Allowed

Biswajit @ Vishwajit S/O Mahendranath, v. Bankim S/O Kali Thakur

Karnataka HC6 Dec 2022MFA/200348/2014

Case brief

AI extract

What is this about?

This Miscellaneous First Appeal addressed claims by an auto owner and accident claimants. The Court dismissed the owner's appeal to set aside the tribunal's award but allowed the claimants' appeal in part. It enhanced the compensation from ₹4,48,000 to ₹9,92,600 based on calculated income, multiplier, and loss of dependency, affirming owner liability.

What did the court decide?

Compensation enhanced to ₹9,92,600 payable by Respondent No.2 within four weeks with 6% annual interest.

Biswajit @ Vishwajit S/O Mahendranath, Vs… — Contract and Commercial Disputes | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH

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DATED THIS THE 6^TH DAY OF DECEMBER, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE PRADEEP SINGH YERUR

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MFA NO.32825 OF 2013 (MV-I) C/W MFA NO.200348 OF 2014

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IN MFA NO.32825 OF 2013

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BETWEEN:

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Shri Anant Bandchude S/o Ramana Mohan De, Age : Major, Occ: Owner of APE Auto No.KA-36/9563, R/o Punarvasathi Camp No.4, Sindhnoor Taluk, Raichur District.

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...Appellant

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(By Sri Mahantesh Patil, Advocate)

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AND:

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Biswajit @ Vishwajit S/o Mahendranath, Age: 40 years, Occ: Unemployee,

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Smt.Chandramuki @ Somalata W/o Biswajit, Age: 37 years, Occ: Household,

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Both are R/o Punarvasathi Camp No.4, Sindhnoor Taluk, Raichur District – 584 101.

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Bankim, S/o Kali Thakur, Occ: Driver of APE Auto No. KA-36/9563, R/o Punarvasathi Camp No.4, Sindhnoor Taluk, Raichur District – 584 101. … Respondents

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(Notice to R-1 and R-3 are served)

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This Miscellaneous First Appeal is filed under Section 173(1) of the Motor Vehicles Act, praying to set aside the Judgment and Award in MVC No.31/2011 dated 27.06.2013, passed by the learned Motor Accident Claims Tribunal at Lingasugur, sitting at Sindhnoor.

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IN MFA NO.200348 OF 2014

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BETWEEN:

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Biswajit @ Vishwajit S/o Mahendranath,

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Age: 41 years, Occ: Unemployee,

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Smt.Chandramuki @ Somalata W/o Biswajit, Age: 37 years, Occ: Household,

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Both are R/o Punarvasathi Camp No.4, Taluk: Sindhnoor – 584 128.

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… Appellants

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(By Sri Basavaraj R Math, Advocate)

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AND:

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Bankim S/o Kali Thakur, Driver of APE Auto No.KA-36/9563, R/o Punarvasathi Camp No.4, Tq: Sindhanur – 584 128.

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Anant Bandchude S/o Ramana Mohan De, Owner of APE Auto No.KA-36/9563, R/o Punarvasathi Camp No.4,

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Tq: Sindhanur – 584 128.

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… Respondents

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(By Sri Mahantesh Patil, Advocate for R-2; Notice to R-1 is dispensed v.o.d 09.11.2018)

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This Miscellaneous First Appeal is filed under Section 173(1) of the MV Act, praying to call for records and modify the impugned judgment and award dated

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27.06.2013 passed by the MACT Lingasugur sitting at Sindhanur in MVC No.31/2011.

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These Appeals are coming on for Dictating Judgment this day, the court delivered the following:

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JUDGMENT

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The MFA No.32825/2013 is filed by the owner of the offending vehicle seeking to set-aside the judgment and award dated 27.06.2013 passed in MVC No.31/2011 by the Motor Accident Claims Tribunal at Lingasugur sitting at Sindhanur and the MFA No.200348/2014 is filed by the claimants seeking for enhancement of compensation against the very same judgment and award.

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Parties to the appeal shall be referred to as per their status before the tribunal.

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3. Brief facts of the case is as under:

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On 28.08.2010 at about 8.30 a.m. the deceased

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Vijaya who is the son of the claimants in MFA No.200348/2014 was proceeding in a APE Auto bearing Reg.No.KA-36/9563 to go to Sindhanur and when he was passing in between R.H.Camp No.2 and 4 near the land of Kadagappa of B.R.Camp, the driver of the aforesaid

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vehicle, drove in a rash and negligent manner at high speed and dashed against the woman and thereby auto was turned turtle, as a result the auto fell on the deceased and he was shifted to Government Hospital at Sindhnur and after first aid he was referred to Bellery and thereafter advised for higher treatment. Thereafter, the deceased was taken to Shivakrupa Hospital, Hubli wherein the deceased underwent surgery upon the skull, brain and other parts of the body, but during the course of treatment he was succumbed to injuries.

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It is stated that the deceased was hale and

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healthy and was aged about 18 years. He was conducting tuition classes and thereby earning monthly income of `6,000/-. The deceased was the only earning member of the family, who used to look after the claimants and the family was depending on his income. In view of the sudden and untimely death of deceased, the claimants have lost their sole bread earner, love and affection and also mentally and financially. Hence, they filed a claim petition seeking compensation.

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Respondent No.1/owner of the offending vehicle placed exparte. Respondent No.2/Insurance Company has filed detailed statement of objections denying the contents of claim made by the claimants and sought for dismissal of the claim petition.

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On the basis of pleadings, the Tribunal framed relevant issues for consideration. In order to substantiate the issues and to establish the case, the mother of the deceased examined as PW.1 and one witness as PW.2 and got marked the documents as Exs.P1 to P16. Respondents have examined two witnesses as RW.1 and RW.2 and got marked the documents as Ex.R1 to Ex.R6.

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On the basis of material evidence both oral and documentary, the Tribunal fastened liability on respondent No.2/onwer of the offending and awarded total compensation of `4,48,000/- with 6% interest per annum and directed the respondent No.2 to deposit the compensation.

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It is the vehement contention of learned counsel for the claimants/appellants that the judgment

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and award passed by the Tribunal is erroneous, contrary to the material evidence placed on record and the documents presented by the claimants. On this basis, they seek enhancement of compensation and consequently allow the appeal.

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Per contra, learned counsel appearing on behalf of respondent No.2/owner of the offending vehemently who was filed an appeal has raised several grounds for setting aside the judgment and award by the Tribunal. The main contentions are that the Tribunal has not considered the material evidence placed on record and has awarded exorbitant compensation against the material placed on record and fastened the liability on the owner of the vehicle is grossly erroneous and the same deserves to be reversed and set-aside.

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Having heard the learned counsel for the appellants/claimants and learned counsel for respondents, the points that would arise for consideration before this Court are:

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i) Whether the claimants are entitled to enhancement of compensation ?

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ii) Whether owner of the offending vehicle has made out a case for interference

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iii) What order”

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On a careful perusal of entire material on

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record and having gone through the impugned judgment and award including the exhibits exhibited in the case on hand, it is apparently seen that the claimants would be entitled for enhancement of compensation and the owner has not made out a ground for interference, for the reasons stated herein below:-

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(a) It is not in dispute that the accident occurred on 28.08.2010 at 8.30 a.m. The occurrence of accident, involvement of vehicles, death of the deceased arising out of the accident are all not disputed except liability fastened on the owner of the offending vehicle. Hence, this court does not want to delve into the aforesaid aspects.

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(b) Now, the question that is to be decided by this

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Court is whether the compensation awarded by the Tribunal is meager and calls for interference of this Court.

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(c) On the basis of the material evidence placed before this Court, it is seen that the deceased was aged about 17 years and taking tuition classes and earning 6,000/- per month. The Tribunal has taken the income of deceased at 3,500/- per month. Admittedly there is no proof of income. As per the notional chart income prescribed by the Legal Services Authority income is fixed at `5,500/- per month for the year 2010, same is taken as income of the deceased.

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(d) Age of the deceased Vijay being 17 years as per the post mortem report at Ex.P.9, the age is taken as 17 years and the appropriate multiplier would be '18' as per the decision of the Honb'le Apex Court in the case of Sarla Verma (Smt) and others vs. Delhi Transport Corporation and another, reported in (2009) 6 Supreme Court Cases 121.

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(e) In view of the age being less than 40 years, the claimants would be entitled to 40% in addition of the income taken by this Court. Since the deceased was a bachelor and the claimants being his aged parents, 50% will have to be deducted towards his personal and living

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expenses. Therefore, the loss of dependency would be **** 8,31,600/- (3850x12x18) [5,500/-+40%=7,700/-(-) 50%=3,850/-].

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(f) I am in agreement with the contentions of the learned counsel for claimants that the Tribunal has committed an error in not awarding amount towards consortium since there are two dependants being the parents, they each be entitled to 40,000/- per head, as contemplated in the case of National Insurance Company Limited vs. Pranay Sethi and others reported in (2017) 16 Supreme Court Cases 680, which has been subsequently followed in the case of United India Insurance Co. Ltd., v. Satinder Kaur alias Satwinder Kaur and others, reported in AIR 2020 SC 3076, therefore amount of 80,000/(`40,000/- X two dependants) is awarded under the head of loss of consortium.

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(g) Towards loss of estate and towards transportation of dead body & funeral expenses, claimants would be entitled to `15,000/- each i.e., a sum of

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`30,000/- requires to be awarded and it is accordingly awarded.

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Accordingly, under conventional head 1,10,000/(loss of consortium 80,000/- + loss of estate 15,000/- + Towards transportation of dead body & funeral expenses 15,000/-) is awarded.

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(h) I do not find any reason to interfere on the medical and other expenses of ` 40,000/- awarded by the Tribunal.

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(i) As per the decision of Pranay Sethi, stated supra, 10% on the conventional head for each block period requires to be awarded, which in the present case would be `11,000/- for one block period.

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The vehement contention of the learned counsel for the owner of the offending vehicle that claimants have failed to prove that there is vicarious liability on the owner and in view of acquittal of the criminal charges against the driver namely Bankim who is

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the first respondent in the claim petition liability is to be set-aside and the judgment and award requires to be set

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aside against the owner of the vehicle as the claimants have not proved the liability against the owner of the vehicle.

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However, initially the private complaint came to be filed as per Ex.R.3 on 13.09.2010 by one Basamma in which the deceased herein Vijay is cited as witness No.1 and Bankim driver is also cited as witness No.2 and few others as witnesses. Since the private complaint was not fruitful and did not end in a logical conclusion a criminal complaint came to be lodged in which the respondent No.1 driver was made as an accused. No doubt in the criminal case the accused, respondent No.1 herein came to be acquitted, but that by itself will not absolve the liability of the owner of the offending vehicle as the criminal case depends upon various considerations and it is based on the theory of 'proof beyond reasonable doubt whereas in the present case for deciding compensation in the claim petition, it is to be decided under the theory of preponderance of probability'.

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The FIR having been registered and chargesheet having been filed would be sufficient to fasten the

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liability against the owner of the vehicle. Admittedly, the vehicle involved in the accident is not insured. Therefore, owner is rightly held liable by the Tribunal; I do not find any illegality or perversity in the Tribunal fastening liability against the owner of the offending vehicle.

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With regard to multiplier, the age and income there is no much grievance by the learned counsel for the offending vehicle as the deceased being aged 17 years, would come within the factor of the multiplier of 18 and the notional income chart is taken for deciding the compensation.

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However, the income being enhanced by this Court claimants would be entitled to marginal enhancement of compensation from what is awarded by the Tribunal as per the table mentioned herein below :

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Head	As awarded by the tribunal(`)	As awarded by this Court (`)
Towards loss of dependency	3,78,000/-	8,31,600/-
Towards loss of love and affection	10,000/-
Towards funeral and	10,000/-	1,10,000/-
transportation expenses
Towards loss of estate	10,000/-
Towards medical and	40,000/-	40,000/-

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other expe	nses
Towards	conventional	Nil	11,000/-
heads	(10% of
1,10,000)
	TOTAL	4,48,000/-	9,92,600/-

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For the foregoing reasons, I pass the

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following:

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ORDER

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i) The MFA No.32825/2013 filed by the owner of the offending vehicle is dismissed;

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ii) The MFA No.200348/2014 filed by the claimants is allowed-in-part;

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iii) The judgment and award passed by the Motor Accident Claims Tribunal at Lingasugur, sitting at Sindhanur in MVC No.31/2011 dated 27.06.2013 is modified;

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iv) The claimants are entitled for total compensation of 9,92,600/- as against 4,48,000/- awarded by the tribunal;

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v) The entire liability is fixed on respondent No.2 i.e. the owner of the offending vehicle to pay the compensation amount along with 6% interest

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from the date of petition till its realisation and same shall be paid within a period of four weeks from the date of receipt of certified copy of the judgment;

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vi) All other terms and conditions stipulated by the Tribunal stand intact.

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Registry to transmit the records to the concerned tribunal forthwith.

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Sd/JUDGE

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Sn VK

Biswajit @ Vishwajit S/O Mahendranath, v. Bankim S/O Kali Thakur

Case brief

What is this about?

What did the court decide?

Biswajit @ Vishwajit S/O Mahendranath, v. Bankim S/O Kali Thakur

Case brief

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What did the court decide?

What the court decided

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