Karnataka High Court
Shri. Mahadev Jyoti Shimpukade @ ... vs Shri. Babasaheb Nanasaheb Kage on 16 December, 2021
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 16 T H DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
M.F.A.No.101504/2016(MV)
C/W
M.F.A. No.100744/2017
IN M.F.A.No.101504/2016(MV)
BETWEEN:
THE DIVISIONAL MANAGER,
ORIENTAL INS URA NCE COMPANY LIMITED,
CLUB ROAD BELAGAVI,
INSURER OF MOT OR CYCLE N O. KA-23/Q- 1548
POLI CY NO.422502/31/2008/ 3784 ( VALID FROM
14.02.2008 TO 13.02.2009) REPRES ENTED BY
DEPUTY MANAGER ORIENTAL INS URA NCE COMPNAY LIMITED
REGIONAL OFFICE SUMANGAL COMPLEX,
LAMINGTON ROAD HUBBALLI .
... APPELLANT
(BY SRI.G.N .RAICHUR, ADVOCATE)
AND
1 . SHRI.MAHADEV JYOTI SHIMPUKADE @ YEDWAN,
AGE: 73 YEARS , OCC: NIL,
R/O: SHRI PEWADI ,
TQ: CHIKK ODI, DI ST: BELA GAVI.
2 . SMT.PARUBAI MAHADEV SHIMPUKADE @ YEDWAN ,
AGE: 66 YEARS , OCC: HOUS E HOLD ,
R/O: SHRI PEWADI ,
TQ: CHIKK ODI, DI ST: BELA GAVI.
2
3 . SMT.SUREKHA
W/O KUMAR SHIMPUKADE @ YEDWA N,
AGE: 34 YEARS , OCC: HOUS E HOLD ,
R/O: SHRI PEWADI ,
TQ: CHIKK ODI, DI ST: BELA GAVI.
4 . KUMAR VINAYAK
S/O KUMAR SHIMPUKADE @ YEDWAN ,
AGE: 15 YEARS , OCC: STUD ENT,
R/O: SHRIPEWAD I,
TQ: CHIKK ODI, DI ST: BELA GAVI.
5 . KUMARI SONALI
S/O KUMAR SHIMPUKADE @ YEDWAN ,
AGE: 10 YEARS , OCC: NIL,
R/O: SHRI PEWADI ,
TQ: CHIKK ODI, DI ST: BELA GAVI.
RESPOND ENT NO.4 AND 5 ARE BEIN G MINORS REPTD BY
NATURAL MOTHER RESPOND ENT NO.3 SMT S UREKHA W /O
KUMAR SHIMPUKA DE @ YEDWAN
6 . SHRI.BABASAHEB NANASAHEB KAGE,
AGE: MAJOR, OCC: BUSINESS ,
R/O: PATTANKUDI,
TQ: CHIKK ODI, BELAGAVI,
OWNER OF MOT OR CYCLE N O.KA- 23/ Q-1548.
... RES PONDENTS
(BY SRI.NEELENDRA D.GUNDE, ADV OCATE F OR R7)
(R2 AND R6 NOTICE SERV ED)
(R4 AND R5 MINOR REPTD. BY R3)
THIS MISC.FIRST APPEAL IS FI LED UNDER S ECT ION
173(1) OF MOTOR VEHICLES ACT , 1988, PRAYING TO CALL FOR
RECORDS AND HEAR THE PARTIES AND SET ASI DE THE
JUDGMENT AND AWARD DATED 11.02.2016 PASSED BY THE
COURT OF X AD DL. DISTRICT AN D SESSIONS J UD GE AND
MEMBER ADDL. MACT BELAGAVI IN MVC No1701/ 2015 BY
ALLOWING THIS A PPEAL WITH COST IN THE ENDS OF JUSTICE
AND EQUITY.
3
IN M.F.A. No.100744/2017
BETWEEN
1 . SHRI. MAHAD EV J YOTI SHIMPUKADE @ YEDWAN ,
AGE: 73 YEARS , OCC: NIL,
2 . SMT. PARUBAI MA HADEV SHIMPUKA DE @ YEDWAN ,
AGE: 66 YEARS ,
OCC: HOUSEHOLD WORK,
3 . SMT. SUREK HA
W/O KUMAR SHIMPUKADE @ YEDWA N,
AGE: 34 YEARS , OCC: HOUS EHOLD WORK,
4 . KUMAR VINAYAK
S/O KUMAR SHIMPUKADE @ YEDWAN ,
AGE: 15 YEARS , OCC: STUD ENT,
5 . KUMARI SONALI
D/O KUMAR SHIMPUKADE @ YEDWAN ,
AGE: 10 YEARS , OCC: STUD ENT,
ALL ARE RESIDEN CE OF S HRIPEWAD I
PIN CODE: 591241
TQ. CHIKKODI , DI ST: BELA GAVI.
APPELLANTS NO.4 AND 5 ARE MINOR,
REPRES ENTED BY NATURAL GUARDI AN
MOTHER A PPELLAN T NO.3 HEREIN.
...A PPELLANTS
(BY SRI.SANJAY S .KATAGERI, ADVOCATE)
AND
1 . SHRI. BABASAHEB NANASAHEB KAGE,
AGE: MAJOR, OCC: BUSINESS ,
R/O: PATTANKUDI, TQ: CHIKKODI ,
DIST:BELAGAVI ,
PIN CODE: 591238.
(OWNER OF THE M OTOR CYCLE BEARING
REGD. NO. KA-23/ Q-1548)
4
2 . THE DIVISIONAL MANAGER,,
ORIENTAL INS URA NCE COMPANY LIMITED,
CLUB ROAD , BELA GAVI.
PIN CODE: 590002.
(INSURER OF THE MOTOR CYCLE BEA RING
REGD. NO. KA-23/ Q-1548)
3 . SHRI. ATIKRANT D WARPAL GORWAD E,
AGE: MAJOR, OCC: BUSINESS ,
R/O: PATTANKUDI, TQ: CHIKKODI ,
DIST: BELA GAVI,
PIN CODE: 591238.
(OWNER OF MOT ORCYCLE NO. KA- 23/J-9393)
... RES PONDENTS
(BY SRI.NEELENDRA D.GUNDE, ADV OCATE F OR R3)
BY SRI. G.N.RAI CHUR, ADVOCATE F OR R2)
(R1 N OTICE SERV ED)
THIS MISC.FIRST APPEAL IS FI LED UNDER S ECT ION
173(1) OF MOTOR VEHICLES ACT, 1988, PRYING TO CALL FOR
THE RECORDS AN D HEAR THE PARTIES AND SET AS IDE THE
JUDGMENT AND AWARD DATED 11.02.2016 PASSED BY THE
COURT OF X AD DL. DISTRICT AN D SESSIONS J UD GE AND
MEMBER ADDL MACT BELA GAVI IN MVC No1701/ 2015 BY
ALLOWING THIS APPEALS WITH COST IN THE ENDS OF
JUSTICE AND EQUITY.
THESE A PPEALS COMING ON FOR A DMISSION THIS D AY,
THE COURT , D ELIV ERED THE F OLLOW ING:
5
JUDGMENT
Challenging judgment and award dated 11.02.2016
passed by X Addl. District and Sessions Judge and Member
Addl.MACT, Belagavi (for short, 'the Tribunal') in MVC
No.1701/2015, these appeals are filed.
2. MFA No.101504/2016 is filed by insurer
challenging award on liability; whereas, MFA
No.100744/2017 is filed by claimants seeking for
enhancement of compensation. Though these appeals are
listed for admission, with the consent of learned counsel
for parties, they are taken up for final disposal.
3. Sri.G.N.Raichur, learned counsel for
appellant/insurer submitted that in an accident that
occurred on 27.06.2008, when Kumar Mahadev was riding
motorcycle bearing registration No.KA-23/Q-1548 as a
pillion rider, it met with accident when another motorcycle
bearing registration No.KA-23/J-9393 dashed against it.
In the accident, Kumar Mahadev sustained grievous
injuries and died during treatment. Claiming
compensation on account of untimely death of Kumar
Mahadev, his parents, wife and two minor children filed
claim petition against owner and insurer of motorcycle
bearing registration No.KA-23/Q-1548 and also on owner
of other motorcycle.
4. On contest, Tribunal held that accident occurred
due to rash and negligent driving of motorcycle bearing
registration no.KA-23/Q-1548 by its rider. It determined
age of deceased Kumar Mahadev as 28 years, occupation
as agriculturist and taking his monthly income on notional
basis at Rs.4,000/-, deducting 1/4 t h towards personal
expenses and applying multiplier of '17' awarded
compensation of Rs.6,12,000/- towards loss of
dependency and Rs.95,000/- under conventional heads
i.e. total compensation of Rs.07,07,000/- with 6% interest
per annum and held insurer liable to pay same. Aggrieved
by said award, insurer is in appeal.
5. It was submitted that though, insurer had taken
contention that rider of motorcycle on which deceased was
riding did not have valid and effective driving licence,
tribunal did not frame any issue and did not give any
finding on the same and thereby committed material
irregularity. Learned counsel submitted that appellant-
insurer has filed application for leading additional
evidence by way of production of certified extract of
driving licence of rider of insured motorcycle. It was
submitted that licence would indicate that rider had
driving licence to drive light motor vehicle, but not for
licence to ride motorcycle. As rider of motorcycle did not
have licence to drive motorcycle, there was fundamental
breach of terms and conditions of policy. Hence, liability
of insurer was required to be discharged.
6. On the other hand, learned counsel Sri.Sanjay
S. Katageri for claimants/appellants supported impugned
award insofar as negligence and liability and submitted
that award passed by Tribunal on quantum was
inadequate and sought for enhancement. It was
submitted that deceased was a pillion rider and therefore,
he is a 3rd party, insofar as contract of insurance and as
insurance policy issued was a comprehensive policy, risk
of pillion rider was covered. Learned counsel further
submitted that even if a case of fundamental breach of
terms and conditions of policy were to be established,
insurer would at best be entitled to recover compensation
paid to claimants from insured. In support of his
submission, learned counsel relied upon of this Court in
the case of New India Assurnace Company Limited
Vs.Yallavva and others in MFA No.30131/2010,
reported in 2020(2) KCCR 1405 (FB).
7. From above submissions, occurrence of accident
was due to rash and negligent riding of motorcycle by its
rider leading to death of Kumar Mahadev is not in dispute.
Issuance of insurance policy and its validity as on date of
accident is also not in dispute. Tribunal assessed
compensation and passed award against insurer. Insurer
is challenging the award only insofar as finding regarding
liability; while claimants are seeking for enhancement of
compensation. Therefore, points that arise for
consideration are:
1) Whether Tribunal was justifie d in fastening
abso lute liability upon the insure r?
2) Whether claimants are e ntitled fo r
enhance ment o f co mpensation as sought fo r?
8. Point No.1: From perusal of written statement
filed by insurer before Tribunal, it is seen that insurer has
taken up a specific contention regarding rider of
motorcycle not having valid and effective driving licence
to ride motorcycle. Claimants did not produce driving
licence of rider. Even respondent No.1-owner failed to
produce driving licence. Without framing any issue
regarding driving licence, tribunal passed award against
insurer. Insurer filed application for leading additional
evidence under Order 41 Rule 27 of CPC and also
produced certified extract of driving licence of rider of
motorcycle. A bare perusal of same would reveal that he
was holding driving licence to drive a light motor vehicle
but on date of accident he was riding a motorcycle.
Therefore, it would amounts to breach of terms and
conditions of policy. However, deceased was a pillion
rider on motorcycle and therefore, a 3rd party. In view of
law laid down by full bench of this Court in Yallavva's
case (supra), even, where insurer is able to establish any
of defenses available to it under Section 149 of Motor
Vehicles Act, insurer cannot escape liability insofar as 3rd
parties. Relief that insurer would be entitled under such
circumstances would be to pay compensation to claimants
with liberty to recover same from insured. Point for
consideration is answered partly in affirmative as above.
9. Point no.2: On quantum of compensation,
though, it was stated that deceased Kumar Mahadev was a
28 years old agriculturist and was also a well digger
earning more than Rs.80,000/- per month, same is not
substantiated by any evidence. Mere production of
agreement or letter without examining author or
contracting party would not suffice. In absence of specific
evidence, tribunal has considered notional income. But,
accident occurred during the year 2008, notional income
for the year 2008 as per norms adopted by Karnataka
Legal Services Authority for settling cases before Lok-
adalath is Rs.4,250/-. Therefore, Tribunal would not be
justified in taking it at Rs.4,000/-. Deceased was 28
years of old and self employed. Claimants are parents,
wife and two minor children i.e. total of 5 dependents. As
per decision of Hon'ble Apex Court in case of National
Insurance Company Limited Vs. Pranay Sethi and
others, reported in AIR 2017 Supreme Court 5157,
'40%' has to be added to income of deceased towards
future prospects, deduction towards personal expenses at
' ¼ 'and multiplier applicable would be '17'. Hence, loss of
dependency would be
Rs.4250/- + 40% - ¼ X12 X 17 = Rs.09,10,350/-.
10. Claimant nos.1 and 2 would be entitled for
Rs.40,000/- towards loss of filial consortium, 3rd
claimant-wife is entitled for Rs.40,000/- towards spousal
consortium and claimant nos.4 and 5 each are entitled for
Rs.40,000/- each towards loss of parental consortium.
Apart from above, claimants are entitled for Rs.15,000/-
towards loss of estate and Rs.15,000/- towards funeral
expenses. Since more than 3 years have lapsed after
rendering of judgment in case of Pranay Sethi's(supra),
there has to be addition of 10% to award under
conventional head i.e. Rs.40,000/- X 5 +15,000/-
+15,000 + 10,000 =Rs.2,53,000/- Therefore, total
compensation would be Rs.11,63,350/-. Point no.2 is
answered partly in affirmative as above.
11. In the result, I pass following:
ORDER
1. MFA No.101504/2016 and MFA
No.100744/2017 are allowed in part.
2. Claimants in MFA No.100744/2017 are
entitled for total compensation of
Rs.11,63,350/- with interest at 6% per
annum from date of claim petition till
deposit.
3. Appellant-insurer is liable to pay
compensation to claimants and thereafter
recover same from insured without re-course
to separate proceedings.
4. Amount in deposit is ordered to be
transmitted to Tribunal for payment.
5. Insurer is directed to deposit balance
compensation within six weeks from date of
receipt of certified copy of this order.
6. On deposit, a lumpsum of Rs.1,00,000/- is
apportioned in favour of claimant no.1-father
of deceased, lumpsum of Rs.2,00,000/- in
favour of claimant no.2 - mother of deceased
and entire remaining award to be shared
equally by claimants 3 - wife and claimants
no.4 & 5 children of deceased.
7. Entire amount apportioned in favour of
claimant no.1 and 10% award amount
apportioned in favour of other claimants to
be released in favour of claimants on proper
identification. Remaining amount to be kept
in fixed deposit in any nationalised bank of
Post office, initially for a period of four years
in case of claimants 2 and 3 and until they
attain age of majority in respect of claimants
4 and 5.
Sd/-
JUDGE
H MB
