Karnataka High Court
Nizam vs Kajodimal on 22 November, 2024
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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NC: 2024:KHC-K:8741-DB
MFA No. 201479 of 2019
C/W MFA No. 201480 of 2019
MFA No. 201481 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
M.F.A NO. 201479 OF 2019 (MV-D)
C/W
M.F.A NO. 201480 OF 2019 (MV-D)
M.F.A NO. 201481 OF 2019 (MV-I)
IN M.F.A NO.201479 OF 2019
BETWEEN:
1. NIZAM
S/O MAGAN MULANI
AGE:64 YEARS
OCC: HOUSE HOLD WORK
2. MUBARAKBI
Digitally signed by
W/O NIZAM MULANI
SHAKAMBARI AGE:62 YEARS
Location: HIGH OCC: HOUSE HOLD WORK
COURT OF
KARNATAKA
3. YASMEEN
W/O BABA @ BABASAHEB MULANI
AGE:29 YEARS
OCC: HOUSE HOLD WORK
4. ZAHID
S/O BABA @ BABASAHEB MULANI
AGE:10 YEARS
M/G BY APPELLANT NO.3
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NC: 2024:KHC-K:8741-DB
MFA No. 201479 of 2019
C/W MFA No. 201480 of 2019
MFA No. 201481 of 2019
5. HASAN
S/O BABA @ BABASAHEB MULANI
AGE:08 YEARS
M/G BY APPELLANT NO.3
ALL ARE R/O ASAR GALLI
VIJAYAPURA-586 101
...APPELLANTS
(BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE)
AND:
1. KAJODIMAL
S/O SH. RODI LAL DANGI
AGE:44 YEARS
OCC:BUSINESS
R/O VPO, DAROLI, TQ:VALLABH NAGAR
DIST:UDAIPUR
RAJASTHAN-302 001
2. THE BRANCH MANAGER
NEW INDIA ASSURANCE
COMPANY LIMITED
HANAMSHETTY BUILDING
GURUKUL ROAD
VIJAYAPURA-586 101
3. HUSEN
S/O NIJAM MULANI
AGE:39 YEARS
OCC:BUSINESS
R/O ASAR GALLI
TQ & DIST. VIJAYAPURA-586 101
4. THE BRANCH MANAGER
BAJAJ ALLIANZ GENERAL INSURANCE
COMPANY LIMITED
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NC: 2024:KHC-K:8741-DB
MFA No. 201479 of 2019
C/W MFA No. 201480 of 2019
MFA No. 201481 of 2019
MADIWALE ARCADE, CLUB ROAD
BELGAUM-590 001
...RESPONDENTS
(BY SRI. RAHUL R. ASTURE, ADVOCATE FOR R2;
SRI. SUBHASH MALLAPIR, ADVOCATE FOR R4;
VIDE ORDER DATED 10.07.2023 NOTICE TO
R3 STANDS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYING TO MODIFY THE JUDGMENT AND AWARD PASSED IN
MVC NO.562/2014 DATED 12.11.2018 BY THE II ADDITIONAL
SENIOR CIVIL JUDGE AND MEMBER MACT-VII, AT VIJAYAPURA
AND ALLOW THIS APPEAL AND ENHANCE THE COMPENSATION
AS CLAIMED IN THE CLAIM PETITION, IN THE INTEREST OF
JUSTICE AND EQUITY.
IN M.F.A NO.201480 OF 2019
BETWEEN:
YASMEEN
W/O BABA @ BABASAHEB MULANI
AGE:29 YEARS
OCC: HOUSE HOLD WORK
R/O ASAR GALLI
VIJAYAPURA-586 101
...APPELLANT
(BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE)
AND:
1. KAJODIMAL
S/O SH. RODI LAL DANGI
AGE:44 YEARS
OCC:BUSINESS
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NC: 2024:KHC-K:8741-DB
MFA No. 201479 of 2019
C/W MFA No. 201480 of 2019
MFA No. 201481 of 2019
R/O VPO, DAROLI, TQ:VALLABH NAGAR
DIST:UDAIPUR
RAJASTHAN-302 001
2. THE BRANCH MANAGER
NEW INDIA ASSURANCE
COMPANY LIMITED
HANAMSHETTY BUILDING
GURUKUL ROAD
VIJAYAPURA-586 101
3. HUSEN
S/O NIJAM MULANI
AGE:39 YEARS
OCC:BUSINESS
R/O ASAR GALLI
TQ & DIST. VIJAYAPURA-586 101
4. THE BRANCH MANAGER
BAJAJ ALLIANZ GENERAL INSURANCE
COMPANY LIMITED
MADIWALE ARCADE, CLUB ROAD
BELGAUM-590 001
...RESPONDENTS
(BY SRI. RAHUL R. ASTURE, ADVOCATE FOR R2;
SRI. SUBHASH MALLAPIR, ADVOCATE FOR R4;
VIDE ORDER DATED 26.09.2024 NOTICE TO
R3 STANDS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYING TO MODIFY THE JUDGMENT AND AWARD PASSED IN
MVC NO.563/2014 DATED 12.11.2018 BY THE II ADDL.
SENIOR CIVIL JUDGE AND MEMBER, MACT-VII AT VIJAYAPUR
AND ALLOW THIS APPEAL AND ENHANCE THE COMPENSATION
AS CLAIMED IN THE CLAIM PETITION, IN THE INTEREST OF
JUSTICE AND EQUITY.
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NC: 2024:KHC-K:8741-DB
MFA No. 201479 of 2019
C/W MFA No. 201480 of 2019
MFA No. 201481 of 2019
IN M.F.A NO.201481 OF 2019
BETWEEN:
YASMEEN
W/O BABA @ BABASAHEB MULANI
AGE:29 YEARS
OCC: HOUSE HOLD WORK
R/O ASAR GALLI
VIJAYAPURA-586 101
...APPELLANT
(BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE)
AND:
1. KAJODIMAL
S/O SH. RODI LAL DANGI
AGE:44 YEARS
OCC:BUSINESS
R/O VPO, DAROLI, TQ:VALLABH NAGAR
DIST:UDAIPUR
RAJASTHAN-302 001
2. THE BRANCH MANAGER
NEW INDIA ASSURANCE
COMPANY LIMITED
HANAMSHETTY BUILDING
GURUKUL ROAD
VIJAYAPURA-586 101
3. HUSEN
S/O NIJAM MULANI
AGE:39 YEARS
OCC:BUSINESS
R/O ASAR GALLI
TQ & DIST. VIJAYAPURA-586 101
4. THE BRANCH MANAGER
BAJAJ ALLIANZ GENERAL INSURANCE
COMPANY LIMITED
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NC: 2024:KHC-K:8741-DB
MFA No. 201479 of 2019
C/W MFA No. 201480 of 2019
MFA No. 201481 of 2019
MADIWALE ARCADE, CLUB ROAD
BELGAUM-590 001
...RESPONDENTS
(BY SRI. RAHUL R. ASTURE, ADVOCATE FOR R2;
SRI. SUBHASH MALLAPIR, ADVOCATE FOR R4;
VIDE ORDER DATED 26.09.2024 NOTICE TO
R3 STANDS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYING TO ALLOW THE APPEAL AND ENHANCE THE
COMPENSATION AS CLAIMED IN THE CLAIM PETITION BY
MODIFYING THE JUDGMENT AND AWARD DATED 12.11.2018
PASSED BY THE COURT OF II ADDL. SENIOR CIVIL JUDGE AND
MEMBER, MACT NO.VII, VIJAYAPUR IN MVC NO.569/2014 IN
THE INTEREST OF JUSTICE AND EQUITY.
THESE MFAs HAVING BEEN RESERVED FOR JUDGMENT
COMING ON FOR PRONOUNCEMENT OF THIS DAY,
RAMACHANDRA D. HUDDAR J., DELIVERED/PRONOUNCED
THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
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NC: 2024:KHC-K:8741-DB
MFA No. 201479 of 2019
C/W MFA No. 201480 of 2019
MFA No. 201481 of 2019
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR)
These three appeals arise out of a common judgment
and award dated 12th November 2018 passed in MVC Nos.
562/2014, 563/2014 and 569/2014 by the II Addl.Senior
Civil Judge, Vijayapura. These claim petitions arise out of a
single motor vehicle accident that took place on 10.2.2014
at 4.45 a.m. near Managaon on Mumbai-Goa Road.
2. Parties to these appeals are referred to as per
their rank before the Tribunal.
3. So far as claimants in MVC No.562/2014, they
are legal heirs of deceased Baba alias Babasaheb Mulani
being his parents, wife and children. Claimant in MVC
No.563/2014 is the mother of deceased-son Ashik who
was seven years old at the time of accident and was a
student and claimant in No.569/2014 is the injured - Smt.
NC: 2024:KHC-K:8741-DB
Yasmeen who suffered accidental injuries in the said
accident .
4. As per the claim petitions, on 10.2.2014 at 4.45
a.m. when claimant-Yasmeen, deceased Baba @
Babasaheb Mulani and their son Ashik were travelling in a
pick up vehicle bearing Regn. No. MH 45/7086 towards
Mumbai from Goa side, when the said vehicle came near
Managaon, a truck bearing Regn.No.RJ/27-GA 8765 came
from the opposite direction in high speed in a rash and
negligent manner and driver of the truck lost his control
over his vehicle and dashed to the pick up vehicle in which
the aforesaid persons were travelling. Because of this
accident, Babasaheb and his son Ashik having sustained
grievous injuries died on the spot and claimant Yasmeen
sustained injuries on her person i.e.,fracture of right hand
at two places, fracture of left hand, injury to her head and
injury to back and other injuries. With regard to the said
accident, criminal case was registered in Crime
NC: 2024:KHC-K:8741-DB
No.20/2014 for the offences under Section 279, 337, 338,
304-A of IPC and 184 of MV Act.
5. It is stated that, the deceased Baba @
Babasaheb was hale and healthy and was aged 28 years
and was doing business so also driving the vehicle. He was
earning Rs.25,000/- per month. Entire family was
depending upon his income. So far as deceased Ashik is
concerned, he was 7 years old and a brilliant student.
Because of untimely death of Ashik, the petitioner
Yasmeen lost her son who would have survived upto 100
years. It is prayed by all the claimants to award the
compensation as prayed for.
6. Before of the Tribunal, despite service of notice,
respondent no.1 remained absent, whereas, Respondent
No.2 - Insurance Company appeared through its Panel
Counsel and filed detailed similar written statements in all
the petitions. It was contended that, the petitions are not
maintainable and the Court has no jurisdiction to entertain
the petitions. The said offending truck was insured with
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respondent no.2 but, there is no negligence on the part of
the driver of the truck. The said accident has taken place
because of rashness and negligence on the part of driver
of the pick-up vehicle. The age, occupation and income of
the deceased is denied. The claim is exorbitant.
Respondent no.3 contends that, the claim made by the
claimants on various heads is very high and imaginary.
Petition against respondent no.3 be dismissed as no case
is made out against respondent no.3. So far as R-4-
Insurer- Bajaj Allianz Insurance Co., is concerned, similar
contention is taken contending that, Insurance Policy in
respect of the pick up vehicle was valid upto 10.2.2014.
The driver of the said pick up vehicle was not holding the
effective driving licence at the time of accident. It was a
goods carrying commercial vehicle and passengers were
not allowed to travel. Therefore, there is violation of policy
conditions. The said accident has taken place because of
rash and negligent driving of driver of truck, hence, it is
prayed to dismiss the petitions.
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7. Based upon the rival pleadings of both the
parties, the learned Tribunal framed relevant issues in all
the petitions. To substantiate the case of the claimants in
all the petitions, a common claimant Yasmeen in all the
petitions entered the witness box as PW.1 and got marked
Ex.P1 to P22 and closed claimants' evidence. To rebut the
evidence of claimants, an official of respondent no.4 by
name Ibrahim Khazamin Dharwad entered the witness box
as RW.1 and got marked Ex.R1 to R3 closed respondent's
evidence. The other respondents did not lead any
evidence.
8. On hearing the arguments and on assessment
of the evidence, the learned Tribunal awarded the
compensation in all the petitions as under:
Sl. MVC Case No. MFA No. Claimant/s Amount
No awarded
in Rs.
1. No.562/2014 201479/2014 Parents, wife and 8,20,000
children of
deceased Baba @
Babasaheb
2. No.563/2014 201480/2014 Mother-Yasmeen 5,90,000
for the death of
her Son -Ashik
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NC: 2024:KHC-K:8741-DB
3. No.569/2014 201481/2014 Smt.Yasmeen for 4,25,000
her personal
injuries
MFA No.201479/2019 in MVC No.562/2014:
9. It is argued by the claimants in all the claim
petitions-appellants herein that, deceased Babasaheb was
aged 28 years at the time of accident and he was earning
Rs.25,000/-per month from his business and driver's
profession. Because of untimely death of deceased, these
claimants are suffering financially, mentally and socially.
According to him, the compensation so awarded under all
the relevant heads in MVC No.562/2014 is very meagre
and it has to be enhanced. While awarding the
compensation, the Tribunal has not taken into
consideration the income of the deceased Babasaheb and
assessed the notional income at Rs.5,000/- per month
which is on lower side. There were five dependents.
10. Except the evidence of PW.1, there is no
document to show the actual income being earned by the
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deceased during his life time. The Tribunal has assessed
the notional income at Rs.5,000/- per month which is on
lower side. As per the guidelines issued by KSLSA, as the
accident is of the year 2014, in the absence of proof of
income, the notional income ought to have been taken at
Rs.9,000/- as has been held in C.Poornima vs.
Gangadharappa in M.F.A No.2351/2017 date
01.05.2020. Thus, the notional income is taken at
Rs.9,000/- to which 40% is to be added towards future
prospects in view of decision in National Insurance Co.
vs. Pranay Sethi reported in 2017 ACJ 2700 (SC). It
comes to Rs.12,600/-. In all he had 5 dependents,
therefore, 1/4th has to be deducted towards his personal
expenses. Thus, Rs. 12,600 x 1/4th =
Rs.3,150/-,
Rs.12,600/- - Rs.3150/- would be Rs.9,450/-. This would
be the net income of the deceased. If it is calculated
annually, it comes to Rs.1,13,400/-(Rs.9,450 x 12). His
age was 28 years at the time accident. The proper
multiplier would be `17'. Thus, the loss of dependency
would be Rs.19,27,800/- (Rs.1,13,400 x 17).
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11. Claimant nos. 1 and 2 are the parents, claimant
no.3 is the wife and claimant nos. 4 and 5 are his children.
At the evening of their life, claimant nos. 1 and 2 have lost
their son and his love and affection, so also claimant no.3
being 25 years has lost her husband at her young age,
claimant nos. 4 and 5 being the small children aged 6 and
4 years have lost their father. The loss of consortium is
awarded by the Tribunal is too low. Therefore, towards
loss of consortium to all these claimants at, Rs.40,000/- is
to be awarded to each of the claimants with 10% hike for
every three years from the date of accident. The date of
accident is 10.02.2014. Hence, 30% hike is to be
calculated on Rs.40,000/- to each of the claimants which
comes to Rs.2,60,000/- (Rs.40,000/- x 30% x 5).
12. The Tribunal has awarded Rs.20,000/- towards
`loss of estate' so also Rs.25,000/- for `transportation of
dead body' which is on higher side . As per judgment
Pranay Sethi supra, it ought to have been Rs.15,000/-
each and the same is awarded. Thus, the claimants in MVC
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562/2014 against which MFA No.201479/2019 is filed, are
entitled to the following compensation:
Sl. Particulars Amount in Rs.
no.
1 Loss of dependency 19,27,400/-
2 Loss of consortium to 2,60,000/-
claimants no.1 to 5
3 Loss of estate 15,000/-
4 Transportation of dead body 15,000/-
and funeral expenses
TOTAL 22,17,800/-
Rounded off to
Rs.22,18,000/-
MFA No.201480/2019 in MVC No.563/2014:
13. So far as claimant-Yasmeen in MVC
No.563/2014 is concerned, she has lost her son Ashik in
the accident. She has sought compensation of
Rs.10,25,000/- stating that she has suffered mental agony
on account of death of her son. It is observed by the
Tribunal that to prove that deceased Ashik was a brilliant
study, there is no satisfactory evidence. As per Ex.P6 P.M.
report of deceased Ashik showing his age as 7 years at the
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time of his death. The learned Tribunal has relied upon
judgment in Kishan Gopal and Another vs. Lala and
Others reported in 2014 (1) SCC 244. By relying upon
the said judgment, the notional income of the deceased
child is taken at Rs.30,000/- p.a. In the course of
judgment, the learned Tribunal has taken into
consideration the principles laid down in Lata Wadhwa
and Others vs. State of Bihar and Others reported in
2001 (8) SCC 197, Sarla Verma vs. DTC reported in
(2009) 6 SCC 121 and by applying the proper multiplier
`18' having regard to the age of the mother, has
awarded global compensation of Rs.5,40,000/- in addition
to which, Rs.50,000/- is awarded towards conventional
heads, totally Rs.5,90000/- which, in our opinion is just
and proper. We do not find any factual or legal error in
awarding said compensation to the claimant because of
death of her son Ashik. No grounds have been made out
to enhance the compensation as prayed in this appeal.
Therefore, no interference is required into such award
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which is based upon the law laid down by the Hon'ble Apex
Court.
MFA No.201481/2019 in MVC No.569/2014:
14. So far this claimant is concerned, she has
suffered injuries in the said accident and sought for
enhancement of compensation for her injuries in the said
accident. When she was examined by the doctor, the
doctor has opined that, the injuries are simple but, opinion
is reserved. As per the medical records so produced as per
Ex.P13, she was admitted in Sanchethi Hospital on
10.02.2014 and was discharged on 11.02.2014. She had
sustained head injury. She has produced Ex.P14 discharge
summary being clinical findings wherein, it shows that she
was admitted on 10.02.2014 and was discharged on
04.03.2014. She has produced injury certificate vide Ex.P7
which states that she sustained Cut lacerated wound over
forehead, cut lacerated wound over left forearm, contusion
over back, fractures of humerus. We find inconsistent
discharge summary produced by the claimant. Though the
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claimant has produced no. of documents x-rays, she has
not chosen to examine the doctor who had treated her to
show that she had really suffered disability as alleged in
the claim petition. Though she had deposed that she had
spent substantial amount towards medical expenses, but,
there appears to be duplication of bills and there is no
proper calculation. The learned Tribunal has observed that
Ex.P12 are the 19 bills containing hospital and medical
bills to the tune of Rs.1,22,000/-. Considering the bills,
discharge summary, lab reports, etc., the Tribunal has
stated that she has spent Rs.4,04,000/- towards her
treatment. Taking into consideration of all these aspects,
the Tribunal has awarded Rs.25,000/- as global
compensation along with Rs.4,00,000/- towards medical
expenses keeping in mind the decision of this Court in
Pandurang vs. Veerappa and Another reported in
2013 SCC Online KAR 6724 But, however, in the said
accident, she has lost her husband and son aged 7 years
and she also has suffered no. of injuries as noticed in the
wound certificate, she is under continuous treatment right
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from the date of accident, she must have put to mental
agony, pain suffering trauma etc., therefore, she requires
to be awarded substantial compensation. Hence, she is
entitled for compensation under the head of pain, injury,
sufferance and trauma at Rs.25,000/-. She must have
been idle atleast for a period of one month and sufferance
after death of her husband and son. As her avocation is
stated to be tailor and also house maker, as no documents
are produced about her avocation, if Rs.9,000/- is
awarded during laid-up period, it would meet the ends of
justice. She is taking continuous treatment and must have
lost amenities to be enjoyed in life. Under the said head, if
Rs.10,000/- is awarded, it would meet the ends of justice.
Though the Tribunal has awarded compensation globally,
but, in view of law laid down by Hon'ble Supreme Court,
under all conventional heads, the Tribunal ought to have
awarded the compensation. By mere producing the
medical records without any proof, such documents cannot
be accepted. Therefore, claimant is not entitled for
compensation under the head of `medical expenses' as
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prayed, but, however, neither the owner nor the Insurance
Company have challenged the award of compensation of
Rs.4,25,000/- under which Rs.4,00,000/- is awarded
towards medical expenses as observed by the Tribunal and
no argument is advanced to that effect. Therefore, the
compensation awarded towards the medical expenses
remains undisturbed. She must have spent some amount
towards nutritious food, attendant charges etc., and
hence, she is entitled for Rs.10,000/- towards the same.
Thus, the claimant is held entitled for enhanced
compensation as under:
Sl. Particulars Amount in
No. Rs.
1 Injury, Pain and Sufferings 25,000/-
2 Loss of income during treatment 9,000/-
period
3 Loss of Amenities 10,000/-
4 Medical Expenses 4,00,000/-
5 Nutrition, diet and attendant 10,000/-
charges
Total 4,54,000/-
15. So far as liability is concerned, respondent nos.
1 to 4 have not preferred any appeal challenging the
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liability fastened on the Insurance Company. While
discussing the aspect of liability, the Tribunal has come to
the conclusion that the said accident has taken place
because of the contributory negligence on the part of both
the vehicles. It fastened the negligence to the extent of
80% on the truck bearing Regn.No.RJ27-GA8765 and 20%
negligence on respondent no.3 pick up vehicle bearing
No.MH45/7086. This fact is also not disputed by the
respondents.
16. Therefore, as rightly observed by the Tribunal,
respondent Nos.1 and 2 being the owner and insurer of
the Truck bearing Regn. No. RJ 27- GA 8765 are jointly
and severally held liable to pay the compensation to the
extent of 80% of total compensation awarded in all the
respective petitions, so also, respondent nos. 3 being the
owner of the Mini Goods Carrying Commercial vehicle
bearing Regn.No.MH 45 7086 who has violated the policy
conditions of carrying the passengers is liable to pay
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compensation to the extent of 20% in all the respective
petitions.
17. Resultantly, we pass the following:
ORDER
(i) The appeal filed by claimant-appellants in
MFA Nos.201479/19 is allowed in-part
enhancing compensation to
Rs.22,18,000/- as against Rs.8,20,000
awarded by the Tribunal, thereby
enhanced compensation would be
Rs.13,98,000/- with 6% interest.
(ii) MFA No.201480/2019 filed by the
claimant-appellant is dismissed. Judgment
and award passed in MVC No.563/2014
dated 12.11.2018 is confirmed.
(iii) MFA No.201481/19 filed by claimant-
injured is allowed in-part enhancing the
compensation to Rs.4,54,000/- as against
Rs.4,25,000/- awarded by the Tribunal,
thereby enhanced compensation would be
Rs.29,000/-.
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(iv) Respondent Nos.2-Insurer of Truck
bearing and Respondent No.3-owner of
Mini Goods Carrying Commercial vehicle
bearing Regn.No.MH 45 7086 are directed
to deposit the compensation amount so
awarded at the ratio of 80:20 respectively
in the above two appeals within four
weeks from the date of uploading the
judgment in the website, before the
Tribunal. The compensation so awarded in
MVC No.563/2014 remains undisturbed.
(v) The order of the Tribunal regarding,
apportionment, deposit and release of the
compensation remains unaltered.
There shall be a modified award accordingly.
Sd/-
(S.SUNIL DUTT YADAV)
JUDGE
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
SK/-
