Karnataka High Court
Divisional Maanger, vs V. Nallathai W/O. Velupandiayan on 5 June, 2017
Author: S.N.Satyanarayana
Bench: S.N. Satyanarayana
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 05TH DAY OF JUNE 2017
BEFORE
THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA
MFA.No.20465/2012 (MV)
C/W
MFA.No.20466/2012 (MV)
MFA.No.20467/2012 (MV)
MFA.No.20468/2012 (MV)
MFA.No.20469/2012 (MV)
MFA.No.22882/2012 (MV)
MFA.No.22883/2012 (MV)
MFA.No.22884/2012 (MV)
MFA.No.22885/2012 (MV)
MFA.No.22886/2012 (MV)
IN MFA.No.20465/2012 (MV)
BETWEEN:
DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO.LTD.,
DIVISIONAL OFFICE,
SEETA SMRITI, P.B.NO.156,1568,
MARUTI GALLI, BELGAUM.
BY ITS SENIOR DIVISIONAL MANAGER,
.. APPELLANT
(BY SRI.NAGANAGOUDA R. KUPPELLUR, ADV.)
2
AND:
1. SMT. V.NALLATHAI W/O VELUPANDIAYAN
AGE: 49 YEARS, OCC: NIL,
2. VELUPANDIAYAN S/O VAIKUNDRAMAN THEVAR
AGE: 52 YEARS, OCC: NIL,
RESPONDENT No.1 and 2 ARE RESIDENCE OF
BANUDAS TAKI, COMPOUND WAGIL NAKA
NIGH SURAJ WATER PART, VIJAY ENGLIVE
GOLD BANDAR ROAD THANE,
WEST MUMBAI.
3. ANTHONY RAYAPPA KITTUR,
AGE: 43 YEARS, OCC: BUSINESS,
C/O B.R.ANGADI, BADAMI ONI,
4. THE MANAGER,
SHRIRAM GENERAL INSURANCE CO.LTD.,
CROP. OFFICE, E.B.EPIP RIICO INDUSTRIAL AREA
SITAPUR, JAIPUR 22, RAJASTHAN
(INSURER OF THE TRUCK BEARING NO.KA-25/B-5363)
5. DILIP HEMENDU CHOWDHARRY
AGE: 46 YEARS, OCC: BUSINESS,
R/O: FLAT NO.402, BUILDING NO.5.
NEELAM NAGAR, MULAND EAST-MUMBAI
PIN-400081.
6. CHITTOR SUBRAMANIYAN VISHWANATHAN
AGE: 81 YEARS, OCC: BUSINESS,
R/O:A/17, ENDEAVOUR CO-OPERATIVE HOUSING
SOCIETY LIMITED VIODYALAYA ROAD,
MULUND (E) MUMBAI-81.
...RESPONDENTS
(SRI.ASHOK A. NAIK, ADV. FOR R1 AND R2)
(SRI.NAGARAJ C.KOLLOORI ADV. FOR R4)
(R3-NOTICE HELD SUFFICIENT)
(R5 AND R6-ARE SERVED)
3
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV
ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED
30.07.2011 PASSED IN MVC NO.1354/2010 ON THE FILE FO
THE PRESIDING OFFICER, FAST TRACK COURT-II AND MEMBER,
ADDITIONAL MACT., BELGAUM AWARDING COMPENSATION OF
RS.3,86,000/- WITH INTEREST AT THE RATE OF 9% P.A. FROM
THE DATE OF PETITION TILL ITS REALIZATION FROM
RESPONDENT NO.4.
IN MFA.No.20466/2012 (MV)
BETWEEN:
DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO.LTD.,
DIVISIONAL OFFICE, SEETA SMRITI, P.B.NO.156,1568,
MARUTI GALLI, BELGAUM.
BY ITS SENIOR DIVISIONAL MANAGER
....APPELLANT
(BY SRI.NAGANAGOUDA R. KUPPELLUR, ADV.)
AND:
1. SRI.THIRUMALNAMBI S/O PINNAV THAVAR,
AGE: 22 YEARS, OCC: STUDENT
2. SRI. ARUNAKUMAR S/O PINNAV THAVAR,
AGE: 20 YEARS, OCC: STUDENT.
RESPONDENT NO.1 AND 2 ARE RESIDENTS OF
NO.149, SEITHUNAGANULLU, KESPA
SEITHUNGANALUR (P) SHRIVAIKUNTUM T.K.
DIST: TOOTHUKUDI, STATE: TAMILNADU.
NOW AT: KUMBAR GALLI,KAKATI,
TQ AND DIST: BELGAUM.
3. ANTHONY RAYAPPA KITTUR
AGE: 43 YEARS, OCC: BUSINESS,
C/O.B.R.ANGADI, BADAMI ONI,
SAINAGAR, HUBLI.
4. THE MANAGER,
SHRIRAM GENERAL INSURANCE CO.LTD.,
CROP OFFICE, E.B.EPIP RIICO INDUSTRIAL AREA
SITAPUR, JAIPUR 22, RAJASTHAN
(INSURER OF THE TRUCK BEARING NO.KA-25/B-5363)
4
5. DILIP HEMENDU CHOWDHARRY
AGE: 46 YEARS, OCC: BUSINESS,
R/O: FLAT NO.402, BUILDING NO.5
NEELAM NAGAR, MULAND EAST - MUMBAI
PIN-400081.
6. CHITTOR SUBRAMANIYAN VISHWANATHAN
AGE: 81 YEARS, OCC: BUSINESS,
R/O: A/17, ENDEAVVOR CO-OPERATIVE HOUSING
SOCIETY LIMITED
VIODYALAYA ROAD
MULUND (E) MUMBAI -81
...RESPONDENTS
(SRI.ASHOK.A.NAIK.ADV. FOR R1 & R2)
(SRI.NAGARAJ.C.KOLLOORI ADV. FOR R4)
(R3-HELD SUFFICIENT)
(R5 AND R6 ARE SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED 30.7.2011
PASSED IN MVC NO.1356/2010 ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACK COURT-II AND MEMBER
ADDITIONAL, MACT, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA.No.20467/2012 (MV)
BETWEEN:
DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO.LTD.,
DIVISIONAL OFFICE, SEETA SMRITI, P.B.NO.156,1568,
MARUTI GALLI, BELGAUM.
BY ITS SENIOR DIVISIONAL MANAGER
...APPELLANT
(BY SRI.NAGANAGOUDA R. KUPPELLUR, ADV.)
AND:
1. SRI. THANGAM S/O VERUNAM THEVAR,
AGE: 22 YEARS, OCC: TAILORING,
R/O: BANUDAS TAKI, COMPOUND WAGIL NAKA
5
NIGH SURAJ WATER PARK,VIJAY ENGLIVE
GOLD BANDAR ROAD, THANE,
WEST MUMBAI.
2. ANTHONY RAYAPPA KITTUR,
AGE: 43 YEARS, OCC: BUSINESS,
C/O.B.R.ANGADI, BADAMI ONI,
SAINAGAR HUBLI.
3. THE MANAGER,
SHRIRAM GENERAL INSURANCE CO.LTD.,
CROP OFFICE, E.B.EPIP RIICO INDUSTRIAL AREA
SITAPUR, JAIPUR 22, RAJASTHAN
(INSURER OF THE TRUCK BEARING NO.KA-25/B-5363)
4. DILIP HEMENDU CHOWDHARRY
AGE: 46 YEARS, OCC: BUSINESS,
R/O: FLAT NO.402, BUILDING NO.5
NEELAM NAGAR, MULAND EAST - MUMBAI
PIN-400081.
5. CHITTOR SUBRAMANIYAN VISHWANATHAN
AGE: 81 YEARS, OCC: BUSINESS,
R/O: A/17, ENDEAVVOR CO-OPERATIVE HOUSING
SOCIETY LIMITED
VIODYALAYA ROAD
MULUND (E) MUMBAI -81
...RESPONDENTS
(SRI.ASHOK.A.NAIK.ADV. FOR R1)
(SRI.NAGARAJ.C.KOLLORI,ADV FOR R3)
(R4 AND R5 ARE SERVED)
(R2-HELD SUFFICIENT)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED
30.07.2011, PASSED IN MVC NO.2953/2010 ON THE FILE OF
THE PRESIDING OFFICER, FAST TRACK COURT-II AND
MEMBER,ADDITIONAL MACT, BELGAUM AWARDING THE
COMPENSATION OF RS.3,39,600/- WITH INTEREST AT THE
RATE OF 9% P.A. FROM THE DATE OF PETITION TILL ITS
REALISATION.
6
MFA.No.20468/2012 (MV)
BETWEEN:
DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO.LTD.,
DIVISIONAL OFFICE, SEETA SMRITI, P.B.NO.156,1568,
MARUTI GALLI, BELGAUM.
BY ITS SENIOR DIVISIONAL MANAGER
...APPELLANT
(BY SRI.NAGANAGOUDA R. KUPPELLUR, ADV.)
AND:
1. KAVITA RAJU NADAR,
AGE: 20 YEARS, OCC: PRIVATE SERVICE,
R/O: 144/43-49, GHARY PUTRA MITRA
MANDAL SOCIETY, VIKROLI EAST MUMBAI-83.
2. ANTHONY RAYAPPA KITTUR,
AGE: 43 YEARS, OCC: BUSINESS,
CO.B.R.ANGADI, BADAMI ONI,
3. THE MANAGER,
SHRIRAM GENERAL INSURANCE CO.LTD.,
CROP OFFICE, E.B.EPIP RIICO INDUSTRIAL AREA
SITAPUR, JAIPUR 22, RAJASTHAN
(INSURER OF THE TRUCK BEARING NO.KA-25/B-5363)
4. DILIP HEMENDU CHOWDHARRY
AGE: 46 YEARS, OCC: BUSINESS,
R/O: FLAT NO.402, BUILDING NO.5
NEELAM NAGAR, MULAND EAST - MUMBAI
PIN-400081.
5. CHITTOR SUBRAMANIYAN VISHWANATHAN
AGE: 81 YEARS, OCC: BUSINESS,
R/O: A/17, ENDEAVVOR CO-OPERATIVE HOUSING
SOCIETY LIMITED
VIODYALAYA ROAD
MULUND (E) MUMBAI -81
...RESPONDENTS
(SRI.ASHOK.A.NAIK.ADV. FOR R1)
(SRI.NAGARAJ.C.KOLLORI,ADV FOR R3)
(R4 AND R5 ARE SERVED) (R2-HELD SUFFICIENT)
7
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED
30.07.2011, PASSED IN MVC NO.2954/2010 ON THE FILE OF
THE PRESIDING OFFICER, FAST TRACK COURT-II AND
MEMBER,ADDITIONAL MACT, BELGAUM AWARDING THE
COMPENSATION OF RS.92,000/- WITH INTEREST AT THE RATE
OF 9% P.A. FROM THE DATE OF PETITION TILL ITS
REALISATION.
MFA.No.20469/2012 (MV)
BETWEEN:
DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO.LTD.,
DIVISIONAL OFFICE, SEETA SMRITI, P.B.NO.156,1568,
MARUTI GALLI, BELGAUM.
BY ITS SENIOR DIVISIONAL MANAGER
...APPELLANT
(BY SRI.NAGANAGOUDA R. KUPPELLUR, ADV.)
AND:
1. SRI.SHIVAJI S/O CHANGADEV DUDHADE,
AGE: 50 YEARS, OCC: NIL
2. SMT. SUREKHA W/O SHIVAJI DUDHADE,
AGE: 48 YEARS, OCC:HOUSEHOLD,
RESPONDENT NO.1 AND 2 ARE RESIDENTS OF
BEHIND TMC SCHOOL NO.43,
MAJIWADE THANE - 01
NOW AT : KUMBAR GALLI KAKATI,
TQ AND DIST: BELGAUM.
3. ANTHONY RAYAPPA KITTUR,
AGE: 43 YEARS, OCC: BUSINESS,
CO.B.R.ANGADI, BADAMI ONI,
4. THE MANAGER,
SHRIRAM GENERAL INSURANCE CO.LTD.,
CROP OFFICE, E.B.EPIP RIICO INDUSTRIAL AREA
8
SITAPUR, JAIPUR 22, RAJASTHAN
(INSURER OF THE TRUCK BEARING NO.KA-25/B-5363)
5. DILIP HEMENDU CHOWDHARRY
AGE: 46 YEARS, OCC: BUSINESS,
R/O: FLAT NO.402, BUILDING NO.5
NEELAM NAGAR, MULAND EAST - MUMBAI
PIN-400081.
6. CHITTOR SUBRAMANIYAN VISHWANATHAN
AGE: 81 YEARS, OCC: BUSINESS,
R/O: A/17, ENDEAVVOR CO-OPERATIVE HOUSING
SOCIETY LIMITED
VIODYALAYA ROAD
MULUND (E) MUMBAI -81
...RESPONDENTS
(SRI.ASHOK.A.NAIK.ADV. FOR R1 AND R2)
(SRI.NAGARAJ.C.KOLLORI,ADV FOR R4)
(R5 AND R6 ARE SERVED)
(R3-HELD SUFFICIENT)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED
30.07.2011, PASSED IN MVC NO.1355/2010 ON THE FILE OF
THE PRESIDING OFFICER, FAST TRACK COURT-II AND
MEMBER,ADDITIONAL MACT, BELGAUM AWARDING THE
COMPENSATION OF RS.4,60,000/- WITH INTEREST AT THE
RATE OF 9% P.A. FROM THE DATE OF PETITION TILL ITS
REALISATION.
MFA.No.22882/2012 (MV)
BETWEEN:
1. V.NALLATHAI W/O VELUPANDIAYAN
AGE: 48 YARS, OCC: NIL
R/O: BANUDAS TAKI COMPOUND WAGIL NAKA
NIGH SURAJ WATER PARK, VIJAY ENGLIVE
GODBANDAR ROAD, THANE,
WEST MUMBAI.
2. VELUPANDIAYAN
AGE: 50 YEAR, OCC: NIL
R/O: BANUDAS TAKI COMPOUND WAGIL NAKA
9
NIGH SURAJ WATER PARK, VIJAY ENGLIVE
GODBANDAR ROAD, THANE,
WEST MUMBAI.
...APPELLANTS
(SRI.ASHOK.A.NAIK,ADV.)
AND:
1. ANTHONY RAYAPPA KITTUR,
AGE: 43 YEARS, OCC: BUSINESS,
C/O.B.R.ANGADI, BADAMI ONI,
SAI NAGAR, HUBLI.
2. THE MANAGER,
SHRIRAM GENERAL INSURANCE CO.LTD.,
CORP.OFFICE, E.B.EPIP RIICO,INDUSTRIAL AREA
SITAPUR JAIPUR 22, RAJASTHAN.
3. DILIP HEMENDU CHOWDHARY
AGE ABOUT 46 YEARS, OCC: BUSINESS,
R/O.FLAT NO.402, BUILDING NO.5
NEELAM NAGAR, MULAND EAST-MUMBAI
PIN-400 081.
4. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE COMPANY LTD.,
D.O.AT MARUTI GALLI, BELGAUM.
5. CHITTOR SUSBRAMANIYAN VISHWANATHAN
AGE: 81 YEARS, OCC: BUSINESS,
R/O.A/17, ENDEAVOUR CO.OPERATIVE HOUSING
SOCIETY LIMITED, VIODYALAYA ROAD,
MULUND(E) MUMBAI-81.
...RESPONDENTS
(R1 AND R5-NOTICE DISPENSED)
(SRI.NAGARAJ C.KOLLORI,ADV. FOR R2)
(R3-SERVED)
(SRI. NAGANAGOUDA R. KUPPELLUR ADV. FOR R4)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED
30.07.2011, PASSED IN MVC NO.1354/2010 ON THE FILE OF
10
THE PRESIDING OFFICER, FAST TRACK COURT-II AND
MEMBER,ADDITIONAL MACT, BELGAUM PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
MFA.No.22883/2012 (MV)
BETEWEEN:
1. SHRI.SHIVAJI CHANGADEV DUDHADE
AGE: 49 YEARS, OCC: NIL,
R/O: BEHIND TMC SCHOOL NO.43,
MAJIWADE THANDE 01, NOW AT KUMBAR GALLI,
KAKATI, TQ AND DIST: BELGAUM.
2. SMT. SUREKHA W/O SHIVAJI DUDHADE
AGE: 47 YEARS, OC: HOUSEHOLD
R/O: BEHIND TMC SCHOOL NO.43,
MAJIWADE THANDE 01, NOW AT KUMBAR GALLI,
KAKATI, TQ AND DIST: BELGAUM.
..APPELLANTS
(SHRI.ASHOK.A.NAIK,ADV.)
AND:
1. ANTHONY RAYAPPA KITTUR
AGE: 43 YEARS, OCC: BUSINESS,
C/O.B.R.ANGADI, BADAMI ONI,
SAI NAGAR, HUBLI.
2. THE MANAGER,
SHRIRAM GENERAL INSURANCE CO.LTD.,
CORP.OFFICE, E.B.EPIP RIICO INDUSTRIAL AREA
SITAPUR JAIPUR 22, RAJASTHAN.
3. DILIP HEMENDU CHOWDHARY
AGE ABOUT 46 YEARS, OCC: BUSINESS,
R/O: FLAT NO.402, BUILDING NO.5,
11
NEELAM NAGAR, MULAND EAST - MUMBAI
PIN 400 081.
4. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE COMPANY LTD.,
D.O.AT MARUTI GALLI, BELGAUM.
5. CHITTOR SUSBRAMANIYAN VISHWANATHAN
AGE: 81 YEARS, OCC: BUSINESS,
R/O.A/17, ENDEAVOUR CO. OPERATIVE HOUSING
SOCIETY LIMITED. VIODYALAYA ROAD,
MULUND(E) MUMBAI-81
....RESPONDENTS
(SRI.NAGARAJ.C.KOLLOORI, ADV.FOR R2)
(SRI.N.R.KUPPELLUR ADV. FOR R4)
(R1,R3 & R5 ARE NOTICE DISPENSED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DATED 30.07.2011,
PASSED IN MVC NO.1355/2010 ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACK COURT-II AND MEMBER
ADDITIONAL MACT,BELGAUM, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
MFA.No.22884/2012 (MV)
BETWEEN:
1. SHRI. THIRUMALNAMBI S/O. PINNAV THEVAR
AGE: 22 YEARS, OCC: STUDENT
R/O: NO.149, SITHUNGANALLUR KESPA
SEITHUNGANALUR (P) SRIVAIKUNTAM TK
DIST: TOOTHUKUDI, STATE: TAMILNADU
AND ALSO AT MUMBAI NOW AT KUMBAR GALLI
KAKATI TAL AND DIST: BELGAUM.
REPRESENTED BY HIS POWER OF ATTORNEY
HOLDER - APPELLANT NO.2
2. ARUNKUMAR PINNAV THEVAR
AGE: 19 YEARS, OCC: STUDENT.
R/O: NO.149, SITHUNGANALLUR KESPA
12
SEITHUNGANALUR (P) SRIVAIKUNTAM TK
DIST: TOOTHUKUDI, STATE: TAMILNADU
AND ALSO AT MUMBAI NOW AT KUMBAR GALLI
KAKATI TAL AND DIST: BELGAUM.
REPRESENTED BY HIS POWER OF ATTORNEY
HOLDER - APPELLANT NO.2
...APPELLANTS
(SRI.ASHOK A.NAIK, ADV.)
AND:
1. ANTHONY RAYAPPA KITTUR,
AGE: 43 YEARS, OCC: BUSINESS,
C/O.B.R.ANGADI, BADAMI ONI,
SAI NAGAR, HUBLI.
2. THE MANAGER,
SHRIRAM GENERAL INSURANCE CO.LTD.,
CORP.OFFICE, E.B.EPIP RIICO INDUSTRIAL AREA
SITAPUR, JAIPUR 22, RAJASTHAN.
3. DILIP HEMENDU CHOWDHARY
AGE ABOUT 46 YEARS, OCC: BUSINESS,
R/O. FLAT NO.402, BUILDING NO.5,
NEELAM NAGAR, MULAND EAST-MUMBAI
PIN - 400 081.
4. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO.LTD.,
D.O.AT MARUTI GALLI, BELGAUM.
5. CHITTOR SUSBRAMANIYAN VISHWANATHAN
AGE: 81 YEARS, OCC: BUSINESS,
R/O.A/17, ENDEAVOUR CO-OPERATIVE HOUSING
SOCIETY LIMITED, VIODYALAYA ROAD,
MULUND(E) MUMBAI - 81.
....RESPONDENTS
(SRI. NAGARAJ C.KOLLOORI, ADV. FOR R2)
(SRI.N.R.KUPPELLUR ADV. FOR R4)
(R1,R3 AND R5-NOTICE DISPENSED WITH)
THIS MFA FILED UNDER SECTION 173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DATED 30.07.2011
PASSED IN MVC NO.1356/2010 ON THE FILE OF THE
13
PRESIDING OFFICER, FAST TRACK COURT-II AND MEMBER
ADDITIONAL MACT, BELGAUM, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
MFA.No.22885/2012 (MV)
BETWEEN:
THANGAM VERUNAM THEVAR
AGE: 22 YEARS, OCC: TAILORING
R/O: BANUDAS TAKI COMPOUND WAGIL NAKA
HIGH SURAJ WATER PARK, VIJAY ENGLIVE
GODBANDAR ROAD, THANE, WEST MUMBAI.
...APPELLANT
(SRI.ASHOK A. NAIK,ADV.)
AND:
1. ANTHONY RAYAPPA KITTUR,
AGE: 43 YEARS, OCC: BUSINESS,
C/O.B.R.ANGADI, BADAMI ONLI,
SAI NAGAR, HUBLI.
2. THE MANAGER,
SHRIRAM GENERAL INSURANCE CO.LTD.,
CORP.OFFICE, E.B.EPIP RIICO INDUSTRIAL AREA
SITAPUR JAIPUR 22, RAJASTHAN.
3. DILIP HEMENDU CHOWDHARY
AGE ABOUT 46 YEARS, OCC: BUSINESS,
R/O. FLAT NO.402, BUILDING NO.5,
NEELAM NAGAR, MULAND EAST - MUMBAI
PIN 400 081.
4. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE COMPANY LTD.,
D.O.AT MARUTI GALLI, BELGAUM.
5. CHITTOR SUSBRAMANIYAN VISHWANATHAN
AGE: 81 YEARS, OCC: BUSINESS,
R/O: A/17 ENDEAVOUR CO-OPERATIVE HOUSING
14
SOCIETY LIMITED VIODYALAYA ROAD,
MULUND(E) MUMBAI-81.
...RESPONDENTS
(R1-NOTICE DISPENSED)
(SRI.NAGARAJ C.KOLLOORI,ADV. FOR R2)
(R3 AND R5 ARE SERVED)
(SRI.N.R.KUPPELLUR, ADV. FOR R4)
THE MFA FILED UNDER SECTION 173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DATED 30.07.2011
PASSED IN MVC NO.2953/2010 ON THE FILE OF PRESIDING
OFFICER, FAST TRACK COURT-II AND MEMBER ADDITIONAL
MACT, BELGAUM, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
MFA.No.22886/2012 (MV)
BETWEEN:
KAVITA RAJU GANESH NADAR
AGE: 19 YEARS, OCC: PRIVATE SERVICE
R/O.144/4349, GHARY PUTRA MITRA
MANDAL SOCIETY, VIKROLI EAST
MUMBAI-83.
...APPELLANT.
(SRI.ASHOK A. NAIK, ADV.)
AND:
1. ANTHONY RAYAPPA KITTUR
AGE: 43 YEARS OCC: BUSINESS
C/O.B.R.ANGADI, BADAMI ONI,
SAI NAGAR, HUBLI
2. THE MANAGER,
SHRIRAM GENERAL INSURANCE CO.LTD.,
CORP.OFFICE, E.B.EPIP RIICO INDUSTRIAL AREA
SITAPUR, JAIPUR 22, RAJASTHAN.
3. DILIP HEMENDU CHOWDHARY
AGE ABOUT 46 YEARS, OCC: BUSINESSS,
R/O: FLAT NO.402, BUILDING NO.5,
15
NEELAM NAGAR, MULAND EAST-MUMBAI
PIN- 400 081.
4. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE COMPNAY LTD.,
D.O.AT MARUTI GALLI, BELGAUM.
5. CHITOR SUSBRAMANIYAN VISHWANATHAN
AGE: 81 YEARS, OCC: BUSINESS,
R/O.A/17, ENDEAVOUR CO-OPERATIVE HOUSING
SOCIETY LIMITED, VIODYALAYA ROAD,
SOCIETY LIMITED, VIODYALAYA ROAD,
MULUND(E) MUMBAI-81.
...RESPONDENTS.
(SRI.NAGARAJ C.KOLLORI, ADV. FOR R2)
(SRI.N.R.KUPPELLUR ADV. FOR R4)
(R1,R3 AND R5 - NOTICE DISPENSED)
THIS MFA FILED UNDER SECTION 173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DATED 30.07.2011,
PASSED IN MVC NO.2954/2010 ON THE FILE OF THE
PRESIDING OFFCER, FAST TRACK COURT-II AND MEMBER,
ADDITIONAL MACT, BELGAUM. PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THESE APPEALS COMING ON FOR HEARING ON I.A THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These ten appeals arise out of common judgment and award passed in MVC Nos.1354 to 1356, 2953 and 2954 of 2010, on the file of Fast Track Court II and Additional MACT, Belagavi. Five 16 appeals in MFA Nos.20465 to 20469/2012 are by the insurance company challenging the liability and as well as quantum. Appeals in MFA.Nos.22882/2012 to 22886/2012 are by the claimants in aforesaid claim petitions seeking enhancement of compensation. All the ten appeals are taken up together, heard and disposed of by this common judgment.
2. Brief facts leading to these appeals are as under:
Out of five claim petitions before the tribunal two are by the inmates of TATA Qualis No.MH-06/W-604, who suffered injuries in the accident dated 15.06.2010 involving truck bearing registration No.KA-25/B-5363. Remaining three petitions are by the legal heirs of deceased inmates of vehicle involved in the said road traffic accident. One of the deceased persons, is the driver of TATA Quails. Whose LR's have filed claim petition under section 163(A) of M.V.Act and other petitions are under section 166 of M.V.Act. 17
3. Admittedly, the accident which has taken place on 15.06.2010 involving Qualis bearing registration No.MH-06/W-604 and truck bearing registration No.KA-25/B-5363, is not in dispute, so also death of three persons including a driver and two other inmates injured in the said accident. Therefore, aforesaid five claim petitions came to be filed. Out of them, MVC Nos.1354, 1355 and 1356 of 2010 are by the legal heirs of three deceased persons in the said accident. Again, out of said three petitions, two are under Section 166 of MV Act, i.e., MVC Nos.1354 and 1356 of 2010. So far as MVC No.1355/2010 is concerned, it is under section 163(A) of MV Act, which is filed by the legal heirs of deceased driver of quails.
4. The other two claim petitions are MVC Nos.2953 and 2954 of 2010. These two claim petitions are by the injured inmates of quails. All the five claim 18 petitions were taken up together by the court below and disposed of by common judgement by determining and awarding compensation to each of the claimants on the basis of evidence available on record.
5. The claimants in all the five claim petitions have come up in five appeals seeking enhancement of compensation. They are in MFA Nos.22882 to 22886 of 2012. The appeal in MFA No.22883 of 2012 is by the parents of deceased driver of quails. Whereas, MFA Nos.22882 and 22884 of 2012 are by the parents of two deceased inmates of quails, who had sought compensation under section 166 of MV Act. The other two appeals in MFA Nos.22885 and 22886 of 2012 are by the claimants in MVC No.2953 and 2954 of 2010.
6. As stated supra, other five appeals are by the insurer of quails. The ground on which appeals are 19 filed by the insurer of quails is to the effect that there is an error on the part of the tribunal in determining compensation payable to the claimants and also with reference to liability being saddled on the insurer of quails to pay compensation exclusively. In fact, the liability to pay compensation determined and awarded should have been fastened both on the insurer of quails and as well as another truck involved in the accident, namely vehicle bearing registration No.KA- 25/B-5363. There is error on the part of tribunal in appreciating the evidence available on record, which has resulted in the entire liability being saddled on the insurer of quails.
7. Heard the learned counsel for appellant/insurer and also insurer of the truck against whom liability is sought to be shifted to an extent of 50% and also the counsel for claimants. Perused the grounds of appeal in all the ten appeals and as well as pleadings, oral 20 and documentary evidence available in trial court record, which is secured for the aforesaid purpose. On going through the same it is seen that the ground urged by the insurer of quails in contending that there is contributory negligence on the part of the driver of truck bearing registration No.KA-25/B-5363, is without any basis.
8. The complaint which has come on record at the first instance after the accident by one of the inmates of vehicle clearly indicates that the accident is caused due to rash and negligent driving of the driver of quails, who also died in the said accident. The statements which are recorded by police while conducting investigation does not indicate rash and negligent driving on the part of the driver of truck bearing registration No.KA-25/B-5363. Therefore, the police, after completion of investigation have filed charge sheet against the driver of qualis, who had 21 died by then in the said accident. Hence, the charge sheet, which was filed against driver of qualis is abated, inasmuch as the offender who caused the accident was already dead. The abated charge sheet was filed against Shaji Shivaji Dudhade.
9. When the claim petitions were heard, evidence is recorded on behalf of the claimants, wherein in the common evidence which is adduced by PW.1 and PW.2, who are the legal heirs of one of the deceased in said accident, tried to project as if the accident has taken place due to rash and negligent driving of the drivers of both vehicles.
10. Admittedly, they were not the eye-witnesses to accident. Admittedly, whatever they had stated in their examination-in-chief was hearsay evidence, which they could not sustain in cross-examination. Therefore, the Court below did not give much importance to said evidence and proceeded to hold 22 that the accident is caused due to rash and negligent driving of the driver of qualis and as such, liability was fastened on the owner and insurer of qualis to pay compensation in all the five claim petitions, which were filed.
11. Though in the examination-in-chief PWs.4 and 5, who are claimants in MVC No. 2953 and 2954 of 2010 stated that the accident is caused because of the rash and negligent driving of both the drivers in the cross- examination they were not able to sustain how and in what manner negligence could be attributed to the driver of truck. Therefore, the Court below did not give much importance to the evidence of PWs.1, 2, 4 and 5.
12. Being aggrieved by the impugned judgment and award five appeals are filed by the insurer, primarily on the ground that there is failure on the part of tribunal in not holding the driver of truck also equally 23 responsible for causing the accident and consequently, fixing 50% of liability on the owner and insurer of said truck. While doing so, with reference to appeal in MFA No.20469 of 2012 which is filed challenging the judgment in MVC No.1355 of 2010 filed by the parents of Shaji Shivaji Dhudade, insurer contended that the claim petition which is allowed under section 163(A) of MV Act is inconsistent with the scheme of aforesaid Section and further said person himself being tort feasor, question of granting compensation to him, does not arise even under section 163(A) of the MV Act and hence, such claim petition cannot be maintained. To substantiate the same it took this Court through the relevant provisions of Section 163(A), which would be considered at a later stage.
13. Heard the learned counsel for all the parties with reference to appeals for enhancement. In three appeals, the judgment and award determined calls for 24 reconsideration of compensation with regard to enhancement and in one appeal the compensation awarded itself is required to be reconsidered and in another appeal the compensation is required to be confirmed in the circumstances, which are discussed as below independently.
IN MFA NO. 22882 OF 2012
14. MFA No.22882 of 2012 arising out of MVC No.1354 of 2010 is with reference to death of Nambirajan s/o Velupandiyan aged about 29 years. The claimants are his parents. According to them, he was gainfully employed earning Rs.9,000/- p.m., and he was the sole bread winner of family. On going through the material available on record, this Court noticed that though it was stated that he was gainfully employed earning Rs.9,000/- pm., his employment is not established and his salary is also not established. 25 Therefore, the Court below accepted him to be employed with notional income of Rs.4,500/- pm.
15. Admittedly, the accident is of the year 2010. In 2010, where the claimants who are legal heirs of deceased are not able to demonstrate avocation and income what is normally accepted as income is Rs.5,500/- pm. If same is applied to the case on hand, the annual income of deceased would be Rs.66,000/- p.a. Since, he was bachelor, 50% would be deducted towards his personal up keep. Accordingly, loss of dependency to the family would be Rs.33,000/- pa., which is required to be multiplied by relevant multiplier 13. Thus, the total loss of dependency would be Rs.4,29,000/- as against Rs.3,51,000/- awarded by the court below. To that, under conventional heads another sum of Rs.40,000/- is considered, the total compensation would be Rs.4,69,000/-. If that is considered as against 26 Rs.3,86,000/- awarded, the claimants are entitled to Rs.83,000/- enhanced compensation with interest at 6% pa. Accordingly, the appeal filed by claimants in MFA No.22822 of 2012 is allowed in part awarding enhanced compensation of Rs.83,000/- payable with 6% interest pa., and the appeal which is filed by insurance company in MFA No.20465 of 2012 deserves to be dismissed for the reasons discussed herein under.
IN MFA NO. 22883 OF 2012
16. Now coming to MFA No.22883 of 2012 (the second MVC No.1355 of 2010), this appeal is by the parents of driver of quails namely, Shaji Shivaji Dhudade, who caused the accident against whom charge sheet is filed by the prosecution in the criminal complaint lodged against him. The claim petition filed by the parents is under Section 163(A), wherein the Court below has entertained the claim petition under 27 Section 163(A) taking the notional income of deceased at Rs.3,300/- pm., and awarded compensation in sum of Rs.4,60,800/-, which is challenged by the insurer in MFA No.20269 of 2012, on the ground of liability and also on the ground that 50% of compensation is required to be shifted on the owner and insurer of the offending vehicle, whereas, the appeal by claimants in MFA No.22883 of 2012 is for enhancement of compensation. After hearing all the parties and on going through the judgment impugned, it is seen that the deceased himself is a tort feasor. In this background what is required to be done is to see the scope of Section 163(A), which reads as under:
"163A. Special provisions as to payment of compensation on structured formula basis-
(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement 28 due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
Explanation-For the purposes of this sub- section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923) (2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death of permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view of the cost of living by notification in the official Gazette, from time to time amend the Second Schedule]
17. The very idea of legislating the aforesaid Section is to ensure that even in the absence of any mistake on the part of the driver of the offending vehicle the legal heirs of deceased person or for the permanent disability suffered by the victim in the said 29 accident, the owner and insurer are required to pay compensation on structured formula basis as per second schedule to MV Act 1968.
18. What is seen from a plain reading of the Section is protection given to the victim, if he is injured or his legal heirs, if he is dead in the said accident for no fault of the driver of the vehicle, the compensation should be paid for the use of the motor vehicle causing the accident.
19. The plain reading clearly indicates that the victim is a third party but not the person himself causing the accident and that is not the intent of the legislature as could be seen from a reading of the Section. If a person himself is responsible for causing the accident, under Section 163(A) he cannot be decorated with compensation for the tortious act, which he has committed. In a situation where a person who himself 30 causes the accident being tort feasor, who is required to be prosecuted for the tortious act, under no circumstance he can be awarded compensation in any manner.
20. In fact, Section 163(A) is very clear, the claim petition under 163(A) could be for injury suffered or as well as for the death of victim of accident. If the tort feasor is injured and the entire accident is attributable to his negligence, the question of he being again awarded with the compensation by invoking aforesaid provision, does not stand to reason inasmuch as reading of said Section clearly indicates that it is to protect the innocent victim from suffering and also the legal heirs of innocent victim to withstand the untold misery for the tortious act of the rider of the vehicle, through the accident. In that view of the matter, this court find, the compensation awarded to tort feasor cannot be sustained by allowing this 31 judgment to continue and to saddle the liability to pay on the insurer. In that view of the matter the appeal filed by insurer in MFA No.20469 of 2012 is allowed, on that count alone and compensation awarded by the tribunal in MVC No.1355 of 2010 is hereby set aside, consequently the appeal filed by the legal heirs of deceased in MFA No. 22883 of 2012 would stand automatically dismissed as it does not survive for consideration.
IN MFA No.22884/2012
21. Admittedly, this appeal is by the legal heirs of deceased P.Lakshmi (MVC No.1356 of 2010), who died in the said accident. The first of the son is major, second one has attained majority now and he being aged about 18 years, have sought for compensation for the death of P.Lakshmi. Wherein, the tribunal taken her income notionally at Rs.3,000/- pm., in the absence of any acceptable evidence regarding 32 avocation and income. This Court find, same is on lower side. Hence, by taking the income notionally at Rs.4,000/- pm., (Rs.48,000/- pa.,) if compensation is calculated, instead of Rs.3,60,000/- the compensation that the claimants would be entitled to would be Rs.4,80,000/- (i.e., 2/3rd of Rs.48,000/- = Rs.32,000/-, multiplied by 15). To that if another sum of Rs.40,000/- if it is added under conventional heads, the total compensation would be Rs.5,50,000/- as against Rs.3,90,000/- awarded.
22. Therefore, the claimants are entitled to enhanced compensation in a sum of Rs.1,30,000/- payable with interest at 6% pa. Therefore, the appeal filed by claimants in MFA No.22884 of 2012 is allowed in part by enhancing compensation payable by Rs.1,30,000/- with interest at 6% pa., from the date of petition till the date of deposit amount. 33
23. In the mean while, the appeal filed by insurance company in MFA No. 20466 of 2012 would stand dismissed for common reasons discussed. IN MFA No.22885 of 2012
24. MVC No. 2953 of 2010 is filed by the injured Thangam Verunam Thevar, who is appellant herein. She has suffered several injuries which includes multiple fractures i.e., fracture of ramus of mandible and also fracture of body of mandible on right side displaced fracture of midshaft of femur, fracture of distal end of radius and fracture of right forearm evidence of displays 1/3rd shaft of radius. In the said proceedings, the Court below has taken her income notionally at Rs.3,000/- pm., and disability at 20% and proceeded to award compensation towards loss of future earning at Rs.1,29,600/- and compensation for pain and suffering at Rs.50,000/-, medical expenses at Rs.1,20,000/-, attendant charges and diet at 34 Rs.15,000/-, conveyance at Rs.5,000/-, loss of earning during laid of period at Rs.15,000/- and towards loss of amenities at Rs.5,000/- and total compensation coming to Rs.3,39,600/-.
25. On going through the same, this Court find that the Court below has not properly appreciated the material available on record and wrongly awarded compensation which calls for interference by this Court. Accordingly, the future loss of earning is to be calculated taking her notional income at Rs.4,000/- pm., and maintaining the disability at 20%. With this, the compensation which the claimant would be entitled to is Rs.1,72,800/-, in other words, Rs.43,000/- in excess of what is already awarded under the said head.
26. Now coming to compensation awarded towards pain and suffering, medical expenses, attendant 35 charges, conveyance charges and towards loss of earning during laid of period is maintained as it is. So far as the compensation payable towards loss of amenities to life at Rs.5,000/- is enhanced Rs.50,000/-. Thereby awarding Rs.45,000/- of additional compensation on that account and in addition to that Rs.25,000/- is awarded towards diminishing marital prospects. With this, total compensation which is assessed is Rs.1,13,200/- over and above what is already awarded, which the claimant is entitled to receive with interest at 6% pa., from the date of petition till date of deposit of entire amount.
27. Accordingly, the appeal filed by claimant in MFA No.22885 of 2012 is allowed in part. As stated supra appeal filed by the company in MFA No.20467 of 2012 is hereby dismissed for the reasons discussed in common.
36IN MFA.NO.22886/2012
28. Now coming to the last of the appeals arising out of MVC No. 2954 of 2010, this appeal is filed by the claimant Kavitha Raju Ganesh Nadar. The injuries suffered by her are, CLW in Rt. upper of eyelid, CLW (Rt.) above upper lip, nasal bleeding, abrasion Rt. forehead and on other region. For which, the compensation awarded by tribunal is in a sum of Rs.92,000/-, which itself is on higher side. In strict sense, this may have to be reduced. However, considering the fact that bills are there to show that she has incurred Rs.40,000/- towards medical expenses this Court would not like to disturb the same. Therefore, the appeal filed by claimant in MFA No.22886 of 2012 is dismissed holding that she is not entitled to enhancement of compensation and so far as the appeal filed by insurance company of quails car 37 in MFA No.20468 of 2012 is concerned, the same is also dismissed for the reasons discussed supra.
Accordingly, all the ten appeals are disposed of in the aforesaid manner.
29. In view of the appeals filed by insurance company in MFA Nos.20465 to 20468 of 2012 being dismissed, the amount in deposit is ordered to be sent to tribunal for disbursement to claimants in their respective claim petitions. So far as the amount in deposit in MFA No.20469 of 2012 is concerned, the same is required to be released in favour of appellant for the reason that said appeal is allowed, so far as it pertains to liability and on other aspects which are though technical, this Court has held it against the said company.
30. In view of the appeals being disposed of, all the applications pending in all the ten appeals do not 38 survive for consideration, accordingly they are disposed of.
Sd/-
JUDGE RHR/-