Karnataka High Court

Iffco Tokio General Insurance Co. ... vs Vishwanath S/O Shivamurthayya on 10 December, 2021

Bench: Ravi V.Hosmani

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 10TH DAY OF DECEMBER, 2021

                          BEFORE

        THE HON'BLE MR. JUSTICE RAVI V. HOSMANI

             M.F.A.NO. 20955 OF 2012 (MV-D)

BETWEEN:

IFFCO TOKIO GENERAL INSURANCE COMPANY LTD.,
BY ITS DIVISIONAL MANAGER
NO.127A, BHAVANI ARCADE, NEAR OLD BUS
STAND, OPPOSITE BASAVANA, N.C. MARKET,
HUBLI 580 029.
HEREIN REPRESENTED BY
IFFCO TOKIO GENERAL INSURANCE COMPANY LTD.,
CUSTOMER SERVICE CENTRE
KSCMF BUILDING, III FLOOR, III BLOCK
#8, CUNNINGHAM ROAD, BANGALORE
REPRESENTED BY ITS DEPUTY GENERAL MANAGER
                                          ...APPELLANT

[BY SRI. RAVINDRA R. MANE, ADVOCATE)

AND:

1. VISHWANATH
S/O SHIVAMURTHAYYA
HOLEMMANAVARMATH @ DONIMATH
AGE: 16 YEARS
MINOR REPRESENTED BY
M/G VEERABHADRAYYA S/O GURUNANJAYA
HOLEMMANAVARMATH @ DONIMATH
AGE: 57 YEARS, OCC: SERVICE
R/O CHIKKAUSHI HOSUR, TQ. HANGAL.

2. SURESH GUDDAPPA TALAWAR
AGE: MAJOR, OCC: NOT KNOWN AND
                                      -2-




OWNER OF THE MOTOR BIKE BEARING
REG. No.KA-27/R-2705, R/O: HULAGINAHALLI
POST: KONANAKOPPA, TQ: HANGAL.
                                             ...RESPONDENTS
(BY SRI B.M.PATIL, SRI SANTOSH BIRANGI AND
    SRI RAJASHREE, ADVOCATES FOR R1; R2 SERVED)

      THIS MISC.FIRST APPEAL IS FI LED UNDER SECTION
173(1) OF THE M V ACT, 1988, AGAINST THE JUDGMENT
AND    AWARD         DTD:       20.12.2011          PASSED         IN      MVC
NO.172/ 2010 ON THE FILE OF THE SENIOR CIVI L J UDGE
AND   MEMBER,        ADLL.     MACT ,       HANGAL,      AWARDIN G         THE
COMPENSATION OF RS.5,10,000/- WITH INTEREST A T THE
RATE OF 6% P.A., FROM THE DATE OF PETITION TILL ITS
DEPOSIT .


     THIS APPEAL COMING ON FOR HEARING, THIS DAY, COURT
DELIVERED THE FOLLOWING:

                               JUDGMENT

Challenging judgment and award dated 20.12.2011

passed by the Senior Civil Judge and AMACT, Hangal in MVC

No.172/2010, this appeal is filed by appellant-insurer

challenging finding regarding liability and also on quantum.

2. Sri. Ravindra R. Mane, learned counsel for

appellant-insurer submitted that in an accident that occurred on

14.03.2010 at about 4:30 p.m. Smt. Meenakshi, a pedestrian

walking by the side of Tilavalli-Sirsi road sustained fatal injuries,

when a motorcycle bearing registration No.KA-27/R-2705

dashed against her due to rash and negligent ride by its rider.

Claiming compensation on account of her untimely death, her

minor son filed claim petition against owner and insurer of

motorcycle under Section 166 of Motor Vehicle Act (hereinafter

referred to as 'M.V.Act' for short).

3. Claim petition was opposed by respondents denying

negligence on the part of rider of motorcycle. Though issuance

of insurance policy was admitted, insurer contended that rider of

motor cycle did not have valid driving licence as on the date of

accident and therefore, denied liability. Claim petition was also

opposed as being excessive.

4. Based on pleadings tribunal framed following issues.

"1. Whether the petitioner prove that he is the legal heir of deceased Smt.Meenaxi W/o Shivamurthayya Donimath as alleged?

2. Whether the petitioner prove that, on 14.03.2010 at about 4.30 p.m. on Tilavalli-

Sirsi road of Chikkaunshi village, when the deceased Smt.Meenaxi was crossing the road by carrying firewood on her head, at that time, the rider of a motor cycle bearing Reg.No.KA-27/R-2705 drove the same in a rash and negligent manner and dashed against the said Meenaxi and in the said accident, the said Meenaxi had sustained fatal injuries and died on the spot as alleged?

3. Whether the petitioner prove that the said motor cycle bearing Reg.No.KA-27/R-2705 has got valid insurance coverage at the time of accident as alleged?

4. Whether the respondent No.2 proves that the rider of the motor cycle bearing No.KA-27/R-2705 did not possess valid and effective D.L. at the time of accident as alleged?

5. Whether the petitioner is entitled for compensation? If so, what is the quantum and from whom?

6. What award or order?

5. On behalf of minor claimant, guardian of claimant

was examined as PW-1. Exs.P.1 to P.6 were marked. On behalf

of respondents RW-1 was examined. Exhibits R.1 to R.4 were

marked. On consideration, tribunal answered issue No.1 to 3 in

affirmative; issue no.4 in negative; issue no.5 partly in

affirmative by assessing compensation of Rs.5,10,000/- by

allowing claim petition in part, holding insurer liable to pay

compensation with interest at 6% pre annum. Challenging said

award, insurer is in appeal.

6. It was contended by learned counsel for insurer that

as on date of accident, rider of motorcycle was not having

effective driving licence. It was further submitted that as per

Ex.P.5 - driving licence produced by claimants, was issued in the

name of M. Nagaraja, S/o. M. Yallappa resident of Vaddigere,

Soraba Taluk. Licence was issued by RTO Sagar. However, rider

of motorcycle as per Ex.P.3 - charge sheet was Nagaraja

Bankalli, S/o. Mallikarjuna Bankalli, resident of Hulaginahalli

Taluk, Hangal. It was submitted that Ex.P.5 did not belong to

rider of motorcycle. It was further submitted that Ex.R.2 -

driving licence extract was issued in respect of Nagaraja M. Date

of issuance of driving licence was 30.06.2010, which was after

date of accident and therefore as on date of accident, rider did

not had driving licence. Attention of this Court was also drawn

to charge sheet - Ex.P.3, wherein rider of motorcycle charge

sheeted under Section 3 read with Section 181 of M.V. Act, in

addition to offence under Section 279, 304(A) of Indian Penal

Code.

7. It was submitted that as rider of motorcycle did not

had valid and effective driving licence on date of accident,

tribunal erred in fastening liability upon insurer. Even on

quantum, it was submitted that deceased was survived by

claimant/ minor son and therefore deduction towards personal

expenses were required to be 1/2, whereas tribunal deducted

1/3rd.

8. On the other hand, Sri. B.M. Patil, appearing for

Sri. Santosh Birangi, learned counsel for respondent - claimant

opposed appeal and supported judgment and award insofar as

liability and contended that compensation awarded by tribunal

was grossly inadequate and was not 'just' compensation.

Relying upon decision of Hon'ble Supreme Court in the case of

JITENDRA KHIMSHANKAR TRIVEDI VS. KASAM DAUD

KUMBHAR reported in (2015) 1 TAC 673 and decisions of this

Court in the case of NEW INDIA ASSURANCE COMPANY

LTD., VS. BASAPPA FAKIRAPPA BALESUR AND OTHERS in

MFA No.22969/2012 disposed of on 25.08.2020 and in the

case of NEW INDIA ASSURANCE COMPANY LTD., VS.

KUMAR TUKARAM KRISHNAPPA AND OTHERS in MFA

NO.23726/2010 disposed of on 19.08.2021, submitted that

this Court while deciding on quantum of compensation had

powers under provisions of Order 41 Rule 33 to determine 'just'

compensation and enhanced compensation, suitably, even

without an appeal being preferred by claimant.

9. It was submitted that accident occurred on

14.03.2010. As on date of accident, deceased Meenakshi was 35

years of age and working as coolie. But tribunal considered her

monthly income on meager amount of Rs.3,750/- and without

adding future prospects, awarded a meager sum of Rs.80,000/-

towards loss of dependency and Rs.30,000/- under conventional

heads, which was grossly inadequate and therefore, called for

passing of suitable award.

10. From above submission, occurrence of accident

involving insured vehicle due to rash and negligent riding of

same by its rider, leading to death of claimant's mother, is not

in dispute. Issuance of insurance policy, its validity as on date of

accident is also not in dispute. Tribunal by merely referring to

Ex.P.5 - driving licence, without proper examination of

document, proceeded to hold that rider of vehicle had valid

driving licence as on date of accident and held insurer liable to

pay compensation. Insurer is in appeal challenging said finding

and also on quantum of compensation; while

claimant/respondent is seeking for award of 'just' compensation.

Therefore, points that arise for consideration in this appeal are:

1) Whether tribunal was justified in holding appellant/insurer liable to pay compensation?

2) Whether compensation assessed by tribunal was just and proper?

Point no.1.

11. In order to establish accident due to involvement of

insured vehicle and death of claimant's mother in the said

accident, claimant had produced copy of FIR and complaint,

spot panchanama, charge sheet, post-mortem report and

driving licence marked as Exs.P.1 to P.5 respectively. From a

careful examination of Ex.P.1 - FIR, name of accused - rider of

motorcycle is shown as Nagaraj Bankalli, resident of

Hulaginahalli Taluk, Hanagal. Charge sheet - Ex.P.3 also against

same person. But name of holder of driving licence - Ex.P.5 is

Nagaraja M., S/o. Yallappa M, resident of Vaddigere, Soraba

Taluk which on the face of it does not belong to accused-rider.

Though insurer contended that driving licence - Ex.R.2

issued in respect of M.Nagaraja was after date of accident. A

perusal of same would reveal that it is issued in name of

Nagaraja M., S/o. Mallikarjuna, whereas name of accused-rider

of motorcycle examined in Ex.P.1 - FIR and Ex.P.3 -

Chargesheet is Nagaraja Bankalli. Surname 'Bankalli' is

mentioned in Ex.R.2. Even if same were to be issued to rider of

- 10 -

motorcycle, it is admittedly issued on 30.06.2010, which is after

date of accident. Therefore, tribunal committed error in

recording a finding that as on date of accident, motorcycle rider

was having valid and effective driving licence. Said finding being

contrary to evidence on record, would be liable for interference

on the ground of perversity. However, deceased was a third

party liability in respect of third party claims. In view of law laid

down by Full Bench decision in NEW INDIA ASSURANCE

COMPANY LTD., VS. YALLAVVA AND OTHERS in MFA

No.30131/2010 D.D.12.05.2020 point no.1 is answered

partly in affirmative.

Point no.2.

12. Admittedly, deceased was 35 years of age, working

as coolie as on date of accident. Though it was stated that she

was earning Rs.4,500/- per month, no specific evidence led to

substantiate same. In absence of accident occurred on

14.03.2010. Notional income for 2010 as per norms adopted by

Karnataka State Legal Services Authority is Rs.5,500/-. Tribunal

would not be justified in taking income of deceased as

- 11 -

Rs.3,750/-. But as claimant has stated that income of deceased

was Rs.4,500/- same has to be considered.

13. Deceased was 35 years of age and self employed.

Claimant is son of deceased as he is the only dependent, as per

decision of Hon'ble Supreme Court in the case of NATIONAL

INSURANCE COMPANY LTD., VS. PRANAY SETHI AND

OTHERS reported in (2017) 6 SCC 680, there has to be

addition of 40% towards future prospects. Deduction towards

personal expenses to be at ½ and multiplier applicable would

be '16'. Hence, compensation towards loss of dependency would

be:

Rs.4,500 + 40% - ½ x 12 x 16 = Rs.6,04,800/-

14. In addition, claimant would be entitled to

Rs.70,000/- under conventional head. Since more than three

years have lapsed after rendering decision in Pranay Sethi

(supra), there has to be an addition of 10% to award under

conventional heads. Hence, total compensation would be:

- 12 -

        Loss of dependency                Rs.6,04,800/-
        Conventional head                   Rs.77,000/-
                  Total                  Rs.6,81,800/-

However, tribunal has awarded Rs.5,10,000/- only, which

would not be just compensation. Therefore, exercising powers

under Order 41 Rule 33, compensation is re-determined as

above. Point no.2 is answered partly in affirmative as above.

In the result, I pass following:

ORDER

Appeal is allowed in part.

Total compensation payable is

determined at Rs.6,81,800/- with interest at

6% p.a. from date of petition till deposit.

Insurer is directed to pay compensation to

claimant with liberty to recover same from

insured without recourse to separate

proceedings. Appellant insurer is directed to

deposit enhanced compensation with interest

within six weeks from the date of receipt of a

copy of this judgment.