Karnataka High Court
Balu S/O. Channappa Chougule vs Anil Pundalik Patil on 12 February, 2020
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 12TH DAY OF FEBRUARY 2020
BEFORE
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
M.F.A. CROB No.807 OF 2012
C/W MFA NO.21459 OF 2011 (MV)
IN M.F.A. CROB No.807 OF 2012
BETWEEN
1. BALU S/O. CHANNAPPA CHOUGULE
AGED ABOUT 53 YEARS, OCC: AGRICULTURE
2. SHANTA W/O. BALU CHOUGULE,
AGED ABOUT 48 YEARS, OCC: HOUSEHOLD,
3. SUJATA W/O. GOPAL CHOUGULE
AGED ABOUT 27 YEARS, OCC: HOUSEHOLD WORK,
4. KUMARI. SEJAL D/O. GOPAL CHOUGULE
AGED ABOUT 07 YEARS, MINOR,
5. MASTER. GANAPATI S/O. GOPAL CHOUGULE
AGED ABOUT 05 YEARS,
APPELLANT NOS.4 AND 5 ARE MINORS,
REPTD. BY THEIR MOTHER
SUJATA W/O. GOPAL CHOUGULE
AGE: 27 YEARS, OCC: HOUSEHOLD,
ALL ARE R/O. SHIVAJI CHOWK, ALATAGE,
TQ & DIST: BELGAUM.
... CROSS OBJECTORS
(BY SRI.SANJAY S KATAGERI, ADV.)
2
AND
1. ANIL PUNDALIK PATIL
AGED ABOUT 40 YEARS, OCC: BUSINESS,
R/O. NARAYAN GALLI, KANGRALI(KH)
TQ & DIST: BELGAUM.
2. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE,
MARUTI GALLI, BELGAUM.
... RESPONDENTS
(BY SRI.C.V.ANGADI FOR R2)
(R1-NOTICE DISPENSED WITH)
THIS MFA CROB IN MFA NO.21459/2011 FILED UNDER
ORDER 41 RULE 22 OF CPC, R/W SECTION 173(1) OF MV ACT,
1988 AGIANST THE JUDGMENT AND AWARD DATED 01.12.2010
PASSED IN MVC NO.2534/2009 ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACK COURT-III AND MEMBER,
ADDL. MACT, BELGAUM, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
IN MFA NO.21459 OF 2011
BETWEEN
THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE, "SITA SMRUTI"
II FLOOR, MARUTI GALLI, BELGAUM.
... APPELLANT
(BY SRI.C V ANGADI, ADV.)
AND
1. MR. BALU S/O CHANNAPPA CHOUGULE
AGE:NOW ABOUT 52 YEARS, OCC:NIL,
R/O SHIVAJI CHOWK, ALATAGE,
TQ & DIST:BELGAUM.
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2. MRS. SHANTA W/O BALU CHOUGULE
AGE:NOW ABOUT 47 YEARS, OCC:HOUSEHOLD,
R/O SHIVAJI CHOWK, ALATAGE,
TQ & DIST:BELGAUM.
3. MRS. SUJATA W/O GOPAL CHOUGULE
AGE:NOW ABOUT 26 YEARS, OCC:HOUSEHOLD,
R/O SHIVAJI CHOWK, ALATAGE,
TQ & DIST:BELGAUM.
4. KU. SEJAL D/O GOPAL CHOUGULE
AGE: NOW ABOUT 6 YEARS, OCC:NIL,
R/O SHIVAJI CHOWK, ALATAGE,
TQ & DIST:BELGAUM.
5. MASTER GANAPATI S/O GOPAL CHOUGULE
AGE:NOW ABOUT 4 YEARS, OCC:NIL,
R/O SHIVAJI CHOWK, ALATAGE,
TQ & DIST:BELGAUM.
(PETITIONER NO.4 & 5 SINCE MINOR REPTD.
BY NATURAL GUARDIAN MOTHER PETITIONER NO.-3)
6. MR. ANIL S/O PUNDALIK PATIL
AGE: MAJOR, OCC: BUSINESS,
R/O NARAYAN GALLI, KANGRALI (K.H),
TQ & DIST:BELGAUM.
(R.C.OWNER OF THE AUTO RECKSHAW
BEARING NO.KA-22/4256)
... RESPONDENTS
(BY SRI.SANJAY S KATAGERI FOR R1-R3)
(R4 & R5 MINORS REPTD. BY R3) (R6-SERVED)
THIS MFA IS FILED U/SEC.173(1) OF MV ACT 1988,
AGAINST THE JUDGMENT AND AWARD DTD:01.12.2010
PASSED IN MVC.NO.2534/2009 ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACK COURT-III & ADDITIONAL
M.A.C.T. BELGAUM AT BELGAUM, AWARDING THE
COMPENSATION OF RS.11,04,750/- WITH INTEREST AT THE
RATE OF 9% P.A., FROM THE DATE OF PETITION TILL ITS
REALISATION.
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APPEAL AND MFA CROB COMING ON FOR ADMISSION,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Insurance company is challenging the quantum awarded by the Fast Track Court-III and Additional Motor Accident Claims Tribunal, Belgaum, in MVC No.2534 of 2009 whereas the claimant has filed cross objection seeking enhancement of compensation.
2. For the purpose of convenience, the parties are referred to as per their ranking before the Tribunal.
3. Brief facts of the case are that on 08.10.2009 at 7.30 hours one Gopal Chougule was returning on bicycle from Belagavi to his village Alataga. The said Gopal was coming from left side of the road when the bicycle came near Mahadev Road, Kangrali (K.H.) near 1st cross, Ramnagar, at that time, one auto rickshaw bearing registration No.KA- 22/4256 driven by its driver in a rash and negligent 5 manner coming from behind and dashed to the bicycle of said Gopal. As a result, Gopal sustained fatal injuries. Immediately, he was shifted to District Hospital, Belgavi and he succumbed to the injuries on 10.10.2009. The claimants spent Rs.60,000/- for medical cremation and R.s15,000/- for funeral and religious functions. The accident took place due to the negligent act of the driver of auto rickshaw. The deceased Gopal was hale and healthy and he was a Turner in Prakash Home Industries Udyambag, Belgavi. He was earning Rs.5,000/- p.m. and he was the only earning member of his family. Therefore, the claimants filed a claim petition seeking compensation.
4. In pursuance to the notice, first respondent-owner of the vehicle appeared and filed statement of objections admitting that the vehicle was insured with respondent No.2 as on the date of the accident and further contended that the liability of it 6 being indemnified by respondent No.2. Therefore contended that he is not liable to pay the compensation to the petitioner and denied the other allegation made in the claim petition.
Respondent No.2 insurance company appeared through counsel and filed written statement denying the income and age of the deceased and contended that the accident had not occurred due to rash and negligent driving by the driver of the auto. Hence, prayed to dismiss the petition.
5. The Tribunal on the basis of the above pleadings, framed the following issues:
1. Whether the petitioners prove that Gopal Balu Chougule died in a motor vehicle accident that occurred on 08.10.2009 at 7.30 pm near Ramnagar, I cross, Mahadev road at Kangralli, Kh, within the limits f traffic north P.S. due to rash and negligent driving of the rickshaw No.KA-2/4256 by its driver when the petition was returning to his house on his bicycle?7
2. Whether the petitioner is entitled for compensation? If so, to what sum and from whom?
3. What order or award?
6. The claimant in order to prove his case examined himself as PW-1 and also got examined 3 witnesses as PWs.2 to 4 and got marked documents Exs.P-1 to P-21. The respondents have not lead any evidence but with consent two documents were marked as Exs.R-1 and R-2.
7. The Tribunal, after considering the pleadings, oral and documentary evidence on record, allowed the petition in part awarding compensation of Rs.11,04,750/- with interest at 9% per annum from the date of petition till its realization and fastened the liability jointly and severally on the respondents.
8. The insurance company being aggrieved by the judgment and award passed by the Tribunal filed MFA 21459 of 2011 on the ground that the 8 compensation awarded by the Tribunal to the claimants in on the higher side and further the Tribunal has committed an error in adding 50% of the actual income towards future prospects and further contended that Tribunal has committed an error in awarding 9% interest towards future interest. Hence, prayed to allow the appeal.
9. Per contra, learned counsel for the respondents submits that the accident is of the year 2009. As per the Chart of the Legal Services Authority, income for the accident of the year 2005 is fixed at Rs.5,000/- per month whereby the Tribunal has taken the income of the deceased as Rs.4,000/- per month resulting in awarding compensation on the lower side and sought for enhancement of compensation.
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10. Heard the learned counsel for the insurance company as well as the counsel for the claimants and perused the records.
11. The claimant examined PW-3-who has deposed that the deceased was working in the said firm. He has deposed that the deceased was working in his firm and also produced Ex.P-15-salary certificate to show that the deceased was working in his firm and was drawing salary of Rs.4,900/- per month including PF etc. The Tribunal has taken the income of the deceased as Rs.4,000/- and deducted 1/4th and added 50% of the income to the total salary of the deceased and awarded a sum of Rs.9,92,250/- under the head loss of dependency which is on the lower side. The accident is of the year 2005 and as per the char of the Legal Services Authority, income of the deceased has to be taken at Rs.5,000/- per month and 40% of the monthly salary has to be added towards future 10 prospects. The Tribunal has not committed any error in adding future prospects but in fact this Court feels that addition of future prospects i.e. at 50% is considered on the higher side and it would be just and proper to add 40% towards future prospects as per the decision of the Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and others, AIR 2017 Supr eme Court 5157, . Taking the income of the deceased as Rs.5,000/- + 40% it comes to Rs.7,000/- and by deducting 1/4th of Rs.7,000/- and multiplying by 12 and by adopting multiplier of 15, it would come to Rs.9,45,000/-. Thus, the claimants would be entitled to Rs.9,45,000/- under the head loss of dependency. In addition, as per the judgment of the Hon'ble Apex Court in Pranay Sethi's case, the claimants are entitled for a sum of Rs.70,000/- under conventional heads. 11
12. Thus, the claimants are entitled to re- assessed compensation of Rs.10,15,000/- as against Rs.11,04,750/- awarded by the Tribunal. Accordingly, the appeal filed by the insurance company is allowed in part.
13. Since claimants are entitled to re-assessed compensation Rs.10,15,000/- as against Rs.11,04,750/- awarded by the Tribunal, this Court feels that the claimants have not made out any ground for enhancement of compensation. Thus, the compensation is reduced to Rs.10,15,000/- from Rs.11,04,750/- and the claimants are entitled to the same. Accordingly, the following order is passed:
14. The appeal filed by the insurance company is allowed in part. The impugned judgment and award is modified. The compensation awarded by the Tribunal is reduced to Rs.10,15,000/- from Rs.11,04,750/-. The claimants are entitled to 12 compensation of Rs.10,15,000/- with interest at 9% per annum from the date of petition till realization.
In view of the above circumstances, cross objection filed by the claimants is dismissed.
In view of disposal of the appeal, I.A.1 of 2019 does not survive for consideration and accordingly, the same stands disposed off.
Office is directed to transmit the amount in deposit, if any, to the Tribunal concerned forthwith.
Sd/-
JUDGE Kmv