place due to contributory negligence of driver of

both vehicles. On the contrary prosecution papers clearly

reveals that accident had taken place due to negligence of

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driver of the cruiser vehicle. Hence, first question is

answered in the negative.

17. It is not in dispute that age of the deceased at

the time of accident was 40 years. The Tribunal had

accepted the same on appreciating the post mortem

report. The multiplier applicable to the case in hand is '15'

which is also not in dispute. Admittedly, no reliable

evidence had been produced by the petitioners to prove

the income of the deceased as Rs.20,000/- per month as

contended in the claim petition. The Tribunal relying on

the judgment of this Court in MFA No.100747/2015 in the

case of Peter vs. Haneefa and others accepted the

income of the deceased as Rs.300/- per day or Rs.9,000/-

per month. The facts and circumstances in the case of

Peter (supra) is not known.

18. The income taken by the Tribunal needs

reconsideration and notional income has to be assessed

(It appears during 2017 the schedule of KSLSA was not

prepared). At the time preparing the said list of income,

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KSLSA considered views of concerned stakeholders and

prepared the list. Therefore, income stated in the said

schedule can be applied to the present case. According to

the schedule, if accident had taken place during the year

2015, notional income has to be considered as Rs.8,000/-

per month. Accordingly, income of the deceased is taken

as Rs.8,000/- per month.

19. In this case the age of deceased was 40 years

as stated in the post mortem report. As held in the case of

National Insurance Co. Ltd., Vs. Pranay Sethi,

reported in (2017) 16 SCC 680, 40% of the income has

to be added towards future prospects. The deceased left

behind him five dependents. It is submission of learned

counsel for the respondents that except the wife,

daughters are majors, therefore, they cannot be

considered as dependents. The said submission is not

acceptable. Nowhere it is made out in the cross-

examination of PW.1 that they were not dependent upon

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earnings of the deceased, they are all unmarried

daughters at the time of filing of petition.

20. In the case of Sarla Verma Vs. Delhi

Transport Corporation, reported in (2009) 6 SCC 121,

so also in the case of Pranay Sethi (supra) it is held that

if number of dependents are more than four then 1/4th of

income has to be deducted towards personal expenses. In

this case five persons were depending on the deceased,

therefore, the Tribunal has rightly deducted 1/4th of the

income towards personal expenses.

21. On the basis of above said calculation loss of

dependency is recalculated as follows:

Rs.8,000/- + 40% = Rs.11,200/-

Rs.11,200/- (-) 1/4th (Rs.2,800/-) = Rs.8,400/-

Rs.8,400/- x 12 x 15 = Rs.15,12,000/-.

22. The Tribunal did not apply law laid down in the

case of Pranay Sethi (supra) while awarding

compensation under conventional heads (it appears by

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that time judgment was not delivered), therefore it was

not applied. Even in the case of Magma General

Insurance Company Limited vs. Nanu Ram and

others, 2018 ACJ 2782: (2018) 18 SCC 130 was not

followed in the said judgment, which needs to be followed.

23. For the aforesaid discussion, following amount

of compensation is awarded:

Sl.             Heads                   Amount           Amount
No.                                   awarded by       awarded by
                                      the Tribunal      this court
 1.   Loss of dependency and          Rs.12,15,000/-   Rs.15,12,000/-
      expectancy
 2.   Loss of consortium                 Rs.10,000/-    Rs.2,00,000/-
 3.   Towards love and                   Rs.25,000/-              ----
      affection.
 4.   Towards transportation of           Rs.5,000/-               ---
      dead body
 5.   Towards funeral expenses           Rs.10,000/-      Rs.15,000/-
 6.   Towards loss of estate                     ---      Rs.15,000/-
                           Total      Rs.12,65,000/- Rs.17,42,000/-
                  Enhancement                 Rs.4,77,000/-

24. The claimants are entitled for enhancement of

compensation in a sum of Rs.4,77,000/- along with

interest at the rate of 6% p.a. on the enhanced of

compensation from the date of petition till its realization.

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25. Admittedly respondent No.1 is the owner and

respondent No.2 insurer of offended cruiser vehicle.

Therefore, respondent No.2 is liable to pay the enhanced

amount of compensation. Accordingly, question No.2 is

answered.

26. For the reasons discussed above, I pass the

following:

ORDER

i. The appeal filed by the claimants in MFA No.201866/2017 and the appeal filed by the Insurance Company in MFA No.200705/2018 are allowed in part.

ii. The impugned judgment and award passed by the Senior Civil Judge & MACT, Chittapur, in MVC.No.988/2015 dated 28.07.2017 is modified.

iii. The claimants are entitled for total compensation of Rs.17,42,000/- as against Rs.12,65,000/- awarded by the Tribunal. The claimants are entitled for enhancement of compensation of Rs.4,77,000/- with interest

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on the enhanced amount of compensation at the rate of 6% per annum from the date of petition till its realization.

iv. The respondent No.2 - insurance company shall deposit the said amount with interest within a period of two months from the date of receipt of copy of this order.