IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE7H 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.101009 OF2018C/W MISCELLANEOUS FIRST APPEAL No.100336 OF2018IN MFA No.101009 OF2018BETWEEN: THE ANDHRA OXYGEN PVT. LTD., OWNER OF LORRY BEARING REGISTRATION No.KA-29/9168, P.H.SHIRPUR, H.No.133, HALLUR CHAWL, VASAVI THEATER ROAD, BAGALKOT, DIST. BAGALKOT, BY ITS DEPUTY MANAGER. ...APPELLANT (BY SRI. HEBBALLI, ADV.) AND:
1. SMT. KARUNA KOM AMOL NAIK, AGE:
32. YEARS, OCC: GOVENMENT SERVANT, R/O: TELANG ROAD, NANDANAGADDA, TAL: KARWAR.
2. KUMARI ADITI AMOL NAIK, AGE:
11. YEARS, OCC: STUDENT, 3. KUMARI. AKSHRA AMOL NAIK, AGE:
6. YEARS, OCC: STUDENT, 2 RESPONDENT NOS. 2 AND3ARE MINORS ARE REPRESENTED BY THEIR GUARDIAN, NATURAL MOTHER RESPONDENT NO.1.
4. GOUSE MOHIDDIN MEHABBOBLAL, AGE:
43. YEARS, OCC: DRIVER OF LORRY BEARING REGISTRATION No.KA299168, C/O: ANDHRA OXYGEN PVT. LTD., P.H. SHIRPUR, H.No.133, HALLUR CHAWL, VASAVI THEATER ROAD, BAGALKOT, DIST. BAGALKOT, PIN58710. 4(A) SMT. HASEENA BHANU W/O. GOUSE MOHIDDIN MOMIN, AGE:
42. YEARS, OCC: HOUSEHOLD AND BUSINESS, R/O: NEAR BULAL MASJID, DURGA VIHAR, STATION ROAD, BAGALKOT58710. 4(B) APSARA GOUSE MOHIDDIN MOMIN, AGE:
19. YEARS, OCC: HOUSEHOLD, R/O: NEAR BULAL MASJID, DURGA VIHAR, STATION ROAD, BAGALKOT58710. 4(C) SIMRIN GOUSE MOHIDDIN MOMIN, AGE:
18. YEARS, OCC: STUDENT, R/O: NEAR BULAL MASJID, DURGA VIHAR, STATION ROAD, BAGALKOT58710. 4(D) YUSUF ALI GOUSE MOHIDDIN MOMIN, AGE:
17. YEARS, OCC: STUDENT MINOR, R/P: NEAR BILAL MASJID, DURGA VIHAR STATION ROAD, BAGALKOT58710. 4(E) SHAFIQ AHMED GOUSE MOHIDDIN MOMIN, AGE:
16. YEARS, OCC: STUDENT MINOR, R/O: NEAR BULAL MASJID, DURGA VIHAR, STATION ROAD, BAGALKOT58710. R4(D) AND (E) REPRESENTED BY THE RESPONDENT No.4(A) (MOTHER). ....RESPONDENTS (BY SRI. GIRISH A. YADWAD ADV. FOR RESPONDENT NO.1; R4 DECEASED; R4(A), R4 (B), R4(C) AND R6 AE SERVED; SRI. S.K. KAYAKMATH ADV. FOR R5) 3 THIS MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION1731) OF MOTOR VEHICLE ACT1988 PRAYING TO SET ASIDE THE JUDGMENT
AND AWARD PASSED BY THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT ANKOLA IN MVC No.53/2013 DATED2809.2017, FASTENING THE LIABILITY OF PAYING THE COMPENSATION ON THE APPELLANT AND PLACE THE SAME ON THE INSURANCE COMPANY/RESPONDENT NO.5 AND DISMISS THE CLAIM PETITION IN THE INTEREST OF JUSTICE. IN MFA No.100336 OF2018BETWEEN:
1. SMT. KARUNA KOM AMOL NAIK, AGE:
31. YEARS, OCC: GOVENMENT SERVANT, R/O: TELANG ROAD, NANDANAGADDA, TAL: KARWAR, DIST: UTTTAR KANNADA58130.
2. KUMARI ADITI AMOL NAIK, AGE:
10. YEARS, OCC: STUDENT, R/O: TELANG ROAD, NANDANAGADDA, TAL: KARWAR, DIST: UTTTAR KANNADA58130.
3. KUMARI. AKSHRA AMOL NAIK, AGE:
5. YEARS, OCC: STUDENT, R/O: TELANG ROAD, NANDANAGADDA, TAL: KARWAR, DIST: UTTTAR KANNADA58130. APPEALLANTS NOS. 2 AND3ARE MINORS ARE REPRESENTED BY THEIR GUARDIAN, NATURAL MOTHER APPELLANT NO.1. (BY SRI GIRISH A. YADWAD ADV.) …APPELLANTS AND:
1. GOUSE MOHIDDIN MEHABBOBLAL, SINCE DECEASED BY HIS LRS, 4 R1(A). SMT. HASEENA BHANU W/O. GOUSE MOHIDDIN MOMIN, AGE:
42. YEARS, OCC: HOUSEHOLD AND BUSINESS, R/O: NEAR BULAL MASJID, DURGA VIHAR, STATION ROAD, BAGALKOT58710. R1(B). APSARA GOUSE MOHIDDIN MOMIN, AGE:
19. YEARS, OCC: HOUSEHOLD, R/O: NEAR BULAL MASJID, DURGA VIHAR, STATION ROAD, BAGALKOT58710. R1(C). SIMRIN GOUSE MOHIDDIN MOMIN, AGE:
18. YEARS, OCC: STUDENT, R/O: NEAR BULAL MASJID, DURGA VIHAR, STATION ROAD, BAGALKOT58710. R1(D). YUSUF ALI GOUSE MOHIDDIN MOMIN, AGE:
17. YEARS, OCC: STUDENT MINOR, R/P: NEAR BILAL MASJID, DURGA VIHAR STATION ROAD, BAGALKOT58710. R1(E). SHAFIQ AHMED GOUSE MOHIDDIN MOMIN, AGE:
16. YEARS, OCC: STUDENT MINOR, R/O: NEAR BULAL MASJID, DURGA VIHAR, STATION ROAD, BAGALKOT58710. R2. THE ANDHRA OXYGEN PVT. LTD., OWNER OF LORRY BEARING REGISTRATION No.KA-29/9168, P.H.SHIRPUR, H.No.133, HALLUR CHAWL, VASAVI THEATER ROAD, BAGALKOT, DIST. BAGALKOT-587101, REPRESENTED BY IT DY. MANAGER SHRI. KODANDAPANI. R3. UNITED INDIA INSURANCE COMPANY LTD., DIVISIONAL OFFICER, RADHA GOVIND COMPLEX, 1ST FLOOR, KAIKINI ROAD, KARWAR58130, DIST UTTARA KANNADA, REPRESENTED BY ITS DIVISIONAL MANAGER, (POLICY CERTIFICATE No.240101/31/09/01/00007953) R4. SMT. ANURADHA W/O. GURUATH ALIAS TARANATH NAIK, AGE:
48. YEARS, OCC: HOUSEWIFE, R/O: KANASGIRI, SADASHIVGAD, TQ: KARWAR, DIST: UTTAR KANNADA58135. 5 (BY SRI. HEBBALLI, ADVOCATE FOR R2; R1 AND R4 ARE SERVED; SR. S.K. KAYAKMATH ADVOCATE FOR R3) ....RESPONDENTS THIS MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION1731) OF MOTOR VEHICLE ACT1988 PRAYING TO SET ASIDE THE JUDGMENT
AND AWARD PASSED BY THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT ANKOLA IN MVC No.53/2013 DATED2809.2017, AND AWARD ENHANCED COMPENSATION AS SOUGHT BY THE APPELLANTS BY FASTENING THE LIABILITY ON THE3D RESPONDENT/INSURER, IN THE INTEREST OF JUSTICE. THESE APPEALS, HAVING BEEN HEARD AND RESERVED FOR JUDGMENT
ON0407.2023, COMING ON FOR 'PRONOUNCEMENT OF JUDGMENT
', THIS DAY, VIJAYKUMAR A. PATIL, J., PRONOUNCED THE FOLLOWING: JUDGMENT
M.F.A.No.101009/2018 is filed by the owner of lorry bearing No.KA-29/9168 challenging the liability as well as the quantum of compensation. M.F.A.No.100336/2018 is filed by the legal representatives of the deceased Amol Naik seeking for enhancement of compensation. These appeals are arising out of the impugned judgment and award dated 28.09.2017 passed by the Senior Civil Judge and Addl. MACT, Ankola in M.V.C.No.53/2013. 6
2. Brief facts giving raise to the filing of these appeals are that on 14.12.2010 the husband of the first claimant was going to Ankola from Karwar in his motorcycle bearing No.KA-30/J-7568, near Chandiya at about 1.30 p.m., the driver of the lorry bearing No.KA-29/9168 came in a rash and negligent manner and dashed to the motorcycle from hind side. Due to the said impact, rider of the motorcycle sustained grievous injuries and succumbed to the same. It is averred that respondent No.1 was the driver of the lorry at the time of accident and one Mahesh Siddayya Igalimath was the cleaner of the said lorry. However, due to oversight, Karwar P.S. filed charge sheet against the cleaner of the lorry viz., Mahesh Siddayya Igalimath. It is further averred that the said accident was caused due to the rash and negligent driving of lorry by respondent No.1. Hence, the legal representatives of the deceased Amol Naik filed a 7 claim petition under Section 166 of Motor Vehicle Act, 1988 claiming compensation. It is averred that the deceased was working in Excise Department as F.D.A. and getting salary of Rs.15,096/- p.m. and if the deceased was alive, he had a chance to become C.P.I. Hence, sought for compensation.
3. Respondent No.1 appeared and filed objections denying that the accident was caused due to his rash and negligent driving of lorry bearing No.KA-29/9168. It is contended that the deceased was responsible for the accident and prayed to dismiss the claim petition.
4. Respondent No.2 appeared and filed objection contending that the lorry was driven by one Sri Mahesh Siddayya Igalimath and he was not possessing valid licence at the time of accident. It is further contended that the police conducted 8 investigation and filed charge sheet against the said Mahesh Siddayya Igalimath for the offence punishable under Sections 279 and 304(a) of IPC and prayed to dismiss the claim petition.
5. Respondent No.3 appeared and filed written statement contending that the police have shown in the charge sheet that Mahesh Igalimath was driving the insured vehicle who was not possessing valid licence at the time of accident. Hence, it is contended that the owner of the lorry has breached the policy conditions, thus, the respondent No.3 is not liable to pay the compensation. Further, the insurance company denied the age, occupation and income of the deceased and sought for dismissal of the claim petition.
6. The Tribunal has framed the issues and recorded the evidence of the parties. The wife of the 9 deceased got examined herself as PW-1 and examined one witness as PW-2 and got marked Exs.P-1 to P-12. The respondents examined two witnesses as RW-1 and RW-2 and got marked documents at Exs.R-1 to R- 16. The Tribunal on appreciation of material on record has awarded total compensation of Rs.19,80,000/- with interest at 6% p.a. from the date of petition till realisation holding the owner of lorry bearing No.KA- 29/9168 liable to pay the entire compensation. The Tribunal awarded the compensation on the following heads:
1. Loss of dependency Rs.18,85,000/- 2. Funeral expenses Rs.15,000/- 3. Loss of estate Rs.10,000/- 4. Loss of love & affection Rs.50,000/- 5. Loss of consortium Rs.10,000/- 6. For transportation and Convenience Rs.10,000/- Total Rs.19,80,000/- 10 7. Learned counsel Sri S.B. Hebballi for owner of the lorry submits that the Tribunal has committed an error in appreciating the evidence on record and incorrectly came to the conclusion that Mahesh Siddayya Igalimath was the driver of the offending vehicle and not the respondent No.1 and fastened the liability on the appellant-owner of the offending vehicle. It is submitted that the Tribunal has failed to appreciate that the police records are not conclusive proof of evidence to come to the conclusion that the respondent was not driving the offending vehicle. The Tribunal has failed to appreciate the fact that the claimants before the Tribunal have categorically stated that it was the respondent No.1 was driving the offending vehicle and the oral testimony of the claimants has been discarded by the Tribunal without any reason. It is further submitted that the Tribunal has committed an error in relying only on charge 11 sheet and come to the conclusion that one Sri Mahesh Siddayya Igalimath was driving the vehicle who was not possessing driving licence and hence, the owner is liable to pay the compensation. It is also submitted that it is clearly evident that it is the respondent No.1 who was driving the offending vehicle and the Tribunal ought to have fastened the liability on respondent No.5/insurance company of the offending vehicle as the appellant-owner of the offending vehicle was having valid permit registration certificate and respondent No.1 was possessing valid driving licence at the time of accident and sought to allow the appeal filed by the owner of the offending vehicle.
8. Per contra, learned counsel Sri Girish A. Yadwad for appellant-claimants submits that it is the respondent No.1 viz., Sri Gouse Mohiddin Mehabooblal, who was driving the offending vehicle at the time of accident. It is submitted that the Tribunal 12 has incorrectly come to the conclusion that Mahesh Siddayya Igalimath was cleaner and was driving the lorry who did not possess the valid driving licence and not by the respondent No.1 and fastened the liability on the owner of the vehicle. It is submitted that the Tribunal has committed an error in assessing the income of the deceased at Rs.8,721/- p.m. as the appellant was working as F.D.A. in Excise department and drawing salary of Rs.14,717/- as per salary certificate. It is submitted that the deceased was aged about 32 years and the appellants being the legal heirs of the deceased are entitled for loss of consortium of Rs.40,000/- each. It is also submitted that the Tribunal has awarded a meagre compensation on other heads and sought for allowing his appeal by enhancing the compensation.
9. Learned counsel Sri S.K. Kayakmath for insurance company submits that the Tribunal on 13 appreciation of evidence on record has come to the conclusion that Sri Mahesh Siddayya Igalimath was driving of the offending vehicle who did not possess the valid licence, hence, fastened the liability on the owner of the vehicle. It is submitted that the Tribunal has recorded its finding based on the FIR, charge sheet and investigation papers which clearly establish that the offending vehicle was driven by Mahesh Siddayya Igalimath and not by respondent No.1. The evidence of PW-2 is not clear to come to the conclusion that the offending vehicle was driven by respondent No.1 and he has failed to identify the driver of the offending vehicle. Hence, the jurisdictional police have rightly filed charge sheet against Mahesh Siddayya Igalimath and the Tribunal has proceeded to fasten the liability on the owner of the vehicle which does not call for any interference in these appeals and sought to dismiss the appeals. 14
10. We have heard the learned counsels for the appellant-owner of the lorry, appellant-claimants and insurance company, perused the memorandum of appeals and Tribunal records. The points that arise for consideration in these appeals are:
1. Whether the Tribunal is justified in fastening the entire liability on the appellant-owner of the lorry?.
2) Whether the compensation awarded by the Tribunal is just and proper?.
11. The answers to the above points are in negative for the following reasons: (i) There is no dispute with regard to the accident and death of Sri Amol Taranath Naik in the road accident that took place on 14.12.2010 between vehicle bearing No.KA-30/J-7586 and a truck bearing No.KA-29/9168 on Karwar-Ankola road. The Tribunal has framed the issues and recorded the finding that 15 one Sri Mahesh Siddayya Igalimath was driving the offending vehicle bearing No.KA-29/9168 and not by the respondent No.4 and proceeded to fasten the liability to pay compensation on the owner of the vehicle on the ground that the said Sri Mahesh Siddayya Igalimath was not having a valid licence at the time of accident. The owner of the vehicle who is in appeal has specifically contended that the Tribunal has committed an error in placing its reliance on the investigation material and coming to the conclusion that Sri Mahesh Siddayya Igalimath was driving the vehicle is incorrect and contrary to evidence on record. There is no dispute that the jurisdictional police after completion of investigation filed charge sheet against Sri Mahesh Siddayya Igalimath, cleaner of the vehicle bearing No.KA-29/9168. The respondent No.3 insurance company has examined RW-2 Sri Anthony John the investigation officer who 16 has supported the charge sheet. The Tribunal has come to the conclusion that the jurisdictional police filed charge sheet against Sri Mahesh Siddayya Igalimath, hence the owner of the offending vehicle is liable to pay the compensation as the said person has no valid driving licence. On careful scrutiny of the evidence of PW-1 Sri Karuna W/o. Amol Naik the claimant No.1 has categorically stated in her evidence that the respondent No.1 i.e., Gouse Mohiddin Mehabooblal was the driver of the offending vehicle at the time of accident. The respondent insurance company had cross examined PW-1 at length however, PW-1 was consistent in her stand and she has specifically denied the suggestion that Sri Mahesh Siddayya Igalimath was driving the offending vehicle at the time of accident. PW-2 Sri Ashok Nagendra Telkar is the complainant who registered the FIR has stated that the accident in question has taken place 17 on 14.12.2010 and he was an eyewitness to the said accident. Further the said accident occurred due to the rash and negligent driving of the lorry bearing No.KA-29/9168 and it was specifically stated that the respondent No.1 was driving the lorry at the time of accident and one more person by name Sri Mahesh Siddayya Igalimath was cleaner in the said lorry at the time of accident and after 2-3 days the police have shown respondent No.1 and Sri Mahesh Siddayya Igalimath and he has identified the respondent No.1 as driver and Sri Mahesh Siddayya Igalimath as a cleaner of the said lorry. The respondent/insurance company had cross-examined the said eyewitness at length wherein he has categorically stated that two persons were sitting in the police station and the police have asked him to identify the driver of the offending vehicle. The suggestion of the insurance company put to PW-2 that he has not seen the driver 18 of the vehicle and he has not identified the driver in the police station and only a photograph was shown to him, has been denied. PW-2 who is the eyewitness, registered the FIR, lodged the complaint and was also cited as CW-8 in criminal proceedings is consistent in his stand that respondent No.1 Gouse Mohiddin Mehabooblal was driving the offending vehicle at the time of accident. It is not in dispute that the learned Magistrate in Crl.Case No.245/2011 has acquitted the accused Nos.1 to 3 from the charges levelled against them. The oral testimony of PW-1 and PW-2 and the acquittal order of the learned Magistrate makes it very clear that the respondent No.1 was driving the offending vehicle and not Sri Mahesh Siddayya Igalimath. The insurance company adduced evidence of two witnesses in support of its case wherein they have stated that one Sri Mahesh Siddayya Igalimath was driving the offending vehicle and he did not 19 possess valid driving licence. On close scrutiny of cross-examination of RW-2 Anthony John, the investigation officer who investigated the subject crime, he has admitted that after issuing notice from the owner he came to know that one Gouse Mohiddin Mehabooblal was Driver of the offending vehicle and Sri Mahesh Siddayya Igalimath was Cleaner. He further admits that the complainant Sri Ashok Nagendra Telakar and another eyewitness Vinayak Beera Naik have deposed before the Criminal Court that Gouse Mohiddin Mehabooblal was the driver of the offending vehicle. On meticulous appreciation of entire evidence on record, it is evident that the respondent No.1 Gouse Mohiddin Mehabooblal was driver of the offending vehicle and the Tribunal has committed an error in properly appreciating the material on record and in believing the investigation material. The Tribunal has incorrectly come to the 20 conclusion that Sri Mahesh Siddayya Igalimath was driver of the offending vehicle solely on the basis of charge sheet without appreciating the oral testimony of PW-1 and PW-2 and cross-examination of RW-2, the very investigation officer who has investigated and filed charge sheet in the said crime has admitted that respondent No.1 was driving the vehicle. In our considered view the Tribunal has committed a grave error in arriving at a conclusion that Sri Mahesh Siddayya Igalimath was driver of the offending vehicle and proceeded to fasten the liability on the appellant owner. The evidence on record clearly establishes that the respondent No.1 Gouse Mohiddin Mehabooblal was the driver of the offending vehicle bearing No.KA- 29/9168 and he was having valid and effective licence at the time of accident. Hence, the respondent No.5 insurance company is liable to indemnify the appellant 21 owner by paying compensation to the appellant- claimants. (ii) Insofar as quantum of compensation is concerned, the appellant-claimants have contended that the Tribunal has committed an error in assessing the income of the deceased at Rs.8,721/- p.m. We have perused the salary certificate at Ex.P-12 and it is evident that the deceased Amol was working as temporary employee and working as First Division Assistant in State Excise Department and drawing salary of Rs.14,746/- p.m. The Tribunal has committed error in assessing the income of the deceased at Rs.8,721/- p.m. by deducting other components from the gross salary of the deceased. The permissible deduction would be only Rs.200/- towards professions tax and if professional tax is deducted from gross salary, the salary of the deceased would be at Rs.14,546/- p.m. The Tribunal 22 has committed an error in adding 50% to the assessed income of the deceased towards future prospects. The Hon'ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others1 held that if the victim was aged less than 40 years and he was not on the permanent employment, is entitled for 40% addition to the assessed income towards loss future prospects. It would be appropriate to modify the award of the Tribunal to the said extent. The appellants being the wife, children and respondent No.4 being the mother of the deceased Amol Naik are entitled for compensation of Rs.40,000/- each towards loss of consortium as held by the Hon'ble Supreme Court in the case of Magma General Insurance Company Limited Vs Nanu Ram2. Therefore, the appellant- 1 (2017) 16 SCC6802 (2018) SCC13023 claimants would be entitled for the following compensation towards loss of dependency: Rs.14,546+50% = 21,819/- Rs.21,819 - 5,455 = 16,364/- (1/4th of Rs.21,819/-) Rs.16,364 x 12x 16 = 31,41,888/- 12. The appellant-claimants are entitled for compensation of Rs.30,000/- towards transportation of dead body, funeral expenses and loss of estate.
13. Thus, the appellant-claimants would be entitled for modified compensation on the following heads: Sl. Particulars Amount No.1. Loss of dependency Rs.31,41,888/- 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.33,31,888/- Compensation awarded by the Rs.19,80,000 /- Tribunal Enhanced compensation Rs.13,51,888/- 24 14. Thus, the appellant-claimant would be entitled to total compensation of Rs.33,31,888/- as against Rs.19,80,000/- awarded by the Tribunal.
15. For the aforesaid reasons, we pass the following: ORDER
(i) M.F.A.No.101009/2018 filed by the owner of lorry bearing No.KA-29/9168 is allowed. (ii) M.F.A.No.100336/2018 filed by the claimants is allowed in part. (iii) The impugned judgment and award dated 28.09.2017 passed by the Senior Civil Judge and Addl. MACT, Ankola in M.V.C.No.53/2013 is modified and appellant-claimants are entitled to total compensation of Rs.33,31,888/- with interest at the rate of 6% per annum from the date of claim petition till date of realization. 25 (iv) Respondent/insurance company shall deposit the entire compensation with accrued interest before the Tribunal within a period of six weeks from the date of receipt of a certified copy of this judgment. (v) The amount in deposit in M.F.A. No.101009/2018 be refunded to the appellant-owner of the lorry. (vi) The apportionment, deposit and disbursement shall be made as per the award of the Tribunal. (vii) Draw modified award accordingly. Sd/- JUDGE Sd/- JUDGE NAA