Karnataka High Court
The Divisional Manager vs Smt. Pratibha W/O Harikrishna Pawar on 5 June, 2024
Author: S G Pandit
Bench: S G Pandit
-1-
NC: 2024:KHC-D:7497-DB
MFA No. 101387 of 2016
C/W MFA.CROB No. 100133 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO.101387 OF 2016 (MV-D)
C/W
MFA CROSS-OBJECTION NO.100133 OF 2016
IN MFA NO.101387 OF 2016
BETWEEN:
THE DIVISIONAL MANAGER,
RELIANCE GENERAL INSURANCE COMPANY LIMIT,
KALBURGI ARCADE DESHPANDE NAGAR, HUBBALLI
(POLICY CAR NO.1412542311000012
POLICY VALID UP TO 31.12.2014)
REPRESENTED BY ITS AUTHORIZED SIGNATORY
RELIANCE GENERAL INSURANCE COMPANY LIMITED
EAST WING 5TH FLOOR 28 CENTENARY
BUILDING M.G. ROAD, BANGALURU.
...APPELLANT
Digitally signed by (BY SRI G.N. RAICHUR, ADVOCATE)
VINAYAKA B V
Location: HIGH AND:
COURT OF
KARNATAKA
1. SMT. PRATIBHA W/O. HARIKRISHNA PAWAR,
AGE: 37 YEARS, OCC: HOUSEWIFE,
R/O: VICTORIA ROAD HUBLI
NOW AT C/O. B.R. GONEPPANAVAR,
C.B.NAGAR, DHARWAD.
2. SMT. SANJANA D/O. HARIKRISHNA PAWAR,
AGE:17 YEARS, OCC: STUDENT,
R/O: VICTORIA ROAD, HUBLI
NOW AT C/O. B.R. GONEPPANAVAR,
C.B. NAGAR, DHARWAD.
-2-
NC: 2024:KHC-D:7497-DB
MFA No. 101387 of 2016
C/W MFA.CROB No. 100133 of 2016
3. SMT. SANNIDHI D/O. HARIKRISHNA PAWAR,
AGE:13 YEARS, OCC: STUDENT,
R/O: VICTORIA ROAD HUBLI
NOW AT C/O. B.R. GONEPPANAVAR,
C.B. NAGAR, DHARWAD.
(THE RESPONDENT NO.2 AND 3
ARE MINORS SINCE R/BY THEIR
NATURAL MOTHER RESPONDENT NO.1.)
4. FAKRUSAB S/O. KASIMSAB NADAF,
AGE: MAJOR, OCC: BUSINESS,
R/O: CHUKANAKALLA, TQ AND DIST: KOPPAL,
(OWNER OF SWIFT CAR BEARING NO.FA-17/M-9565)
...RESPONDENTS
(BY SRI S.M. KALWAD, ADVOCATE FOR R1 TO R3;
R2-R3 MINORS REPTD. BY R1;
NOTICE TO R4 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, AGAINST THE
JUDGMENT & AWARD DATED 22.02.2016, PASSED IN
MVC.NO.307/2014 ON THE FILE OF THE III ADDITIONAL
SENIOR CIVIL JUDGE AND MEMBER ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL, DHARWAD, AWARDING THE
COMPENSATION OF RS.45,36,376/- WITH INTEREST AT THE
RATE OF 8% P.A. FROM THE DATE OF PETITION TILL ITS
DEPOSIT.
IN MFA CROB. NO.100133 OF 2016
BETWEEN:
1. SMT. PRATIBHA W/O. HARIKRISHNA PAWAR,
AGE: 37 YEARS, OCC: HOUSEWIFE,
R/O: VICTORIA ROAD HUBBALLI,
NOW AT C/O. B.R. GONEPPANAVAR,
C.B.NAGAR, DHARWAD-580001.
2. SANJANA D/O. HARIKRISHNA PAWAR,
AGE: 17 YEARS, OCC: STUDENT,
R/O: VICTORIA ROAD, HUBBALLI
NOW AT C/O. B.R. GONEPPANAVAR,
C.B. NAGAR, DHARWAD-580001.
-3-
NC: 2024:KHC-D:7497-DB
MFA No. 101387 of 2016
C/W MFA.CROB No. 100133 of 2016
3. SANNIDHI D/O. HARIKRISHNA PAWAR,
AGE:13 YEARS, OCC: STUDENT,
R/O: VICTORIA ROAD HUBBALLI
NOW AT C/O. B.R. GONEPPANAVAR,
C.B. NAGAR, DHARWAD.
(NOTE: THE CROSS OBJECTOR NO.2 AND 3
BEING MINORS, REP. BY THEIR
NATURAL GUARDIAN MOTHER
CROSS OBJECTOR NO.1.
SMT. PRATIBHA H.PAWAR)
...CROSS OBJECTORS
(BY SRI S.M. KALWAD, ADVOCATE)
AND:
1. FAKRUSAB S/O. KASIMSAB NADAF,
AGE: MAJOR, OCC: BUSINESS,
R/O: CHUKANAKALLA,
TQ AND DIST: KOPPAL-583231.
2. THE DIVISIONAL MANAGER,
RELIANCE GENERAL INSURANCE CO. LTD.,
KALBURGI ARCADE, DESHPANDE NAGAR,
HUBBALLI-580020.
...RESPONDENTS
(BY SRI G.N. RAICHUR, ADVOCATE FOR R2;
NOTICE TO R1 SERVED)
THIS MFA CROB IS FILED MFA NO.101387/2016 FILED
UNDER ORDER 41 RULE 22 R/W. SECTION 151 OF CPC, 1908,
AGAINST THE JUDGMENT & AWARD DATED 22.02.2016,
PASSED IN MVC.NO.307/2014 ON THE FILE OF THE III
ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MEMBER
MOTOR ACCIDENT CLAIMS TRIBUNAL-DHARWAD, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION AND ETC.,
THIS MISCELLANEOUS FIRST APPEAL AND MFA CROB.
COMING ON FOR FINAL HEARING, THIS DAY,
BASAVARAJA, J., DELIVERED THE FOLLOWING:
-4-
NC: 2024:KHC-D:7497-DB
MFA No. 101387 of 2016
C/W MFA.CROB No. 100133 of 2016
JUDGMENT
Both the appeal and the cross-objections arise out of the judgment and award dated 22nd February, 2016 passed in MVC No.307 of 2014 by the III Additional Senior Civil Judge and Addl. Motor Accident Claims Tribunal, Dharwad (for short hereinafter referred to as "the Tribunal").
2. For the sake of convenience, the parties in these appeals are referred to with their rank and status before the Tribunal.
3. Brief facts leading to this appeal and cross-objections are that on 05th March, 2014 at about 6.45 pm, when Harikrishna Pawar, husband of petitioner No.1 and the father of petitioners 2 and 3, was proceeding on the motorcycle bearing Registration No.AP-31/AZ-2794 from Mollem on NH4A to attend his duty and when he reached near Suktolim Mollem near Rajlaxmi Petrol Pump of Ponda, the driver of the Swift car bearing Registration No.KA-17/M-9565 came in a high speed, rash and negligent manner and dashed to the motorcycle of the said Harikrishna. The impact of the accident is the rider of the motorcycle sustained fatal injuries and died on the spot. The -5- NC: 2024:KHC-D:7497-DB MFA No. 101387 of 2016 C/W MFA.CROB No. 100133 of 2016 body was shifted to Goa Medical College, Goa where post- mortem was conducted and the body was handed over to the petitioners. The petitioners took the dead body in a hired vehicle to their native place and spent more than Rs.1.00 lakh towards funeral and transportation charges. The accident occurred due to rash and negligent driving by the driver of the offending Swift car. It is stated in the claim petition that the prior to accident, the deceased was hale and healthy and was working as a Head Constable in the Central Industrial Security Force Unit, GSL, Shipyard, Goa and was getting a salary of Rs.32,719/- per month and due to the unexpected accident, the petitioners have lost the only bread-earner in the family, put to hardship and are suffering physically, mentally and financially. On all these grounds sought to allow the claim petition.
4. Respondent No.1 owner of the Swift car, resisted the claim petition by filing objections denying the entire averments made in the claim petition. It is contended that the accident occurred due to negligent riding of the motorcycle by its rider. It is further contended that the driver of the Swift car was having valid and effective driving licence as on the date of -6- NC: 2024:KHC-D:7497-DB MFA No. 101387 of 2016 C/W MFA.CROB No. 100133 of 2016 accident and the said vehicle insured with respondent No.2- Insurance Company was in force. It is also contended that the two vehicles were involved in the accident and the petitioners have made only the owner and insurer of Swift car as parties to the proceedings and the owner and the insurer of the motorcycle are not parties to the petition. Accordingly, the petition is bad for non-joinder of necessary parties. On all these grounds, the respondent No.1 sought for dismissal of claim petition with costs.
5. Respondent No.2-Insurance Company by filing its statement of objections has resisted the claim petition denying the entire petition averments. It is further contended that the petition is bad for non-joinder of necessary parties. The driver has not been arrayed as party to the proceedings and without proper parties, it would be difficult to adjudicate the case. It is also contended that it is the bounden duty of the rider to wear protective headgear while riding the motorcycle as per the provisions of Motor Vehicles Act. The deceased has violated the provisions of the Act by not wearing helmet while riding the motorcycle and dashed against the Swift car which resulted in the alleged accident. It is further contended that if the court -7- NC: 2024:KHC-D:7497-DB MFA No. 101387 of 2016 C/W MFA.CROB No. 100133 of 2016 comes to the conclusion that the petitioners are entitled for compensation, in that event, contributory negligence on the part of the rider of the motorcycle be considered and award if any passed, be apportioned amongst both the vehicles. It is also contended that the owner of the Swift car has violated the conditions of the insurance policy knowingly and carelessly entrusting the car to driver who was not holding valid and effective driving licence and hence, prayed for dismissal of the claim petition.
6. On the basis of rival pleadings, the Tribunal has framed issues. To prove the case of the petitioners, petitioner No.1 was examined as PW1 and got marked nine documents as Exhibits P1 to P9. On closure of petitioners' side evidence, respondents have not led any oral evidence nor got marked any document.
7. Having heard the arguments on both sides, the Tribunal allowed the claim petition in part and awarded compensation of Rs.45,36,376/- with interest at the rate of 8% per annum from the date of petition till realisation. Being aggrieved by the judgment and award passed by the Tribunal, -8- NC: 2024:KHC-D:7497-DB MFA No. 101387 of 2016 C/W MFA.CROB No. 100133 of 2016 the Insurance Company has preferred MFA No.101387 of 2016 questioning the liability as well as the quantum of compensation. Being not satisfied with the compensation awarded by the Tribunal, the claimants have preferred MFA Crob.No.100133 of 2016 seeking enhancement of compensation.
8. Sri G.N. Raichur, learned counsel appearing for the appellant-Insurance Company would submit that the Tribunal committed an error in coming to the conclusion that the accident occurred due to the rash and negligent driving of the driver of the Swift car. He submits that it could be seen from the records that the deceased, in the process of overtaking, came and dashed to the Swift car, but the Tribunal, with regard to negligence, proceeded only on the basis of police records. Learned counsel submits that it is the settled principle of law that in Motor Accident Claim proceedings, the negligence aspect has to be decided independently. Therefore, the finding of the Tribunal on issue No.1, particularly on the point of negligence, is erroneous.
-9-
NC: 2024:KHC-D:7497-DB MFA No. 101387 of 2016 C/W MFA.CROB No. 100133 of 2016
9. The further submission of the learned counsel for the appellant-Insurance Company is that the Tribunal has committed an error in deducting only 10% of the income-tax. Looking to the salary, the income tax comes to the slab of 30%. Therefore, the deduction of income-tax at 10% is erroneous. He also submits that the Tribunal has committed an error in not deducting professional tax which is a standard deduction. The Tribunal has also committed an error in awarding Rs.4,25,000/- under conventional heads, which is on the higher side. Further, the Tribunal committed an error in awarding interest at the rate of 8% per annum instead of awarding the same at 6% per annum. On all these grounds, he sought for allowing the appeal.
10. Sri S.M. Kalwad, learned Counsel appearing for the Cross-objector/claimants would submit that the appeal filed by respondent No.2 is not maintainable, either in law or on facts. He submits that the Tribunal ought to have deducted only a sum of Rs.10,631/- towards income-tax, but committed an error in deducting 10% out of the gross salary of the deceased while calculating compensation towards loss of dependency and if it so done, the claimants are still entitled for a sum of
- 10 -
NC: 2024:KHC-D:7497-DB MFA No. 101387 of 2016 C/W MFA.CROB No. 100133 of 2016 Rs.3,26,556/-. He submits that the Tribunal has rightly held that the accident occurred due to rash and negligent driving of the driver of Swift car relying upon Exhibits P1 to P6 which are not disputed by the respondents. The respondents have not adduced any evidence to discard the evidence placed by the petitioners. His further submission is that the Tribunal has not awarded any amount towards loss of consortium as held by the Hon'ble Supreme Court in the case of RAJESH v. RAJBIR SINGH reported in (2013)9 SCC 54. Further, he submits that the Tribunal could have awarded interest at 9% per annum as is held by the Hon'ble Supreme Court in the above case. On all these grounds he sought for allowing the appeal by enhancing the compensation.
11. Having heard the learned counsel for the parties and upon perusal of appeal papers as well as original records, the following points would arise for our consideration:
1. Whether the Insurance Company has made out a ground that the accident occurred due to contributory negligence on the part of the deceased?
- 11 -
NC: 2024:KHC-D:7497-DB MFA No. 101387 of 2016 C/W MFA.CROB No. 100133 of 2016
2. Whether the Tribunal is justified in awarding interest at the rate of 8% per annum?
3. Whether the claimants are entitled for enhancement of compensation?
3. What order or award?
12. Our answer for the above points is as under:
Point No.1: in the negative;
Point No.2: in the negative;
Point No.3: partly in the affirmative; Point No.4: as per final order Regarding Point No.1:
13. We have carefully examined the material placed before this Court. It is the case of the petitioner/claimants that on 05th March, 2014 at about 6.45 pm, when Harikrishna Pawar-husband of petitioner No.1 and the father of petitioners 2 and 3, was proceeding on motorcycle bearing Registration No.AP-31/AZ-2794 on NH4A from Mollem to attend his duty and when he reached near Suktolim Mollem near Rajlaxmi Petrol Pump of Ponda, the driver of the Swift car bearing Registration No.KA-17/M-9565 came in a high speed, rash and negligent manner and dashed to the motorcycle resulting in the death of Harikrishna on the spot. The body was shifted to Goa
- 12 -
NC: 2024:KHC-D:7497-DB MFA No. 101387 of 2016 C/W MFA.CROB No. 100133 of 2016 Medical College, Goa where post-mortem was conducted and the body was handed over to the petitioners. To substantiate the case of the petitioners, one witness viz. Smt. Prathiba Pawar was examined as PW1 and marked nine documents as Exhibits P1 to P9. A perusal of these documents makes it clear that on the basis of the complaint filed by one Shamarao, Collem Police have registered as case in Crime No.11 of 2014 against Mahaboob S/o Moula Saab Badami, driver of the Swift Car bearing Registration No.KA-17/M-9565 for the commission of offence punishable under Sections 279 and 304-A and Section 134(a) and (b) of Motor Vehicles Act, 1988 and submitted the First Information Report to the Court. Thereafter, the police have visited the spot, prepared spot mahazar, prepared rough sketch, conducted inquest panchanama, obtained post-mortem report and recorded spot witnesses and on thorough investigation, the investigation officer filed charge sheet against the accused-Mahaboob Badami for commission of offence punishable under Sections 279, 304-A and Section 134(a) and (b) of Motor Vehicles Act, 1988. Apart from these, documentary evidence, Pratibha Pawar, has also deposed in her evidence as to the accident as
- 13 -
NC: 2024:KHC-D:7497-DB MFA No. 101387 of 2016 C/W MFA.CROB No. 100133 of 2016 alleged in the claim petition. During the course of cross- examination of PW1, the respondents have not questioned as to the charge-sheet submitted by the investigating officer. Respondents have also not adduced any evidence before the Tribunal to discard the oral and documentary evidence placed by the petitioners to prove the contributory negligence of the deceased as alleged in the statement of objections. If really the accident occurred due to the contributory negligence on the part of the deceased, the driver of the offending vehicle would have lodged a complaint with the police, but he has not done so. Instead of filing the complaint after the accident, the driver fled the scene without even informing the police and accordingly, violated the provisions of Section 134(a) and (b) of the Motor Vehicles Act, 1988. The driver of the Swift car has not explained as to why he has not complied with the mandatory provisions of Section 134(a) and (b) of the Motor Vehicles Act, 1988 after the accident. The conduct of the driver of the offending Swift car reveals that the accident occurred due to rash and negligent act on his part. The Tribunal has properly appreciated the evidence on record in accordance with law and facts. On re-consideration, re-examination and of the
- 14 -
NC: 2024:KHC-D:7497-DB MFA No. 101387 of 2016 C/W MFA.CROB No. 100133 of 2016 entre evidence on record, we do not find any illegality/legal infirmity in the finding given by the Tribunal. Accordingly, the Insurance Company has failed to prove that the accident occurred due to the contributory negligence on the part of the deceased. Hence, we answer point No.1 in the negative. Regarding point No.2:
14. Sri G.N. Raichur, learned counsel appearing for the appellant Insurance Company submits that the Tribunal has awarded interest at the rate of 8% per annum from the date of petition till realisation. The same is on the higher side. We find force in the submission of the learned counsel. Taking note of the interest rates paid by the nationalised banks on fixed deposits as on the date of filing of claim petition, we deem it just and proper to award the interest at the rate of 6% per annum. Accordingly, we answer point No.2 in the negative.
Regarding Point No.3:
15. Exhibit P6-post-mortem report reveals that the age of the deceased as on the date of accident was 46 years. The petitioners have produced Service certificate of the deceased and the Driving Licence of the deceased as Exhibits P8 and P9
- 15 -
NC: 2024:KHC-D:7497-DB MFA No. 101387 of 2016 C/W MFA.CROB No. 100133 of 2016 respectively, which reveal that date of birth of the deceased was 14th January, 1968. The accident took place on 05th March, 2014. Thus, the age of the deceased was 45 years, one month and 21 days. Accordingly, relying upon the decision of the Hon'ble Supreme Court in the case of SARLA VERMA AND OTHERS v. DELHI TRANSPORT CORPORATION AND ANOTHER reported in (2009)6 SCC 121 the appropriate multiplier would be 13 and the Tribunal has rightly taken the same. With regard to income of the deceased is concerned, it is an undisputed fact that the deceased was working as Head Constable in Central Industrial Security Force, GSL Shipyard, Goa. Exhibit P7 is the salary certificate of the deceased issued by the Deputy Commandant/DDO, CISF Unit, GSL, Goa, which reveals that the gross salary of the deceased was Rs.34,610/- per month. Relying upon the decision of the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI reported in AIR 2017 SC 5157, the Tribunal has added 30% of the income towards the future prospects, as deceased was in a permanent job. Hence, the monthly income of the deceased would be Rs.44,993/-. The Tribunal has rightly deducted 10% towards income-tax and assessed the monthly
- 16 -
NC: 2024:KHC-D:7497-DB MFA No. 101387 of 2016 C/W MFA.CROB No. 100133 of 2016 income of the deceased at Rs.40,494/-. Since there are three dependents, in view of the decision of the Hon'ble Supreme Court in the case of SARLA VERMA (supra), one third has to be deducted towards the personal and living expenses of the deceased. Accordingly, the compensation under the head loss of dependency would be Rs.42,11,376/- (Rs.26,996/- x 12 x
13). As regards loss of consortium is concerned, the Tribunal has awarded only Rs.50,000/- under the said head. Further, the Tribunal has awarded higher compensation towards loss of estate, towards transportation charges and funeral expenses; and towards loss of estate. The same are not in consonance of the decision of the Hon'ble Supreme Court in the case of PRANAY SETHI (supra) as also the decision of the Hon'ble Supreme Court in the case of MAGMA GENERAL INSURANCE COMPANY LIMITED v. NANU RAM AND OTHERS reported in (2018)18 SCC 130. Keeping in mind the aforesaid decisions of the Hon'ble Supreme Court, it is just and proper to modify the compensation as under:
- 17 -
NC: 2024:KHC-D:7497-DB
MFA No. 101387 of 2016
C/W MFA.CROB No. 100133 of 2016
Sl.No. Head Amount (in Rs.)
1. Loss of dependency 42,11,376.00
2. Loss of consortium
1,20,000.00
(Rs.40,000 x 3)
3. Loss of Estate 15,000.00
4. Towards transportation of dead
15,000.00
body and funeral charges
Total 43,61,376.00
Accordingly, we answer point No.3, partly in the affirmative. Regarding Point No.4:
16. For the aforesaid reasons and discussions, we proceed to pass the following:
ORDER
1. Both appeals are partly allowed;
2. Judgment and Award dated 22nd February, 2016 passed in MVC No.307 of 2014 by the III Additional Senior Civil Judge and Additional Motor Accident Claims Tribunal, Dharwad, is modified holding that the claimants are entitled for compensation of Rs.43,61,376/- as against Rs.45,36,376/- awarded by the Tribunal;
3. It is made clear that the claimants are entitled for the interest at the rate of 6% per annum
- 18 -
NC: 2024:KHC-D:7497-DB MFA No. 101387 of 2016 C/W MFA.CROB No. 100133 of 2016 from the date of petition till the date of realisation;
4. The appellant-Insurance Company shall satisfy the award amount within a period of sixty days from the date of receipt of certified copy of this judgment;
5. Draw award accordingly;
6. Amount, if any in deposit, is directed to be transmitted to the Tribunal fortiwith;
7. Registry to forward the copy of this judgment along with the trial court records to the concerned court for onward disbursal of award amount to the claimants.
Sd/-
JUDGE Sd/-
JUDGE LNN List No.: 1 Sl No.: 52