Karnataka High Court
Miss Rohini @ Padma Lekha Vasudeva ... vs Kumar S/O Babashek Yadav on 27 August, 2012
Author: N K Patil
Bench: N K Patil
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 27TH DAY OF AUGUST 2012
PRESENT
THE HON'BLE MR. JUSTICE N K PATIL
AND
THE HON'BLE MR.JUSTICE B V PINTO
MFA No.1419/2007(MV)
C/W
MFA No.1420/2007(MV)
IN MFA NO.1419/2007
BETWEEN
1. MISS ROHINI @ PADMA LEKHA
VASUDEVA DESHAPANDE,
D/O LATE VASUDEVA DESHPANDE,
AGE : 31 YEARS, PRIMARY SCHOOL TEACHER,
HOUSE NO 2, VISHWASHANTI SOCIETY,
SHANTHI NAGAR, PONDA - GOA.
2. DR. ASAWARI @ PADMAGANDHA
VASUDEV DESHPANDE,
D/O LATE VASUDEVA DESHPANDE,
AGED ABOUT 25 YEARS,
HOUSE NO.2, VISHWATHANTHI SOCIETY,
SHANTHINAGAR, PONDA - GOA.
...APPELLANTS
(By Sri.N. S. BHAT FOR VISHNU D BHAT, ADV.)
2
AND
1. KUMAR S/O BABASHEK YADAV,
AGE : 25 YEARS, R/O.PANDARAPURA,
OCC : DRIVER, TISKA, GOA.
2. PRAKASH VISHWANATH CHARI,
REGISTERD OWNER OF TIPPER,
G.A.02 Z 6650, R/O.PENA SOLE,
DHARBAN DALT SANGAM, GOA.
3. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO., LTD.,
KAYKINI ROAD, KARWAR.
... RESPONDENTS
(By Sri.VIGNESHWAR.S.SHASTRI, ADV.FOR R2,
Sri.A.G.JADHAV, ADV. FOR R3)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 31/1/06 PASSED IN
MVC NO.162/05 ON THE FILE OF CIVIL JUDGE (SR.DN),
CJM, 2ND ADDL.MACT, KARWAR, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
IN MFA NO.1420/2007
BETWEEN
1. MISS ROHINI @ PADMA LEKHA
VASUDEVA DESHAPANDE,
D/O LATE VASUDEVA DESHPANDE,
AGE : 31 YEARS, PRIMARY SCHOOL TEACHER,
HOUSE NO 2, VISHWASHANTI SOCIETY,
SHANTHI NAGAR, PONDA - GOA.
2. DR. ASAWARI @ PADMAGANDHA
VASUDEV DESHPANDE,
D/O LATE VASUDEVA DESHPANDE,
AGED ABOUT 25 YEARS,
3
HOUSE NO.2, VISHWATHANTHI SOCIETY,
SHANTHINAGAR, PONDA - GOA.
...APPELLANTS
(By Sri.N.S.BHAT FOR VISHNU D BHAT, ADV.)
AND
1. KUMAR S/O BABASHEK YADAV,
AGE : 25 YEARS, R/O.PANDARAPURA,
OCC : DRIVER, TISKA, GOA.
2. PRAKASH VISHWANATH CHARI,
REGISTERD OWNER OF TIPPER,
G.A.02 Z 6650, R/O.PENA SOLE,
DHARBAN DALT SANGAM, GOA.
3. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO., LTD.,
KAYKINI ROAD, KARWAR.
... RESPONDENTS
(By Sri.VIGNESHWAR.S.SHASTRI, ADV.FOR R2,
Sri.A.G.JADHAV, ADV. FOR R3)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 31/1/06 PASSED IN
MVC NO.163/05 ON THE FILE OF CIVIL JUDGE (SR.DN),
CJM, 2ND ADDL.MACT, KARWAR, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THISE APPEALS COMING ON FOR HEARING , THIS
DAY, N K PATIL J., DELIVERED THE FOLLOWING.
4
JUDGMENT
These two appeals arise out of the common Judgment and Award dated 31.01.2006 passed in MVC Nos.162/05 and 163/05 on the file of the II-Addl. Motor Accident Claims Tribunal, Karwar, on account of death of the deceased father and mother of the claimants in a road traffic accident.
2. The brief facts of the case are that, the claimants-1 and 2/appellants herein are the daughters of deceased late Vasudeo R. Deshpande and Smt Padmali Vasudev Deshpande. Both the deceased were hale and healthy prior to the accident. Be that as it may, at about 15.30 hours on 18.10.2003 the deceased persons met with an accident when they were proceeding towards Anmod side from Goa on Maruti Omni bearing Reg.No.GA-01/E- 9993. It is contended that the deceased Vasudeo R. Deshpande being the owner of the Maruti Omni was driving the same in a moderate speed by following the traffic rules. At that time, a Tipper bearing Reg.No.GA- 5 02/Z-6650 loaded with manganese ore came from opposite direction driven by its driver Respondent No.1, in a rash and negligent manner on the wrong side of the road and dashed against the Maruti Omni. Due to the said impact, the father of the claimants who was driving the Maruti Omni died on the spot and his wife later on succumbed to the injuries and daughter sustained grievous injuries.
3. It is the case of the claimants that the driver of the offending vehicle drove the same in a rash and negligent manner while there was no negligence on the part of the deceased Vasudeo R. Deshpande, who was driving his Maruti Omni. Further the case of the claimant was that, the deceased Vasudeo R. Deshpande was the Principal of the V.V.M.S. Higher Secondary School at Paramagudi, Ponda, Goa, and was earning Rs.20,000/- per month as his salary. The deceased mother was housewife. Due to the untimely death of both the parents, the claimants suffered mental shock and agony and were 6 entirely dependant on the earnings of the deceased father. Due to the untimely death of the deceased mother and father in the road traffic accident, the claimants being the daughters have suffered shock and agony and they have been deprived of love and affection, guidance and security.
4. Further they have contended that their mother who sustained multiple grievous injuries was shifted to KLE Hospital, Belgaum and she was an inpatient in the said hospital till 3.11.2003. On 3.11.2003 she was shifted to Kasturba Hospital, Manipal, for better treatment but she succumbed to the injuries on 5.11.2003.
5. The claimants filed the claim petitions under Section 166 of the Motor Vehicles Act, seeking compensation on account of untimely death of their parents.
6. The Tribunal, after appreciation of oral and material evidence on record has allowed the claim petition MVC.162/2005 in part, awarding a sum of Rs.11,71,272/- 7 to the claimants on account of the death of their father, awarding Rs.11,41,272/- towards loss of dependency, Rs.10,000/- towards loss of love and affection, Rs.5,000/- towards conveyance charge, Rs.5,000/- towards funeral expenses and Rs.10,000/- towards loss of estate and Rs.3,42,896/- in MVC.163/2005 filed by the claimants on account of the death of their mother. In the said claim, the Tribunal has awarded Rs.1,76,000/- towards loss of dependency, Rs.1,47,972/- towards medical expenses, Rs.20,000/- towards loss of love and affection, Rs.5,324/- towards conveyance, Rs.3,000/- towards funeral expenses, Rs.5,000/- towards loss of estate and Rs.3,600/- towards attendant and diet charges.
7. Being not satisfied with the impugned awards, the claimants have preferred these appeals.
8. Learned Counsel for the appellants has contended that the Tribunal has grossly erred in assessing the income of the deceased father. The deceased was getting a salary of Rs.20,345/-. But instead of deducting 8 1/3rd from the gross salary, 1/3rd is deducted from the net salary of Rs.12,969/- towards personal expenses which comes to Rs.8,646/- and by applying the multiplier of 11 by taking the age of the deceased as 56 years, the Tribunal awarded compensation of Rs.11,41,272/- (8646 x 12 x 11) towards the loss of dependency, which is inadequate and requires enhancement.
It is further contended that the same error is committed in taking the income of the deceased mother who was a housewife and she was doing housework and there were 4 members in the house and hence, reasonable compensation ought to have been awarded under conventional heads.
9. Per contra, learned Counsel for 2nd respondent owner of the offending vehicle contended that, the Tribunal ought to have fastened the liability on the 3rd respondent-insurer instead of insured and fixed the liability on the part of the driver and owner of the offending vehicle Tipper bearing Reg.No.GA-02/Z-6650, as the offending 9 vehicle was insured with the insurer. Therefore he submitted that the impugned judgment is liable to be modified.
10. Learned Counsel for respondent-3 insurer, inter alia contended and substantiated the impugned judgment and award and submitted that the Tribunal after considering the oral and documentary evidence is justified in fastening the liability on the part of respondents 1 and 2
- owner and driver of the offending vehicle. So far as the terms and conditions of the policy are concerned, the insurer is also liable to pay in view of the fact that as per the Schedule, compulsory premium to the owner and driver at Rs.100/- and the workmen's compensation to employee at 25/- has been collected. But the same has not been claimed within the prescribed limitation period. Therefore, interference by this Court is not called for.
11. The 1st respondent though served has remained un-represented.
10
12. After perusal of the impugned common judgment and award passed by the Tribunal, it is not in dispute that the accident resulted in the death of parents of the claimants, due to the grievous injuries sustained in the road traffic accident. It is specific case of the claimant that due to the rash and negligent driving by the driver of the offending vehicle, the accident occurred. The deceased Vasudevrao Deshpande was driving his Maruti Omni in a moderate speed, by observing traffic rules and due to the rash and negligent driving by the driver of the Tipper the Maruti Omni met with an accident which resulted in the death of Vasudevrao Deshpande on the spot and after few days the claimants' mother Smt Padmali also succumbed to the grievous injuries.
13. It is the specific case of the appellants that the deceased Vasudevrao Deshpande was working as the Principal of the V.V.M.S. Higher Secondary School at Paramagudi, Ponda, Goa and was drawing a salary of Rs.20,345/- p.m, out of which admissible deductions are 11 only Income Tax and Professional Tax. The Tribunal has rightly assessed the income of the deceased at Rs.12,969/- per month and out of this 1/3rd is deducted towards personal expenses of the deceased, which is Rs.8846/- and by applying the multiplier of 11 taking the age of the deceased at 56 years at the time of the accident has rightly awarded compensation of Rs.11,41,272/- towards loss of dependency as also towards conventional heads, for the death of their deceased father. In our opinion, the Tribunal has after due appreciation of oral and documentary evidence in para-16 of the impugned judgment has rightly awarded the compensation on various heads and it does not call for interference.
14. Further the Tribunal is justified in awarding total compensation of Rs.3,42,896/- due to death of claimants' mother Smt Padmali. The Tribunal has taken into consideration all the material documents into consideration while awarding compensation on different heads like, loss of dependency, medical expenses, loss of 12 love and affection, conveyance charges, towards funeral expenses, attendant and diet charges and loss of estate, which in our opinion, does not call for interference by this Court.
15. The learned Counsel for the appellant- claimants submitted that the premium paid is incorporated under Schedule of Premium and the Tribunal ought to have taken judicial notice of the same as the vehicle is insured with respondent-3 as on the date of the accident. However, the learned Counsel for respondent-3 submitted that, the claimants are entitled to the same if a claim is made within the prescribed period of limitation.
16. Taking into consideration the above aspects, these two appeals stand disposed of confirming the impugned common judgment and award dated 31.01.2006, passed by the II Addl. MACT, Karwar, in MVC.No.163/2005. However, liberty is reserved to the appellants to file necessary application before the 3rd respondent insurer as per Schedule-II of the premium 13 within a period of 4 weeks from the date of receipt of a copy of this judgment. In the event of filing such an application respondent-3 shall receive the same and pass appropriate orders for paying compensation if not already paid.
Office to draw the award.
Sd/-
JUDGE Sd/-
JUDGE Sub/