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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA No.10063 OF 2013(MV)
C/W
MFA No.5373 OF 2014(MV)
IN MFA No.10063/2013
BETWEEN:
Divisional Manager,
United India Insurance Co. Ltd.,
Divisional Office,
Jewel Plaza, Maruthi Veethika,
Udupi-576 101. ... Appellant
(By Sri A.N.Krishnaswamy, Advocate)
AND:
1. Smt. Manjamma,
W/o Late. Mastappa Naik,
Now aged about 45 years.
2. Govinda,
S/o Late. Mastappa Naik,
Now aged about 27 years.
3. Jayanthi,
D/o Late Mastappa Naik,
2
Now aged about 25 years.
4. Deepa,
S/o Late Mastappa Naik,
Now aged about 22 years,
All R/a Shiruru Village & post,
Kundapura Taluk-576201.
5. B.S.Aziz,
S/o Shiek Abba Beary,
R/o Kausav Manzil,
Bengre Road, Padubidri,
Udupi Taluk & District-576101. ... Respondents
(By Sri.K.Prasanna Shetty, Advocate for R1 to R4:
R5 served and unrepresented)
This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:02.09.2013
passed in MVC No. 427/2006 on the file of the
Additional District and Sessions Judge,(sitting at
Kundapura) Kundapura, awarding compensation of
Rs.5,25,365/- with interest @ 6% p.a. from the date
of petition till payment.
IN MFA 5373/2014
BETWEEN
1. Smt. Manjamma,
W/o Late. Masthappa Naik,
aged about 46 years.
2. Govinda,
aged about 28 years.
3. Jayanthi,
3
aged about 26 years.
4. Deepa,
aged about 23 years,
No.2 and 4 of the children of
Late. Masthappa Naik,
All Residing at Shiruru Village & post,
Kundapura Taluk,
Udupi District. ... Appellants
(By Sri.K.Prasanna Shetty, Adv.)
AND
1. B.S.Aziz,
S/o Shiek Abba Beary,
Aged about 43 years
R/at Kausav Manzil,
Bengre Road, Padubidri,
Udupi Taluk & District.
2. United India Insurance Co. Ltd.,
Divisional Office Udupi,
Rep. by its Divisional Manager.
...Respondents
(By Sri. A.N.Krishnaswamy, Advocate for R2:
Notice to R1 is dispensed with)
This MFA is filed under Section 173(1) of MV ACT
against the judgment and award dated:02.09.2013
passed in MVC No.427/2006 on the file of the Addl.
District & Sessions Judge and Addl. MACT, Udupi,
(sitting at Kundapura) Kundapura, partly allowing the
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claim petition for compensation and seeking
enhancement of compensation.
These MFAs, coming on for admission, through
video conference, this day, this Court, delivered the
following:
JUDGMENT
These two appeals are filed challenging the judgment and award dated 02.09.2013 passed by the MACT, Udupi (sitting at Kundapura) in MVC No.427/2006. Since the challenge is to the same judgment, both the appeals are clubbed together, heard and common judgment is being passed.
2. The insurance company has filed MFA No.10063/2013 and the claimants have filed MFA No.5373/2014 seeking enhancement of compensation.
3. The brief facts of the case are that on 28.01.2006 at about 9.30 p.m. the deceased Masthappa Naik was standing on the side of NH.17, Belki, Bhatkal Taluk. At that time, the driver of the 5 Maruthi Omni bearing registration No.KA-02/M-2835 came in a rash and negligent manner and dashed against the deceased and caused accident. As a result, he sustained injuries and he succumbed to the injuries on 22.03.2006.
4. The claimants filed a petition under Section 166 of the Act on the ground that the deceased was aged about 40 years at the time of accident and was working as a coolie and was earning Rs.4,500/- per month. The claimants claimed compensation to the tune of Rs.5,70,000/- along with interest. In order to support their case, they have examined wife of the deceased as PW-1 and brother of the deceased as PW- 2 and got marked 48 documents as Ex.P1 to P48. On the other hand, the respondents examined the officer of the insurance company as RW-1 and officers of the RTO office as RW-2 and RW-3 and got marked 8 documents as Ex.R1 to R8. After appreciation of the 6 evidence, the Tribunal granted compensation of Rs.5,25,365/- with interest at 6% p.a. and directed the insurance company to pay the compensation. Being aggrieved these appeals have been filed.
5. The learned counsel appearing for the insurance company has raised the following contentions:
Firstly, as on the date of the accident the driver of the offending vehicle was not holding a valid and effective driving licence to drive the said vehicle. Neither the owner nor the driver have appeared before the Tribunal and produced the driving licence. The Tribunal only on the basis of the reference made in the criminal case has held that the driver of the offending vehicle was holding a valid and effective driving licence. The reference made in the criminal case regarding the number of the driving licence has been verified and that has not been issued by any 7 Regional Transport Authority office. When the driver of the offending vehicle was not holding a valid and effective driving licence, the insured has violated the policy conditions. Hence, the insurance company is not liable to pay the compensation.
Secondly, the compensation awarded by the Tribunal is just and reasonable and no interference is called for. Hence, he sought for allowing the appeal field by the insurance company and dismissing the appeal filed by the claimants.
6. Per contra, learned counsel appearing for the claimants has raised the following contentions:
Firstly, the Tribunal after considering the evidence of the parties and the materials on record has rightly held that the driver of the offending vehicle was holding a valid and effective driving licence.
Secondly, at the time of the accident deceased was aged about 40 years and was earning Rs.4,500/- 8 per month, the Tribunal is not justified in taking the notional income of the deceased as Rs.4,000/- per month.
Thirdly, as per the law laid down by the Hon'ble Supreme Court in the case of NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS (AIR 2017 SC 5157), the claimants are entitled for addition of future prospects.
Fourthly, as per the judgment of the Hon'ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LTD. -V- NANU RAM (2018 ACJ 2782), each of the claimants are entitled for compensation under the head of 'loss of love and affection and consortium'.
Fifthly, the compensation awarded by the Tribunal under the conventional heads is on the lower side.
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Hence, the learned counsel prays for allowing the appeal filed by the claimants and dismissal of the appeal filed by the insurance company.
7. Heard the learned counsel for the parties and perused the original records and judgment and award.
8. It is not in dispute that deceased died in the road traffic accident occurred due to rash and negligent driving of the offending vehicle by its driver.
The specific contention taken by the insurance company is that the owner of the offending vehicle was not holding a valid and effective driving licence.
Inspite of service of notice owner of the offending vehicle has remained exparte before the Tribunal and unrepresented before this Court.
The Tribunal only on the basis of the reference made in the criminal case, recording DL No.36537, has held that the driver of the offending vehicle was 10 holding a valid and effective driving licence. In fact, the respondents have examined RW-2 and RW-3, officers of the Regional Transport Office. They have specifically deposed that they have not issued the said driving licence. Considering the evidence of the parties, it is very clear that there is no valid driving licence in favour of the driver of the offending vehicle. Since the insured has violated the policy conditions, the insurance company is not liable to pay the compensation. In view of the Full Bench decision of this Court in the case of NEW INDIA ASSURANCE CO. LTD. BIJAPUR vs. YALLAVVA AND ANOTHER (ILR 2020 Kar.2239), the insurance company has to pay the compensation amount with liberty to recover the same from the owner of the offending vehicle.
Re.Quantum:
9. The claimants have not produced any evidence or documents with regard to the income of 11 the deceased. Therefore, the Tribunal after considering the evidence has rightly assessed the notional income of the deceased as Rs.4,000/-. To the aforesaid amount, since the deceased was aged 40 years, 25% has to be added on account of future prospects in view of the law laid down by the Constitution Bench of the Supreme Court in 'PRANAY SETHI' (supra). Thus, the monthly income comes to Rs.5,000/-, out of which, we deem it appropriate to deduct 1/3rd towards personal expenses and therefore, the monthly income comes to Rs.3,333/-. The deceased was aged about 40 years at the time of the accident and multiplier applicable to his age group is '15'. Thus, the claimants are entitled to compensation of Rs.5,99,940/- (Rs.3,333*12*15) on account of 'loss of dependency'.
In view of the law laid down by the Supreme Court in 'MAGMA GENERAL INSURANCE', claimant 12 No.1, wife of the deceased is entitled for compensation of Rs.40,000/- under the head of 'loss of spousal consortium' and claimant Nos.2 to 4, children are entitled for compensation of Rs.40,000/- each under the head of 'loss of parental consortium'.
In addition, the claimants are entitled to Rs.15,000/- on account of 'loss of estate' and Rs.15,000/- on account of 'funeral expenses'.
The compensation granted under the head of 'medical expenses' is retained.
10. Thus, the claimants are entitled to the following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 5,99,940
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of Parental 1,20,000
consortium
Medical expenses 15,365
Total 8,05,305
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The claimants are entitled to a total
compensation of Rs.8,05,305/-. The Insurance
Company is directed to deposit the compensation amount along with interest at 6% per annum from the date of filing of the claim petition till the date of realization, within a period of four weeks from the date of receipt of a copy of this judgment with liberty to recover the same from the insured.
The amount in deposit is ordered to be transmitted to the Tribunal, forthwith.
Accordingly, both the appeals are disposed of.
Sd/-
JUDGE Cm/-