Karnataka High Court
Smt.Kalavati W/O Malakahappa vs Shri Maruti S/O Shankar Lamani And Anr on 10 June, 2021
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF JUNE, 2021
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
MFA No.200025/2017 (MV)
Between:
1. Smt. Kalavati W/o Malakajappa Siddapur,
Aged about 53 yeas, Occ: Household work,
2. Shri. Mahantesh S/o Malakajappa Siddapur,
Aged about 31 years, Occ: Business,
Appellants are both R/o Tadalagi,
Tq. B. Bagewadi, Dist: Vijayapur,
Now residing at Vijayapur.
... Appellants
(By Sri. S.S.Mamadapur, Advocate)
And:
1. Shri. Maruti S/o Shankar Lamani,
Aged about 41 years, Occ: Business,
R/o B.Bagewadi,
Dist. Vijayapur-586 101.
2. The Manager Legal,
ICICI Lombard General Insurance Company Ltd.,
Kothari Complex, Court Road,
Gulbarga-585 103
... Respondents
(By Sri.Subhash Mallapur, Advocate for R2;
Notice to R1 dispensed with v/o dated 30.11.2017)
2
This Miscellaneous First Appeal is filed under Section
173(1) of the MV Act praying to enhance the
compensation amount payable to the appellant by suitably
modifying the impugned judgment and award dated
29.09.2016 passed by the learned Member MACT-VII,
Vijayapur in MVC No.1279/2015.
This appeal coming on for admission this day, the
Court delivered the following:-
JUDGMENT
The appellants / claimants being aggrieved by the judgment and award dated 29.09.2016 passed by the learned Member MACT-VII, Vijayapur in MVC No.1279/2015 has filed this appeal.
2. Parties will be referred to as per their ranking before the Claims Tribunal.
3. Brief facts leading rise to filing of this appeal is that on 09.05.2014 the deceased Malakajappa Sidaramappa Siddapur was proceeding 3 on his TVS XL Motorcycle No.KA-29/Y-3655, from Muttagi towards B.Bagewadi when he came near Mukkanna Patil's land at that time one Tata Ace vehicle No.KA-29/Y-3655 came from opposite direction, the driver of the said Tata Ace vehicle driven the vehicle in a high speed, rash and negligent manner and dashed to the TVS XL Motorcycle No.KA- 29/Y-3655. Because of accident, deceased sustained grievous injuries on all over the body. He was admitted at BLDEA Hospital, Vijaypur and succumbed to the injuries during the treatment. The accident took place due to rash and negligent driving of the driver of the offending vehicle. The deceased was aged about 59 years as on the date of accident and was doing agricultural work and earning Rs.10,000/- p.m. The claimant No.1 being a wife of deceased and claimant No.2 being son of deceased filed a claim petition under Section 166 of M.V.Act. 4
4. Respondent No.1 has filed a written statement and admit the accident as stated in the petition and it is contended that as on the date of alleged accident and the policy was valid, if tribunal comes to a conclusion, the claimants are entitled for compensation from the respondent then the liability saddled on the respondent No.2-insurance company and prayed to dismiss the petition against respondent No.1.
5. Respondent No.2 has filed a written statement denying the averments made in the claim petition. It is contended that the offending vehicle has not intimated the facts of occurrence and further contended that the ration card and election card discloses the deceased aged about 73 years and the claimant is a major and claimants are not the legal heirs of the deceased and they are not dependent on 5 the income of the deceased. It has further contended that the deceased was not holding a valid licence as on the date of accident. Hence, prayed to dismiss the claim petition against the respondent No.2.
6. The tribunal on the basis of the pleadings has framed the following issues:
(1) Whether petitioners prove that on 09.05.2014 at about 14.15 hours when the deceased was going on his TVS XL Motorcycle No.KA-29/Y-3655, from Muttagi towards B.Bagewadi when he came near Mukkanna Patil and at that time one Tata Ace vehicle No.KA-28/B-9126 came from opposite direction, driver of the said Tata Ace vehicle driven the vehicle in a high speed, rash and negligent manner and dashed to the XL Motorcycle and caused the accident. Due to this accident, deceased sustained grievous injuries on all over the body.
Immediately, he shifted to BLDEA Hospital, Vijayapur and died?
(2) Whether the petitioners prove that this tribunal has got jurisdiction to try and settle the dispute involved between the parties in this petition? 6 (3) Whether the respondent No.2 proves that due to violation of policy conditions, they are not liable to pay the compensation?
(4) Whether the petitioners are entitled for compensation? If so, how much and from whom?
(5) What order or award?
7. The claimants, in order to prove the claim petition, the claimant No.1 was examined as PW1 and one witness examined as PW2 and got marked 6 documents as Ex.P1 to Ex.P6. Respondent No.2 examined one witness as RW1 and got marked document Ex.R1.
8. The Tribunal after recording the evidence and after considering the materials on record has recorded a finding that the claimants have proved that on 09.05.2014 at about 14.15 hours when the deceased was going on his TVS XL Motorcycle No.KA- 29/Y-3655, from Muttagi towards B.Bagewadi when 7 he came near Mukkanna Patil and at that time one Tata Ace vehicle No.KA-28/B-9126 came from opposite direction, driver of the said Tata Ace vehicle driven the vehicle in a high speed, rash and negligent manner and dashed to the XL Motorcycle and caused the accident. Due to this accident, deceased sustained grievous injuries and he was shifted to BLDEA Hospital, Vijayapur and died in the hospital during treatment. It is further held that the tribunal has got jurisdiction to try and settle the dispute involved between the parties in the claim petition. Further held that respondent No.2 has failed to prove that due to violation of policy conditions and they are not liable to pay the compensation and it is further held that the claimants are entitled for compensation and allowed the claim petition and awarded a compensation of Rs.2,10,000/- with interest at the rate of 6% per annum and also held that the 8 respondents are jointly and severally liable to pay compensation and directed the respondent No.2 to deposit the compensation amount.
9. The claimants being dissatisfied with the compensation awarded by the Tribunal has filed this appeal seeking for enhancement of compensation.
10. Heard the learned counsel appearing for the claimant and also learned counsel appearing for the respondent No.2.
11. The learned counsel for the claimants submits that as on the date of accident the deceased was aged about 65 years. Further he has produced a copy of post mortem report which is marked at Ex.P5. In the said post mortem report the age of the deceased was shown as 65 years. But the tribunal relying upon unmark document has taken, the age of the deceased at 73 years, which is contrary to the 9 record. He further submits that in the absence of proof of income. The tribunal ought to have taken the notional income as per the chart of Karnataka High Court Legal Services Committee, that the tribunal has assessed the notional income at Rs.5,000/- which is on the lower side. Hence, he prayed to allow the appeal.
12. Per contra, the learned counsel appearing for the respondent No.2 support the impugned judgment and award. He further submits that the respondent No.2 has produced xerox copy of ID card issued by the Food, Civil Supplies and Consumer Affairs Department and also issued by the Election Commission of India, it disclose the age of the deceased as 73 years. The tribunal was justified in considering the age of the deceased at 73 years. He submits that the compensation awarded by the tribunal is just and proper and he further submits that 10 impugned judgment and award does not call for any interference. Hence, he prays to dismiss the appeal.
13. Heard and perused the records and also consider the submissions of the learned counsels appearing for the parties.
14. The point that arise for consideration is in regard to quantum of compensation.
15. It is not in dispute that the deceased was proceeding on his TVS XL Motorcycle No.KA-29/Y- 3655, from Muttagi towards B.Bagewadi when he came near Mukkanna Patil's land at that time one Tata Ace vehicle No.KA-29/Y-3655 came from opposite direction, the driver of the said Tata Ace vehicle driven the vehicle in a high speed, rash and negligent manner and dashed to the TVS XL Motorcycle No.KA- 29/Y-3655. Because of accident, the deceased sustained grievous injuries and he was admitted to 11 the Hospital at Vijayapur and succumbed to the injuries during the treatment. In order to prove the accident, the claimants have produced copy of FIR, Complaint, Spot panchanama, M.V.Report, P.M.Report and Chargessheet. From the perusal of the aforesaid records, it is clear that the accident was occurred due to rash and negligent driving of the driver of the offending vehicle.
16. Insofar as the quantum of compensation is concerned, the claimants have produced PM report which is marked at Ex.P5. In Ex.P5 the age of the deceased has shown as 65 years. The tribunal relying on the unmark document i.e. ID card issued by the Food, Civil Supplies and Consumer Affairs Department and also issued by the Election Commission of India has recorded a finding that the deceased was aged about 73 years. The tribunal has committed an error 12 in relying upon unmark document. Considering the Ex.P5, this Court held that the deceased was aged about 65 as on the date of accident.
17. It is contended that the deceased was doing agricultural work and earning Rs.10,000/- per month. In order to substantiate, the claim of the claimants have not produced any record to show the income of the deceased. In the absence of income of proof, this Court as to assess the notional income as per the chart issued by the Karnataka High Court Legal Services Committee. As per the chart, the notional income has taken at Rs.7,500/-. As the claimants are 2 in number, 1/3rd (1/3rd of 7,500/- = Rs.2,500/-) has to be deducted towards personal expenses of the deceased. After deducting 1/3rd, the monthly income of the deceased comes to Rs.5,000/- (Rs.7,500/- - Rs.2,500/-). The deceased was aged 13 about 65 years as on the date of accident. The multiplier applicable to his age group is '7'. Therefore, the claimants are entitled to a compensation of Rs.4,20,000/- (Rs.5000 X 12 X 7) towards 'loss of dependency'. In view of the law laid down by the Hon'ble Apex Court in the case of Magma General Insurance Co. Ltd. V/s Nanu Ram & Ors.' (2018) 18 SCC 130, each of the claimants (who are 2 in number) are entitled to a sum of Rs.40,000/- towards loss of consortium. Hence, the claimants are entitled to Rs.80,000/- towards loss of consortium. In addition to claimants are entitled for Rs.15,000/- towards funeral expenses and Rs.15,000/- towards loss of amenities. Thus, the claimants in all are entitled for a compensation of Rs.5,30,000/- as against Rs.2,10,000/- awarded by the tribunal. Thus, the claimants are entitled for 14 additional compensation of Rs.3,20,000/- in addition to the compensation awarded by the tribunal.
18. In view of the above discussion, I proceed to pass the following:
ORDER The appeal is partly allowed.
The judgment and award passed in MVC No.1279/2015 dated 29.09.2016 by the tribunal is modified.
The claimants are entitled for additional compensation of Rs.3,20,000/- with interest at 6% per annum from the date of filing the petition till its realization.
Respondent No.2 is directed to deposit the entire compensation amount within a period of eight weeks from the date of receipt of a copy of this judgment.
Sd/-
JUDGE SMP