Karnataka High Court
Smt Mehraj Banu @ Sayed Mahariz Banu vs Sri Basavaraj S/O. Parappa Bandiyal on 15 July, 2024
Author: S G Pandit
Bench: S G Pandit
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NC: 2024:KHC-D:9849-DB
MFA No. 104302 of 2023
C/W MFA No. 100142 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 15TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO.104302 OF 2023 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO.100142 OF 2024
IN MFA NO.104302 OF 2023
BETWEEN:
THE BRANCH MANAGER,
UNITED INDIA INSURANCE COMPANY LTD.,
BRANCH INSURANCE COMPANY LIMITED,
BRANCH OFFICE, HOTEL SANMAN TOURIST,
COMPLEX NEAR CBS CIRCLE, GANGAVATHI,
DIST. KOPPAL-583227,
ITS AUTHORIZED SIGNATORY,
DIVISIONAL MANAGER,
(INSURER OF ACHOK LEYLAND MINI LORRY
(LGV) BEARING NO.KA-37/A-4790).
...APPELLANT
(BY SRI S.S. KOLIWAD, ADVOCATE)
VINAYAKA
BV
Digitally signed by
AND:
VINAYAKA B V
Location: HIGH COURT
OF KARNATAKA
DHARWAD BENCH
1. SMT. MEHRAJ BANU @ SAYED MEHARIZ BANU
W/O. LATE SAYED MUSTAFA,
AGE. 28 YEARS, OCC. NIL.
2. SRI SAYED MAJ AHMED S/O. LATE SAYED MUSTAFA,
AGE. 4 YEARS, OCC. MINOR,
THROUGH HIS NATURAL GUARDIAN MOTHER
SMT. MEHRAJ BANU @ SAYED MAHARIZ BANU
W/O. LATE SAYED MUSTAFA I.E. PETITIONER NO.1.
3. SMT HABEEBA BEGUM W/O. SAYED IQBAL,
AGE. 48 YEARS, OCC. NIL,
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MFA No. 104302 of 2023
C/W MFA No. 100142 of 2024
4. SRI SAYED IQBAL S/O. SAYED AHMED,
SINCE DECEASED
VIDE ORDER DATED R4 IS
DECEASED RESPONDENTS NO.1 TO 3 AND
5 ARE ALREADY ON RECORD.
5. SMT. FARJANA BEGUM D/O. SAYED IQBAL,
AGE. 27 YEARS, OCC. NIL,
ALL ARE R/O. WARD NO.7, MEHABOOB NAGAR,
GANGAVATHI, DIST. KOPPAL-583227.
6. SRI BASAVARAJ S/O. PARAPPA BANDIYAL,
AGE. 39 YEARS, OCC. DRIVER,
R/O. H.NO.236, BALUTAGI, TQ. YELBURGA,
DIST. KOPPAL-583236
(DRIVER OF ASHOK LEYLAND MINI LORRY
(LGV) KA-37/A-4790).
7. SRI VIPIN KUMAR S/O. ASHOKA KUMAR TALEDA,
AGE. 48 YEARS, OCC. BUSINESS,
R/O. M/S. SHANTI AGRO DISTRIBUTORS,
JAWAHAR ROAD, KOPPAL, TQ AND
DIST. KOPPAL-583231.
(OWNER OF ASHOK LEYLAND MINI LORRY
(LGV) KA-37/A-4790).
...RESPONDENTS
(BY SRI A.M. MALIPATIL, ADVOCATE FOR R1, R3 AND R5;
R2 MINOR REPRESENTED BY R1;
SRI NEELENDRA D.GUNDA, ADVOCATE FOR R4, R6 AND R7)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173 (1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE
JUDGMENT AND AWARD DATED 20.12.2022 PASSED IN MVC
NO.447/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
MOTOR ACCIDENT CLAIMS TRIBUNAL, GANGAVATHI, AWARDING
COMPENSATION OF RS.28,08,000/- WITH INTEREST AT 6 PERCENT
P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.
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NC: 2024:KHC-D:9849-DB
MFA No. 104302 of 2023
C/W MFA No. 100142 of 2024
IN MFA NO.100142 OF 2024
BETWEEN:
1. SMT. MEHRAJ BANU @ SAYED MEHARIZ BANU
W/O. LATE SAYED MUSTAFA,
AGE. 28 YEARS, OCC. HOUSEWIFE,
2. SAYED MAJ AHMED S/O. LATE SAYED MUSTAFA,
AGE ABOUT 3 YEARS, OCC. NIL,
SINCE MINOR IS ARE UNDER GUARDIANSHIP
OF HIS NATURAL MOTHER I.E., APPELLANT-1.
3. SMT. HABEEBA BEGUM W/O. SAYED IQBAL,
AGE. 48 YEARS, OCC. NIL,
SRI SAYED IQBAL S/O. SAYED AHMED,
SINCE DEAD REPRESENTED BY HIS LR'S
APPELLANT NO.1 TO 3 & 4.
4. SMT. FARJANA BEGUM D/O. SAYED IQBAL,
AGE. 27 YEARS, OCC. NIL,
ALL ARE R/O. WARD NO.7, MEHABOOB NAGAR,
GANGAVATHI, DIST. KOPPAL-583227.
...APPELLANT
(BY SRI A.M. MALIPATIL, ADVOCATE)
AND:
1. SRI BASAVARAJ S/O. PARAPPA BANDIYAL,
AGE. 39 YEARS, OCC. DRIVER OF MINIR LORRY,
R/O. H.NO.236, BALUTAGI, TQ. YELBURGA,
DIST. KOPPAL-583278.
2. SRI VIPIN KUMAR S/O. ASHOKA KUMAR TALEDA,
AGE. 48 YEARS, OCC. OWNER OF MINI LORRY,
R/O. M/S. SHANTI AGRO DISTRIBUTORS,
JAWAHAR ROAD, KOPPAL-BALUTAGI,,
TQ. YELBURGA, DIST. KOPPAL-583231.
3. THE BRANCH MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
BR. OFFICE, HOTEL SANMAN TOURIST
COMPLEX, NEAR CBS CIRCLE, GANGAVATHI,
DIST. KOPPAL-583227.
...RESPONDENTS
(BY SRI NEELENDRA D.GUNDA, ADVOCATE FOR R1 AND R2;
SRI S.S. KOLIWAD, ADVOCATE FOR R3)
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NC: 2024:KHC-D:9849-DB
MFA No. 104302 of 2023
C/W MFA No. 100142 of 2024
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173 (1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE
JUDGMENT AND AWARD DATED 20.12.2022 PASSED IN MVC
NO.447/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
MOTOR ACCIDENT CLAIMS TRIBUNAL, GANGAVATHI, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THESE MISCELLANEOUS FIRST APPEALS, COMING ON FOR
HEARING ON INTERLOCUTORY APPLICATION, THIS DAY, S G
PANDIT, J., DELIVERED THE FOLLOWING:
JUDGMENT
Though these appeals are listed for hearing on interlocutory application, they are taken up for final disposal with the consent of learned counsel for both the parties.
2. Above appeals are directed against the judgment and award dated 20.12.2022 passed in MVC No.447/2020 on the file of the learned Senior Civil Judge and M.A.C.T., Gangavathi (for short, 'Tribunal').
3. The insurer is in appeal questioning the liability as well as quantum of compensation awarded; whereas the claimants are in appeal not being satisfied with the quantum of compensation awarded by the Tribunal and praying for enhancement of compensation.
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4. Brief facts of the case are that, the appellants-claimants, who are the wife, minor son, parents and unmarried sister of the deceased Sayed Mustafa S/o. Syed Iqbal, filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for the accidental death of Sayed Mustafa in a road traffic accident that took place on 21.05.2020 involving TVS Scooty bearing registration No.KA-37/EA-3415 and mini lorry bearing registration No.KA- 37/A4790. It is stated that the deceased was 28 years and was doing business earning Rs.20,000/- per month.
5. On issuance of notice, all the respondents appeared before the Tribunal and filed their objections. Respondent No.3- Insurance Company denied all the averments made in the claim petition and contended that the offending mini lorry bearing registration No.KA-37/A-4790 had no registration certificate as on the date of the accident. Further, it is contended that the driver of the mini lorry had no valid and effective driving licence as on the date of the accident, thus, insurer had denied the liability and prayed for dismissal of the claim petition. -6-
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6. Before the Tribunal, claimant No.1-wife of the deceased examined herself as PW1 and also examined PW2 apart from marking the documents as Exs.P1 to P14; whereas respondents examined RW1 and RW2 and marked documents as Exs.R1 to R5. The Tribunal on consideration of the material placed on record allowed the claim petition in part and awarded a total compensation of Rs.28,08,000/- along with interest at the rate of 6% per annum from the date of petition till realization and while awarding compensation, the Tribunal assessed the income of the deceased at Rs.13,750/- per month, added 40% of the assessed income towards future prospects, adopted multiplier of 17 and deducted 1/3rd towards personal and living expenses of the deceased. Being aggrieved by the same, the insurer questioning liability and quantum of compensation is before this Court, whereas the claimants not being satisfied with the quantum of compensation are before this Court.
7. Heard the learned counsel Sri.Sharnappa S.Koliwad for the appellant-Insurance Company, learned counsel Sri.A.M.Malipatil appearing for the claimants, learned counsel Sri.Neelendra D.Gunde appearing for the owner and driver of -7- NC: 2024:KHC-D:9849-DB MFA No. 104302 of 2023 C/W MFA No. 100142 of 2024 the offending vehicle and perused the appeal papers along with original records.
8. Learned counsel Sri.Sharnappa S.Koliwad appearing for the Insurance Company would submit that the offending mini lorry had no permit or registration certificate as on the date of the accident, therefore, he submits that there is violation of policy conditions and the insurer is not liable to compensate or indemnify respondent No.2-owner. Further, learned counsel would submit that the driver of the mini lorry had no valid and effective driving licence to drive LMV transport vehicle, thus, he denies liability to pay the compensation. With regard to quantum of compensation, learned counsel would submit that in the absence of material to establish the income of the deceased, the Tribunal committed grave error in assessing the notional income of the deceased at Rs.13,750/- per month and further he submits that the compensation granted is on the higher side and prays for reduction of the same.
9. On the other hand, Sri.A.M.Malipatil, learned counsel appearing for the claimants would submit that in terms -8- NC: 2024:KHC-D:9849-DB MFA No. 104302 of 2023 C/W MFA No. 100142 of 2024 of Ex.R5, the Registration Certificate was valid up to 25.05.2022 and as such, it is not open for the insurer to contend that the offending lorry had no registration certificate. Further, learned counsel would submit that the driver of the mini lorry had LMV licence and in terms of Mukund Dewangan v. Oriental Insurance Company Limited1, a person holding LMV licence could also drive LMV transport vehicle, thus, he prays to reject the said contention. With regard to quantum of compensation, learned counsel would submit that the income of the deceased assessed by the Tribunal at Rs.13,750/- per month is correct in terms of the notional income chart prepared by the Karnataka State Legal Services Authority for the accident of the year 2020. Further, learned counsel would submit that the Tribunal committed grave error in deducting 1/3rd towards personal and living expenses of the deceased and submits that taking note of the fact that the claimants are wife, minor son, parents and sister of the deceased, the deduction ought to have been 1/4th. Further, learned counsel would submit that the claimants would be entitled for consortium at the rate of Rs.40,000/- towards spousal, filial and parental 1 (2017) 14 SCC 6639 -9- NC: 2024:KHC-D:9849-DB MFA No. 104302 of 2023 C/W MFA No. 100142 of 2024 consortium. Thus, he prays for allowing the appeal filed by the claimants and to enhance the compensation.
10. Having heard the learned counsel for the parties and on perusal of the appeal papers along with original records, the following points would fall for our consideration:
(i) Whether the insurer proves that the offending vehicle had no registration certificate as well as driver had no valid and effective driving licence as on the date of the accident?
(ii) Whether the claimants are entitled for enhanced compensation?
The above points are answered in the negative and affirmative respectively for the following reasons:
11. The accident that took place on 21.05.2020 involving TVS Scooty bearing registration No.KA-37/EA-3415 and mini lorry bearing registration No.KA-37/A-4790, resultant death of Sayed Mustafa, husband of claimant No.1 is not in dispute in this appeal.
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12. Ex.R5 makes it clear that the registration certificate was valid up to 25.05.2022. The accident took place on 21.05.2020, therefore, it is not open for the insurer to contend that the offending vehicle had no registration certificate. With regard to driving licence, it is to be noticed that the driver of the mini lorry had LMV licence and in terms of Mukund Dewangan (supra), a driver who possesses LMV licence could also drive LMV transport vehicle. Thus, there is no merit in the contention of the insurer that the driver of the offending vehicle had no valid and effective driving licence.
13. With regard to quantum of compensation, it is to be noticed that the notional income of the deceased assessed by the Tribunal at Rs.13,750/- per month for the accident of the year 2020 is proper and correct in terms of the notional income chart prepared by the Karnataka State Legal Services Authority. The deceased was aged 28 years, appropriate multiplier would be 17 and the claimants would be entitled for adding 40% of the assessed income towards future prospects of the deceased. The claimants are wife, minor son, parents and sister of the deceased. The insurer contended that the sister of the deceased i.e.claimant No.5 was not dependent on
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NC: 2024:KHC-D:9849-DB MFA No. 104302 of 2023 C/W MFA No. 100142 of 2024 the deceased. It is to be noticed that claimant No.5, sister of the deceased was unmarried and that she was depending on the deceased, therefore, when there are five dependents, the proper deduction would be 1/4th and the Tribunal committed error in taking deduction at 1/3rd. Thus, the claimants would be entitled for a modified compensation on the head of loss of dependency as under:
Rs.13,750 + 40%(future prospects) X 12(months) x 17(multiplier) x 3/4(deduction) = Rs.29,45,250/-
14. The claimants would be entitled for consortium at the rate of Rs.40,000/- each towards spousal, filial and parental consortium apart from Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses. In terms of decision of Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Others2, claimants are entitled for 10% escalation on the above said heads of compensation (i.e. on Consortium, loss of estate and funeral expenses).
2 2017 (16) SCC 680
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NC: 2024:KHC-D:9849-DB MFA No. 104302 of 2023 C/W MFA No. 100142 of 2024
15. Thus, the claimants would be entitled for modified compensation on the following heads:
Sl. Particulars Amount
No. (In Rupees)
1. Loss of dependency 29,45,250/-
2. Loss of estate & Funeral 33,000/-
expenses
3. Loss of consortium (Rs.44000x5) 2,20,000/-
Total 31,98,250/-
16. Thus, the claimants would be entitled to total compensation of Rs.31,98,250/- as against Rs.28,08,000/- awarded by the Tribunal along with interest at the rate of 6% from the date of claim petition till realization of the award amount.
17. Hence, we pass the following:
ORDER
a) MFA No.104302/2023 filed by the Insurance Company is dismissed and MFA No.100142/2024 filed by the claimants is allowed in part.
b) The impugned judgment & award of Tribunal is modified to the extent that the claimants are entitled to total
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NC: 2024:KHC-D:9849-DB MFA No. 104302 of 2023 C/W MFA No. 100142 of 2024 compensation of Rs.31,98,250/- as against Rs.28,08,000/- awarded by the Tribunal.
c) The compensation amount shall carry interest at the rate of 6% p.a. from the date of claim petition till realization.
d) Insurance Company shall deposit
compensation amount with accrued
interest before the Tribunal within a period of six weeks from the date of receipt of certified copy of this judgment.
e) Apportionment, deposit & disbursement shall be made as per award of Tribunal.
f) Registry to transmit amount in deposit, if any, along with records to the Tribunal, forthwith.
g) Draw modified award accordingly.
Sd/-
JUDGE Sd/-
JUDGE RH List No.: 1 Sl No.: 46