Karnataka High Court
M/S The United India Insurance Company ... vs Laxmi And Ors on 26 June, 2024
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NC: 2024:KHC-K:4335-DB
MFA No. 201656 of 2021
C/W MFA No. 200531 of 2022
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 26TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
MISCL. FIRST APPEAL NO. 201656 OF 2021 (MV-D)
C/W
MISCL. FIRST APPEAL NO. 200531 OF 2022(MV-D)
IN M.F.A NO.201656 OF 2021
BETWEEN:
1. SMT. LAXMI
W/O LATE MAHADAYYA,
AGE: 50 YEARS, OCC: HOUSEHOLD,
R/O H.NO. 3/251, ALLAMPRABHU NAGAR,
CHITTA CROSS, NEAR GUMPA,
BIDAR - 585 401.
Digitally signed by
BASALINGAPPA
SHIVARAJ
DHUTTARGAON
2. ADARSH KUMAR
Location: HIGH S/O LATE MAHADAYYA,
COURT OF
KARNATAKA AGE: 31 YEARS, OCC: STUDENT,
R/O VILLAGE KOUTH-B, TQ. AURAD,
NOW RESIDING AT H.NO. 3/251,
ALLAMPRABHU NAGAR, CHITTA CROSS,
NEAR GUMPA, BIDAR- 585 401.
3. ANAND KUMAR
S/O LATE MAHADAYYA
AGE: 30 YEARS,OCC: STUDENT,
4. AKASH KUMAR
S/O LATE MAHADAYYA
AGE: 28 YEARS, OCC: STUDENT,
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NC: 2024:KHC-K:4335-DB
MFA No. 201656 of 2021
C/W MFA No. 200531 of 2022
5. ASHWINI
D/O LATE MAHADAYYA
AGE: 25 YEARS, OCC: STUDENT,
APPELLANTS NO.3 TO 5 R/O H.NO.36A,
VILLAGE KOUTH-B, TQ. AURAD,
NOW RESIDING AT H.NO. 3/251,
ALLAMPRABHU NAGAR,CHITTA CROSS,
NEAR GUMPA, BIDAR- 585 401.
...APPELLANTS
(BY SRI. BASAVARAJ R. MATH, ADVOCATE)
AND:
1. SRI. BALAJI BORE WELLS
REP. BY ITS PROP,
SHASHI KUMAR, H.NO.11 AND 12, 2ND MAIN,
3RD CROSS, CHAMRAJPET, BENGALURU- 560 018,
(OWNER OF BORE WELL LORRY BEARING REGN.
NO.KA.01/MK-5879)
2. M/S UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE 171800,
146/N, IIND FLOOR,
KUMAR COMPLEX ANNA SALAI,
TIRUCHENGUDA NAMAKKAL TAMIL NADU,
REPRESENTED BY BRANCH MANAGER,
UNITED INDIA INSURANCE CO.LTD.,
BRANCH OFFICE BIDAR -585 401.
(VIDE POLICY NO.1718003117P105035548
VALID FROM 05.07.2017 TO 04.07.2018)
...RESPONDENTS
(BY SRI. J. AUGUSTIN, ADVOCATE FOR R2;
NOTICE TO R1 DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO CALL FOR RECORDS AND MODIFY THE IMPUGNED
JUDGMENT AND AWARD DATED 09.07.2021 PASSED BY THE II
ADDL. SENIOR CIVIL JUDGE JMFC, AND MACT, AT BIDAR, IN
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NC: 2024:KHC-K:4335-DB
MFA No. 201656 of 2021
C/W MFA No. 200531 of 2022
MVC NO.502/2018, IN THE INTEREST OF JUSTICE AND
EQUITY.
IN M.F.A NO.200531 OF 2022
BETWEEN:
M/S UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE, 2ND FLOOR,
KUMAR COMPLEX, ANNA SALAI,
TIRUCHENGODE, NAMAKKAL, TAMIL NADU,
REPRESENTED BY BRANCH MANAGER,
THE UNITED INDIA INSURANCE CO.LTD.,
BRANCH OFFICE BIDAR,
NOW THROUGH ITS AUTHORISED SIGNATORY,
DIVISIONAL OFFICE, OPP. SANGAM TALKIES,
SUPER MARKET, KALABURAGI-585101.
...APPELLANT
(BY SRI. J. AUGUSTIN, ADVOCATE)
AND:
1. SMT. LAXMI
W/O LATE MAHADAYYA,
AGE: 51 YEARS, OCC: HOUSEHOLD,
R/O H.NO. 3/251, ALLAMPRABHU NAGAR,
CHITTA CROSS, NEAR GUMPA,
BIDAR - 585 403.
2. ADARSH KUMAR
S/O LATE MAHADAYYA,
AGE: 32 YEARS, OCC: STUDENT,
R/O VILLAGE KOUTH-B, TQ. AURAD,
NOW RESIDING AT H.NO. 3/251,
ALLAMPRABHU NAGAR, CHITTA CROSS,
NEAR GUMPA, BIDAR- 585 403.
3. ANAND KUMAR
S/O LATE MAHADAYYA
AGE: 31 YEARS,OCC: STUDENT,
R/O H.NO.36 A VILLAGE KOUTHA-B, TQ.AURAD,
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NC: 2024:KHC-K:4335-DB
MFA No. 201656 of 2021
C/W MFA No. 200531 of 2022
NOW RESIDING AT H.NO.3/251,
ALLAMPRABHU NAGAR, CHITTA CROSS,
NEAR GUMPA, BIDAR-585 403.
4. AKASH KUMAR
S/O LATE MAHADAYYA
AGE: 29 YEARS, OCC: STUDENT,
R/O H.NO.36 A VILLAGE KOUTHA-B, TQ. AURAD,
NOW RESIDING AT H.NO.3/251,
ALLAMPRABHU NAGAR, CHITTA CROSS,
NEAR GUMPA, BIDAR-585 403.
5. ASHWINI
D/O LATE MAHADAYYA
AGE: 26 YEARS, OCC: STUDENT,
R/O H.NO.36 A VILLAGE KOUTHA-B, TQ. AURAD,
NOW RESIDING AT H.NO.3/251,
ALLAMPRABHU NAGAR, CHITTA CROSS,
NEAR GUMPA, BIDAR-585 403.
...RESPONDENTS
(BY SRI. BASAVARAJ R. MATH, ADV. FOR R1 TO R5)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED
09.07.2021 PASSED IN M.V.C NO.502/2018 BY THE II ADDL.
SENIOR CIVIL JUDGE AND JMFC AND MACT AT BIDAR
REDUCING THE QUANTUM OF COMPENSATION. PASS ANY
SUCH ORDER THAT THIS HON'BLE Court DEEMS FIT UNDER
THE FACTS AND CIRCUMSTANCES OF THE CASE IN THE
INTEREST OF JUSTICE AND EQUITY.
THESE APPEAL, COMING ON FOR ADMISSION, THIS DAY
RAJESH RAI K J., DELIVERED THE FOLLOWING:
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MFA No. 201656 of 2021
C/W MFA No. 200531 of 2022
JUDGMENT
These two Miscellaneous First Appeals are directed against the judgment and award passed in M.V.C.No.502/2018 dated 09.07.2021 passed by the Court of II Additional Senior Civil Judge and JMFC - Bidar and MACT, at Bidar, (hereinafter referred to as 'the Tribunal') wherein, the Tribunal allowed the claim petition in part filed by the claimants in MFA No.201656/2021 and MFA No.200531/2022 by awarding compensation of Rs.27,50,408/- along with interest at the rate of 6% per annum from the date of petition till its realization. Further directed that, respondent Nos.1 and 2 are jointly and severally liable to pay the aforesaid compensation amount.
2. For the sake of convenience, parties are referred to as per their ranking before the Tribunal.
3. The facts giving rise to the filing of the appeal briefly stated are that:
The deceased in this case i.e., Mahadayya was a Government servant working as Junior Assistant in -6- NC: 2024:KHC-K:4335-DB MFA No. 201656 of 2021 C/W MFA No. 200531 of 2022 Karnataka Industrial Areas Development Board, Bidar (for short 'KIADB') and residing with his family in Allamaprabhu Nagar near Gumpa, Bidar. On 07.06.2019, the deceased left his house in the morning hour for attending his duty in the office of KIADB Naubad, Bidar and after completing his duty at about 7:40 p.m. while he was returning back towards his house on his motorcycle bearing Registration No.KA-38/K-9055, near Diamond College Naubad on KIADB Basaveshwar Chowk road, the driver of the Bore well lorry bearing Registration No.KA- 01/MK-5879 came driving the lorry in a high speed and in a rash and negligent manner from back side of the deceased and dashed to the motorcycle of the deceased. Due to which, the deceased fell down on the road and succumbed to the injuries. Subsequently, the jurisdictional Police filed FIR in Crime No.70/2018 against the driver of the offending vehicle i.e., the Bore Well lorry bearing Registration No.KA-01/MK-5879 for the offences punishable under Sections 279 and 304(A) of IPC and filed charge sheet in the said case. Hence, the legal -7- NC: 2024:KHC-K:4335-DB MFA No. 201656 of 2021 C/W MFA No. 200531 of 2022 representatives of the deceased Mahadayya filed the claim petition before the Tribunal.
4. In pursuance of the notice by the Tribunal, the respondent No.1 i.e., owner of the offending vehicle remained absent and as such he placed ex-parte. However, respondent No.2/Insurance Company appeared through its counsel and filed the written statement by denying the averments made in the claim petition.
5. On the basis of pleadings, the Tribunal framed relevant issues for consideration. In order to substantiate the issues and to establish the case, claimant No.1 herself got examined as PW.1 and got marked 10 documents as per Exs.P1 to P10. On the other hand, the Insurance Company neither examined any witness nor got marked any documents on its behalf.
6. After assessment of oral and documentary evidence, the Tribunal allowed the claim petition in part and awarded the compensation as stated supra. The said judgment and award is challenged by the claimants in MFA -8- NC: 2024:KHC-K:4335-DB MFA No. 201656 of 2021 C/W MFA No. 200531 of 2022 No.201656/2021 for enhancement of the compensation and the Insurance Company i.e., respondent No.2 before the Tribunal also challenged on the ground that the driver of the offending vehicle was not possessing a valid driving license at the time of accident. As such, he prayed to set- aside the judgment and award passed in M.V.C.No.502/2018.
7. We have heard the learned counsel Sri Basavaraj R Math for appellants in MFA No.201656 and for respondent Nos.1 to 5 in MFA No.200531/2022 and learned counsel Sri J. Augustin for appellant in MFA No.200531/2022 and for respondent No.2/Insurance Company in MFA No.201656/2021 and also perused the documents made available before us. .
8. It is the primary contention of the learned counsel for the claimants that the Tribunal erred while granting the compensation without properly considering the income of the deceased so also on the other heads. Accordingly, he prays to allow the appeal. -9-
NC: 2024:KHC-K:4335-DB MFA No. 201656 of 2021 C/W MFA No. 200531 of 2022
9. Per contra, learned counsel for the Insurance Company submits that the Tribunal erred while granting compensation on the head of loss of dependency of Rs.25,35,408/- by considering the gross salary of the deceased without deducting the income tax and professional tax. He would also contend that the driver of the offending vehicle had not possessing a valid driving license at the time of accident and the Tribunal failed to frame the issues on that regard. A extract of the driving license obtained from the RTO confirmed that the driving license of the offending vehicle was expired on 22.07.2016 and it was renewed on 16.08.2019 since the accident took place on 07.06.2019, he had no such valid driving license. Hence, according to him, the award is liable to be set- aside. Accordingly, he prays to allow the appeal filed by the Insurance Company.
10. Having heard the learned counsel for the parties so also having perused the records made available before us, the only point that would arise for our consideration is:
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NC: 2024:KHC-K:4335-DB MFA No. 201656 of 2021 C/W MFA No. 200531 of 2022 "Whether the Tribunal is justified in passing the impugned judgment and award?"
11. As could be seen from records, the accident in question and so also the coverage of insurance policy to the offending vehicle by the second respondent is not in dispute in this case. Even otherwise to prove the accident, the jurisdictional Police registered the FIR against the offending vehicle and laid the charge sheet against him. In such circumstance, it is clear that due to the negligent driving of the offending vehicle, the accident in question occurred. Though, the learned counsel for the Insurance Company vehemently contends that the driving license was not in force at the time of accident. On careful perusal of the evidence and the law laid down by the Hon'ble Apex Court in the case of Sudhir Kumar Rana v. Surinder Singh and Others reported in (2008) 12 SCC 436, wherein it is held that, though driving a vehicle without a license is an offence, but the same, by itself, may not lead to a finding of negligence as regards the accident. The
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NC: 2024:KHC-K:4335-DB MFA No. 201656 of 2021 C/W MFA No. 200531 of 2022 said law laid down by the Hon'ble Apex Court is followed by the Co-ordinate Bench of this Court in the case of Shivamma and Others vs. Sri. Govindu Malothu and Another in MFA No.200157/2019. Hence, applying the law laid down by the Hon'ble Apex Court which is followed by the Co-ordinate Bench of this Court, we are of the considered view that the arguments advanced by the learned counsel for the Insurance Company in respect of not possessing the driving license by the offending vehicle is liable to be rejected. Nevertheless, the Insurance Company failed to produce the driving license of the driver of the offending vehicle before the Tribunal in spite of granting sufficient opportunities to place the same. After filing of this appeal, the appellant/Insurance Company filed an application under Order 41 Rule 27 of CPC to produce the driving license by way of additional documents.
12. We have perused the application filed by the Insurance Company, the Insurance Company in support of an application stated that the driver was not having a valid
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NC: 2024:KHC-K:4335-DB MFA No. 201656 of 2021 C/W MFA No. 200531 of 2022 and effective driving license as on the date of accident and the extract of driving license is produced from the RTO and the Insurance Company came to know about the said fact after filing the appeal. Hence, the same could not be produced before the Tribunal and the said document is necessary to prove the fact that the insured owner of the vehicle allowed the use of vehicle in violation of the policy terms and also the provisions of the Motor Vehicles Act. Hence, prays to allow the application.
13. From perusal of an application, the Insurance Company has not made out any ingredients of Order 41 Rule 27 of CPC and though the Insurance Company has filed written statement and respondent has taken defence in the written statement that the driver of the offending vehicle was not possessing a valid and effective driving license. Though, the burden was on the respondent/Insurance Company, to prove the same, the Insurance Company has not led oral evidence and not produced any documents in order to establish that the driver of the offending vehicle was not possessing a valid
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NC: 2024:KHC-K:4335-DB MFA No. 201656 of 2021 C/W MFA No. 200531 of 2022 and effective driving license as on the date of accident and further, the Insurance Company has not stated that why the said document was not produced before the Tribunal, no such explanation is forthcoming in the application. Hence, requirement of Order 41 Rule 27 of CPC is not forthcoming in the application. Further, in view of the law laid down by the Hon'ble Apex Court in the case of N. Kamalam v. Ayyasamy, (2001) 7 SCC 503, wherein it is held that, Rule 21 provision of Rule 27 are not designed to help the parties to patch up a weak points and make up for omissions earlier made, the jurisdiction of Appellate Court is restricted to permitting such additional evidence as would enable it to pronounce judgment.
14. The claim petition was filed in the year 2019 and the appeal was filed in the year 2022. The Insurance Company has filed the application only with an intention to fill up a lacuna which is not permissible in law. By applying the law laid down by the Hon'ble Apex Court in the case of N. Kamalam case supra, we hold that the Insurance Company has not made out any grounds to allow the
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NC: 2024:KHC-K:4335-DB MFA No. 201656 of 2021 C/W MFA No. 200531 of 2022 application for production of additional evidence. Hence, the appeal filed by the Insurance Company in MFA No.200531/2022 is liable to be dismissed.
15. In order to substantiate the claim of the claimants/petitioners, the deceased was a Junior Assistant in KIADB and was getting a monthly salary of Rs.33,346/-, he was aged about 56 years and after deduction of Income Tax, he was getting a monthly salary of Rs.33,146/-. In view of the law laid down by the Hon'ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and Others reported in AIR 2017 SC 5157, 15% of the future prospects is to be added to the monthly income. Thus, it comes to Rs.38,118/- (Rs.33,146 + 15%). Thus, we assess the notional income of the deceased at Rs.38,118/- per month. Out of which, considering that there are 5 dependents, 1/4th has to deducted out of Rs.38,118/-. Thus, it comes to Rs.28,588/- (Rs.38,118 - 9530). The deceased was aged about 56 years as on the date of accident, the multiplier of '9' has to be adopted as per the judgment of the Hon'ble
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NC: 2024:KHC-K:4335-DB MFA No. 201656 of 2021 C/W MFA No. 200531 of 2022 Supreme Court in the case of Sarla Verma vs. Delhi Transport Corporation reported in (2009) 6 SCC 121, thus, it comes to Rs.30,87,504/- (Rs.28,588 X 12 X 9). Therefore, the claimants are entitled to a sum of Rs.30,87,504/- towards loss of dependency.
16. Further, in view of the law laid down by the Hon'ble Apex Court in the case of Magma General Insurance Company Limited vs. Nanu Ram Alias Chuhru Ram & Others reported in (2018) 18 SCC 130, each claimant is entitled to a sum of Rs.40,000/- towards loss of consortium. The claimants are five in number, hence the compensation towards loss of consortium would be Rs.2,00,000/- (40,000 X 5). In addition, the claimants are entitled for a sum of Rs.15,000/- towards Funeral Expenses and Rs.15,000/- towards Transportation Charges.
17. Thus, in all, the claimants are entitled for a total compensation of Rs.33,17,504/- as against
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NC: 2024:KHC-K:4335-DB MFA No. 201656 of 2021 C/W MFA No. 200531 of 2022 Rs.27,50,408/-. Thus, the claimants are entitled for enhanced compensation of Rs.5,67,096/-.
18. In view of the above discussion, we proceed to pass the following:
ORDER i. The appeal filed by the Insurance Company in MFA No.200531/2022 is dismissed.
ii. The appeal by the
claimants/petitioners in MFA
No.201656/2021 is allowed.
iii. The petitioners/claimants are entitled for enhanced compensation of Rs.5,67,096/- along with interest at the rate of 6% per annum from the date of petition till the date of realization.
iv. Respondent/Insurance Company is
directed to deposit the enhanced
compensation amount with accrued
interest before the Tribunal within a
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NC: 2024:KHC-K:4335-DB MFA No. 201656 of 2021 C/W MFA No. 200531 of 2022 period of eight weeks from date of the receipt of copy of this judgment. v. Amount in deposit shall be transmitted to the Tribunal.
vi. The Registry is directed to transmit the records to the Tribunal, forthwith.
Sd/-
JUDGE Sd/-
JUDGE HKV List No.: 2 Sl No.: 8 CT:BN