Karnataka High Court
The Manager vs Smt. Nandini @ Yashoda W/O Basanagouda on 9 January, 2025
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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MFA No. 101162 of 2017
C/W MFA No. 101854 of 2017
MFA.CROB No. 100097 of 2017
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 9TH DAY OF JANUARY, 2025
PRESENT
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
MISCELLANEOUS FIRST APPEAL NO. 101162 OF 2017 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 101854 OF 2017 (MV-D)
MFA CROSS OBJ NO. 100097 OF 2017 (MV-D)
IN MFA NO. 101162 OF 2017
BETWEEN:
THE MANAGER,
RELIANCE GENERAL INSURANCE COMPANY,
V.A KALBURGI SQUITE, IIIRD FLOOR, DESAI CROSS,
DESHPANDE NAGAR, HUBLI,
REPRESENTED BY ITS AUTHORIZED SIGNATORY,
Digitally
signed by RELIANCE GENERAL INSURANCE COMPANY,
SHAKAMBARI V.A.KALBURGI SQUIRE, IIIRD FLOOR, DESAI CROSS,
Location:
High Court of DEHSPANDE NAGAR, HUBLI.
Karnataka,
Dharwad
Bench ...APPELLANT
(BY SRI. G. N. RAICHUR, ADVOCATE)
AND:
1. SMT. NANDINI @ YASHODA W/O. BASANAGOUDA
GANGANNAVAR @ GOUDAR,
AGE: 27 YEARS, OCC: HOUSEHOLD,
R/O. GOREBAL, TQ: HUNUGUND,
DIST: BAGALKOT, NOW AT HULGERI,
TQ: KUSHTAGI, DIST: KOPPAL.
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MFA No. 101162 of 2017
C/W MFA No. 101854 of 2017
MFA.CROB No. 100097 of 2017
2. SRI. AKASH S/O. BASANAGOUDA GANGANNAVAR,
@ GOUDAR, AGE: 6 YEARS, MINOR,
U/G. HIS NATURAL MOTHER BY NAME NANDINI,
I.E., PETITIONER NO.1, R/O. GOREBAL,
TQ: HUNUGUND, DIST: BAGALKOT,
NOW AT HULGERI, TQ: KUSHTAGI,
DIST: KOPPAL.
3. SRI. MAHANTAMMA W/O. HANAMGOUDA
GANGANNAVAR @ GOUDAR,
AGE: 60 YAERS, OCC: HOUSEHOLD,
R/O. GOREBAL, TQ: HUNUGUND, DIST: BAGALKOT,
NOW AT HULGERI, TQ: KUSHTAGI, DIST: KOPPAL.
4. SRI. BASAMMA D/O. HANAMAGOUDA
GANGANNAVAR @ GOUDAR,
AGE: 39 YAERS, OCC: HOUSEHOLD, UNMARRIED,
R/O. GOREBAL, TQ: HUNUGUND,
DIST: BAGALKOT, NOW AT. HULGERI,
TQ: KUSHTAGI, DIST: KOPPAL.
5. SRIKANTH S/O. VAJRAKANT @ CHANDRAKANT
HIRANDAGI, AGE: 37 YEARS, OCC: DRIVER CUM
OWNER OF CAR BEARING NO. KA-28-M9592,
AT POST. TEACHERS COLONY,
NEAR MALLIKARJUN SWAMY ASHRAM,
TQ AND DIST: BIJAPUR.
...RESPONDENTS
(BY SRI. P. G. MOGALI, ADV. FOR R1 TO R4;
SRI. VINAY S. KOUJALAGI, ADV. FOR
SRI. V. M. SHEELAVANT, ADV. FOR R5)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S
173(1) OF MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE
RECORDS AND HEAR THE PARTIES AND SET ASIDE THE
JUDGMENT AND AWARD DATED 30.01.2017 PASSED BY THE
COURT OF THE SENIOR CIVIL JUDGE AND M.A.C.T AT
KUSHTAGI PASSED IN MVC NO.160/2015 BY ALLOWING THIS
APPEAL WITH COST IN THE ENDS OF JUSTICE AND EQUITY.
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MFA No. 101162 of 2017
C/W MFA No. 101854 of 2017
MFA.CROB No. 100097 of 2017
IN MFA NO. 101854 OF 2017
BETWEEN:
1. SRIKANT S/O. VAJRAKANT @ CHANDRAKANT
HIRANDAGI, AGE: 40 YEARS,
OCC. DRIVER CUM OWNER OF THE CAR
BEARING NO.KA-28 M 9592,
R/O. TEACHERS COLONY,
NEAR MALLIKARJUN SWAMY ASHRAM,
VIJAYAPURA, TQ AND DIST. VIJAYAPURA-586101.
...APPELLANT
(BY SRI. VINAY S. KOUJALAGI, ADV. FOR
SRI. V. M. SHEELAVANT, ADVOCATE)
AND:
1. SMT. NANDINI @ YASHODA,
W/O. BASANGOUDA GANGANNAVAR @ GOUDAR,
AGE: 28 YEARS, OCC. HOUSEHOLD,
R/O. GOREBAL, TQ. HUNGUND,
DIST. BAGALKOT-587201,
NOW AT HULGERI, TQ. KUSHTAGI,
DIST. KOPPAL.
2. SRI. AKASH S/O. BASANGOUDA GANGANNAVAR
@ GOUDAR, AGE: 7 YEARS, OCC.NIL,
SINCE MINOR REPRESENTED BY HIS MOTHER
NATURAL GUARDIAN RESPONDENT NO.1.
3. SMT. MAHANTAMMA W/O. HANAMGOUDA
GANGANNAVAR, AGE: 61 YEARS,
OCC. HOUSEHOLD, R/O. GOREBAL,
TQ. HUNGUND, DIST. BAGALKOT,
NOW AT HULGERI, TQ. KUSHTAGI,
DIST. KOPPAL.
4. SMT. BASAMMA D/O. HANAMAGOUDA
GANGANNAVAR @ GOUDAR,
AGE: 40 YEARS, OCC. HOUSEHOLD, UNMARRIED,
R/O. GOREBAL TQ. HUNGUND,
DIST. BAGALKOT, NOW AT HULGERI,
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MFA No. 101162 of 2017
C/W MFA No. 101854 of 2017
MFA.CROB No. 100097 of 2017
TQ. KUSHTAGI, DIST. KOPPAL.
5. THE MANAGER,
RELIANCE GENERAL INSURANCE COMPANY LTD,
V.A. KALBURGI SQUIRE, III FLOOR,
DESAI CROSS, DESHPANDE NAGAR,
HUBBALLI.
...RESPONDENTS
(BY SRI. P. G. MOGALI, ADV. FOR R1 TO R4;
SRI. G. N. RAICHUR, ADV. FOR R5)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
U/S.173(1) OF MOTOR VEHICLES ACT, PRAYING TO CALL FOR
THE RECORDS, ALLOW THE APPEAL AND SET ASIDE THE
JUDGMENT AND AWARD DATED 30.01.2017 PASSED BY THE
SENIOR CIVIL JUDGE AND MACT, KUSHTAGI IN MVC
NO.160/2015 IN SO FAR AS COMPENSATION AND LIABILITY ON
THE APPELLANT TO THE EXTENT OF 1/3RD IS CONCERNED, IN
THE INTEREST OF JUSTICE AND EQUITY.
IN MFA CROB NO. 100097 OF 2017
BETWEEN:
1. SMT. NANDINI @ YASHODA,
W/O. BASANAGOUDA GANGANNAVAR @ GOUDAR,
AGE: 27 YEARS, OCC: HOUSEHOLD.
2. AKASH S/O. BASANAGOUDA GANGANNAVAR,
@ GOUDAR, AGE: 6 YEARS,
OCC: STUDENT.
3. SMT. MAHANTAMMA W/O. HANAMAGOUDA
GANGANNAVAR, AGE: 60 YEARS,
OCC: HOUSEHOLD.
4. SMT. BASAMMA D/O. HANAMAGOUDA
GANGANNAVAR @ GOUDAR,
AGE: 39 YEARS, OCC: HOUSEHOLD,
ALL ARE R/O. GOREBAL, TQ: HUNGUND,
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MFA No. 101162 of 2017
C/W MFA No. 101854 of 2017
MFA.CROB No. 100097 of 2017
DT: HUNAGUND, NOW R/O. HULGERI,
TQ: KUSHTAGI, DIST: KOPPAL.
...CROSS-OBJECTORS
(BY SRI. P. G. MOGALI, ADVOCATE)
AND:
1. SRIKANTH S/O. VAJRAKANT @ CHANDRAKANT
HIRANDAGI, AGE: 39 YEARS,
OCC: DRIVER CUM OWNER OF CAR
BEARING NO. KA-28 M-9592,
R/O. TEACHERS COLONY,
NEAR MALLIKARJUN SWAMY ASHRAM,
AT TQ AND DIST: VIJAPUR.
2. THE MANAGER RELIANCE INSURANCE COMPANY
LIMITED, V. A. KULBURGI SQUARE, IIIRD FLOOR,
DESAI CROSS, DESHPANDE NAGAR, HUBBALLI,
AT & TQ HUBBALLI, DT: DHARWAD.
...RESPONDENTS
(BY SRI. VINAY S. KOUJALAGI, ADV. FOR
SRI. V. M. SHEELAVANT, ADV. FOR R1;
SRI. G. N. RAICHUR, ADV. FOR R2)
THIS MFA CROB IN MFA NO.101162/2017 IS FILED
UNDER ORDER XLI RULE OF CPC READ WITH SECTION 173(1)
OF THE MOTOR VEHICLES ACT, 1988, AGAINST THE
JUDGMENT AND AWARD DATED 30.01.2017 PASSED IN MVC
NO.160/2015 (NEW NUMBER) AND MVC NO.274/2013 (OLD
NUMBER) ON THE FILE OF THE SENIOR CIVIL JUDGE AND
MOTOR ACCIDENT CLAIMS TRIBUNAL, KUSHTAGI, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS AND CROB COMING ON FOR
ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN
AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
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MFA No. 101162 of 2017
C/W MFA No. 101854 of 2017
MFA.CROB No. 100097 of 2017
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR)
MFA Nos.101162/2017, 101854/2017, and MFA Crob.
No. 100097/2017 are directed against a single judgment
and award passed in MVC No.160/2015 (new number) and
MVC No.274/2013 (old number) dated 30.01.2017 passed
by the Senior Civil Judge and MACT, Kushtagi.
2. As these above two appeals and Crob are arising
out of a single judgment, the documents relied upon in all
these appeals are common, common evidence is relied upon,
and hence, with consent of both the side these two appeals
and Crob are taken up together for disposal by passing the
common judgment.
3. The brief and relevant facts as set out in the
petition are as under:
That the claimants filed the claim petition under
Section 166 of the Motor Vehicles Act, 1988, (hereinafter
referred to as 'M.V.Act' for short), praying to award
compensation of Rs.2,00,00,000/- on account of death of
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one Basanagouda S/o. Hanamagouda Goudar @
Gangannavar who died in a road traffic accident at 01:30
pm on 20.03.2013, when he was travelling on his TVS
APACHE motorbike bearing registration No.KA/29-Q-5229
from Gorebal to Ilkal on National Highway - 50 on Gorebal
cross. It is alleged that when he was so moving and crossed
National Highway - 50 road, at that time, the respondent
No.1 by driving his car i.e., Ford Fiago bearing Registration
No.KA/28-M-9592 in a rash and negligent manner
endangering human life, dashed against the deceased and
due to this impact, the deceased Basanagouda died on the
spot.
4. It is stated that the claimants are the
dependents and are the legal heirs of the deceased and they
had spent Rs.50,000/- towards transportation of the dead
body and funeral expenses etc. It is stated that petitioner
No.1 is the wife, petitioner No.2 is the son, petitioner No.3 is
the mother and petitioner No.4 is the unmarried sister of the
deceased. It is stated that during his life time, deceased
Basanagouda was an agriculturist and also doing Granite
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stone transportation business and used to earn
Rs.11,00,000/- per annum from his business and
agriculture. Because of his death, now the claimants are
deprived of their livelihood. They were fully depending upon
him as he was the only earning member of the family.
Therefore, the claimants prayed to award compensation as
prayed for together with interest with cost from the date of
accident till its realization.
5. Before the Tribunal the respondents appeared.
The respondent No.2 has filed the written statement denying
all the assertions with regard to the nature of the accident
as alleged in the petition, the profession as an agriculturist
and doing business and his age and income so also
dependency of the claimants on the income of the deceased
and denied that, claimants have spent of Rs.50,000/-
towards funeral expenses and transportation of dead body of
the deceased. It is contended that the claimants are put to
strict proof of the same.
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6. It is further contended that there is violation of
policy conditions by respondent No.1. It is contended that
the driver of the car was not holding the valid driving licence
at the time of accident. The respondent No.1 has not
complied the statutory demand as per the provisions of
Motor Vehicles Act, 1988. He has not produced the relevant
documents when called upon by respondent No.2. By
denying all the assertions, it is contended that the claimants
are not entitled for compensation. It is further contended
that the claim of the claimants is highly excessive. It is
contended that the deceased died because of his own
negligence at the time of riding the motor vehicle, he fell
down and died. Hence, it is prayed to dismiss the petition.
7. Based upon the rival pleadings of the parties, the
learned Tribunal framed three relevant issues. To prove the
claim of the claimants, claimant No.1 entered the witness
box as PW.1 and also examined one Basavaraj S/o.
Shashikant Banderagalla as PW.2 and got marked Ex.P.1 to
Ex.P.26 and closed the claimants evidence.
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8. To rebut the evidence of the claimants Amarnath
S/o. Veerabhadrappa and Srikant S/o. Vajrakant were
examined as RW.1 and RW.2 and Ex.R.1 to Ex.R.7 were
marked in evidence.
9. The learned Tribunal on hearing the arguments
and on evaluating the evidence, awarded the compensation
of Rs.33,91,500/- under all the relevant heads together with
interest at the rate of 8% per annum from the date of
petition till realization and further directed the respondent
No.1 to deposit the compensation of Rs.11,30,500/- being
his 1/3rd share as he has committed the contributory
negligence in causing the accident and directed the
respondent No.2 to deposit the balance 2/3rd amount of
Rs.22,61,000/- within 60 days from the date of award.
10. This is how, now the claimants have filed their
appeal seeking enhancement of compensation, respondent
Nos.1 and 2 have filed the respective appeals and Crob
challenging the liability on the ground of negligence.
11. Trial Court records are secured.
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12. The parties to these appeals are referred with
reference to their rank before the Tribunal for convenience.
13. The learned counsel for the claimants submits
that deceased was an agriculturist and doing Granite stone
business and was earning Rs.11,00,000/- per annum.
Because of untimely death of the deceased, the claimants
are deprived of their livelihood. He was 40 years old at the
time accident. The learned Tribunal has not considered the
oral and documentary evidence led by the claimants. In fact,
the deceased was an income tax assessee and he submitted
the attested copies of the Income Tax returns as per Ex.P.25
and 26 and these documents have not been considered by
the Tribunal while appreciating the evidence in assessing
the income of the deceased. He was holding the effective
Driving Licence at the time of accident. It was further
contended that the claim of the claimants was quite
reasonable but, the Tribunal without properly evaluating the
evidence, has awarded the compensation which is on lower
side. He would further submit that because of award of a
lower compensation, the claimants have filed the appeal.
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14. As against the submission, the learned counsel
for the owner- respondent No.1 submit that there was no
negligence on his part and fastening the liability of 1/3rd
negligence is improper. He submits that as there is no
violation of policy conditions, the insurance policy was valid
as on the date of the accident, therefore it is respondent
No.2 who has to deposit the compensation. The learned
counsel for respondent No.2 submits that there is a clear
violation of the policy conditions by respondent No.1 in
entrusting the vehicle to the person who was not holding the
Driving Licence. Therefore, the Insurance Company is
absolved from payment of any compensation. He would
further submit that the Tribunal has wrongly fastened the
liability to the extent of 2/3rd negligence and directed the
Insurance Company to deposit 2/3rd of the amount.
15. The learned counsel for the claimants as well as
respondents took us through various evidence, both oral
and documentary and also the findings of Tribunal and
prays to allow all the respective appeals as prayed in their
appeal memos. The learned counsel for the claimants seek
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enhancement and the respondents seek setting aside of the
judgment and award impugned in these appeals.
16. We have given our anxious consideration to the
arguments of both sides to peruse the records.
17. In view of the rival submissions, of the parties to
these appeals, the points that would arise for our
consideration are:
a) Whether the claimants are entitled for enhancement
of compensation as prayed?
b) Whether respondent No.1 being the owner of the
offending vehicle is liable to pay 1/3rd of the
compensation as directed by the Tribunal?
c) Whether respondent-Insurance Company is
absolved of payment of any compensation in view of
alleged breach of policy conditions by respondent
No.1-owner of the offending vehicle?
18. Points Nos.1 to 3 are discussed together.
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19. So far as accident that occurred on 20.03.2013 at
1.30 pm, in between two vehicles, i.e.,. TVS Motorbike
bearing registration No.KA.29 Q-5229 ridden by the
deceased Basanagouda S/o Hanamagouda Goudar @
Gangannavar and a car bearing registration No.KA 28/M-
9592 owned by respondent No.1 is concerned, it is not in
dispute. So also it is also not in dispute that in the said
accident, Basanagouda S/o Hanamagouda Goudar @
Gangannavar died because of accidental injuries. A specific
defence has been taken up by respondent No.1-Insurance
Company that driver of the offending car was driving the Car
by consuming alcohol. Therefore, the Insurance Company is
not liable to pay the compensation as because there is
violation of policy condition. Whereas respondent No.1
owner of the offending vehicle denies this defence. So far as
claimants are concerned, they are the third parties claiming
compensation on account of death of deceased in the said
accident.
20. To prove the fact of the accident, the claimants
have examined PW1- claimant No.1-the wife of the deceased
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who is not an eye witness to the said accident. PW2-
Basavaraj S/o Shashikant Bandergalla is an eyewitness to
said accident and he categorically states that because of
rash and negligent driving of the offending car, the said
accident is taken place. In support of their case, the
claimants rely upon Exs.P1 to P6 i.e., copy of the FIR,
complaint, spot panchanama, IMV report, PM report, and
charge sheet. These documents produced by the claimants
do establish that the said accident has taken place because
of the rash and negligent driving of the offending car by its
driver. There is no effective cross examination directed to
PW2, the eye witness of the said accident. Moreso, the
accident is not denied by the respondents. Therefore, as
rightly held by the learned Tribunal, the said accident has
taken place because of rash and negligent driving of the
offending car by its driver.
21. It is the specific defence of respondent No.2 that
when the said accident took place, driver of the offending car
had consumed alcohol and therefore, there is a contributory
negligence on the part of the driver of the offending car. To
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this effect, the Assistant Manager of respondent No.2, by
name Amaranath has come before the Tribunal in the shape
of RW1 and he is specific in his evidence that the husband
of the petitioner also has contributed in causing the
accident. It is further contended that respondent No.1 had
consumed alcohol at the time of accident. He has been cross
examined by the claimants with regard to consuming of
alcohol by respondent No.1. RW1 has deposed ignorance
about issuance of Doctor Certificate and even he has not
seen the percentage of alcohol consumed by respondent
No.1 at the time of accident. Whereas RW2 specifically states
that, the said accident has taken place not because of his
negligence, but, because of the negligence on the part of the
deceased being the rider of the motorbike. He too has been
cross examined by the claimants. But he deposed ignorance
and denied other suggestions. He denied suggestion that
doctor of the hospital had issued the certificate stating that
he was driving the said vehicle at the time of accident by
consuming alcohol.
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22. Respondent No.2 much relies upon Exs.R2 the
wound certificate of respondent No.1 and Ex.R3-certificate
shows that respondent No.1 being the owner and driver of
the said offending vehicle was found consumed alcohol and
wherein it is noticed by the Doctor about presence of smell
i.e., "smell-present", it is stated in Ex.R3 as under:-
i) Smell-present
ii) Pupils-reactive to light
iii) Speech - slurred
iv) Talk-excessive talk
v) Gait-unable to walk
23. This Ex.R3 is dated 20.03.2012, i.e., the date of
accident, he was examined by the Doctor with a history of
road traffic accident, at 1.50 pm, whereas the accident had
taken place at 1.30 pm, i.e., within 20 minutes of the
accident, this respondent No.1 was examined by the senior
surgeon government hospital, Ilkal. The findings of doctor at
Exs.R2 and R3 are not specifically denied by respondent
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No.1. Percentage of alcohol is not mentioned in this Ex.R3
which should have been the conclusive proof regarding the
consumption of alcohol to come to the conclusion to
ascertain about the contributory negligence. Even the
investigation report, submitted by the police officer show
that the driver of the offending vehicle i.e., respondent No.2
was chargesheeted by the police not only under the
provision of IPC, but also under the provision of Section 185
of M.V.Act, which speaks of driving by a drunken person or
by a person under the influence of drugs. Section 185
speaks that if the person has, in his blood, alcohol exceeding
30 mg. per 100 ml. of blood detected in a test by breathe
analyser, it is offence under the provision of the M.V.Act. As
per the provisions of the M.V. Act, drunken driving is an
offence under the said Act. Every breach of a M.V.Act
provision could not entitle Insurance Company to contend
that its liability is exonerated, the defence open to Insurance
Company are very much provided under the provision of
Section 147 of M.V. Act. Except condition mentioned in 147
of the M.V. Act, the Insurance Company cannot take other
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defences as per the M.V. Act. So far as liability is
concerned, when policy is issued and it is valid on date of
accident, as per the liability admitted or agreed by way of a
contract, at the time of issuing insurance policy, the insurer
cannot avoid his liability to satisfy the award under the M.V.
Act on the ground that the driver of the offending vehicle
drove his vehicle in a drunken condition. On scrupulous
reading of the documents produced by respondent No.2,
except wound certificate and certificate produced at Exs.R2
and R3, there is no material on record to show that the
driver of the offending vehicle, i.e.,. respondent No.1 had, in
his blood, alcohol exceeding 30 mg. per 100 ml. of blood.
Moreso, there is no evidence placed on record to show that
respondent No.1 was incapable of driving any vehicle or he
was having any physical or mental incapacity to drive the
vehicle. So also, there is no evidence to show that
respondent No.1, the driver and owner of the said vehicle
knowingly was suffering from any disease or disability which
contributed in causing the accident. There is no evidence
that he has been convicted for the said offence. No such
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evidence is placed on record by respondent no.2. Therefore,
in view of non fulfilling of the conditions with regard to the
drunken driving by respondent No.2, it will not absolve the
liability of the Insurance Company to satisfy the award
unless and until there is any specific agreement or
conditions in the policy itself. As long as there is no specific
condition in the policy, the liability cannot be absolved.
Therefore, we find that the contention of the counsel for the
Insurance Company is not tenable either in law or facts so
also as for the evidence placed on record. Moreso, the doctor
who has issued Exs.R2 and R3 being author of the
documents is not examined by the Insurance Company to
prove the contents of the same. It is fatal to its case.
Therefore, it is hard to believe the defence of the Insurance
Company that because of the alleged drunken driving by
respondent No.1, the accident has taken place, therefore, it
is absolved from liability. The insurance policy Ex.R1 is very
much silent about this fact. Thus, on cumulative reading of
all this evidence, it shows that the said accident has taken
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place because of rash and negligent driving of a offending
car by respondent no.1.
24. So far as death of the deceased in the said
accident is concerned, it is not in dispute. PW1 is specific
that her husband during his lifetime was doing the granite
business and earning sufficiently, so also he was an
agriculturist by profession and was income tax assessee. To
show that these claimants were the dependents of the
deceased, they have produced the residential certificate as
per Exs.P8 to P10 which are marked without any objection
from the respondents. To show that the deceased was an
agriculturist, the RTC extract are produced by the
claimants, as per Exs.P11 to 16 wherein, the names of the
claimants is appearing having acquired the property from
ancestors. Name of the deceased also appearing as one of
the co-owner/co-sharer of the properties mentioned in these
Exs.P11 to 16 which is not in dispute. As other co-owners
are cultivating the properties, even after demise of
Basanagouda, they may be earning income from these
agricultural lands. Merely because there is death of
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Basanagouda in the said accident, it cannot be stated that
no income being earned by other co-owners/co-sharers of
the properties mentioned in the said RTC extract. The
learned tribunal has taken agricultural income at
Rs.50,000/- based upon the RTC extract being the nature of
the land as well as the crop being grown therein. Even at
Exs.R12 to R16 in column (9) it is stated that no crop is
being grown. It is the case of the claimants that the
deceased was doing the agricultural and to that effect,
Ex.P17 is produced to show that he had done the business
with one Vijayananda Trading Company and the amount of
business was Rs.1,36,580/- and totally it is mentioned as
Rs.1,36,695/-. It is document produced to show that the
said agricultural produce was sold by the deceased. If that
is so, the Tribunal is right in holding that these claimants
may be earning Rs.50,000/- per annum from the
agricultural income. We do not find any factual error with
regard to the income arrived at from the agricultural
operations.
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25. To show that the deceased was doing the granite
business, claimants rely upon Exs.P25 and 26, the
acknowledgements for having submitted income tax returns
for the assessment year 2013-14 and assessment year 2012-
13. In this regard, these two documents are produced for
the assessment year 2012-13, the total income of the
deceased was shown as Rs.3,26,025/- and for the year
2013-14, it is at Rs.2,66,001/-. The average of these two
years income would be Rs.2,96,013/- after deducting the
tax. To this income, Rs.50,000/- is to be added from the
agricultural income as held above, it comes to Rs.3,46,013/.
As per the judgment in National Insurance Co. Ltd., V.
Pranay Sethi and Others reported in 2017 ACJ 2700, to
the total income of the deceased i.e. the annual income, 40%
is to be added towards future prospects. 40% of Rs.
3,46,013/- would be Rs.1,38,405/-. Thus, it would be
Rs.4,84,418/- (Rs.3,46,013/- + Rs.1,38,405/-). As there
were 4 dependent to the deceased, from his total income
1/4th is to be deducted towards his personal expenses as
per the judgment of the Hon'ble Apex Court in Sarla Verma
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NC: 2025:KHC-D:376-DB
and Others vs. Delhi Transport Corporation and
another reported in AIR 2009 SC 3104. So it comes to Rs.
4,84,418 -Rs.1,21,105/-=Rs.3,63,313/-per annum. This
would be the net income of the deceased as per the records
available.
26. As per the documents produced by the claimants,
Ex.P19-transfer certificate, deceased was born on
10.06.1979. That means his age as on the date of the
accident was 33 years. The PM report shows his age as 40
years which is not disputed by either of the parties. It is a
conclusive proof regarding age of the deceased. The author
of Ex.P19 is not examined. Therefore, it is held that
deceased was aged 40 years at the time of accident. As per
the judgment in Sarla Verma Case (supra), the proper
multiplier i.e., applicable is '15'. Therefore, the aforesaid
income of Rs.3,63,313/- is to be multiplied by 15, it comes
to Rs.54,49,695/- Thus, the compensation under `loss of
dependency' would comes to Rs.54,49,695/-.
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27. So far as conventional heads like loss of estate,
funeral expenses and loss of consortium is concerned, as per
the judgment in Pranay Sethi case (supra), there shall be
10% hike for every three years. As the accident has taken
place in the year 2013, increase in the compensation to the
extent of the 30% is to be made. That means the claimants
are held entitled for compensation towards `loss of estate' at
Rs.19,500/-(Rs.15,000 + 30% of Rs.15,000). Further,
towards funeral expenses also, Rs.19,500/- (Rs.15,000 +
30% of Rs.15,000). As there are four dependents, towards
`loss of consortium' at the rate of Rs.40,000/- each with
increase of 30%, the claimants are entitled to Rs.2,08,000/-
(Rs.40,000/-+ 30% of 40,000/- x 4). Thus, the claimants are
entitled for compensation as per the tabulation below:-
Sl. Heads Amount
Rs.
No.
1. Loss of Dependency 54,49,695.00
2. Loss of estate 19,500.00
4. Towards funeral expenses 19,500.00
6. Towards Loss of consortium 2,08,000.00
Total 57,06,695.00
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28. So far as liability is concerned, though the
Tribunal has fastened the liability to the extent of 1/3rd on
the respondent owner as observed in the forgoing paras,
Insurance Company is unable to prove the contributory
negligence on the part of respondent no.1 in causing the
accident. Based upon the Exs.R2 and R3, the Tribunal has
wrongly fastened the liability to the extent of 1/3rd on
respondent no.1 which in our opinion is incorrect. The
Insurance Company admits the policy and has not proved
any violation of the policy conditions. The documents
produced by the claimants with regard to the profession of
the deceased and his status as an income tax assessee
having paid the income tax as per the discussion made
above is not denied by the respondents. When policy is
admitted and the driver of the offending vehicle was holding
the effective driving licence, the primary liability is on
respondent No.1 to pay the compensation, but however
respondent no.2 being the insurance company under law of
indemnity has to deposit the compensation amount.
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NC: 2025:KHC-D:376-DB
29. So far as other findings of the learned Tribunal is
concerned, respondents have not denied properly. Therefore,
the appeal filed by the claimants in MFA
Crob.No.100097/2017 deserves to be allowed in-part.
Appeal filed by respondent No.1 in MFA No.101854/2017 is
to be allowed and appeal filed in MFA No.101162/2017 filed
by respondent No.2-Insurance Company is to be dismissed.
Resultantly, we proceed to pass the following:
ORDER
i. The appeal filed by the claimants in MFA
Crob.No.100097/2017 is allowed in part.
Claimants/Cross-objectors are held entitled for
total compensation of Rs. 57,06,695/- rounded
off to Rs.57,06,700/- as against Rs.33,91,500/-
thereby, enhanced compensation would be
Rs.23,15,200/-.
ii. The impugned judgment and award passed in
MVC No.160/2015 (New No.) and MVC
No.274/2013 (Old No.) dated 30.01.2017 passed
by the Senior Civil Judge and MACT, Kushtagi,
is hereby modified to the above extent.
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NC: 2025:KHC-D:376-DB
iii. The appeal filed by respondent No.1 in MFA
No.101854/2017 is allowed. The order fastening
the liability on respondent no.1 to deposit the
compensation to the extent of 1/3rd of total
compensation is hereby set aside.
iv. The appeal in MFA No.101162/2017 filed by
respondent no.2-Insurance Company is
dismissed.
v. Respondent Nos.1 and 2 are held liable jointly
and severally to pay the compensation. However,
respondent no.2 to deposit the compensation
amount of Rs. 57,06,700/- together with
interest @6%p.a. from the date of petition till its
realisation within six weeks from the date of
receipt of a certified copy of this judgment,
before the Tribunal.
vi. So far as the apportionment and deposit of the
compensation amount and its disbursement so
ordered by the Tribunal, is maintained.
vii. There shall be a modified award accordingly.
viii. Registry to transmit the trial Court records
to the concerned Tribunal along with the copy of
this judgment forthwith.
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NC: 2025:KHC-D:376-DB
ix. The Registry is further directed to transfer the
amount in deposit to the Tribunal forthwith.
Sd/-
(B.M.SHYAM PRASAD)
JUDGE
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
PJ till para No.16/Vmb/ct-an
