Partly allowed

Divisional Manager v. Megha W/O Rajkumar Alase

Karnataka HC5 Jan 2024MFA/102698/2023

Case brief

AI extract

What is this about?

The High Court allowed the insurance company's first appeal partly. It upheld the rejection of contributory negligence but reduced the compensation quantum by recalculating the deceased's annual income as the average of three preceding assessment years instead of a single year, lowering the award.

What did the court decide?

The appeal is allowed in part. The impugned award is modified reducing the total compensation to Rs. 37,00,378/- instead of Rs. 44,99,485/-.

Divisional Manager Vs Megha W/O Rajkumar Alase — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC-D:303-DB MFA No. 102698 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 5^TH DAY OF JANUARY, 2024

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PRESENT

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THE HON'BLE MR JUSTICE S G PANDIT

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AND

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THE HON'BLE MR JUSTICE K V ARAVIND

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MISCELLANEOUS FIRST APPEAL NO.102698 OF 2023 (MV-D)

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BETWEEN:

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DIVISIONAL MANAGER, UNITED INDIA INSURANCE COMPANY LTD, MARUTI GALLI, TQ. DIST. BELAGAVI. REPT. BY ITS AUTHORIZED SIGNATORY DIVISIONAL MANAGER.

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…APPELLANT

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CHANDRASHEKARLAXMANKATTIMANI Digitally signed byCHANDRASHEKARLAXMANKATTIMANIDate: 2024.01.11 12:12:49 +0530

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(BY SRI. SHARANAPPA S. KOLIWAD, ADVOCATE)

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AND:

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SMT. MEGHA W/O. RAJKUMAR ALASE, AGE: 41 YEARS, OCC: HOUSEHOLD WORK.

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KUM. PRATHMESH S/O. RAJKUMAR ALASE, AGE: 23 YEARS, OCC: STUDENT.

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KUM. SHREYAS S/O. RAJKUMAR ALASE, AGE: 20 YEARS, OCC: STUDENT,

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ALL ARE R/O. ICHALKARANJI, STATE: MAHARASHTRA, NOW R/O. NEJ VILLAGE, TQ. CHIKODI, DIST: BELAGAVI-591201.

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SRI. MEHBOOB HAJILAL SHAIKH AGE: MAJOR, OCC. BUSINESS, R/O. OL NO. H/5, UJALAI NAGAR, NRITAMGAON ROAD, UJALAIWADI, TQ. KARVEER, DIST. KOLHAPUR, STATE: MAHARASHTRA-416004.

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…RESPONDENTS

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(BY SRI. SANTOSH S. HATTIKATAGI, ADVOCATE FOR R1 TO R3, SRI. R. M. JAVED, ADVOCATE FOR RESPONDENT NO. 4)

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THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, 1988, CALL FOR THE RECORDS CONNECTED WITH MVC NO.1663/2018 PASSED BY BEFORE THE ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL AND PRINCIPAL SENIOR CIVIL JUDGE AT CHIKODI, EXAMINE THE SAME AND SET ASIDE THE AWARD DATED 04-02-2023 AS AGAINST THE APPELLANT IN THE INTEREST OF JUSTICE.

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THIS MFA, COMING ON FOR HEARING ON INTERLOCUTORY APPLICATION, THIS DAY, S G PANDIT, J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Though the appeal is listed for orders on IA

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3/2023 with the consent of learned counsels for the parties the appeal is taken up for disposal.

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Insurance company is in appeal questioning the

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liability as well as quantum of compensation awarded under judgment and award dated 04.02.2023 in MVC No. 1663/2018 on the file of the Additional Motor Accidents Claims Tribunal and Principal Senior Civil Judge at Chikodi (for short Tribunal).

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Heard learned counsel Shri. S.S. Koliwad for

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appellant Insurance Company and learned counsel Shri. Santosh S. Hattikatgi for respondent Nos.1 to 3. Perused the appeal papers including the Tribunal records.

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Appellant was respondent No.2 and respondents

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1 to 3 herein were claimants before the Tribunal. Parties to the appeal would be referred to as they stand before the Tribunal.

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Petitioners filed claim petition under Section 166

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of the Motor Vehicles Act 1988 claiming compensation for the accidental death of one Rajkumar, husband of the first petitioner in a road traffic accident that took place on 11.04.2018 involving Motorcycle bearing No. MH-09-BU4949 and Tavera Car bearing No.MH-09/BA-8863. It is stated that the deceased was running manufacturing business and was earning more than Rs.5,00,000/-per annum. The deceased was aged 47 years as on the date of accident. Respondent Insurance Company on appearance filed its objections denying the claim petition averments. Further it is specifically contended that the accident took place due to the sole negligence of the deceased and further stated that deceased equally contributed to the accident which took place on 11.04.2018.

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The first claimant, wife of the deceased, examined herself as PW-1 and also examined another witness as PW-2 apart from marking Ex.P1 to Ex.P26. Respondents also examined RW-1 officer of the Insurance

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Company and marked Ex.R1 to R9. The Tribunal on scrutiny of the material on record awarded total

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compensation of Rs.44,99,485/- on the following heads:

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Sl. No.	Heads of Compensation	Amount in Rupees
1	Loss of Dependency	43,46,485=00
2	Loss of consortium	1,20,000=00
3	Loss of Estate	15,000=00
4	Funeral expenses	15,000=00
5	Conveyance	3,000=00
	TOTAL	44,99,485=00

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While awarding the above compensation the Tribunal adopted multiplier of 13 added 25% of the assessed income towards future prospects and assessed the income of the deceased at Rs.4,01,214/- p.a. and saddled entire liability on respondent Nos.1 and 2 and directed second respondent Insurance Company to deposit the entire amount of compensation. The Insurance Company being aggrieved by fixing of entire liability and as well as questioning the quantum of compensation is before this Court in this appeal.

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Learned counsel, Shri. Koliwad for respondent

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No.2-insurance company (appellant herein) would submit

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that the accident occurred solely due to the negligence of the deceased. It is submitted that deceased was riding motorcycle and was proceeding towards Kolhapur from IchalKaranji and the offending vehicle was coming from Kolhapur to IchalKaranji, and the accident took place in the middle of the road. Further, to substantiate the contention of the appellant, learned counsel would invite attention of this Court to Ex.P-4(a) sketch and submits that the rider of the motorcycle i.e., deceased had crossed centre of the road on the right side and the insured offending vehicle was proceeding on the left side from Kolahpur of IchalKaranji. The learned counsel would also submit that if the deceased rider of the motorcycle had not come totally on the right side of the road, the accident would not have occurred. Thus, the learned counsel would submit that the Tribunal committed an error in not considering the contention of the appellant with regard to contributing negligence. Learned counsel inviting attention of the Court to paragraph No.14 of the judgment would submit that the Tribunal having observed that the vehicle driven by the

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NC: 2024:KHC-D:303-DB MFA No. 102698 of 2023

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deceased had crossed centre of the road, ought to have saddled the liability on the deceased.

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The learned counsel for the respondent No.2insurance company further contended that the accident had taken place on 11.04.2018 and the complaint was lodged only on 20.04.2018 by the pillion rider. There is an unexplained delay of more than nine days in filing the complaint. Further, it is also submitted that the spot mahazar was conducted on 12.04.2018 based on the MLC intimation forwarded by the hospital. As there is an unexplained delay in lodging the complaint, the learned counsel would express doubt with regard to the occurrence of the accident itself.

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Thirdly, learned counsel for the appellant would submit that the income assessed by the Tribunal is erroneous. The Tribunal has assessed the income based on the Income-Tax Returns filed by the claimants which are marked as Exs.P.15, P.16, and P.17. The learned counsel would submit that instead of taking average income of the

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three preceding assessment years, the Tribunal has erroneously assessed the income considering the annual income as shown in Ex.P.15, the Income-Tax Returns filed for the Assessment Year 2017-2018. Thus, the learned counsel would pray for assessing the income of the deceased by taking the average of the annual income mentioned in Exs.P.15, P.16, and P.17. Thus, learned counsel for the appellant-insurance company would pray for allowing the appeal.

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Per contra, the learned counsel for the claimants/respondents would submit that except Ex.P.4(a), the appellant-insurance company has not placed on record any corroborative evidence to substantiate the contention of contributory negligence. The learned counsel would submit that the appellant-insurance company has not examined the driver of the offending vehicle nor has examined any eye witness to the accident. Moreover, the learned counsel would submit that the road width, where the accident had taken place, is about 20 feet and the

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accident has taken place at 9 feet from the edge of the northern side of the road. It is submitted that there was still 12 feet left on the southern side of the road. Hence, he submits that it cannot be said that the rider of the motor cycle i.e., deceased was riding the motorcycle on the extreme right side of the road. Thus, he submits that the Tribunal has rightly rejected the contention of the respondent-insurance company with regard to contributory negligence.

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With regard to contention of delay in lodging the complaint, the learned counsel for the claimants/respondents would submit that the complaint is lodged by the pillion rider; that the pillion rider had also sustained head injury in the accident and he was not in a position to lodge the complaint in time; the pillion rider, after discharge from the hospital, had lodged the complaint on 20.04.2018; however, before lodging of such complaint, intimation of MLC was forwarded from the hospital to the police station on the basis of which the police authorities

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had conducted spot mahazar of the accident. Learned counsel would further submit that the police have filed charge sheet against the driver of the offending vehicle. Thus, he would submit that the delay would not be fatal in the present case.

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Learned counsel for the claimants/respondents would justify the income of the deceased assessed by the Tribunal at Rs.4,01,214/-. The learned counsel would submit that the income is assessed by the Tribunal taking note of Ex.P.15, the Income-Tax Returns for the Assessment Year 2017-18. The deceased was carrying on manufacturing business/engineering job works. Since the Tribunal has assessed the income based on Ex.P.15, Income-Tax Returns, the learned counsel would submit that the same requires no interference and prays for dismissal of the appeal.

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Having heard the learned counsels for the parties and on perusal of the appeal papers including the

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NC: 2024:KHC-D:303-DB MFA No. 102698 of 2023

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Tribunal records, the following points would arise for consideration:

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i) Whether the Tribunal is justified in rejecting the contention of the respondent-insurance company with regard to the contributory negligence?

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ii) Whether the Tribunal is justified in assessing the income of the deceased at Rs.4,01,214/- per annum?

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Our answers to the above points would be in the affirmative and in the negative respectively for the following reasons:

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(a) This appeal arises from the accident that occurred on 11.04.2018 involving the motor cycle bearing registration No.MH-09/BU-4949 which was driven by the deceased, and the Tavera Car bearing registration No.MH-09/BA-8863. The deceased, on his motor cycle, was proceeding from Ichalkaranji to Kolhapur, whereas the offending vehicle Tavera Car was coming from Kolhapur to Ichalkaranji. Ex.P.4 is the sketch of

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the spot of the accident, which is in Marathi language, and Ex.P.4(a) is the Kannada translation of the sketch at Ex.P.4. On comparing Ex.P.4 and Ex.P.4(a), we find that there is some discrepancy. Though the width of the road is shown as 20 feet, while giving measurement of the spot of the road from the edge of the road, it is shown as 12 feet to the North and 17 feet to the South from the edge of the road in translated copy i.e., Ex.P.4(a). From Ex.P.4, it is seen that the accident had taken place about 9 feet from the North egde of the road and from the accident spot there was 12 feet to the South edge of the road. That means, the accident had not taken place on the middle of the road, as contended by the learned counsel for the appellant-insurance company. It has come on record that it was a head on collusion which means that the driver of the Tavera Car had driven the car to the extreme right of the road. The respondent No.2/appellant-insurance company to substantiate its contention of contributory negligence

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has not placed on record any material or examined any witness. The insurance company has not examined the driver of the offending vehicle who would have explained the occurrence of the accident nor any witness. In the absence of any corroborative evidence, we are not inclined to disturb the finding of

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the Tribunal on the aspect of the contributory negligence.

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(b) The respondent No.2/appellant-insurance company also contended that there is delay in lodging the complaint in respect of the accident which had taken placed on 11.04.2018. Though the accident had taken place on 11.04.2018, the complaint is lodged before the police on 20.04.2018. In the meanwhile, the hospital authorities had forwarded the intimation of MLC to the police, on the basis of which the police authorities had conducted spot mahazar, and in the meanwhile, driver of the Tavera car had also surrendered. It is significant to note that the complainant is the pillion rider. The pillion rider had

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also suffered head injury in the accident. It is stated that on discharge from the hospital, the pillion rider lodged the complaint. In the above circumstances, it cannot be said that delay in lodging the complaint was intentional. Moreover, in the instant case, based on the other materials, we hold that the delay in lodging the complaint would not be fatal to the case of claimants.

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(c) The Tribunal has assessed the income of the deceased at Rs.4,01,214/- per annum based on Ex.P.15. The deceased husband of the first petitioner

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was carrying on manufacturing business/engineering job works. The deceased was an income tax assessee. Claimants had produced on record Exs.P.15, P.16, and P.17 the Income-Tax Returns for the Assessment Years 2017-18, 2017-16, and 201615 respectively. Ex.P.15 shows the annual income of the deceased at Rs.4,01,214/-; Ex.P.16 shows the annual income at Rs.2,92,831/-; and Ex.P.17 indicates the annual income of the deceased at

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Rs.2,89,139/-. Where the income tax returns for the different assessment years are placed on record, it is

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always for the Court take average income of immediate preceding three years to determine the income. In the instant case, the Tribunal instead of assessing the income of the deceased taking average

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of three immediate previous assessment years, committed an error in determining the income only on the basis of Ex.P.15 which is the Income-Tax Returns filed for the Assessment Years 2017-18. If the average of income for immediate preceding three years as shown in Exs.P.15, P.16 and P.17 is taken for assessing the income of the deceased, it would come to Rs.3,27,728/- per annum. Therefore, we are of the view that it would be appropriate to assess the income of the deceased taking average of the income of the three Assessment Years from 2015-16 to 201718 at Rs.3,27,728/- per annum. The deceased was aged 47 years and the Tribunal has rightly taken the multiplier 13, and so also, the Tribunal has rightly

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added income towards future prospects at the rate of 25% of the assessed income, and has also rightly deducted 1/3^rd of the assessed income towards personal expenses of the deceased. Thus, the claimants would be entitled for compensation under the head ‘loss of dependency’ at Rs.35,50,378/- [Rs.3,27,728/- (annual income) + 25% = Rs.81,932/- (25% of annual income) = Rs.4,09,660 less 1/3^rd (towards personal expense) = Rs.2,73,106 x 13 (multiplier)].

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The Tribunal has rightly awarded the compensation under the conventional heads i.e., towards ‘loss of consortium’, ‘loss of estate’ and ‘funeral expenses’, and the same requires no interference.

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Thus, the claimants would be entitled for

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modified compensation as under:

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1)	Loss of Dependency		Rs.	35,50,378/-
2)	Loss of consortium		Rs.	1,20,000/-
3)	Loss of Estate		Rs.	15,000/-
4)	Funeral expenses		Rs.	15,000/-
		TOTAL	Rs.	37,00,378/-

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Thus, the claimants would be entitled to reduced compensation of Rs.37,00,378/- .

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In the result, we pass the following:

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ORDER

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a) The appeal is allowed in part.

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b) The impugned judgment and award, dated 04.02.2023, passed in M.V.C. No.1663/2018 by the Tribunal is hereby modified. The claimants are entitled to reduced compensation Rs.37,00,378/- instead of Rs.44,99,485/awarded by the Tribunal, with interest as awarded by the Tribunal.

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c) The amount in deposit before this Court, if any, shall be transmitted to the Tribunal forthwith.

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d) Since it is submitted by the learned counsel for the appellant-Insurance Company that entire compensation amount, as awarded by the Tribunal is deposited before the Tribunal, and since the compensation amount payable to the claimants is reduced, the Tribunal shall refund the excess amount in deposit to the appellantinsurance company.

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NC: 2024:KHC-D:303-DB MFA No. 102698 of 2023

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

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f) Draw modified award accordingly.

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Registry to transmit the records to the Tribunal forthwith.

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No order as to costs.

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Sd/JUDGE

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Sd/JUDGE RKM,KMS List No.: 1 Sl No.: 49

Divisional Manager v. Megha W/O Rajkumar Alase

Case brief

What is this about?

What did the court decide?

Divisional Manager v. Megha W/O Rajkumar Alase

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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