Karnataka High Court
Vijay Ishwar Jadhav vs Ulrich Belchior Fernandes on 7 March, 2018
Author: Krishna S Dixit
Bench: Krishna S.Dixit
1 MFA No.100090/2014
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MFA No.25107/2013
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 07 th
DAY OF MARCH, 2018
R
BEFORE
THE HON'BLE MR.JUSTICE KRISHNA S.DIXIT
M.F.A. No.100090 of 2014 [MV]
C/w.
M.F.A. No.25107 of 2013 [MV]
IN MFA No.100090/2014:
BETWEEN:
1. VIJAY ISHWAR JADHAV
AGE: 49 YEARS, OCC: PAINTING
2. PREETAM VIJAY JADHAV
AGE: 23 YEARS, OCC: STUDENT,
3. REENA @ NEELAM W/O JOHN NAJARET,
AGE: 27 YEARS, OCC: HOUSEHOLD,
4. SONAM MARUTI CHOUGLE
AGE: 21 YEARS, OCC: HOUSEHOLD,
ALL ARE R/O: MAJODA,
TQ: MADAGAON, STATE: GOA
... APPELLANTS
(By SMT.ARACHANA MAGADUM ADV.)
2 MFA No.100090/2014
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MFA No.25107/2013
AND:
1. ULRICH BELCHIOR FERNANDES
AGE: MAJOR, OCC: BUSINESS,
MAPUJA, BARDEZ, GOA 403507
R/O: 88/10, KHORLIM,
MAPUSA, BARDEZ,
GOA-403507
(OWNER OF CAR BEARING
REGISTRATION NO.GA-01/R-6179)
2. THE DIVISIONAL MANAGER
THE BAJAJ ALLIANZ GENERAL
INSURANCE CO.LTD.,
CLUB ROAD-BELGAUM.
(INSURER OF CAR NO.GA-01/R-6179
POLICY NO.M.B.1100016882
VALID FROM 17/05/2011 TO 16/05/2012)
... RESPONDENTS
(By R1-SERVED; SRI.R.R.MANE, ADV. FOR R2)
THIS MFA IS FILED U/S 173(1) OF MV ACT 1988,
AGAINST THE JUDGMENT AND AWARD DATED:24-07-2103
PASSED IN MVC NO.2060/2011 ON THE FILE OF PRESIDING
OFFICER FAST TRACK COURT-II AND MEMBER, MACT,
BELGAUM, PARTLY ALLOWING CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
3 MFA No.100090/2014
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MFA No.25107/2013
IN MFA No.25107/2013:
BETWEEN:
THE DIVISIONAL MANAGER
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
CLUB ROAD, BELGAUM
R/BY ITS AUTHORISED SIGNATORY
4TH FLOOR, KAULBURGI MANSION
LAMINGTON ROAD, HUBLI
... APPELANT
(By Sri. S K KAYAKAMATH ADV.)
AND:
1. VIJAY ISHWAR JADHAV
AGE: 49 YEARS, OCC: PAINTING
R/O. MAJODA VILLAGE
TQ: MADGAON, DIST: GOA
2. PREETAM VIJAY JADHAV
AGE: 23 YEARS, OCC: STUDENT,
R/O. MAJODA VILLAGE TQ: MADGAON,
DIST: GOA
3. REENA @ NEELAM W/O. JOHN NAJARET
AGE: 27 YEARS,
OCC: HOUSEHOLD WORK
R/O. MAJODA VILLAGE
TQ: MADGAON, DIST: GOA
4. SONAM MARUTI CHOUGLE
AGE: 21 YEARS,
OCC: HOUSEHOLD WORK
R/O. MAJODA VILLAGE
TQ: MADGAON, DIST: GOA
4 MFA No.100090/2014
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MFA No.25107/2013
5. ULRICH BELCHIOR FERNANDES
AGE: MAJOR, OCC: BUSINESS
R/O. 88/10, KHORLIM,
MAPUSA BARDEZ, GOA
... RESPONDENTS
(By Smt. ARCHANA MAGADUM ADV. FOR R1-R4 &
R5 SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT 1988,
AGAINST THE JUDGMENT AND AWARD DATED:24-07-2103
PASSED IN MVC NO.2060/2011 ON THE FILE OF PRESIDING
OFFICER FAST TRACK COURT-II AND MEMBER, MACT,
BELGAUM, AWARDING THE COMPENSATION OF
Rs.3,75,900/- WITH INTEREST AT THE RATE OF 7% P.A.,
FROM THE DATE OF PETITION TILL REALISATION.
These appeals coming on for Admission, this day the
Court delivered the following:-
JUDGMENT
In a motor vehicular accident that happened on 02.07.2011 involving a car bearing registration No.GA-01/R-6179, one Smt.Rekha who was fatally injured, succumbed to the injury because of rash and negligent driving.
2. The claim petition filed under Section 163A of the Motor Vehicles Act, 1988 (for short 'the Act') was resisted by the respondent-Insurance 5 MFA No.100090/2014 C/w.
MFA No.25107/2013Company by filing Written Statement. To prove their case, the claimants examined two witnesses namely claimant No.2 as PW-1 and 11 documents were marked as Exs.P-1 to P-11. The doctor who had treated the deceased after the accident till she breathed her last, was also examined as PW-2 in whose evidence the medical documents came to be marked. On the side of the Insurance Company, one Sri.Pavan Chougale, Manager (Legal) was examined as RW-1 and three documents were got marked as Exs.R-1 to R3.
3. The MACT after considering the pleadings of the parties and evidentiary material on record entered a judgment and award awarding a compensation of Rs.3,75,900/-, the particulars of which are put in a Tabular Form in the judgment itself.
6 MFA No.100090/2014
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MFA No.25107/2013Sl.
Heads Amount
No.
1 Loss of dependency Rs.3,60,000/-
2 Loss of Consortium Rs.5,000/-
3 Transportation of dead Rs.2,000/-
body and funeral
expenses
4 Medical expenses Rs.6,400/-
5 Loss of estate Rs.2,500/-
TOTAL: Rs.3,75,900/-
4. In working out the compensation, the age of the deceased was taken as 40 years going by the post-mortem report that was marked as Exs.P-5 and her occupation was taken as Cooking; her notional monthly income was taken to be Rs.3,000/- with the applicable multiplier of '15' under II Schedule to Section 163A of the Act.
5. The learned counsel for the appellant/claimants contends that even an ordinary beggar would earn not less than Rs.5,000/- per month; she brings to my notice the Notional Income 7 MFA No.100090/2014 C/w.
MFA No.25107/2013Chart ordinarily operated by the Lok Adalat in similar cases to show that the minimum monthly income ought to have been taken at Rs.3,500/- to which the learned counsel for the Insurance Company stoutly opposes saying that the Tribunal itself is an expert body since day in & day out it deals with such matters and therefore, this adjudgement of notional income should not ordinarily be interfered with in the absence of abundant material warranting indulgence.
6. I have perused the lower court record. The claimants have stated that the income of the deceased by the purported occupation of cooking was Rs.40,000/- per annum and therefore, the learned counsel for the respondent Insurance Company vehemently submits that in any event, the claimants are not justified in stating that the income of the deceased ought to have been taken at Rs.3,500/- at all, since that transcends the ceiling 8 MFA No.100090/2014 C/w.
MFA No.25107/2013limit prescribed by the Parliament in II Schedule to Section 163A of the Act.
7. Although there is some material in support of the contention of the claimants, the statutory ceiling also has to be kept in mind, regard being had to the material on record and also the Notional Income Chart ordinarily operated by the Lok Adalat, I refix the notional monthly income of the deceased to be Rs.3,300/-.
8. Although learned counsel for the claimants vehemently contended that Rs.2,000/- awarded for Funeral Expenses, Rs.2,500/- awarded for Loss of Estate and Rs.6,400/- awarded for Medical Expenses are more like primitive values, this Court is helpless regard being had to the statutory ceiling limits, as rightly pointed out by the learned counsel for the Insurance Company. Therefore, this contention is rejected.
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9. The compensation under the head Loss of Future Prospects has to be reworked out taking the notional monthly income of the deceased at Rs.3,300/-, other factors remaining the same and the same works out to be as under:
Rs.3,300/- ÷ 3 = Rs.1,100/-
Rs.3,300-1100 = Rs.2,200/-
Rs.2,200/- x 12 x 15 = Rs.3,96,000/-
10. Learned counsel for the appellant Insurance Company makes a meticulous submission as to what could be the interest awardable on the compensation payable under Section 163A of the Act contending that the award of interest at the rate of 7% by the MACT is juridically defective. He loudly reads the provisions of Section 149 (1) of the Act to buttress his point that in no circumstance, the rate of interest can transcend 6% per annum. He stresses on the expression "any enactment relating to interest on judgments" employed in this Section to mean Section 34 of the Civil 10 MFA No.100090/2014 C/w.
MFA No.25107/2013Procedure code, 1908 inasmuch as it speaks of interest on judgment debts. The said Section reads as under:
" 34. Interest-- (1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate not exceeding six per cent, per annum as the Court deems reasonable on such principal sum from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit : ........"
(Other parts of this Section ar e not relevant).
11. The learned counsel for the appellant Insurance Company contends that the rate of interest awarded by the MACT in this case is 7% per annum and the same is not admissible in view of the 11 MFA No.100090/2014 C/w.
MFA No.25107/2013language of Section 149(1) of the Act which reads a sunder:
" 149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks. - (1) if, after a certificate of insurance has been issued under sub- section (3) of section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as is required to be covered by a policy under clause (b) of sub-section (1) of section 147 (being a liability covered by the terms of the policy) or under the provisions of section 163-A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the 12 MFA No.100090/2014 C/w.MFA No.25107/2013
judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments."
12. He brings to my notice the expression "any enactment relating to interest on judgments" occurring in this Section which takes us to Section 34 of the Code of Civil Procedure, 1908, since the Interest Act is not applicable by virtue of the definition of DEBT given under Section 2(c) which excludes the "judgment debt". Section 2(c) of the Interest Act, 1978 reads as under:
" 2. Definitions.-
In this Act, unless the context otherwise requires:-
(a) x x x xxx 13 MFA No.100090/2014 C/w.MFA No.25107/2013
(c) "debt" means any liability for an ascertained sum of money and includes a debt payable in kind, but does not include a judgment debt;"
13. The learned counsel for the respondents in reply submits that under the provisions of Section 169 of M.V.Act, 1988, the procedure and powers of Claims Tribunal are spoken of and that going by the text of the Section, there is little scope for invoking the provisions of CPC stricto sensu, in as much as the Tribunal follows the summary procedure under Sub-Section 1 and that the Tribunal shall have all the powers of a Civil Courts for the purpose of taking evidence on oath, enforcing the attendance of witnesses and of compelling the discovery and protection of documents & material objects. She further points out for any other purpose, the rules could be made by the competent authority namely the State Government or Central Government. The sum and substance of the learned counsel for the Claimants is that the application of all other provisions of CPC are excluded by implication and therefore the Counsel for the 14 MFA No.100090/2014 C/w.
MFA No.25107/2013Insurance Company is not justified in navigating to the provisions of Section 34 of CPC, 1908 which regulates the award of interest in suits.
14. I have carefully considered the rival contentions of the counsel for the Insurance company for the claimants. It is true that the provisions of Civil Procedure Code are not proprio vigor applicable to the procedure and powers of claims Tribunal, except to the extent mentioned in Sub- Section 2 of Section 169 of the Act. Sub-section 1 & 2 of Section 169 read as under:
" 169. Proce dure and powers of Claims Tribunals-
(1) In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary proce dure as it thinks fit.
(2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents 15 MFA No.100090/2014 C/w.MFA No.25107/2013
and material objections and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974)"
15. However, the provisions of Section 149(1) of the Act to the extent they speak of interest payable on the compensation amount is in the nature of an exception to the general law enacted in 169 of the M.V.Act and therefore, the provisions of Section 34 of CPC to that extent become invocable on the general principles of construction of statutes namely the special law overrides the general law. Therefore, in the absence of any other law relating to interest on Judgments, the MACT has to follow the provisions of Section 34 of CPC, 1908. Thus, in the given circumstances of this case, interest at the rate of more than 6% could not have been awarded.
16. However, at this stage, the learned counsel for the claimants points out from the Appeal Memorandum 16 MFA No.100090/2014 C/w.MFA No.25107/2013
itself that no foundation is laid for such argument inasmuch as no ground is pleaded in the Memorandum of Appeal. There is force in the contention of the learned counsel for the claimants and therefore, I decline to consider this legal contention, as to rate of interest.
17. Therefore this Court takes the altered values for the purpose of recalculation of the compensation under the table below:
Sl.
Heads Amount
No.
1 Loss of dependency Rs.3,96,000/-
Rs.3,300/- ÷ 3 = 1,100
Rs.3,300- 1100 = 2,200
[Rs.2,200 x 12 x 15 ]
2 Loss of Consortium Rs.5,000/-
3 Transportation of dead body Rs.2,000/-
and funeral expenses
4 Medical expenses Rs.6,400/-
5 Loss of estate Rs.2,500/-
TOTAL: Rs.4,11,900/-
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MFA No.25107/2013
18. For the reasons stated above, I make the following order:
ORDER
(a) The appeal is dismissed with costs;
(b) The impugned judgment and award of the MACT, Belagavi, is modified by enhancing the compensation awarded at Rs.3,75,900/- to Rs.4,11,900/- ( Rupees Four Lakhs Eleven Thousand and Nine Hundred only);
(c) All other terms and conditions are same except the rate of interest which is being treated in the Insurance Company appeal MFA No.25107/2013;
(d) The amount in deposit in the Registry of this Court shall be transmitted to the jurisdictional MACT.
Sd/-
JUDGE RK/-
18 MFA No.100090/2014
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MFA No.25107/2013KSDJ MFA No.100090/2014 26.03.2018 C/w. MFA No.25107/2013 ORDER ON BEING SPOKEN TO The learned counsel for the Appellant points out the error committed by this Court at para (a) under the operative portion of the "Order" which reads "The appeal is dismissed with costs" and therefore it should be "the Appeal of the Insurance Company is dismissed and the Appeal of the claimants is allowed in part with costs"
The counsel for the Appellant points out from para 16 of the Judgment of this Court that the interest part in the impugned Judgment and award should have been modified intact whereas the operative portion of this Judgment does not do it at para 18(c). She points out para
(c) in the operative portion under the heading "Order" at para 18 of the Judgment which reads:19 MFA No.100090/2014
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"(c) All other terms and conditions are same except the rate of interest which is being treated in the Insurance Company appeal MFA No.25107/2013;"
There is force in the contention of the learned counsel for the Appellant and therefore the said para (c) accordingly stands modified as under:
"(c) All other terms and conditions are same except the rate of interest which is re-
fixed at 6% in the Insurance Company appeal MFA No.25107/2013".
Sd/-
JUDGE *Svh/-