Karnataka High Court
Dummanna Menasu Naik vs George William D"Souza on 29 May, 2023
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MFA No.24531 of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MRS. JUSTICE M.G.UMA
M.F.A.NO.24531 OF 2012 (MV-I)
BETWEEN:
1. DUMMANNA MENASU NAIK,
AGE: 65 YEARS, OCC: RYOT.
2. SMT. VIMALA W/O DUMMANNA NAIK,
AGE: 56 YEARS, OCC: NIL.
3. KUMARI SHILPA D/O DUMMANNA NAIK,
AGE: 27 YEARS, OCC: NIL.
ALL R/O : SHRKULI IN ANKOLA TALUK,
DIST: U.K.-581327.
...APPELLANTS
(BY SRI VISHWANATH K. BHAT, ADVOCATE FOR
SRI. NARAYAN V. YAJI, ADVOCATE)
AND:
1. GEORGE WILLIAM D'SOUZA,
S/O WILLIAM D'SOUZA,
Digitally AGE: MAJOR,
signed by
MANJANNA R/O: KEMROL POST AND VILLAGE,
E PAKSHIKERE, MANGALORE (D.K.)
2. BRANCH MANAGER,
THE UNITED INDIA INSURANCE COMPANY LTD.,
SHRI VITTA MAIN ROAD, SURTHKAL,
POST BOX NO.14, PIN 505714.
...RESPONDENTS
(BY SMT. PREETI SHASHANK, ADVOCATE FOR R2
NOTICE TO R1 IS SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF M.V. ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED 05.12.2008
PASSED IN MVC NO.235/2006 ON THE FILE OF MEMBER, ADDL.
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MFA No.24531 of 2012
MACT, KUMTA, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The claimants in MVC.No.235/2006 on the file of the Member, Additional M.A.C.T., Kumta (hereinafter referred to as "the Tribunal" for the sake of brevity) have preferred this appeal seeking enhancement of the compensation awarded under the impugned judgment and award dated 05.12.2008.
2. The parties are referred to as per their ranks before the Tribunal for the sake of convenience.
3. Brief facts of the case as stated in the claim petition are that, the deceased Sanjeev son of Dummanna Naik, aged about 26 years was riding the motorcycle bearing registration No.KA.30/K.5823 from Ankola towards Belse village. In the meantime, a lorry bearing registration No.KA.10/B.5995 driven by its driver came in a rash and negligent manner, in high speed and suddenly -3- MFA No.24531 of 2012 stopped the same without giving any signal or without any indicator, as a result of which, the rider of the motorcycle dashed on the rear side of the lorry. As a result of which, the rider of the motorcycle sustained fatal injuries and died at the spot.
4. Therefore, it is stated that the accident had occurred due to rash and negligent driving of the lorry by its driver. The offending vehicle involved in the accident was insured with respondent No.2 and therefore respondent No.1 being the owner and respondent No.2 being the insurer of the said vehicle are jointly and severely liable to pay compensation.
5. It is also contended that the deceased was a bachelor, aged 26 years and he was the owner of the Goods Tempo bearing registration No.KA.30/5015 and earning monthly income at Rs.8,000/-. Claimant No.1 is the father, claimant No.2 is the mother and claimant No.3 is the unmarried sister of the deceased. They were -4- MFA No.24531 of 2012 depending on the income of the deceased and therefore they were entitled for compensation.
6. The claim of the claimants was resisted by respondent No.2 by filing the statement of objections denying the liability and the contentions taken by the claimants.
7. On the basis of pleadings of the parties, the Tribunal framed the following issues for its consideration.
ISSUES
1. Whether the petitioners prove that deceased Sanjeev Dummanna Naik died due to injuries in the accident that took place on 09.07.2006 at about 9-15 p.m. near Jamagod of Vandige village of Ankola on N.H.17 due to rash and negligent act of driver of vehicle i.e., Tata Truck bearing No.KA.19/B.5995, who suddenly stopped without giving any signal, were no indicator lights at back side of vehicle etc as alleged in the petition?
2. Whether respondent No.2 proves that, owner of vehicle deliberately entrusted the vehicle to the person who died not possess valid and effective driving licence and thereby caused breach of policy conditions as contended?
3. Whether respondent NO.2 further proves that deceased was driving his vehicle in rash and negligent manner and contributed more to the accident?
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4. Whether petitioners are entitled for compensation? Is so what is quantum and from whom?
5. What order or decree?
8. The petitioners have examined PWs.1 and 2 and got marked Exs.P.1 to P.7 in support of their contentions. Respondent No.2 has not led any evidence, but got marked Ex.R.1 in support of its contention.
9. The Tribunal after taking into consideration all these materials on record, awarded compensation of Rs.3,03,000/- with interest at the rate of 6% per annum from the date of filing of the petition till its realization from respondent No.2. Being aggrieved by the same, the claimants have preferred this appeal seeking enhancement of compensation awarded by the Tribunal.
10. Heard Sri Vishwanath K.Bhat learned counsel for Sri Narayan V.Yaji learned counsel for the claimants and Smt.Preeti Shashank learned counsel for respondent No.2-Insurance Company.
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11. Learned counsel for the claimants contended that the deceased was aged about 26 years and the accident had taken place on 09.07.2006. The Tribunal has not awarded the just compensation by taking into consideration the notional income and the loss of future prospects. It has also not taken into consideration the age of the deceased for applying the appropriate multiplier. It has also not awarded compensation towards conventional heads, hence he prayed for allowing of appeal by awarding enhanced compensation.
12. Learned counsel for respondent No.2-Insurance Company, on the other hand opposing the appeal submitted that, there is no proof of income for the deceased and the Tribunal has rightly taken the income at Rs.3,000/- per month. The accident had occurred during 2006 and therefore there is no reason to enhance the compensation. Hence, she prays for dismissal of the appeal. However, respondent No.2 submits that, there was delay of 1803 days in preferring the appeal which was -7- MFA No.24531 of 2012 condoned vide order dated 06.01.2016. Therefore, the claimants are not entitled for any interest, if in case the compensation is enhanced.
13. Perused the materials including the Trial Court Records. The point that would arise for my consideration is as under;
"Whether the impugned judgment and award passed by the Tribunal calls for any interference by this Court?"
14. My answer to the above point is in the affirmative for the following;
REASONS
15. The factum of accident even though denied by respondent No.2-Insurance Company, the claimants have produced oral and documentary evidence to prove the same. The Police documents-Exs.P.1 to P.6 disclose that an FIR was registered immediately after the accident and it is specifically stated that, the driver of the offending lorry bearing registration No.KA.10/B-5995 suddenly -8- MFA No.24531 of 2012 stopped the same without giving any signal or without any indicator, as a result of which, the rider of the motorcycle dashed on the rear side of the lorry. The rider of the motor cycle died at the spot as result of the injuries sustained by him. Therefore it could be held that the accident was solely due to rashness and negligence on the part of the driver of the offending lorry. Admittedly, the insurance company has not challenged the impugned judgment and award holding that the accident was solely due to the rashness and negligence on the part of the driver of the lorry in question.
16. The claimants have not produced any evidence to show the income of the deceased as on the date of the accident. In the circumstances, the notional income as provided under the Guidelines issued for settlement before the Lok-Adalath is required to be taken into consideration. The accident is of the year 2006 and in terms of the chart, the notional income at Rs.3,750/- could be taken into consideration. To the aforesaid amount, 40% is to be added -9- MFA No.24531 of 2012 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 Limited Vs. Pranay Sethi And Others1. Thus, the monthly income comes to Rs.5,250/-. Out of which, I deem it appropriate to deduct 50% towards personal expenses as the deceased was a bachelor as on the date of accident and therefore, the monthly dependency comes to Rs.2,625/-. Taking into account the age of the deceased which was 26 years at the time of accident, multiplier 17 will have to be adopted. Hence, claimants are entitled to Rs.4,35,600/- (Rs.2,625X12X18) on account of loss of dependency.
17. In view of the law laid down by the Supreme Court in the case of Magma General Insurance Co. Ltd. Vs. Nanu Ram2, which is again reiterated and followed by the Three Judges Bench of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd., Vs. Satinder Kaur and others3, claimants are entitled for Rs.44,000/- 1 AIR 2017 SC 5157 2 2018 ACJ 2782 3 2020 ACJ 2131
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MFA No.24531 of 2012each towards filial consortium. Thus, the total compensation under this head is assessed at Rs.1,32,000/-. In addition, the claimants are entitled to Rs.16,500/- on account of loss of estate and Rs.16,500/- towards funeral expenses.
18. In view of the above, the compensation awarded by the Tribunal is to be re-worked out as under;
Sl. Amount in
Particulars
No. Rs.
1 Towards loss of dependency 5,35,500/-
(2,625x12x17)
2 Towards Funeral expenses 16,500/-
3 Towards Loss of estate 16,500/-
4 Towards filial consortium 1,32,000/-
(Rs.44,000x3)
TOTAL 7,00,500/-
The compensation awarded by the 3,03,000/-
Tribunal
Enhanced Compensation 3,97,500/-
19. As rightly contended by learned counsel for respondent No.2 there is delay of 1803 days in preferring the appeal. The delay was condoned by the order of this Court. However, the claimants are not entitled for any interest during the said period of 1803 days.
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MFA No.24531 of 2012
20. Thus, the claimants are entitled to total compensation of Rs.7,00,500/- as against Rs.3,03,000/- awarded by the Tribunal. Enhanced compensation shall carry interest at the rate of 6% p.a. from the date of filing of the petition till payment is made except for the period of 1308 days i.e., delay in filing the appeal.
21. In view of the above, I answer the above point in the affirmative and proceed to pass the following;
ORDER
1. The appeal allowed.
2. The impugned judgment and award dated 05.12.2008 passed in MVC.No.235/2006 by the Tribunal is modified.
3. The appellants are entitled for total compensation of Rs.7,00,500/- instead of Rs.3,03,000/- awarded by the Tribunal with interest at the rate of 6% per annum on the enhanced compensation from the date of claim petition till realization, excluding 1308 days delay in preferring the appeal.
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MFA No.24531 of 2012
4. The apportionment, deposit and disbursement of the enhanced compensation between the claimants is as ordered by the Tribunal
5. Registry is directed to send back the Trial Court records with copy of this order.
SD/-
JUDGE EM List No.: 2 Sl No.: 16