Karnataka High Court

Smt Nagarathan vs Sri D Hanumantharaju on 1 December, 2021

Bench: H T Prasad

                            1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 1ST DAY OF DECEMBER 2021

                        BEFORE

     THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

              MFA No.3662 OF 2019(MV)

BETWEEN:

1.    SMT NAGARATHAN
      W/O LATE H.N. NARASIMHAIAH
      NOW AGED ABOUT 53 YEARS.

2.    KUM.H.N. KAVYA
      D/O LATE H.N. NARASIMHAIAH
      AGED ABOUT 21 YEARS.

3.    MASTER H.N. NARENDRA
      D/O LATE H.N. NARASIMHAIAH
      AGED ABOUT 19 YEARS.

4.    SMT. SIDDAMMA
      W/O LATE NARASIMHA
      AGED ABOUT 73 YEARS

      ALL ARE RESIDING AT
      HOSAHALLI VILLAGE
      KODIGENAHALLI HOBLI
      MADHUGIRI TALUK
      TUMKUR DISTRICT.
                                        ...APPELLANTS

(BY SRI.GOPAL KRISHNA N., ADV.)

AND
                         2



1.   SRI D HANUMANTHARAJU
     @ HANUMANTHARAYAPPA
     S/O DURGAPPA
     AGED ABOUT 36 YEARS
     RESIDING AT NO.75
     PANJIGANAHALLI VILLAGE
     LAKSHMISAGAR POST
     JAYANAGAR EXTENSION
     KASABA HOBLI, SIRA TALUK
     TUMKUR DISTRICT-572137.

2.   SHRIRAM GENERAL INSURANCE
     COMPANY LTD
     NO.5/4, III FLOORS
     S.V. ARCADE
     BILEKAHALLI MAIN ROAD
     OPP BANNERGHATTA ROAD
     IIMB POST, BENGALURU-76
     REP BY ITS MANAGER.

                                    ...RESPONDENTS

(BY SRI.PATEL D KAREGOWDA, ADV. FOR R1:
SRI. O.MAHESH, ADV. FOR R2:)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 03/07/2018, PASSED
IN MVC NO.8232/2016, ON THE FILE OF THE XXI
ADDITIONAL SMALL CAUSES JUDGE & XIX ACMM.,
MEMBER,   MACT,    BENGALURU     (SCCH-23),  PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.

     THIS MFA COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                            3



                      JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) has been filed by the claimants being

aggrieved by the judgment dated 03.07.2018 passed

by the Motor Accident Claims Tribunal, Bengaluru in

MVC No.8232/2016.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 21.04.2016 at about

05.30 A.M. on Devarathopu-Hosahalli Road, near

Acchakkaravara Hanumanthareddy Land,

Kodigenahalli Hobli, Madhugiri Taluk, Tumkur District,

when the deceased was traveling as a passenger in

the Auto bearing registration No.KA-06-C-9315, the

driver-cum-RC owner of the said vehicle drove the

same in a rash and negligent manner and dashed

against the bullock cart violently. As a result of the

aforesaid accident, the deceased sustained grievous

injuries and succumbed to the injuries.

3. The claimants filed a petition under Section

166 of the Act seeking compensation for the death of

the deceased along with interest.

4. On service of summons, the respondent

Nos.1 and 2 being the owner-cum RC owner and

insurer of the offending vehicle have appeared

through counsel and filed written statement in which

the averments made in the petition were denied. It

was pleaded by the owner-cum RC owner of the

offending vehicle that the petition itself is false and

frivolous in the eye of law. He further pleaded that he

was not the owner of the offending vehicle as on the

date of the accident as the same was sold to another

person and this fact has been clearly disclosed before

the Investigating Officer. The age, occupation and

income of the deceased are denied. It was further

pleaded that the quantum of compensation claimed by

the claimants is exorbitant. Hence, he sought for

dismissal of the claim petition.

It was pleaded by the Insurance Company that

that the petition itself is false and frivolous in the eye

of law. It was further pleaded that the driver of the

offending vehicle did not possess valid driving licence

as on the date of the accident and the offending

vehicle was plying beyond the permit limit. Therefore,

the owner of the offending vehicle has willfully and

knowingly violated the terms and conditions of the

policy. The liability is subject to terms and conditions

of the policy. The age, occupation and income of the

deceased are denied. It was further pleaded that the

quantum of compensation claimed by the claimants is

exorbitant. Hence, he sought for dismissal of the

petition.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimants, in order to

prove their case, examined claimant No.1 as PW-1

and another witness as PW-2 and got exhibited

documents namely Ex.P.1 to Ex.P.23. On behalf of

respondents, four witnesses were examined as RW-1

to RW-4 and got exhibited documents namely Ex.R.1

to Ex.R.26(a). The Claims Tribunal, by the impugned

judgment, inter alia, held that the accident took place

on account of rash and negligent driving of the

offending vehicle by its driver, as a result of which,

the deceased sustained injuries and succumbed to the

injuries. The Tribunal further held that the claimants

are entitled to a compensation of Rs.13,92,880/-

along with interest at the rate of 6% p.a. and directed

the owner to deposit the compensation amount along

with interest. Being aggrieved, this appeal has been

filed.

6. The learned counsel for the claimants has

raised the following contentions:

Firstly, the claimants claim that the deceased

was aged about 54 years at the time of the accident

and he was earning Rs.17,100/- per month working as

a Second Division Assistant in Vivekananda Rural High

School, Madhugiri.

Secondly, in view of 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], in case the deceased

was having a permanent job, an addition of 15% of

the established income towards 'future prospects'

should be the warrant where the deceased was aged

between 50-60 years. The same has not been

considered by the Tribunal and the claimants are

entitled for Rs.15,000/- for 'loss of estate' and

Rs.15,000/- for 'funeral expenses'.

Thirdly, as per the judgment of the Hon'ble

Supreme Court in the case of MAGMA GENERAL

INSURANCE CO. LTD. -V- NANU RAM reported in

2018 ACJ 2782, each of the claimants are entitled for

compensation under the head of 'loss of love and

affection and consortium'.

Fourthly, the compensation awarded by the

Tribunal under the conventional heads is on the lower

side.

Lastly, the Tribunal has given a finding that the

driver of the offending vehicle was not having a valid

and effective driving licence. Since the insured has

violated the policy condition, the Tribunal has

exonerated the Insurance Company from the liability.

But in view of the judgment of the Hon'ble Apex Court

in the case of PAPPU AND ORS. V. VINOD KUMAR

LAMBA AND ANR. reported in AIR 2018 SC 592 and

NATIONAL INSURANCE CO. LTD. VS. SWARAN

SINGH reported in (2004) 3 SCC 297, in respect of

third party is concerned, the Insurance Company is

liable to pay the compensation at the first instance

with liberty to recover the same from the owner of the

offending vehicle. Hence, he sought for allowing the

appeal.

7. On the other hand, the learned counsel for

the Insurance Company has raised the following

counter-contentions:

Firstly, on appreciation of oral and documentary

evidence, the Tribunal has awarded just and

reasonable compensation.

Secondly, as on the date of the accident, the

driver of the offending vehicle was not having valid

and effective driving licence. Since the insured was

not having a valid and effective driving licence and

also the driver of the offending vehicle was violated

the permit condition that he has plied the vehicle

beyond the permit limit and also he has violated the

policy condition, the Insurance Company is not liable

to pay the compensation to the claimants. Therefore,

the Tribunal has rightly exonerated the Insurance

Company from the liability. Hence, he sought for

dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the judgment and award and original

records.

9. 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.

RE:QUANTUM

The claimants claim that the deceased was

working as a Second Division Assistant in Vivekananda

Rural High School, Pullenahalli of Madhugiri Taluk and

was getting a salary of Rs.17,100/- per month. The

Tribunal after deducting professional tax, has rightly

taken the gross salary of the deceased as Rs.16,900/-

per month. To the aforesaid amount, 15% 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.19,435/-. Since there

are four dependents, it is appropriate to deduct 1/4th

of the income of the deceased towards personal

expenses. Thus, the monthly income of the deceased

comes to Rs.14,577/-. Since the deceased was left

with 6 years of service as on the date of death, the

split multiplier has to be adopted and the applicable

multiplier is '6' for six years and '5' for the remaining

period. Accordingly, the loss of dependency for the

pre-retirement period = Rs.10,49,544/- (Rs.14,577 x

12 x 6). For the post-retirement period =

Rs.4,37,280/- (Rs.7,288 x 12 x 5), the claimants are

entitled to Rs.14,86,824/- (Rs.10,49,544 +

Rs.4,37,280) on account of 'loss of dependency'.

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'.

In view of the law laid down by the Supreme

Court in the case of 'MAGMA GENERAL INSURANCE'

(supra), claimant No.1, wife of the deceased is

entitled for compensation of Rs.40,000/- under the

head of 'spousal consortium'. claimant Nos.2 and 3,

children of the deceased are entitled for compensation

of Rs.40,000/- each under the head of 'loss of

parental consortium' and claimant No.4, mother of the

deceased is entitled for compensation of Rs.40,000/-

under the head 'loss of filial consortium' .

10. Thus, the claimants are entitled to the

following compensation:

        Compensation under         Amount in
           different Heads           (Rs.)
       Loss of dependency           14,86,824
       Funeral expenses                15,000
       Loss of estate                  15,000
       Loss of spousal                 40,000
       consortium
       Loss of Parental                  80,000
       consortium
       Loss of Filial consortium         40,000
                       Total         16,76,824


RE:LIABILITY

The Tribunal after considering the evidence of

the parties and material available on record has given

a clear finding that the driver of the offending vehicle

was not having valid and effective driving licence.

Since the insured has violated the policy condition, the

Tribunal has rightly exonerated the Insurance

Company from the liability. This finding has not been

challenged either by the owner or insured of the

offending vehicle. However, in view of the judgment of

the Apex Court in the case of 'PAPPU AND OTHERS'

following the judgment of the Apex Court in the case

of 'SWARAN SINGH', in respect of third party is