- 1 - MFA No.101813/2018 C/W MFA No.103045/2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 22ND DAY OF MARCH, 2025 PRESENT THE HON'BLE MR. JUSTICE S G PANDIT AND THE HON'BLE MR. JUSTICE C.M. POONACHA MISCELLANEOUS FIRST APPEAL NO.101813 OF 2018 C/W MISCELLANEOUS FIRST APPEAL NO.103045 OF 2018 IN MFA NO.101813 OF 2018: BETWEEN THE NATIONAL INSURANCE CO. LTD., DIVISION-XI, GROUND FLOOR 19, R.N. MUKHARJEE ROAD KOLKATTA. WEST BENGAL, NOW REPRESENTED ITS AUTHORIZED OFFICER, ALLAMPRABHU ISHWARAPPA KUBSAD. ...APPELLANT (BY SRI. S.K. KAYAKAMATH, ADVOCATE) AND 1 . SMT. NALINI W/O. ISHWAR HARIKANTRA AGE: 29 YEARS, OCC: HOUSEWIFE, 2 . KUMAR NISHAN ISHWAR HARIKANTRA AGE: 7 YEARS, 3 . KUMARI SHRINIDHI ISHWAR HARIKANTRA AGE: 5 YEARS, 4 . SMT. JANAKI W/O. KRISHNA HARIKANTRA AGE: 62 YEARS, OCC: HOUSEWIFE, APPELLANTS NO.2 & 3 ARE MINORS REP BY THEIR NEXT FRIEND MOTHER GUARDIAN APPELLANT NO.1. ALL ARE R/O. MUDGA, AMADALLI, TQ: KARWAR. 5 . J.C.C. INFRASTRUCTURES PVT.LTD., 51, VIVEKANAND ROAD, II FLOOR, KOLKATA, DIST: KOLKATA, WEST BENGAL-700007. ASHPAK KASHIMSA MALAGALADINNI Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - MFA No.101813/2018 C/W MFA No.103045/2018 …RESPONDENTS (BY SRI. PRUTHVI K.S., ADVOCATE FOR R1 & R4; R2 & R3 ARE MINORS R/BY R1; NOTICE TO R5 IS SERVED) THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 01.01.2018 PASSED IN MVC NO.644/2016 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER, II-ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KARWAR, AWARDING COMPENSATION OF RS.56,02,440/- WITH INTEREST AT 7% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION & ETC., IN MFA NO.103045 OF 2018: BETWEEN 1 . SMT. NALINI W/O ISHWAR HARIKANTRA AGE: 29 YEARS, OCC: HOUSEWIFE, 2 . KUMAR NISHAN S/O ISHWAR HARIKANTRA AGE: 7 YEARS, 3 . KUMAR SHRINIDHI S/O ISHWAR HARIKANTRA AGE: 5 YEARS, APPELLANTS NO.2 & 3 ARE MINORS, RPTD BY THEIR MOTHER I.E. APPELLANT NO.1, SMT. NALINI W/O ISHWAR HARIKANTRA AGE: 29 YEARS, OCC: HOUSEWIFE, 4 . SMT. JANAKI W/O KRISHNA HARIKANTRA AGE: 62 YEARS, OCC: HOUSEWIFE, ALL ARE R/O: MUDGA, AMADALLI, KARWAR, TQ: KARWAR-691200, DIST: UTARA KANNADA. ...APPELLANTS (BY SRI. PRUTHVI K.S., ADVOCATE) AND 1 . J.C.C. INFRASTRUCTURES PVT. LTD., 51, VIVEKANANDA ROAD, II FLOOR, KOLKATTA, DIST: KOLKATTA, STATE: WEST BENGAL, PIN CODE: 700007. 2 . THE NATIONAL INSURANCE COMPANY LTD., - 3 - MFA No.101813/2018 C/W MFA No.103045/2018 DIVISION-XI, GROUND FLOOR, 19, R.N. MUKHARJEE ROAD, KOLKATTA, DIST: KOLKATTA, STATE: WEST BENGAL-700007. …RESPONDENTS (BY SRI. S.K. KAYAKAMATH, ADVOCATE FOR R2; NOTICE TO R1 DISPENSED WITH) THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 01.01.2018 PASSED IN MVC NO.644/2016 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND II ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KARWAR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION & ETC., THESE APPEALS HAVING BEEN HEARD AND RESERVED ON 17.03.2025 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, S.G. PANDIT, J., DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE S G PANDIT AND THE HON'BLE MR. JUSTICE C.M. POONACHA CAV JUDGMENT (PER: THE HON'BLE MR. JUSTICE S G PANDIT) The above two appeals filed under Section 173(1) of the Motor Vehicles Act, 1988, are directed against judgment and award dated 1.1.2018 passed in MVC No.644/2016 on the file of learned Addl. Senior Civil Judge and II Addl. MACT, Karwar (for short, ‘Tribunal’). 2. MFA No.101813/2018 is filed by the insurer denying its liability, whereas the claimants are in appeal in MFA No.103045/2018 not being satisfied with the quantum of compensation with a prayer to grant enhanced compensation. - 4 - MFA No.101813/2018 C/W MFA No.103045/2018 3. Brief facts of the case are that, the appellants/claimants, who are the wife, children and mother of the deceased Ishwar Harikantra, filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for the accidental death of Ishwar Harikantra that took place on 27.11.2015 involving Motorcycle bearing registration No.KA-30/S-9194 and Ashok Leyland lorry bearing registration No.GJ-12/AY-9398. It is stated that as on the date of accident, deceased was aged 31 years, working in INS Kadamba Navalbase, Karwar, drawing a salary of Rs.23,506/- per month. 4. On issuance of notice, respondents No.1 & 2 appeared before the Tribunal and filed their separate statement of objections. Respondent No.1-owner of the offending vehicle denied the claim petition averments and also denied the involvement of the vehicle in the alleged accident. It also contended that the alleged accident took place solely due to rash and negligent riding of the rider of motorcycle i.e. deceased himself. Respondent No.2-Insurer denied the claim petition averments, but admitted the issuance of policy in respect of offending lorry. It also contended that the driver of - 5 - MFA No.101813/2018 C/W MFA No.103045/2018 the Lorry was not holding valid and effective driving license as on the date of the accident. Thus, prayed for dismissal of claim petition. 5. Before the Tribunal, claimant No.1-wife of the deceased examined herself as PW1 apart from examining the complainant and one eye-witness to the accident as PW2 & PW3 respectively and marked the documents as Exs.P1 to P10, whereas the respondents did not examine any witness, but marked insurance policy as Ex.R1. The Tribunal based on the material on record allowed the claim petition in part awarding a total compensation of Rs.56,02,440/- with interest at 7% per annum from the date of petition till realization on the following heads: Loss of dependency Rs.50,77,440/- Loss of love & affection Rs. 3,00,000/- Loss of consortium Rs. 1,00,000/- Loss of estate Rs. 1,00,000/- Funeral expenses Rs. 25,000/- ------------------ Total Rs.56,02,440/- ------------------ 6. While awarding the above compensation, the Tribunal assessed monthly income of the deceased at Rs.23,506/-, added 50% of the same towards future prospects, since he was in permanent employment and deducted 1/4th - 6 - MFA No.101813/2018 C/W MFA No.103045/2018 towards personal expenses of the deceased, adopted multiplier of 16, taking the age of the deceased as 31 years. Aggrieved by the judgment and award of the Tribunal, the insurer is in appeal denying its liability, whereas the claimants are also in appeal praying for enhancement of compensation, not being satisfied with the quantum of compensation awarded by the Tribunal. 7. Heard the learned counsel Sri.S.K Kayakamath for the insurance company as well as learned counsel Sri.Pruthvi K.S. for the claimants and perused the appeal papers along with original records. 8. Sri.S.K. Kayakamath, learned counsel for the Insurance Company in support of his appeal would submit that the offending vehicle i.e. Ashok Leyland Lorry itself was not involved in the accident. Referring to Ex.P1-complaint, learned counsel would submit that the complaint was given without mentioning the vehicle number of the offending lorry. He would submit that the owner and the claimants colluding with each other falsely implicated the offending lorry to claim compensation. Learned counsel would further submit that the complainant is a literate person, but he has failed to make or mention the registration number of the offending vehicle in - 7 - MFA No.101813/2018 C/W MFA No.103045/2018 question. It is submitted that claimant No.4, mother of the deceased was shown as eye-witness, but she was not examined before the Tribunal. Learned counsel referring to the evidence of PW2 and PW3, submit that the witnesses have admitted that the vehicle was seized after two days of the alleged accident and he also submits that MVI report indicates that the seizure of the lorry was after more than 75 days of the alleged accident. He further submits that the Tribunal failed to appreciate the documentary evidence, which were on record. 9. Learned counsel Sri. S.K. Kayakamth would further submit that when the accident itself is in dispute, the claimants ought to have made driver of the offending lorry as party to the claim petition. It is submitted that the claimants having not made driver of the offending vehicle as party to the claim petition, the claim petition itself deserves to be dismissed. Learned counsel submitted that the income of the deceased determined by the Tribunal is on the higher side and the compensation awarded under the conventional heads such as, loss of consortium, loss of love and affection, loss of estate is also on the higher side. He further submits that the rate of interest at 7% per annum awarded on the compensation amount is exorbitant. Thus, learned counsel prays for allowing - 8 - MFA No.101813/2018 C/W MFA No.103045/2018 the appeal filed by the insurance company by dismissing the appeal of the claimants. 10. Per contra, Sri.Pruthvi K.S., learned counsel for the appellants/claimants in support of his appeal would contend that the claimants examined PW2-complainant and PW3-eye witness, but while cross-examining the said witnesses, the insurer have not elicited anything from them. Learned counsel would submit that the insurer has not cross-examined PW2 and PW3 with regard to either further statement recorded by the Police or with regard to non-involvement of the vehicle in the said accident. Learned counsel would further submit that PW2 and PW3 have supported the case of the claimants and they have stated that the police secured the lorry and its driver, which they have identified. Learned counsel for the claimants submitted that the deceased was working as Safaiwala in INS Kadamba Navalbase at Karwar and to substantiate his income, the claimants have marked Ex.P5-Pay slip. In terms of Ex.P5, the income of the deceased shall have to be determined for the purpose of calculating the loss of dependency. 11. Having heard the learned counsel for the parties and on perusal of the entire appeal papers including the original - 9 - MFA No.101813/2018 C/W MFA No.103045/2018 records of the Tribunal, the following points would arise for our consideration in these appeals: a) Whether the appellant/insurer is right in contending that the vehicle is falsely implicated in the alleged accident? b) Whether the interference is called for with the quantum of compensation awarded by the Tribunal? 12. Our answer to the above points would be in the “negative” and “affirmative” respectively for the following reasons: 13. It is specific case of the claimants that one Ishwar Harikantra, husband of claimant No.1, died in a road accident on 27.11.2015 involving Motorcycle bearing registration No.KA- 30/S-9194 and Ashok Leyland lorry bearing registration No.GJ- 12/AY-9398. For the first time in these appeals, the insurer is contending that the offending vehicle is not involved in the accident and it is falsely implicated. The appellant/insurer filed statement of objections before the Tribunal on 17.02.2017 and in the said statement of objections, no such contention of non- involvement of the offending vehicle is taken. However, in the said statement of objections, the insurer admitted the issuance of insurance policy in favour of respondent No.1 in respect of - 10 - MFA No.101813/2018 C/W MFA No.103045/2018 offending lorry in question. Further, statement of objections would state that the driver of the offending lorry was not having effective and valid driving license to drive such type of vehicle, at the time of accident in question. When the insurer has not taken up the contention of non-involvement of offending vehicle in the accident, it is not open for the insurer to take up the said contention for the first time in the instant appeal. 14. The claimants to prove the accident, examined claimant No.1-wife of the deceased as PW1, PW2-complainant as well as PW3-eyewitness. PW2-complainant states that he has filed a complaint stating that the accident occurred due to rash and negligent driving of the offending lorry by its driver. He also states that the police registered the case and recorded his statement, and thereafter, police secured the offending lorry and its driver. PW3 is the eyewitness and spot panch witness. Both PW2 and PW3 would categorically state that they have identified the lorry and driver secured by the police. The insurer in its cross-examination has failed to elicit anything in its favour. The insurer has failed to cross-examine PW2 or PW3 on further statement said to have been recorded, as stated by the learned counsel Sri. S.K. Kayakamath. Purusant to the - 11 - MFA No.101813/2018 C/W MFA No.103045/2018 complaint, the police authorities, after investigation has filed charge sheet (Ex.P4) against the driver of the offending lorry. Moreover, it is to be noted that the insurer or owner of the offending lorry have not led any evidence to rebut the evidence of the claimants in proving or otherwise of the accident. Mere statement of the learned counsel for the appellant/insurer in the appeal that the vehicle is not involved in the accident would not be sufficient to look into the contention of the appellant/insurer. Accordingly, the said contention of the insurer with regard to non-involvement of the offending lorry is liable to be rejected and it is rejected. 15. Learned counsel for the insurer further contended that the deceased was not working in INS Kadamba Navalbase, Karwar and his employment was not permanent in nature. The claimants have placed on record Ex.P5-Payslip issued by INS Kadamba Navalbase, Karwar. A perusal of said Ex.P5-payslip would clearly indicate that the deceased was working as Safaiwala in INS Kadamba Navalbase, Karwar and he was drawing gross salary of Rs.23,506/- per month. Hence, the said contention of insurer with regard to employment and income of the deceased has no merit and the same is rejected. - 12 - MFA No.101813/2018 C/W MFA No.103045/2018 16. The income determined by the Tribunal at Rs.23,506/- per month based on Ex.P5-payslip and addition of 50% towards loss of future prospects, since the deceased was in permanent employment, is proper and correct, which requires no interference. The deceased was aged 31 years at time of the accident and multiplier adopted at 16 is proper and correct. There were four dependents and deduction towards personal and living expenses of the deceased at 1/4th is also proper and correct. Thus, the compensation awarded by the Tribunal on the head of loss of dependency is just and reasonable, which requires no modification. 17. Learned counsel Sri. S.K.Kayakamath contended that the compensation awarded by the Tribunal on the conventional heads is on the higher side and same requires to be modified by awarding appropriately. The said contention requires to be accepted, as the Tribunal committed a grave error in awarding exorbitant compensation on the above said heads. In terms of decision of the Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Others1 and Magma General Insurance Company Ltd. Vs. 1 2017 (16) SCC 680 - 13 - MFA No.101813/2018 C/W MFA No.103045/2018 Nanu Ram & Others2, each of the claimants would be entitled to Rs.44,000/- towards loss of consortium, besides Rs.16,500/- towards loss of estate and Rs.16,500/- towards funeral expenses. 18. On re-assessment of compensation, the claimants would be entitled for modified compensation on the following heads: Sl. No. Particulars Amount 1. Loss of dependency Rs.50,77,440/- 2. Loss of estate & Funeral expenses Rs. 33,000/- 3. Loss of consortium (Rs.44000x4) Rs. 1,76,000/- Total Rs.52,86,440/- 19. Thus, the claimants would be entitled to total compensation of Rs.52,86,440/- as against Rs.56,02,440/- awarded by the Tribunal. 20. Taking judicial notice of the rate of interest paid on fixed deposits, interest of 7% per annum awarded by the Tribunal is just and proper. 21. Hence, we pass the following: ORDER a) The appeal filed by the insurer is allowed in part; 2 2018 ACJ 2782 - 14 - MFA No.101813/2018 C/W MFA No.103045/2018 b) The appeal filed by the claimants is dismissed as devoid of merit. c) The impugned judgment & award of the Tribunal is modified holding that the claimants are entitled to total compensation of Rs.52,86,440/- as against Rs.56,02,440/- awarded by the Tribunal. d) The aforesaid compensation shall carry interest at the rate of 7% p.a. from the date of claim petition till realization. e) The appellant-Insurer shall deposit the aforesaid 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. f) Apportionment, deposit & disbursement shall be made as per award of Tribunal. g) The amount in deposit, if any, be transmitted to the concerned Tribunal forthwith along with original records. h) Draw modified award accordingly. Sd/- (S G PANDIT) JUDGE Sd/- (C.M. POONACHA) JUDGE JTR CT:VP