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2021 DIGILAW 624 (KAR)

Rihanabanu v. Gangappa D. Rahut

2021-06-01

ASHOK G.NIJAGANNAVAR

body2021
JUDGMENT : ASHOK G. NIJAGANNAVAR, J. 1. Though these appeals are listed for admission, with the consent of the learned counsel for the parties, arguments are heard for final disposal. 2. MFA No. 25046/2012 is filed by the legal representatives of deceased victim, while MFA No. 20593/2012 is filed by the insurance company. Both are assailing the judgment and award dated 03.03.2011 passed by the Senior Civil Judge and Additional MACT, Bailhongal in MVC No. 2608/2007. 3. At this stage it may be stated that both the insurance company has assailed on the question of quantum of liability, while the claimants have sought for enhancement of compensation. 4. For the sake of convenience, the parties are referred in terms of their status and ranking before the tribunal. 5. The facts briefly stated are that on 30.04.2007 evening at about 6.00 p.m. when the deceased-victim Noorahammad Sutagatti was travailing as a pillion rider on motorcycle bearing registration No. KA-25/W-221 on Kittur Bailur road near KRCR school, a Tata Goods vehicle No. KA-24/3871 came in rash and negligent manner and dashed to the motorcycle. As a result of which, the pillion rider Noorahammad Sutagatti sustained grievous injuries. He was taken to PHC kittur, KIMS Hubli, Sushruta Multispecialty hospital and Research Centre, Hubli, hospital situated at Belgaum and Hirebagewadi for treatment. On account of injuries sustained in the accident, said Noorahammad was under continuous treatment, later on 04.04.2008 the injured victim died because of the injuries sustained in the accident. The respondents being owner and insurer of the offending vehicle are liable to pay the compensation. 6. On service of notice, respondent No. 1 remained absent and respondent No. 2 insurance company has appeared and contested the claim petition. 7. On the basis of rival pleadings, the tribunal has framed the following issues: 1. Whether the petitioners prove that on 30/04/2007 at about 18-00 hours on Kittur-Bailur road, near KRCR school Kittur, within the limits of Kittur Police station, in view of negligence use of a Goods Vehicle No. KA 24/3871 an accident took place resulting in the injuries to Noorahammad Sutagatti? 2. Whether the petitioners prove that the death of Noorahammad Sutagatti was the consequence of the injuries suffered in the accident dated 30/04/2007? 3. Whether the petitioners are entitle for compensation? If so at what extent and from whom? 4. What order? 8. 2. Whether the petitioners prove that the death of Noorahammad Sutagatti was the consequence of the injuries suffered in the accident dated 30/04/2007? 3. Whether the petitioners are entitle for compensation? If so at what extent and from whom? 4. What order? 8. On appreciating the oral and documentary evidence placed on record, the tribunal has come to the conclusion that the accident was due to rash and negligent driving of the driver of the Goods vehicle bearing registration No. KA-24/3871 and has awarded a compensation of Rs. 6,76,000/- along with interest @ 6% p.a. directing respondent No. 2 to pay the compensation. 9. Being aggrieved by the judgment and award passed by the tribunal the insurance company has preferred the appeal challenging the liability, while the claimants have preferred the appeal for enhancement of compensation. 10. Heard the learned counsel for the appellant and respondents. Perused the judgment and award passed by the tribunal and other records. 11. Learned counsel for the appellant-insurance company in MFA No. 20593/2012 would contend that the tribunal has committed an error in fastening the liability on the Insurance company even though the driver of the vehicle had no valid licence to drive the vehicle involved in the accident and the vehicle had no valid permit. The tribunal has failed to consider that there was no nexus between the injury caused in the accident and death of the deceased. The ratio laid down by the Hon'ble Apex Court has not been properly considered. 12. Per contra, learned counsel for the respondents-claimants who are appellants in MFA No. 25046/2012 submits that the respondent-Insurance company having satisfied the claim of the rider of the motorcycle is estopped from taking up a defence that the driver of the vehicle had no valid licence to drive the vehicle or there was no valid permit for the vehicle as on the date of accident. 13. Further it is submitted that the tribunal has rightly come to the conclusion that the accident was due to rash and negligent driving of the driver of the vehicle, the amount of compensation awarded under different heads is proper and justified. But, the tribunal has failed to consider future prospects of 10% under the head of loss of dependency. As such, there are valid grounds to enhance the compensation under the said head. But, the tribunal has failed to consider future prospects of 10% under the head of loss of dependency. As such, there are valid grounds to enhance the compensation under the said head. The compensation has to be awarded to the legal representatives of the deceased as per ratio laid down by the Hon'ble Apex Court in the case of "Magma General Insurance Co. Ltd., V/s. Nanu Ram and Others" 14. Having heard the submissions of both the learned counsel, the points that would arise for consideration are: 1. Whether the compensation awarded by the tribunal needs modification? In other words, whether the claimants are entitled for additional compensation? 2. Whether the finding given by the tribunal holding the respondent-company is liable to pay the compensation is proper and justified? 3. What order? 15. It is an admitted fact that on 30.04.2007 at about 6.00 p.m. there was an accident caused by the driver of the goods vehicle bearing No. KA-24/3871 and due to the said accident, the pillion rider has sustained grievous injuries. On appreciating the oral and documentary evidence placed on record, the tribunal has come to the conclusion that the accident was due to rash and negligent driving of the driver of the goods vehicle and has further held that in view of the settlement of the claim of the rider of the motorcycle by the insurance company, the defence taken up by the insurance company that the driver had no valid licence and there was no permit for the vehicle involved in the accident, does not hold good. The reasoning assigned by the tribunal in fastening the liability on the insurance company, is proper and justified. 16. As far as quantum of compensation awarded by the tribunal is concerned, the only grievance of the claimants is that, the tribunal has failed to award the compensation towards future prospects and consortium as per the ratio laid down by the Apex Court in Magma's case. In the present case, the petitioner-injured victim was under continuous treatment from the date of accident in several hospitals. Later on he died on 04.04.2008. The tribunal has fixed the notional income of the deceased at Rs. 4,000/- and has deducted 1/4th amount towards personal expenses and has taken the contribution to the family as Rs. 3,000/- per month. In the present case, the petitioner-injured victim was under continuous treatment from the date of accident in several hospitals. Later on he died on 04.04.2008. The tribunal has fixed the notional income of the deceased at Rs. 4,000/- and has deducted 1/4th amount towards personal expenses and has taken the contribution to the family as Rs. 3,000/- per month. It is pertinent to note that after the death of the injured victim, there are only three dependants. Under these circumstances, the deduction in respect of contribution to his family would be 1/3rd instead of 1/4th. The notional income is taken at Rs. 4,000/- and 10% is added towards future prospects. Hence, the notional income would be Rs. 4,400/-. If 1/3rd is deducted, it will come to Rs. 2933/-. The amount that would have been contributed to the family would be Rs. 2,933. Admittedly, the deceased was aged about 55 years, hence, the multiplier would be 11. As per necessary calculation: Rs. 4,400X12X11X2/3=3,87,200/-. Thus, the total compensation to be awarded under the head of loss of dependency would Rs. 3,87,200/- 17. The tribunal has awarded the compensation under different heads as detailed below: Sl.No. Particulars Amount 1 Loss of dependency 3,96,000/- 2 Attendant and conveyance expenses 60,000/- 3 Medicine and hospital charges 1,60,000/- 4 Loss of Estate 15,000/- 5 Loss of love and affection 15,000/- 6 Loss of consortium 15,000/- 7 Funeral and obsequies 15,000/- Total 6,76,000/- 18. In the instant case, the compensation awarded by the tribunal towards attendant charges, conveyance charges, medicine and hospital charges, funeral and obsequies is proper and justified. In view of the ratio laid down in Magma's case, the claimants shall have to be compensated by awarding consortium. In the present case, claimant Nos. 1 to 3 are wife and two children and in view of the dictum laid down in the Magma's case, the wife would be entitled to Rs. 40,000/- and both children would be at Rs. 40,000/- each towards consortium. 19. Hence for the foregoing reasons, the total reassessed compensation is as under: Sl.No. Particulars Amount 1 Loss of dependency 4400x12x11 3,87,200/- 2 Attendant and conveyance expenses 60,000/- 3 Medicine and hospital charges 1,60,000/- 4 Loss of Estate 15,000/- 5 Loss of consortium 40,000x3 120,000/- 6 Funeral and obsequies 15,000/- Total 7,57,000/- 20. Thus, the claimants are entitled for a total compensation of Rs. 7,57,200/- as against Rs. Thus, the claimants are entitled for a total compensation of Rs. 7,57,200/- as against Rs. 6,76,000/- awarded by the tribunal with interest @ 6% p.a. from the date of petition till realization. 21. For the foregoing reasons, the appeal preferred by the appellant-Insurance company in MFA No. 20593/2012 is dismissed. The appeal filed by the claimants in MFA No. 25046/2012 is allowed in part. 22. The judgment and award passed by the Senior Civil Judge and AMACT, Bailhongal in MVC No. 2608/2007 is modified holding that the claimants are entitled to a total compensation of Rs. 7,57,200/- as against Rs. 6,76,000/- awarded by the tribunal along with interest @ 6% p.a. from the date of petition till realization. 23. Out of compensation awarded to the claimants, 50% of the award amount shall be apportioned to the wife and 25% each shall be apportioned to the children. 24. Out of 50% of the compensation amount allotted to the share of claimant-wife, 25% of the amount shall be kept in fixed deposit in any nationalized bank for a period of three years and the claimant is entitled periodical interest accrued therein and remaining 25% of the award amount shall be released in her favour. The entire share of the compensation awarded in respect of children shall be released in their favour on proper identification. The amount in deposit before this court shall be transmitted to the tribunal forthwith. Parties to bear their own costs.