Karnataka High Court
Shruti W/O Nagappa Talawar vs The Andra Oxygen Pvt. Ltd on 10 March, 2022
Author: S. Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 10TH DAY OF MARCH, 2022
PRESENT
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
AND
THE HON'BLE MRS.JUSTICE K.S. HEMALEKHA
M.F.A.No.102149/2017
C/W
M.F.A.CR.OB.No.100121/2017
IN M.F.A.No.102149/2017
BETWEEN:
THE BRANCH MANAGER
UNITED INDIA INSURANCE COMPANY LIMITED,
MELLIGERI COMPLEX KALADAGI ROAD,
BAGALKOT.
REP. BY DULY CONSTITUTED AUTHORITY.
DIVISIONAL MANGER.
....APPELLANT
(BY SRI.M.K.SOUDAGAR, ADVOCATE)
AND:
1. SHRUTHI W/O NAGAPPA TALAWAR,
AGE: 23 YEARS, OCC:HOUSEHOLD WORK,
R/O: KAJJIDONI VILLAGE,
TAL AND DIST: BAGALKOT-587101.
2. TANU D/O NAGAPPA TALAWAR,
AGE: 3 YEARS, OCC: NIL,
R/O: KAJJIDONI VILLAGE,
TAL AND DIST: BAGALKOT-587101.
2
3. HANAMANTH S/O VENKAPPA TALAWAR
AGE: 53 YEARS, OCC:COOLIE,
R/O: KAJJIDONI VILLAGE,
TAL AND DIST: BAGALKOT.
4. TULASAVVA W/O HANAMANTH TALAWAR,
AGE: 51 YEARS, OCC: COOLIE,
R/O: KAJJIDONI VILLAGE,
TAL AND DIST: BAGALKOT-587101.
(RESPONDENT NO.2 BEING MINOR REPRESENTED BY
HER NATURAL GUARDIAN MOTHER RESPONDENT
NO.1)
5. THE ANDRA OXYGEN PRIVATE LIMITED.
P.H SHIRUR, AGE: 43 YEARS, OCC: BUSINESS
R/O: A-P H.NO.133, HALLUR CHAWAL,
VASAVI TALKIES ROAD,
TAL AND DIST: BAGALKOT-587101.
....RESPONDENTS
(BY SRI.VITTAL S. TELI, ADVOCATE FOR R1 TO R4;
SRI. S.C.HIREMATH, ADVOCATE FOR R5)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND
AWARD DATED 16.02.2017 PASSED IN MVC No.26/2015 ON
THE FILE OF THE MEMBER, MOTOR ACCIDENT CLAIMS
TRIBUNAL-II, BAGALKOT, AWARDING COMPENSATION OF
RS.26,39,100/- WITH INTEREST AT 6% P.A. FROM THE DATE
OF PETITION TILL ITS PAYMENT.
IN M.F.A.CR.OB.No.100121/2017
BETWEEN
1. SHRUTI W/O NAGAPPA TALAWAR,
AGE: 22 YEARS, OCC: H/W,
R/O: KAJJIDONI VILLAGE,
TQ AND DIST: BAGALKOT-587101.
3
2. TANU D/O. NAGAPPA TALAWAR,
AGE: 3 YEARS,
SINCE MINOR REPRESENTED BY
NATURAL GUARDIAN APPELLANT No.1,
3. HANAMANT S/O VENKAPPA TALAWAR,
AGE: 52 YEARS, OCC: COOLIE,
R/O: KAJJIDONI VILLAGE,
TQ AND DIST: BAGALKOT-587101.
4. TULASAVVA W/O HANAMANTH TALAWAR
AGE: 50 YEARS, OCC: COOLIE,
R/O: KAJJIDONI VILLAGE,
TQ AND DIST: BAGALKOT-587101.
...CROSS OBJECTORS
(BY SRI.VITTAL S. TELI, ADVOCATE FOR CROSS OBJECTOR)
AND
1. THE ANDRA OXYGEN PRIVATE LIMITED,
P.H. SHIRUR, AGE: 42 YEARS,
OCC: OWNER OF VEHICLE,
R/O: A/P H.NO.133, HALLUR CHAWAL,
VASAVI TALKIES ROAD,
BAGALKOT-587101.
2. THE BRANCH MANAGER,
UNITED INDIA INSURANCE COMPANY LIMITED,
MELLIGERI COMPLEX,
KALAGADI ROAD,
BAGALKOT-587101.
...RESPONDENTS
(BY SRI.S.C.HIREMATH, ADVOCATE FOR R1;
SRI.M.K.SOUDAGAR, ADVOCATE FOR R2)
THIS M.F.A. CROB IN M.F.A. No.102149/2017 FILED
UNDER ORDER XLI RULE OF 22 OF CPC., AGAINST THE
JUDGMENT AND AWARD DATRED 16.02.2017 PASSED IN
4
MVC No.26/2015 ON THE FILE OF THE MEMBER OF MOTOR
ACCIDENT CLAIMS TRIBUNAL-II, BAGALKOT, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL AND CROSS OBJECTION COMING ON FOR
ADMISSION THIS DAY, K.S. HEMALEKHA J., DELIVERED
THE FOLLOWING:
JUDGMENT
Though this appeal and cross objection are listed for admission, with the consent of learned counsel for both sides, they are taken up for final disposal.
2. The appeal as well as cross objection are directed against judgment and award dated 16.02.2017 passed in MVC No.26/2015 on the file of the learned Member, MACT-II, Bagalkot, (for short "Tribunal").
3. MFA No. 102149/2017 is filed by the Insurance Company challenging the fastening of liability as well as quantum of compensation. MFA CROB No.100121/2017 is filed by the claimants seeking enhancement of compensation.
4. The parties herein are referred to as per their ranking before the Tribunal for the sake of convenience. 5
5. The claimants have filed claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation of Rs.37,50,000/- on account of death of one Nagaraja S/o Hanamanth Talawar in a fatal road traffic accident that occurred on 03.07.2014, when the deceased was proceeding in a bullock cart along with his family members, at that time, the driver of the lorry bearing registration No.KA-29/9165 came in a rash and negligent manner and hit the bullock cart from backside, due to the said impact, deceased Nagaraja Talawar succumbed to the injuries at the spot. The claimants are the wife, minor child and the parents of the deceased Nagaraja. It is averred that the deceased was aged about 25 years, hale and healthy, working as an agriculturist and also doing the coolie work and thereby earning Rs.15,000/- per month. It is averred that the claimants were solely dependent on the income of the deceased.
6. In pursuance of the summons issued by the Tribunal, respondent No.1 though served with notice did 6 not appear and he was placed exparte. Respondent No.2- Insurance Company appeared and filed written statement.
7. Respondent No.2-Insruance Company denied that the accident occurred due to the negligence on the part of the driver of the lorry and took up the contention that driver of the offending vehicle did not possess valid and effective driving license as on the date of accident and sought to absolve the liability.
8. The Tribunal on the basis of the pleadings framed following issues:
1. Whether the petitioners prove that, at about
9.30 hours, when Nagappa S/o Hanamanth Talawar with his family members was proceeding on his bullock cart for their coolie work, near petrol bunk, he met with an accident and sustained grievous injuries and succumbed to death, due to the actionable negligence on the part of the driver of lorry bearing registration No.KA- 29/9165?
2. Whether the respondent No.2-Insurance company proves that, it is not liable to pay compensation?
7
3. Whether the petitioners are entitled for compensation sought for? Is so, from whom?
4. What order or award?
9. The Tribunal considering the pleadings and material evidence on record held that the accident occurred due to rash and negligent driving of the driver of the lorry bearing registration No.KA-29/9165, due to which deceased Nagappa Talawar succumbed to the injuries and fastened the liability upon the Insurance Company and awarded total compensation of Rs.26,39,100/- with interest at the rate of 6% per annum from the date of petition till realization.
10. Aggrieved by fastening of liability and quantum of compensation awarded by the Tribunal being on the higher side, the Insurance Company is in appeal. The claimants are in Cross objection on the ground of quantum of compensation being on the lower side. 8
11. Heard learned counsel for the Insurance Company and learned counsel for the claimants and perused the material on record including original records.
12. Learned counsel for the Insurance Company in support of his appeal would contend that the accident occurred due to contributory negligence on the part of the deceased and fastening of liability to the entire extent upon the Insurance Company is without considering the fact that there was negligence on the part of the deceased. It is further contended that the Tribunal has taken the income of the deceased at Rs.8,000/- per month and adding 50% towards future prospects is contrary to the dictum of the Apex Court of the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others reported in 2017 ACJ 2700 and sought to reduce the compensation.
13. Per contra, learned counsel for the claimants in support of his cross objection would contend that the Tribunal considering the fact there was rash and negligent driving on the part of the driver of the lorry bearing 9 registration No.KA-29/9165 fastened the liability on the insurance company. Insofar as quantum of compensation is concerned, it is contended that the Tribunal has committed an error in awarding meager compensation under head of loss of consortium and same requires to be enhanced reasonably. He further contended that the compensation awarded by the Tribunal under the other heads is just, fair and proper, which requires no interference by this Court. Thus, he sought to allow the cross objection filed by the claimants by dismissing the appeal filed by the insurance company.
14. Having heard the learned counsel for the parties and on perusal of the material on record, the points that would arise for consideration are:
i. "Whether the Tribunal was justified in fastening of liability on the Insurance company, holding that the accident occurred due to rash and negligent driving of the offending vehicle?"
ii. "whether the judgment and award passed by the Tribunal insofar as the 10 quantum is concerned, requires to be reconsidered?".
15. It is contended by the Insurance Company that the accident occurred due to the contributory negligence on the part of the deceased Nagappa Talawar, who was rider of the bullock cart. A perusal of the impugned judgment and award and material on record would depict that Ex.P4-spot mahazar and rough sketch shows the place of the accident. The offending vehicle on that day was plying from west to east and the bullock cart was also proceeding in the same direction. At the place of accident, the width of the road was about 30 feet and it was a straight road between east to west. The offending vehicle as per the spot mahazar hit the bullock cart at its backside, when it was proceeding towards the left side of the road. If the spot of the accident shown in the rough sketch enclosed with the Ex.P4 is taken into consideration, the contention of the Insurance Company that the bullock cart came across plying vehicle resulting in accident cannot be accepted. As such, contributory negligence as 11 contended by the Insurance Company is not acceptable.
The Tribunal considered the material evidence on record has rightly fastened the liability upon the Insurance Company. Accordingly, we answer the point No.1 in the affirmative as against the Insurance Company holding that the fastening of liability on account of the contributory negligence is just and proper.
16. Point No.2: Insofar as the quantum of compensation awarded by the Tribunal is concerned, in view of the dictum of the Apex court in the cases of Pranay Sethi (supra), United India Insurance Company Limited V/s Satinder Kaur and others reported in AIR 2020 SC 3076 and Magma General Insurance Company Ltd. Vs. Nanu Ram & Others reported in 2018 ACJ 2782, looking into the judgment and award of the Tribunal, the award of compensation by the tribunal needs to be reassessed.
17. The Tribunal has taken the income of the deceased at Rs.8,000/- per month. In the facts and circumstance of the case that the deceased was earning 12 Rs.8,000/- per month by doing agriculture work as well as working as coolie, the income assessed by the Tribunal at Rs.8,000/- per month was just and proper. However, taking into consideration that the claimants have not produced any documents to show the actual income of the deceased, as per the guidelines of the Karnataka State Legal Services Authorities for the accidental claims of the year 2014, the notional income of the deceased has to be taken at Rs.7,500/- per month.
18. Further, the Tribunal committed an error in adding 50% towards future prospects. In the light of dictum of the Hon'ble Apex Court in the case of Pranay Sethi (supra), the claimants would be entitled for addition of 40% towards future prospects instead of 50% added by the Tribunal. Deduction of 1/4th of the assessed income towards personal and living expenses considering the number of dependents of the deceased and multiplier of '18' considering the age of the deceased as 25 years, are not disturbed. Thus, the claimants would be entitled for 13 compensation under the head of loss of dependency at Rs.17,01,000/- (Rs.7,500 + 40% x 12 x 18 x ¾).
19. The medical expenses of Rs.6,60,100/- awarded by the Tribunal based on the medical bills produced by the claimants remains undisturbed. Insofar as the consortium is concerned, as per the dictum of the Hon'ble Apex Court in the cases of Satinder Kaur (supra) and Magma General Insurance Company Ltd. (supra), claimant No.1 being wife of the deceased would be entitled to Rs.40,000/- towards spousal consortium, claimant No.2 being daughter of the deceased would be entitled to Rs.40,000/- towards parental consortium and claimants No.3 and 4 being parents of the deceased would be entitled to Rs.40,000/- each towards filial consortium. Besides, the claimants would be entitled to Rs.15,000/- each towards loss of estate and funeral expenses.
20. Thus, the claimants would be entitled for modified compensation under the following heads: 14
Sl. No. Particulars Amount
1 Loss of dependency Rs.17,01,000/-
2 Medical Expenses Rs. 6,60,100/-
3 Spousal, filial and Parental Rs. 1,60,000/-
Consortium (Rs.40,000x4)
4 Funeral expenses Rs. 15,000/-
5 Loss of estate Rs. 15,000/-
Total Rs.25,51,100/-
21. Accordingly, we answer point No.2 in the affirmative holding that the claimants would be entitled for total compensation of Rs.25,51,100/- as against Rs.26,39,100/- as awarded by the Tribunal with interest at the rate of 6% per annum from the date of petition till realization.
22. In the result, we pass following:
ORDER
1. Appeal as well as cross objection are allowed in part.
2. The impugned judgment and award passed by the Tribunal is modified to the extent that the claimants would be entitled for total compensation of Rs.25,51,100/- as against Rs.26,39,100/- awarded by the Tribunal with 15 interest at the rate of 6% per annum from the date of petition till realization.
3. Excess amount, if any, be refunded to the Insurance Company.
4. Amount in deposit be transmitted to the Tribunal along with the original records.
5. Apportionment, release and deposit would be as per order of the Tribunal.
6. Draw modified award accordingly.
7. No order as to costs.
8. Pending applications, if any, do not survive for consideration, and accordingly, they are disposed of.
Sd/-
JUDGE Sd/-
JUDGE AC/VGR