Karnataka High Court
Mahadevi Vulachand Alagude vs Anil Ramesh Dhumal on 14 June, 2013
Bench: Ram Mohan Reddy, Ravi Malimath
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MFA No.30972/2012 C/W
MFA Nos.30970 30971 31414
31415 & 31416/2012
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 14TH DAY OF JUNE 2013
PRESENT
THE HON'BLE MR.JUSTICE RAM MOHAN REDDY
AND
THE HON'BLE MR.JUSTICE RAVI MALIMATH
MFA NO.30972/2012(MV)
CONNECTED WITH
MFA Nos.30970 30971 31414
31415 & 31416/2012 (MV)
IN MFA No.30972/2012
BETWEEN:
1. MAHADEVI FULACHAND ALAGUDE
AGE: 20 YEARS, OCC: H.H.WORK
R/O BIJAPUR-586101
2. SHRIDEVI FULACHAND ALAGUDE
AGE: 22 YEARS, OCC: H.H.WORK
R/O BIJAPUR-586101
3. MUKTA FULACHAND ALAGUDE
AGE: 25 YEARS, OCC: H.H.WORK
R/O BIJAPUR-586101
4. SUNITA DILIP MUDKANNA
AGE: 28 YEARS, OCC: H.H.WORK
R/O BIJAPUR-586101 ...APPELLANTS
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MFA No.30972/2012 C/W
MFA Nos.30970 30971 31414
31415 & 31416/2012
(SRI KOUJALAGI CHANDRAKANT LAXMAN ADVOCATE)
AND:
1. ANIL RAMESH DHUMAL
AGE: 48 YEARS
OCC: OWNER OF TRUCK BEARING
NO.MH-12/EQ-3632
AT POST: KUNJIRWADI
TQ. HAVELI, DIST. PUNE
MAHARASTRA-411001
2. THE BRANCH MANAGER
THE NEW INDIA ASSURANCE CO. LTD.
GURUKUL ROAD, BIJAPUR-586101
...RESPONDENTS
(BY SRI UDAY P. HONGUNTIKAR, ADVOCATE FOR R2,
NOTICE TO R1 DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGEMENT AND AWARD DATED 28.01.2012
PASSED IN MVC NO.976/2010 ON THE FILE OF THE MOTOR
ACCIDENT CLAIMS TRIBUNAL NO.VI BIJAPUR PARTLY
ALLOWING THE CLAIM PETITION AND SEEKING ENHANCEMENT
OF COMPENSATION.
IN MFA No.30970/2012
BETWEEN:
1. MAHADEVI FULACHAND ALAGUDE
AGE: 20 YEARS, OCC: H.H.WORK
R/O BIJAPUR-586101
2. SHRIDEVI FULACHAND ALAGUDE
AGE: 22 YEARS, OCC: H.H.WORK
R/O BIJAPUR-586101
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MFA No.30972/2012 C/W
MFA Nos.30970 30971 31414
31415 & 31416/2012
3. MUKTA FULACHAND ALAGUDE
AGE: 25 YEARS, OCC: H.H.WORK
R/O BIJAPUR-586101
4. SUNITA DILIP MUDKANNA
AGE: 28 YEARS, OCC: H.H.WORK
R/O BIJAPUR-586101
...APPELLANTS
(SRI KOUJALAGI CHANDRAKANT LAXMAN, ADVOCATE)
AND:
1. ANIL RAMESH DHUMAL
AGE: 48 YEARS
OCC: OWNER OF TRUCK BEARING
NO.MH-12/EQ-3632
AT POST: KUNJIRWADI
TQ. HAVELI, DIST. PUNE
MAHARASTRA-411001
2. THE BRANCH MANAGER
THE NEW INDIA ASSURANCE CO. LTD.
GURUKUL ROAD, BIJAPUR
...RESPONDENTS
(BY SRI UDAY P. HONGUNTIKAR, ADVOCATE FOR R2,
NOTICE TO R1 DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGEMENT AND AWARD DATED 28.01.2012
PASSED IN MVC NO.975/2010 ON THE FILE OF THE MOTOR
ACCIDENT CLAIMS TRIBUNAL NO.VI BIJAPUR PARTLY
ALLOWING THE CLAIM PETITION AND SEEKING ENHANCEMENT
OF COMPENSATION.
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MFA No.30972/2012 C/W
MFA Nos.30970 30971 31414
31415 & 31416/2012
IN MFA No.30971/2012
BETWEEN:
1. MAHADEVI FULACHAND ALAGUDE
AGE: 20 YEARS, OCC: H.H.WORK
R/O BIJAPUR-586101
2. SHRIDEVI FULACHAND ALAGUDE
AGE: 22 YEARS, OCC: H.H.WORK
R/O BIJAPUR-586101
3. MUKTA FULACHAND ALAGUDE
AGE: 25 YEARS, OCC: H.H.WORK
R/O BIJAPUR-586101
4. SUNITA DILIP MUDKANNA
AGE: 28 YEARS, OCC: H.H.WORK
R/O BIJAPUR-586101
...APPELLANTS
(SRI KOUJALAGI CHANDRAKANT LAXMAN, ADVOCATE)
AND:
1. ANIL RAMESH DHUMAL
AGE: 48 YEARS
OCC: OWNER OF TRUCK BEARING
NO.MH-12/EQ-3632
AT POST: KUNJIRWADI
TQ. HAVELI, DIST. PUNE
MAHARASTRA-411001
2. THE BRANCH MANAGER
THE NEW INDIA ASSURANCE CO. LTD.
GURUKUL ROAD, BIJAPUR-586101
...RESPONDENTS
(BY SRI UDAY P. HONGUNTIKAR, ADVOCATE FOR R2,
NOTICE TO R1 DISPENSED WITH)
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MFA No.30972/2012 C/W
MFA Nos.30970 30971 31414
31415 & 31416/2012
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGEMENT AND AWARD DATED 28.01.2012
PASSED IN MVC NO.976/2010 ON THE FILE OF THE MOTOR
ACCIDENT CLAIMS TRIBUNAL NO.VI BIJAPUR WHEREIN PARTLY
ALLOWING THE CLAIM PETITION AND SEEKING ENHANCEMENT
OF COMPENSATION.
IN MFA No.31414/2012
BETWEEN:
THE BRANCH MANAGER
NEW INDIA ASSURANCE CO. LTD.
GURUKUL ROAD, BIJAPUR
REPRESENTED BY
THE DIVISIONAL MANAGER
NEW INDIA ASSURANCE CO. LTD.
10-2-7, P.B.NO.12, IIND FLOOR
S.B.TEMPLE ROAD, SANGAMESH NAGAR
GULBARGA-585101
...APPELLANT
(SRI UDAY P. HONGUNTIKAR ADVOCATE)
AND:
1. MAHADEVI FULACHAND ALAGUDE
AGE: 20 YEARS, OCC: HOUSE HOLD WORK
R/O BIJAPUR-586101
2. SHRIDEVI FULACHAND ALAGUDE
AGE: 22 YEARS
OCC: HOUSE HOLD WORK
R/O BIJAPUR-586101
3. MUKTA FULACHAND ALAGUDE
AGE: 25 YEARS
OCC: HOUSE HOLD WORK
R/O BIJAPUR-586101
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MFA No.30972/2012 C/W
MFA Nos.30970 30971 31414
31415 & 31416/2012
4. SUNITA DILIP MUDKANNA
AGE: 28 YEARS
OCC: HOUSE HOLD WORK
R/O BIJAPUR-586101
5. ANIL RAMESH DHUMAL
AGE: 47 YEARS, OCC: OWNER
OF TRUCK BEARING
No.MH-12/EQ-3632
AT POST: KUNJIWADI
TQ. HAVELI, POST: PUNE
MAHARASHTRA - 411 001
...RESPONDENTS
(BY SRI KOUJALAGI C.L., ADVOCATE FOR R1-R4,
NOTICE TO R5 DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGEMENT AND AWARD DATED 28.01.2012
PASSED IN MVC NO.976/2010 ON THE FILE OF THE MOTOR
ACCIDENT CLAIMS TRIBUNAL NO.VI BIJAPUR WHEREIN PARTLY
ALLOWED THE CLAIM PETITION AND AWARDING THE
COMPENSATION OF RS.3,59,000/- WITH INTEREST @ 6% P.A.
IN MFA No.31415/2012
BETWEEN:
THE BRANCH MANAGER
NEW INDIA ASSURANCE CO. LTD.
GURUKUL ROAD, BIJAPUR
REPRESENTED BY
THE DIVISIONAL MANAGER
NEW INDIA ASSURANCE CO. LTD.
10-2-7, P.B.NO.12, IIND FLOOR
S.B. TEMPLE ROAD
SANGAMESH NAGAR
GULBARGA-585101
...APPELLANT
(SRI UDAY P. HONGUNTIKAR ADVOCATE)
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MFA No.30972/2012 C/W
MFA Nos.30970 30971 31414
31415 & 31416/2012
AND:
1. MAHADEVI FULACHAND ALAGUDE
AGE: 20 YEARS
OCC: HOUSE HOLD WORK
R/O BIJAPUR-586101
2. SHRIDEVI FULACHAND ALAGUDE
AGE: 22 YEARS
OCC: HOUSE HOLD WORK
R/O BIJAPUR-586101
3. MUKTA FULACHAND ALAGUDE
AGE: 25 YEARS
OCC: HOUSE HOLD WORK
R/O BIJAPUR-586101
4. SUNITA DILIP MUDKANNA
AGE: 28 YEARS
OCC: HOUSE HOLD WORK
R/O BIJAPUR - 586 101
5. ANIL RAMESH DHUMAL
AGE: 47 YEARS
OCC: OWNER OF TRUCK
BEARING NO.MH-12/EQ-3632
AT POST: KUNJIWADI, TQ: HAVELI
POST: PUNE, MAHARASHTRA-411001
...RESPONDENTS
(BY SRI KOUJALAGI C.L., ADVOCATE FOR R1-R4,
NOTICE TO R5 DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGEMENT AND AWARD DATED 28.01.2012
PASSED IN MVC NO.974/2010 ON THE FILE OF THE MOTOR
ACCIDENT CLAIMS TRIBUNAL NO.VI BIJAPUR WHEREIN PARTLY
ALLOWED THE CLAIM PETITION AND AWARDING THE
COMPENSATION OF RS.2,51,000/- WITH INTEREST @ 6% P.A.
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MFA No.30972/2012 C/W
MFA Nos.30970 30971 31414
31415 & 31416/2012
IN MFA No.31416/2012
BETWEEN:
THE BRANCH MANAGER
NEW INDIA ASSURANCE CO. LTD.
GURUKUL ROAD, BIJAPUR
REPRESENTED BY
THE DIVISIONAL MANAGER
NEW INDIA ASSURANCE CO. LTD.
10-2-7, P.B.NO.12, IIND FLOOR
S.B. TEMPLE ROAD
SANGAMESH NAGAR
GULBARGA-585101
...APPELLANT
(SRI UDAY P. HONGUNTIKAR ADVOCATE)
AND:
1. MAHADEVI FULACHAND ALAGUDE
AGE: 20 YEARS
OCC: HOUSE HOLD WORK
R/O BIJAPUR-586101
2. SHRIDEVI FULACHAND ALAGUDE
AGE: 22 YEARS
OCC: HOUSE HOLD WORK
R/O BIJAPUR-586101
3. MUKTA FULACHAND ALAGUDE
AGE: 25 YEARS
OCC: HOUSE HOLD WORK
R/O BIJAPUR-586101
4. SUNITA DILIP MUDKANNA
AGE: 28 YEARS
OCC: HOUSE HOLD WORK
R/O BIJAPUR - 586 101
5. ANIL RAMESH DHUMAL
AGE: 47 YEARS
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MFA No.30972/2012 C/W
MFA Nos.30970 30971 31414
31415 & 31416/2012
OCC: OWNER OF TRUCK
BEARING NO.MH-12/EQ-3632
AT POST: KUNJIWADI, TQ. HAVELI
POST: PUNE, MAHARASHTRA-411001
...RESPONDENTS
(BY SRI KOUJALAGI C.L., ADVOCATE FOR R1-R4,
NOTICE TO R5 DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGEMENT AND AWARD DATED 28.01.2012
PASSED IN MVC NO.975/2010 ON THE FILE OF THE MOTOR
ACCIDENT CLAIMS TRIBUNAL NO.VI BIJAPUR WHEREIN PARTLY
ALLOWED THE CLAIM PETITION AND AWARDING THE
COMPENSATION OF RS.2,99,000/- WITH INTEREST @ 6% P.A.
THESE APPEALS COMING ON FOR HEARING THIS DAY
RAM MOHAN REDDY J. DELIVERED THE FOLLOWING:
JUDGMENT
Since common questions of law and that of facts arise for decision making and as the appeals by the claimants and the insurer arise out of the very same common award of the MACT, with the consent of the learned counsel for the parties, are clubbed together, finally heard and are disposed of by this order.
2. Claimants in MVC Nos.974/2010, 975/2010 and 976/2010 on the file of Motor Accident Claims
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MFA No.30972/2012 C/W MFA Nos.30970 30971 31414 31415 & 31416/2012 Tribunal - IV, Bijapur, aggrieved by the common judgment and award dated 28.01.2012 insofar as it relates to quantum of compensation, have preferred MFA Nos.30972/2012 30970/2012 and 30971/2012 respectively.
3. MFA Nos.31415/2012, 31416/2012 and 31417/2012 are filed by the insurance company aggrieved by the common judgment and award dated 28.01.2012 in MVC Nos.974/2010 975/2010 and 976/2010 of the Motor Accident Claims Tribunal-IV, Bijapur, insofar as it relates to both the liability as well as quantum of compensation.
4. There is no doubt that one Sharanappa Alagude another Kasturibai Alagude and yet another Fulachand Alagude related as son, mother and father respectively, succumbed to grievous injuries in an accident that occurred on 28.02.2010 at about 2.00
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MFA No.30972/2012 C/W MFA Nos.30970 30971 31414 31415 & 31416/2012 p.m. while on a motor cycle proceeding towards Solapur, near Khadaki village, whence a truck bearing certificate of registration No.MH-12/EQ-3632 dashed against the motor cycle. There is also no dispute that the deceased Fulachand and Kasturibai left behind the claimants none other than their daughters and the sisters of deceased Sharanappa. There is also no dispute that the deceased Fulachand was aged 55 years, an agriculturist and coolie while Kasturibai aged 45 years, was a house maker and Sharanappa was aged 22 years.
5. Before the MACT, the first respondent - owner of the truck though served with notice of the petitions remained absent, unrepresented and was placed exparte. The second respondent being none other than the insurer of the offending vehicle entered appearance, filed written statement and opposed the claim, while advancing a plea that the deceased persons were on the
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MFA No.30972/2012 C/W MFA Nos.30970 30971 31414 31415 & 31416/2012 motor cycle, contrary to the provisions of the Motor Vehicles Act and the accident was solely due to the negligence of the rider of the motor cycle. In order to substantiate the said assertion, one Branch Manager was examined as RW1, though the driver of the offending motor vehicle was not examined. The MACT disbelieved the evidence of RW1, since he was not an eye witness to the accident and there was not a titre of evidence to substantiate the plea of the insurer that the deceased - rider of the motor cycle contributed to the negligence.
6. In fact, the police records such as FIR, spot panchanama and the postmortem reports as well as the Motor Vehicle Inspectors' Report Exs.P11, 2, 8, 9, 10, 14 and 15 disclose that the accident was as a result of rash and negligent driving of the offending vehicle being the truck. In that view of the matter, the MACT attributed actionable negligence to the driver of the
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MFA No.30972/2012 C/W MFA Nos.30970 30971 31414 31415 & 31416/2012 truck and accordingly, returned the finding on issue No.1.
7. Learned counsel for the insurer/appellants submits that the very fact that three persons were riding on the motor cycle in itself presupposes that the rider of the vehicle was not steady and contributed to the accident, is unacceptable. It is no doubt true that the claimants admitted the fact that all three deceased were on the motor cycle, which would at best be an offence under the Motor Vehicle Act that by itself and nothing more it cannot be said that the rider of the motor cycle lost control and was negligent in riding motor cycle the cause of the accident. PW2-Basavaraj the driver of Maruthi Omni van and friend of Amol Phansari testified that he noticed three persons proceeding from Pune to Solapur and fell down on the left side of the motor cycle and reached the accident spot within five to ten minutes after the accident and in
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MFA No.30972/2012 C/W MFA Nos.30970 30971 31414 31415 & 31416/2012 cross-examination denied the suggestion that he never witnesses the accident. Therefore, in the absence of oral testimony of the driver of the offending motor vehicle being the truck, there was no evidence worth the while to establish the defence advanced by the insurance company that the rider of the motor cycle was negligent and contributed to the accident. The Police records noticed supra are in the direction of establishing the fact that it was the driver of the offending truck that caused the accident due to rash and negligent driving, as held by the MACT. In that view of the matter, we find no good reason, legal or otherwise to interfere with the reasons, findings and conclusions arrived by the MACT over issue No.1 attributing actionable negligence to the driver of the offending vehicle.
8. Learned counsel for the claimants/appellants submits that the MACT was not justified in reckoning
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MFA No.30972/2012 C/W MFA Nos.30970 30971 31414 31415 & 31416/2012 notional income of Rs.3,000/- of the deceased Fulachand, aged 55 years, Kasturibai and Sharanappa to award compensation under the head of loss of dependency. It is further submitted that the MACT was not justified in not awarding compensation towards loss of love and affection to the claimants while award of Rs.10,000/- towards loss to estate is on the lower side. Lastly, it is submitted that the 4th claimants also a daughter, was entitled to an equal share in the compensation.
9. Learned counsel for the insurer/appellants submits that the award of compensation under the head of funeral expenses and transportation, loss to estate and loss of dependency are on the higher side.
10. Having heard the learned counsel for the parties over the quantum of compensation, reckoning of Rs.3,000/- per month as the notional income of the
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MFA No.30972/2012 C/W MFA Nos.30970 30971 31414 31415 & 31416/2012 deceased, in our considered opinion, is on the lower side. It is no doubt true that the claimants did not place relevant material to substantiate that the deceased had income of more than Rs.3,000/- per month. Keeping in mind the fact that the accident occurred on 28.02.2010 and the deceased Fulachand was aged 55, it is reasonable to reckon Rs.6,000/- as his monthly income while Kasturibai his wife aged 45 being a home maker could have earned or contributed to the family, in the least Rs.5,000/- per month and the deceased Sharanappa, son aged 22 years, an able bodied young man could have earned Rs.6,000/- per month which is neither fantastic nor extraordinary. Reckoning the said monthly income and deducting 1/3rd towards the personal expenses of the deceased Fulachand and Kasturibai and applying multiplier 9 and 11 respectively, the loss of dependency is
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MFA No.30972/2012 C/W MFA Nos.30970 30971 31414 31415 & 31416/2012 Rs.4,32,000/- and Rs.4,39,991/- rounded off to Rs.4,40,000/- respectively.
11. Insofar as deceased Sharanappa a bachelor and the claimants being his siblings, even assuming that the 4th claimant since married, not entitled for compensation, having left behind three unmarried and non earning sisters who lave lost their father, mother and sole brother, in the circumstances, we consider it appropriate to deduct 1/3rd of the income of the deceased Sharanappa and if that is done, applying multiplier 18 as applicable to age 22, loss of dependency is Rs.8,64,000/-.
12. It is no doubt true that there is no material whatsoever over the distance, for transportation of the dead bodies, much less, funeral expenses, therefore, award of Rs.25,000/- in each of the claim petitions towards said head of compensation is on the higher side
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MFA No.30972/2012 C/W MFA Nos.30970 30971 31414 31415 & 31416/2012 and accordingly we think it appropriate to award Rs.15,000/- in each petitions.
13. The MACT was not justified in not awarding compensation towards love and affection for each one of the four claimants being daughters of deceased Fulachand, Kasturibai and siblings of Sharanappa. In that view of the matter, we think it appropriate to award Rs.10,000/- each in each of the claim petitions.
14. We find no ground to interfere with the award of compensation of Rs.10,000/- towards loss to estate.
15. The 4th claimant admittedly is married and therefore, is not entitled for compensation towards loss of dependency except for love and affection.
16. In the result, we award the following compensation:
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MFA No.30972/2012 C/W MFA Nos.30970 30971 31414 31415 & 31416/2012 I. In MVC No.974/2010
a) Loss of dependency Rs.4,32,000/-
b) Loss to estate Rs. 10, 000/-
c) Loss of love and affection Rs. 40,000/-
d) Funeral expenses and
transportation of dead
body Rs. 15,000/-
---------------------
Total Rs.4,97,000/-
---------------------
II. In MVC No.975/2010
a) Loss of dependency Rs.4,40,000/-
b) Loss to estate Rs. 10, 000/-
c) Loss of love and affection Rs. 40,000/-
d) Funeral expenses and
transportation of dead
body Rs. 15,000/-
---------------------
Total Rs.5,05,000/-
---------------------
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MFA No.30972/2012 C/W
MFA Nos.30970 30971 31414
31415 & 31416/2012
III. In MVC No.976/2010
a) Loss of dependency Rs.8,64,000/-
b) Loss to estate Rs. 10, 000/-
c) Loss of love and affection Rs. 40,000/-
d) Funeral expenses and
transportation of dead
body Rs. 15,000/-
---------------------
Total Rs.9,29,000/-
---------------------
17. In the result, the appeals of the claimants as well as the insurance company are allowed in part and the common judgment and award of the MACT is modified accordingly, while in all other respects remains unaltered.
18. The enhanced compensation is directed to be kept in a term deposit in any Nationalized Bank or Scheduled Bank as per the choice of the claimants 1 to 3 for a period of three years.
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MFA No.30972/2012 C/W MFA Nos.30970 30971 31414 31415 & 31416/2012
19. The compensation awarded to the 4th claimant towards love and affection is directed to be released.
20. The registry is directed to transmit the amount in deposit in the appeals preferred by the insurance company to the MACT concerned.
Sd/-
JUDGE Sd/-
JUDGE NB*