Partly allowed

Kadappa S/O Siddappa Jagadal v. Naganath Hanumantha Shivasharan

Karnataka HC11 Nov 2019MFA/24053/2013

Case brief

AI extract

What is this about?

In these motor accident claims appeals, the High Court upheld the liability of the truck owner and insurance company. While dismissing the insurer's appeal regarding negligence, the High Court allowed the claimants' appeal in part, enhancing compensation by reassessing the deceased's notional income and future prospects according to established guidelines.

What did the court decide?

Compensation enhanced to Rs.12,92,400; additionally awarded Rs.5,35,900 with 6% interest from petition date; insurer's appeal dismissed.

Kadappa S/O Siddappa Jagadal Vs Naganath Hanumantha… — Motor Accident Claims | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 11^TH DAY OF NOVEMBER, 2019

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PRESENT

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THE HON’BLE MR.JUSTICE ALOK ARADHE

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AND

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THE HON’BLE MR.JUSTICE P.G.M. PATIL

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M.F.A.NO.24053 OF 2013 (MV-D) C/W. M.F.A.NO.24343 OF 2013

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IN MFA.NO.24053 OF 2013 BETWEEN:

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SHRI KADAPPA S/O SIDDAPPA JAGADAL, AGE: 46 YEARS, OCC: AGRICULTURE,

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SMT. BHARATI KADAPPA JAGADAL, AGE:42 YEARS, OCC:HOUSEHOLD WORK,

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SHRI SHIVAPRASAD KADAPPA JAGADAL, AGE: 22 YEARS, OCC:STUDENT,

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SMT POOJA @ MAHADEDVI PRASHANT JAGADAL, AGE: 21 YEARS, OCC: HOUSEHOLD,

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ALL ARE RESIDING AT R/O. AIGALI, TQ: ATHANI, DIST : BELGAUM.

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... APPELLANTS (BY SRI SANJAY S. KATAGERI, ADVOCATE)

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MFA.No.24053/13 C/W.MFA.NO.24343/13

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AND :

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SHRI NAGANATH HANUMANTHA SHIVASHARAN, AGE: MAJOR, OCC:BUSINESS, R/O : A/P NANDANI, TAL : S. SOLAPUR, (OWNER OF TRUCK BEARING NO.KA-02/C-3068)

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THE MANAGER, SHRIRAM GENERAL INSURANCE CO. LTD, HAVING ITS OFFICE AT E-8, EPIP, RIICO, INDUSTRIAL AREA, SITAPUR, JAIPUR, RAJASTHAN STATE.

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... RESPONDENTS

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(BY SRI.NAGARAJ C.KOLLOORI, ADVOCATE FOR R-2) (NOTICE TO RESPONDENT NO-1 DISPENSED WITH)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AND PRAYED THAT THE JUDGMENT AND AWARD DATED 30.03.2013 IN MVC.NO.1893 OF 2011 PASSED BY THE LEARNED PRESIDING OFFICER, FAST TRACK COURT, ATHANI, WHEREIN THE CLAIM IS PARTLY ALLOWED, BY AWARDING COMPENSATION OF RS.7,56,500/- WITH INTEREST AT 6% P.A. BE KINDLY MODIFIED BY ENHANCING OF RS.30,00,000/- WITH INTEREST @ 18% PER ANNUM FROM THE DATE OF PETITION, TILL THE DATE OF PAYMENT, BY HOLDING RESPONDENTS NO.1 AND 2 HEREIN JOINTLY AND SEVERALLY LIABLE TO PAY THE COMPENSATION, IN THE INTEREST OF JUSTICE AND EQUITY.

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IN MFA.NO.24343 OF 2013 BETWEEN :

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SHRIRAM GENERAL INSURANCE CO., LTD., E-8, EPIP, RIICO, SITAPUR,

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MFA.No.24053/13 C/W.MFA.NO.24343/13

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JAIPUR, RAJASTHAN - 302022. REPRESENTED BY ITS AUTHORIZED SIGNATORY.

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... APPELLANT

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(BY SRI NAGARAJ C. KOLLOORI, ADVOCATE)

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AND :

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SRI KADAPPA SIDDAPPA JAGADAL, AGE: 46 YEARS, OCC: AGRICULTURE,

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SMT. BHARATI W/O KADAPPA JAGADAL, AGE: 43 YEARS, OCC: HOUSEHOLD WORK,

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SRI SHIVAPRASAD S/O KADAPPA JAGADAL, AGE: 22 YEARS, OCC: STUDENT,

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POOJA @ MAHADEVI W/O PRASHANT JAGADAL, AGE: 21 YEARS, OCC: HOUSEWIFE,

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ALL ARE R/O.AIGALI VILLAGE, TQ : ATHANI, DIST : BELGAUM.

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SRI NAGANATH HANUMANTH SHIVASHARAN, AGE: MAJOR, OCC: BUSINESS, R/O: AT. POST: NANDANI, TQ & DIST: SOLAPUR, MAHARASHTRA.

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... RESPONDENTS

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(BY SRI SANJAY S. KATAGERI, ADVOCATE FOR R1-R4) (RESPONDENT NO.5 - SERVICE HELD SUFFICIENT)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AND PRAYED TO SET ASIDE THE JUDGMENT AND AWARD DATED 30^TH MARCH 2013 PASSED BY THE COURT OF FAST TRACK, AT – ATHANI IN M.V.C.NO.1893 OF 2011 ON THE FOLLOWING FACTS AND AMONG OTHER GROUNDS AND TO PASS

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MFA.No.24053/13 C/W.MFA.NO.24343/13

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SUCH OTHER ORDER OR ORDERS AS THIS COURT DEEMS FIT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE INCLUDING THE COSTS IN THE INTEREST OF JUSTICE AND EQUITY.

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RESERVED FOR JUDGMENT ON : 22.10.2019.

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JUDGMENT PRONOUNCED ON : 11.11.2019.

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THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, P.G.M.PATIL, J, DELIVERED THE FOLLOWING:

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JUDGMENT

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The claimants and the Insurer-Shriram General Insurance Company Limited being aggrieved by the Judgment and Award dated 30.03.2013 passed in M.V.C.No.1893 of 2011 by the Fast Track Court and Addl. M.A.C.T., Athani (for short ‘the Tribunal’) have filed these appeals.

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It is the case of the claimants before the

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Tribunal that on 02.06.2011 one Naganath and Prashant had gone to the Hospital at Takali on the motorcycle bearing No.MH-13/AB-8852 for taking treatment to Prashant. After taking treatment, they

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MFA.No.24053/13 C/W.MFA.NO.24343/13

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were returning on the said motorcycle towards Takali village Naganath was riding the motorcycle and Prashant was pillion rider, when they were so proceeding at about 02.05 hours near Jhui-Jhai farm

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gate on Takali-Shetatil vasti road Truck bearing registration No.KA-02/C-3068 being driven by its driver in a rash and negligent manner, dashed to the motorcycle, due to impact Prashant sustained fatal injuries and died on the spot. The rider-Naganath also sustained grievous injuries. Thereafter, the riderNaganath filed claim petition in M.V.C.No.1888 of 2011, whereas, the legal representatives of the deceased-Prashant filed claim petition in M.V.C. No.1893 of 2011. Both the claim petitions were heard together and disposed of by common Judgment by the claims Tribunal.

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The claimants have further stated that the deceased-Prashant was aged about 25 years, was

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MFA.No.24053/13 C/W.MFA.NO.24343/13

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working as Attender-cum-Peon at Adarsh Education Society, Aigali and was getting salary of Rs.8,000/per month and he was also getting agricultural income of Rs.2,00,000/- per annum. The claimants being family members of the deceased are put to great hardship and they have lost their bread earning member. The 4^th petitioner has lost the company of her husband at her young age and petitioner Nos.1 and 2 have lost the dependency of their son in their old age and petitioner No.3 brother of deceased has lost his education career.

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After the service of notice, respondent Nos.1 and 2 the owner and insurer of the Truck appeared before the claims Tribunal and filed separate written statements denying all the averments, allegations and claims made in both the claim petitions. They have denied the age, occupation and income of the deceased-Prashant. They have also denied that the accident in question occurred due to rash and

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negligent driving of the driver of the Truck. But the accident occurred due to the negligence on the part of the rider of the motorcycle. Respondent No.2 has further contended that the driver of the Truck had no valid and effective driving licence and the vehicle had no valid permit and fitness certificate. Therefore, he is

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not liable to pay the compensation.

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On the basis of the pleadings of the parties,

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claims Tribunal framed the issues; claimants in both the cases were got examined as P.W.1 and P.W.2 and got marked 14 documents as Ex.P-1 to Ex.P-14. Respondent No.2-Insurer examined his official witness as R.W-1 and has got marked the Copy of Insurance Policy as Ex.R-1. The learned member of the Tribunal, after hearing both the parties passed the impugned Judgment awarding compensation of Rs.7,56,500/- in M.V.C.No.1893 of 2011 together with interest at the

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MFA.No.24053/13 C/W.MFA.NO.24343/13

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rate of 6% per annum from the date of petition till realization.

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The claimants being dissatisfied with the award have filed M.F.A.No.24053 of 2013, whereas the Insurer-Shriram General Insurance Company Limited has filed M.F.A.No.24343 of 2013. Since both the appeals are filed against the Judgment and Award dated 30.03.2013, common facts and law arise in these appeals, they are disposed of by this common Judgment.

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We have heard the learned counsel for the parties.

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The Insurer has challenged the Judgment and Award on the ground that the vehicle had no permit and Tribunal has not considered the said ground and further there is negligence on the part of the rider of the motorcycle. The material on record goes to show that the Tribunal has properly appreciated the

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evidence on record and has recorded finding that the entire negligence is on the driver of the Truck in causing the accident and the 2^nd respondent-Insurer has failed to prove that the vehicle was plied without valid permit or that the driver of the Truck had no valid and effective driving licence. Therefore, we are inclined to agree with the finding recorded by the claims Tribunal sofar as liability fastened against the Insurer and as such the appeal filed by the insurer is liable to be dismissed.

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The learned counsel for the claimants submitted that the claims Tribunal has not awarded 50% of his income towards future prospects and has considered the income of the deceased at Rs.4,500/per month which is on the lower side and that the compensation awarded on other heads such as loss of consortium and loss of love and affection to the parents of the deceased are also on the lower side.

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The claimants contended before the Tribunal that the deceased-Prashant was getting salary of Rs.8,000/- per month and also earning Rs.2,00,000/per annum from agriculture. However, they have not produced any positive evidence to prove the income of the deceased. Therefore, the claims Tribunal has considered the notional income of the deceased at Rs.4,500/- per month. However, in view of the guidelines issued by the Karnataka Legal Services Authority for the settlement of cases before the LokAdalath and as per the chart the notional income of the deceased has to be taken at Rs.6,000/- per month considering the date of accident namely 02.06.2011. The compensation has to be reassessed accordingly. Thus, the income of the deceased considered at Rs.6,000/- per month. The claimants are entitled for addition of 40% of the income of the deceased towards future prospects which comes to Rs.2,400/-. Therefore, the total income of deceased comes to

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Rs.8,400/- per month. 1/3^rd of income of the deceased has to be deducted towards personal and living expenses of the deceased, which comes to Rs.2,800/-. Thereby, the remaining income of the deceased comes to ( Rs.8,400/- - 1/3^rd Rs.2,800/- ) Rs.5,600/- per month. The same has to be multiplied by 12 and 17. Thus, ( Rs.5,600/- X 12 X 17 ) a sum of Rs.11,42,400/is awarded towards loss of dependency.

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As per dictum of the Hon’ble Supreme Court in the case of National Insurance Company Limited v. Pranay Sethi and Others , reported in AIR 2017 SC 5157 , a sum of Rs.70,000/- is awarded under conventional heads.

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As per the dictum of the Hon’ble Supreme Court in Magma General Insurance Co. Limited v. Nanu Ram and Others , reported in 2018 ACJ 2782 , the parents of the deceased are entitled for parental consortium of Rs.40,000/- each, thus Rs.80,000/- is

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MFA.No.24053/13 C/W.MFA.NO.24343/13

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awarded under this head. Thus, the claimants are entitled to compensation in a sum of Rs.12,92,400/as against the Rs.7,56,500/- awarded by the claims Tribunal. Thereby the claimants are entitled for enhanced compensation of Rs.5,35,900/- with interest at the rate of 6% from the date of petition till its realization.

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The award passed by the claims Tribunal needs to be modified, accordingly, we proceed to pass the following :

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ORDER

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Appeal in M.F.A.No.24343 of 2013 is hereby dismissed, appeal in M.F.A.No.24053 of 2013 is allowed in part.

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The appellants/claimants are awarded enhanced compensation of Rs.5,35,900/- in addition to the compensation awarded by the claims Tribunal with

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interest at the rate of 6% per annum from the date of petition till its realization.

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The apportionment, deposit and disbursement of

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the compensation amount shall be in terms of the order of the claims Tribunal.

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The amount in deposit in M.F.A.No.24343 of 2013 shall be transmitted to the concerned Tribunal

forthwith.

SD/JUDGE

SD/JUDGE

Ckk

Kadappa S/O Siddappa Jagadal v. Naganath Hanumantha Shivasharan

Case brief

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Kadappa S/O Siddappa Jagadal v. Naganath Hanumantha Shivasharan

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