Karnataka High Court
The Divisional Manager, vs Smt. Yallavva W/O. Demappa Talawar, on 22 October, 2020
Author: G.Narendar
Bench: G.Narendar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22ND DAY OF OCTOBER 2020
PRESENT
THE HON'BLE MR. JUSTICE G.NARENDAR
AND
THE HON'BLE MR. JUSTICE M.I.ARUN
M.F.A.No.101795/2017 (MV)
BETWEEN:
THE DIVISIONAL MANAGER,
THE NEW INDIA ASSURANCE COMPANY LTD.
MADALAGI BUILDING CLUB ROAD,
BELGAUM DIST: BELGAUM,
COVER NOTE NO.986487,
POLICY VALID FROM 13-10-2012 TO 12-10-2013,
INSURER OF TRACTOR NO.MH-44/D-2482,
REPRESENTED BY ITS DULY CONSTITUTED ATTORNEY,
(AS THE REGIONAL MANAGER IS THE POWER OF
ATTORNEY HOLDER AND DULY AUTHORIZED TO
SIGN THE VAKALATH. HENCE DESCRIBED AS
DULY CONSTITUTED ATTORNEY IN THE APPEAL MEMO)
... APPELLANT
(BY SRI.G.N.RAICHUR, ADV.)
AND:
1. SMT. YALLAVVA,
W/O DEMAPPA TALAWAR,
AGE 51 YEARS, OCC: COOLIE
R/O TADASALUR TQ:
SAUNDATTI DIST: BELAGAVI.
2. SMT. KASTURI
W/O IRAPPA KURIYAR,
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AGE: 27 YEARS, OCC: COOLIE
R/O TADASALUR, TQ: SAUDATTI DIST: BELGAVI.
3. BIBISHAN,
S/O ARJUN RUDRE,
AGE: MAJOR, OCC: BUSINESS,
R/O PAHADI PARAGAON TAL:
DHARUR DIST: BEED,
STATE: MAHARASHTRA. ...RESPONDENTS
(BY SRI.H.M.DHARIGOND, ADV. FOR R1;
NOTICE TO R2 - SERVED;
NOTICE TO R3 - HELD SUFFICIENT)
THIS APPEAL IS FILED UNDER SECTION 173 (1) OF MOTOR
VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD
DATED 16.03.2017 PASSED IN MVC No.236/2016 ON THE FILE
OF THE SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL, SAUNDATTI, AWARDING
COMPENSATION OF RS.30,35,144/- WITH INTEREST AT 9% P.A.
FROM THE DATE OF PETITION TILL ITS DEPOSIT.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
M.I.ARUN J., DELIVERED THE FOLLOWING:
JUDGMENT
1. Heard the learned counsel for the appellants and the learned counsel for respondents.
2. Though the appeal is listed for admission, with the consent of the learned counsel for the parties, it is taken up for disposal.
3. Aggrieved by the judgment and award passed in MVC No.236/2016 by the Senior Civil Judge and -3- Addl.M.A.C.T., Saundatti, at Saundatti, (for short "the tribunal") dated 16.03.2017, the Insurance Company therein has preferred this appeal.
4. For the sake of convenience, the parties would be referred to as per their ranking before the Tribunal.
5. Brief facts of the case are that on 29.10.2012 at about 1.15 a.m., deceased was riding a motor cycle bearing No.KA-24-L-2301. When he came near Bailhongal, on Sampagaon road, in the middle of the road, a Tractor and Trailer bearing Reg.No.MH-44/D-2482 and MH-09- K-9397 were parked in a dangerous manner loaded with Sugarcane crop. The same was parked without light or signal cautioning the approaching vehicles. As it was night, the deceased dashed against the same, which resulted in he suffering fatal injuries and he ultimately succumbed to the same.
6. The petitioners are the mother and sister of the deceased. The deceased was a bachelor. Respondent No.1 is the owner of the Tractor and Trailer. -4- Respondent No.2 is the insurance company with which the Tractor and Trailer have been insured.
7. On the ground that the accident occurred due to negligent parking of Tractor and Trailer in the middle of the road, the petitioners preferred MVC No.236/2016 against the respondents.
8. After service of summons, respondent No.1 did not appear before the Tribunal. Respondent No.2 appeared through its counsel and filed its written statement denying the liability.
9. After completion of the pleadings, the Tribunal framed issues and recorded the evidence. The petitioners examined two witnesses and got marked documents at Exs.P.1 to P.10. Respondent No.2 examined one witness and got marked one document as Ex.R.1.
10. The Tribunal based on the evidence came to the conclusion that the accident was caused due to rash and negligent parking of the Trailer bearing Reg.No.MH-44/D-2482 and MH-09-K-9397 and as the -5- Tractor and Trailer were duly insured with respondent No.2 - Insurance Company, has awarded a compensation of Rs.30,35,144/- in favour of the petitioners to be paid by respondent No.2. Aggrieved by the judgment of the Tribunal, the respondent No.2 - insurance company is in appeal.
11. The grounds of appeal urged by the appellant -
Insurance Company are that the deceased went and dashed against the parked Tractor and Trailer and thereby, he is guilty of contributory negligence. It is further contended that the Tribunal took income of the deceased at Rs.20,000/- per month when no proof of income was produced and same is on the higher side. It is further stated that the deceased was a bachelor and 50% of the income arrived at ought to have been deducted towards personal expenses but the Tribunal has deducted it at 1/3rd of the income.
12. Learned counsel for the petitioner No.1 has appeared and contends that the order of the Tribunal is justified and has sought for dismissal of the appeal. -6-
13. It is noticed that the Tribunal has analyzed all the documents including Complaint, FIR, Panchanama, Hand Sketch map and the inquest panchanama placed before it and has duly considered evidence let in. It has correctly noticed that the accident happened during night and the parking of the Tractor and Trailer without any indication in the middle of the road was an act of negligence and the sketch also indicates that the place of accident has tyre marks of the motor cycle which indicate that the deceased has applied brakes and tried to avoid the accident but could not. Thus, it has to be held that the accident happened due to the negligent parking of the Tractor and Trailer in the middle of the road without giving any indication.
14. However, it is seen that the Tribunal has taken the income of the deceased at Rs.20,000/- per month even when there was no documentary proof adduced as to his income. Under the said circumstances, the Tribunal ought to have taken the income as fixed by the Karnataka State Legal Services Authority as the income -7- of the deceased. The accident happened in the year 2012. The notional income fixed for the said year is Rs.6,500/- per month. The deceased was aged about 25 years at the time of the accident and was a Bachelor and the multiplier applicable would be "18". As per the law laid down in National Insurance Company vs. Pranay Sethi and others, reported in AIR 2017 SC 5157, 40% of the total income has to be added to his future prospects. Hence, the total income of the deceased comes to Rs.9,100/- (Rs.6,500 x 40%). Out of the said total income, 50% of the income has to be deducted towards personal expenses. Thus, total income of the deceased comes to Rs.4,550/-. Hence, the compensation awarded towards 'Loss of dependency' comes to Rs.9,82,800/- (4,550 x 12 x
18).
15. As per the law laid down in Magma General Insurance Company Limited vs. Nanu Ram reported in 2018 SCC 1546, the petitioners are mother and sister of the deceased and both of them are entitled to -8- 40,000/- each towards loss of love and affection. Further they are entitled for a sum of Rs.30,000/- towards funeral expenses. Thus, in all petitioners are entitled to a compensation of Rs.10,92,800/-.
16. The judgment of the Tribunal is accordingly modified.
The apportionment of the compensation in terms of percentage is as determined by the Tribunal. Any amount deposited by the Insurance Company herein shall be transmitted to the Tribunal for disbursement. Office to draw the decree accordingly. No order as to costs.
Sd/-
JUDGE Sd/-
JUDGE MH/-