Karnataka High Court
Smt. Sujata W/O. Mallikarjun ... vs Abdulrehman S/O. Abdulgafar Bani on 30 May, 2024
Author: S G Pandit
Bench: S G Pandit
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MFA No.100780 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 30TH 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.100780 OF 2021 (MV-D)
BETWEEN:
1. SMT. SUJATA
W/O. MALLIKARJUN MUDDANAGOUDAR,
AGE. 52 YEARS, OCC. SERVICE,
R/O. KARIKATTI, TQ. SAUNDATTI,
DIST. BELAGAVI-591126.
2. SMT. VEENA
W/O. MALLANAGOUDA PATIL,
AGE. 31 YEARS, OCC. HOUSEHOLD WORK,
R/O. DHARWAD, NOW AT KARIKATTI,
TQ. SAUNDATTI, DIST. BELAGAVI-591126.
3. MANJUNATH
Digitally signed by S/O. MALLIKARJUN MUDDANAGOUDAR,
VINAYAKA B V
Location: HIGH
AGE. 27 YEARS, OCC. PVT. SERVICE,
COURT OF R/O. KARIKATTI, TQ. SAUNDATTI,
KARNATAKA
DIST. BELAGAVI-591126.
...APPELLANTS
(BY SRI GIRISH A.YADAWAD, ADVOCATE)
AND:
1. ABDULREHMAN
S/O. ABDULGAFAR BANI,
AGE. MAJOR, OCC. BUSINESS,
R/O. HOUSE NO. 1292, GURUWARPET, KITTUR,
TQ. KITTUR DIST. BELAGAVI-591115.
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MFA No.100780 of 2021
(OWNER OF CAR BEARING
REGISTRATION NO.KA-24 Z 01)
2. THE DIVISIONAL MANAGER,
THE NEW INDIA ASSURANCE COMPANY LTD.,
BELAGAVI DIVISION, CLUB ROAD,
BELAGAVI, DIST. BELAGAVI-590019.
(INSURANCE POLICY NO.68040231170200004050
POLICY PERIOD 09-06-2017 TO 08-06-2018)
...RESPONDENTS
(BY SRI ANAND D.BAGEWADI, ADVOCATE FOR R1;
SRI N.R.KUPPELLUR, ADVOCATE FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173 (1) OF MOTOR VEHICLES ACT, AGAINST THE
JUDGMENT AND AWARD DATED 19.04.2021 PASSED IN MVC
NO.112/2018 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, SAUNDATTI, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION AND ETC.,
THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR
ADMISSION, THIS DAY, S G PANDIT, J., DELIVERED THE
FOLLOWING:
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MFA No.100780 of 2021
JUDGMENT
Though this appeal is listed for admission, it is taken up
for final disposal with the consent of learned counsel for both
the parties.
2. The claimants are in appeal not being satisfied with
the quantum of compensation and also saddling of liability on
respondent No.1-owner of the offending vehicle under the
judgment and award dated 19.04.2021 passed in MVC
No.112/2018 on the file of learned Principal Senior Civil Judge
& Addl. MACT., Saundatti (for short, 'Tribunal') and praying for
enhancing the compensation and also to direct respondent
No.2-Insurance Company to pay the compensation at the first
instance and to recover the same from respondent No.1.
3. Brief facts of the case are that, the
appellants/claimants, who are the wife and children of the
deceased Mallikarjun Mallappa Muddanagoudar, filed a claim
petition under Section 166 of the Motor Vehicles Act, 1988
seeking compensation for the accidental death of Mallikarjun
Mallappa Muddanagoudar that took place on 17.11.2017
involving auto-rickshaw bearing registration No.KA-24/A-0759
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and car bearing registration No.KA-24/Z-01. It is further stated
that as on the date of the accident, deceased was aged 55
years and was working as Head Master in the Education
Department of the State Government, drawing salary of
Rs.5,98,022/- per annum.
4. On issuance of notice, respondents appeared before
the Tribunal and filed their separate statement of objections.
Respondent No.1-owner of the vehicle in his statement of
objection denied entire petition averments and also contended
that the compensation is excessive and exorbitant. Respondent
No.2-Insurance Company in its statement of objections also
denied the claim petition averments and contended that the
driver of the car had no valid and effective driving licence as on
the date of the accident, hence, it is not liable to pay the
compensation. It is also contended that the accident has taken
place due to rash and negligent driving of the auto-rickshaw
and there is violation of terms and conditions of the policy.
Thus, sought for dismissal of claim petition.
5. Before the Tribunal, claimant No.1-wife of the
deceased examined herself as PW1 apart from marking the
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documents as Exs.P1 to P17, whereas the respondents
examined 5 witnesses as RW1 to RW5 and marked documents
as Ex.R1 to R8. The Tribunal based on the material on record
allowed the claim petition in part saddling the liability on
respondent No.1-owner of the car and awarded a total
compensation of Rs.42,68,689/- with interest at 6% per annum
from the date of petition till realization on the following heads:
1. Loss of dependency Rs. 41,08,689-00
2. Funeral expenses and other incidental Rs. 15,000-00
expenditure
3. Loss of consortium and love and Rs. 1,20,000-00
affection
4. Loss of estate Rs. 25,000-00
Totally Rs. 42,68,689-00
6. Heard the learned counsel Sri.Girish A.Yadawad for
the appellants, learned counsel Sri.Anand D.Bagewadi for
respondent No.1-owner of the offending vehicle/car and
learned counsel Sri.N.R.Kuppellur for respondent No.2-
Insurance Company and perused the appeal papers along with
original records.
7. Sri.Girish A.Yadawad, learned counsel for the
appellants/claimants would submit that the income assessed by
the Tribunal is not proper and the Tribunal has failed to assess
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the income of the deceased properly taking note of Ex.P5-Form
No.16 issued by the employer. It is stated that, only
professional tax and income tax could be deducted from the
salary of the Government Servant. In terms of Ex.P5, the
deceased was drawing salary of Rs.5,98,022/- per annum. Out
of the said salary, only Rs.2,400/- towards Professional Tax and
Rs.15,152/- towards Income Tax would be deducted. If this
amount is deducted, the gross salary of the deceased would be
Rs.5,80,470/- per annum. Thus, he submits that the Tribunal
ought to have taken Rs.5,80,470/- as salary/income of the
deceased apart from Rs.50,000/- agricultural income.
8. Learned counsel would further submit that the
Tribunal committed grave error in saddling the liability on
respondent No.1-owner and directed him to pay the
compensation. Placing reliance on the decision of the Hon'ble
Apex Court in the case of Shamanna and Others Vs. The
Divisional Manager, The Oriental Insurance Co. Ltd and
Others1 and also the decision of Full Bench of this Court in the
case of New India Assurance Co. Ltd. Vs. Yallavva and
AIR 2018 SC 3726
NC: 2024:KHC-D:7193-DB
Another2, the learned counsel prays for a direction to
respondent No.2-Insurance Company to pay the compensation
at the first instance with liberty to recover the same from
respondent No.1-owner of the car. Thus, he prays for allowing
the appeal.
9. Per contra, Sri.N.R.Kuppellur, learned counsel for
respondent No.2-Insurance Company would submit that the
Tribunal without any basis has taken Rs.50,000/- as
agricultural income and added the same to salary to determine
the total income of the deceased. He submits that no material
whatsoever except RTC is placed. It is submitted that the
deceased was a Government Servant and the claimants have
not placed on record any material, where the agricultural
income of the deceased is indicated. Thus, he submits that the
claimants would not be entitled for adding agricultural income
of Rs.50,000/- to the income of the deceased. With regard to
the liability saddled on respondent No.1, learned counsel would
submit that respondent No.1-owner has obtained the driving
licence by playing fraud and producing fake document. Further,
he submits that respondent No.1 has not challenged the liability
ILR 2020 KAR 2239
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fixed on him and hence, he submits that the Tribunal is justified
in saddling the liability on the owner of the car. Thus, he prays
for dismissal of the appeal.
10. 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 assessment of income of the
deceased at Rs.5,95,462/- per annum is
proper and correct?
b) Whether the claimants would be entitled for a
direction to the Insurance Company to pay
the compensation at the first instance and to
recover the same from respondent No.1-
owner?
Points No.(a) is answered in the negative and Point
No.(b) is answered in the affirmative for the following reasons:
11. The accident that took place on 17.11.2017
involving motorcycle bearing registration No.KA-24/A-0759 and
car bearing registration No.KA-24/Z-01, resultant death of
Mallikarjun M.Muddanagoudar is not in dispute in this appeal.
The claimants are in appeal praying for enhancement of
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compensation and for a direction to the Insurance Company to
pay the compensation, with liberty to recover.
12. The deceased was aged 55 years and admittedly,
he was a Government servant working as Head Master in the
Education Department of the State Government. Ex.P5 is Form
No.16, which would indicate that the deceased was drawing
salary of Rs.5,98,022/- per annum. Out of gross salary of
Rs.5,98,022/-, only Professional Tax and Income Tax are liable
to be deducted. The deceased was paying Professional Tax of
Rs.2,400/- and Rs.15,152/- towards Income Tax. If the above
amounts are deducted from gross salary of the deceased, the
salary/income of the deceased would be Rs.5,80,470/- per
annum. The Tribunal has added Rs.50,000/- as agricultural
income to the above salary/income of the deceased. Except
RTC, there is no document to indicate agricultural income. In
the absence of any material with regard to agricultural income,
the Tribunal could not have added the same to the income of
the deceased. The deceased was a Government servant who
was expected to file annual property returns every year. In the
said property returns, it is expected to show the agricultural
income. As the claimants have not made available any
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document where the deceased has indicated his agricultural
income, the claimants would not be entitled for adding
agricultural income of Rs.50,000/- to the gross income of the
deceased. Thus, income of the deceased is assessed at
Rs.5,80,470/- per annum.
13. The Tribunal has rightly deducted 1/3rd towards
personal expenses of the deceased, adopted multiplier of 9 and
added 15% towards future prospects, taking note of the age of
the deceased as 57 years. The claimants would be entitled for
modified compensation on the head of loss of dependency as
under:
Rs.5,80,470 + 15%(future prospects) x 9(multiplier) x
2/3(deduction) = Rs.40,05,243/-.
14. 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.
15. Thus, the claimants would be entitled for modified
compensation on the following heads:
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Sl. Particulars Amount
No. (In Rupees)
1. Loss of dependency 40,05,243/-
2. Loss of estate & Funeral 30,000/-
expenses
3. Loss of consortium (Rs.40000x3) 1,20,000/-
Total 41,55,243/-
16. The appellants contended that the Tribunal ought to
have directed respondent No.2-Insurance Company to pay the
compensation at the first instance with liberty to the Insurance
Company to recover the same from respondent No.1-owner of
the offending vehicle/car in terms of the judgments referred to
supra. Admittedly, the Tribunal has come to the conclusion that
the driver of the car had no proper and valid driving licence to
drive. In that circumstance, the Tribunal has rightly fixed the
liability on respondent No.1-owner of the car, but in the said
circumstance, in terms of the judgments referred to supra, the
Tribunal ought to have directed the Insurance Company to pay
the compensation amount at the first instance with liberty to
the Insurance Company to recover the same from the owner of
the car.
17. Thus, the claimants would be entitled to total
compensation of Rs.41,55,243/- as against Rs.42,68,689/-
awarded by the Tribunal.
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18. Hence, we pass the following:
ORDER
a) Appeal is allowed in part.
b) The impugned judgment & award of
Tribunal is modified holding that the
claimants are entitled to total
compensation of Rs.41,55,243/- as
against Rs.42,68,689/- awarded by the
Tribunal.
c) The compensation amount shall carry
interest at the rate of 6% p.a. from the
date of claim petition till realization.
d) It is held that respondent No.2-Insurance
Company shall deposit entire
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 and liberty
is reserved to the Insurance Company to
recover the same from respondent No.1-
owner of the car.
e) Apportionment, deposit & disbursement
shall be made as per award of Tribunal.
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f) Registry to transmit the TCR to the
Tribunal forthwith..
g) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
RH
