Karnataka High Court
Smt.Chaya W/O Balasaheb Kiragat And Ors vs Arjun S/O Ramesh Hiremath And Anr on 29 May, 2024
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MFA No.200586 of 2017
C/W MFA No.200780 of 2015
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF MAY, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
MISCL. FIRST APPEAL NO.200586 OF 2017 (MV-D)
C/W
MISCL. FIRST APPEAL NO.200780 OF 2015 (MV-D)
IN M.F.A.NO.200586 OF 2017
BETWEEN:
1. SMT. CHAYA
W/O BALASAHEB KIRAGAT,
AGE: 41 YEARS,
OCC: HOUSEHOLD,
2. ARCHANA
D/O BALASAHEB KIRAGAT,
AGE: 23 YEARS,
Digitally signed OCC: STUDENT,
by VARSHA N
RASALKAR
Location: HIGH 3. PRIYANKA
COURT OF D/O BALASAHEB KIRAGAT,
KARNATAKA
AGE: 22 YEARS,
OCC: STUDENT,
4. SMT. SUSHILA
W/O ANAND KIRAGAT,
AGE: 64 YEARS,
OCC: HOUSEHOLD,
ALL ARE R/O JORAPUR PETH
VIJAYAPURA.
...APPELLANTS
(BY SRI SANGANAGOUDA V. BIRADAR, ADVOCATE)
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MFA No.200586 of 2017
C/W MFA No.200780 of 2015
AND:
1. ARJUN
S/O RAMESH HIREMATH,
AGE: MAJOR,
OCC: OWNER OF VEHICLE
NO. M.H.09-BC-5130,
A.P. GULMOHAR COLONY,
ICHALKARANJI, TQ: HATKNAGALE,
DISTRICT: SANGALI - 416 416,
(MAHARASHTRA).
2. THE BRANCH MANAGER
SHRIRAM GENERAL INSURANCE CO. LTD.,
10003-E8-RIICO INDUSTRIAL AREA,
SITAPUR, JAIPUR, RAJASTHAN - 302022
(VEHICLE NO.MH-09-BC-5130)
(POLICY NO.10003/31/10/205031)
W.E.F.19.12.2009 TO 8.12.2010).
3. BABAR SUNIL TANAJI
AT POST DONGARGAON,
TQ: SANGOLA,
DISTRICT: SOLAPUR,
MAHARASHTRA - 413 001.
4. THE MANAGER (LEGAL)
ICICI LOMBARD INSURANCE CO.,
II FLOOR, BELLAD COMPLEX,
GOKUL ROAD, HUBLI - 586 020.
(VEHICLE NO.MH-45-A-2707)
(POLICY NO.3001/TMO15463/00/000)
W.E.F.01.09.2009 TO 31.08.2010.
...RESPONDENTS
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R2,
SRI. SUBHASH MALLAPUR, ADVOCATE FOR R4;
V/O DTD.28.06.2018 NOTICE TO R1 IS DISPENSED WITH;
R3 IS SERVED)
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MFA No.200586 of 2017
C/W MFA No.200780 of 2015
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, 1988, PRAYING TO ALLOW THE APPEAL BY
MODIFYING THE JUDGMENT AND AWARD DATED 10.03.2015
PASSED BY THE M.A.C.T., VIJAYAPUR IN M.V.C.NO.443/2010
AND CONSEQUENTLY BE PLEASED TO ENHANCE THE
COMPENSATION FROM RS.6,45,000/- TO RS.25,00,000/- WITH
INTEREST @ 12% PER ANNUM FROM THE DATE OF PETITION
TILL ACTUAL REALIZATION, IN THE INTEREST OF JUSTICE AND
EQUITY.
IN M.F.A.NO.200780 OF 2015
BETWEEN:
THE BRANCH MANAGER
ICICI LOMBARD GEN.INS. CO. LTD.,
II FLOOR, BELLAD COMPLEX,
GOKUL ROAD, HUBLI.
(VEHICLE NO.MH-45-A-2707),
(POLICY NO.3001/TMO15463/00/000,
POLICY VALID FROM 01.09.2009 TO
31.08.2010).
...APPELLANT
(BY SRI. SUBHASH MALLAPUR, ADVOCATE)
AND:
1. SMT. CHAYA
W/O BALASAHEB KIRAGAT,
AGE: 40 YEARS,
OCC: HOUSEHOLD,
R/O. JORAPUR PETH,
BIJAPUR - 586 101.
2. ARCHANA
D/O BALASAHEB KIRAGAT,
AGE: 22 YEARS,
OCC: STUDENT,
R/O. JORAPUR PETH,
BIJAPUR - 586 101.
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MFA No.200586 of 2017
C/W MFA No.200780 of 2015
3. PRIYANKA
D/O BALASAHEB KIRAGAT,
AGE: 21 YEARS,
OCC: STUDENT,
R/O. JORAPUR PETH,
BIJAPUR - 586 101.
4. SMT. SUSHILA
W/O ANAND KIRAGAT,
AGE: 63 YEARS,
OCC: HOUSEHOLD,
R/O. JORAPUR PETH,
BIJAPUR - 586 101.
5. ARJUN
S/O RAMESH HIREMATH,
AGE: MAJOR,
OCC: OWNER OF VEHICLE,
NO. M.H.09-BC-5130,
R/O. A.P.GULMOHAR COLONY,
ICHALKARANJI, TQ: HATKNAGALE,
DISTRICT: SANGLI
MAHARASHTRA - 401 3001.
6. THE BRANCH MANAGER
SHRIRAM GENERAL INSURANCE CO. LTD.,
10003-E8-RIICO INDUSTRIAL AREA,
SITAPUR, RAJASTHAN - 302 022.
(VEHICLE NO.MH-09-BC-5130)
(POLICY NO.10003/31/10/205031)
VALID FROM 19.12.2009 TO 18.12.2010).
7. BABAR SUNIL TANAJI
AGE: MAJOR, OCC: BUSINESS,
R/O. AT POST: DONGARGAON,
TQ: SANGOLA,
DISTRICT: SOLAPUR,
MAHARASHTRA - 413 001.
...RESPONDENTS
(BY SRI SANGANAGOUDA V. BIRADAR, ADV., FOR R1 TO R5;
SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R6,
R7 IS SERVED)
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MFA No.200586 of 2017
C/W MFA No.200780 of 2015
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, 1988, PRAYING TO ALLOW THE ABOVE APPEAL
AND CONSEQUENTLY BE PLEASED TO SET ASIDE THE
JUDGMENT AND AWARD ATED 10.03.2015 PASSED BY
M.A.C.T., VIJAYAPURA, IN M.V.C.NO.443/2010, IN SO FAR IT
RELATES TO FASTENING OF LIABILITY ON THE APPELLANT, IN
THE INTEREST OF JUSTICE.
THESE MFA's COMING ON FOR FINAL HEARING, THIS
DAY RAJESH RAI K J., DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals arising out of common judgment are
filed under Section 173(1) of the Motor Vehicles Act (for
short 'the Act') challenging the judgment and award dated
10.03.2015 in MVC No.443/2010 passed by the Motor
Accident Claims Tribunal, Vijayapura at Vijayapura (for
short hereinafter referred to as 'the Tribunal').
2. MFA No.200780/2015 is filed by the Insurance
Company of the Indica Car, challenging fastening of
liability on the Insurance Company and MFA
No.200586/2017 is filed by the claimants claiming
enhancement in the compensation.
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3. The facts arise for consideration which are
borne out from the pleadings are as under:
On 13.01.2010 at about 12.30 a.m., the deceased
Balu @ Balasaheb S/o Anand Kiragat was traveling in his
Indica Car bearing registration No.MH-45/A-2707 which
was proceeding towards Mangalweda from Solapur, when
it reaches near Anandnagar canal, the said car dashed to
Tractor and Trolley bearing registration No.MH-13/J-4411
when the car was landing on the road side, one Truck
came from front side of the said car in a rash and
negligent manner and dashed to the car and caused the
accident. Due to the impact, deceased sustained severe
injuries to all over his body and died. Thereafter, post
mortem was conducted and jurisdictional police have
registered the case against the offending vehicles and
thereafter, filed charge sheet to that effect. Hence, the
petitioners being the dependents of the deceased filed the
claim petition before the Tribunal.
4. On service of notice, the respondent Nos.1 and
3 who are owners of Truck and Tractor & Trolley remained
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absent, hence, they were placed exparte. However,
respondent Nos.2 and 4 being the Insurance Companies of
the said vehicles appeared before the Tribunal and filed
their written statements by denying the averments made
in the claim petition. The Tribunal after considering the
facts and circumstances of the case framed the relevant
issues.
5. In order to prove the claim before the Tribunal,
the claimant No.1 examined herself as PW.1 and also got
examined another witness on her behalf as PW.2 so also
got marked documents Exs.P1 to P7. On behalf of
respondent Nos.2 and 4-Insurance Companies two
witnesses as RW.1 and RW.2 i.e. the officers of the
respective Insurance Companies were examined and two
documents Ex.R1 and R2 were exhibited.
6. After assessment of the oral and documentary
evidence placed before the Tribunal, the Tribunal partly
allowed the claim petition filed by the claimants and
awarded compensation of Rs.6,45,000/- along with
interest at the rate of 6% p.a., from respondent Nos.1 to 4
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from the date of petition till realization of the amount.
Further, the Tribunal directed respondent No.1 and 2 are
liable to pay compensation to the extent of 50% and
respondent Nos.3 and 4 are liable to pay the
compensation to the extent of 50%. Aggrieved by the
said judgment and award, the claimants filed MFA
No.200586/2017 and Insurance Company has filed MFA
No.200780/2015.
7. Heard the learned counsel, Sri.Sangangouda
V.Biradar appearing in MFA No.200586/2017 for the
claimants so also learned counsel, Sri.Subhash Mallapur,
appearing for the Insurance Company in MFA
No.200780/2015.
8. It is the primary contention of the learned
counsel for the Insurance Company that the Tribunal
grossly erred while passing the impugned judgment and
award. The Tribunal has not framed any issue on the
maintainability of the claim petition. The Insurance
Company has specifically taken the contention regarding
the jurisdiction of the Tribunal to entertain the claim
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petition, since the claimants are the residents of
Maharashtra. He would further contend that there were
three vehicles involved in the accident and the same was
caused due to the sole negligence of the driver of the
Tractor and Trolley. Therefore, the owner and insurer of
the Tractor and Trolley are necessary parties to the claim
petition. Moreover, the Tribunal has fastened the liability
on both the vehicles as such, it is clear that the accident
caused due to composite negligence on the part of all the
vehicles involved. He would also contend that the
deceased was a gracious passenger travelled in the car by
paying hire charges, though the car being the private
vehicle, which amounts to violation of the terms of the
policy. On these grounds, he prays to allow the appeal
filed by the Insurance Company and to set aside the
judgment and award passed by the Tribunal insofar it
relates to fastening the liability on the Insurance
Company.
9. Per contra, learned counsel Sri.Sangangouda V.
Biradar, appearing for the claimants contends that the
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Tribunal failed to appreciate the evidence of the claimants
in right perspective and awarded a meager compensation
which is required to be enhanced by the hands of this
Court. The claimants claim that the deceased was earning
Rs.20,000/- per month but the Tribunal has taken the
monthly income of the deceased at Rs.5,000/- which is on
the lower side. The Tribunal also failed to grant
appropriate compensation on different heads. Accordingly,
he prays to allow the appeal filed by the claimants.
10. Having heard the learned counsel for the
respective parties so also having perused the documents,
the only point that would arise for our consideration is:
i. Whether the judgment and award
passed by the Tribunal in MVC
No.443/2010 requires interference by this
Court?
11. The accident in question and coverage of the
insurance policy of the offending vehicles by the
respondent Nos.2 and 4 are not in dispute. Though the
Insurance Company has filed an appeal against the
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judgment and award, the same is on the ground that the
Tribunal failed to consider the composite negligence of the
driver of the Tractor and Trolley and failed to fasten the
liability on the owner and insurer of the said vehicle. On
careful perusal of the evidence available on record, PW.2
in his cross-examination categorically admitted that the
accident has caused in the morning at 3.00 clock and
three vehicles were involved and the said accident was
caused due to the fault of drivers of the both the vehicles
i.e., car and the driver of the truck who came in wrong
side and caused the accident. To substantiate the said
aspect, the spot mahazar Ex.P2 also depicts that the
accident road is East to West and having width of 28ft.
and the Indica car and truck were parked in the middle of
the road. The jurisdictional police have also filed charge
sheet against the drivers of the car and truck. The same
was not challenged by the Insurance Company. Such
being the position, in our considered view, the Tribunal
rightly fastened the liability on the Insurance Company of
the car and truck i.e., respondent Nos.2 and 4.
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Accordingly, the appeal filed by the Insurance Company is
liable to be dismissed.
12. Perusal of the impugned judgment would indicate
that the claimants/appellants have contended that the
deceased was doing business and agriculture and was
earning Rs.20,000/- per month. But in order to substantiate
the said contention, the petitioners/appellants did not tender
any evidence before the Tribunal. In the absence of proof of
income, the notional income of the deceased will have to be
taken as per the chart provided by the Karnataka State Legal
Services Authority. In terms of the chart, for the accident of
the year 2010, the notional income of the deceased will have
to be taken at Rs.5,500/- as against Rs.5,000/- per month
taken by the Tribunal. To the aforesaid amount, as the
deceased was aged 45 years, 25% of the said amount has to
be added on account of future prospects in view of the law
laid down by the Constitution Bench of the Supreme Court in
the case of National Insurance Company Limited vs.
Pranay Sethi and Others reported in AIR 2017 SC 5157.
Thus, the monthly income comes to Rs.6,875/-. Out of
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which, considering that there are 4 dependents, it would be
appropriate to deduct 1/4th of the said income towards
personal expenses of the deceased and therefore, the
monthly income of the deceased comes to Rs.5,157/-.
Taking into account the age of the deceased which was 45
years at the time of accident, multiplier of 14 has to be
adopted as per the judgment of the Hon'ble Supreme Court
in the case of Sarla Verma vs. Delhi Transport
Corporation reported in (2009) 6 SCC 121 . Therefore,
the claimants are entitled to a sum of Rs.8,66,376/-
(Rs.5,157/- x 12 x 14) on account of loss of dependency as
against Rs.5,60,000/- awarded by the Tribunal.
13. Further, in view of the law laid down by the
Hon'ble Supreme Court in the case of Magma General
Insurance Company Limited vs. Nanu Ram Alias
Chuhru Ram & Others reported in (2018) 18 SCC
130, each claimant is entitled to a sum of Rs.40,000/-
towards loss of consortium. The claimants are four in
number, hence, the compensation towards loss of
consortium would be Rs.1,60,000/- (Rs.40,000 x 4).
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In addition, the claimants/appellants are entitled to a sum
of Rs.15,000/- towards funeral expenses and Rs.15,000/-
under the head of loss of estate.
14. Thus, in all, the petitioners are entitled to a
sum of Rs.10,56,376/- as against Rs.6,45,000/- awarded
by the Tribunal.
15. Hence, we proceed to pass the following:
ORDER
a) The appeal filed by the claimants in MFA
No.200586/2017 is allowed in part.
b) The appeal filed by the Insurance
Company in MFA No.200780/2015 is
dismissed.
c) The impugned judgment and award
passed by the Tribunal is modified. The
claimants are entitled for compensation of
Rs.10,56,376/- as against Rs.6,45,000/-.
d) The claimants are entitled for enhanced
compensation of Rs.4,11,376/- with
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interest at the rate of 6% p.a. from the
date of receipt of certified copy of this
judgment.
e) Respondent Nos.2 and 4 insurance
companies are directed to deposit the
compensation amount before the Tribunal
within a period of six weeks from date of
the receipt of certified copy of this
judgment.
f) Registry to send back the Trial Court
records to the Tribunal and amount if any
deposited before this Court.
Sd/-
JUDGE
Sd/-
JUDGE
VNR
CT;BN
