Karnataka High Court
Shri. Latif Mahbub Goundi vs Smt. Vandana Bhimagouda Patil on 22 June, 2023
Author: S G Pandit
Bench: S G Pandit
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MFA No. 101807 of 2021
C/W MFA No. 101818 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 22ND DAY OF JUNE, 2023
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 101807 OF 2021 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 101818 OF 2021 (MV-D)
BETWEEN:
1. SHRI. LATIF MAHBUB GOUNDI,
AGE: 45 YEARS, OCC: SERVICE,
R/O: GANESH NAGAR CHIKKODI,
TAL: CHIKKODI, DIST: BELAGAVI-591201.
2. KUMARI. MEHJABEEN LATIF GOUNDI,
AGE: 17 YEARS, OCC: STUDENT,
R/O: GANESH NAGAR CHIKKODI,
TAL: CHIKKODI, DIST: BELAGAVI-591201.
3. KUMARI. NADERA LATIF GOUNDI,
AGE: 15 YEARS, OCC: STUDENT,
R/O: GANESH NAGAR CHIKKODI,
TAL: CHIKKODI, DIST: BELAGAVI-591201.
Digitally signed 4. KUMARI. JAKIYA LATIF GOUNDI,
by JAGADISH T
R AGE: 14 YEARS, OCC: STUDENT,
Location:
DHARWAD
R/O: GANESH NAGAR CHIKKODI,
Date: 2023.06.28
13:32:14 -0700 TAL: CHIKKODI, DIST: BELAGAVI-591201.
SINCE PETITIONER NO. 2 TO 4 BEING MINORS
R/BY. HIS NATURAL FATHER PTR. NO.1.
... COMMON APPELLANTS
(BY SRI. KAMATE S.R, ADVOCATE)
AND:
1. SMT. VANDANA BHIMGOUDA PATIL,
AGE: 45 YEARS, OCC: SERVICE,
R/O: H NO.13238 MATRUSHRI BASAWESHWAR NAGAR
CHIKKODI, TAL: CHIKKODI AND DIST: BELAGAVI.
(OWNER OF CAR NO. KA-23N 3582)
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MFA No. 101807 of 2021
C/W MFA No. 101818 of 2021
2. THE DIVISIONAL MANAGER,
THE ROYAL SUNDARAM GENERAL INSURANCE COMPANY
LTD., NO.56/1, 2ND FLOOR, 9TH MAIN ROAD,
5TH BLOCK JAYANAGAR BANGALORE,
(INSURER OF CAR NO. KA-23N-3582)
...COMMON RESPONDENTS
(BY SRI. G.N. RAICHUR, ADV FOR R2)
(NOTICE TO R1 DISPENSED WITH)
THESE APPEALS ARE FILED U/S.173 (1) OF MOTOR VEHICLES
ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED
13.01.2021 PASSED IN MVC NO.1005/2019 AND 1006/2019 ON THE
FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE AND
MOTOR ACCIDENT CLAIMS TRIBUNAL-V, BELAGAVI, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY, S.G.
PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT
Though these appeals are listed for admission, they are taken up for final disposal, with the consent of learned counsel for both the parties.
2. The claimants are before this Court challenging 25% contributory negligence attributed to the deceased as well as praying for enhancement of compensation, not being satisfied with the quantum of compensation awarded under judgment and award dated 13.01.2021 passed in MVC Nos.1005 and 1006 of 2019 on the file of learned IV Addl. -3- MFA No. 101807 of 2021 C/W MFA No. 101818 of 2021 District and Sessions Judge and MACT-V, Belagavi (for short, 'Tribunal').
3. The claimants, who are the legal heirs of the deceased Tanveer Latif Goundi and Rihana, filed claim petitions under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for the accidental death of deceased Tanveer Latif Goundi and Rihana that took place on 14.03.2019 involving Motorcycle bearing registration No.KA- 23/R-9058 and Car bearing registration No.KA-23/N-3582. It is stated that the deceased Tanveer was aged 19 years and the deceased Rihana was aged 39 years as on the date of the accident. The deceased Tanveer was studying in ITI final year and working as Distributor in MI Life style Marketing Private Limited and earning Rs.50,000/- per month. The deceased Rihana was doing tailoring work as well as conducting tuition class for mehandi and fashion designing and thereby earning Rs.25,000/- per month. 4. On issuance of notice, respondents No.1 & 2 appeared through their learned counsels and filed separate -4- MFA No. 101807 of 2021 C/W MFA No. 101818 of 2021 statement of objections denying the allegations made in the claim petitions. Respondent No.1-Owner of the offending car contended that rider of motorcycle himself lost control over the vehicle and dashed to the car, due to which, accident took place. Respondent No.2-Insurance Company contended that there is no negligence on the part of driver of the offending car and the alleged accident took place due to rash and negligent riding of rider of motorcycle in question. Further, it was contended that driver of the offending car and deceased Tanveer were not holding valid and effective driving license as on the date of the accident. Thus, prayed for dismissal of the claim petition.
5. Before the Tribunal, 1st claimant-husband of deceased Rihana and father of deceased Tanveer examined himself as PW1 and got marked documents as Exs.P1 to P38. On behalf of the respondents, Respondent No.2-Insurer examined its Officer as RW1 and got marked documents as Ex.R1 & R2. The Tribunal based on the material evidence on record awarded total compensation of Rs.25,06,206/- in respect of deceased Tanveer and Rs.9,16,500/- in respect of -5- MFA No. 101807 of 2021 C/W MFA No. 101818 of 2021 deceased Rihana with interest at 6% per annum on different heads.
6. While awarding the above compensation, the Tribunal assessed notional income of the deceased Tanveer at Rs.13,250/- per month and Rs.6,000/- per month in respect of deceased Rihana and fixed 25% contributory negligence on the part of the deceased. The claimants not being satisfied with the quantum of compensation as well as 25% contributory negligence are before this Court praying for enhancement of compensation.
7. Heard Sri.Kamate S.R., learned counsel for the appellants-claimants as well as Sri. G.N. Raichur, learned counsel for the respondent-Insurance Company and perused the appeal papers along with original records. IN MFA No.101807/2021
8. Sri.Kamate S.R., learned counsel for the appellants-claimants would vehemently contend that the Tribunal committed an error in assessing notional income of the deceased Tanveer at Rs.13,250/- per month, inasmuch -6- MFA No. 101807 of 2021 C/W MFA No. 101818 of 2021 as he was working as Distributor in MI Life Style Marketing Private Limited and earning Rs.50,000/- per month. He further submits that the accident took place due to rash and negligent driving by driver of the offending car, but the Tribunal committed an error in holding that the deceased Tanveer also contributed negligence in the occurrence of the accident to an extent of 25%. He also submits that since the charge sheet is filed against driver of the offending car, the Tribunal ought to have fixed entire negligence on the part of the driver of the offending car. Therefore, he prays for fixing entire liability on the part of the insurance company to pay compensation.
IN MFA No.101818/2021
9. Learned counsel Sri.Kamate submits that the Tribunal committed an error in assessing income of the deceased at Rs.6,000/- per month, which is on the lower side, since the deceased was doing tailoring work and also conducting classes for mehandi and fashion designing and earning Rs.25,000/- per month. In support of said contention, learned counsel places reliance on a decision of -7- MFA No. 101807 of 2021 C/W MFA No. 101818 of 2021 the Hon'ble Apex Court in the case of Kirti & Another Vs. Oriental Insurance Company Limited1, wherein the Hon'ble Apex Court has clearly held that even homemaker would contribute for maintenance of the family and it has observed that to fix an approximate economic value for all the work that a homemaker does, impossible though that task may be. Thus, learned counsel would urge that the Tribunal ought to have assessed income of the deceased atleast notional income fixed by the Karnataka State Legal Services Authority, which is followed by this Court and Lok Adalath while settling the accidental claims. He further submits that the Tribunal has not awarded any compensation towards future prospects, to which the claimants would be entitled to add 25% of the assessed income as held by the Hon'ble Apex Court in National Insurance Company Limited Vs. Pranay Sethi & Others2. Learned counsel further submits that the claimants would be entitled to Rs.40,000/- each towards spousal and parental consortium as held by the Hon'ble Apex Court in the case of Magma 1 (2021) 2 SCC 166 2 AIR 2017 SC 5157 -8- MFA No. 101807 of 2021 C/W MFA No. 101818 of 2021 General Insurance Company Ltd., Vs. Nanu Ram and Others3. Thus, he prays for allowing both the appeals.
10. Per contra, Sri.G.N.Raichur, learned counsel appearing for the respondent-Insurance Company supporting the impugned judgment and award would contend that the compensation awarded by the Tribunal is just compensation, which needs no interference. He further submits that the Tribunal committed an error in adding 50% of the assessed income of the deceased Tanveer towards future prospects, since the claimants would be entitled to 40% of the assessed income as held by the Hon'ble Apex Court in the case of Pranay Sethi (supra). Learned counsel further submits that since the deceased Tanveer was not having valid and effective driving license as on the date of the accident and also rider of the motorcycle i.e. deceased Tanveer was not wearing helmet, the Tribunal is justified in holding that the deceased Tanveer contributed negligence in the occurrence of the accident to an extent of 25%, which is proper and corrected and requires no interference. He also submits that 3 2018 ACJ 2782 -9- MFA No. 101807 of 2021 C/W MFA No. 101818 of 2021 the compensation awarded by the Tribunal in respect of both the deceased are just and reasonable, requires no interference at the hands of this Court. Thus, he prays for dismissal of both the appeals.
11. Having heard the learned counsel for the parties and on perusal of the appeal papers along with original records, the following points would arise for consideration in these appeals:
a) Whether the Tribunal is justified in holding that the deceased Tanveer has contributed negligence to an extent of 25% in the occurrence of the accident in question?
b) Whether the claimants would be entitled for enhanced compensation in the facts and circumstances of the case?
12. Our answer to the above points would be in the negative and affirmative respectively for the following reasons:
13. There is no dispute with regard to the occurrence of the accident that took place on 14.03.2019 involving Motorcycle bearing registration No.KA-23/R-9058 and Car
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MFA No. 101807 of 2021C/W MFA No. 101818 of 2021 bearing registration No.KA-23/N-3582 resultant death of deceased Tanveer and Rihana in these appeals. CONTRIBUTORY NEGLIGENCE
14. It is the contention of the claimants that due to rash and negligent driving of the offending car, the accident took place. It is relevant to note that the insurance company has not filed any appeal challenging the impugned judgment and award. PW1-father of the deceased Tanveer in his evidence has deposed that the deceased Tanveer and deceased Rihana were proceeding on a motorcycle towards Belagavi with a moderate speed, at that time, driver of offending car came from Belagavi side in high speed and in a rash and negligent manner and dashed to the motorcycle, due to which, the accident took place and the rider and pillion rider sustained grievous injuries and succumbed to the same. On the basis of Ex.P1-complaint, a case came to be registered against driver of the offending car. Ex.P5-spot panchanama along with sketch would disclose that the accident took place on Chikkodi-Belagavi Road. Total width of the road was 30 ft. It further discloses that the driver of
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MFA No. 101807 of 2021C/W MFA No. 101818 of 2021 offending car was coming from Belagavi towards Chikkodi and rider of motorcycle was coming from Chikkodi towards Belagavi on his lane. At that time, the driver of the offending car while overtaking another vehicle, drove the car in high speed and in a rash and negligent manner and dashed to the motorcycle, which was coming from opposite side. As a result, both rider and pillion rider fell down and sustained grievous injuries and succumbed to the same. Admittedly, the charge sheet is filed against driver of the offending car. There was only 5 ft space on the extreme right side of the road, where the deceased Tanveer's motorcycle was coming from opposite direction and there was 10 ft gap on the left side of the road, where the driver of the offending car was proceeding. The driver of the car could have been more cautious while overtaking another vehicle. It was due to own fault of the driver of the offending car, the accident took place, resulting in loss of two lives.
15. It is the contention of the insurance company that rider of the motorcycle i.e. deceased was not having valid
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MFA No. 101807 of 2021C/W MFA No. 101818 of 2021 and effective driving license as on the date of the accident and also not wearing helmet while riding the motorcycle.
16. The Hon'ble Apex Court in the case of Sudhir Kumar Rana Vs. Surinder Singh & Others4, at paragraphs-9 has held as follows:
9. If a person, drives a vehicle without a license, he commits an offence. The same, by itself, in our opinion, may not lead to a finding of negligence as regards the accident. It has been held by the Courts below that it was the driver of the mini truck who was driving rashly and negligently. It is one thing to say that the appellant was not possessing any license but no finding of fact has been arrived at that he was driving the two-wheeler rashly and negligently. If he was not driving rashly and negligently which contributed to the accident, we fail to see as to how, only because he was not having a license, he would be held to be guilty of contributory negligence.
(Underlined by us)
17. A reading of the above paragraph, it is very clear that merely because deceased rider of motorcycle was not having driving license, that itself cannot be held to be guilty of contributory negligence.
18. The M.V. Act, 1988 contemplates wearing of helmet as mandatory and non wearing of helmet with 4 (2008) 12 SCC 436
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MFA No. 101807 of 2021C/W MFA No. 101818 of 2021 specifications mentioned as per Section 129 of the M.V. Act is illegal and the Act provides with a fine for Rs.1,000/- and the Department can also disqualify the driving licence for three months. However, the Act does not provide for absolving the liability of the insurance company on the ground of non wearing of helmet by the rider. Negligence cannot be fixed on the shoulders of the rider of the motorcycle merely for not wearing the helmet and not having driving license. Therefore, it cannot be said that there was contributory negligence on part of the rider due to which the accident has occurred. Thus, the contention of the insurance company cannot be acceded to and same is liable to be rejected. Therefore, in the present facts and circumstances of the case, we are of the considered view that finding recorded by the Tribunal with regard to contributory negligence to an extent of 25% on the deceased is wholly unsustainable and same is modified holding that due to sole negligence on the part of the driver of offending car, the accident took place. Hence, Issue No.1 is answered in the
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MFA No. 101807 of 2021C/W MFA No. 101818 of 2021 negative holding that the insurance company is liable to pay entire compensation amount.
QUANTUM OF COMPENSATION
19. In MFA No.101807/2021 (deceased Tanveer), it is the case of the claimants that deceased was working as Distributor in MI Life Style Marketing Private Limited Company and earning Rs.50,000/- per month. To substantiate the said contention, the claimants have produced Ex.P17-Experience Certificate issued by MI Life Style Marketing Private Limited. A perusal of Ex.P17 would not disclose income of the deceased Tanveer. In the absence of cogent and acceptable material evidence to establish the income of the deceased, the Tribunal assessed notional income of the deceased at Rs.13,250/- per month taking note of the income chart prepared by KSLSA based on various factors including the minimum wage fixed, which according to us is just and proper and same is not disturbed. The deceased Tanveer was aged 19 years as on the date of the accident. As held by the Hon'ble Apex Court in the case of Pranay Sethi (supra),
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MFA No. 101807 of 2021C/W MFA No. 101818 of 2021 wherever the deceased was aged below 40 years, the claimants would be entitled for addition of 40% of the assessed income towards future prospects instead of 50% added by the Tribunal. The Tribunal deducted 50% of the assessed income towards personal and living expenses of the deceased and adopted multiplier of 18, which in our view is proper and correct, which requires no interference. Thus, the claimants would be entitled to compensation on the head of loss of dependency at Rs.20,03,400/- (Rs.13,250 + 40/100 x 12 x 18 x 50/100).
20. Further, the Tribunal awarded a sum of Rs.11,00,000/- towards medical expenses based on the bills produced and marked, Rs.40,000/- towards loss of consortium, Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses and transportation of dead body, which according to us are just and reasonable, needs no interference. Thus, the claimants would be entitled for modified compensation on the following heads:
- 16 -MFA No. 101807 of 2021 C/W MFA No. 101818 of 2021
Sl.No. Particulars Amount
1. Loss of dependency Rs.20,03,400/-
(Rs.13,250 (income per month)
+ Rs.5300 (40% future
prospects) =18550 x 12
(months) x 18 (multiplier) x 1/2
(deduction)
2. Loss of estate & Funeral Rs. 30,000/-
expenses & transportation of
dead body
3. Parental consortium Rs. 40,000/-
4. Medical Expenses Rs.11,00,000/-
Total Rs.31,73,400/-
21. Thus, the claimants in MVC No.1005/2019 would be entitled to total compensation of Rs.31,73,400/- with interest at 6% per annum from the date of the petition till realization.
22. In MFA No.101818/2021, it is the contention of the claimants that the deceased Rihana was doing tailoring work and also conducting tuition classes for mehandi and fashion designing. But no material much less cogent material is placed on record to establish the avocation and income of the deceased Rihana. As the claimants have failed to establish the avocation and earning of the
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deceased, the deceased is to be considered as homemaker.
23. The Hon'ble Apex Court in the case of Kirti & another cited supra has laid down certain principles to determine the income of a homemaker. Relevant paragraphs of the said judgment reads as under:
31. Returning to the question of how such notional income of a homemaker is to be calculated, there can be no fixed approach. It is to be understood that in such cases the attempt by the court is to fix an approximate economic value for all the work that a homemaker does, impossible though that task may be. Courts must keep in mind the idea of awarding just compensation in such cases, looking to the facts and circumstances.
32. One method of computing the notional income of a homemaker is by using the formula provided in the Second Schedule to the Motor Vehicles Act, 1988, which has now been omitted by the Motor Vehicles (Amendment) Act, 2019. The Second Schedule provided that the income of a spouse could be calculated as one-third of the income of the earning surviving spouse. This was the method ultimately adopted by the Court in Arun Kumar Agrawal. However, rationale behind fixing the ratio as one-third is not very clear.
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MFA No. 101807 of 2021C/W MFA No. 101818 of 2021
33. Apart from the above, scholarship around this issue could provide some guidance as to other methods to determine the notional income for a homemaker20. Some of these methods were highlighted by a Division Bench of the Madras High Court in Deepika17 which held as follows: (SCC OnLine Mad para 10) "10. The Second Schedule to the Motor Vehicles Act gives a value to the compensation payable in respect of those who had no income prior to the accident and for a spouse, it says that one-third of the income of the earning surviving spouse should be the value. Exploration on the internet shows that there have been efforts to understand the value of a homemaker's unpaid labour by different methods. One is, the opportunity cost which evaluates her wages by assessing what she would have earned had she not remained at home viz. the opportunity lost. The second is, the partnership method which assumes that a marriage is an equal economic partnership and in this method, the homemaker's salary is valued at half her husband's salary. Yet another method is to evaluate homemaking by determining how much it would cost to replace the homemaker with paid workers. This is called the replacement method". (Emphasis supplied)
34. However, it must be remembered that all the above methods are merely suggestions. There can be no exact calculation or formula that can magically ascertain the true
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MFA No. 101807 of 2021C/W MFA No. 101818 of 2021 value provided by an individual gratuitously for those that they are near and dear top. The attempt of the court in such matters should therefore be towards determining, in the best manner possible, the truest approximation of the value added by a homemaker for the purpose of granting monetary compensation.
35. Whichever method a Court ultimately chooses to value the activities of a homemaker, would ultimately depend on the facts and circumstances of the case. The Court needs to keep in mind it duty to award just compensation, neither assessing the same conservatively, nor so liberally as to make it a bounty to claimants.
(Emphasis supplied)
24. The Hon'ble Apex Court in the judgment cited supra has held that there can be no exact calculation or formula that can magically ascertain the true value provided by an individual gratuitously for those that they are near and dear top. The claimants have lost personal care and attention of the deceased Rihana. Claimant No.1-husband has lost personal care and attention of his wife and claimants No.2 to 4 have lost personal care, attention and love and affection of their mother. Valuable services rendered by a homemaker cannot be valued in
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MFA No. 101807 of 2021C/W MFA No. 101818 of 2021 terms of money. Any compensation that would be awarded by the Court is to be just and reasonable. In the absence of any material, taking note of multifarious services rendered by housewives for managing the entire family, their services and work as homemaker shall have to be recognized. As stated above, though their services cannot be valued in terms of money, but for the purpose of compensation, it would be appropriate to assess their services and work as homemaker notionally and in the case on hand, it would be reasonable to assess notional income as fixed by KSLSA for the year 2019. Thus, we deem it appropriate to assess notional income of the deceased Rihana at Rs.13,250/- per month.
25. The next question would be, whether homemaker would be entitled for adding future prospects. The Hon'ble Apex Court in Kirti & Another's case (supra) has categorically held that adding future prospects is a component of just compensation. Therefore, we hold that the claimants would be entitled for addition of 40% of the assessed income towards future prospects in the light of
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MFA No. 101807 of 2021C/W MFA No. 101818 of 2021 decision of the Hon'ble Apex Court in Pranay Sethi (supra).
26. There is no dispute with regard to age of the deceased Rihana as 39 years. There are four claimants and deduction towards personal and living expenses of the deceased Rihana would be 1/3rd and appropriate multiplier applicable to the present case is 15. Thus, the claimants would be entitled for compensation on the head of loss of dependency at Rs.22,26,000/- (Rs.13,250 + 40% x 12 x 15 x 2/3).
27. It is well settled law that the claimants being husband and children of the deceased would be entitled to Rs.40,000/- each towards spousal and parental consortium as held by the Hon'ble Apex Court in the case of Magma General Insurance Co. Ltd. (supra). Further, the Tribunal awarded a sum of Rs.3,71,000/- towards medical expenses, Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses and transportation of dead body, which according to us are
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MFA No. 101807 of 2021C/W MFA No. 101818 of 2021 just and reasonable, needs no interference. Thus, the claimants would be entitled for modified compensation on the following heads:
Sl.No. Particulars Amount
1. Loss of dependency Rs.22,26,000/-
(Rs.13,250 (income per
month) + Rs.5300 (40%
future prospects) =18550 x
12 (months) x 15 (multiplier)
x 2/3 (1/3 deduction)
2. Loss of estate & Funeral Rs. 30,000/-
expenses & transportation of
dead body
3. Spousal and Parental Rs. 1,60,000/-
consortium (Rs.40,000/-each
to claimants 1 to 4)
4. Medical Expenses Rs. 3,71,000/-
Total Rs.27,87,000/-
28. Thus, the claimants would be entitled to total compensation of Rs.27,87,000/- as against Rs.12,22,000/- awarded by the Tribunal.
29. In the result, we proceed to pass the following:
ORDER
a) Both the appeals are allowed in part.
b) The impugned judgment and awards of the Tribunal are modified to the extent
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that the claimants in MVC No.1005/2019 are entitled to a total compensation of Rs.31,73,400/- & the claimants in MVC No.1006/2019 are entitled to a total compensation of Rs.27,87,000/- with interest at 6% per annum from the date of petition till date of realization.
c) The respondent-Insurance Company shall deposit entire compensation amount in both matters with accrued interest before the Tribunal within six weeks from the date of receipt of certified copy of this judgment.
d) On such deposit, Rs.10 lakhs collectively in both MVCs shall be kept in Fixed Deposit in any nationalized bank in the name of all claimants for a period of Five years with liberty to them to withdraw periodical interest accrued thereon.
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MFA No. 101807 of 2021C/W MFA No. 101818 of 2021
e) Remaining amount shall be released in favour of all the claimants in equal proportion on proper identification.
f) Registry to transmit the records to the Tribunal forthwith.
g) Draw modified award accordingly.
Sd/-
JUDGE Sd/-
JUDGE JTR List No.: 1 Sl No.: 17