Karnataka High Court
Shobha And Ors vs Vijay And Anr on 13 January, 2022
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF JANUARY 2022
PRESENT
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
AND
THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA
MFA NO.200643/2019 (MV)
BETWEEN:
1. Shobha W/o Ramesh Maharnur,
Age: 31 years, Occ: Household work,
2. Snehal D/o Ramesh Maharnur,
Age: 16 years, Occ: Student,
3. Gaurav S/o Ramesh Maharnur,
Age: 13 years, Occ: Student,
(Petitioner Nos.2 and 3 are minors R/by
Petitioner No.1 as natural mother)
All R/o Madasanal,
Tq: Dist. Vijayapura-586 101.
... Appellants
(By Sri Koujalagi Chandrakant, Advocate)
2
AND:
1. Vijay S/o Dnyandev pol,
Age: 45 years, Occ: Business,
R/o Lalchakki Vibhag, Station Road,
Annapurna Egg Centre,
Ullas Nagar-4 Kalyan,
Maharashtra-421 004.
2. The Manager,
Reliance General Insurance Co. Ltd.,
C.T.S. No.45, Neel Plaza,
Club Road, Hubli-29.
... Respondents
(Smt. Preeti Patil Melkundi, Advocate for R2;
Smt. Sridevi J. Tuppad, Advocate for R1;
V/O Dtd. 17.03.2020 notice to R1 dispensed with)
This Miscellaneous First Appeal is filed under Section
173 (1) of the Motor Vehicles Act, praying to modify the
judgment and award dated 15.10.2018 passed in MVC
No.1729/2016 on the file of the Court of III Addl. Senior
Civil Judge and Motor Accident Claims Tribunal No.XII,
Vijaypur and allow this appeal to grant the compensation
amount Rs.75,30,000/- only as claimed by the appellants
before this Court and order for costs of this appeal.
This appeal coming on for admission this day,
K.S. Hemalekha J., delivered the following:
3
JUDGMENT
The claimants have preferred this appeal seeking enhancement of compensation by assailing the judgment and award dated 15.10.2018 passed in MVC No.1729/2016 by the III Addl. Senior Civil Judge and Motor Accident Claims Tribunal No.XII, Vijaypur (hereinafter referred to as 'the Tribunal' for short).
2. The claimants filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 before the Tribunal claiming compensation on account of death of one Ramesh S/o Vithal Maharnur which occurred in a road traffic accident on 19.10.2016. Claimant No.1 is the wife and claimant Nos.2 and 3 are minor children of deceased Ramesh.
3. It is the case of the claimants that, on 19.10.2016 at about 12.30 p.m. after completion of his personal work at Pandharpur, when the deceased was proceeding on his motorcycle bearing Reg.No.MH-09/AV- 6365 towards Mangalweda in a moderate speed and was 4 near Rajadhani Dhaba at Degaon village, at that time, one Eicher Tempo bearing Reg.No.MH-05/AM-2833 came from the opposite side in a rash and negligent manner and dashed to the motorcycle of the deceased, due to which the deceased suffered head injury and succumbed to the said injuries. It is the further contention of the claimants that at the time of the accident, the deceased was hale and healthy and he was earning Rs.5,00,000/- per annum from his business under the name and style 'Shree Gaurav Road Lines, Transport Contractor, Fleet owner and Trailer Suppliers' at Kamothe, Raighad and he was the only bread earning member of the family.
4. On issuance of notice by the Tribunal, respondent Nos.1 and 2 appeared and filed their written statement.
5. Respondent No.1 contended that the accident occurred due to the rash and negligent driving of the deceased and denied that the driver of the Eicher Tempo has caused the accident. It is further contended that on 5 the date of the accident, the offending vehicle was insured with respondent No.2 and the driver of the vehicle was holding valid licence.
6. Respondent No.2-insurance company filed a written statement contending that the liability of the insurance company is subject to the terms and conditions of the insurance policy. It is further contended that there is violation of the condition under Sections 134(c), 158 (6) and 159 of the Motor Vehicles Act and thus, sought for dismissal of the petition.
7. On the basis of the pleadings of the parties, the Tribunal has framed the following:
ISSUES
1. Whether the petitioners prove that, deceased Ramesh S/o. Vithal Maharnur died due to actionable rash and negligent act of driver of Eicher Tempo bearing Reg.No.MH-05/AM-2833 in the motor vehicle accident on the date, time and the place as being asserted?
2. Whether the respondent No.2 proves that, due to violation of policy conditions, insurer is not liable to pay compensation? 6
3. Whether petition is bad for non-joinder of necessary parties?
4. Whether the petitioners are entitled for the compensation? If so, how much and from whom?
5. What order or award?
Addl. Issues:
1. Whether this tribunal has got jurisdiction to try this petition?
8. In order to substantiate the case, claimant No.1 examined herself as PW.1 and the eye-witnesses as PW.2 and got marked 11 documents as Exs.P1 to P11. On the other hand, respondent No.2-Insruance Company examined its official as RW.1 and got marked Exs.R1 & R2.
9. On the basis of the evidence on record, the Tribunal held that the accident occurred due to the negligence on the part of the driver of the Eicher Tempo and fastened the liability both on respondent Nos.1 and 2 jointly and severally to pay compensation. The Tribunal has awarded compensation of Rs.15,20,000/- along with interest at the rate of 9% per annum from the date of 7 petition till realization of the compensation amount under the following heads:
1. Loss of dependency Rs.14,40,000/-
2. Loss of consortium Rs.30,000/-
3. Loss of love and affection Rs.20,000/-
4. Transportation of dead body Rs.10,000/-
5. Funeral expenses Rs.10,000/-
6. Loss of estate Rs.10,000/-
Total Rs.15,20,000/-
10. The claimants, not being satisfied with the quantum of compensation awarded by the Tribunal have preferred the present appeal.
11. Heard the learned counsel for the appellants/claimants, learned counsel for respondent No.1 and learned counsel for respondent No.2-Insurance Company and perused the material on record.
12. Sri Koujalagi Chandrakant, learned counsel for the appellants would contend that the Tribunal has erred in assessing the monthly income of the deceased at Rs.12,000/- only, without considering the fact that the deceased was earning Rs.5,00,000/- per annum from his 8 business. It is further contended that while awarding compensation towards loss of dependency, the Tribunal has not made provision for future prospects, as the deceased was aged about 40 years and thus, awarding of amount under the head 'loss of dependency' is on the lower side. It is further contended that the compensation awarded under the conventional heads viz., loss of consortium, loss of love and affection, transportation of dead body, funeral expenses and loss of estate and is also on the lower side and requires to be enhanced.
13. Per contra, Smt. Preeti Patil Melkundi, learned counsel for respondent No.2-Insurance Company would contend that the compensation awarded by the Tribunal is just and proper and the manner in which the Tribunal has assessed the compensation would not call for any interference. She would further contend that awarding of interest on the said compensation at the rate of 9% per annum is on the higher side and in the event this Court enhances the compensation, then the interest at the rate 9 of 6% per annum on the enhanced compensation is appropriate.
14. Having heard the learned counsel for the parties, the following point would arise for consideration in this appeal:
Whether the appellants are entitled for enhanced compensation?
15. The fact that deceased Ramesh succumbed to the injuries sustained by him in the road traffic accident that occurred on 19.10.2016 due to the rash and negligent driving of the driver of the Eicher Tempo bearing Reg.No.MH-05/AM-2833 is not in dispute. However, the controversy is with regard to the quantum of compensation awarded by the Tribunal.
16. It is not in dispute that the deceased was running the business under the name and style of Gaurav Road Lines, Transport Contractor, Fleet owner and Trailer Suppliers, but has not produced any document in respect of exact income of his business, nor produced any balance 10 sheet or audit report. The Tribunal has rightly taken the monthly income of the deceased at Rs.12,000/-. The insurance company has not challenged the income assessed by the Tribunal. In view of the same, we deem it proper to hold that the deceased was having monthly income of Rs.12,000/- and on adding 25% i.e., Rs.3,000/-
towards future prospects as per the judgment of the Hon'ble Apex Court in National Insurance Company Limited vs. Pranay Sethi and others reported in (2017) 16 SCC 680, the total income of the deceased would be Rs.15,000/- per month. After deducting 1/3 rd of it towards personal expenses of the deceased and applying the multiplier of 15 as held by the Tribunal, the total compensation payable towards loss of dependency would come to Rs.18,00,000/- (Rs.15,000 x 2/3 x 12 x 15).
17. In view of the dictum of the Honble Apex Court in Satinder Kaur @ Satwinder Kaur & Ors. v. United India Insurance Co. Ltd. reported in AIR 2020 SC 3076 and Magma General Insurance Co. Ltd. vs. 11 Nanu Ram reported in 2018 ACJ 2782, the appellants, who are three in numbers i.e., the wife and children of the deceased would be entitled to Rs.40,000/- each i.e. Rs.1,20,000/- towards loss of spousal and parental consortium. Further, the appellants are entitled to Rs.15,000/- towards loss of estate and Rs.15,000/- towards transportation of dead body, funeral and obsequies ceremony.
18. Thus, in all, the appellants are entitled for total compensation of Rs.19,50,000 as under:
1. Towards loss of dependency Rs.18,00,000/-
2. Towards loss of spousal and Rs.1,20,000/-
parental consortium
3. Towards loss of estate Rs.15,000/-
4. Towards transportation of Rs.15,000/-
dead body, funeral and
obsequies ceremony
Total Rs.19,50,000/
-
19. The Tribunal has already awarded a
compensation of Rs.15,20,000/-. Hence, after deducting the same, the appellants are entitled for enhanced 12 compensation of Rs.4,30,000/- (Rs.19,50,000/- less Rs.15,20,000/-). The Tribunal has awarded interest at the rate of 9% per annum. However, normally this Court as well as the Tribunal would award the interest at 6% per annum. Hence, we think it just and proper to award interest at 6% per annum on the enhanced compensation amount. Accordingly, the point raised for consideration is answered in the affirmative.
20. In the result, we pass the following ORDER
i) The appeal is allowed in part.
ii) The judgment and award dated 15.10.2018 passed by the Tribunal in MVC No.1729/2016 is hereby modified.
iii) The appellants/claimants are entitled for the enhanced compensation of Rs.4,30,000/- with interest at 6% p.a. from the date of petition till realization.
13
iv) The apportionment, deposit and release of the enhanced compensation would be as per the award of the Tribunal.
v) Respondent No.2-insurance company shall deposit the enhanced compensation with updated interest within a period of four weeks from the date of receipt of a certified copy of the judgment.
vi) Parties to bear their respective costs.
Sd/-
JUDGE Sd/-
JUDGE SMP/LG