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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 30TH DAY OF AUGUST, 2021 PRESENT THE HON’BLE MR. JUSTICE P.B.BAJANTHRI AND THE HON’BLE MR. JUSTICE M.G.S. KAMAL M.F.A.No.100039/2019 (MV) c/w M.F.A.No.104106/2018 (MV)
IN M.F.A.No.100039/2019
BETWEEN:
SMT.LAXMI, W/O. VITHAL KOLEKAR @ HUNDEKAR AGED ABOUT 34 YEARS, OCC:HOUSEHOLD WORK, R/O. KATAGUR, TQ:HUNGUND, DIST:BAGALKOT.
KUMAR AJAY, S/O. VITHAL KOLEKAR @ HUNDEKAR AGED ABOUT 5 YEARS, OCC:NIL,
KUMAR ANKUSH, S/O. VITHAL KOLEKAR @ HUNDEKAR AGED ABOUT 3 YEARS, OCC:NIL,
(APPELLANT Nos.2 and 3 BEING MINORS REPRESENTED BY THEIR MINOR GUARDIAN and NATURAL MOTHER APPELLANT NO.1)
2 4. SMT SIDDAWWA, W/O. YALAGURDAPPA KOLEKAR @ HUNDEKAR, AGED ABOUT 56 YEARS, OCC:HOUSEHOLD WORK, R/O. KATAGUR, TQ:HUNGUND, DIST:BAGALKOT.
SRI YALAGURDAPPA, S/O. SANGAPPA HONNALLI, AGED ABOUT 61 YEARS, OCC:AGRICULTURE, R/O. KATAGUR, TQ:HUNGUND, DIST:BAGALKOT. ... APPELLANTS
(BY SRI.SRINIVAS K.KADAMANI, FOR SRI JAGADISH PATIL, ADVOCATES)
AND:
SRI.MALLAPPA S/O. SANGAPPA HONNALLI, AGED ABOUT 33 YEARS, OCC:CIVIL CONTRACTOR, R/O. C/O.SHANKAR R NAIK, VIDYAMANDIR, CHICALIM, GOA, STATE:GOA.
THE BRANCH MANAGER, NATIONAL INSURANCE CO.LTD., NAVANAGAR, BAGALKOT.
... RESPONDENTS
(BY SRI.G.N.RAICHUR, ADVOCATE FOR R2, NOTICE TO R1 DISPENSED WITH)
THIS APPEAL IS FILED UNDER SECTION 173 (1) OF THE MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED 22.09.2018 PASSED IN MVC No.179/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL-X, HUNGUND, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
3 IN M.F.A.No.104106/2018 BETWEEN
THE BRANCH MANAGER, THE NATIONAL INSURANCE COMPANY LIMITED, NAVANAGAR, BAGALKOT. REPRESENTED BY ADMINISTRATIVE OFFICER. ...APPELLANT
(BY SRI G.N.RAICHUR, ADV.)
AND 1. SMT. LAXMI, W/O. VITHAL KOLEKAR @ HUNDEKAR AGE:34 YEARS, OCC:HOUSEHOLD WORK,
KUMAR AJAY, S/O. VITHAL KOLEKAR @ HUNDEKAR AGE:5 YEARS, OCC:NIL,
KUMAR ANKUSH, S/O. VITHAL KOLEKAR @ HUNDEKAR, AGE:3 YEARS, OCC:NIL,
(RESPONDENTS 2 AND 3 REPRESENTED BY THEIR MINOR GUARDIAN AND NATURAL MOTHER RESPONDENT NO.1)
SMT SIDDAWWA, W/O. YALAGURDAPPA KOLEKAR @ HUNDEKAR, AGE:56 YEARS,OCC: HOUSEHOLD,
SRI YALAGURDAPPA, S/O.HANAMAPPA KOLEKAR @ HUNDEKAR, AGE:61 YEARS, OCC:AGRI,
ALL ARE R/O. KATAGUR, TQ:HUNGUND, DIST:BAGALKOT.
SRI MALAPPA S/O. SANGAPPA HONNALLI, AGED ABOUT 34 YEARS, OCC:CIVIL CONTRACTOR,
4 R/O. C/O. SHANKAR, R NAIK, VIDYAMANDIR, CHICALIM GOA STATE GOA.
... RESPONDENTS
(BY SRI.JAGADISH PATIL, ADV. FOR R1 TO R5, NOTICE TO R-6 DISPENSED WITH)
THIS MFA IS FILED U/S.173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 22.9.2018 PASSED IN MVC NO.179/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL NO.-X HUNGUND, AWARDING COMPENSATION OF Rs.29,87,400/- WITH INTEREST AT 8% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY, M.G.S. KAMAL J., DELIVERED THE FOLLOWING:
JUDGMENT Miscellaneous First Appeal No.104106/2018 filed by the Insurance Company and Miscellaneous First Appeal No.100039/2019 filed by the claimants under Section 173 (1) of the Motor Vehicles Act, (for brevity “the Act”) against the Judgment and Award dated 22.09.2018, passed in MVC No.179/2017, on the file of the Senior Civil Judge and MACT No.X, Hungund (for brevity “the Tribunal”).
The facts leading upto filing of the present appeal briefly stated are that on 12.05.2014 at about 2.30 p.m., the deceased-Vithal being the rider of the motorcycle bearing
5 registration No.GA-09/J-1583 was proceeding on Bombay- Vagus road at Vagus of Goa. At that time, driver of a car bearing registration No.GA-06/4161 came from opposite direction in a rash and negligent manner and dashed against the motorcycle of the deceased causing the accident. Due to the impact, the deceased-Vithal sustained grievous injuries and succumbed to the injuries on the spot itself.
Thereupon the claimants being the wife, children and parents of the deceased filed a claim petition u/s 166 of the Act seeking compensation in a sum of Rs.76,00,000/- together with interest at the rate of 18% p.a. from the date of accident till the date of realization contending inter alia that the deceased was aged about 35 years and earning Rs.60,000/- per month being the owner-cum-driver of a lorry. That the untimely death of the deceased on account of the rash and negligent driving of the offending vehicle by its driver, has caused emotional and financial distress to the claimants. Hence, they sought for compensation.
6 4. Upon service of notice, respondent Nos.1 and 2 appeared before the Tribunal through their counsel and filed their statement of objections. Respondent No.1 admitted the accident. However, contended that the accident had occurred solely on account of rash and negligent riding of the motorcycle by the deceased himself. Further contended that the car in question was insured with respondent No.2- Insurance Company on the date of the accident and the driver of the car was having valid and effective driving license and that in the event of claimants being entitled to compensation, the respondent No.2-Insurance Company be directed to pay the compensation. As such, sought for dismissal of the claim petition as against him.
Respondent No.2-Insurance Company filed statement of objections denying the petition averments, age, occupation, income of the deceased and the manner of the accident. It is alleged that the accident occurred on account of the gross negligence on the part of the deceased and that the driver of the Maruthi Omni car involved in the accident
7 was not having valid and effective driving licence. As such, there was violation of the terms of the insurance policy and it was not liable to pay the compensation. Hence, sought for dismissal of the claim petition.
The Tribunal based on the pleadings of the parties, framed the issues and recorded the evidence; claimant No.1 being the wife examined herself as PW-1 and one Mallappa Chandrappa Halabar was examined as PW-2 and got exhibited 18 documents marked as Exs.P.1 to Ex.P.18. No evidence was led in on behalf of the respondent except marking copy of the insurance policy as Ex.R.1.
The Tribunal on appreciation of the pleadings and material evidence produced by the parties held that the accident in question occurred due to the rash and negligent driving of the offending car by its driver resulting in the death of the deceased Vithal and consequently, held that the claimants are entitled for total compensation of Rs.29,87,400/- and directed respondent No.2 to pay the compensation together with interest @ 7% p.a. Being
8 aggrieved by the aforesaid order, the claimants are before this Court seeking enhancement of compensation while the Insurance Company is seeking reduction of the compensation amount.
We have heard the learned counsels appearing for the claimants as well as the Insurance Company.
Learned counsel for the Insurance Company reiterating the grounds urged in the appeal memo contended that the Tribunal erred in not determining the extent of negligent on the part of the deceased in view of the accident being a head-on collision. He contended in the case of head- on collision, the negligence has to be attributed equally between the drivers of the two vehicles. As such, he submitted that the Tribunal ought to have attributed 50% negligence on the part of the deceased. He further contended that the Tribunal erred in assessing income of the deceased at Rs.14,000/- p.m. without there being any material evidence. He submitted that the age of the deceased being 35 years 6 months, the multiplier applicable
9 was 15 and not 16. Hence, he sought for reduction of the compensation awarded by the Tribunal.
On the other hand, learned counsel for the claimants reiterating the grounds urged in the appeal submitted that the deceased was the owner as well as the driver of the lorry and was also letting the same on hire. Taking the attention of this Court to the documents namely receipts for having received money by letting the vehicle on hire basis and the statement of account of the transport company, submitted that there was sufficient material available on record to evidence that the deceased was having income in excess of Rs.14,000/- p.m. keeping in view the nature of the job being carried on by the deceased. He further submitted that the Tribunal erred in not awarding appropriate compensation under the heads ‘loss of spousal consortium’, ‘loss of parental consortium’ and ‘loss of filial consortium’ to all the claimants and towards loss of estate. He also submitted that the multiplier adopted by the Tribunal was not correct as the deceased had completed 35 years and
10 not 36 years. Hence, he sought to allow the claim petition filed by the claimants.
The points that arise for our consideration in these two appeals are: “i) Whether the Insurance Company has made out a case for reduction of compensation awarded by the Tribunal in the facts and circumstances of the case? ii) Whether the claimants have made out a case for enhancement of compensation?”
We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the records carefully.
The claimants have contended that the deceased was having monthly income of Rs.60,000/- p.m. being the owner-cum-driver of the lorry and they have produced sufficient evidence in the nature of receipts, statement of accounts of transport company and bank pass book which would evidence the income of the deceased at Rs.60,000/- p.m. On the other hand, learned counsel for the Insurance
11 Company submitted that the said evidence is insufficient to determine the income of the deceased even at Rs.14,000/- p.m. as assessed by the Tribunal. Learned counsel for the Insurance Company further submitted that even as per the chart prepared by the Karnataka Legal Services Authority, the monthly income in respect of the victims of the accidents of the year 2015, is only Rs.7,500/- p.m. As such, the income taken by the Tribunal at Rs.14,000/- p.m. was excessive. We have carefully perused the record and gone through the material evidence namely Ex.P.8 to Ex.P.16 produced by the claimants. It is not in dispute that the deceased was the owner-cum-driver of the lorry bearing registration No.GA-09/U-3771 and has produced the RC book in respect of the said vehicle. The said lorry was being driven by the deceased himself and he was also letting the lorry on hire basis and earning his income. The claimants have produced the bank statement and other material evidence. In the facts and circumstances of this case, it is not uncommon to consider that in the case of this nature, a person would earn a minimum of Rs.500/- per day being
12 owner-cum-driver of the lorry which was also used for hiring purpose. This being the minimum expected income from the business, we are satisfied that the income assessed by the Tribunal at Rs.14,000/- is just and proper and in the absence of income tax returns being filed, the same is retained.
The age of the deceased admittedly is 35 years 4 months. The learned counsel for the Insurance Company contended that the age of the deceased has to be considered as 36 years and the multiplier applicable would be 15 and not 16. On the other hand, learned counsel for the claimants contended that since the completed age of the deceased is 35 years that has to be taken into consideration. We see considerable force in the submission made by learned counsel for the claimants. In view of the completed period of age being 35 years, the appropriate multiplier in the instant case is 16 and we hold the same is just and proper. In view of we maintaining income assessed by the Tribunal at Rs.14,000/- p.m. and the Tribunal having granted future
13 prospects, there may not be any change or modification in the assessment of loss of dependency.
However, the Tribunal has granted only Rs.40,000/- towards loss of consortium and Rs.20,000/- each towards love and affection. In the light of the law laid down by the Hon’ble Supreme Court in the case of Magma General Insurance Co. Ltd., vs. Nanu Ram and others reported in 2018 ACJ 2782 which was later clarified in SATINDER KAUR @ SATWINDER KAUR VS. UNITED INDIA INSURANCE CO. LTD., reported in AIR 2020 SC 3076, the claimants being the wife, children and parents are entitled to Rs.40,000/- each under the heads ‘spousal consortium’, ‘parental consortium’ and ‘filial consortium’, which comes to Rs.2,00,000 (40,000X5). Thus, all the claimants would be entitled to compensation of Rs.2,00,000/-.
The contention of the learned counsel for the Insurance Company that there was contributory negligence on the part of the deceased which has not been assessed by
14 the Tribunal, cannot be accepted in the absence of any material evidence.
In view of the above, we pass the following: ORDER (i) M.F.A.No.100039/2019 filed by the claimants is allowed in part, (ii) M.F.A.No.104106/2018 filed by the Insurance Company is dismissed, (iii) The Judgment and Award dated 22.09.2018 passed in MVC No.179/2017, on the file of the Senior Civil Judge and MACT No.X, Hungund, is hereby modified. The claimants are entitled to total compensation of Rs.30,67,400/- instead of Rs.29,87,400/-. The enhanced compensation of Rs.80,000/- shall carry interest @ 6% p.a. from the
15 date of claim petition till the date of deposit.
The amount in deposit shall be transmitted to the Tribunal for disbursement in accordance with law.
Sd/- JUDGE
Sd/- JUDGE
Jm/-