SHRI. SUDHEER v. SHRI. PRAKASH

Judgment

1. SHRI. PRAKASH S/O. BASAPPA KATTIMANI, AGE 50 YEARS, OCC. BUSINESS, - 2 - NC: 2024:KHC-D:17573-DB MFA No. 101956 of 2024 C/W MFA No. 102527 of 2023 MFA No. 102533 of 2023 AND 1 OTHER R/O. #44, KYASANOR, CHIKAUNSHI HOSUR, TQ. HANGAL, DIST. HAVERI-581104.

2. THE SHRI RAM GENERAL INSURANCE COMPANY LTD, E-8, EPIP, SITAPURA INDUSTRIAL AREA, JAIPUR, RAJASTAN-302622. RESPONDENTS (BY SRI. SUBHASH J. BADDI, ADV. FOR R2; NOTICE TO R1 SERVED) THIS MFA IS FILED U/S.173(1) OF MV ACT, 1988, PRAYING TO THE IMPUGNED JUDGMENT AND AWARD DATED 01.03.2023 PASSED IN MVC NO.149/2017 BY SENIOR CIVIL JUDGE AND ADDL. MACT, SIRSI, WHEREIN THE CLAIM PETITION FILED BY THE APPELLANTS IS PARTLY ALLOWED BY AWARDING COMPENSATION OF RS.7,46,000/- WITH 6% INTEREST PER ANNUM BE KINDLY MODIFYING BY ENHANCING THE CLAIM COMPENSATION TO RS. 50,00,000/- WITH INTEREST @ 8% PER ANNUM FROM THE DATE OF PETITION, TILL THE DATE OF PAYMENT, BY HOLDING RESPONDENTS NO.1 & 2 HEREIN AS JOINTLY AND SEVERALLY LIABLE TO PAY THE SAID COMPENSATION TO THE APPELLANTS HEREIN, BY ALLOWING THIS APPEAL, WITH COSTS, IN THE INTEREST OF JUSTICE AND EQUITY. IN MFA NO.102527 OF 2023 BETWEEN SHRIRAM GENERAL INSURANCE CO. LTD, E.8, EPIP, SITAPURA INDUSTRIAL AREA, JAIPUR, RAJASTHAN-302622, NOW REPTD. BY ITS AUTHORIZED SIGNATORY. (BY SRI. SUBHASH J. BADDI, ADVOCATE) AND ...APPELLANT

1. SUDHEER SURESH KINI, AGE. 46 YEARS, R/O. ITAGI, SIDDAPUR (N.K)-581322.

2. PRAKASH BASAPPA KATTIMANI, #44, KYASANOR, CHIKKAUNSHI HOSUR, HANAGAL-581104. (BY SRI. SANJAY S. KATAGERI, ADV. FOR R1; NOTICE TO R2 SERVED) RESPONDENTS - 3 - NC: 2024:KHC-D:17573-DB MFA No. 101956 of 2024 C/W MFA No. 102527 of 2023 MFA No. 102533 of 2023 AND 1 OTHER THIS MFA IS FILED U/S.173(1) OF MV ACT, 1988, PRAYING TO CALL THE RECORDS, HEAR THE PARTIES, AND ALLOW THE APPEAL AS PRAYED FOR BY SETTING ASIDE THE JUDGMENT AND AWARD DATED 01.03.2023 PASSED BY SENIOR CIVIL JUDGE AND ADDL. M.A.C.T, SIRSI IN MVC NO.148/2017, WITH COST IN THE INTEREST OF JUSTICE AND EQUITY. IN MFA NO 102533 OF 2023 BETWEEN

SHRIRAM GENERAL INSURANCE CO. LTD, E-8, EPIP, SITAPURA INDUSTRIAL AREA, JAIPUR, RAJASTAN-302622. NOW REPRESENTED BY ITS AUTHORISED SIGNATORY. (BY SRI. SUBHASH J. BADDI, ADVOCATE) ...APPELLANT AND

2. SUDHEER SURESH KINI, AGE. 46 YEARS. POOJA SUDHEER KINI, AGE. 15 YEARS, OCC. STUDENT.

3. UPENDRA SUDHEER KINI, AGE. 9 YEARS, RESPONDENT NO.2 & 3 ARE MINORS, REP. BY NEXT FRIEND FATHER RESPONDENT NO.1, ALL ARE R/O. ITAGI, SIDDAPUR (N.K)-581322.

4. PRAKASH BASAPPA KATTIMANI, #44, KYASANOR, CHIKKAUNSHI HOSUR, HANAGAL-581104. (BY SRI. SANJAY S. KATAGERI, ADV. FOR R1; NOTICE TO R4 SERVED; R2 & R3 ARE MINORS REP. BY R1) RESPONDENTS THIS MFA IS FILED U/S.173(1) OF MV ACT, 1988, PRAYING TO CALL THE RECORDS, HEAR THE PARTIES, AND ALLOW THE APPEAL AS PRAYED FOR BY SETTING ASIDE THE JUDGMENT AND AWARD DATED 01.03.2023 PASSED BY THE SENIOR CIVIL JUDGE AND ADDL. MACT, SIRSI IN MVC NO.149/2017, WITH COST IN THE INTEREST OF JUSTICE AND EQUITY. - 4 - NC: 2024:KHC-D:17573-DB MFA No. 101956 of 2024 C/W MFA No. 102527 of 2023 MFA No. 102533 of 2023 AND 1 OTHER IN MFA NO 101954 OF 2024 BETWEEN SHRI. SUDHEER S/O. SURESH KINI, AGE. 47 YEARS, OCC. GROCERY SHOP, (NOW ALMOST NIL), R/O.ITAGI, TQ.SIDDAPUR, DIST. UTTARA KANNADA, PIN CODE. 581322. (BY SRI. SANJAY S. KATAGERI, ADVOCATE) AND

1. SHRI PRAKASH S/O. BASAPPA KATTIMANI, AGE. 50 YEARS, OCC. BUSINESS, R/O. #44, KYASANOR, CHIKAUNSHI HOSUR, TQ.HANGAL, DIST. HAVERI, PIN CODE-581104. (OWNER OF THE BOLERO JEEP). ...APPELLANT

2. THE SHRIRAM GENERAL INSURANCE COMPANY LTD, E-8, EPIP, SITAPUR INDUSTRIAL AREA, JAIPUR, RAJASTAN-302622, (INSURER OF THE BOLERO JEEP). (BY SRI. SUBHASH J. BADDI, ADV. FOR R2; NOTICE TO R1 SERVED) RESPONDENTS THIS MFA IS FILED U/S. 173(1) OF MV ACT, 1988, PRAYING TO THE JUDGMENT AND AWARD DATED 01.03.2023 PASSED IN MVC NO.148/2017 BY THE LEARNED SENIOR CIVIL JUDGE AND ADDL. MACT, SIRSI, WHEREIN THE CLAIM PETITION FILED BY THE APPELLANT HEREIN IS PARTLY ALLOWED BY AWARDING COMPENSATION OF RS.8,95,241/- WITH INTEREST 6% PER ANNUM BE KINDLY MODIFYING BY ENHANCING TO RS.30,00,000/- WITH INTEREST @ 8% PER ANNUM FROM THE DATE OF PETITION, TILL THE DATE OF PAYMENT, BY HOLDING RESPONDENTS NO.1 & 2 HEREIN AS JOINTLY AND SEVERALLY LIABLE TO PAY THE SAID COMPENSATION TO THE APPELLANTS HEREIN, BY ALLOWING THIS APPEAL, WITH COSTS, IN THE INTEREST OF JUSTICE AND EQUITY. THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 22.11.2024, COMING ON FOR PRONOUNCEMENT, THIS DAY, VENKATESH NAIK T J., DELIVERED THE FOLLOWING: - 5 - NC: 2024:KHC-D:17573-DB MFA No. 101956 of 2024 C/W MFA No. 102527 of 2023 MFA No. 102533 of 2023 AND 1 OTHER CORAM: THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD AND THE HON'BLE MR. JUSTICE VENKATESH NAIK T CAV JUDGMENT (PER: THE HON'BLE MR. JUSTICE VENKATESH NAIK T) These appeals are arising out of common judgment and award dated 01.03.2023 passed by the learned Senior Civil Judge and Additional MACT, Sirsi1 in MVC Nos.148/2017 and 149/2017, whereby the Tribunal granted compensation of Rs.8,95,241/- in MVC No.148/2017 & Rs.7,46,000/- in MVC No.149/2017 with interest at the rate of 6% per annum from the date of petitions till the date of realization and saddled entire liability on the insurance company to pay compensation to the claimants.

2. MFA No.102527/2023 & MFA No.102533/2023 are filed by the Insurance Company of the offending vehicle challenging the quantum of compensation as well as saddling of entire liability on it. Whereas, MFA No.101954/2024 & MFA No.101956/2024 are filed by claimants seeking enhancement of compensation awarded by the Tribunal. 1 ‘Tribunal’, for short - 6 - NC: 2024:KHC-D:17573-DB MFA No. 101956 of 2024 C/W MFA No. 102527 of 2023 MFA No. 102533 of 2023 AND 1 OTHER

3. For the sake of convenience, the parties are referred to as per their rankings before the Tribunal.

4. Brief facts of the claimants’ case before the Tribunal are as under: The claimants filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 before the Tribunal on the ground that the claimant in MVC No.148/2017 is the husband of deceased Sangeeta @ Sandhya Sudheer Kini and the claimants in MVC No.149/2017 are husband and children of the deceased seeking compensation on account of death of Sangeeta @ Sandhya Sudheer Kini and for the injuries sustained by Sudheer Kini, in a road traffic accident that occurred on

23.11.2016 at about 18.45 hours, when the claimant Sudheer Kini & deceased Sangeeta were proceeding on Luna bearing registration No.KA-31/X-6764. When they reached near Marikamba circle in Bilgi, at that time, one Mahindra Bolero Maxi Truck bearing registration No.KA-17-C-1092 driven by its driver, came from opposite direction from Kumta to Siddapur side in high speed, rash and negligent manner and dashed to the Luna and caused accident. As a result, the rider Sudheer - 7 - NC: 2024:KHC-D:17573-DB MFA No. 101956 of 2024 C/W MFA No. 102527 of 2023 MFA No. 102533 of 2023 AND 1 OTHER Kini sustained severe injuries and pillion rider Sangeeta succumbed to the injuries on the way to hospital.

5. The Tribunal considering the evidence on record at Exs.P1 to P26, Exs.R1 to R4 and oral evidence of PW1 to PW3 and RW1 to RW3, granted total compensation of Rs.8,95,241/- in MVC No.148/2017 & Rs.7,46,000/- in MVC No.149/2017 with interest at the rate of 6% per annum from the date of petitions till the date of realization and saddled entire liability on the insurance company to pay compensation to the claimants.

6. Learned counsel for the Insurance Company would submit that the Tribunal has not appreciated the oral and documentary evidence placed before it in a right prospective. The police have filed charge sheet against driver Aditya under Sections 3 and 181 of the MV Act, 1988 and Sections 279 and 338 and 304A of IPC. Thus, the driver of the offending vehicle was not possessing valid and effective driving license to drive the vehicle. It shows that the owner of the offending vehicle permitted the driver to drive the vehicle, who did not possess driving license, however, the Tribunal relying on the decision of the Hon’ble Apex Court in the case of National Insurance - 8 - NC: 2024:KHC-D:17573-DB MFA No. 101956 of 2024 C/W MFA No. 102527 of 2023 MFA No. 102533 of 2023 AND 1 OTHER Company Limited Vs Swaran Singh & Others2, saddled liability on the company to pay compensation.

7. Thirdly, it is contended that the author of Disability Certificate while assessing disability has exorbitantly given at

43.05%, which is on the higher side. PW3 has not at all referred gazette notification while issuing disability to the claimant/injured, therefore, disability assessed by PW3 is not in accordance with WHO or ALIMCO manual. The Tribunal without considering the nature of injuries considered 25% disability to the whole body of the claimant. The compensation awarded under other heads such as, pain and suffering, conveyance, food, nourishment, loss of income during laid-up period, loss of amenities are high and exorbitant one.

8. Fourthly, the counsel contended that the Tribunal has awarded Rs.1,00,000/- towards loss of love and affection and Rs.40,000/- towards loss of consortium to the legal representatives of the deceased Sangeeta, which is high and exorbitant one. Lastly, the counsel contended that the accident is of the year 2016, in the absence of proof of income of the 2 AIR 2004 SC 1531 - 9 - NC: 2024:KHC-D:17573-DB MFA No. 101956 of 2024 C/W MFA No. 102527 of 2023 MFA No. 102533 of 2023 AND 1 OTHER deceased, notional income would be assessed at Rs.8,750/- per month, but the Tribunal without material on record assessed the notional income of the deceased at Rs.9,000/- per month, which is on higher side and same has to be reduced to Rs.8,750/- per month. Learned counsel relied upon following decisions: a) Balu Krishna Chavan Vs The Reliance General Insurance Company Limited & Others3; b) Ashok S/o Ramu Koravi Vs. Yamanappa & Another4; c) Shamanna Vs. Oriental Insurance Co. Ltd.5 d) Smt. Adilakshmamma & Others Vs. Sri. Raju & Another6; e) M/s Shriram General Insurance Co. Ltd. Vs. Mrs. Sunita @ Nagaveni & Others7; f) Pappu Vs. Vinod Kumar Lamba8 Hence, he prayed to allow the appeals filed by the Insurance Company and dismiss the appeals filed by the claimants. ORDER a) MFA No.102527/2023 & MFA No.102533/2023 filed by Insurance Company are partly allowed. 12 2018 (18) SCC 130 - 23 - NC: 2024:KHC-D:17573-DB MFA No. 101956 of 2024 C/W MFA No. 102527 of 2023 MFA No. 102533 of 2023 AND 1 OTHER b) MFA No.101954/2024 claimant/injured is dismissed. The impugned judgment and award of the Tribunal in MVC No.148/2017 insofar as injured Sudheer Kini is concerned, is confirmed. c) MFA No.101956/2024 filed by the claimants is allowed in part. d) The impugned judgment and award of the Tribunal in MVC No.149/2017 is modified to an extent that the claimants are entitled to total compensation of Rs.17,18,000/- as against Rs.7,46,000/- awarded by Tribunal. e) The enhanced compensation amount shall carry interest at the rate of 6% per annum from the date of petition till realization. f) The appellant/Insurance Company deposit the enhanced compensation amount with accrued interest before the Tribunal within six weeks from the date of receipt of copy of this judgment. g) It is made clear that the appellant/Insurance Company in both cases shall pay the entire compensation with accrued interest, as stated above, and then recover the same from the owner of the offending vehicle. h) The amount in deposit, if any, be transmitted to the Tribunal forthwith along with TCR. - 24 - NC: 2024:KHC-D:17573-DB MFA No. 101956 of 2024 C/W MFA No. 102527 of 2023 MFA No. 102533 of 2023 AND 1 OTHER i) It is made clear that the claimants in respective cases are not entitled to interest on the enhanced compensation amount for the delayed period in filing the appeals. j) Draw modified award accordingly. k) Registry is directed to send a copy of this judgment to the Tribunal forthwith. l) No order as to costs. Sd/- (H.T.NARENDRA PRASAD) JUDGE Sd/- (VENKATESH NAIK T) JUDGE JTR ct/an