Karnataka High Court

The Shriram General Insurance Co. ... vs Sushilabai W/O Late Shamrao And ... on 21 December, 2021

Bench: M.G.S.Kamal

                            1




          IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

      DATED THIS THE 21ST DAY OF DECEMBER, 2021

                        BEFORE

         THE HON'BLE MR.JUSTICE M.G.S.KAMAL

             MFA No.201631/2015
                    C/W
  MFA.No.201465/2015, MFA.No.201204/2016,
MFA.No.201205/2016, 201206/2016, 201207/2016
            and 201520/2016 (MV)

IN MFA.No.201631/2015

BETWEEN:

01.     SMT. ANNAPURNA W/O LATE GANGANNA BIRADAR
        AGE: 52 YEARS OCC: HOUSEHOLD

02.     SRI. ERANNA S/OLATE GANGANNA BIRADAR
        AGE: 32 YEARS OCC: AGRICULTURE

03.     SRI. VEERUPANNA LATE GANGANNA
        AGE: 30 YEARS OCC: STUDENT

04.     SRI ARVIND LATE GANGANNA
        AGE: 27 YEARS OCC: STUDENT.

        ALL R/O: BASAVANTHWADI
        TQ: ALAND DIST: KALABURAGI - 585 213.

                                       ... APPELLANTS

(BY SRI. MAHANTESH H DESAI, AND SMT.
ANURADHA M. DESAI ADVOCATES)
                              2




AND:

01.    SRI. VITHAL S/O CHANDRAPPA
       AGE: 37 YEARS OCC: OWNER AND DRIVER
       R/O: NIMBARGA VILLAGE
       TQ: ALAND DIST: KALABURAGI - 585 213.

02.    SRIRAM GENERAL INSURANCE COMPANY LTD.,
       THOUGH ITS DIVISIONAL MANAGER
       E-8, EPIP, RIICO INDUSTRIAL AREA, SITAPUR
       JAIPUR RAJASTAN STATE - 302022.

                                      ... RESPONDENTS

(BY SRI. C.S. KALABURAGI, ADVOCATE FOR R2
R1 SERVED)

       THIS MISCELLANEOUS FIRST      APPEAL    IS   FILED
UNDER SECTION 173 (1) OF THE M.V. ACT, 1988 PRAYING
TO A) CALL FOR RECORDS IN MVC.NO.253/2013 ON THE
FILE OF PRL. SENIOR CIVIL JUDGE AND MACT AT
KALABURAGI DATED 25.07.2015, B) ALLOW THE APPEAL
AND THE MODIFY THE JUDGMENT AND AWARD DATED
25.07.2015 PASSED IN MVC.NO.253/2013 ON THE FILE OF
PRL. SENIOR CIVIL JUDGE AND MACT AT KALABURAGI
AND      ENHANCING     THE       COMPENSATION       FROM
RS.4,15,000/- TO RS.14,00,000/- WITH 12% INTEREST,
C) THE RESPONDENT NO.2 INSURANCE COMPANY BE
HELD LIABLE TO PAY THE COMPENSATION TO THE
APPELLANTS, BY FIXING THE LIABILITY ON RESPONDENT
NO.2 AND ETC.,
                            3




IN MFA.NO.201465/2015

BETWEEN:


01.    SHRISHAIL S/O EKANATH MALIPATIL
       AGE: 34 YEARS OCC: NIL (PHYSICALLY
       HANDICAPPED)


02.    SMT. SHEELAVATI W/O SHRISHAIL MALIPATIL
       AGE: 30 YEARS OCC: HOUSEHOLD


03.    KUM. SHARNAMMA D/O SHRISHAIL MALIPATIL
       AGE: 09 YEARS MINOR OCC: STUDENT.


04.    MASTER SAINATH S/O SHRISHAIL MALIPATIL
       AGE: 05 YEARS OCC: MINOR OCC: NIL
       APPELLANTS NO.3 AND 4 ARE MINORS U/G OF
       THEIR NATURL FATHER APPELLANT NO.1 AND
       ALL R/O: NIMBARGA TQ: ALAND,
       DIST: KALABURAGI
       NOW R/O: KHADRI CHOWK, ALAND ROAD,
       KALABURAGI - 585 101.

                                      ... APPELLANTS


(BY SRI. BABU H. METAGUDDA, ADVOCATE)

AND:


01.    SRI. VITHAL S/O CHANDRAPPA
       AGE: 36 YEARS OCC: OWNER AND DRIVER
       R/O: NIMBARGA VILLAGE
       TQ: ALAND DIST: KALABURAGI - 585 101.
                               4




02.    THE DIVISIONAL MANAGER
       SHRIRAM GENERAL INSURANCE CO. LTD.,
       E-8, EPIP, RIICO INDUSTRIAL AREA, SITAPUR
       DIST: JAIPUR STATE: RAJASTHAN-303 022.


                                         ... RESPONDENTS


(BY SRI. B. C. JAKA, ADVOCATE FOR R1
BY SRI. C. S. KALABURAGI, ADVOCATE FOR R2)


       THIS MISCELLANEOUS FIRST         APPEAL   IS    FILED
UNDER SECTION 173 (1) OF THE M.V. ACT, 1988 PRAYING
TO A) CALL FOR RECORDS IN MVC.NO.771/2013 ON THE
FILE OF PRL. SENIOR CIVIL JUDGE AND MACT AT
KALABURAGI, B) ALLOW THIS APPEAL AND MODIFY THE
JUDGMENT AND AWARD DATED 08.06.2015 PASSED IN
MVC.NO.771/2013 BYTHE PRL. SENIOR CIVIL JUDGE AND
MACT     AT     KALABURAGIN       AND   ENHANCING       THE
COMPENSATION FROM RS.1,46,500/- WITH 6% INTEREST
TO RS.16,00,000/- WITH 12% INTEREST, C) ALLOW THIS
APPEAL AND SET-ASIDE THE JUDGMENT AND AWARD
DATED 08.06.2015 PASSED IN MVC.NO.771/2013, THE
PRL. SENIOR CIVIL JUDGE AND MACT AT KALABURAGI
AND FIXED THE LIABILITY ON THE INSURANCE COMPANY
AND    D)     ALLOW   THIS   APPEAL     AND   DIRECT    THE
INSURANCE COMPANY TO PAY THE COMPENSATION TO
THE CLAIMANT AND ETC.,
                           5




IN MFA.NO.201204/2016

BETWEEN:

THE SHRIRAM GENERAL INSURANCE CO. LTD.,
E-8, EPIP, RICCO, SITAPUR
JAIPUR (RAJASTHAN) - 302022
NOW REPRESENTED THROUGH MANAGER LEGAL
SHRIRAM GENERAL INSURANCE CO. LTD.,
NO.5/4, 3RD FLOOR, S.V. ARCADE
BELAKKAHALLI MAIN ROAD OFF,
IIMB POST BENGALURU-560 076.

                                        ... APPELLANT

(BY SRI. C. S. KALABURAGI, ADVOCATE)

AND:

01.    SUSHILABAI W/O: LATE SHAMRAO
       AGE: 43 YEARS OCC: EX-LABOUR
       GULBARGA UNIVERSITY, GULBARGA
       R/O: NIMBARGA THANDA TQ: ALAND
       DIST: GULBARGA-585 103.

02.    VITHAL S/O CHANDRAPPA
       AGE: 48 YEARS OCC: OWNER OF
       CRUISER JEEP BEARING REG.NO.
       KA-25-P-1782,
       R/O; NIMBARGA VILLAGE
       TQ: ALAND DIST: GULBARGA-585 103.


                                   ... RESPONDENTS

(BY SRI. B. ALI MOHAMMED ADVOCATE FOR R1)
                           6




       THIS   MISCELLANEOUS   FIRST   APPEAL   IS FILED

UNDER SECTION 173 (1) OF THE M.V. ACT, 1988 PRAYING

TO CALL FOR THE RECORDS AND TO SET-ASIDE THE

JUDGMENT AND AWARD DATED 19.01.2016 PASSED BY

THE PRL. SENIOR CIVIL JUDGE & MACT AT KALABURAGI

IN MVC.NO.794/2013 AND TO PASS SUCH OTHER ORDER

OR ORDERS AS THIS COURT DEEMS FIT UNDER THE

FACTS AND CIRCUMSTANCES OF THE CASE.


IN MFA.NO.201205/2016

BETWEEN:

THE SHRIRAM GENERAL INSURANCE CO. LTD.,
E-8, EPIP, RICCO, SITAPUR
JAIPUR (RAJASTHAN) - 302022
NOW REPRESENTED THROUGH MANAGER LEGAL
SHRIRAM GENERAL INSURANCE CO. LTD.,
NO.5/4, 3RD FLOOR, S.V. ARCADE
BELAKKAHALLI MAIN ROAD OFF,
IIMB POST BENGALURU-560 076.

                                         ... APPELLANT


(BY SRI. C. S. KALABURAGI, ADVOCATE)


AND:
                          7




01.   SUSHILABAI W/O SHAMRAO
      AGE: 43 YEARS OCC: EX-LABOUR

02.   MAHESH S/O LATE SHAMRAO
      AGE: 24 YEARS OCC: LABOUR

03.   PRAVEEN S/O: LATE SHAMRAO
      AGE: 22 YEARS OCC: DIPLOMA STUDENT

04.   KUMARI NIKHITA D/O LATE SHAMRAO
      AGE: 17 YEARS OCC: STUDENT MINOR
      REPRESENTED THROUGH NATURAL MOTHER
      RESPONDENT NO.1 - SUSHILABAI

05.   SONABAI W/O SERVU RATHOD
      AGE: 63 YEARS OCC: HOUSEHOLD
      ALL R/O: NIMBARGA THANDA
      TQ: ALAND DIST: GULBARGA-585 103.

06.   VITHAL S/O CHANDRAPPA
      AGE: 48 YEARS OCC: OWNER OF CRUISER
      JEEP BEARING REG.NO.KA-25-P-1782
      R/O: NIMBARGA VILLAGE TQ: ALAND
      DIST: GULBARGA-585 103.
                                   ... RESPONDENTS

(BY SRI. B. ALI MOHAMMED ADVOCATE FOR R1
R2 TO R4 ARE SERVED
SRI. AMEET KUMAR DESHPANDE, ADV., FOR R6)


     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173 (1) OF THE M.V. ACT, 1988 PRAYING
TO CALL FOR THE RECORDS AND TO SET-ASIDE THE
JUDGMENT AND AWARD DATED 19.01.2016 PASSED BY
THE PRL. SENIOR CIVIL JUDGE & MACT AT KALABURAGI
IN MVC.NO.795/2013 AND TO PASS SUCH OTHER ORDER
OR ORDERS AS THIS COURT DEEMS FIT UNDER THE
FACTS AND CIRCUMSTANCES OF THE CASE.
                           8




IN MFA.NO.201206/2016
BETWEEN:
THE SHRIRAM GENERAL INSURANCE CO. LTD.,
E-8, EPIP, RICCO, SITAPUR
JAIPUR (RAJASTHAN) - 302022
NOW REPRESENTED THROUGH MANAGER LEGAL
SHRIRAM GENERAL INSURANCE CO. LTD.,
NO.5/4, 3RD FLOOR, S.V. ARCADE
BELAKKAHALLI MAIN ROAD OFF,
IIMB POST BENGALURU-560 076.        ... APPELLANT

(BY SRI. C. S. KALABURAGI, ADVOCATE)

AND:

01.    SHANKAR S/O MOOTU RATHOD
       AGE: 48 YEARS OCC: EX-LABOUR
       R/O: NIMBARGA THANDA
       TQ: ALAND DIST: GULBARGA-585 103.

06.    VITHAL S/O CHANDRAPPA
       AGE: 48 YEARS OCC: OWNER OF CRUISER
       JEEP BEARING REG.NO.KA-25-P-1782
       R/O: NIMBARGA VILLAGE TQ: ALAND
       DIST: GULBARGA-585 103.
                                    ... RESPONDENTS

(BY SRI. B. ALI MOHAMMED ADVOCATE FOR R1
SRI. AMEET KUMAR DESHPANDE, ADV., FOR R2)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173 (1) OF THE M.V. ACT, 1988 PRAYING
TO CALL FOR THE RECORDS AND TO SET-ASIDE THE
JUDGMENT AND AWARD DATED 19.01.2016 PASSED BY
THE PRL. SENIOR CIVIL JUDGE & MACT AT KALABURAGI
IN MVC.NO.796/2013 AND TO PASS SUCH OTHER ORDER
OR ORDERS AS THIS COURT DEEMS FIT UNDER THE
FACTS AND CIRCUMSTANCES OF THE CASE.
                           9




IN MFA.NO.201207/2016
BETWEEN:
THE SHRIRAM GENERAL INSURANCE CO. LTD.,
E-8, EPIP, RICCO, SITAPUR
JAIPUR (RAJASTHAN) - 302022
NOW REPRESENTED THROUGH MANAGER LEGAL
SHRIRAM GENERAL INSURANCE CO. LTD.,
NO.5/4, 3RD FLOOR, S.V. ARCADE
BELAKKAHALLI MAIN ROAD OFF,
IIMB POST BENGALURU-560 076.        ... APPELLANT

(BY SRI. C. S. KALABURAGI, ADVOCATE)

AND:

01.    SMT. SUJATA W/O SOMANATH CHAVHAN
       AGE: 22 YEARS OCC: EX-LABOUR
       R/O: NIMBARGA THANDA
       TQ: ALAND DIST: GULBARGA-585 103.

06.    VITHAL S/O CHANDRAPPA
       AGE: 48 YEARS OCC: OWNER OF CRUISER
       JEEP BEARING REG.NO.KA-25-P-1782
       R/O: NIMBARGA VILLAGE TQ: ALAND
       DIST: GULBARGA-585 103.
                                    ... RESPONDENTS

(BY SRI. B. ALI MOHAMMED ADVOCATE FOR R1
SRI. AMEET KUMAR DESHPANDE, ADV., FOR R2)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173 (1) OF THE M.V. ACT, 1988 PRAYING
TO CALL FOR THE RECORDS AND TO SET-ASIDE THE
JUDGMENT AND AWARD DATED 19.01.2016 PASSED BY
THE PRL. SENIOR CIVIL JUDGE & MACT AT KALABURAGI
IN MVC.NO.797/2013 AND TO PASS SUCH OTHER ORDER
OR ORDERS AS THIS COURT DEEMS FIT UNDER THE
FACTS AND CIRCUMSTANCES OF THE CASE.
                           10




IN MFA.NO.201520/2016
BETWEEN:
VITHAL S/O CHANDRAPPA
AGE: 37 YEARS OCC: OWNER AND DRIVER
R/AT: NIMBERGA TQ: ALAND
DIST: KALABURAGI.                   ... APPELLANT
(BY SRI. B. C. JAKA, ADVOCATE)
AND:
01.    SRI. SRISHAIL S/O EKANATH MALIPATIL
       AGE: 35 YEARS OCC: NIL
02.    SMT. SHEELAVATI W/O SRISHAIL MALIPATIL
       AGE: 31 YEARS OCC: HOUSEHOLD
03.    KUM. SHARNAMMA D/O SRISHAIL MALIPATIL
       AGE: 10 YEARS MINOR OCC: STUDENT.
04.    MASTER SAINATH S/O SRISHAIL MALIPATIL
       AGE: 06 YEARS OCC: NIL
       RESPONDENTS NO.3 AND 4 ARE U/G
       RESPONDENT NO.1 BEFORE THE TRIBUNAL
       ALL THE RESPONDENTS NO.1 TO 4 ARE
       R/O: AT NIMBERGA
       TQ: ALAND DIST: KALABURAGI-585 302.
                                    ... RESPONDENTS
(BY SRI. BABU H. METAGUDDA FOR R1 AND R2
SRI. C. S. KALABURAGI, ADVOCATE FOR R5
R3 AND R4 ARE MINORS REPRESENTED BY R1)
     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173 (1) OF THE M.V. ACT, 1988 PRAYING
TO ALLOW THE APPEAL AND SET-ASIDE THE JUDGMENT
AND AWARD DATED 08.06.2015 PASSED BY THE PRL.
SENIOR CIVIL JUDGE AND MACT AT KALABURAGI IN
MVC.NO.771/2013.
     THESE APPEALS BEING HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-
                              11




                         JUDGMENT

These sets of Miscellaneous First Appeals pertain to

an accident dated 13.09.2012 which occurred at about

10.30 a.m. involving a Jeep bearing No.KA-25-P-1782

dashing against an electricity pole. The said Jeep was

carrying nine persons of which three persons died and

three got injured.

02. By order dated 25.07.2015 passed in

MVC.No.253/2013 and by an order dated 08.06.2015

passed in MVC.No.771/2013 the MACT while awarding the

compensation has however, fixed the liability of payment

of the compensation on the owner - cum - driver of the

Jeep who is the respondent No.1 before the MACT.

03. By a common order dated 19.01.2016 passed

in MVC.Nos.794/2013, 795/2013, 796/2013 and 797/2013

the MACT, while awarding the compensation has directed

the insurance company to pay the compensation.

04. These contradictory findings by the MACT while

adjudicating the claim petitions arising out of the same

accident has led to file the aforesaid MFAs.

05. Since, the subject matter is one, the same and

these appeals are taken up for common disposal.

06. The Miscellaneous Appeals arising out of the

respective claim petitions before the Tribunal are as

follows:-

a. The MFA.No.201631/2015 has been filed by legal representatives of the deceased - Ganganna in MVC.No.253/2013 against the judgment and decree dated 25.07.2015 passed by the MACT-Kalaburagi.

b. The MFA.No.201465/2015 has been filed by the legal representatives of the deceased - Ekanath in MVC.No.771/2013 against the judgment and decree dated 08.06.2015 passed by the MACT-Kalaburagi.

c. The MFA.No.201520/2016 has been filed by the owner of the Jeep - respondent No.1 in MVC.No.771/2013 against the judgment and decree dated 08.06.2015 passed by the MACT- Kalaburagi.

d. The MFA.No.201204/2016 has been filed by the insurance company - respondent No.2 in MVC.No.794/2013 against the judgment and decree dated 19.01.2016 passed by the MACT- Kalaburagi.

e. The MFA.No.201205/2016 has been filed by the insurance company - respondent No.2 in MVC.No.795/2013 against the judgment and decree dated 19.01.2016 passed by the MACT- Kalaburagi.

f. The MFA.No.201206/2016 has been filed by the insurance company - respondent No.2 in MVC.No.796/2013 against the judgment and decree dated 19.01.2016 passed by the MACT- Kalaburagi.

g. The MFA.No.201207/2016 has been filed by the insurance company - respondent No.2 in MVC.No.797/2013 against the judgment and decree dated 19.01.2016 passed by the MACT- Kalaburagi.

07. The brief facts :-

That on 13.09.2012 at about 10.30 a.m. deceased -

Ganganna, Ekanath and Shamrao and injured Sushilabai,

Shankar and Sujata were going from Nimbarga to

Gulbarga to attend a function in Cruiser Jeep bearing

No.KA-25-P-1782 driven by its owner cum driver - the

respondent No.1. When they reached near Ambedkar

School opposite New day Dhaba at Pattan, the driver of

Jeep drove the same in a rash and negligent manner, he

having lost control over the vehicle and dashed it to a

electricity board, resulting in grievous injuries to

Ganganna, Ekanath, Shamrao, Sushilabi, Shankar and

Sujata. Due to the injures the said Ganganna, Ekanath and

Shamrao, succumbed to the same during the treatment.

08. Thereupon the claim petition in

MVC.No.253/2013 under Section 166 of the M.V. Act was

filed by the wife and children of deceased - Ganganna,

claiming compensation on the premise that the deceased

was aged about 60 years, hale and healthy was doing

agricultural work earning `.2,00,000/- per annum and was

contributing the same to the welfare of the family. That

untimely death of the deceased on account of the accident

that was caused due to the negligence on the part of the

respondent No.1 - owner-cum-driver of the Jeep which was

duly with the respondent No.2 - insurance company, they

are jointly and severally liable to pay the compensation.

09. The claim petition in MVC.No.771/2013 under

Section 166 of the M.V. Act was filed by the son, daughter-

in-law and grandchildren of the deceased - Ekanath,

claiming compensation on the premise that the deceased

was aged about 60 years and hale and healthy was doing

agricultural work earning `.9,000/- per month and was

contributing the same to the welfare of the family. That

untimely death of the deceased on account of the accident

that was caused due to the negligence on the part of the

respondent No.1 - owner-cum-driver of the Jeep which was

duly with the respondent No.2 - insurance company, they

are jointly and severally liable to pay the compensation.

10. The claim petitions in MVC.Nos.794/2013,

796/2013 and 797/2013 were filed by the injured -

Sushilabai, Shankar and Sujata respectively claiming

compensation for the injuries suffered by them.

11. The claim petition in MVC.No.795/2013 under

Section 166 of the M.V. Act was filed by the legal

representatives of deceased - Shamrao, claiming

compensation on account of death.

12. On service of notice, respondents appeared

and filed separate written statement. The respondent No.1

in his written statement denied the contention of the claim

petition and also denied the age, income and occupation of

the deceased persons. It is contended that the Jeep was

insured with respondent No.2 and the policy was valid and

effective as on the date of the accident, as such he was

not liable to pay the compensation. It was further

contended that the deceased and others persons who were

traveling in the Jeep were his co-villagers and were

proceedings in the Jeep as family friends and as such there

was no violation of terms and policy. Hence, sought to

dismissal of the petitions.

13. The respondent No.2 - insurance company

denied the petitions averments and contended that the

registration certificate, fitness certificate of the vehicle and

the driving license of the driver were not valid and

effective as on the date of the accident. That the policy

was private car package policy. But the vehicle was used

by the respondent No.1 for commercial purpose as stage

carriage. As such respondent No.2 was not liable to pay

the compensation, since there was violation of terms and

conditions of the policy. Hence, sought for dismissal of the

claim petitions.

14. The Tribunal framed issues and recorded

evidence. The claimants in respective claim petitions have

examined themselves as witnesses and have exhibited

common documents such as FIR, Complaint, Charge

Sheet, Mahazar, Inquest Report, IMV Report, marked as

Exs.P.1, 2, 3, 4 and 7 respectively and have also marked

P.M. report and death certificates in the case of the claim

arising out of death. They have marked wound certificates

and medical bills in the cases of claims arising out of

injuries.

15. One common witness by name Chandrakant V.

Naik, a legal officer of the Insurance Company has been

examined as RW.1 in all the cases and marked five

common documents as Exs.R.1 to Ex.R.5 on behalf of the

insurance company.

16. The MACT by its judgment and order dated

25.07.2015 passed in MVC.No.253/2013 on appreciation of

evidence held that the deceased - Ganganna died in the

accident that was caused on account of rash and negligent

driving of the Jeep by respondent No.1 and consequently

held that the claimants were entitled for a compensation of

`.4,15,500/-.

17. The MACT by its judgment and order dated

08.06.2015 passed in MVC.No.771/2013 on appreciation of

evidence held that the deceased - Ekanath had died in the

accident that was caused on account of rash and negligent

driving of the Jeep by respondent No.1 and consequently

held that the claimants were entitled for a compensation of

`.1,46,000/-.

18. However, in the aforesaid two judgments and

awards dated 25.07.2015 and 08.06.2015 the Tribunal

fixed the liability to pay the compensation on the

respondent No.1 - owner-cum-driver of the Jeep and

exonerated the respondent No.2 - insurance company from

payment of compensation on the premise that the

respondent No.2 - insurance company had issued the

policy in respect of the Jeep which was a private package

policy and that the vehicle was used for the commercial

purpose as a stage carriage. Therefore, there was violation

of terms of the policy.

19. However, the MACT by its subsequent common

judgment and award dated 19.01.2016 passed in

MVC.Nos.794/2013, 795/2013, 796/2013 and 797/2013,

while awarding the compensation has held that there was

no violation of terms of the policy by the respondent No.1

- owner-cum-driver of the Jeep and as such directed the

insurance company to pay the compensation.

20. Aggrieved by the aforesaid two conflicting

judgments and awards passed by the Tribunal, the

claimants, owner-cum-driver of the Jeep as well as the

insurance company are before this Court in the aforesaid

Miscellanies First Appeals.

21. The learned counsel for the appellants in

MFA.Nos.201631/2015 (filed by the claimants in

MVC.No.253/2013) MFA.No.201465/2015 (filed by the

claimants in MVC.No.771/2013) and MFA.No.201520/2016

(filed by the owner cum driver of the Jeep) submitted that

the Tribunal grossly erred in fixing the liability on the

respondent No.1 without any evidence of the respondent

No.1 using the vehicle for the commercial purpose or

carrying the inmates on hire charges. That the vehicle was

covered by a comprehensive policy covering the risk of all

the inmates of the Jeep and that there was no reason

justifying exoneration of the insurance company from

payment of liability. There was no evidence to the effect

that the deceased and the injured persons were traveling

as a paid passengers in the Jeep. Thus, the Tribunal erred

in fixing the liability on the respondent No.1 owner-cum-

driver of the Jeep.

22. As regard the compensation it was submitetd

that the Tribunal without considering the material evidence

awarded very low compensation. Further, the deduction

made by the Tribunal towards personal and living expenses

of the deceased was without considering the number of the

dependents. Hence, sought for enhancement of

compensation.

23. The learned counsel for the insurance company

in the aforesaid Miscellaneous First Appeals justifying the

judgments and awards passed by the Tribunal submitted

that the Tribunal has rightly taken into consideration the

facts and circumstances of the case and assessed the

compensation and in view of violation of the terms of the

policy has rightly fix the liability on the respondent No.1

owner-cum-driver of the jeep. Hence, sought for dismissal

of the appeal.

24. However, the learned counsel for the insurance

company while submitting the arguments in

MFA.Nos.201204/2016, 201205/2016, 201206/2016 and

201207/2016 submitted that the Tribunal erred in not

appreciating the material evidence made available on

record with regard to the violation of the terms of the

policy by the respondent No.1 - owner-cum-driver of Jeep

who has used the Jeep for commercial stage carriage

purposes by collecting the hire charges from the inmates

while carrying them to Gulbarga. He submits that the order

passed in these MFAs fixing the liability on the insurance

company is illegal and unjustified.

25. Heard the learned counsel for the parties and

perused the records.

26. On thoughtful consideration of the submissions

made by the respective counsel in the aforesaid appeals

and on perusal of records, the points that arise for

consideration are:-

I. Whether the appellants - claimants, owner-

cum-driver in MFA.Nos.201631/2015,

201465/2015 and 201520/2016 have made

out any ground for interference with the

judgment and award passed by the MACT

fixing the liability on the owner-cum-driver

of the Jeep.

II. Whether the appellant - insurance company

in MFA.Nos.201204/2016, 201205/2016,

201206/2016 and MFA.No.201207/2016

has made out a case for interference with

the judgment and order of the Tribunal

regarding the determination of liability?

III. Whether the appellants - claimants in

MFA.Nos.201631/2016, 201465/ 2016 have

made out a case of enhancement of

compensation?

Regarding Liability :-

27. The Tribunal in MVC.Nos.253/2013 and

771/2013 relying upon the evidence of RW.1 - the legal

officer of the insurance company and on the contents of

FIR and also on the statement made by the claimant in the

claim petition, has come to the conclusion that the vehicle

was used for commercial purposes. Further the Tribunal

has held that since the policy was a private package policy

issued by the respondent No.2 in respect of the Jeep

covering the risk of inmates and the respondent had used

the vehicle for commercial purpose, there was a violation

of terms of the policy.

28. This finding of the Tribunal is devoid of any

evidence and also contrary to the law. It is settled

principle of law that whenever the insurances company

sets up a defense with regard to the breach of terms of the

policy, the burden of proving the breach of terms of policy

is on the insurance company. Such burden has to be

discharged by leading acceptable and cogent evidence. The

Tribunal cannot infer the breach of terms of policy, from

the circumstances and probabilities in the absence of any

material evidence on record.

29. In the instant case except the self-serving

statement of RW.1 who is the legal manager of insurance

company without producing any direct material evidence,

the insurance company cannot be said to have discharged

its burden of proving the breach of terms of policy by

respondent No.1. The insurance company has not

examined the investigating officer who has filed the

investigation papers and documents. The insurance

company has also not examined any independent

witnesses. It has also not produced any documentary

evidence to establish the fact that the inmates of the

vehicle had paid any hire charges to the respondent No.1.

Merely because in the FIR there is reference to the inmates

of the Jeep boarded opposite to Bus-Stop and that the

respondent No.1 has not stated regarding his acquitance

with all the inmates of the Jeep, the same cannot be held

sufficient proof of the respondent No.1 using the Jeep for

commercial stage carriage purposes.

30. Further, admittedly, the Jeep in question was

permitted to carry 11 + 1 passengers. The comprehensive

package policy covered all the inmates of the car. The FIR,

would reveal that the respondent No.1 was carrying 09

persons in the Jeep. Thus, in the absence of any material

evidence of the inmates of Jeep paying any hire charges to

the respondent No.1 and since the number of inmates

found in the jeep, the finding of the Tribunal that there

was violation of terms of policy by the respondent No.1

cannot be countenanced and therefore the same is liable to

be reversed.

31. The Tribunal in its order passed in

MVC.Nos.794/2013 to 797/2013, while fixing the liability

on the insurance company exonerating the owner-cum-

driver of the vehicle for payment of liability, has

elaborately dealt with the facts and circumstances of the

case. The said reasoning given at Para No.17 of its

judgment, as in line and consonance with the reasoning

given herein above in fixing the liability on the insurance

company.

32. In view of the aforesaid conclusion arrived by

this Court regarding liability the appeals filed by the

insurance company questioning the liability determined by

the Tribunal in MVC.Nos.794/2013 to 797/2013 fixing the

liability on the insurance company would not survive for

consideration.

33. The point No.1 and 2 raised for consideration

are answered accordingly.

Regarding Quantum :-

MFA.No.201631/2015

34. As regards, the issue of payment of

compensation it is contended on behalf of the claimants

that the deceased aged about 60 years and earning

`.2,00,000/- per annum. However, no evidence in this

regard is produced. The Tribunal has taken the income of

the deceased at `.6,000/- per month. This Court in the

absence of any material evidence with regard to income of

the deceased, takes into consideration the chart prepared

by the Karnataka Legal Services Authorities, wherein the

income of the victims road traffic accident of the year 2012

is assessed at `.6,500/-. Therefore, the income of the

deceased has to be taken at `.6,500/- per month. Since,

the age of the deceased was 60 years in terms of the law

laid down by the Hon'ble Supreme Court in the case of

National Insurance Company Limited vs. Pranay

Sethi, (2017) 16 SCC 680, 10% of the income has to be

added towards future prospects. Thus the monthly income

of the deceased would be `.6,500 + 10% (`.650/-) =

`.7,150/-. In view of the deceased leaving behind 04

dependents, the deduction has to be 1/4th. Applying the

multiplier of 9 the loss of dependency would be

`.5,79,204/- (`.7,150x 12 x 9 minus 1/4th).

35. In view of law laid down by the Hon'ble

Supreme Court in the case of Magma General Insurance

Company Limited vs Nanu Ram Alias Chuhru Ram

and others reported in (2018) 18 SCC 130, United

India Insurance Company Limited vs. Satinder Kaur

@ Satwinder Kaur and others reported in 2020 SCC

Online SC 410 and The New India Assurance

Company Limited vs. Smt. Somwati and Others,

(2020)9 SCC 644, the claimant No.1 being wife,

claimants No.2 to 4 being children are entitled for

`.40,000/- each (`.40,000x4 = `.1,60,000/-) towards loss

of spousal and filial consortium. In addition they are

entitled for `.15,000/- towards loss of estate and

`.15,000/- towards funeral expenses. Therefore, the

compensation awarded by the Tribunal deserves to be re-

determined and re-calculated as follows:-

  Sl.                                   Awarded by the     Enhanced by this
                  Heads
  No.                                       Tribunal             Court
  01.   Towards        loss      of    `.3,24,000/-       `. 5,79,204/-
        dependency
  02.   Towards love and affection     `.00,10,000/-              -
  03.   Medical Expenses               `.00,66,414/-              -
  04.   Towards             Funeral,   `.00,15,000/-      `.00,15,000/-
        Transportation    of   dead
        body and obsequies
  05.   Towards loss of Estate                 -          `.00,15,000/-
  06.   Towards loss of consortium             -          `.01,60,000/-
        Total                           `.04,15,414       `.7,69,204/-
                                       (rounded upto
                                       `.4,15,500/-)





MFA.No.201465/2015

36. As regards, the issue of payment of

compensation it is contended on behalf of the claimants

that the deceased aged about 60 years and earning

`.9,000/- per month. However, no evidence in this regard

is produced. The Tribunal has taken the income of the

deceased at `.4,500/- per month. Since, the accident is of

the year 2012 as assessed in the previous case, even inthe

present case the notional income of the deceased is

assessed `.6,500/- per month. Since, the age of the

deceased was 60 years, 10% of the income has to be

added towards future prospects. Thus the monthly income

of the deceased would be `.6,500/- + 10% (`.650/-) =

`.7,150/-.

In this case the deceased left behind his son

claimant No.1, daughter-in-law the claimant No.2 and

grandchildren claimants No.3 and 4. The claimants No.2 to

4 cannot be considered to be legal representatives during

the lifetime of claimant No.1. Therefore, 50% of the

income needs to be deducted towards personal expenses

considering the claimant No.1 to be the sole dependent

who is also stated to be Handicap person. Applying the

multiplier of 9 the loss of dependency would be

`.3,86,100/- (`.7,150/- x 12 x 9 minus 50% ).

37. The claimant No.1 being son is entitled for

`.40,000/- towards loss of filial consortium. In addition

they are entitled for `.15,000/- towards loss of estate and

`.15,000/- towards funeral expenses. Therefore, the

compensation awarded by the Tribunal deserves to be re-

determined and re-calculated as follows:-

  Sl.                                   Awarded by the    Enhanced by this
                   Heads
  No.                                       Tribunal            Court
  01.   Towards        loss      of    `.1,21,500/-      `. 3,86,100/-
        dependency
  02.   Towards love and affection     `.00,10,000/-              -
  03.   Medical Expenses                       -                  -
  04.   Towards             Funeral,   `.00,15,000/-     `.00,15,000/-
        Transportation    of   dead
        body and obsequies
  05.   Towards loss of Estate                 -         `.00,15,000/-
  06.   Towards loss of consortium             -         `.0,40,000/-
        Total                          `.01,46,500       `.4,56,100/-

38. Hence, the point No.3 raised for consideration is answered accordingly.

39. No appeals are filed by other persons seeking enhancement of the compensation.

40. In the result, the following;

ORDER

(i) The MFA.No.201631/2015 filed by the appellants -

claimants is partly allowed. The judgment and award

dated 25.07.2015 passed in MVC.No.252/2013 by

the Principal Senior Civil Judge and MACT at

Kalaburagi, is modified. The claimants are held

entitled for a total compensation of `.7,69,204/-

together interest at the rate of 6% p.a. from the

date of claim petition till payment.

(ii) The MFA.No.201465/2015 filed by the appellants -

claimants is partly allowed. The judgment and award

dated 08.06.2015 passed in MVC.No.771/2013 by

the Principal Senior Civil Judge and MACT at

Kalaburagi, is modified. The claimants are held

entitled for a total compensation of `.4,56,100/-