Partly allowed

Smt. Sushila W/O Mableshwar Naik v. Deepak Jaywant Gaonkar

Karnataka HC3 Nov 2023MFA.CROB/100126/2022

Case brief

AI extract

What is this about?

Appeal by insurer and cross objection by claimants challenging High Court of Karnataka compensation quantum. Court held non-existence of fitness certificate is not a defence under Section 149. Enhanced compensation to Rs. 22,00,879 including dependency and consortium.

What did the court decide?

Judgment and award modified; total compensation enhanced to Rs. 22,00,879 with interest at 6% p.a.; insurer to deposit amount.

Smt. Sushila W/O Mableshwar Naik Vs Deepak Jaywant Gaonkar — Insurance | Karnataka HC (2023)

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NC: 2023:KHC-D:12832-DB MFA No. 100821 of 2022 C/W MFA.CROB No. 100126 of 2022

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 3^RD DAY OF NOVEMBER, 2023

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PRESENT

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THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV

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AND

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THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL MISCELLANEOUS FIRST APPEAL NO. 100821/2022 (MV-) C/W MFA CROSS OBJ NO. 100126 OF 2022

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IN MFA NO.100821/2022

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BETWEEN:

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UNITED INDIA INSURANCE CO. LTD, MO, ANKOLA, I FLOOR, DESAI BUILDING, DR. DINAKAR DESAI ROAD, ANKOLA-581314. REPRESENTED THROUGH AUTHORISED SIGNATORY.

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…APPELLANT

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(BY SMT. PREETI SHASHANK & SRI. SHASHANK HEGDE, ADVS)

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AND:

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SHIVAKUMAR HIREMATH Digitally signed by SHIVAKUMAR HIREMATH Date: 2023.11.10 10:42:20 +0530

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SMT. SUSHILA W/O. MABLESHWAR NAIK, AGE: 44 YEARS, OCC: COOLIE.

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SRI. NAGARAJ S/O. MABLESHWAR NAIK, AGE: 20 YEARS, OCC: COOLIE.

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SRI. NAGENDRA S/O. MABLESHWAR NAIK, AGE: 16 YEARS, OCC: STUDENT, MINOR GUARDIAN R/BY HIS MOTHER RESP. NO. 1/SMT. SUSHILA.

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SMT. SUMITRA W/O. INDRA NAIK, AGE: 69 YEARS, OCC: HOUSEHOLD, R/O. TENKANAKERI, ANKOLA, N.K. NOW ALL ARE R/O. HABBUWADA, KARWAR-581306.

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NC: 2023:KHC-D:12832-DB MFA No. 100821 of 2022 C/W MFA.CROB No. 100126 of 2022

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DEEPAK JAYWANT GAONKAR, AGE: MAJOR, R/O. POOJGERI, TQ: ANKOLA, N.K-581353.

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…RESPONDENTS

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(BY SRI. P. G. CHIKKANARAGUND, ADV. FOR R1, R2 & R4, R3 IS MINOR R/BY R1, NOTICE TO R5 SERVED)

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THIS MFA IS FILED U/S.173 (1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 30.09.2021 PASSED IN MVC NO.30/2021 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND II ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KARWAR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA CROB NO.100126/2022

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BETWEEN:

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SMT. SUSHILA W/O. MABLESHWAR NAIK, AGE: 44 YEARS, OCC: COOLIE, R/O. TENKANAKERI, ANKOLA, TQ: ANKOLA, N.K. DISTRICT.

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NAGARAJ S/O. MABLESHWAR NAIK, AGE: 20 YEARS, OCC: COOLIE, R/O. TENKANAKERI, ANKOLA, TQ: ANKOLA, N.K. DISTRICT.

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NAGENDRA S/O. MABLESHWAR NAIK, AGE: 16 YEARS, OCC: STUDENT, R/O. TENKANAKERI, ANKOLA, TQ: ANKOLA, N.K. DISTRICT.

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SMT. SUMITRA W/O. INDRA NAIK, AGE: 69 YEARS, OCC: HOUSEHOLD, R/O. TENKANAKERI, ANKOLA, TQ: ANKOLA, N.K. DISTRICT.

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NC: 2023:KHC-D:12832-DB MFA No. 100821 of 2022 C/W MFA.CROB No. 100126 of 2022

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NOW ALL ARE R/O. HABBUWADA, TQ & DIST: KARWAR-581314. APPELLANT NO. 3 IS MINOR REP BY HIS MOTHER APPELLANT NO.1 AS HIS NATURAL GUARDIAN.

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…APPELLANTS

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(BY SHRI. P. G. CHIKKANARAGUND, ADVOCATE)

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AND:

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DEEPAK JAYWANT GAONKAR, AGE: MAJOR, OCC: NOT KNOWN, R/O. POOJGERI, TQ: ANKOLA, N.K-581314.

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UNITED INDIA INSURANCE CO. LTD, MO, ANKOLA, IST FLOOR, DESAI BUILDING, DR. DINAKAR DESAI ROAD, ANKOLA-581314.

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…RESPONDENTS

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(BY SMT. PREETI SHASHANK AND SRI. SHASHANK HEGDE, ADVS FOR R2, NOTICE TO R1 DISPENSED WITH)

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THIS MFA.CROB IN MFA NO.100821/2022 FILED UNDER ORDER 41 RULE 22 OF CPC, AGAINST THE JUDGMENT AND AWARD DATED 30.09.2021 PASSED IN MVC NO. 30/2021 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND II ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KARWAR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MFA AND MFA CROB, COMING ON FOR ADMISSION, THIS DAY, VIJAYKUMAR A.PATIL, J., DELIVERED THE FOLLOWING:

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NC: 2023:KHC-D:12832-DB MFA No. 100821 of 2022 C/W MFA.CROB No. 100126 of 2022

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JUDGMENT

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Both these appeals are filed challenging the judgment and award dated 30.09.2021 passed by the Addl. Senior Civil Judge and II Addl. MACT, Karwar (hereinafter referred to as ‘the Tribunal’) in MVC No.30/2021. MFA No.100821/2022 is filed by the insurance company challenging the liability as well as the quantum of compensation awarded by the Tribunal and MFA Crob.No.100126/2022 is filed by the claimants, who are the legal heirs of deceased Mableshwar Naik seeking for enhancement of compensation awarded by the Tribunal.

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2. Brief facts giving rise to filing of these appeals

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are that the legal heirs of the deceased Mableshwar Naik filed a claim petition under Section 166 of Motor Vehicle Act, 1988 (hereinafter referred to as ‘M.V. Act’, for short) seeking compensation for the death of the Mableshwar Naik in the road traffic accident which occurred on

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06.02.2020 when the he was proceeding on a bicycle, an

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auto rickshaw bearing No.KA-30/8041 came from opposite direction in a rash and negligent manner and dashed to the bicycle. Due to the said impact, the said Mableshwar Naik sustained grievous injuries. Immediately he was shifted to Arya Hospital, Ankola, after the first aid treatment, he was shifted to St. Ignecious Hospital, Honnavar and again shifted to Government Hospital Ankole and Karwar. On 08.02.2020, the said Mableshwar Naik succumbed to the injuries. It is averred that the deceased was aged 48 years, working as a labour and earning a sum of Rs.20,000/- p.m. It is also averred that the deceased was the only bread earning member of the family.

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3. The respondents entered appearance before the

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Tribunal. Respondent No.2 filed objections opposing the claim petition and denying the age, avocation, income and relationship of the deceased with the claimants. It is contended that the offending vehicle was insured with the

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respondent No.2 as on the date of accident. However, the driver of the auto rickshaw did not possess the valid driving licence as on the date of accident and the insured vehicle was not having fitness certificate which is in violation of permit conditions. Hence, prayed to dismiss the claim petition.

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The Tribunal framed the issues and recorded the evidence of the parties. The claimant No.1 has examined herself as P.W.1, got marked Ex.P.1 to P.12 and respondent-Insurance company examined its official as R.W.1 and got marked Exs.R.1 to R.3. The Tribunal on appreciation of the material evidence on record, awarded compensation of Rs.20,02,500/- along with 6% p.a. interest and fastened the liability on insurance company to pay the compensation amount. Being aggrieved by the same, the insurance company as well as the claimants are in appeal and cross objections respectively.

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Learned counsel Smt. Preeti Shashank

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appearing for the appellant/insurance company submits

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NC: 2023:KHC-D:12832-DB MFA No. 100821 of 2022 C/W MFA.CROB No. 100126 of 2022

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that the Tribunal has committed an error in fastening the liability on the insurance company since on the date of accident, the offending vehicle was not having fitness certificate and was plying on the road. Therefore, the respondent No.1 was in contravention of the terms and conditions of the policy. Hence, the liability fastened on the insurance company is contrary to the provisions of law. She further submits that the quantum of compensation awarded by the Tribunal is on the higher side and the same is required to be modified.

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Per contra , learned counsel Sri P.G.

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Chikkanaragund appearing for cross-objectors/claimants submits that in view of the settled principles of law, the contention of the insurance company that the offending vehicle was not having fitness certificate is no more res integra. He further submits that the Tribunal has committed an error in assessing the income of the deceased and the compensation awarded by the Tribunal

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NC: 2023:KHC-D:12832-DB MFA No. 100821 of 2022 C/W MFA.CROB No. 100126 of 2022

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is on the lower side. Hence, seeks for enhancement of the compensation.

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Having heard the learned counsel for the appellant-Insurance company, the cross-objectorsclaimants, perused the memorandum of appeal and the Tribunal records, the points that arise for consideration in

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these appeals are:

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(i) Whether the Tribunal was justified in fastening the liability on the appellantinsurance company?

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(ii) Whether the cross-objectors -claimants are entitled for higher compensation?

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The answer to the above points are in the

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affirmative, respectively, for the following reasons:

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(a) The parties to the proceedings do not dispute that in the road accident that occurred on 06.02.2020

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Mableshwar Naik succumbed to the injuries sustained accident after undergoing treatment in different hospitals. It is also not in dispute that

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NC: 2023:KHC-D:12832-DB MFA No. 100821 of 2022 C/W MFA.CROB No. 100126 of 2022

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the offending auto rickshaw bearing No.KA30/8041 was insured with the appellant-insurance company. The contention of the insurance company is that on the date of accident, the auto rickshaw was not having fitness certificate and it was plying on the road contrary to the policy conditions. Hence, fastening liability on the insurance company by the Tribunal is contrary to the provisions of law.

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(b) In an identical matter, this Court in MFA No.6621/2006 c/w MFA CrobNo.304/2006 vide judgment dated 18.09.2007 and in MFA No.7792/2015 c/w MFA No.6449/2015 disposed of on 21.12.2020 has held that non-availability of fitness certificate on the date of accident is not a defence available under Section 149 of M.V. Act. Further, the Division Bench of this Court in MFA No.102220/20 c/w MFA No. 102048/2020 disposed of on 17.07.2023 has held that it is not a defence available for the insurance company and

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it is not the condition which is mentioned in the policy, but it is only an offence under the MV Act and the insurer cannot escape from the liability. Thus, the contention of the insurer that as there was no valid fitness certificate as on the date of the accident, the insurance company is not liable to pay compensation is liable to be rejected and accordingly, it is rejected.

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(c) Insofar as award of compensation is concerned, the Tribunal has assessed the notional income of the deceased at Rs.14,250/- p.m. Admittedly, the claimants have not produced any material to substantiate the income of the deceased. In the absence of any evidence on record, this Court and Lok Adalaths normally rely on the notional income chart prepared by the Karnataka State Legal Services Authority to assess the income. In the instant case, the accident is of the year 2020. Basing our reliance on the aforesaid chart, this

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NC: 2023:KHC-D:12832-DB MFA No. 100821 of 2022 C/W MFA.CROB No. 100126 of 2022

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Court assess the income of the deceased at Rs.13,750/- p.m. The Tribunal has committed an error in deducting 1/3^rd towards personal and living expenses of the deceased and the appropriate deduction would be 1/4^th as there are 4 legal heirs depended on the income of the deceased.

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(d) The Tribunal has rightly added future prospects of 25% as per the judgment of the Hon’ble Supreme

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Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others¹ , the same does not call for any interference.

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(e) Thus, the claimants would be entitled for compensation under the head loss of dependency as under:

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Rs.13,750 + 25% x 12 x 13 x 3/4= Rs.20,10,879/-

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1 (2017) 16 SCC 680

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NC: 2023:KHC-D:12832-DB MFA No. 100821 of 2022 C/W MFA.CROB No. 100126 of 2022

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(f)It is settled law that the claimants being wife, sons and mother of the deceased would be entitled to Rs.40,000/- each towards spousal, parental & filial consortium as held by the Hon’ble Apex Court in the case of Magma General Insurance

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Company Limited Vs Nanu Ram² .

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(g) As held by the Hon’ble Apex Court in the case of Pranay Sethi (supra), the claimants would be entitled to a sum of Rs.15,000/- towards loss of estate and a sum of Rs.15,000/towards transportation of dead body and funeral expenses.

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Thus, the claimants would be entitled for

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modified compensation on the following heads:

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Sl.No.	Particulars	Amount
1.	Loss of dependency	Rs.20,10,879/-
2.	Loss of estate	Rs.15,000/-
3.	Funeral expenses and transportation of dead body	Rs.15,000/-
3.	Loss of consortium	Rs.1,60,000/-

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2 (2018) SCC 130

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(Rs.40,000 x 4) Total Rs.22,00,879/-

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In view of the aforementioned, we pass the

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following:

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ORDER

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(i) Both the appeals are allowed in part.

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(ii) The judgment and award dated 30.09.2021 passed by the Addl. Senior Civil Judge and II Addl. MACT, Karwar, in MVC No.30/2021 is modified and the claimants are entitled to total compensation Rs.22,00,879/- as against Rs.20,02,500/- awarded by the Tribunal with interest at the rate of 6% per annum from the date of claim petition till date of realization.

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(iii) The appellant-Insurance Company shall deposit the enhanced compensation amount with accrued interest before the Tribunal within six weeks from the date

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NC: 2023:KHC-D:12832-DB MFA No. 100821 of 2022 C/W MFA.CROB No. 100126 of 2022

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of receipt of certified copy of this judgment.

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(iv) Apportionment, deposit and disbursement of the enhanced compensation shall be made as per the award of the Tribunal.

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(v) Draw modified award accordingly.

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(vi) Registry to transmit the records to the Tribunal forthwith.

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(vii) No order as to costs.

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Sd/JUDGE

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Sd/JUDGE

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NAA List No.: 1 Sl No.: 8

Smt. Sushila W/O Mableshwar Naik v. Deepak Jaywant Gaonkar

Case brief

What is this about?

What did the court decide?

Smt. Sushila W/O Mableshwar Naik v. Deepak Jaywant Gaonkar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

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