Karnataka High Court
Shantabai W/O Late Hanmanthrao And Ors vs Vazeer S/O Haneef & Anr on 6 April, 2017
Author: B.Veerappa
Bench: B.Veerappa
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF APRIL, 2017
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MR. JUSTICE B.A. PATIL
MFA No.31784/2013 (MV)
BETWEEN:
1. Shantabai W/o Late Hanmanthrao,
Aged: 46 years, Occ: Household.
2. Surekha D/o Late Hanmanthrao,
Aged: 24 years, Occ: Household.
3. Sulochana D/o Late Hanmanthrao,
Aged: 23 years, Occ: Household.
4. Anil S/o Late Hanmanthrao,
Aged: 21 years, Occ: Student.
5. Sunil S/o Late Hanmanthrao,
Aged: 19 years, Occ: Student
All are R/o Medpalli, Now at H.No.14-5-90,
Shahapur Gate, Bidar-585 401.
... Appellants
(By Sri.Khadme Umesh, Advocate)
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AND:
1. Vazeer S/o Haneef,
Age: 36 years, Occ: Business,
R/o Wadgaon-D, Tq. Aurad-B,
Dist. Bidar-585 401.
2. The Divisional Manager
Oriental Insurance Co. Ltd.
Division Office, Opp. Mini Vidhana Soudha,
Timmapur Chowk, Gulbarga-585 101.
Through its Branch Office, Shop No.3,
Kamshetty Complex, Near New Bus
stand, Bidar-585 401.
(Vide Policy No.472990/31/2011/4031)
(Valid from 26-02-2011 to 25-02-2012)
...Respondents
(By Sri. Sri. B.C.Jaka, Advocate for R1).
(By Sri. Sudarshan M, Advocate for R2).
This Miscellaneous First Appeal is filed under
Section 173 (1) of Motor Vehicle Act, praying to modify
the judgment and award dated 12.09.2012 passed by
the II Addl. MACT and Addl. Sessions Court, Bidar in
MVC No.128/2012 and pass an order for enhancement
of compensation as deemed fit by this Hon'ble court
under the facts and circumstances of the case,
including the cost.
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This appeal coming on for admission this day,
B.VEERAPPA, J., delivered the following:-
JUDGMENT
This appeal is filed by the claimants for enhancement of compensation against the judgment and award dated 12.09.2012 made in MVC.No.128/2012 on the file of II Addl. District Judge, Bidar awarding compensation of Rs.8,22,000/- with 6% interest per annum from the date of petition till realization.
2. The Claimants are the wife and children of deceased Hanmanthrao filed the claim petition under Section 166 of Motor Vehicle Act, claiming compensation of Rs.93,94,000/- contending that on 09.01.2011 when the deceased Hanmanthrao was proceeding towards Wadgaon village on his motor cycle in connection with his profession as LIC agent with due -4- caution on left side of the road at about 11.00 A.M, when he came near Sevalal Circle, Gandhinagar Thanda, Medpally, on Ujani-Wadagoan Tar road, at that time one Maxicab bearing Reg.No.KA-38/938 came in a rash and negligent manner and dashed the motorcycle, due to which deceased Hanmanthrao, fell down and sustained injuries on his forehead and other parts of the body. Immediately he was taken to Primary Health Centre at Wadagon and after providing preliminary treatment and he was referred to Government Hospital, Bidar. Ultimately he succumbed to injuries while taking to the Hyderbad for treatment.
3. It is further case of the claimants that the jurisdictional police have also registered a case in the crime No.2/2011 for offences punishable under Sections 279, 338, 304(A) of IPC against the driver of the Maxicab. It is further contended that deceased was hale and healthy, aged about 50 years at the time of -5- accident and he was doing agricultural work having irrigated landed properties, used to grow sugarcane and commercial crops in both Rabbi and Kharif and he used to get 200 tones of sugarcane crops and by supplying the same to sugar factory used to get income of Rs.6,00,000/- per annum and he used to grow jowar, bengal grams, green, red and black grams, udad. That apart, he was earning Rs.6,000/- per month as LIC agent.
4. The respondents filed written statement denying the age, income and mode of occurrence of the accident and medical expenses. It was contended that the accident occurred due to rash and negligent riding of the motorcycle by the deceased and further contended that police officials colluded with claimants and a false case was registered against the driver of the Maxicab. It was contended that the driver of Maxicab did not possessed valid and effective driving licence as -6- on the date of the accident. Therefore, they sought for dismissal of the claim petition.
5. Based on the above pleadings, the Tribunal framed the following issues.
1. Whether the claimant proves that on 09.01.2011 the driver of the Maxicab bearing No.KA-38/938 owned by the 1st respondent drove the same in a rash and negligent manner and dashed motorcycle causing death of Hanmanthrao as alleged?
2. Whether the respondents prove that the contributory negligence as stated in the defence?
3. Whether the 2nd respondent proves that the driver of offending vehicle did not hold a valid driving licence and thereby violated the terms and conditions of the policy?
4. Whether the petition is bad for non-
joinder for necessary parties?
5. Whether the claimants are entitled for the compensation? If so, at what rate, by whom?
6. What Order?
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6. In order to establish the case of the claimants, wife of the deceased was examined as PW.1 and got marked documents as Exs.P.1 to Ex.P.18. The respondents have not adduced any evidence nor produced any documents to disprove the claim of the claimants.
7. The Tribunal considering the entire material on record, recorded the finding that the claimants proved that the accident occurred on 09.01.2011 was due to the rash and negligently driving on the part of the driver of the Maxicab bearing Reg.No.KA-38/938. It is further observed that the respondents failed to prove the contributory negligence as alleged in the defence and also failed to prove that the 2nd respondent, driver of offending vehicle did not possessed valid and effective driving licence and violated the terms and conditions of the policy and further failed to prove that the petition is bad for non-joinder of necessary parties. Accordingly, -8- the Tribunal by the impugned judgment and award dated 12.09.2012 awarded compensation of Rs.8,22,000/- with 6% interest per annum. Hence, the present appeal for further enhancement.
8. The Insurance Company has not filed any appeal against the impugned judgment and award.
9. We have heard the learned counsel for the parties to the lis.
10. Sri.Umesh Khadme, learned counsel for the appellants / claimants vehemently contended that the impugned judgment and award passed by the Tribunal awarding Rs.8,22,000/- with 6% interest is on lower side, the Tribunal has ignored the material facts that the deceased was having irrigated landed properties and used to grow 200 tonnes of sugarcane thereby getting income of Rs.6,00,000/- per annum, and he was LIC agent by profession earning Rs.6,000/- per month. He -9- further contended that the compensation awarded under conventional heads is lower side. Therefore, he sought to modify the impugned judgment and award passed by the Tribunal by allowing appeal.
11. Per contra Sri.B.C.Jakka, Sri.Sudarshan.M. and Sri.Sanjay Joshi, learned counsel for the respondents sought to justify the impugned judgment and award passed by Tribunal and contended that claimants have not produced any material documents before the court to show that the deceased was getting income of Rs.6,00,000/- by growing sugarcane and commercial crops and in the absence of the same the Tribunal was justified in passing the impugned award. Therefore, they sought for dismissal of the appeal.
12. In view of the aforesaid contentions, the points that arise for our consideration are.
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1. Whether the Tribunal is justified in awarding compensation of Rs.8,22,000/- in the facts and circumstances of the present case?
2. Whether the appellant made out case for further enhancement of compensation in the facts and circumstances of the case?
13. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties to the lis and perused the entire material on record, carefully.
14. It is undisputed fact that on account of the unfortunate accident occurred on 09.01.2011 the deceased Hanamanthrao died on account of rash and negligent driving of the driver of Maxicab bearing Reg.No.KA-38/938. It is also undisputed fact that jurisdictional of police have registered a case against the
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driver of Maxicab in Crime No.2/2011 under Sections 279, 338, 304-A of IPC.
15. PW.1 wife of the deceased has stated on oath that the deceased was earning Rs.6,00,000/- per annum by growing sugarcane in 04 acres of land and he was LIC agent. In support of her case she has produced Ex.P.8 NSSK Membership Card, Ex.P.9 LIC Agent Card, Ex.P.10 Insurance Agency Certificate, Ex.P.11 Cash Receipt, Ex.P.12 Bore-Well Ownership Receipt, Ex.P.13 and 14 Cash Receipts, Exs.P.15 to 17 Record of rights, which clearly indicate that the deceased was agriculturist and was also LIC agent. The Tribunal considering the entire material on record has taken income of the deceased at Rs.9,000/- per month. Taking into consideration the oral and documentary evidence and in the absence of contra material evidence produced by respondent No.2-Insurance Company, we are of the considered opinion that the income of the
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deceased could be taken at Rs.10,500/- and after deducting 1/3rd towards personal income of the deceased, in terms of law laid down in the case of Sarla Verma (Smt) and others Vs. Delhi Transport Corporation and another, reported in (2009) 6 S.C.C. 121, the income of the deceased would be Rs.7,000/- per month (7000 x 12 x 13) the loss of dependency would be Rs.10,92,000/-. The Tribunal without considering the entire material on record has proceeded to grant only Rs.10,000/- towards loss of love and affection and Rs.10,000/- towards loss of consortium, Rs.5,000/- towards funeral expenses and Rs.5,000/- towards medical expenses. In case of death, medical expenses cannot be awarded. Since, the Tribunal has already awarded funeral expenses, we are of the considered opinion that deceased was not entitled for medical expenses. The compensation awarded under other conventional heads is on lower side. Taking into consideration the age of the deceased 50 years and date
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of the accident, we are the considered opinion that the compensation under conventional heads has to be enhanced further.
16. After re-assessing the entire material on record, claimants are entitled compensation as under:-
Loss of Dependency : Rs.10,92,000/-
Funeral Expenses : Rs.25,000/-
Love and Affection : Rs.1,00,000/-
Loss to Estate : Rs.25,000/-
Loss of Consortium : Rs.1,00,000/-
Total : Rs.13,42,000/-
17. Thus, the claimants are entitled to total compensation of Rs.13,42,000/- as against Rs.8,22,000/- awarded by the Tribunal. Accordingly, claimants are entitled to enhanced compensation of Rs.5,20,000/-.
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The Appeal is allowed in part.
The impugned judgment and award passed by II Additional M.A.C.T. and Additional and Sessions Court at Bidar, in MVC.No.128/2012 is modified and the claimants are entitled to enhanced compensation of Rs.5,20,000/- with 6% interest per annum from the date of petition till realization.
Sd/-
JUDGE Sd/-
JUDGE KJJ / SMP