Karnataka High Court
Babu S/O Ambanna Bargale And Anr vs Vishal S/O Vijaykumar Jadhav And Anr on 27 October, 2023
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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NC: 2023:KHC-K:8281
MFA No. 200510 of 2017
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
MISCL. FIRST APPEAL NO.200510/2017(MV)
BETWEEN:
1. BABU
S/O. AMBANNA BARGALE,
AGED ABOUT 43 YEARS,
OCC: COOLIE,
R/O. VILLAGE YADLAPUR,
TQ. BASAVAKALYAN,
DIST. BIDAR-584101.
2. TUKKAMMA
Digitally signed D/O. LATE AMBANNA BARGALE,
by W/O. HANMANTH HIRGENNAVARU,
LUCYGRACE
AGED ABOUT 39 YEARS,
Location: HIGH
COURT OF OCC: HOUSEHOLD,
KARNATAKA R/O. VILLAGE YADLAPUR
NOW RESIDING AT
VILLAGE MUCHLAMB,
TQ. BASAVAKALYAN,
DIST. BIDAR-584101.
...APPELLANTS
(BY SRI SANJEEV KUMAR C. PATIL, ADVOCATE)
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NC: 2023:KHC-K:8281
MFA No. 200510 of 2017
AND:
1. VISHAL
S/O. VIJAYKUMAR JADHAV,
AGE MAJOR, OCC: BUSINESS AND OWNER OF
PIAGGIO APPE-AUTO BEARING
REG. NO.KA-39/6505,
R/O. TRIPURANTH,
BASAVAKALYAN,
DIST. BIDAR-584101.
2. THE MANAGER,
SRIRAM GENERAL INSURANCE COMPANY LTD.,
E-8, RIICO INDUSTRIAL AREA,
SITAPUR, JAIPUR,
RAJASTHAN-302022.
...RESPONDENTS
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R2;
R1-SERVED)
THIS MFA IS FILED U/S. 173(1) OF MV ACT,
PRAYING TO CALL FOR THE RECORDS AND MODIFY THE
JUDGMENT AND AWARD DATED 15.09.2016 PASSED BY
THE II ADDL. DISTRICT AND SESSIONS COURT AND
ADDL. MACT, BIDAR, SITTING AT BASAVAKALAYAN IN
MVC NO.548/2014, BY FIXING THE LIABILITY ON THE
INSURANCE COMPANY TO PAY THE COMPENSATION
AMOUNT AND ENHANCE THE COMPENSATION AMOUNT.
THIS APPEAL, COMING ON FOR FURTHER ORDERS,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC-K:8281
MFA No. 200510 of 2017
JUDGMENT
Accepting the cause shown in the accompanying affidavit, IA No.1/2017 is allowed. The delay of 3 days in filing the appeal is condoned.
2. This appeal is by appellant/claimant against the judgment and award dated 15.09.2016 passed in MVC No.548/2014 by the II Additional District and Sessions Judge and Additional MACT, Bidar, sitting at Basavakalyan (for short, 'Tribunal'), by which the Tribunal awarded compensation of Rs.2,18,000/- with interest at 7% per annum payable to the appellants from the date of petition till its realization.
3. The accident resulting in the death of the deceased, who was the mother of the appellants herein, is not in dispute. The appeal is filed on two counts, one is seeking enhancement of compensation and another questioning the liability fastened on the owner of the -4- NC: 2023:KHC-K:8281 MFA No. 200510 of 2017 offending vehicle on the premise of the driver having violated permit conditions.
4. Sri Sanjeevkumar C. Patil, learned counsel for the appellants reiterating the grounds urged in the claim petition submits that though there is no material evidence produced before the Tribunal regarding violation of permit condition by the driver of the offending vehicle, the Tribunal on presumption has held that the accident has occurred nearby Yadlapur Village Cross, which comes within the jurisdiction of the Rural Police. Only based on the said observation the Tribunal has erred in arriving at a conclusion that the accident spot was within the rural periphery, whereas the vehicle in question was authorized to ply within CMC limits of Basavakalyan. He submits that, the said finding being without any basis is contrary to the law laid down by the co-ordinate Bench of this Court in MFA No.30081/2013 dated 26.08.2014 passed in the case of Maruti v. Nirmala and Others.
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NC: 2023:KHC-K:8281 MFA No. 200510 of 2017
5. As regards the enhancement of compensation, the learned counsel submits that the deceased was carrying on agricultural activities and was also earning by selling curds. He refers to the deposition of PW1, wherein it is stated that the deceased was earning a sum of Rs.5,00,000/- per annum from selling curd and that she was assisting the family. Hence, he submits that the determination of income of the deceased at Rs.4,000/- per month by the Tribunal is required to be modified. He further submits that the Tribunal has not granted any compensation under conventional heads, hence, he seeks for enhancement of compensation.
6. Per contra, Smt. Preeti Patil Melkundi, learned counsel for respondent No.2 - Insurance Company submits that the evidence on records would reveal that the accident had taken place outside CMC limits of Basavakalyan within which the offending vehicle was permitted to ply. Thus she submits plying of the offending vehicle outside the CMC limits is breach of terms of the -6- NC: 2023:KHC-K:8281 MFA No. 200510 of 2017 Insurance Policy, which absolves the Insurance Company from paying the compensation. Thus, she submits that there is no ground warranting interference with the impugned judgment and award of the Tribunal. Apart from this she submits that no documentary evidence is produced by the claimants justifying the income of the deceased at Rs.5,00,000/- per annum. She further submits that the assessment of income and deduction of 50% towards personal expenses of the deceased does not warrant any interference, hence, seeks for dismissal of the appeal.
7. Heard the learned counsel for the parties and perused the records.
8. The co-ordinate Bench of this Court in its judgment dated 26.08.2014 passed in MFA No.30081/2013 involving a question of violation of permit condition similar to the one at hand, relying upon the earlier judgment the division bench of this Court passed in -7- NC: 2023:KHC-K:8281 MFA No. 200510 of 2017 the case of United India Insurance Co., Ltd., and others vs. Chandamma and Others - ILR 2000 KLR 1302, wherein the Hon'ble Division Bench had held that whatever breach of the permit condition, such a plea is not permissible under Sub-Section (2) of Section 149 of the Act, while allowing the appeal had set aside the order fastening the liability on the owner, on the ground of breach of permit condition. In that view of the matter, the finding of the Tribunal fastening the liability on the owner of the offending vehicle in the instant case on the premise of offending vehicle being plied outside the permissible limit required to be set aside.
9. As regards enhancement of the compensation is concerned, though it is claimed that a sum of Rs.5,00,000/- per annum was being earned by the deceased no documentary evidence is produced. In that view of the matter, notional income of the deceased has to be assessed based on the guidelines issued by the Karnataka State Legal Services Authorities, in terms of -8- NC: 2023:KHC-K:8281 MFA No. 200510 of 2017 which, the notional income of the victim of the road traffic accident for the year 2014 is determined at Rs.7,500/- per month. The accident in the present case has occurred on 17.01.2014, therefore, the income of the deceased has to be determined at Rs.7,500/- per month. The age of the deceased at the time of accident was stated to be above 60 years. Therefore, the appropriate multiplier applicable is '07'.
10. The Hon'ble Apex Court in the case of National Insurance Co. Ltd., V. Birender and others - 2020 ACJ 759 has held that even the married children of the deceased are entitled to make claim petition under Section 166(1)(c) of M.V. Act, and it is bounded duty of the Tribunal to consider the same. Appling the said principles and in view of the evidence led in by PW1 to the effect that the deceased was earning income from selling curd and was contributing to the welfare of the family, it would be proper that 1/3rd of the income to be deducted towards -9- NC: 2023:KHC-K:8281 MFA No. 200510 of 2017 the personal and living expenses of the deceased instead of 50% as done by the Tribunal.
11. Calculated as above the loss of dependency would be:
Rs.7,500/- x 12 x 7 x 2/3 = Rs.4,20,000/-.
12. In view of the law laid down by the Hon'ble Apex Court in the case of Magma General Insurance Company Limited vs. Nanu Ram Alias Chuhru Ram and others - (2018) 18 SCC 130, the appellants being son and daughter of the deceased are entitled for Rs.40,000/- each towards parental consortium. Besides, the appellants are entitled for Rs.15,000/- each towards funeral expenses and loss of estate.
13. In view of the above, the appellants are entitled for total compensation of Rs.5,30,000/- instead of Rs.2,18,000/- under different heads as under:
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MFA No. 200510 of 2017
Heads By the By this Court
Tribunal In Rs.
In Rs.
Loss of dependency -- 4,20,000/-
Loss of parental -- 80,000/-
consortium
Funeral Expenses 20,000/- 15,000/-
Loss of estate 1,68,000/- 15,000/-
Transportation of dead 10,000/- --
body
Loss of love & affection 20,000/- --
TOTAL 2,18,000/- 5,30,000/-
Enhancement will be 3,12,000/-
14. In view of the above, the following:
ORDER i. The appeal is partly allowed.
ii. The impugned judgment and award
dated 15.09.2016 passed in MVC
No.548/2014 by the II Additional
District and Sessions Court and Addl. MACT, Bidar, sitting at Basavakalyan, is modified.
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NC: 2023:KHC-K:8281 MFA No. 200510 of 2017 iii. Respondent No.2-Insurance Company is directed to pay the enhanced compensation with interest at 6% per annum, within a period of six weeks from the date of receipt of a certified copy of this judgment.
iv. Apportionment and deposit is as per Tribunal order.
Sd/-
JUDGE SBS List No.: 1 Sl No.: 9