Karnataka High Court
Shabana And Ors vs Sri Prakash S/O Revansidda Sarane on 6 April, 2023
-1-
MFA No. 202067 of 2019
C/W MFA No. 202068 of 2019
MFA.CROB No. 200038 of 2020
MFA.CROB No. 200039 of 2020
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCL. FIRST APPEAL NO. 202067 OF 2019 (MV-D)
C/W
MISCL. FIRST APPEAL NO. 202068 OF 2019 (MV-D)
MFA CROSS OBJ NO. 200038 OF 2020 (MV-D)
MFA CROSS OBJ NO. 200039 OF 2020 (MV-D)
MFA NO.202067/2019:
BETWEEN:
THE BRANCH MANAGER
NATIONAL INSURANCE CO. LTD.,
BEHIND SIDDESHWAR TEMPLE,
VIJAYAPUR.
(NOW REPRESENTED BY AUTHORIZED
SIGNATORY, D.O., KALABURAGI)
...APPELLANT
(BY SMT PREETI PATIL MELKUNDI, ADVOCATE)
AND:
1. SHABANA
W/O AFSAR SAYYAD FAIK,
AGE: 26 YEARS, OCC: H.H.WORK,
Digitally signed
by RAMESH
MATHAPATI
Location: High 2. HABABI
Court of
Karnataka W/O FAKRUDDIN SAYYAD FAIK
AGE: 63 YEARS, OCC: H.H. WORK,
3. FAKRUDDIN SAYYAD
S/O RAMAJAN SAYYAD FAIK
AGE: 66 YEARS, OCC: NIL,
4. MATIN
S/O AFSAR SAYYAD FAIK
AGE: 09 YEARS,
5. SAHER
-2-
MFA No. 202067 of 2019
C/W MFA No. 202068 of 2019
MFA.CROB No. 200038 of 2020
MFA.CROB No. 200039 of 2020
D/O AFSAR SAYYAD FAIK
AGE: 5 ½ YEARS,
6. SANAM
D/O AFSAR SAYYAD FAIK
AGE: 5 ½ YEARS,
RESP. NO.4 TO 6 HEREIN ARE MINORS
R/BY M/G AND NEXT FRIEND RESP. NO.1
HEREIN, ALL R/O: MANDRUP,
TQ. SOUTH SOLAPUR, DIST: SOLAPUR,
NOW AT IBRAHIMPUR,
VIJAYAPUR-586101
7. PRAKASH
S/O REVANSIDDA SARANE
AGE: MAJOR, OCC: BUSINESS,
R/O. 137, JAVAHAR NAGAR, SHELAGI,
TQ. SOUTH SOLAPUR,
DIST. SOLAPUR-413001.
...RESPONDENTS
(BY SRI S. S. MAMADAPUR, ADVOCATE FOR C/R1 TO R6
N/R7 HELD SUFFICIENT)
THIS MFA IS FILED U/S 173 (1) OF MV ACT PRAYING TO
ALLOW THE ABOVE APPEAL BY SETTING ASIDE THE IMPUGNED
COMMON JUDGMENT AND AWARD DATED 15.02.2019 IN MVC
NO.731/2015 PASSED BY THE III ADDL. SENIOR CIVIL JUDGE
AND MACT-XII, VIJAYAPUR.
MFA NO.202068/2019:
BETWEEN:
THE BRANCH MANAGER
NATIONAL INSURANCE CO. LTD.,
BEHIND SIDDESHWAR TEMPLE,
VIJAYAPUR
(NOW REPRESENTED BY AUTHORIZED
SIGNATORY, D.O., KALABURAGI)
...APPELLANT
(BY SMT PREETI PATIL MELKUNDI, ADVOCATE)
AND:
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MFA No. 202067 of 2019
C/W MFA No. 202068 of 2019
MFA.CROB No. 200038 of 2020
MFA.CROB No. 200039 of 2020
1. SUREKHA
W/O VASANT MAREWALE,
AGE: 29 YEARS, OCC: H.H. WORK,
2. RAHUL
S/O VASANT MAREWALE
AGE: 11 YEARS, OCC: STUDENT,
3. PRIYANKA
D/O VASANT MAREWALE
AGE: 09 YEARS, OCC: NIL
4. SUGANDHA
D/O VASANT MAREWALE
AGE: 07 YEARS, OCC: NIL,
5. KUMAR
S/O VASANT MAREWALE
AGE: 05 YEARS, OCC: STUDENT,
6. MAYI @ TAYIBAI
W/O BABU MAREWALE
AGE: 78 YEARS, OCC: NIL,
RESP. NO.2 TO 5 HEREIN ARE MINORS
R/BY M/G AND NEXT FRIEND
RESP. NO.1 HEREIN, ALL
R/O MANDRUP, TQ. SOUTH
SOLAPUR, DIST. SOLAPUR, NOW AT
IBRAHIMPUR, VIJAYAPUR-586101.
7. PRAKASH
S/O REVANSIDDA SARANE
AGE: MAJOR, OCC: BUSINESS,
R/O. 137, JAVAHAR NAGAR, SHELAGI,
TQ. SOUTH SOLAPUR, DIST.
SOLAPUR-413001.
...RESPONDENTS
(BY SRI S. S. MAMADAPUR, ADVOCATE FOR R1 TO R6;
NOTICE TO R7 IS HELD SUFFICIENT)
THIS MFA IS FILED U/S. 173(1) OF MV ACT PRAYING TO
ALLOW THE ABOVE APPEAL BY SETTING ASIDE THE IMPUGNED
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MFA No. 202067 of 2019
C/W MFA No. 202068 of 2019
MFA.CROB No. 200038 of 2020
MFA.CROB No. 200039 of 2020
COMMON JUDGMENT AND AWARD DATED 15.02.2019 IN MVC
NO.732/2015 PASSED BY THE III ADDITIONAL SENIOR CIVIL
JUDGE AND M.A.C.T. NO.XII, VIJAYPUR.
MFA CROB.200038/2020:
BETWEEN:
1. SMT. SHABANA
W/O AFSAR SAYYAD FAIK,
AGED ABOUT 27 YEARS,
OCC: HOUSEHOLD WORK,
2. SMT. HABABI
W/O FAKRUDDIN SAYYAD FAIK
AGED ABOUT 64 YEARS,
OCC: HOUSEHOLD WORK,
3. SRI FAKRUDDIN SAYYAD
S/O RAMAJAN SAYYAD FAIK
AGED ABOUT 67 YEARS, OCC: NIL,
4. MATIN
S/O AFSAR SAYYAD FAIK
AGED ABOUT 10 YEARS, OCC: NIL
5. SAHER
D/O AFSAR SAYYAD FAIK
AGED ABOUT 7 YEARS, OCC: NIL,
6. SANAM
D/O AFSAR SAYYAD FAIK
AGED ABOUT 7 YEARS, OCC: NIL
APPELLANT NO.4 TO 6 HEREIN ARE
MINORS R/BY & M/G AND NEXT FRIEND
APPEALLENT-1, ALL R/O MANDRUP,
TQ. SOUTH SOLAPUR, DIST. SOLAPUR,
NOW AT IBRAHIMPUR,
VIJAYAPUR-586101.
...CROSS OBJECTORS
(BY SRI S. S. MAMADAPUR, ADVOCATE)
AND:
1. SRI PRAKASH
S/O REVANSIDDA SARANE
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MFA No. 202067 of 2019
C/W MFA No. 202068 of 2019
MFA.CROB No. 200038 of 2020
MFA.CROB No. 200039 of 2020
AGE: MAJOR, OCC: BUSINESS,
R/O 137, JAVAHAR NAGAR, SHELAGI,
TQ. SOUTH SOLAPUR,
DIST. SOLAPUR-413001
2. THE BRANCH MANAGER
NATIONAL INSURANCE CO. LTD.,
BEHIND SIDDESHWAR TEMPLE,
VIJAYAPUR-586101.
...RESPONDENTS
(BY SMT PREETI PATIL MELKUNDI, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH)
THIS MFA CROB. IS FILED U/S. 41 RULE 22 OF CPC
PRAYING TO ENHANCE THE COMPENSATION AMOUNT BY
SUITABLY MODIFYING THE JUDGMENT AND AWARD DATED
15.02.2019 PASSED BY THE HON'BLE III ADDL. SENIOR CIVIL
JUDGE AND MEMBER MACT-XII, VIJAYAPUR IN MVC
NO.731/2015.
MFA CROB. NO.200039/2020
BETWEEN:
1. SUREKHA
W/O VASANT MAREWALE,
AGE: 30 YEARS, OCC: HOUSEHOLD WORK,
2. RAHUL
S/O VASANT MAREWALE
AGE: 12 YEARS, OCC: STUDENT,
3. PRIYANKA
D/O VASANT MAREWALE
AGE: 10 YEARS, OCC: NIL
4. SUGANDHA
D/O VASANT MAREWALE
AGE: 08 YEARS, OCC: NIL,
5. KUMAR
S/O VASANT MAREWALE
AGE: 06 YEARS, OCC: NIL,
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MFA No. 202067 of 2019
C/W MFA No. 202068 of 2019
MFA.CROB No. 200038 of 2020
MFA.CROB No. 200039 of 2020
APPELLANTS-2 TO 5 ARE MINORS
REP. BY M/G AND NEXT FRIEND
SMT. SUREKHA
W/O VASANT MAREWALE
APPELLANT-1
6. MAYI @ TAYIBAI
W/O BABU MAREWALE
AGE: 79 YEARS, OCC: NIL,
ALL R/O MANDRUP, TQ. SOUTH
SOLAPUR, DIST. SOLAPUR,
NOW AT IBRAHIMPUR,
VIJAYAPUR-586101.
...CROSS OBJECTOR
(BY SRI S. S. MAMADAPUR, ADVOCATE)
AND:
1. SRI. PRAKASH
S/O REVANSIDDA SARANE
AGE: MAJOR, OCC: BUSINESS,
R/O 137, JAVAHAR NAGAR,
SHELAGI, TQ. SOUTH SOLAPUR,
DIST. SOLAPUR-413001.
2. THE BRANCH MANAGER
NATIONAL INSURANCE CO. LTD.,
BEHIND SIDDESHWAR TEMPLE,
VIJAYAPUR-586101
...RESPONDENTS
(BY SMT PREETI PATIL MELKUNDI, ADVOCATE FOR R2;
N/R1 DISPENSED WITH)
THIS MFA CROB. IS FILED U/S. 41 RULE 22 OF CPC
PRAYING TO ENHANCE THE COMPENSATION AMOUNT BY
SUITABLY MODIFYING THE JUDGMENT AND AWARD DATED
15.02.2019 PASSED BY THE HON'BLE III ADDL. SENIOR CIVIL
JUDGE AND MEMBER MACT-XII, VIJAYAPUR IN MVC
NO.732/2015.
THESE APPEALS AND MFA CROBS., COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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MFA No. 202067 of 2019
C/W MFA No. 202068 of 2019
MFA.CROB No. 200038 of 2020
MFA.CROB No. 200039 of 2020
JUDGMENT
MFA Nos.202067/2019 and 202068/2019 are filed by the insurance company and MFA Nos.200038/2020, 200039/2020 are filed by the claimants seeking enhancement of compensation.
2. Though matters are listed for admission, with the consent of learned counsel for both parties, they are taken up for final disposal.
3. Learned counsel for the insurance company has submitted her arguments that Tribunal has not considered the police documents namely, FIR, complaint, spot panchanama and inquest panchanama, which shows that unknown vehicle has hit the deceased and does not reveals type of vehicle dashed him. The charge sheet is based on the statements of PW3 and PW4 and both the witnesses have deposed contradictory and against the evidence marked by the claimants. Inspection of both the vehicles are not produced by the claimants and false case has been filed by the police against this vehicle. Further -8- MFA No. 202067 of 2019 C/W MFA No. 202068 of 2019 MFA.CROB No. 200038 of 2020 MFA.CROB No. 200039 of 2020 he has submitted that Tribunal has awarded higher compensation with interest at 9%. On all these grounds, sought for allowing the appeals. To substantiate his arguments, he relied upon the decisions of Division Bench of this Court rendered in MFA Nos.200750/2015 c/w 200433/2015 and MFA No.31906/2012.
4. As against this, learned counsel for the claimants in MFA No.200038/2020 and 200039/2020 has submitted his arguments that Tribunal has not awarded just and proper compensation in accordance with law and sought for enhancement of compensation. Further he has submitted that to substantiate the case of the claimants they have examined 4 witnesses before the Tribunal as PW1 to PW4 and 11 documents got marked as Exs.P-1 to P-11. Among them, PW3 is the eye witness and PW4 is one of the inmates of the offending vehicle. Further submitted that insurance company has not examined any witnesses to rebut the evidence of PW1 to PW4 and documentary evidence. On all these grounds, sought for -9- MFA No. 202067 of 2019 C/W MFA No. 202068 of 2019 MFA.CROB No. 200038 of 2020 MFA.CROB No. 200039 of 2020 dismissal of the appeals filed on behalf of the insurance company.
5. Having regard to the facts and circumstances of the case, the following points would arise for my consideration:
(1) Whether the claimants in MFA Nos.200038/2020 and 200039/2020 are entitled for enhancement of compensation as sought for?
(2) Whether the appellant in MFA Nos.202067/2019 and 202068/2019 have made out grounds to interfere with the impugned judgment and award as to the liability of the insurance company?
(3) Whether the appellant in MFA Nos.
202067/2019 and 202068/2019 has made out grounds to reduce the interest from 9% to 6%?
(4) What order/award?
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MFA No. 202067 of 2019
C/W MFA No. 202068 of 2019
MFA.CROB No. 200038 of 2020
MFA.CROB No. 200039 of 2020
6. My answer to the above points are:
(1) Partly affirmative (2) Negative (3) Partly affirmative (4) As per final order RE. POINT NO.1:
IN MFA No.200038/2020:
7. The tribunal has taken the notional income of the deceased at Rs.7,000/-, which is contrary to guidelines issued by the KSLSA. As per the guidelines of KSLSA the notional income for the accidents of the year 2015 is Rs.8,000/-, as such same is applicable in the present case. The deceased was aged 28 years at the time of accident, hence the proper multiplier applicable is '17'.
8. Since the deceased was aged 28 years at the time of accident, in view of decisions of Hon'ble Supreme Court in the case of NATIONAL INSURANCE CO., LTD., VS. PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157 and MAGMA GENERAL INSURANCE
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MFA No. 202067 of 2019C/W MFA No. 202068 of 2019 MFA.CROB No. 200038 of 2020 MFA.CROB No. 200039 of 2020 COMPANY LIMITED VS. NANU RAM ALIAS CHUHRU RAM & OTHERS reported in 2018 ACJ 2782, 40% has to be added towards future prospects to the income, which would result in Rs.11,200/- (Rs.8,000/- + 40% (Rs.3,200/-)).
9. Admittedly, the deceased has left behind his wife along with 3 minor children and parents. Hence in view of decision in SARLA VERMA (SMT) & OTHERS VS. DELHI TRANSPORT CORPORATION & ANOTHER, reported in (2009) 6 SCC 121, 1/4th has to be deducted, which would come to Rs.11,200/- - 1/4th (Rs.2,800/-) = Rs.8,400/-. Thus, the claimants are entitled to a sum of Rs.17,13,600/- [Rs.8,400/- x 12 x 17], which is rounded off to Rs.17,14,000/- towards loss of dependency.
10. Keeping in mind the aforestated decisions, it is just and proper to assess the compensation as under:
Enhanced Awarded by Sl. by this Particulars the Tribunal No. Court in Rs.
In Rs.
1 Loss of dependency 10,71,000/- 17,14,000/-
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MFA No. 202067 of 2019C/W MFA No. 202068 of 2019 MFA.CROB No. 200038 of 2020 MFA.CROB No. 200039 of 2020 2 Loss of Consortium 25,000/- 2,40,000/-
(Rs.40,000/- x 6) 3 Loss of love and affection 30,000/- NIL 4 Transportation of dead 10,000/- NIL body 5 Funeral expenses 10,000/- 15,000/- 6 Loss of estate 10,000/- 15,000/-
Total 11,56,000/- 19,84,000/-
11. Thus, the claimants are entitled to a total compensation of Rs.19,84,000/- as against Rs.11,56,000/- awarded by the Tribunal. Hence, the claimants are entitled for enhanced compensation of Rs.8,28,000/-.
IN MFA No.200039/2020:
12. The tribunal has taken the notional income of the deceased at Rs.7,000/-, which is contrary to guidelines issued by the KSLSA. As per the guidelines of KSLSA the notional income for the accidents of the year 2015 is Rs.8,000/-, as such same is applicable in the present case. The deceased was aged 25 years at the time of accident, hence the proper multiplier applicable is '18'.
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MFA No. 202067 of 2019C/W MFA No. 202068 of 2019 MFA.CROB No. 200038 of 2020 MFA.CROB No. 200039 of 2020
13. Since the deceased was aged 25 years at the time of accident, in view of decisions of Hon'ble Supreme Court in the case of NATIONAL INSURANCE CO., LTD., VS. PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157 and MAGMA GENERAL INSURANCE COMPANY LIMITED VS. NANU RAM ALIAS CHUHRU RAM & OTHERS reported in 2018 ACJ 2782, 40% has to be added towards future prospects to the income, which would result in Rs.11,200/- (Rs.8,000/- + 40% (Rs.3,200/-)).
14. Admittedly, the deceased has left behind his wife along with 4 minor children and mother. Hence in view of decision in SARLA VERMA (SMT) & OTHERS VS. DELHI TRANSPORT CORPORATION & ANOTHER, reported in (2009) 6 SCC 121, 1/4th has to be deducted, which would come to Rs.11,200/- - 1/4th (Rs.2,800/-) = Rs.8,400/-. Thus, the claimants are entitled to a sum of Rs.18,14,400/- [Rs.8,400/- x 12 x 18], which is rounded off to Rs.18,15,000/- towards loss of dependency.
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MFA No. 202067 of 2019C/W MFA No. 202068 of 2019 MFA.CROB No. 200038 of 2020 MFA.CROB No. 200039 of 2020
15. Keeping in mind the aforestated decisions, it is just and proper to assess the compensation as under:
Enhanced Awarded by Sl. by this Particulars the Tribunal No. Court in Rs.
In Rs.
1 Loss of dependency 11,34,000/- 18,15,000/- 2 Loss of Consortium 25,000/- 2,40,000/-
(Rs.40,000/- x 6) 3 Loss of love and affection 30,000/- NIL 4 Transportation of dead 10,000/- NIL body 5 Funeral expenses 10,000/- 15,000/- 6 Loss of estate 10,000/- 15,000/-
Total 12,19,000/- 20,85,000/-
16 Thus, the claimants are entitled to a total compensation of Rs.20,85,000/- as against Rs.12,19,000/- awarded by the Tribunal. Hence, the claimants are entitled for enhanced compensation of Rs.8,66,000/-.
RE. POINT NO.2:
17. With regard to liability of the insurance company is concerned, this Court has reappreciated the evidence on record. On the basis of complaint filed by the complainant the police have registered the case in Crime
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MFA No. 202067 of 2019C/W MFA No. 202068 of 2019 MFA.CROB No. 200038 of 2020 MFA.CROB No. 200039 of 2020 No.77/2015 against unknown vehicle for commission of offences punishable under Section 279, 338, 304A of IPC r/w Sections 134(3), 177 and 184 of MV Act and submitted the FIR to the Court. Therefore, the appellants have recorded the further statement of complainant and other witnesses and rushed to the spot and conducted spot mahazar, obtained post mortem report of the deceased, who died in the accident. On thorough investigation, the IO has submitted the charge sheet against the accused - Krishnappa, who is the driver of the offending Tata Tempo No.MH-13/R-4810 for the commission of offences punishable under Sections 279, 338, 304A of IPC and Sections 134(3), 177 and 184 of MV Act.
18. Apart from the documentary evidence, the claimants have examined four witnesses as PWs.1 to 4 amongst them PW.3 is the charge sheet witness, who is shown as CW.7 and another inmate of the vehicle was also examined as PW.4. The respondents have not adduced
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MFA No. 202067 of 2019C/W MFA No. 202068 of 2019 MFA.CROB No. 200038 of 2020 MFA.CROB No. 200039 of 2020 any evidence to discard the oral and documentary evidence placed by the claimants. Considering the materials, the tribunal has appreciated the evidence on record in a proper and perceptive manner and passed the impugned judgment and award with regard to the liability of the Insurance Company. Hence, I do not find any materials to interfere with the impugned judgment and award passed by the tribunal with regard to the liability of the Insurance Company. Accordingly, I answer Point No.2 in the negative.
19. With regard to interest is concerned, the tribunal has awarded interest @ 9%, which is on the higher side. Considering the interest on fixed deposit in Nationalized Banks as on the date of the accident, it is just and proper to reduce the interest from 9% to 6%. Hence, I answer Point No.3 in the affirmative. RE. POINT NO.3:
20. For the aforesaid reasons and discussions, I proceed to pass the following;
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MFA No. 202067 of 2019C/W MFA No. 202068 of 2019 MFA.CROB No. 200038 of 2020 MFA.CROB No. 200039 of 2020 ORDER
(a) The appeals filed by the respondent-
Insurance Company in MFA Nos.202067 of 2019 and 202068 of 2019 are dismissed.
(b) MFA Crob. Nos.200038 of 2020 and 200039 of 2020 filed by the claimants are allowed in part.
(c) The impugned judgment and award passed by the Tribunal is modified.
(d) The claimants/cross objectors in both cases are entitled for compensation along with interest at the rate of 6% p.a. from the date of claim petition till the date of realization of amount.
(e) The Insurance Company is directed to deposit the enhanced compensation amount along with interest, within a period of eight weeks from the date of receipt of copy of this order.
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MFA No. 202067 of 2019C/W MFA No. 202068 of 2019 MFA.CROB No. 200038 of 2020 MFA.CROB No. 200039 of 2020
(f) Amount in deposit, if any, shall be transferred to the Tribunal to disburse the same to the claimants.
(g) The apportionment of the compensation shall be in terms of the award of the Tribunal.
(h) All other terms and conditions stipulated by the Tribunal shall stand intact.
Sd/-
JUDGE DR/MSR LIST NO.: 1 SL NO.: 45