Karnataka High Court
Raju @ Rajshekhar And Ors vs Mashaksab And Anr on 25 October, 2024
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NC: 2024:KHC-K:7965
MFA No. 201220 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
MISCL. FIRST APPEAL NO. 201220 OF 2019 (MV-D)
BETWEEN:
1. RAJU @ RAJSHEKHAR
S/O GUNDAPPA KATTIMANI
AGE: 45 YEARS
OCC: COOLIE
SINCE DEAD BY LRs
APPELLANTS NO.2 TO 4 ARE LRs
2. KIRANKUMAR S/O RAJU @ RAJSHEKHAR KATTIMANI
AGE: 23 YEARS
OCC: COOLIE
3. MANOJKUMAR S/O RAJU @ RAJSHEKHAR KATTIMANI
AGE: 20 YEARS
OCC: STUDENT
Digitally signed
by RENUKA
Location: HIGH
4. DEVAMMA @ SUHASANI
COURT OF D/O RAJU @ RAJSHEKHAR KATTIMANI
KARNATAKA AGE: 18 YEARS
OCC: STUDENT
ALL ARE R/O H.NO.11-779
BASAVNAGAR
BRAHMPUR, KALABURAGI
...APPELLANTS
(BY SRI. SANJEEV PATIL, ADVOCATE)
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NC: 2024:KHC-K:7965
MFA No. 201220 of 2019
AND:
1. MASHAKSAB
S/O KHASIMSAB
AGE: 38 YEARS
OCC: OWNER/RC HOLDER OF
AUTO TRAILER APE PIAGGIO
BEARING NO.KA-32/B.8423
R/O BIDDAPUR COLONY, OLD AIRPORT
AFZALPUR ROAD, KALABURAGI-585 103.
2. CHOLAMANDALAM M.S.GEN.
INSURANCE CO. LTD.
THROUGH ITS BRANCH OFFICER
ASIAN PLAZA, IIND FLOOR,
STATION ROAD, NEAR S.V.PATEL CHOWK
KALABURAGI-585 102.
...RESPONDENTS
(BY SRI. MANJUNATH MALLAYYA SHETTY, ADVOCATE FOR R2;
NOTICE TO R1 IS HELD SUFFICIENT V/O/D 19.02.2024)
THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO
MODIFY THE JUDGMENT AND AWARD DATED 18.03.2019
PASSED BY THE I ADDL. SENIOR CIVIL JUDGE AND MEMBER
MACT, KALABURAGI IN FILE BEARING MVC NO.56/2016 BY
ENHANCING THE COMPENSATION AND FIXING THE LIABILITY
TO PAY COMPENSATION ON THE 2ND RESPONDENT i.e.,
INSURANCE COMPANY, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
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NC: 2024:KHC-K:7965
MFA No. 201220 of 2019
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM)
The captioned appeal is filed by the claimants feeling
aggrieved by the quantum as well liability fastened on the
first respondent/owner on the ground that the deceased
was traveling as a gratuitous passenger in the offending
vehicle.
2. Heard the learned counsel for the appellants
and the learned counsel appearing for respondent
No.2/Insurance Company.
3. The claimants filed the claim petition for having
lost one Parvati in a road traffic accident that took place
on 21.6.2015. The claimants contended that the deceased
was working as a Coolie and was also doing household
work and earning Rs.9,000/- per month. The Tribunal, in
the absence of income proof, assessed the income at
Rs.7,000/-, by adding 25% towards future prospects,
deducting 1/3rd towards personal expenses and applying
the multiplier 14 has awarded a sum of Rs.9,79,944/-.
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Towards conventional heads, a sum of Rs.1,30,000/- is
awarded. Thus, total compensation of Rs.11,10,000/- is
awarded with interest at the rate of 6% p.a. from the date
of petition till the date of realization. Tribunal, however,
referring to the records proceeded to dismiss the claim
petition against respondent No.2/Insurance Company on
the ground that the deceased was traveling as a gratuitous
passenger in the offending vehicle.
4. Insofar as third party rights are concerned, the
Full Bench of this Court in the case of New India
Assurance Company Limited Vs. Yallavva & others1
has held that third party rights are not affected even if the
deceased was found to be traveling as a gratuitous
passenger. The Full Bench held that the Insurance
Company is primarily liable to satisfy the award and then
recover the same from the owner who has committed the
breach. In the light of the judgment rendered by the Full
Bench in the judgment cited supra, the dismissal of the
AIR ONLINE 2020 KAR 986
NC: 2024:KHC-K:7965
claim petition against the Insurance Company is liable to
be set aside.
5. Insofar as quantum is concerned, in the
absence of income proof, this Court is inclined to rely on
the income chart prepared by the Legal Services Authority.
The accident is of the year 2015. Relying the income chart
of the Legal Services Authority, the income is assessed at
Rs.8,000/-. The deceased was aged around 45 years and
therefore, 25% is added towards loss of future prospects.
Thus, the income is assessed at Rs.10,000/-. Appellant
No.1 died during the pendency of the appeal before this
Court. Therefore, 1/3rd has to be deducted towards
personal expenses. After deducting 1/3rd, the income is
assessed at Rs.6,666,66/-. The proper multiplier
applicable in the case on hand is 14. Thus, the
compensation payable under the head of loss of
dependency works out to (Rs.6,666.66x12x14)=
Rs.11,19,888/- which is rounded off to Rs.11,20,000/-.
Since there are three dependants, under the conventional
NC: 2024:KHC-K:7965
heads Rs.1,20,000/- is awarded and Rs.30,000/- is
awarded under the head "funeral expenses and loss of
estate". 10% needs to be added under conventional
heads by applying the principle laid down by the Apex
Court in the case of National Insurance Co. Ltd., vs.
Pranay Sethi and Ors2. Accordingly, Rs.30,000/-
additional amount is added under the conventional heads.
Hence, the total compensation re-determined by this Court
works out Rs.13,00,000/- as against Rs.11,10,000/-
awarded by the Tribunal. Thus, the enhanced
compensation works out to Rs.1,90,000/-, which the
appellants are held entitled with interest at 6% from the
date of petition till its realization.
6. For the foregoing reasons, this Court proceeds
to pass the following:
ORDER
(i) The appeal is allowed in part.
2017 ACJ 2700 SC
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(ii) The impugned judgment and award dated
18.3.2019 passed in MVC.No.56/2016 by I
Additional Senior Civil Judge and Member MACT at
Kalaburagi, is hereby modified.
(iii) The appellants/claimants are held entitled for
the enhanced compensation of Rs.1,90,000/- with
interest at the rate of 6% p.a. from the date of
petition till its realization.
(iv) Respondent No.2/Insurance Company shall
satisfy the entire compensation amount in the first
instance and thereafter recover the same from the
owner.
(v) The order of the Tribunal insofar as
apportionment remains unaltered.
(vi) The amount in deposit, if any, shall be remitted
to the Tribunal to enable claimants to withdraw the
same.
Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE
ALB
