Smt.Nishaa W/O.Nagesh Pai Vs Mr.Ibrahim S/O.Mohammadsab Binkadakatti

SMT. NISHAA W/O. NAGESH PAI, AGE: 38 YEARS, OCC: PRIVATE SERVICE, R/O. ARAVIND NAGAR, BEHIND VIVEKANAND SCHOOL, OLD HUBBALLI, HUBBALLI, DIST: DHARWAD, NOW AT: Y. S. COLONY, DHARWAD.

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Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: High Court of Karnataka, Dharwad Bench

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KUMARI VAISHNAVI D/O. NAGESH PAI, AGE: 10 YEARS, OCC: STUDENT, R/O. ARAVIND NAGAR, BEHIND VIVEKANAND SCHOOL, OLD HUBBALLI, HUBBALLI, DIST: DHARWAD, NOW AT Y. S. COLONY, DHARWAD. (APPELLANT NO.2 SINCE MINOR REPRESENTED BY HER NATURAL MOTHER MINOR GUARDIAN APPELLANT NO.1).

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…APPELLANTS

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(BY SRI. VINAY S. KOUJALAGI, ADVOCATE)

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AND:

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MR. IBRAHIM S/O. MOHAMMADASAB BINKADAKATTI, AGE: 54 YEARS, OCC: BUSINESS, R/O. AMBEDKAR COLONY, ANANDNAGAR, OLD HUBBALLI, HUBBALLI, DIST: DHARWAD. (OWNER OF ACTIVE HONDA MOTOR CYCLE

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HC-KAR

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BEARING REG.NO.KA-25/EM-8374).

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THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LTD., R/O. HUDDAR BUILDING, OPP: HEAD POST OFFICE, STATION ROAD, DHARWAD.

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…RESPONDENTS

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(BY SRI. I. Y. PATIL, ADV. FOR R1; SRI. N. R. KUPPELUR, ADV. FOR R2)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS, ALLOW THE APPEAL AND SET ASIDE THE JUDGMENT AND AWARD DATED 03.10.2019 PASSED BY THE I ADDL. SENIOR CIIVL JUDGE AND CJM DHARWAD, IN M.V.C. NO.1003/2016 IN SO FAR AS QUANTUM OF COMPENSATION IS CONCERNED AND ENHANCE THE COMPENSATION AS CLAIMED BY THE APPELLANTS IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.

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IN MFA NO.100394 OF 2020

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BETWEEN:

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BRANCH MANAGER, NATIONAL INSURANCE CO. LTD., R/O. HUDDAR BUILDING, OPP: HEAD POST OFFICE, DHARWAD, REP. BY ITS ADMINISTRATIVE OFFICER.

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…APPELLANT

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(BY SRI. N. R. KUPPELUR, ADVOCATE)

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AND:

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SMT. NISHAA W/O. NAGESH PAI, AGE: 38 YEARS, OCC: PRIVATE SERVICE, R/O. ARAVIND NAGAR, BEHIND VIVEKANANDA SCHOOL, OLD HUBBALLI, HUBBALLI, DIST: DHARWAD, NOW AT Y. S. COLONY, DHARWAD.

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KUMARI VAISHNAVI D/O. NAGESH PAI, AGE: 10 YEARS, OCC: STUDENT, R/O. ARAVIND NAGAR, BEHIND VIVEKANANDA SCHOOL, OLD HUBBALLI, HUBBALLI, DIST: DHARWAD, NOW AT Y. S. COLONY, DHARWAD.

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THE RESPONDENT NO.2 IS MINOR IS REPRESENTED BY HER NATURAL MOTHER AS GUARDIAN RESPONDENT NO.1, SMT. NISHAA W/O. NAGESH PAI.

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MR. IBRAHIM S/O. MOHAMMADSAHEB BINKADAKATTI, AGE: 53 YEARS, OCC: BUSINESS, R/O. AMBEDKAR COLONY, ANAND NAGAR, OLD HUBBALLI, HUBBALLI, DIST: DHARWAD, (OWNER OF THE MOTOR CYCLE NO.KA-25/EM-8374).

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…RESPONDENTS

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(BY SRI. VINAY S. KOUJALAGI, ADV. FOR R1; R2-IS MINOR REP. BY R1; SRI. I. Y. PATIL, ADV. FOR R3)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173 (1) OF MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS CONNECTED WITH AWARD AND JUDGMENT MADE IN MVC NO.1003/2016 ON THE FILE OF THE 1^ST ADDL. SENIOR CIVIL JUDGE AND CJM DHARWAD AND MODIFY THE AWARD DATED 03-10-2019 BY REDUCING THE COMPENSATION IN THE INTEREST OF JUSTICE.

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THESE APPEALS, COMING ON FOR HEARING ON IA, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV AND

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL

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HC-KAR

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL)

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MFA No.100778/2020 is filed by the appellants/claimants seeking enhancement of

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compensation, whereas MFA No.100394/2020 is filed by the appellant/Insurance company challenging the judgment and award dated 03.10.2019 passed in MVC No.1003/2016 by the I Additional Senior Civil Judge and CJM, Dharwad (for short, ‘Tribunal’).

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Brief facts leading to filing of these appeals are that on 25.10.2016 at about 10.20 p.m., the deceasedNagesh was proceeding as pillion rider on the motorcycle bearing Reg.No.KA-22-S-4075. When the said motorcycle reached near M.T. Mill Cross, on Karwar road, at that time, rider of Active Honda motorcycle bearing Reg.No.KA-25EM-8374 came from Girani Chawl towards Indi Pump in a very high speed and rash and negligent manner and caused the accident, the deceased- Nagesh sustained

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grievous injuries and succumbed to those injuries in the

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Hospital while taking treatment on 26.10.2016.

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Sri.N.R.Kuppelur, learned counsel for the

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appellant/insurer contends that the complaint was lodged by the brother of the deceased on 25.10.2016 and the said complaint indicates that deceased was riding the motorcycle. However, the Police colluding with the claimants, recorded further statement of the complainant and in the further statement it was recorded that the deceased was a pillion rider and one Sri.Khalander was a rider of the motorcycle and based on the further statement, FIR was registered, investigation was completed and charge sheet was filed against the rider of the motorcycle bearing Reg.No.KA-25-EM-8374 and saddled the liability on the appellant/insurance company. The filing of the charge sheet is at the instance of the claimants only to avoid the contributory negligence of the deceased as he was negligent in riding the motorcycle.

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HC-KAR

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It is further submitted that the Tribunal

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assessed the income of the deceased at Rs.10,000/- per month which is required to be reassessed at Rs.8,750/- as per the notional income chart prepared by the Karnataka State Legal Services Authority and also submitted that the interest awarded by the Tribunal at 9% is required to be reduced to 6% p.a. Thus, he seeks to allow the appeal filed by the insurance company by shifting liability on the deceased.

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Sri. Vinay S. Koujalagi, learned counsel appearing for the appellants/claimants supports the impugned judgment and award of the Tribunal insofar as liability is concerned. It is submitted that the Tribunal committed an error in ignoring Ex.P-13 which indicates that the deceased was drawing salary of Rs.14,000/- per month. Hence, he seeks to reassess the income of the deceased at Rs.14,000/- per month and to allow the appeal filed by the claimants.

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HC-KAR

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Having heard the learned counsels for the

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parties and on perusal of the material available on record as well as original records of the Tribunal, the point that would fall for consideration in the present appeal is, whether the award of compensation by the Tribunal is just and proper?

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Answer to the above point would be in the ‘partly affirmative’ and ‘partly negative’ for the following reasons:

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(a) The pleading and evidence on record indicate that on 25.10.2016, the brother of the deceased filed a complaint before the Hubballi North Traffic Police by alleging that his brother, deceased –Nagesh Pai was proceeding on his motorcycle and the rider of the motorcycle bearing Reg.No.KA-22-S-4075 caused the accident. The compliant at Ex.P2 indicates that the deceased was rider of the motorcycle

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bearing Reg.No.KA-25-EM-8374. During the course of investigation, the Police recorded further statement of the complainant. The further statement indicates that the deceased Nagesh was a pillion rider and one Khalander was riding the motorcycle. Based on the further statement, the investigation was carried out and filed a charge sheet against the rider of the motorcycle bearing Reg.No.KA-25-EM-8374. The copy of the FIR, complaint, further statement, crime detail form, MVI report, charge sheet, inquest panchanama are marked

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as Exs.P1 to P8. The claimants examined as PWs.1 and 2 to establish factum of negligence, liability and for quantum of compensation. Admittedly, the insurance company has not challenged the charge sheet nor produced any evidence to disbelieve the evidence of the claimants with regard to aspect of negligence.

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The Tribunal on appreciation of the oral and documentary evidence has recorded the clear finding with regard to the negligence and held that the rider of the Active Honda motorcycle bearing Reg.No.KA-25-EM-8374 was negligent and caused the accident. In the absence of any cogent and legally acceptable evidence on record, we are of the considered view that the contention of the insurance company that deceased-Nagesh was negligent and contributed to the accident cannot be accepted. We do not find any perversity or illegality in the finding recorded by the Tribunal with regard to the negligence and liability calling for interference in this appeal.

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(b) Insofar as quantum of compensation, the claimants contended that the deceased was working as a Supervisor in Nandini Milk Parlour, Hubballi and in support of the same, Ex.P13 is

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produced. It is pleaded that the deceased was working as Supervisor from last seven years and drawing salary of Rs.14,000/- per month. To substantiate the avocation and income, claimant examined PW-2. The oral testimony of PW-2 cannot be sole basis to accept the contention with regard to avocation and income of the deceased, in the absence of any corroborative evidence for receipt of Rs.14,000/- per month from his employer. The Tribunal on appreciation of evidence on record, has clearly recorded the finding at paragraph Nos.26 and 27 of the impugned judgment and assessed the income of the deceased at Rs.10,000/- per month notionally, we do not find any error in appreciation of evidence by the

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Tribunal. The deceased was aged about 46 years at the time of accident. The claimants are the wife and daughter of the deceased. Hence,

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there would be addition of 25% of the assessed income of the deceased under the head of loss of future prospects in terms of decision of Hon’ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Others¹ . The appropriate applicable multiplier would be ‘13’ and deduction would be 1/3^rd . Therefore, loss of dependency is re-assessed and quantified at Rs.13,00,000/- (Rs.10,000 + 25% x 12 x 13 x 2/3).

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(c) In light of law laid down by the Hon’ble Apex Court in Pranay Sethi’s case referred supra, the claimants would be entitled to a sum of Rs.16,500/towards loss of estate and Rs.16,500/- towards transportation of dead body and funeral expenses including 10% escalation.

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1 2017(16) SCC 680

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(d) The Tribunal awarded a meager compensation

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of Rs.40,000/- towards loss of consortium and Rs.20,000/- towards loss of love and affection. Keeping in mind the law laid down by the Hon’ble Apex Court in the case of Magma

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General Insurance Company Limited Vs.

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Nanu Ram & Others² , the claimants would be entitled for a sum of Rs.44,000/- each under the head of loss of consortium including 10% escalation.

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(e) The Tribunal committed error in awarding

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interest at the rate of 9% p.a. which is on higher side. This Court taking note of the rate of interest on the term deposits paid by the nationalized banks, award the interest at 6% p.a on the compensation amount payable from the date of petition, till payment is made.

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2 2018 ACJ 2782

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(f) Thus, the claimants would be entitled to

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modified compensation on the following heads:

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Particulars	Amount (in Rs.)
Loss of dependency	13,00,000/-
Loss of estate	16,500/-
Transportation of dead body and funeral expenses	16,500/-
Loss of consortium (Rs.44,000/- each	88,000/-
to claimants No.1 and 2)
Total	14,21,000/-

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Thus, the claimants would be entitled to total

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compensation of Rs.14,21,000/- as against Rs.13,99,948/- awarded by the Tribunal.

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Hence, we proceed to pass the following:

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ORDER

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i. Both the appeals are allowed in part .

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ii. The impugned judgment & award passed by Tribunal is modified to an extent that the claimants would be entitled to total compensation of Rs.14,21,000/- as against Rs.13,99,948/- awarded by the Tribunal.

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iii. The entire compensation shall carry interest at the rate of 6% per annum from the date of petition till date of payment.

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iv. Insurance company shall deposit the entire compensation amount with accrued interest before the Tribunal within a period of six weeks from the date of receipt of certified copy of this judgment.

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