Kavitha vs Lokesh
2021 Latest Caselaw 7032 Kant

                              1

      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 22ND DAY OF DECEMBER, 2021

                          BEFORE

     THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

               M.F.A. No.7774 OF 2015 (MV-D)

BETWEEN:

KAVITHA
AGED ABOUT 43 YEARS,
W/O LATE SRIKANTAIAH,
R/O HUCHALAGERE VILLAGE,
KASABA HOBLI, MANDYA TALUK,
MANDYA DISTRICT.                               ...APPELLANT

(BY SRI VINAYA KEERTHY M, ADVOCATE)

AND:

1.     LOKESH
       AGED ABOUT 40 YEARS,
       S/O MADEGOWDA,
       RESIDING AT #67,
       KOTEHUNDI VILLAGE,
       JAYAPURA HOBLI,
       MYSURU TALUK, MANDYA DISTRICT.

2.     THE MANAGER (LEGAL)
       UNITED INDIA GENERAL INSURANCE
       #1119/B, M.C.ROAD,
       MANDYA.                             ...RESPONDENTS

(BY SRI D NAGARAJ, ADVOCATE FOR R2)

                           ****
                                 2

     THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 30.07.2015 PASSED IN MVC
NO.1418/12 ON THE FILE OF THE 2ND ADDITIONAL SENIOR CIVIL
JUDGE & ADDITIONAL MACT, MANDYA, PARTLY ALLOWING THE
CLAIM     PETITION   FOR     COMPENSATION         AND      SEEKING
ENHANCEMENT OF COMPENSATION.


     THIS M.F.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                           JUDGMENT

The captioned appeal is filed by the claimants seeking

enhancement of compensation and also the finding recorded

by the Tribunal in dismissing the claim petition against the

second respondent/Insurance Company is also called in

question.

2. The appellant who is the mother of the deceased

by name H.S.Bhaskar filed a claim petition claiming

compensation of Rs.16,60,000/-. The appellant contended

that her son who was proceeding on a bicycle on 22.01.2011

and when he reached K.M.F. Dairy on Mysore-Bangalore road,

at that juncture, a Tata goods vehicle came in a rash and

negligent manner and dashed against the vehicle. On

account of the impact, appellant's son sustained grievous

injuries and was immediately admitted to the District Hospital,

Mandya where he succumbed to the injuries on the same day.

Hence, the claimant filed a claim petition seeking

compensation.

3. The first respondent did not participate in the

proceedings before the Tribunal and was placed ex-parte.

The second respondent/Insurance Company entered

appearance and denied the averments made in the claim

petition.

4. Apart from contending that the driver of the

offending vehicle did not possess valid driving license, the

second respondent also contended that there is a collusion

between claimant and first respondent owner and the vehicle

involved in the accident is falsely implicated.

5. The appellant, in support of her contentions

examined herself as PW-1 and examined one witness as PW-2

and got marked documents, Exs.P1 to P6. The second

respondent/Insurance Company examined its official as RW.1

and produced documentary evidence at Exs.R1 to R3.

6. The Tribunal, in the absence of the income proof

assessed the income of the deceased at Rs.5,000/- per month

and by adding 50% of the future prospects and deducting

50% towards personal expenses awarded a sum of

Rs.6,30,000/- under the head "loss of dependency". The

Tribunal, in all, awarded a sum of Rs.7,25,000/- while

examining the liability, the Tribunal on the ground that there

is no valid permit has exonerated the second respondent/

Insurance Company and has consequently fastened the

liability on Respondent No.1/owner of the offending vehicle.

The present appeal is filed on two grounds. One, that

compensation determined by the appellant is inadequate and

secondly, the Tribunal erred in fastening the liability on the

owner on the ground that the first respondent did not possess

valid permit as on the date of the accident, which is palpably

erroneous and in the absence of evidence to that effect.

7. Regarding quantum:

Though this Court cannot find fault with the Tribunal in

notionally assessing the income of the deceased, however,

having regard to the date of the accident, this Court is of the

view that the income assessed by the Tribunal is on the lower

side.

8. The Tribunal, while determining the compensation

under the heads of "loss of dependency" has adopted

multiplier of '14' by taking the age of the dependant, which is

erroneous and contrary to the proposition laid down by Apex

Court in the case of National Insurance Company Ltd. vs.

Pranay Sethi, reported in (2017) 16 SCC 680. In the case of

death, it is the age of the deceased, which needs to be

considered while adopting multiplier. In the absence of any

proof of income, by placing reliance on the Chart issued by

the Legal Services Authority, the income of the deceased is

notionally assessed at Rs.6,500/- and by adding 40% towards

future prospects, the income of the deceased is notionally

assessed at Rs.9,100/- and after deducting 50% towards his

personal expenses, the income is taken at Rs.4,500/- and by

applying the multiplier of '18', the compensation re-

determined under the head 'loss of dependency' works out to

Rs.9,82,800/- (6500 + 40% = 9100 minus 50% =

4500X12X18 = 9,82,800). As there is only one dependent,

by applying the principles laid down by the Hon'ble Apex

Court in the case of Magma General Insurance Co. Ltd., vs.

Nanu Ram alias Chuhru Ram & Ors. reported in 2018 (9)

SC 51, a sum of Rs.70,000/- is awarded under the

conventional heads. Hence, the total compensation re-

determined by this Court works out to Rs.10,52,800/- as

against Rs.7,25,000/- awarded by the Tribunal.

9. Re: Liability:

The Tribunal on the ground that the first respondent/

owner of the offending vehicle did not possess any valid

permit has come to a conclusion that there is breach of policy

conditions and as such, fastened the liability on the owner.

On perusal of the records, it is found that the owner of the

offending vehicle has not participated in the proceedings and

was placed ex-parte. In the present appeal, no notice is

ordered to the first respondent/owner. The accident is of the

year 2011 and the mother who has lost her son has filed a

claim petition way back in the year 2011. The Tribunal,

having placed the owner of the offending vehicle ex-parte has

fastened the liability on the owner and admittedly, judgment

and award is not challenged by the first respondent/owner

even till this date. Therefore, I am of the view that the

question of liability can be adjudicated in the absence of first

respondent/owner who was placed ex-parte. Since the

liability was fastened on the owner, no prejudice will be

caused to the first respondent, if the second

respondent/Insurance Company is directed to pay and

recover' in terms of the judgment rendered by the Full Bench

of this Court rendered in New India Assurance Company

Limited, Bijapur Vs. Yallavva W/o Yamanappa Dharanakeri

and Another reported in 2020 (2) AKR 484. Therefore, even

though notice is not ordered to first respondent/owner, to do

substantial justice to the claimant who has lost her son, I

deem it fit and proper to decide the appeal in the absence of

first respondent/owner. Since the question with regard to

breach of policy conditions is put to rest by the Full Bench of

this Court by the judgment stated supra, the appeal filed by

the claimant has to succeed in part. Though there is a

breach, second respondent/Insurance Company is still liable

to satisfy the award in terms of Section 149(1) of the Motor

Vehicles Act and thereafter, proceed to recover it from the

first respondent owner. For the reasons stated supra, the

finding recorded by the Tribunal in fastening the liability on

the owner and consequently, dismissing the claim petition

against the second respondent/Insurance Company is set

aside.

10. For the reasons stated supra, the appeal is allowed

in part. The appellant is entitled for enhanced compensation

of Rs.3,27,800/- which shall carry interest at the rate of 6%

per annum from the date of petition till its realization. The

second respondent/Insurance Company shall satisfy the

award and thereafter, recover it from the first

respondent/owner of the offending vehicle.

Sd/-

JUDGE

DH