Karnataka High Court
Siddappa And Anr vs Mahantesh And Anr on 29 May, 2024
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MFA No. 200846 of 2017
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. 200846 OF 2017 (MV-D)
BETWEEN:
1. SIDDAPPA
S/O MALAKAPPA SAYAGAON
AGE:52 YEARS, OCC:AGRICULTURE.
2. SMT.RATNABAI
W/O SIDDAPPA SAYAGAON
AGE:48 YEARS, OCC:HOUSEHOLD,
BOTH ARE R/O NEAR DCC BANK,
SOLAPUR ROAD, VIJAYAPUR.
Digitally signed ...APPELLANTS
by VARSHA N
RASALKAR
Location: HIGH (BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE)
COURT OF
KARNATAKA
AND:
1. MAHANTESH
S/O KASHINATH HIREMATH
AGE:30 YEARS, OCC:OWNER OF TRAX,
R/O KARAJAGI, TQ. JATH,
DISTRICT: SANGLI-416416,
MAHARASHTRA STATE.
2. THE BRANCH MANAGER
THE NEW INDIA ASSURANCE CO.LTD.,
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MFA No. 200846 of 2017
HANAMASHETTY BUILDING,
GURUKUL ROAD,
VIJAYAPUR - 586101.
...RESPONDENTS
(BY SRI. SANGANABASAVA B. PATIL, ADVT. FOR R1;
SRI. S.S. ASPALLI, ADVOCATE FOR R2)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLE ACT, PRAYING TO ALLOW THE APPEAL BY MODIFYING
THE IMPUGNED JUDGMENT AND AWARD DATED 08.03.2017
PASSED BY THE PRL. SENIOR CIVIL JUDGE AND MACT-V,
VIJAYAPUR IN MVC NO.485/2015 AND CONSEQUENTLY BE
PLEASED TO ENHANCE THE COMPENSATION FROM
RS.9,00,000/- TO RS .30,75,000/- WITH INTEREST @ 12 PER
ANNUM FROM THE DATE OF PETITION TILL ACTUAL
REALIZATION BY PASTING THE LIABILITY ON RESPONDENT
NO.2 INSURANCE COMPANY, IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY RAJESH RAI K J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 173(1) of the Motor
Vehicles Act, 1988 (hereinafter referred to as 'the Act', for
short) has been filed by the appellants-claimants being
aggrieved by the judgment and award dated 08.03.2017
passed in MVC No.485/2015 by the Court of Principal
Senior Civil Judge and MACT-V, Vijaypur, (hereinafter
referred to as 'the Tribunal', for short).
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2. For the sake of convenience, parties are
referred to as per their ranking before the Claims Tribunal.
3. The facts giving rise to the filing of the appeal
briefly stated are that:
The son of petitioners by name Santosh aged about
21 years was working as a driver as well as agriculturist
and had monthly income of Rs.10,000/. That on
01.12.2014 along with his relatives and close friends, he
was traveling to Vijaypur from Karajagi in a Trax bearing
registration No.KA-28/N-1658 belonging to respondent
No.1. The respondent No.1 himself was driving the said
vehicle in a high speed in a rash and negligent manner. At
about 10.30 a.m., when they were near Hundekar Petrol
Pump near Vijaypur city on NH-13, the respondent No.1
suddenly took a right turn, due to which, the left door of
the said Trax opened and said Santosh who had occupied
the seat just side of the left door, fell down from the Trax
and sustained fatal injuries. It is further contended that,
prior to the accident deceased was hale and healthy. In
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view of sudden and untimely death of deceased, the
petitioners have lost their beloved family member and his
earnings. Hence, they preferred a claim petition seeking
compensation.
4. After service of notice, respondent Nos.1 and 2
appeared and filed written statement denying the contents
of claim petition and sought for dismissal of the claim
petition.
5. On the basis of pleadings, the Tribunal framed
relevant issues for consideration.
6. In order to substantiate the issues and to
establish the case, petitioners got examined as PWs.1 and
2 and got marked documents as Exs.P1 to P12. On the
other hand, respondent No.2-Insurer examined its official
as RW.1 and got marked documents Ex.R1.
7. The Tribunal, after recording the evidence and
considering the material on record, allowed the petition in
part and awarded compensation of Rs.9,00,000/- along
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with interest at the rate of 9% p.a. from the date of
petition till realization and held that respondent No.1 is
liable to pay compensation and directed the respondent
No.1 to deposit the compensation amount. However, the
claim petition as against respondent No.2-insurer is
dismissed with cost. Being dissatisfied with the
compensation awarded by the Tribunal, the petitioners
have filed the present appeal seeking enhancement of
compensation amount.
8. We have heard the learned counsel for
appellants and learned counsel for respondent No.2-
Insurance Company and also respondent No.1.
9. Learned counsel for the petitioners contended
that the tribunal has failed to add future prospects in view
of the law laid down by the Hon'ble Apex Court in the case
of National Insurance Co., Ltd., vs. Pranay Sethi and
others reported in AIR 2017 SC 5157. He also contends
that the compensation awarded by the tribunal under
other heads are on the lower side. Hence, the learned
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counsel seeks indulgence of this Court to allow the appeal
and consequently enhance the compensation.
10. Per contra, the learned counsel for the
respondent No.2/Insurance Company supports the
judgment and award passed by the tribunal, contending
that the same does not call for any interference. Hence,
prays to dismiss the appeal.
11. We have perused the records and considered
the submission made by the learned counsel for the
parties.
12. It is not in dispute with regard to accident and
also death of Santosh in the road traffic accident. In order
to prove the negligence on the part of the driver of the
Trax, the petitioners have produced copy of the charge
sheet, marked at Ex.P6, which discloses that the accident
has occurred due to the rash and negligent driving by the
driver of the offending vehicle. The tribunal was justified in
recording a finding that the accident occurred due to rash
and negligent driving by the driver of the trax.
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13. Insofar as quantum of compensation is
concerned, the deceased was aged 21 years as on the
date of the accident. It is contended that he was working
as a driver as well as agriculturist and earning Rs.10,000/-
p.m. In support of the contention, the petitioners have
produced DL of the deceased which shows that he was
holding driving license to drive non-transport vehicle.
14. In the absence of any evidence or proof of
income, the notional income of the deceased can be
assessed as per the guidelines issued by the Karnataka
State Legal Services Authority. Since the accident has
taken place in the year 2014, the notional income has to
be taken at Rs.7,500/- p.m. as per chart.
15. In view of the law laid down by the Constitution
Bench of the Hon'ble Supreme Court in National
Insurance Co., Ltd., vs. Pranay Sethi and others
reported in AIR 2017 SC 5157, to the aforesaid amount,
40% has added towards future prospects as the deceased
was bachelor aged about 21 years. Thus, the monthly
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income comes to Rs.10,500/. Out of which, it is
appropriate to deduct 50% towards personal expenses as
the deceased was bachelor and therefore, the monthly
income comes to Rs.5,250/-.
16. As on the date of the accident, the deceased
was aged 21 years, as per the decision of Hon'ble Apex
Court in the case of SARLA VERMA (SMT) & OTHERS
VS. DELHI TRANSPORT CORPORATION & ANOTHER,
reported in (2009) 6 SCC 121, the multiplier applied to
the age group of the petitioner is 18 which is rightly taken
by the tribunal. Therefore, the petitioners are entitled for a
sum of Rs.11,34,000/-(5,250/- x 12 x 18) on account of
loss of dependency as against Rs.8,10,000/- awarded by
the Tribunal.
17. In addition, the petitioners are entitled to
Rs.15,000/- on account of 'loss of estate' and Rs.15,000/-
towards 'funeral expenses and transportation of dead
body'.
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18. The petitioners are the parents of the deceased.
In view of the law laid down by the Hon'ble Supreme Court
in Magma General Insurance Company Limited vs.
Nanu Ram Alias Chuhru Ram & Others reported in
2018 ACJ 2782, each of the petitioners are entitled for a
sum of Rs.40,000/- under the head of 'loss of consortium',
which comes to Rs.80,000/.
19. Towards medical expenses, the Tribunal has
awarded Rs.23,000/- on the basis of medical bills and
documents produced by the petitioner. There is no reason
to interfere with the same.
20. Thus the petitioners are entitled for a total
compensation of Rs.12,67,000/- as against Rs.9,00,000/-
awarded by the tribunal. Hence, the petitioners are
entitled for enhanced compensation of Rs.3,67,000/-.
21. Admittedly, the vehicle was insured with
respondent No.2 and the driver of the offending vehicle
was possessing a valid and effective driving licence as on
the date of the accident. However, the tribunal by holding
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that respondent No.1 violated the terms and conditions of
the policy by hiring the vehicle for hiring the vehicle for
reward, fastened the liability against respondent No.1-
owner of the vehicle. The learned counsel for the claimants
vehemently contends that the said order of the tribunal is
totally misconceived without taking into consideration of
the law laid down by the Hon'ble APex Court in the case of
Pappu and Others Vs. Vinod Kumar Lamba and
Another reported in (2018) 3 SCC 208, wherein the
Hon'ble Apex Court held that to subserve the ends of
justice, the insurance company has to pay the claim
amount awarded by the tribuanl to the claimants in first
instance with liberty to recover the same from owner of
the offending vehicle in accordance with law. Per contra,
learned counsel for the insurance company by relying on
the co-oridnate bench judgment of this Court passed in
MFA 101633/2014 (MV) dated 30.03.2021 submits that
the tribunal has rightly fastened the liability against the
respondent No.1 since the respondent No.1 has violated
the terms and conditions of the policy. In view of the law
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laid down by the Hon'ble Apex Court in Pappu's case
supra, the Insurance Company has to pay the
compensation awarded by the tribunal to the petitioners at
the first instance with a liberty to recover the same from
the owner of the vehicle in accordance with law.
22. Accordingly, we proceed to pass the following;
ORDER
(a) The appeal is allowed in part.
(b) The judgment and award passed by the
Tribunal is modified.
(c) The petitioners are entitled for a total
compensation of Rs.12,67,000/- as
against Rs.9,00,000/- awarded by the
tribunal.
(d) The petitioners are entitled for an
enhanced compensation of Rs.3,67,000/-
along with interest at the rate of 6% p.a.
from the date of claim petition till the date
of realization of amount.
(e) As the vehicle was insured with
respondent No.2, respondent No.2 is
directed to deposit the compensation
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amount within a period of eight weeks
from the date of receipt of copy of this
order. Liberty is reserved to respondent
No.2 to recover the compensation amount
from respondent No.1, in accordance with
law.
(f) All other terms and conditions stipulated
by the Tribunal shall remain intact.
Sd/-
JUDGE
Sd/-
JUDGE
MSR
CT;BN
