IN the HIGH COURT of KARNATAKA CIRCUIT BENCH at DHARWAD Dated This the 7Th Day of August 2012 Present the HON'ble MR.JUSTICE N
Total Page：16
File Type：pdf, Size：1020Kb
: 1 : IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD Dated this the 7 th day of August 2012 Present THE HON’BLE MR.JUSTICE N.KUMAR And THE HON’BLE MR.JUSTICE H.S.KEMPANNA M.F.A NO.524/2006 C/W M.F.A NO.510/2006 C/W MFA.CR.OB NO.229/2007 IN M.F.A NO.510/2006 In M.F.A No.524/2006: Between: The New India Assurance Co. Ltd., Divisional Office, Belgaum, Through Regional Office, P. Kalinga Rao Road, Bangalore-27. By duly constituted Attorney. …Appellant (By Sri. V.R Datar, Advocate) A n d : : 2 : 1. Kamalawwa W/o. Dundappa Kumbhar, Age: 38 Years. 2. Shruthi D/o. Dundappa Kumbhar, Age: 14 Years. Respondent No.2 minor Rep. By Mother Respondent No.1. (R2 since attained majority, guardian discharged vide order dated 7.8.2012) All are R/o. C/o. Basavanni Monappa Kumbhar, Baher Galli, Kangarali B.K., Belgaum. 3. Mallappa Basavanthappa Dappadali, Major in Age, R/o. Shirahatti, B.K. Hukkeri. …Respondents (By Sri. S.R Shinde for R.1, R.3 is served) This appeal is filed under Section 173(1) of MV Act against the judgment and award dated 31/8/05 passed in MVC No.548/2000 on the file of II Addl. District Judge & Member, MACT-III, Court of Sessions Judge, Belgaum, awarding a compensation of Rs.5,39,000/- with interest at 6% P.A from the date of petition till payment. : 3 : In M.F.A No.510/2006: Between: The New India Assurance Co. Ltd., Divisional Office, Belgaum, Through Regional Office, P. Kalinga Rao Road, Bangalore-27. By duly constituted Attorney. …Appellant (By Sri. V.R Datar, Advocate) A n d : 1. Awwekka @ Mahadevi W/o. Dundappa Kumbhar, Age: 54 Years. 2. Saroja W/o. Shivalinga Kumbhar, Age: 32 Years. 3. Parvati D/o. Dundappa Kumbhar, Age: 45 Years. All are R/o. Kamatanur Village, Hukkeri. 4. Mallappa Basavanthappa Dappadali, Major in Age, R/o. Shirahatti, B.K. Hukkeri. …Respondents : 4 : (By Sri. Mrutyunjaya Tata Bangi, Adv., for R.1 & R.2, R.3 & 4 are served) This appeal is filed under Section 173(1) of MV Act against the judgment and award dated 31.08.05 passed in MVC No.341/2000 on the file of II Addl. District Judge & Member, MACT-III, Court of Sessions Judge, Belgaum, awarding a compensation of Rs.5,39,000/- with interest at 6% P.A from the date of petition till payment. In M.F.A Cr.Ob No.229/2007 In M.F.A No.510/2006: Between: Smt. Awwakka @ Mahadevi W/o. Dundappa Kumbar, Age: 55 Years, R/at Kamatnur, Tq: Hukeri, Dist: Belgaum. … Cross Objector (By Sri. Rajashekar Pasappagol for Sri. Mrutyunjaya Tata Bangi, Advocates) And: 1. The Divisional Manager, The New India Assurance Co.Ltd., Divisional Office, Club Road, Belgaum. 2. Mallappa Basavantappa Dappadalli, Age: 50 Years, R/at: Shirhatti B.K, Tq: Hukeri, Dist: Belgaum. … Respondents : 5 : This Cross Objection is filed praying to enhance the compensation being awarded in favour of cross objector by allowing the present cross objection filed in MFA No.510/2006 filed against the judgment and award passed by II-Addl. District Judge and Member of M.A.C.T-III, Belgaum passed in MVC No.341/2000 dated 31.08.2005. These appeals and Cross Objection coming on for orders this day, N.Kumar J, delivered the following: JUDGMENT These two appeals and the cross objection arise out of a common order passed on petitions filed by two wives and daughters claiming compensation for the death of their husband/father. 2. For the purpose of convenience, the parties are referred to as they are referred to in the original proceedings. 3. The first claimant-Awwakka in MVC No. 341/2000 is the wife and claimants 2 and 3 Saroja and : 6 : Parvati are the daughters of the deceased Sri Dundappa Kumbhar. Kamalavva-first claimant in MVC No. 548/2000 is the wife and the second claimant Shruti is the daughter of the said Dundappa Kumbhar. On 14.4.1999 when deceased Dundappa was proceeding on his Bajaj M-80 from Kamatnur Village towards Sankeshwar Sugar Factory, when he came near the main gate of Hire Sugar Factory, a truck bearing No. MEH 7779 came from the opposite direction on P.B. Road driven by its driver in a rash and negligent manner and dashed to the motor cycle. On account of the accident Dundappa sustained grievous injuries and later succumbed to the injuries. The jurisdictional police registered a case against the driver of the truck for rash and negligent driving. The deceased Dundappa was working as a Boiler Supervisor in Hire Sugar Factory and was getting a salary of Rs.4,900/- per month. He was also getting bonus, leave salary and incentives. The case of the claimants was he was also : 7 : getting income from agriculture. Therefore, they filed the claim petitions claiming compensation. 4. After service of notice, the respondents entered appearance. The first respondent is the driver, second respondent is the owner of the truck and the third respondent is the insurer. The driver and the owner did not contest the claim petitions. It is only the insurance company which filed objections. They did not dispute the accident nor the insurance coverage to the truck in question. But, they denied all other allegations. They denied their liability to pay the compensation. 5. On the aforesaid pleadings, the Tribunal framed the following issues for consideration :- 1. Whether petitioners prove that the deceased Dundappa Shankar Kumbhar died due to injuries sustained by him in motor vehicle accident that occurred by : 8 : truck bearing No. MEH.7779 on 14.4.99 at about 5.30 hours, in front of main gate of Hire Sugar Factory, Sankeshwar and within the jurisdiction of Sankeshwar P.S? 2. Whether petitioners prove that the accident in question was occurred due to rash and negligent driving of truck bearing No. MEH.7779 by the driver/1 st respondent? 3. If so, what is the quantum of compensation payable and from whom payable? 6. The first petitioner in MVC No. 548/2000 was examined as PW1 and first petitioner in MVC No. 341/2000 was examined as PW2. 14 documents on behalf of the claimants were produced which are marked as Exs. P1 to P14. No oral evidence was adduced on behalf of the respondents. However, they produced 3 documents which are marked as Exs. R1 to R3. : 9 : 7. After hearing the learned counsel for the parties and taking into consideration the material on record, the Tribunal held that the accident was on account of the rash and negligent driving by the driver of the truck in question and thus the claimants in both the petitions have established actionable negligence. It took note of the fact that the deceased was aged about 54 years, he was getting a salary of Rs.5,350/- per month which is evidenced by Ex.P10-the salary certificate. It deducted Rs.100/- towards professional tax and took the income of the deceased as Rs.5,250/- per month. It deducted 1/3 rd towards personal expenses of the deceased and took the income as Rs.4,000/- per month. As he was aged 54 years, it applied the multiplier of 11 and awarded a sum of Rs.5,28,000/- under the heading loss of dependency. However, it awarded a sum of Rs.5,000/- towards consortium, Rs.3,000/- towards loss of love and affection and Rs.3,000/- towards funeral expenses. : 10 : Thus, it awarded a sum of Rs.5,39,000/- as compensation. 8. The Tribunal did not recognize the status of the first claimant in MVC No. 548/2000 rightly, as admittedly she was the second wife. But, her daughter even though she is an illegitimate child, she has been treated on par with the legitimate children who are petitioners in the other case and thus it has proceeded to apportion the amount of compensation awarded, equally. Aggrieved by the said award of the Tribunal, the insurance company has preferred two appeals. The claimants have also preferred cross objection which is numbered as MFA Crob No. 229/2007. 9. We have heard the learned counsel appearing for the parties. : 11 : 10. Therefore, the point that arise for our consideration is, Whether the amount of compensation awarded is excessive as contended by the insurance company and requires to be reduced or whether a case for enhancement is made out as contended in the cross objections? 11. The facts are not in dispute. Deceased was aged about 54 years. He was working as a Boiler Supervisor and was earning Rs.5,350/- which is evident from Ex.P10-the salary certificate. He died in a motor vehicle accident. The Tribunal has recorded a finding that the death was on account of the motor vehicle accident and the driver of the truck was negligent and thus claimants have established actionable negligence. : 12 : The said finding is not challenged and therefore it has attained finality. 12. In so far as the quantum of compensation is concerned, out of the salary of Rs.5,350/-, Rs.100/- is deducted towards professional tax. The grievance is, it is the net salary received by the deceased which should have been taken into consideration and not the gross salary. 13. That is not the law. The only amounts which are liable to be deducted from the gross salary are the amounts paid towards income tax and professional tax.