IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE07h DAY OF JULY, 2023 PRESENT THE HON'BLE MR JUSTICE S G PANDIT AND THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL MISCELLANEOUS FIRST APPEAL No.103558 OF2019C/W MISCELLANEOUS FIRST APPEAL No.103500 OF2019IN MFA No.103558 OF2019BETWEEN1 SMT UJAWALA W/O. SANTOSH GHADI, AGE:
28. YEARS, OCC: HOUSEHOLD, R/O: KOUNDAL VILLAGE, TQ: KHANAPUR, DIST: BELAGAVI.
2. SMT. PARVATI MAHADEV GHADI, AGE:
53. YEARS, OCC: HOUSEHOLD, R/O: KOUNDAL VILLAGE, TQ: KHANAPUR, DIST: BELAGAVI.
3. SHRI. MAHADEV APPANNA GHADI, AGE:
58. YEARS, OCC: AGRICULTURE, R/O: KOUNDAL VILLAGE, TQ: KHANAPUR, DIST: BELAGVAVI.
4. KUMARI SARVADNYA D/O. SANTOSH GHADI, Age:
3. YEARS, OCC: NIL, (SINCE APPELLANT NO.4 MINOR REPRESENTED BY HER M/G APPELLANT No.1 UJAWALA) R/O: KOUNDAL VILLAGE, TQ: KHANAPUR, DIST: BELAGVAVI. ...APPELLANTS (BY SRI. ASHOK A. NAIK, ADVOCATE) 2 AND1 SHRI. SIDDESHWAR S/O. GANAPATI KADAM, AGE: MAJOR, OCC: DRIVER, R/O: NIDAGAL, POST: TOPINAKATTI, TQ: KHANAPUR, DIST: BELAGAVI-20.
2. SHRI PARASHRAM S/O. VASANT ALLOLKAR, AGE: MAJOR, OCC: BUSINESS, R/O: NIDAGAL, POST: TOPINAKATTI, TQ: KHANAPUR, DIST: BELAGAVI-20.
3. RELIENCE GENERAL INURANCE COMPANY LTD, BY ITS BRANCH MANAGER, MAHADEV PLAZA, CTS No.10719 SY NO135A, NEAR KOLHAPUR CIRCLE, NEHRU NAGAR, BELAGAVI-20. ... RESPONDENTS (BY SRI. G.N. RAICHUR, ADVOCATE FOR RESPONDENT NO.3; R1 AND R2 SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION173(1) OF THE MOTOR VEHICLE ACT, PRAYING TO SET ASIDE THE JUDGMENT
AND AWARD DATED1706.2019 IN MVC8262016 PASSED BY THE ADDL. MOTOR ACCIDENT CLAIMS TRIBUNAL AND SENIOR CIVIL JUDGE, KOLHAPUR, BY ALLOWING THIS APPEAL WITH COST IN THE ENDS OF JUSTICE AND EQUITY. IN MFA No.103500 OF2019BETWEEN RELIANCE GENERAL INSURANCE CO., LTD, BY ITS BRANCH MANAGER MAHADEV PLAZA, CTS No.107119 SY NO.135/A NEAR KOLHAPUR, CIRCLE NEHRU NAGAR, BELAGAVI59000, REPRESENTED BY ITS AUTHORIZED SIGNATORY. ...APPELLANT (BY G.N. RAICHUR, ADVOCATE) 3 AND1 SMT UJAWALA W/O. SANTOSH GHADI, AGE:
28. YEARS, OCC: HOUSEHOLD, R/O: KOUNDAL VILLAGE, TQ: KHANAPUR, DIST: BELAGAVI.
2. SMT. PARVATI MAHADEV GHADI, AGE:
53. YEARS, OCC: HOUSEHOLD, R/O: KOUNDAL VILLAGE, TQ: KHANAPUR, DIST: BELAGAVI.
3. SHRI. MAHADEV APPANNA GHADI, AGE:
58. YEARS, OCC: AGRICULTURE, R/O: KOUNDAL VILLAGE, TQ: KHANAPUR, DIST: BELAGVAVI.
4. KUMARI SARVADNYA D/O. SANTOSH GHADI, Age:
3. YEARS, OCC: NIL, (SINCE APPELLANT NO.4 MINOR REPRESENTED BY HER M/G APPELLANT No.1 UJAWALA) R/O: KOUNDAL VILLAGE, TQ: KHANAPUR, DIST: BELAGVAVI.
5. SHRI. SIDDESHWAR S/O. GANAPATI KADAM, AGE: MAJOR, OCC: DRIVER, R/O: NIDAGAL, POST: TOPINAKATTI, TQ: KHANAPUR, DIST: BELAGAVI-20.
6. SHRI PARASHRAM S/O. VASANT ALLOLKAR, AGE: MAJOR, OCC: BUSINESS, R/O: NIDAGAL, POST: TOPINAKATTI, TQ: KHANAPUR, DIST: BELAGAVI-20. ... RESPONDENTS (BY SRI. ASHOK A. NAIK, ADVOCATE FOR C/RESPONDENT NO.1 TO RESPONDENT No.4; R5 AND R6 ARE SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION173(1) OF THE MOTOR VEHICLE ACT, PRAYING TO SET ASIDE THE JUDGMENT
AND AWARD DATED1706.2019 PASSED IN THE COURT OF THE BEFORE ADDITIONAL MOTOR4ACCIDENT CLAIMS TRIBUNAL AND SENIOR CIVIL JUDGE KHANAPUR AT KHANAPUR IN MVC No.826/2016. BY EXONORATING THE APPELLANT INSURANCE COMPANY FROM THE FULL LIABILITY AND REDUCING THE COMPENSATION BY ALLOWING THIS APPEAL WITH COST IN THE ENDS OF JUSTICE AND EQUITY. THESE APPEALS HAVING BEEN HEARD, RESERVED ON2706-2023 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT
VIJAYKUMAR A PATIL, J., PRONOUNCED THE FOLLOWING: JUDGMENT
MFA No.103558/2019 is filed by the appellants- claimants, who are the legal heirs of deceased Santhosh, seeking for enhancement of compensation. MFA No.103500/2019 is filed by the appellant- Reliance General Insurance Company challenging the liability as well as the quantum of compensation awarded by the Tribunal vide judgment and award dated 17.06.2019 passed by the Addl. MACT and Senior Civil Judge, Khanapur in MVC No.826/2016.
2. Brief facts giving raise to filing of these appeals are that on 06.03.2016 at about 6.45 p.m. 5 one Santosh Mahadev Ghadi was proceeding on motorcycle bearing No.KAGA-05/K-3830 from his village to Goa on Khanapur-Hemmadaga road. At that time, near Dongargao cross, one Mahindra Bulero vehicle bearing No.KA-22/B-4535 came from opposite direction in a high speed, rash and negligent manner and dashed to the motorcycle resulting in the death of Santosh Ghadi. The legal representatives of the deceased Santosh filed a claim petition under Section 166 of Motor Vehicle Act, 1988 seeking compensation.
3. It is averred that prior to the accident, the deceased was hale and healthy, working in MRF Tyre Factory at Tisk Phonda-Goa as operator and earning Rs.35,000/- p.m. It is further averred that respondent No.1 being the driver, respondent No.2 being the owner and respondent No.3 being the insurer of the offending vehicle, are jointly and severally liable to pay compensation. 6
4. The respondents appeared before the Tribunal and filed separate objections. Respondent Nos.1 and 2 have contended that vehicle bearing No.KA-22/B-4535 is owned by respondent No.2 and respondent No.1 was having valid driving licence at the time of accident, hence, respondent No.3, who is insurer of the said vehicle, is liable to pay compensation and prayed for dismissal of the claim petition.
5. Respondent No.3 in its objections contended that the petition filed by the claimants is false, frivolous and vexatious. It is averred that the claim petition is liable to be dismissed for non- compliance of Section 134 (c) and 158(6) of Motor Vehicles act, 1988. It is further averred that the death of the deceased is not due to the accidental injuries involving Mahindra bolero vehicle bearing No.KA- 7 22/B-4535 as alleged in the claim petition. It is also averred that it is a hit and run case by an unknown vehicle or due to some other incident Sri.Santhosh died and there is no nexus between the death of the deceased and offending vehicle. It is contended that there was no permit and fitness certificate to the offending vehicle i.e., Mahindra Bolero bearing No.KA- 22/B-4535 and hence, the owner of the said vehicle has violated the policy conditions and hence, prayed for dismissal of the claim petition as against respondent No.2.
6. The Tribunal framed the issues and recorded the evidence. The wife of the deceased examined herself as PW-1 and examined two other witnesses as PW-2 and PW-3 and produced 19 documents as Exs.P-1 to P-19. The respondents examined RW-1 and produced 4 documents marked at Exs.R-1 to R-4. The Tribunal partly allowed the claim 8 petition by awarding total compensation of Rs.32,00,000/- with interest at 9% p.a. on the following heads:
1. Loss of consortium Rs.1,00,000/- 2. Loss of love and affection Rs.1,00,000/- 3. Loss of estate Rs.1,00,000/- 4. Transportation and funeral expenses Rs.20,000/- 5. Loss of dependency Rs.28,80,000/- Total Rs.32,00,000/- 7. Learned counsel Sri Ashok A. Naik for appellants-claimants submits that the Tribunal has committed an error in assessing the income of the deceased at Rs.20,000/- p.m. as the deceased was earning a sum of Rs.31,885/- p.m. It is submitted that the Tribunal has committed an error in not awarding any compensation towards future prospects and failed to award any compensation towards loss of consortium to the claimants, hence, sought for enhancement of compensation.
8. Per contra, learned counsel Sri G.N.Raichur for appellant-insurance company submits that the 9 Tribunal has committed an error in fastening liability on the insurance company of Mahindra Bolero vehicle bearing Reg.KA-22/B-4535 contrary to the evidence on record. It is submitted that the police complaint at Ex.P-2 lodged by one Srikant Mahadev Ghadi who is a relative of the deceased clearly establishes that the offending vehicle Mahindra Bolero was not involved in the accident. The complainant in the complaint at Ex.P-2 says that some vehicle has hit his brother and accident has caused and no particulars of the vehicle are mentioned in the complaint. Hence, it can be fairly inferred that the offending vehicle Mahindra Bolero has been falsely implicated with an intention to grab compensation. It is further submitted that the rider of the motorcycle was negligent in not wearing the helmet, if he had worn the helmet, he would not have sustained such grievous injuries to the head, hence, he is responsible for cause of accident and injuries. It 10 is also submitted that Exs.P-7 and P-8 are the motor vehicle inspection report, which clearly establish that the motorcycle of the deceased has been severely damaged however, no visible damage is caused to Mahindra Bolero vehicle. Hence, there is no connection of Mahindra Bolero vehicle with the accident in question and appellants-claimants have not adduced any evidence to establish that the Mahindra Bolero vehicle was involved in the accident. Learned counsel further submits that the Tribunal has committed an error in assessing the income of the deceased at Rs.20,000/- per month. Ex.P-16 is the salary certificate issued by the employer of the deceased wherein the wage of the deceased is shown as Rs.22,650/- per month and details are mentioned. In the details the component like personal pay 2 Rs.239/-, washing allowance Rs.218/-, additional special allowance Rs.163/-, monthly efficiency bonus 11 Rs.125/- and efficiency bonus Rs.2,887/- are required to be deducted from total wages. He also submits that the Tribunal has committed an error in awarding exorbitant compensation under other heads also and sought for dismissal of appeal filed by the legal heirs of the deceased and sought to allow the appeal filed by insurance company.
9. We have heard the learned counsel for the appellants-claimants, learned counsel for the appellant-insurance company, perused the memorandum of appeals and the Tribunal records. The points that would arise for consideration are that:
1. Whether the Tribunal is justified in saddling the entire liability on the insurance company?.
2) Whether the judgment and award of the Tribunal call for any interference for enhancement of compensation ?. 12 10. The point Nos.1 and 2 are answered in the affirmative for the following reasons:
11. On 06.03.2016 when the deceased Santhosh was proceeding in his motorcycle bearing Reg.No.GA-05/K-3830 to Goa, Mahindra Bolero vehicle bearing Reg.No.KA-22-B/4535 came from the opposite direction and dashed to the motorcycle resulting in the death of said Santhosh. The claim petition has been filed by the legal heirs of the deceased Santosh. The Tribunal has fastened the entire liability on the driver of Mahindra Bolero vehicle and directed the insurer to pay the compensation of Rs.32,00,000/-. In support of the claim, the claimants have examined three witnesses i.e., the appellant No.1, the brother of the deceased who lodged the police complaint and Deputy Manager of MRF Limited and got marked 19 documents. It is specifically pleaded and same has been reiterated in the evidence 13 of the claimant No.1 that the accident has taken place due to rash and negligent driving of Mahindra Bolero vehicle bearing Reg.No.KA-22-B-4535 by its driver, the same has been denied by the insurance company alleging that the vehicle has been falsely implicated.
12. On close scrutiny of evidence on record, it is evident that the appellant No.1 who is wife of the deceased in her affidavit in lieu of examination of chief has made assertion that the driver of Mahindra Bolero vehicle was negligent, resulted in accident.
13. Sri.Srikanth Mahadev Ghadi, the brother of deceased has examined himself as PW-2 wherein he has categorically stated that he has lodged the police complaint as per Ex.P-2. On bare perusal of complaint at Ex.P-2, it reveals that the deceased Santhosh has died in the road accident. Ex.P-3 copy of the spot panchanama drawn during the investigation, Ex.P-4 sketch and Exs.P-7 & P-8 the postmortem reports 14 clearly establish that the accident is caused between Mahindra Bolero vehicle bearing Reg.No.KA-22/B- 4535 and motorcycle bearing Reg.No.GA-05/K-3830. The contention of the insurance company that the complaint at Ex.P-2 does not whisper about the nature of vehicle involved in the accident, hence, Mahindra Bolero vehicle is not involved in the accident requires to be rejected at the threshold for the reason that the jurisdiction police after completion of investigation filed charge sheet against the driver of Mahindra Bolero vehicle. The insurance company has not examined any independent witness to substantiate their plea that Mahindra Bolero vehicle was not involved in the accident. Nothing prevented the insurance company from examining the driver of Mahindra Bolero vehicle before the Tribunal. The insurance company has not cross-examined PW-3 the brother of the deceased, who registered the 15 complaint. In the absence of any contrary evidence on record to substantiate the allegation that Mahindra Bolero vehicle was not involved in the accident in question, the same request to be rejected. In our considered view, the evidence on record clearly establishes that the driver of Mahindra Bolero vehicle is responsible for causing the accident, hence, the insurance company is liable to pay compensation.
14. The other contention of learned counsel for insurance company is that the deceased was negligent in not wearing the helmet and if he had worn the helmet, such injuries would not have been caused to him, hence, he has also contributed for the accident. The said assertion of the insurance company is without any evidence on record. Neither the insurance company has taken the said plea in its objection that the deceased was not wearing helmet at the time of riding the motorcycle nor adduced any evidence to 16 that effect. The said assertion of insurance company is without any basis and liable to be rejected. Learned counsel for insurance company further contend that the motor vehicle inspection report at Exs.P-7 and P-8 clearly establish that the motorcycle of the deceased sustained severe damage, however, no visible damage is caused to Mahindra Bolero vehicle hence, it can be fairly inferred that Mahindra Bolero is not involved in the accident. On bare perusal of Exs.P-7 and P-8 reflects that the motorcycle of the deceased was damaged however no damage is caused to Mahindra Bolero that itself cannot be a basis to come to the conclusion that Mahindra Bolero was not involved in the road accident. The jurisdictional Police during the course of investigation have drawn panchanama, seized the vehicle and filed the charge sheet against the driver of the offending vehicle Mahindra Bolero, which clearly establishes that Mahindra Bolero is the 17 offending vehicle involved in the subject accident. The contention urged by the insurance company is contrary to the evidence on record, hence, the same is liable to be rejected.
15. The next contention of the learned counsel for insurance company is that the Tribunal has incorrectly assessed the income of the deceased at Rs.20,000/- p.m. and it ought to have deducted the components like personal pay of Rs.239/-, washing allowance of Rs.218/-, additional special allowance of Rs.163/-, monthly efficiency bonus of Rs.125/- and efficiency bonus of Rs.2887/- from the total salary. The said contention is also required to be rejected for the reason that the appellant-claimants have examined Sri.Atul Arvind Sadre, Manager of MRF Limited as PW-2. The insurance company has failed to cross-examine PW-2 on the aspect of deductions from net salary. They are urging the said ground for the 18 first time in its appeal. Exs.P-16 & P-17 the salary certificate and pay slip clearly establish that the deceased was drawing salary of Rs.22,650/- and his gross salary was Rs.31,885/-. The Tribunal has rightly assessed the income of the deceased at Rs.20,000/- after deducting the permissible deductions under law. Hence, we do not find any merit in the contention urged by the insurance company insofar as deductions and assessment of income of the deceased are concerned.
16. The deceased was aged about 31 years at the time of accident, his income is assessed at Rs.20,000/- p.m. and the Tribunal has applied 16 multiplier, the same does not call for any interference. However, the Tribunal has committed an error in not awarding any compensation towards future prospects. The deceased was a permanent employee in MRF Limited and was aged about 31 years at the time of 19 accident. As per the decision of Hon'ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others1, the claimants being the legal heirs of deceased are entitled for compensation under the head of loss of future prospects of the deceased. Hence, we award 50% under the head of loss of future prospects to be added to the assessed income of the deceased. The Tribunal has rightly deducted 1/4th of the income of the deceased towards his personal and living expenses and the same does not call for any interference. Thus, claimants-appellants are entitled for compensation towards loss of dependency as under : Rs.20,000+50%=30,000/- Rs.30,000 - 7,500 (1/4 of Rs.30,000/-) = Rs.22,500/- Rs.22,500 X12X16=43,20,000/- 1 (2017) 16 SCC68020 17. The claimants-appellants, the wife, parents and daughter of the deceased Santhosh are entitled for loss of consortium of Rs.40,000/- each as held by the Hon'ble Supreme Court in the case of Magma General Insurance Company Limited Vs Nanu Ram2. The appellants-claimants are entitled for Rs.30,000/- under the head of loss of estate and transportation of dead body and funeral expenses.
18. Thus, the claimants would be entitled for modified compensation on the following heads: Sl. Particulars Amount No.1. Loss of dependency Rs.43,20,000/- 2. Transportation of dead body Rs.15,000/- and funeral expenses 3. Loss of Estate Rs.15,000/- 4. Loss of consortium Rs.1,60,000/- Total Rs.45,10,000/- Compensation awarded by the Rs.32,00,000 /- Tribunal Enhanced compensation Rs.13,10,000 /- 2 (2018) SCC130 21 19. Thus, the appellant-claimant would be entitled to total compensation of Rs.45,10,000/- as against Rs.32,00,000/- awarded by the Tribunal.
20. For the aforesaid reasons, we pass the following: ORDER
(i) MFA No.103500/2019 filed by the insurance company is dismissed. (ii) MFA No.103558/2019 is allowed in part. (iii) The impugned judgment and award dated 17.06.2019 passed by the Addl. MACT and Senior Civil Judge, Khanapur in MVC No.826/2016 is modified. The appellant/ claimants in M.F.A. No.103558/2019 are entitled for total compensation of Rs.45,10,000/- along with interest at 6% p.a. from the date of petition till realisation. (iv) The insurance company is directed to deposit the enhanced compensation 22 amount before the Tribunal within a period of six weeks from the date of receipt of certified copy of this judgment. (v) Apportionment, deposit and disbursement of the enhanced compensation shall be made as per the award of the Tribunal. (vi) The amount in deposit in MFA No.103500/2019, shall be transmitted to the Tribunal along with original records. (vii) Draw modified award accordingly. Sd/- JUDGE Sd/- JUDGE Naa/BSR