Karnataka High Court

Mallavva W/O Raghavendra Gari vs The Manager National Insurance on 25 February, 2021

Author: N.S.Sanjay Gowda

        IN THE HIGH COURT OF KARNATAKA
                DHARWAD BENCH

 DATED THIS THE 25 T H DAY OF FEBRUARY 2021

                              BEFORE

 THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA

           M.F.A.NO.100093/2016(MV)
                      C/W
           MFA.CROB.NO.100093/2016

IN M.F.A.N O.100093/2016(MV)

BETWEEN:

The Manager,
National Insurance Company Ltd.,
Patoco Prabhu Building,
1732, Ramdev Galli, Belagavi,
Represented through its
Regional Office,
National Insurance Company Ltd.,
2nd Floor, Arihantha Complex,
Kusugal Road, Hubballi,
Represented by its Deputy Manger.
                                       ... APPELLANT
(By Sri N.R.Kuppelur, Adv.)

AND :

1.   Smt.Malavva
     W/o Raghavedra Gari,
     Age : 25 years,
     Occ: Household Work,
     R/o Shindihatti, Tq: Hukkeri,
     Dist; Belagavi.

2.   Hanamanth
                                :2:



      S/o Raghavendra Gari
      Age : 08 years.

3.    Madhuri
      D/o Raghavendra Gari,
      Age : 5 years.

      Since the respondents No.2 & 3 are the

minors represented by respondent No.1.

4. Smt.Ratnavva W/o Hanamanthappa Gari Age : 68 years, Occ: Household Work,

The respondent Nos.1 to 4 are the Resident of Shindihatti Village, Tq: Hukkeri, Dist; Belagavi.

5. Sri Laxman S/o Ramappa Hukkeri, Age : Major, Occ: Business, R/o Badal Ankalagi, Tq: & Dist: Belagavi.

6. Sri Basavaraj S/o Rudrappa Suryavanshi, Age : Major, Occ: Business, R/o Shindihatti Village, Post: Hiddal Dam, Tq: Hukkeri, Dist: Belagavi.

7. Sri Parushram S/o Lakappa Madhar, Age : Major, R/o Shindihatti Village, Post: Hiddal Dam, Tq: Hukkeri, Dist: Belagavi.

... RESPONDENTS (By Sri K.H.Bagi Adv. for R.1 to R4.) (By Sri B.Nitin Adv. For R.5) Sri Ashok A. Naik, Adv. for R.7)

This miscellaneous first appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988 praying this Court to set aside the judgment and award dated 28.07.2015 passed by the I Addl. District Judge & MACT-II Belgavi in MVC.No.438/2013 in the interest of justice and equity.

IN MFA.CROB.N O.100093/2016

BETWEEN :

1. Smt.Malavva W/o Raghavedra Gari, Age : 26 years, Occ: Household, R/o Shindihatti, Tq: Hukkeri, Dist; Belagavi.

2. Hanamanth S/o Raghavendra Gari Age : 08 years minor Reptd. By Guardian mother Sri Malavva W/o Reghavendra Gari, Cross Objector No.1.

3. Madhuri D/o Raghavendra Gari, Age : 06 years minor Reptd. By Guardian mother Sri Malavva W/o Reghavendra Gari, Cross Objector No.1.

... CROSS OBJECTORS (By Sri K.H.Bagi, Adv.)

AND

1. The Manager, The National Insurance Company Ltd., Patoco Prabhu Building, 1732, Ramdev Galli, Belagavi, Dist: Belagavi.

2. Sri Laxman S/o Ramappa Hukkeri, Age about 26 years, Occ: Business, R/o Badal Ankalagi, Tq: & Dist: Belagavi.

3. Sri Basavaraj Rudrappa Suryavanshi Age about 40 years, R/o Shindihatti, Tq: hukkeri, Dist: Belagavi.

4. Sri Parusharam Lakkappa Madhar, Age about 40 years, R/o Shindihatti, Tq: hukkeri, Dist: Belagavi.

5. Smt.Ratnawwa W/o Hanamanthappa Gari, Age about 67 years, Occ: Household, R/o Shindihatti, Tq: Hukkeri, Dist: Belagavi.

... RESPONDENTS (By Sri N.R.Kuppelur, Adv for R.1) (By Sri Ashok A. Naik Adv for R2)

This MFA Cross objection is filed under Order XLI Rule 22 of CPC praying this Court be pleased to modify the judgment and award dated 28.07.2015 passed by the learned I Addl. District Judge, & MACT-II Belagavi in MVC.No.438/2013 and to enhance the compensation from Rs.12,76,000/- to more as determined by this Hon'ble Court in the interest of justice and equity.

The appeal and the cross objection coming on for orders this day, the court delivered the following:

: JUDGMEN T :

Learned counsel Sri N.R.Kuppelur accepts notice

for respondent-insurance comp any and learned counsel

Sri Ashok A.Naik accep ts notice for respondent-owner in

MFA.CROB.No.100093/2016.

2. MFA.No.100093/2016 is by the insurer

challenging the liab ility.

3. MFA.CROB.No.100093/2016 is by the claimant

seeking for enhancement.

4. It is not in dispute that the accident occurred

between a motorcycle and a goods temp and as a result

of the said accid ent, the pillion rider Raghavendra Kari

suffered grievous injuries and ultimately succumbed to

the same.

5. The Trial Court after record ing the find ing

that the accid ent did take place, on analysis of the

evid ence has come to the conclusion that the goods

tempo was responsible to the extent of 75% and the

motorcycle rider was responsib le to the extent of 25%.

6. The Tribunal has thereafter proceed ed to

award the following compensation.

   Sl.                                        Amount in
                      Particulars
   No.                                            Rs.
    1     Towards     loss of consortium       1,00,000/-
    2     Towards     medical exp enses          31,495/-
    3     Towards     love and affection       1,00,000/-
    4     Towards     loss of estate             25,000/-
    5     Towards     funeral exp enses.         25,000/-
    6     Towards     loss of d epend ency     9,94,500/-
                      TOTAL                   12,75,995/-

7. It is the case of the insurer that since both

rider of the motorcycle and the goods tempo were

charg e sheeted , the contrib utory neglig ence to the

extent of 50% ought to have been apportioned against

the motorcycle rider. The other ground raised b y the

insurer is that the rid er of the goods tempo possessed

only LMV licence and therefore the insurer could not be

made liable.

8. Learned counsel for the cross objector on the

other hand contended that the Tribunal has not award ed

future prospects and therefore comp ensation awarded

was inad equate.

9. The Trib unal on detailed analysis of the

accid ent and looking into the nature of the d amage

caused to both the vehicles has come to the conclusion

that the driver of the goods tempo was neglig ent to the

extent of 75% and the rid er of the motorcycle was the

negligent to the extent of 25%. In my view this

apportionment of neglig ence cannot b e found fault with

since same is based on the fact that the evidence

indicated that the accident occurred in the manner

statement in the panchanama. I therefore uphold the

apportionment of the negligence as determined by the

Tribunal.

10. As for as the compensation is concerned the

Tribunal has taken the notional income of the deceased

at Rs.6,500/- since there was no evid ence to

substantiate the contention. The amount determined by

the Tribunal as notional income is in concerns with the

notional income determined by the Karnataka State

Leg al Services Authority and hence the determination of

notional income at Rs.6,500/- will have to be

confirmed.

11. The Tribunal has however, not added future

prosp ects to the said notional income as it is held that

the deceased was having income at Rs.6,500/- per

month and the deceased was ag ed about 25 years 40%

would have to be added as future prospects to the

notional income which would result in notional income

of the deceased to be at Rs.9,100/-. Out of the same,

¼ would have to be d educted towards personal

exp enses of the deceased which would result in income

of the deceased to be at Rs.6,825/-. As the deceased

was 25 years, a multiplier of "17" will have to be

adopted . Thus the claimants would be entitled to

comp ensation towards loss of dependency would be

Rs.13,92,300/- (Rs.6,825/- X 12 X 17)

12. In add itional to the said sum, each of the

claimants would be entitled to Rs.40,000/- toward s loss

of consortium in view of the d ecision of the Hon'ble

Sup reme Court in the case of Magma General Insurance

Company Limited V/s Nanu Ram Alia Chuhru Ram and

others reported in (2018) SCC 130.

13. The claimants are also be entitled to sum of

Rs.30,000/- under conventional heads.

14. The Tribunal has award ed sum of Rs.31,495/-

towards medical exp enses since the said award is based

on the documentary evid ence on record and the same is

affirmed.

15. Consequently the claimants are entitled to

receive comp ensation on the following heads.

    Sl.                                  Amo unt in
                   Particulars
    No.                                     Rs.
     1      Loss of d ep endency         13,92,300/-
            (Rs.6,825/- X 12 X 17)
      2     Loss of consortium            1,60,000/-
            (Rs.40,000x4)
     3      Loss of estate                  15,000/-
     4      Funeral exp enses               15,000/-
     5.     Medical Expenses                31,495/-
                   TOTAL                16,13,795/-

16. Out of the said sum the insurer is directed to

pay 75% of the comp ensation with interest at the rate

of 6% per annum from the d ate of petition till the date

of deposit within a p eriod of eight weeks from the date

of receipt of cop y of this judgment.

17. As far as the contention reg ard to driving

licence is concerned in view of the judgment rendered

by the Hon'ble Sup reme Court in the case of Mukund

Dewangan Vs. Oriental Insurance Company Limited,

reported in (2017) 14 SCC 663, it is not necessary for

the LMV licence hold er to possess an endorsement that

he was also permitted to drive the a transport vehicle.