Karnataka High Court

The Divisional Manager vs Nasira And Ors on 25 October, 2024

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                                                        MFA No. 202058 of 2017
                                                    C/W MFA No. 200359 of 2018



                                 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. 202058 OF 2017 (MV-D)
                                                  C/W
                              MISCL. FIRST APPEAL NO. 200359 OF 2018

                      IN MFA NO. 202058/2017

                      BETWEEN:


                      1.   NASIRA
                           W/O LATE KHAJA SAB,
                           AGE: MAJOR,
                           OCC: HOUSEHOLD,

                      2.   SHAFIYA
                           D/O LATE KHAJA SAB,
                           AGE: 21 YEARS,
Digitally signed by        OCC: STUDENT,
RENUKA
Location: HIGH
COURT OF              3.   AFIYA BEGUM
KARNATAKA                  D/O LATE KHAJA SAB,
                           AGE: 20 YEARS,
                           OCC:STUDENT,
                           ALL R/O H.NO.E-34,
                           RING ROAD,
                           NEAR TAYYAB MANZIL,
                           MISBA NAGAR,
                           GULBARGA-585105.

                                                                  ...APPELLANTS

                      (BY SRI. BASAVARAJ R. MATH, ADVOCATE)
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                                  MFA No. 202058 of 2017
                              C/W MFA No. 200359 of 2018




AND:

1.   KESINENI SRINIVAS
     S/O RAMASWAMY,
     AGE: MAJOR,
     OCC: BUSINESS (OWNER OF BUS),
     R/O H.NO.22/2JVA COMPLEX,
     T.S.P. ROAD,
     KALASIPALYAN,
     BANGALORE-2.
2.   THE DIVISIONAL MANAGER
     ORIENTAL INSURANCE COMPANY LTD.,
     POST BOX NO.11, 302, 3RD FLOOR,
     OASIS PLAZA, TILAK ROAD,
     ABIDS, HYDERABAD (A.P.STATE)
     REPRESENTED BY THE SUB-DIVISIONAL
     MANAGAR, ORIENTAL INSURANCE COMPANY
     LTD., OPP MINI VIDHANA SOUDHA,
     GULBARGA-585102.
     POLICY NO.431100/31/2013/8760
     VALID FROM 30.09.2012 TO 29.09.2013.
3.   SIDDARAM S/O SOMNATH
     AGE: MAJOR,
     OCC: BUSINESS (OWNER OF LORRY),
     R/O: H.NO.8-1316/A NEHRU GUNJ,
     GULBARGA-585104.

4.   THE DIVISIONAL MANGAR
     THE NATIONAL INSURANCE CO. LTD.,
     BILAGUNDI COMPLEX,
     OPP. MINI VIDHAN SOUDHA,
     GULBARGA-585102,
     POLICY NO.610401/31/12/6700004048
     VALID FROM 27.11.2012 TO 26.11.2013.
                                            ...RESPONDENTS

(BY SRI. J.AUGUSTIN, ADVOCATE FOR R2;
    V/O. DTD:02.11.2022 NOTICE TO R1 IS DISPENSED
    WITH, V/O DATED 18.01.2024 NOTICE TO R3 IS
    DISPENSED    WITH;   SMT.PREETI   PATIL MELKUNDI
    ADVOCATE FOR R4).
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                                   MFA No. 202058 of 2017
                               C/W MFA No. 200359 of 2018




       THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO,
CALL   FOR   THE   RECORDS   AND   MODIFY   THE    IMPUGNED
JUDGMENT AND AWARD DATED 10.08.2017 PASSED BY THE
PRL. SENIOR CIVIL JUDGE AND MACT, KALABURAGI IN MVC
No.804/2013.

IN MFA NO.200359/2018

BETWEEN:

1.   THE DIVISIONAL MANAGER
     THE ORIENTAL INSURANCE CO.LTD,
     POST BOX-11, 302, 3RD FLOOR,
     OASIS PLAZA, TILA ROAD, ABIDS,
     HYDERABAD (AP STATE),
     NOW TELANGANA, NOW REPRESENTED
     BY THE DIVISIONAL MANAGER,
     THE ORIENTAL INSURANCE CO. LTD,
     N.G. COMPLEX, 1ST FLOOR, OPP: MINI VIDHA,
     SOUDHA, MAIN ROAD, KALABURAGI-585102.

                                                  ...APPELLANT
(BY SRI. SANJAY M JOSHI, ADVOCATE)

AND:

1.   NASIRA
     W/O LATE KHAJA SAB
     AGE: MAJOR,
     OCC: HOUSEHOLD,

2.   SHAFIYA
     D/O LATE KHAJA SAB,
     AGE: 21 YEARS OCC: NOT KNOWN,

3.   AFIYA BEGUM
     D/O LATE KHAJA SAB,
     AGE: 20 YEARS,
     OCC: NOT KNOWN,
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                                    MFA No. 202058 of 2017
                                C/W MFA No. 200359 of 2018




     ALL ARE R/O H.NO.E-34,
     RING ROAD,
     NEAR TAYYAB MANZIL,
     MISBA NAGAR,
     KALABURAGI-585103.

4.   KESINENI SRINIVAS
     S/O RAMASWAMY,
     AGE: MAJOR,
     OCC: BUSINESS (OWNER OF BUS),
     R/O H.NO.22/2 JVA COMPLEX TSP ROAD,
     KALASIPLYAN BANGALORE-560002.

5.   SIDDARAM S/O SOMNATH
     AGE: MAJOR, OCC: BUSINESS,
     (OWNER OF LORRY) R/O H.NO.8-1316A,
     NEHRU GUNJ, KALABURAGI-585103.

6.   THE DIVISIONAL MANAGER
     NATIONAL INSURANCE COMPANY LTD;
     BILGUNDI COMPLEX, MINI VIDHANA SOUDHA
     KALABURAGI-585102.

                                            ...RESPONDENTS

(BY SRI. BASAVARAJ R. MATH, ADVOCATE FOR R1 TO R3;
    SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R6;
    R4 & R5 ARE SERVED).

      THIS MFA IS FILED U/S 173 (1) OF MV ACT, PRAYING TO,
CALL FOR THE RECORDS OF IN JUDGMENT DATED 10.08.2017
AND AWARD DATED 19.08.2017 OF THE PRINCIPAL SENIOR
CIVIL JUDGE AND MACT, KALABURAGI IN MVC NO.804/2013 IN
SO FAR AS THE LIABILITY IS DETERMINED AT RS.31,41,000/-
OF WHICH 50 i.e., RS.6,70,500/- IS SADDLED UPON THE
APPELLANT INSURANCE COMPANY WITH INTEREST OF 6 AND
TO MODIFY THE SAID JUDGMENT AND AWARD AND REDUCE
THE COMPENSATION AWARDED BY RS.1,72,000/- IN SO FAR
AS THE LIABILITY IS SADDLED UPON THE APPELLANT
INSURANCE COMPANY.
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                                       MFA No. 202058 of 2017
                                   C/W MFA No. 200359 of 2018



     THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:


CORAM:        HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM


                         ORAL JUDGMENT

(PER: HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM)

These two appeals are filed by the claimants and the

Insurance Company questioning the judgment and award

passed by the Tribunal in MVC No.804/2013.

2. The claimants have filed MFA No.202058/2017,

while the Insurance Company has filed MFA

No.200359/2018.

3. The facts leading to the case are as under:

The claimants filed the claim petition for having lost

one Rasul Patel in the road traffic accident, which occurred

on 21.07.2013. The claimants contended that the driver of

the offending vehicle (Volvo Bus) bearing No.KA-01/AA-

2037 is solely responsible for the accident. Having lost the

bread earner, the claimants, who are the mother and

sisters of the deceased, filed the claim petition alleging

that the deceased was getting a salary of Rs.9,000/- p.m.

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and also used to get Rs.100/- daily as Bhatta, as he was

driver by profession.

4. Per contra, the Insurance Company contested

the claim petition. It specifically contended that the

deceased was not possessing a valid and effective Driving

License to drive heavy vehicle and therefore, contended

that the deceased solely contributed to the accident.

5. Claimants and the Insurance Company in

support of their contentions relied on oral and

documentary evidence. The Tribunal while examining issue

No.1, held that both the drivers have contributed to the

accident and held that both are equally negligent.

Accordingly, answered issue No.1 in affirmative.

6. While deciding the loss of dependency, the

Tribunal without extending the benefit of future prospects,

assessed the income notionally at Rs.9,000/- and by

deducting 1/3rd towards personal expenses, awarded a

compensation of Rs.12,96,000/- and Rs.45,000/- under

conventional heads.

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7. Claimants have preferred the appeal seeking

enhancement and the Insurance Company is not only

seeking reduction, but, is also challenging the finding of

the Tribunal on negligence, while answering issue No.1.

8. Insofar as the negligence is concerned, this

Court has independently examined Ex.P-4. On examination

of Ex.P-4, it is clearly seen that the accident has occurred

at a cross road. Having regard to the nature of the

vehicles involved in the accident, it was expected that both

the drivers were required to exercise some degree of

diligence, while crossing through a cross road. It appears

that both the drivers have not cut down the speed and

apparently, that has resulted in collusion. Therefore, the

Tribunal referring to this clinching evidence coupled with

police records, more particularly the charge sheet, was

justified in holding that both drivers have contributed to

the accident. Therefore, this Court is not inclined to

interfere with the finding recorded by the Tribunal on issue

No.1. Accordingly, negligence to the extent of 50% on

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both the drivers fastened by the Tribunal is hereby

confirmed.

9. Now, coming to the quantum, I find some force

in the submission made by learned counsel for the

appellant. The deceased was aged about 23 years and was

employed to drive heavy vehicle. The appellant No.1 has

lost her son at a tender age. In the light of the law laid

down by the Hon'ble Apex Court in the case of National

Insurance Co. Ltd., Vs. Pranay Sethi, reported in

(2017) 16 SCC 680, this Court is inclined to add 40% to

the income, already determined by the Tribunal. Though,

learned counsel for the appellant was right to persuade to

add Bhatta, this Court is of the view that Bhatta does not

form a component of salary. Assessing the income of the

deceased at Rs.9,000/- and by adding 40% towards future

prospects, the income of the deceased works out to

Rs.12,600/-.

10. Though, in the case on hand, the decease was a

bachelor, this Court is of the view that the Tribunal was

justified in deducting 1/3rd towards personal expenses,

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having regard to the fact that the deceased is survived by

widow and two unmarried sisters. Therefore, this Court is

inclined to retain 1/3rd deduction, as done by the Tribunal.

Applying the multiplier of 18, the compensation under the

head of loss of dependency, works out to Rs.18,14,400/-

and under the conventional heads, the mother is entitled

for Rs.40,000/- towards consortium and Rs.30,000/-

towards loss of estate and funeral expenses. As per the

law laid down by the Hon'ble Apex Court in the case of

Pranay Sethi (Supra), 10% escalation is awarded on the

conventional heads for each 3 years, which works out to

Rs.14,000/- on conventional heads of Rs.70,000/-. Total

compensation re-assessed by this Court is as under:

       Sl.          Heads                Amount
      No.
      1.   Loss of dependency        Rs.18,14,400/-
      2.   Conventional heads        Rs.70,000/-
      3.   Escalation                Rs.14,000/-
                     Total           Rs.18,98,400/-
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11. For the foregoing reasons, this Court passes the

following order:

ORDER

i. MFA No. 202058/2017 filed by the claimants is allowed in part. ii. The claimants are entitled for enhanced compensation of Rs.5,57,400/- with interest at the rate of 6% from the date of petition till realization of entire compensation amount.