IN THE HIGH COURT OF DHARWAD BENCH

DATED THIS THE 18 th DAY OF JUNE 2019

PRESENT

THE HON’BLE MR.JUSTICE B.A.PATIL

AND

THE HON’BLE MR. JUSTICE BELLUNKE A.S

MISCELLANEOUS FIRST APPEAL NO.100775 OF 2015 C/W MISCELLANEOUS FIRST APPEAL NO.102507 OF 2015 (MV)

IN MFA NO.100775 OF 2015 BETWEEN:

NEW INDIA ASSURANCE CO.LTD., BY ITS DIVISIONAL MANAGER, CLUB ROAD, BELAGAVI, HEREIN REPRESENTED BY, NEW INDIA ASSURANCE CO.LTD., REGIONAL OFFICE, MOTOR THIRD PARTY HUB OFFICE, SRINATH COMPLEX, 2ND FLOOR, NEW COTTON MARKET, HUBLI-580029, REPRESENTED BY ITS DULY CONSTITUTED ATTORNEY. ... APPELLANT (By Sri. R.R. MANE, ADVOCATE)

AND:

1. RUKMAVVA W/O KALLAPPA BELKUD, AGE: ABOUT 44 YEARS, OCC: HOUSEHOLD, 2

R/O: B.K., TQ: , DIST: BELGAVI.

2. MAHANTESH KALLAPPA BELKUD AGE: ABOUT 28 YEARS, OCC: AGRICULTURE, R/O: SHIRAHATTI B.K., TQ: HUKKERI, DIST: BELAGAVI.

3. SUNIL KAOLAPPA BELKUD AGE: ABOUT 25 YEARS, OCC: AGRICULTURE, R/O: SHIRAHATTI B.K., TQ: HUKKERI, DIST: BELAGAVI.

4. ANIL KALLAPPA BELKUD AGE: ABOUT 23 YEARS, OCC: AGRICULTURE, R/O: SHIRAHATTI B.K., TQ: HUKKERI, DIST: BELAGAVI.

5. SHIDRAM RAMAPPA BELKUD AGE: ABOUT 73 YEARS, OCC: NIL, R/O: SHIRAHATTI B.K., TQ: HUKKERI, DIST: BELAGAVI.

6. GANGAVVA W/O SHIDRAM BELKUD AGE: ABOUT 68 YEARS, OCC: NIL, R/O: SHIRAHATTI B.K., TQ: HUKKERI, DIST: BELAGAVI.

7. RANGAPPA KALLAPPA JANAMATTI AGE: MAJOR, OCC: BUSINESS, R/O: TOGANASHI, TQ: BADAMI, DIST: BAGALKOT, (OWNER OF INDICA CAR BEARING NO.KA-25/N-16) ... RESPONDENTS (BY SRI. SANTOSH HATTIKATAGI ADV. FOR SRI. SACHIN S. 3

MAGADUM, ADV. FOR R1-R6. NOTICE TO RESPONDENT NO.7 DISPENSED WITH.)

THIS MFA IS FILED U/S.173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT & AWARD DATED:22.12.2014, PASSED IN MVC.NO.2898/2012 ON THE FILE OF THE MEMBER ADDITIONAL MOTOR ACCIDENT CLAIM TRIBUNAL HUKKERI, AWARDING COMPENSATION OF Rs.22,68,460/- ALONG WITH INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.

IN MFA NO.102507 OF 2015 BETWEEN

1. RUKMAVVA W/O KALLAPPA BELKUD AGE: 44 YEARS, OCC: HOUSEWIFE, R/O: SHIRAHATTI B K, TQ: HUKKERI, DIST: BELAGAVI-590 001

2. MAHANTESH S/O KALLAPPA BELKUD AGE: 28 YEARS, OCC: NIL, R/O: SHIRAHATTI B K, TQ: HUKKERI, DIST: BELAGAVI-590 001

3. SUNIL S/O KALLAPPA BELKUD AGE: 25 YEARS, OCC: NIL, R/O: SHIRAHATTI B K, TQ: HUKKERI, DIST: BELAGAVI-590 001

4. ANIL S/O KALLAPPA BELKUD AGE: 23 YEARS, OCC: NIL, R/O: SHIRAHATTI B K, TQ: HUKKERI, DIST: BELAGAVI-590 001

5. SHIDRAM S/O RAMAPPA BELKUD AGE: 73 YEARS, OCC: NIL, R/O: SHIRAHATTI B K, TQ: HUKKERI, DIST: BELAGAVI-590 001

6. GANGAVVA W/O SHIDRAM BELKUD 4

AGE: 68 YEARS, OCC: NIL, R/O: SHIRAHATTI B K, TQ: HUKKERI, DIST: BELAGAVI-590 001 ... APPELLANTS (By Sri. SANTOSH HATTIKATAGI, ADV. FOR SRI. SACHIN S MAGADUM, ADV. )

AND:

1. RANGAPPA S/O KALLAPPA JANAMATTI AGE: MAJOR, OCC: BUSINESS R/O: TOGANASHI, TQ: BADAMI, DIST: BAGALKOT, (OWNER OF INDICA CAR BEARING NO.KA-25/N-16)

2. THE DIVISION MANAGER THE NEW INDIA ASSURANCE CO. LTD., CLUB ROAD BELAGAVI (INSURER OF INDICA CAR NO.25/N-16)

... RESPONDENTS (By Smt. GEETHA K.M., ADV. FOR RESONDENT NO.1. SRI. RAVNIDRA R. MANE, ADV. FOR RESPONDENT NO.2)

THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT AGASINT THE JUDGMENT AND AWRD DATED 22.12.2014 PASED IN MVC NO.2898 OF 2012 ON THE FILE OF THE MEMBER ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, HUKKERI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR ADMISSION THIS DAY, B.A.PATIL , J., DELIVERED THE FOLLOWING:

5

JUDGMENT

Miscellaneous First Appeal No.100775 of 2015 is filed by the appellant-insurer and Miscellaneous First

Appeal No.102507 of 2015 has been filed by the appellants-claimants challenging the judgment and award dated 22.12.2014 passed by the Additional Motor

Accident Claims Tribunal, Hukkeri, in MVC No.2898 of

2012.

2. We have heard the learned counsel for the appellants and the respective respondents.

3. Brief facts of the case of the petitioners before the Court below was that on 22.09.2012 at about

2.25 pm, one Kallappa Sidram Belkud was proceeding on his motorcycle bearing registration No.KA-49/J-9569 along with a pillion rider from towards

Hukkeri. When he came near Laxmi Nagar, the driver of the car bearing registration No.KA.25/N-16 came from behind at a great speed and in a rash and negligent 6

manner and while overtaking another vehicle, lost control of his vehicle and dashed to the motorcycle on which the Kallappa Sidram Belkud was proceeding. As a result of the same, he sustained grievous injuries.

Immediately he was taken to Government Hospital,

Hukkeri and thereafter after first aid, he was shifted to

Dr. Hattarki hospital, Gadhinglaj and also to KLE

Hospital, . Subsequently, he succumbed to the injuries on 24.09.2012.

4. It is the contention of the petitioners that the deceased was aged 45 years and was doing agriculture work, contract work and vehicle business and thereby he was earning Rs.10,00,000/- and Rs.5,00,000/- each per annum respectively from the above said business and that there is loss of dependency and they have also spent amount for medical expenses and other incidental charges. Hence, the claimants have prayed to award the compensation. 7

5. After service of notice, respondent Nos.1 and

2 appeared and have filed objections contending that the alleged accident in question has taken place due to the rash and negligent act of the deceased himself and they were not negligent. It is the contention of respondent No.1 that the said vehicle has been insured with respondent No.2 and his driver was holding a valid driving licence and therefore respondent No.2 is liable to pay the compensation.

6. In order to prove the case of the petitioners, the petitioner got examined PW-1 and got marked 38 documents as Ex.P-1 to P-38. The respondents have not led any evidence and they have got produced a copy of the insurance policy and got marked as Ex.R-1

7. After hearing the learned counsel, the impugned order came to be passed. Challenging the same, both the parties are before this Court. 8

8. It is the contention of the learned counsel for the appellant-Insurer that though there is no material to show that the deceased was aged about 46 years, the

Tribunal based upon the postmortem report has came to the conclusion that the deceased was aged about 46 years and awarded the compensation. It is his further submission that no cogent evidence has been produced to show that the deceased was earning Rs.2,20,000/- per annum from different occupations. Though he was having a contract license and other documents, they are not relevant documents as on the date of the accident.

It is his further submission that the respondent Nos.2 to

4 are the major sons, they are not dependents, under such circumstances, the deduction of 1/4th is not correct. He further submitted that even the Tribunal has not properly assessed the compensation and awarded an exaggerated compensation, the same is liable to be 9

rejected. On these grounds, he prayed to allow the petition and to modify the award passed by the Tribunal.

9. Per contra, the learned counsel for the respondent-claimant vehemently submitted that the deceased was aged about 46 years, as per the postmortem report and he was doing contract business, agriculture and he was also having the vehicles. Taking into consideration the said aspect, the Tribunal after applying multiplier of 13, has awarded reasonable compensation. The Tribunal has utterly failed to take into account the position of the deceased and he was doing his contract work and agriculture and he was earning more than the income taken by the Tribunal. On these grounds, he prayed to enhance the compensation.

10. I have carefully and cautiously gone through the submissions made by the learned counsels for the parties and perused the records. 10

11. It is not in dispute that, the vehicle in question has met with an accident and it is insured with the respondent-Insurer. The only question which has been raised before this Court is with regard to the age of the deceased and the income so which has been taken.

The learned counsel for the appellant-Insurer, during the course of arguments, brought to the notice of the Court that the age of the deceased was 58 years and he has born on 01.06.1954. The learned counsel for the respondents has also not disputed the said fact. Under the said facts and circumstances, we feel it just and proper that if the age of the deceased is taken as 58, then under such circumstances, it is going to meet the ends of justice. As could be seen from the Judgment and award of the Tribunal, the Tribunal after taking into consideration the fact that the deceased was holding 12 acres of land and he was having a contract work and also having a vehicle business, in that light, the income 11

is taken at the rate of Rs.2,20,000/- per annum. But however, no income tax returns have been filed to show that he was an income tax assessee. Under such circumstances, we feel that if the income is taken at

Rs.2,00,000/- per annum, then under such circumstances, the said income appears to be just and proper. But however, as could been seen from the

Judgment and award of the Tribunal, the deceased was doing contract business and he was also having vehicles and other materials so which has been produced, no future prospectus has been awarded. Under such circumstances, by taking into consideration the age of the deceased as 58 years, he will come within the age group of 50-60. The proper future prospectus as per the case of National Insurance Company Limited Vs.

Pranay Sethi and others reported in AIR 2017 SC

5157 is 10%. In that light, if 10% of the income is added to the future prospectus, it comes to 12

Rs.2,20,000/- per annum. If 1/3rd is deducted towards the personal expenses of the deceased as the respondent Nos.2 to 4 are major sons and no other persons are dependent upon him, then under such circumstances, the income comes to Rs.1,46,667/- and the proper multiplier will be ‘9’ and in that light, the claimants are entitled to an compensation of

Rs.13,20,003/- towards loss of dependency. Apart from this, the claimants are entitled to the compensation under conventional heads. In that light, an amount of

Rs.40,000/- has been awarded towards consortium to the 1st petitioner and Rs.2,00,000/- has been awarded towards love and affection and Rs.30,000/- has been awarded towards funeral expenses and other incidental charges. Even the records shows an amount of

Rs.83,460/- has been spent towards the medical expenses. In the light of the discussions held by us above, the claimants are entitled to a total 13

compensation of Rs.16,73,463/- as against

Rs.22,68,460/- awarded by the Tribunal with 6% interest.

12. In the light of the discussions held by us above, MFA No.100775/2015 is allowed in part and the judgment and award dated 22.12.2014 passed by the

Additional MACT, Hukkeri, in MVC No.2898 of 2012 is modified as indicated above. Insofar as MFA

No.102507/2015 is concerned, the same is dismissed being devoid of merits.

13. The appellant-Insurer is directed to deposit the compensation with up to date interest within four weeks after the receipt of the certified copy of this judgment, after deducting the amount which has been already deposited. The Registry is directed to transmit the amount in deposit to the jurisdictional Tribunal. The

Tribunal is directed to disburse the amount as per the 14

apportionment of the Tribunal. The Registry is directed to draw the award accordingly.

Sd/- JUDGE

Sd/- JUDGE

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