Karnataka High Court
The Branch Manager vs Anandi And Ors on 7 February, 2022
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF FEBRUARY 2022
PRESENT
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
AND
THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA
MFA No.200444/2020
C/W
MFA Nos.200009/2020, 200010/2020
& 200442/2020 (MV)
IN MFA NO.200444/2020:
BETWEEN:
Housabai W/o Shamrao Ghule,
Age: 54 years, Occ: Coolie work,
R/o Pohargav, Tq: Pandharpur,
Dist: Solapur,
Now R/o Shivaji Chowk, Dobale Galli,
Vijayapur-586 101.
... Appellant
(By Sri Koujalagi Chandrakant Laxman, Advocate)
AND:
1. MS Pamusa,
Age: 44 years, Occ: Transport Business,
R/o At /Post: D-No.41, Padayachiyur,
Kalyangiri P.O., Salem District-636106,
State of Tamilnadu.
2
2. The Branch Manager,
National Insurance Company Limited,
Near 21st Century, S.S.Back road, Vijayapura,
Dist: Vijayapura-586101.
3. Smt. Anandi W/o Navanath Ghule,
Age: 26 years, Occ: Household work,
R/o Shivaji Chowk, Dobale Galli, Vijayapura,
Tq: Dist: Vijayapur-586101.
... Respondents
(Smt. Preeti Patil Melkundi, Advocate for R2;
Sri.Sanganabasava B.Patil, Advocate for R3;
Notice to R1 is held sufficient)
This Miscellaneous First Appeal is filed under Section
173 (1) of the Motor Vehicles Act, praying to modify the
judgment and award dated 04.09.2019 passed in MVC
No.447/2016 on the file of the Court of the IV Additional
District Judge and Member of Motor Accident Claims
Tribunal No.XIII, Vijayapura and allow this Appeal to grant
the compensation of amount by Rs.10,92,000/- only as
claimed by the appellant before this Hon'ble Court and etc.
IN MFA NO.200009/2020:
BETWEEN:
The Branch Manager,
National Ins. Co. Ltd.,
Near 21st Century,
S.S.Back Road, Vijaypur-586101.
(Now represented by Authorized
Signatory, D.O, Kalaburagi).
... Appellant
(By Smt. Preeti Patil Melkundi, Advocate)
3
AND:
1. Anandi W/o Navanath Ghule,
Age: 25 years, Occ: Household,
2. Housabai W/o Shamrao Ghule,
Age: 53 years, Occ: Coolie,
Both are R/o Pohargav,
Tq: Pandharpur, Dist: Solapur,
Now residing at Shivaji Chowk,
Dobale Galli, Vijaypur-586101.
3. MS Pamusa,
Age: 43 years,
Occ: Transportation Business,
At/Post: D-No.41, Padayachiyur
Kalyangiri, P.O.Salem,
District Pin-636106
Tamil Nadu State.
... Respondents
(Sri.Sanganabasava B.Patil, Advocate for R1;
Sri Koujalagi Chandrakant Laxman, Advocate for R2;
Notice to R3 is held sufficient)
This Miscellaneous First Appeal is filed under Section
173 (1) of the Motor Vehicles Act, praying to allow the
appeal by setting aside the impugned Common Judgment
and Award dated 04.09.2019 in MVC No.447/2016 passed
by the IV Addl. District Judge and MACT-XIII, Vijaypura.
IN MFA NO.200010/2020:
BETWEEN:
The Branch Manager,
National Ins. Co. Ltd.,
Near 21st Century,
4
S.S.Back Road, Vijaypur-586101.
(Now represented by Authorized
Signatory, D.O, Kalaburagi).
... Appellant
(By Smt. Preeti Patil Melkundi, Advocate)
AND:
1. Usha W/o Nitin Gaikwad,
Age: 25 years, Occ: Household,
2. Sindhu W/o Dilip Gaikwad,
Age: 54 years, Occ: Coolie,
Both are R/o Poragaon,
Post: Ambe, Tq: Pandharpur,
Dist: Solapur,
Now residing at Babanagar,
Vijaypur-586101.
3. MS Pamusa,
Age: 43 years,
Occ: Transportation Business,
At/Post: D-No.41, Padayachiyur
Kalyangiri, P.O.Salem,
District Pin-636106
Tamil Nadu State.
... Respondents
(Sri Koujalagi Chandrakant Laxman, Advocate for R1;
Sri Biradar Virangouda, Advocate for R2;
Notice to R3 is held sufficient)
This Miscellaneous First Appeal is filed under Section
173 (1) of the Motor Vehicles Act, praying to allow the
appeal by setting aside the impugned Common Judgment
and Award dated 04.09.2019 in MVC No.576/2016 passed
by the IV Addl. District Judge and MACT-XIII, Vijaypura.
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IN MFA NO.200442/2020:
BETWEEN:
Smt. Usha W/o Nitin Gaikwad,
Age: 24 years, Occ: Household work,
R/o Poragaon, Post: Ambe,
Tq: Pandharpur, Dist: Solapur,
Now R/o Babanagar, Vijayapura,
Tq: Dist: Vijayapur-586101.
... Appellant
(By Sri Koujalagi Chandrakant Laxman, Advocate;
AND:
1. MS Pamusa,
Age: 45 years,
Occ: Transportation Business,
At/Post: D-No.41, Padayachiyur
Kalyangiri, P.O.Salem,
District Pin-636106
State of Tamil Nadu State.
2. The Branch Manager,
National Ins. Co. Ltd.,
Near 21st Century, S.S.Back Road,
Vijayapura-586 101.
3. Sindhu W/o Dilip Gaikwad,
Age: 55 years, Occ: Coolie,
At Post: Ambe, Tq. Pandharpur,
Dist: Solapur,
Now R/o Babanagar, Vijayapura,
Tq: Dist: Vijayapur-586 103.
... Respondents
(Smt. Preeti Patil Melkundi, Advocate for R2;
Sri Biradar Virangouda, Advocate for R3;
Notice to R1 is held sufficient)
6
This Miscellaneous First Appeal is filed under Section
173 (1) of the Motor Vehicles Act, praying to call for the
records. To modify the judgment and award dated
04.09.2019 passed in MVC No.576/2016 on the file of the
Court of the IV Additional District Judge and Member of
Motor Accident Claims Tribunal No.XIII, Vijayapura at
Vijayapura and allow this Appeal to grant the
compensation of amount by Rs.27,42,000/- only as
claimed by the appellant before this Hon'ble Court and etc.
These appeals coming on for admission this day,
K.S. Hemalekha J., delivered the following:
JUDGMENT
Though the appeals are listed for admission, with the consent of learned counsel for the parties, they are taken up for final disposal.
2. MFA No.200444/2020 is filed by the claimant in MVC No.447/2016, assailing the judgment and award dated 04.09.2019 passed by the Member, Motor Accident Claims Tribunal No.XIII & IV Additional District & Sessions Judge, Member of Motor Accident Claims Tribunal No.XIII, Vijayapura (for short 'the Tribunal'), seeking enhancement of compensation.
3. MFA No.200009/2020 is filed by the insurance company, assailing the judgment and award passed by the 7 Tribunal in MVC.No.447/2016, challenging the quantum of compensation awarded by the Tribunal.
4. MFA No.200010/2020 is filed by the insurance company, assailing the judgment and award passed by the Tribunal in MVC No.576/2016, challenging the compensation awarded by the Tribunal.
5. MFA No.200442/2020 is filed by the claimant in MVC No.576/2016, assailing the judgment and award passed by the Tribunal in MVC.No.576/2016, seeking enhancement of compensation.
6. For the sake of convenience, the parties shall be referred to as per their ranking before the Tribunal.
7. It is the case of the claimants in both MVC Nos.447/2016 and 576/2016 that, on 22.02.2016 at around 8 O'clock in the morning, deceased Navanath Ghule, who was the rider was proceeding on his motorcycle bearing Reg. No.MH-13/BA-1496 from Mandrup to Korwali along with one Nitini Gaikwad and when they 8 approached Mahadev Mahamane Dhabha near Korwali village, a Truck bearing Reg.No.TN-57/L-2593 came in a rash and negligent manner and dashed against the motorcycle, due to which the deceased Navanath Ghule, the rider of the motorcycle and Nitin Gaikwad, the pillion rider succumbed to the injuries sustained by them in a fatal road traffic accident.
8. The wife and mother of deceased Navanath Ghule, who died due to the accident that occurred on 22.02.2016 filed a claim petition in MVC No.447/2016, seeking compensation of Rs.35,00,000/-, contending that the deceased was aged about 25 years at the time of the accident, working as a Manger in a Fertilizer shop in Pandharapur and earning about Rs.20,000/- per month. The deceased was the sole breadwinner of the family and the claimants were solely depending on the income of the deceased.
9. The wife and the mother of deceased Nitin Gaikwad, who died due to the accident that occurred on 9 22.02.2016 filed a claim petition in MVC No.576/2016, seeking compensation of Rs.51,50,000/-, contending that the deceased was aged about 22 years at the time of accident and was earning Rs.15,000/- per month from his milk vending business. The deceased was the sole breadwinner of the family and the claimants were solely depending on the income of the deceased.
10. In response to the notice issued by the Tribunal, respondent No.1 remained ex-parte. Respondent No.2 in both the claim petitions filed their objections contending that the owner of the vehicle has breached the policy conditions, as the driver of the vehicle was not having effective driving licence to drive the particular class of vehicle on the date of the accident and sought to dismiss the petition.
11. On the basis of the pleadings of the parties, the Tribunal framed the following similar and identical issues in both MVC No.447/2016 and MVC No.576/2016 for its consideration:
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ISSUES
1. Whether petitioners prove that, on 22-2-2016 at about 8.00 p.m., when deceased was riding the Motorcycle bearing Reg.No.MH-13/BA-1496, in a cautious manner from Mandrup to Poragaon on Mandrup - Kamati (B) Road, near the Dhaba of one Mahadev Mahamane, within the limits of Korwali village, (Maharashtra State), at that time the driver of Truck bearing Reg.
No.TN-57/L-2593 came from opposite direction in a rash and negligent manner and dashed to the Motorcycle, due to which, deceased sustained injuries and died in the Hospital during treatment?
2. Whether petitioners prove that, this Court has got territorial jurisdiction to entertain the petition?
3. Whether the respondent No.2 prove that, driver of Truck bearing Reg.No.TN-57/ L-2503 was not holding valid and effective Driving Licence on the date and time of accident?
4. Whether petitioners are entitled for compensation as claimed? If so, to what extent?
5. What order or award?
12. To substantiate their case, claimant No.1 in MVC No.447/2016, the wife of deceased Navanath Gjule 11 examined herself as PW.1 and claimant No.2 in MVC No.576/2016, the mother of deceased Nitin Gaikwad examined herself as PW.2 and got marked Exs.P1 to P8. However, the respondents did not lead any evidence, but got marked the insurance policy as Ex.R1.
13. The Tribunal, on the basis of the pleadings, evidence and material on record held in both the cases that the accident occurred due to the rash and negligent driving of the driver of the Truck bearing Reg.No.TN-57/ L-2593 and fastened the liability on the insurance company and awarded a compensation of Rs.24,08,000/- in both the petitions with interest at 9% p.a. from the date of petition till realisation.
14. Being aggrieved by the quantum of compensation awarded by the Tribunal, the claimants and the insurance company are in appeal, whereby the claimants are seeking enhancement of compensation and the insurance company is seeking reduction of compensation.
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15. We have heard the learned counsel for the claimants and the learned counsel for the insurance company in all the appeals and perused the material on record.
16. Sri Koujalagi Chandrakant Laxman, learned counsel for the claimants would contend that the Tribunal was not justified in awarding compensation of Rs.24,08,000/- only in favour of the claimants. The Tribunal has not assessed the monthly income of the deceased in both the claim petitions in proper perspective and has taken the income of the deceased notionally at Rs.9,000/-, which according to the claimants is on the lower side. The finding of the Tribunal to come to a conclusion that the claimants are entitled for compensation of Rs.24,08,000/- is without proper application of mind.
17. Per contra, Smt. Preeti Patil Melkundi, learned counsel for the insurance company would contend that the Tribunal was not justified in awarding compensation of Rs.24,08,000/- in both the claim petitions, as the quantum 13 of compensation awarded by the Tribunal is on the higher side and adding of 50% towards future prospect is without considering the settled proposition of law. It is further contended that awarding of interest on the said compensation at the rate of 9% per annum is on the higher side and in the event this Court enhances the compensation, then the interest at the rate of 6% per annum on the enhanced compensation is appropriate.
18. Having heard the learned counsel for the parties and perused the material on record, the only point that arises for consideration in these appeals is:
Whether the judgment and award passed by the Tribunal requires interference?
19. The fact that the accident occurred on 22.02.2016 when the rider and the pillion rider were proceeding on their motorcycle and the Truck bearing Reg.No.TN-57/L-2593 came in a rash and negligent manner and dashed the motorcycle, due to which deceased Navanath Ghule and Nitin Gaikwad succumbed to 14 the injuries is not in dispute. The appeals filed by the claimants and the insurance company are on the ground of quantum. Thus, considering the actual controversy, this Court has to reassess whether the compensation awarded by the Tribunal is just, fair and proper compensation as per the dictum of the Hon'ble Apex Court.
20. Taking into consideration the material and evidence on record and as per the guidelines of the Karnataka State Legal Services Authority and the settled proposition of law in the case of National Insurance Company Limited vs. Pranay Sethi and others reported in (2017) 16 SCC 680 and Magma General Insurance Company Limited vs. Nanu Ram Alias Chuhru Ram and others reported in (2018) 18 SCC 130, we are of the considered opinion that the compensation awarded by the Tribunal needs to be reassessed.
21. The claimants in both the petitions stated that the deceased in MVC No.447/2016 was earning 15 Rs.20,000/- per month and the deceased in MVC No.576/2016 was earning Rs.15,000/- per month. However, no documents are produced by the claimants to show that the deceased were earning Rs.20,000/- and Rs.15,000/- respectively. Thereby, the Tribunal has taken the notional income of the deceased at Rs.9,000/- per month and considering the age of the deceased below 40 years has added 50% towards future prospects and deducting 1/3rd towards personal expenses of the deceased and applying multiplier of 18 has awarded a sum of Rs.12,96,000/- towards loss of income and Rs.9,72,000 towards future prospects in both the petitions.
22. Even assuming that the claimants have not produced any evidence to show the income of the deceased, as per the guidelines of the Karnataka State Legal Services Authority, the notional income for the accidents occurred in the year 2016 is to be taken at Rs.8,750/- per month. Hence, considering the income of the deceased at Rs.8,750/- per month and adding 40% 16 i.e., Rs.3,500/- towards future prospects as per the judgment of the Hon'ble Apex Court in National Insurance Company Limited vs. Pranay Sethi and others reported in (2017) 16 SCC 680, the total monthly income of the deceased would be Rs.12,250/-. After deducting 1/3rd of it towards personal expenses of the deceased and applying the multiplier of 18 bearing in mind the age of the deceased, the total compensation payable towards loss of dependency would come to Rs.17,64,000/- (Rs.12,250 x 12 x 18 x 2/3).
23. In view of the dictum of the Honble Apex Court in Satinder Kaur @ Satwinder Kaur & Ors. v. United India Insurance Co. Ltd. reported in AIR 2020 SC 3076 and in Magma General Insurance Company Limited vs. Nanu Ram Alias Chuhru Ram and others reported in (2018) 18 SCC 130, the claimants in both the claim petitions, who are the wife and mother of the deceased would be entitled to Rs.40,000/- each i.e. Rs.80,000/- towards loss of spousal and filial consortium. 17 Further, the claimants in both the claim petitions are entitled for a sum of Rs.15,000/- towards loss of estate and Rs.15,000/- towards transportation of dead body and funeral expenses.
24. Thus, the total compensation payable to the claimants is reassessed as under:
MFA No.200444/2020 (MVC No.447/2016)
1. Towards loss of dependency Rs.17,64,000/-
2. Towards loss of spousal and Rs.80,000/-
filial consortium
3. Towards loss of estate Rs.15,000/-
4. Towards transportation of Rs.15,000/-
dead body and funeral
expenses
Total Rs.18,74,000/-
MFA No.200442/2020 (MVC No.576/2016)
1. Towards loss of dependency Rs.17,64,000/-
2. Towards loss of spousal and Rs.80,000/-
filial consortium
3. Towards loss of estate Rs.15,000/-
4. Towards transportation of Rs.15,000/-
dead body and funeral
expenses
Total Rs.18,74,000/-
25. Thus, the claimants in both the claim petitions are entitled for a total compensation of Rs.18,74,000/- as 18 against Rs.24,08,000/- as awarded by the Tribunal. The Tribunal has awarded interest at the rate of 9% per annum. Hence, we think it just and proper to award interest at 9% per annum. Accordingly, the point raised for consideration is answered in the affirmative.
26. In the result, we pass the following ORDER
i) MFA No.200009/2020 and MFA No.200010/2020 filed by the insurance company are allowed.
ii) MFA No.200444/2020 filed by the claimant in MVC No.447/2016 and MFA No.200442/2020 filed by the claimant in MVC No.576/2016 are hereby dismissed.
iii) The impugned judgment and award dated 04.09.2019 passed in MVC Nos.447/2016 and 576/2016 by the Tribunal stands modified.
iv) The claimants in MVC No.447/2016 and 576/2016 are entitled for a total compensation of Rs.18,74,000/- as against Rs.24,08,000/- as 19 awarded by the Tribunal with interest at 9% p.a. from the date of petition till realization.
v) The apportionment, deposit and release of the aforesaid compensation would be as per the award of the Tribunal.
vi) The amount in deposit is directed to be transmitted to the Tribunal for disbursement.
vii) Registry is directed to send back the Trial Court records forthwith.
viii) No order as to costs.
Sd/-
JUDGE Sd/-
JUDGE SMP/LG