Karnataka High Court

Dipali And Ors vs Tanaji And Anr on 30 May, 2024

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                                                         MFA No.201510 of 2017



                                 IN THE HIGH COURT OF KARNATAKA,

                                        KALABURAGI BENCH

                               DATED THIS THE 30TH 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.201510 OF 2017 (MV-D)

                      BETWEEN:

                      1.   DIPALI
                           W/O DATTATREYA GELE,
                           AGE: 21 YEARS,
                           OCC: H.H.WORK,

                      2.   GANESH
                           S/O DATTATREYA GELE,
                           AGE: 07 YEARS,
                           OCC: NIL,

                      3.   LAXMI
Digitally signed by
                           D/O DATTATREYA GELE,
BASALINGAPPA
SHIVARAJ                   AGE: 05 YEARS,
DHUTTARGAON
Location: HIGH             OCC: NIL,
COURT OF
KARNATAKA

                      4.   SARASWATI
                           D/O DATTATREYA GELE,
                           AGE: 07 YEARS,
                           OCC: NIL,

                      5.   MALHARI
                           S/O VITHOBA GELE,
                           AGE: 51 YEARS,
                           OCC: COOLIE,
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                                     MFA No.201510 of 2017



6.   NEELABAI
     W/O MALHARI GELE,
     AGE: 49 YEARS,
     OCC: H.H.WORK,

     APPELLANT NOS.2 TO 4 ARE MINORS
     R/BY THEIR NEXT FRIEND APPELLANT NO.1

     ALL ARE R/O: DHALEVASTI-DHALEWADI,
     SANGOLA, NOW RESIDING AT TIDAGUNDI,
     TQ: & DIST: VIJAYAPURA - 586 101.
                                              ...APPELLANTS
(BY SRI SANGANABASAVA B. PATIL, ADVOCATE)

AND:
1.   TANAJI
     S/O SHIVAJI MANE,
     AGE: MAJOR,
     OCC: BUSINESS,
     R/O : TAMBAVE,
     TQ: WALVA,
     DIST : SANGALI - 413 001.

2.   THE BRANCH MANAGER (LEGAL)
     CHOLAMANDALAM GENERAL INSURANCE
     COMPANY LIMITED,
     1ST FLOOR, KALABURAGI SQARE,
     DESHPANDE NAGAR,
     HUBBALLI - 582 101.
                                            ...RESPONDENTS
(BY SRI SUBHASH MALLAPUR, ADVOCATE FOR R2;
    NOTICE TO R1 IS SERVED)
     THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS AND
MODIFY THE JUDGMENT AND AWARD PASSED BY THE
PRINCIPAL SENIOR CIVIL JUDGE AND THE MOTOR ACCIDENTS
CLAIMS TRIBUNAL NO.V, VIJAYAPURA, AT VIJAYAPURA IN
M.V.C.NO.321/2016 DATED 27.05.2017 AND BE PLEASED TO
ALLOW THE CLAIM PETITION BY GRANTING THE RELIEF AS
PRAYED FOR BY THE APPELLANTS HEREIN, IN THE INTEREST
OF JUSTICE AND EQUITY.
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                                                 MFA No.201510 of 2017




     THIS MFA COMING ON FOR HEARING THIS DAY, ASHOK
S. KINAGI J., DELIVERED THE FOLLOWING:


                                  JUDGMENT

This appeal is filed by the petitioners under Section

173(1) of the Motor Vehicles Act (for short 'the Act')

challenging the judgment and award dated 27.05.2017

passed by the Principal Senior Civil Judge & MACT-V,

Vijayapura, (for short hereinafter referred to as 'the

Tribunal') in MVC No.321/2016.

2. Parties are referred to as per their ranking before

the Tribunal. Appellants are the petitioners and the

respondents are the respondents before the Tribunal.

3. Facts giving rise to filing of this appeal are that,

on 16.12.2015 at about 3.00 p.m, one Dattatreya was

proceeding on motorcycle bearing Reg.No.MH-45/Y-9782

from Bhilawadi towards Ashta village. While proceeding near

Nagathane cross on Bhilawadi-Asta road, said Dattatreya

met with an accident due to actionable negligence on the

part of the driver of Mahindra Pick-up Van bearing

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Reg.No.MH-10/AQ-8112 and sustained fatal injuries. The

petitioners being the legal representatives of the deceased-

Dattatreya filed claim petition under Section 166 of the Act

seeking compensation for the death of Dattatreya in the road

traffic accident.

4. In spite of service of notice, respondent No.1 did

not appear before the Tribunal and hence, he was placed

exparte.

5. Respondent No.2/Insurance company filed

written statement denying the averments made in the claim

petition and it is contended that the driver of the offending

vehicle was not possessing valid and effective driving licnece

as on the date of accident. Hence, prays to dismiss the

claim petition.

6. The Tribunal on the basis of the pleadings of the

parties framed the issues and recorded the evidence. In

order to prove the case, the petitioners examined petitioner

No.1 as PW.1 and got marked the documents as Exs.P1 to

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P7. Respondent No.2 did not examine any witness but got

marked the copy of insurance certificate as Ex.R1.

7. The Tribunal after recording the evidence and

after considering the material on record allowed the claim

petition in part and awarded compensation of Rs.12,80,000/-

along with interest at the rate of 9% per annum from the

date of claim petition till the date of realization and further

held that respondent Nos.1 and 2 are jointly and severally

liable to pay compensation.

8. Being dissatisfied with the compensation awarded

by the Tribunal, the petitioners have filed this appeal seeking

enhancement of compensation.

9. Heard the learned counsel for the petitioners and

the learned counsel for respondent No.2/Insurance company.

10. The learned counsel for the petitioners submits

that the accident was occurred in the year 2015 and to

establish that the deceased was earning Rs.20,000/- p.m.,

they have not produced any records. However, the Tribunal

could have assessed the notional income of the deceased as

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Rs.8,000/- as per the Chart prepared by the Karnataka State

Legal Services Authority, but the Tribunal has assessed the

income of the deceased at Rs.7,500/- p.m., which is on the

lower side. He also submits that the Tribunal has committed

error in awarding compensation of only Rs.50,000/- under

the head loss of consortium. He submit that each of the

petitioners are entitled for compensation of Rs.40,000/- each

under the said head as per the law laid down by the Apex

Court in the case of Magma General Insurance

Company Limited vs. Nanu Ram Alias Chuhru Ram &

Others reported in (2018) 18 SCC 130. Hence, he

submits that the compensation awarded by the Tribunal is

on the lower side and accordingly prays to allow the

appeal by enhancing the compensation.

11. Per contra, the learned counsel appearing for

respondent No.2/Insurance company supports the impugned

judgment and award passed by the Tribunal and submits

that the compensation awarded by the Tribunal is just and

proper and does not call for interference and prays to

dismiss the appeal.

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12. We have perused the records and considered the

submissions made by the learned counsel for the parties.

The point that arises for consideration is with regard to

quantum of compensation.

13. The occurrence of the accident, involvement of

the offending vehicle in the accident and death of Dattatreya

in the said accident are not in dispute. In order to prove

that the accident has occurred due to the rash and negligent

driving of the driver of the offending vehicle, the petitioners

have produced certified copies of FIR and also charge sheet,

marked as Ex.P1 and Ex.P3, respectively and the said

documents are in Marathi language. Ex.P.1(a) and Ex.P3(a)

are the translated copies of Ex.P.1 and Ex.P.3. From the

perusal of the exhibits, it is clear that the accident has

occurred due to rash and negligent driving of the driver of

the offending vehicle.

Insofar as Quantum of Compensation:

14. It is the case of the petitioners that the deceased

Dattatreya was working as a sugarcane cutter and was

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getting monthly income of Rs.20,000/-. In order to

substantiate the claim of the petitioners, the petitioners have

not produced any records to establish that the deceased was

earning Rs.20,000/- p.m. In the absence of proof of such

monthly income, this Court has to take into consideration of

the notional income as per the Chart prepared by the

Karnataka State Legal Services Authority. According to the

Chart, as the accident occurred is of the year 2015, the

monthly income of the deceased is taken at Rs.8,000/-.

Further, in view of the judgment of the Apex Court in

National Insurance Co. Ltd. Vs. Pranay Sethi reported

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

deceased has to be added towards the future prospects.

The deceased was aged about 27 years as on the date of the

accident, the multiplier of 17 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. Since the petitioners are six in

numbers, the appropriate deduction would be 1/4th towards

the personal expenses of the deceased. Therefore, the

petitioners are entitled to a sum of Rs.17,13,600/-

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[Rs.8,000 + 40%(Rs.3,200/-) =Rs.11,200/- less 1/4th

(Rs.2,800/-) = Rs.8,400x12x17] as compensation under

the head 'loss of dependency'.

15. 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 petitioners are entitled to a sum of Rs.40,000/-

towards loss of consortium. The petitioners are six in

number, hence the compensation towards loss of

consortium would be Rs.2,40,000/- (40,000 x 6). In

addition, the petitioners are entitled to a sum of

Rs.15,000/- towards funeral expenses and Rs.15,000/-

under the head of loss of estate.

16. Thus, in all, the petitioners are entitled to a sum

of Rs.19,83,600/- as against Rs.12,80,000/- awarded by the

Tribunal.

17. In view of the above discussion, I proceed to pass

the following:

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                                ORDER

     i.       The appeal is allowed in part.

     ii.      The impugned judgment and award passed
              by the Tribunal is modified.


    iii.      The    petitioners   are      entitled    to   a   total

compensation of Rs.19,83,600/- as against Rs.12,80,000/- along with interest at the rate of 6% per annum from the date of petition till the date of its realization.

iv. Respondent No.2/Insurance Company is directed to deposit the compensation amount before the Tribunal within a period of eight weeks from date of the receipt of certified copy of this judgment.