Allowed

Kumar Rakshak S/O. Rajendra v. Shashidhar Hanumanth Zendennavar

Karnataka HC3 Mar 2020MFA/100849/2014

Case brief

AI extract

What is this about?

Co-appellants challenged the dismissal of a motor vehicle accident compensation claim alleging rash driving by the respondents. The High Court held that the Insurance Company was estopped from denying the accident after admitting it, found the sole income certificate forgible, fixed notional income, and awarded approximately Rs. 9.8 lakh to heirs, directing the release schedule.

What did the court decide?

Insurance Company directed to deposit Rs. 9,80,350 plus interest to heirs; compensation distributed as 10% each to parents, 50% to wife (30% fixed), and 30% to minor children (15% each fixed).

Kumar Rakshak S/O. Rajendra Vs Shashidhar Hanumanth… — Motor Accident Claims | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 03^RD DAY OF MARCH, 2020

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PRESENT

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THE HON’BLE MR.JUSTICE B.A.PATIL AND THE HON’BLE MR. JUSTICE M.I. ARUN

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M.F.A.NO.100849/2014 (MV)

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BETWEEN:

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KUMAR RAKSHAK S/O RAJENDRA @ RAJU KAMBLE, AGED ABOUT 9 YEARS, OCC: NIL, R/O ATHANI, TALUK: ATHANI.

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KUMARI MANUSHA @ MADHUMATI, D/O RAJENDRA @ RAJU KAMBLE, AGED ABOUT 6 YEARS, OCC: NIL, R/O ATHANI, TALUK: ATHANI.

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SMT.GEETA

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W/O RAJENDRA @ RAJU KAMBLE, AGED ABOUT 28 YEARS, OCC: HOUSEHOLD WORK, R/O ATHANI, TALUK: ATHANI.

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SRI BAHUSAHEB

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S/O AVANAPA KAMBLE, AGED ABOUT 65 YEARS, OCC: PENSIONER, R/O ATHANI, TALUK: ATHANI.

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SMT.CHITRABAI

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W/O BAHUSAHEB KAMBLE, AGED ABOUT 23 YEARS,

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OCC: HOUSEHOLD WORK, R/O ATHANI, TALUK: ATHANI.

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(APPELLANT NOS.1 AND 2 ARE MINORS REPRESENTED BY THEIR NATURAL GUARDIAN MOTHER SMT.GEETA KAMBLE I.E., APPELLANT NO.3.)

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... APPELLANTS

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(BY SMT.ARCHANA A.MAGADUM, ADVOCATE)

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AND:

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SRI SHASHIDHAR

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HANUMANTH ZENDENNAVAR, AGE 41 YEARS, OCC: AGRICULTURE, R/O BEVANUR, TAL: ATHANI, DIST: BELAGAVI.

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UNITED INDIA INSURANCE COMPANY LTD., REPT. BY DIVISIONAL MANAGER, KATAGI BUILDING, KACHERI ROAD, P.B.NO.8, JAMKHANDI, DIST: BAGALKOT.

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... RESPONDENTS

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(NOTICE TO RESPONDENT NO.1 IS SERVED) (BY SMT.ARUNA DESHPANDE ADVOCATE FOR R.2)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST THE JUDGMENT AND JUDGMENT AND AWARD DATED 26.07.2012 PASSED IN MVC.NO.2197/2008 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND ADDITIONAL M.A.C.T.ATHANI, AT ATHANI SEEKING TO COMPENSATION.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, M.I. ARUN DELIVERED THE FOLLOWING:

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JUDGMENT

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Aggrieved by the judgment and award dated

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26.07.2012 passed in MVC.No.2197/2008 by the Principal Senior Civil Judge and Additional M.A.C.T Athani at Athani (“Tribunal” for short), the petitioners therein have preferred this

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appeal.

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The petitioners have contended that on 06.03.2008 at about 1.00 a.m., one Rajendra @

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Raju Kamble was returning to Athani on his motorcycle bearing registration No.KA.23/Q-2586 from Savalagi village and when he was near Yallammawadi village on Athani-Savalagi road, a Jeep bearing registration No.KA.23/9736 belonging to respondent No.1 and insured with respondent No.2 came in high speed in a rash and negligent manner, so as to endanger human

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life i.e., from opposite side and dashed to the motorcycle. As a result of which, the said Rajendra @ Raju Kamble suffered fatal injuries and on the way to the hospital he expired.

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Appellant Nos.1 and 2 are the children,

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appellant No.3 is the wife and appellant Nos.4 and 5 are the parents of the deceased. They have filed claim petition before the Tribunal seeking compensation contending that the deceased was earning Rs.12,000/- per month and he was sole the bread earner of their family.

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Respondent No.1 has not filed his objections before the Tribunal. Respondent No.2Insurance Company has filed its objection and has contended that, the driver of the Jeep did not have a valid driving licnce and driver of the Jeep was driving the same in a moderate speed

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by observing all the traffic rules. In fact the deceased was riding the motor cycle in a rash and negligent manner and in a great speed, as a result of which the accident happened.

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The Trial Court after recording of the evidence came to the conclusion that the accident as alleged by the petitioners therein itself did not take place. Accordingly, the Tribunal has dismissed the petition. Aggrieved by the said order, the petitioners therein have preferred this appeal.

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It is noticed that respondent No.2/Insurance Company in its statement of objections filed before the Tribunal has admitted the accident between the Jeep and the motorcycle driven by the deceased. The contention has been only that, the accident

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happened due to negligence of the rider of the motorcycle and not that of the driver of the Jeep. They also admit that the Jeep was insured with respondent No.2-Insurance Company. However, they contend that the driver of the Jeep was not holding a valid driving licence.

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Once such an admission has been made by respondent No.2, the Trial Court ought not to have gone into, whether the accident took place between the Jeep and the motorcycle, in which the deceased Rajendra @ Raju Kamble lost his life.

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The trial Court has relied on certain circumstantial evidence to hold that there is no accident at all. When there is a clear admission of the insurance company that, the accident indeed took place, the question of holding that

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the accident did not take place by the Tribunal is not correct.

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Once the parties herein have admitted

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the accident, the question that remains is what is the quantum of compensation that appellants herein are entitle to.

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The appellants before the Tribunal have produced the salary certificate at Ex.P.10 alleged to have been belonging to the deceased. The said salary certificate is in the form of the letter on a letter head of one company under the name and style of Adecco Flexione Workforce Solutions Ltd. It is not a salary certificate at all. It is signed by one Authorized Signatory, whose designation is not mentioned. It merely states that he was drawing a salary of Rs.11,082/- per month. It does not inspire any confidence of this Court.

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Hence, in our opinion, it cannot be relied upon at

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all to determine the income of the deceased.

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The accident took place in the year

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Hence, we take the notional income of the deceased at the rate of Rs.4,250/- per month.

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In respect of the driver of the Jeep was not having a valid driving licence, the insurance company though filed its objection, did not lead any evidence. So, an inference has to be drawn against respondent No.2 and we cannot accept their contention that they are not liable on the ground that the driver of the Jeep did not have any valid driving licence. So on that ground, we will have to hold the insurance company is liable to pay necessary compensation as determined.

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As already stated above, the age of the deceased was 30 years and the accident took

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place in the year 2008, the notional income of the deceased at Rs.4,250/- per month has to be taken. Since the deceased was earning and having a permanent income and he was aged about 30 years as on the date of accident, 40% future prospects i.e., Rs.1,700/- is also to be added as per the decision of the Apex Court reported in AIR 2017 Supreme Court 5157 in the case of National insurance Company Limited Vs. Pranay Sehti and others . If it is added, it comes to Rs.5,950/and after deducting 1/4^th from the same towards the personal expenses of the deceased, as there are as many as five dependents, the monthly income of the deceased will come to Rs.4,462.50 and the same is multiplied by 12 and applicable multiplier “17”, then the claimants are entitled to compensation in a sum of Rs.9,10,350/-

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(Rs.4,462.50 X 12 x 17 = Rs.9,10,350/-) towards loss of dependency.

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In view of the decision of the Hon’ble Supreme Court in the case of Pranay Sethi’s, (supra) an amount of Rs.70,000/- is awarded under the conventional heads. In all, the claimants would be entitled to Rs.9,80,350/- with interest at the rate of 6% per annum from the date of petition till the date of deposit. Never the less, the period of delay of 485 days in filing this appeal shall be excluded for calculation of the interest.

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Taking into consideration the

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relationship of appellants with the deceased, the respondent Nos.4 and 5 being the parents of the deceased are granted 10% each of the compensation awarded in this appeal and the

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same is ordered to be released in favour of them on proper identification.

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Respondent No.3 being the wife of the deceased is granted 50% out of the compensation awarded in this appeal. Out of the said amount, 30% is ordered to be deposited in any nationalized bank of her choice for a period of three years and the remaining amount is ordered to be disbursed to her on proper identification and acknowledgement.

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The remaining amount i.e., 30% has to be equally distributed to appellant Nos.1 and 2 (15% each) who are the children of the deceased. The amount awarded in favour of respondent Nos.1 and 2 shall be invested in fixed deposit in any nationalized bank of the choice of appellant No.3, till they attain the age of

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majority. Appellant No.3 is permitted to withdraw

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the periodical interest accrued thereon.

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