Karnataka High Court
Mahmad Khasim S/O Mahmad Husen And Anr vs Hassan Patel S/O Hanif Patel Patewale ... on 18 April, 2022
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
MFA No.200905/2016 (MV)
C/W
MFA No.200573/2017 (MV)
MFA NO.200905/2016
BETWEEN:
DIVISIONAL MANAGER
ORIENTAL INSURANCE COMPANY LTD.
N.G. COMPLEX, 1ST FLOOR
OPP. MINI VIDHANA SOUDHA
GULBARGA
(NOW REPRESENTED BY
AUTHORIZED SIGNATORY)
... APPELLANT
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
AND:
1. MAHMAD KHASIM
S/O MAHMAD HUSEN
AGE: 44 YEARS, OCC: DRIVER,
2. CHANDABEE
W/O MAHMAD KHASIM
AGE: 41 YEARS, OCC: HOUSE HOLD,
BOTH R/O GOGI
TQ: SHAHAPUR
NOW RESIDING AT PLOT NO: 20
KHADRI CHOWK, ALAND ROAD
GULBARGA- 585 101
2
3. MR.ANIL KUMAR S/O MANIK RAO
AGE: MAJOR, OCC: OWNER OF VEHICLE
R/O H.NO.395, CIB COLONY
BEHIND ASHOK NAGAR POLICE STATION
GULBARGA-585 101
... RESPONDENTS
(BY SRI B.K.HIREMATH, ADVOCATE FOR R1 AND R2;
NOTICE TO R3 DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173 (1) OF THE MV ACT PRAYING TO ALLOW THE
ABOVE APPEAL BY SETTING ASIDE THE IMPUGNED JUDGMENT
AND AWARD 16.02.2016 IN MVC NO.176/2013 PASSED BY THE
II-ADDL. SENIOR CIVIL JUDGE AND MACT AT KALABURAGI.
MFA NO.200573/2017
BETWEEN:
1. MAHMAD KHASIM
S/O MAHMAD HUSEN
AGE: 44 YEARS, OCC: DRIVER
R/O GOGI, TQ. SHAHAPUR
NOW R/O PLOT NO.20
KHADRI CHOWK, ALAND ROAD
KALABURAGI
2. CHANDABEE
W/O MAHMAD KHASIM
AGE: 41 YEARS, OCC: HOUSEHOLD
R/O GOGI, TQ. SHAHAPUR
NOW R/O PLOT NO.20, KHADRI CHOWK
ALAND ROAD, KALABURAGI-585 103
... APPELLANTS
(BY SRI B.K.HIREMATH, ADVOCATE)
3
AND:
1. HASSAN PATEL
S/O HANIF PATEL PATEWALE
AGE: 28 YEARS, OCC: DRIVER
R/O MINAJAGI
TQ. & DIST: KALABURAGI-585 107
2. MR. ANILKUMAR S/O MANIK RAO
AGE: MAJOR, OCC: OWNER OF VEHICLE
R/O H.NO.395, CIB COLONY
BEHIND ASHOK NAGAR
POLICE STATION
KALABURAGI-585 103
3. THE DIVISIONAL MANAGER
ORIENTAL INSURANCE CO. LTD.
N.G.COMPLEX, 1ST FLOOR
OPP: MINI VIDHANA SOUDHA
KALABURAGI-585 102
... RESPONDENTS
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R3;
NOTICE TO R1 SERVED; R2 DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173 (1) OF THE MV ACT PRAYING TO SET ASIDE THE
JUDGMENT AND AWARD PASSED BY THE III ADDL. SENIOR
CIVIL JUDGE AND MACT AT KALABURAGI IN MVC NO.176/2013
DATED 16.02.2016.
THESE APPEALS COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
These appeals arising out of common judgment are filed under Section 173(1) of the Motor Vehicles Act 4 (for short 'the Act') challenging the judgment and award dated 16.02.2016 passed by the III Additional Senior Civil Judge and Motor Accident Claims Tribunal, Kalaburagi (for short hereinafter referred to as 'the Tribunal') in MVC No.176/2013.
2. MFA No.200905/2016 is filed by the Insurance Company challenging quantum of compensation and MFA No.200573/2017 is filed by the petitioners claiming enhancement in the compensation.
3. For the sake of convenience, the parties are referred to as per their ranking before the Tribunal in MFA No.200905/2016. Appellant is respondent No.3; respondent No.1 is petitioner. No.1, respondent No.2 is petitioner No.2; respondent No.3 is respondent No.2 before the Tribunal.
4. Facts giving rise to filing of this appeal are that on 31.01.2012, petitioner No.1 Mahmad Khasim 5 and his son Sharmoddin were returning in lorry bearing registration No.MH-23/1259 from Gogi to Bijapur after unloading the groundnut. While they were coming back at about 6.30 a.m., near Shahapur-Jewargi road, a tipper bearing registration No.KA-32/B-995 came in a rash and negligent manner and dashed to the lorry, as a result, petitioner No.1 and Sharmoddin sustained grievous injuries and Sharmoddin succumbed to the injuries. The petitioners being the legal representatives of the deceased-Sharmoddin filed claim petition under Section 166 of the Act seeking compensation for the death in the road traffic accident.
5. The first and second respondent did not file written statement.
6. The third respondent/Insurance company filed written statement denying the averments made in the claim petition and it was contended that the driver of the offending vehicle was not possessing a valid and 6 effective driving licence as on the date of the accident to drive a particular class of vehicle. Hence, prayed to dismiss the claim petition against respondent No.3.
7. The Tribunal on the basis of the pleadings of the parties framed the issues and recorded the evidence. In order to prove the case, the petitioners examined petitioner No.1 as PW.1 and one witness as P.W.2 and got marked the documents as Exs.P1 to P10. The third respondent/insurance company has not led oral evidence but only marked one document as Ex.D.1.
8. The Tribunal, after recording the evidence and after considering the material on record, allowed the claim petition in part and awarded compensation of Rs.10,57,000/- along with interest at the rate of 6% per annum from the date of claim petition till the date of realization and further held that the respondent Nos.2 and 3 are jointly and severally liable to pay 7 compensation and directed the respondent No.3 to deposit the compensation amount.
9. The Insurance Company aggrieved by the judgment and award filed the appeal challenging the quantum of compensation. The petitioners/appellants being dissatisfied with the compensation awarded by the Tribunal have filed this appeal seeking enhancement of compensation.
10. Heard the learned counsel for the respondent No.3 Insurance Company and learned counsel for the petitioners.
11. The learned counsel for the respondent No.3 submits that the Tribunal has committed an error in adding 50% towards future prospects which is contrary to the law laid down by the Hon'ble Apex Court in the case of National Insurance Co., Ltd., vs. Pranay Sethi and others reported in AIR 2017 SC 5157 . Hence, on this ground she prays to allow the appeal filed 8 by the Insurance Company and dismiss the appeal filed by the petitioners.
12. Per contra, the learned counsel petitioners submits that the compensation awarded by the Tribunal on all heads is on the lower side hence, prays to dismiss the appeal filed by the Insurance Company and allow the appeal filed by the petitioners.
13. I have perused the records and considered the submissions made by the learned counsel for the parties. The point that arises for consideration is with regard to quantum of compensation.
14. The occurrence of the accident, involvement of the offending vehicle in the accident and death of the deceased-Sharmoddin in the accident are not in dispute. In order to prove that the accident has occurred due to the rash and negligent driving of the driver of the offending vehicle, the petitioners have produced copy of charge sheet marked as Ex.P4. From perusal of Ex.P4, it 9 is clear that the accident has occurred due to rash and negligent driving of the driver of the offending vehicle.
15. Insofar as quantum of compensation is concerned, it is the case of the petitioners that the deceased-Sharmoddin was working as a cleaner and getting salary of Rs.6,000/- per month. In order to substantiate the same, the petitioners/appellants did not tender any evidence before the Tribunal. In the absence of proof of income, the notional income of the deceased will have to be taken as per the chart provided by the Karnataka State Legal Services Authority. In terms of the chart, for the accident of the year 2012, the notional income of the deceased will have to be taken at Rs.6,500/- as against Rs.6,000/- per month taken by the Tribunal. To the aforesaid amount, as the deceased was aged 21 years, 40% of the said amount has to be added on account of future prospects in view of the law laid down by the Constitution Bench of the Supreme Court in the case of National Insurance Company 10 Limited vs. Pranay Sethi and Others reported in AIR 2017 SC 5157. Thus, the monthly income comes to Rs. 9,100/-. Out of which, 50% has to be deducted towards his personal expenses as he was a bachelor, and therefore, the monthly income of the deceased comes to Rs.4,550/-. Taking into account the age of the deceased which was 21 years at the time of accident, multiplier of 18 has to be adopted as per the judgment of the Hon'ble Supreme Court in the case of Sarla Verma vs. Delhi Transport Corporation reported in (2009) 6 SCC 121. Therefore, the petitioners are entitled to a sum of Rs.9,82,800/- (Rs.4,550 x 12 x 18) on account of loss of dependency as against Rs.9,72,000/- awarded by the Tribunal.
16. Further, in view of the law laid down by the Hon'ble Supreme Court in the case of Magma General Insurance Company Limited vs. Nanu Ram Alias Chuhru Ram & Others reported in 11 (2018) 18 SCC 130, each petitioner is entitled to a sum of Rs.40,000/- towards loss of consortium. The petitioners are two in number, hence the compensation towards loss of consortium would be Rs.80,000/- (40,000x2). In addition, the petitioners/appellants are entitled a sum of Rs.15,000/- towards funeral expenses and Rs.15,000/- under the head of loss of estate.
17. Thus, in all, the petitioners are entitled to a sum of Rs. 10,92,800/- as against Rs.10,57,000/- awarded by the Tribunal.
18. In view of the above discussion, I proceed to pass the following:
ORDER i. The appeal filed by the Insurance Company is dismissed. The appeal filed by the petitioners/appellants is allowed in part.12
ii. The impugned judgment and award
passed by the Tribunal in MVC
No.176/2013 dated 16.02.2016 is
modified.
iii. The petitioners in MFA No.200573/2017
are entitled to an enhanced
compensation of Rs.35,800/- along
with interest at the rate of 6% per
annum from the date of petition till the date of realization.
iv. The third respondent/insurance
company is directed to deposit the
compensation amount before the
Tribunal within a period of eight weeks from date of the receipt of certified copy of this judgment.
The amount in deposit be transmitted to the Tribunal.
Sd/-
JUDGE VNR