Karnataka High Court
Smt. Mahadevi W/O Fakirappa Madar vs Shri. Yasinegum S/O Madinabegum ... on 5 January, 2021
Author: N.S.Sanjay Gowda
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 5 T H DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR.JUSTICE N.S. SANJAY GOWDA
MFA NO.101541/2017 (MV-D)
C/w. MFA No.103327/2017
IN MFA NO.101541/2017:
Between:
Yashinbegum S/o.Modinabegum Mulla,
Age major, Occ: Business,
R/o.: Hirebellikatti, Tq.: Bailhongal,
Dist.: Belgavi.
... Appellant
(By Shri Venkatesh M.Kharvi, Advocate)
And:
1. Smt. Mahadevi W/o.Fakirappa Madar,
Age 46 years, Occ: Household work,
R/o.: Hirebellikatti, Tq.: Bailhongal,
Dist.: Belgavi.
2. Kumar Kareppa S/o.Fakirappa Madar,
Age 25 years, Occ: Student,
R/o.: Hirebellikatti, Tq.: Bailhongal,
Dist.: Belgavi.
3. KUmari Basawwa D/o.Fakirappa Madar,
Age 23 years, Occ: Student,
R/o.: Hirebellikatti, Tq.: Bailhongal,
Dist.: Belgavi.
:2:
4. Kumar Nagappa S/o.Fakirappa Madar,
Age 20 years, Occ: Student,
R/o.: Hirebellikatti, Tq.: Bailhongal,
Dist.: Belgavi.
5. The Divisional Manager,
Shriram General Insurance Co. Ltd.,
E-8, EPIP RIICO, Sitapur,
Jaipur, Rajastan-302022.
... Respondents
(by Shri S.K. Kayakamath, Advocate for R5;
R1 to R4 are served)
This MFA is filed under Section 173(1) of the M.V. Act,
1988 against the judgment and award dated 10.09.2014, passed
in MVC No.2777/2011 on the file of the Senior Civil Judge and
Member Addl. MACT, Bailhongal, awarding compensation of
Rs.11,32,880/- with interest at 9% p.a. from the date of petition
till its realization.
IN MFA No.103327/2017:
Between:
1. Smt. Mahadevi W/o.Fakirappa Madar,
Age 46 years, Occ: Household work,
R/o.: Hirebellikatti, Tq.: Bailhongal,
Dist.: Belgavi.
2. Kumar Kareppa S/o.Fakirappa Madar,
Age 25 years, Occ: Student,
R/o.: Hirebellikatti, Tq.: Bailhongal,
Dist.: Belgavi.
3. KUmari Basawwa D/o.Fakirappa Madar,
Age 23 years, Occ: Student,
R/o.: Hirebellikatti, Tq.: Bailhongal,
Dist.: Belgavi.
:3:
4. Kumar Nagappa S/o.Fakirappa Madar,
Age 20 years, Occ: Student,
R/o.: Hirebellikatti, Tq.: Bailhongal,
Dist.: Belgavi.
... App ellants
(By Shri Hanamant R.Latur, Advocate)
And:
1. Shri Yashinbegum S/o.Modinabegum Mulla,
Age 50 years, Occ: Business,
R/o.: Hirebellikatti, Pin-591115,
Tq.: Bailhongal, Dist.: Belgavi.
2. The Divisional Manager,
Shriram General Insurance Co. Ltd.,
E-8, EPIP RIICO, Sitapur,
Jaipur, Rajastan-302022.
... Respondents
(By Shri S.K. Kayakamath, Advocate for R2;
Shri Venkatesh M.Karvi, Advocate for R1)
This MFA is filed under Section 173(1) of the M.V.
Act, 1988 ag ainst the judgment and award dated
10.09.2014, p assed in MVC No.2777/2011 on the file
the Senior Civil Judge and Memb er Addl. MACT,
Bailhong al, partly allowing the claim petition for
comp ensation and seeking enhancement of
comp ensation.
These appeals coming on for admission, this day, the Court
delivered the following:
:4:
JUDGMENT
1. The owner of the vehicle which was involved
in the accid ent is in appeal in MFA No.101541/2017
challenging the compensation of Rs.11,32,880/-, passed
by the Tribunal, which has been saddled comp letely on
her.
2. The claim p etition was filed b y the leg al heirs
of the deceased Fakirapp a Kareppa Mad ar contending
that while Fakirapp a Karepp a Mad ar was returning to
his native place after purchase of masonry instruments
from Kittur in the vehicle owned by the app ellant, an
accid ent had occurred in which he was killed.
3. This claim petition was contested by both the
owner of the vehicle and also by the Insurance
Comp any.
4. The owner of the vehicle stated as follows in
his objections as reg ard s the claim of the claimants
about Fakirapp a Karepp a Mad ar traveling in the vehicle:
"3) It is true to say that, on the
date of the alleged accident, the
deceased Fakirappa Kareppa Madar was
traveling in the said vehicle along with
his goods."
Thus, the owner of the vehicle ad mitted that Fakirapp a
Karepp a Mad ar was traveling in the vehicle along which
his goods.
5. The Insurance Comp any contested the mater
and filed the following objections:
"I. Herein the written statement
on behalf of respondent No.2 i.e.,
Shriram GIC Ltd., Sitapur, Jaipur
(Rajasthan) the address of the
respondent No.2 for the service of
summons notice, etc., is as shown in the
cause title of the claim petition and that
of its counsel is Shri G.B. Shigihalli,
Advocate Bailhongal.
II. HEREIN, the objections of the
respondent No.2 are as und er:
1] The claim petition filed by the
petitioner is false frivolous misleading
and hence, untenable in the eye of law.
2] This respond ent specifically
submits that the Goods TATA as vehicle
No.KA-24/6696 is not at all insured with
this respond ent No.2 at the time of the
accid ent. That the owner has taken the
policy against the said vehicle No.KA-
24/6696 for the period from 01.4.2011
to 31.3.2012 vide policy
No.10003/31/12/049828. The alleged
accid ent took place on 28.03.2011 i.e,
after five day s from the date of the
alleged accident. Hence, there was no
policy and contract between the owner
of the vehicle and this respondent
insurance company at the time of the
alleged accident and therefore q uestion
of ind emnify the owner does not arise at
all and not liable to pay any
compensation to the petitioner. If the
petitioner prod uce the policy particulars
covering the d ate of accid ent then this
respondent may be permitted to file an
additional written statement in respect
of other averments. Therefore, the
present claim is liable to be dismissed
against this respondent insurance
company with cost.
For all these reasons, this
respondent most humbly prayed that the
claim petition as against this respondent
kindly be dismissed with costs, to meet
the ends of justice."
6. As could be seen from the objections from the
second respond ent, the Insurance Comp any did not
dispute the averment that the deceased was traveling in
the goods vehicle along with his goods and the
Insurance Comp any only took up the contention that
the accid ent took place on 28.03.2011 i.e., five days
before the issuance of the policy and therefore they
were not liab le.
7. The Tribunal on consid eration of the entire
evid ence add uced before it proceed ed to record a
finding that the deceased Fakirap pa Karepp a Mad ar was
killed in the motor vehicle accident which occurred on
28.03.2011, when he was returning to his native place
and that the leg al heirs were entitled to a compensation
of Rs.11,32,880/-.
8. The Tribunal has also record ed a find ing that
the cover note issued by the Insurance Comp any which
was marked as Ex.R1 indicated that the p eriod of
insurance coverage was from 18.03.2011 to 17.03.2012
and hence, the Insurance Comp any would be liab le for
payment of compensation, as the accid ent had occurred
on 28.03.2011.
9. The Trib unal has however in its order come to
the conclusion that the claimants had not p roved that
as on the date of the accident the deceased was
traveling along with goods and it therefore proceeded to
foist the liab ility of compensation completely on the
owner.
10. As stated above, it was the sp ecific case of
the claimants that the d eceased was traveling in the
goods vehicle along with his goods and this contention
was clearly ad mitted by the owner. The Insurance
Comp any did not dispute this position in its ob jections
statement. Further the witness who was examined on
behalf of the claimants as stated as follows:
"ªÀÄÈvÀ ¥ÀQÃgÀ¥Àà C¥ÀWÁvÀªÁzÀ ¢£À JzÀÄgÀÄUÁgÀ £ÀA 1 EvÀ£À ªÁºÀ£ÀzÀ°è
PÀlÖqÀ PÀlÄÖªÀ ¸ÁªÀÄVæUÀ¼ÉÆA¢UÉ CAzÀgÉ §ÄnÖ, ¹ªÉÄAl aî vÉUÉzÀÄPÉÆAqÀÄ
¥ÀæAiÀiÁt¸ÀÄwÛzÀÝ C£ÀÄߪÀÅzÀÄ ¤d"
¸ÁQëAiÀÄ£ÀÄß ¥ÀÄ£ÀB PÀgɬĹ ¥ÀæªÀiÁtÂPÀj¸À¯Á¬ÄvÀÄ.
D ¢ªÀ¸À C¥ÀWÁvÀPÉÌ EqÁVzÀÄÝ UÀÆqÀì ªÁºÀ£À C£ÀÄߪÀÅzÀÄ ¤d.
CzÀÄ mÁmÁ J¹E PÉJ:22 : n¹:060 D PÁ®PÉÌ £ÀªÀÄä vÀAzÉAiÀÄgÀ eÉÆvÉUÉ
¸ÀzÀj ªÁºÀ£ÀzÀ°è 6 jAzÀ 7 d£À ¥ÀæAiÀiÁt ªÀiÁqÀÄwÛzÀÝgÀÄ C£ÀÄߪÀÅzÀÄ ¤d.
D PÁ®PÉÌ mÁmÁJ¹E UÁr ªÀiÁ°PÀ¤UÉ ¥ÀæAiÀiÁt ¹ªÉÄAl ElÖAV EvÁå¢
ºÉÃjPÉÆAqÀÄ §gÀ®Ä 800 gÀÆ¥Á¬Ä PÉÆnÖzÀÝgÀÄ. ¸ÀzÀj UÁrAiÀÄ°è C¥ÀWÁvÀ
DzÀ PÁ®PÉÌ K£ÀÄ K£ÀÄ EzÀݪÀÅ C£ÀÄߪÀ §UÉÎ ¥ÀAZÀ£ÁªÉÄAiÀÄ°è §gÉ¢zÁÝgÉ
C£ÀÄߪÀÅzÀÄ ¤d. D mÁmÁ J¹E UÁrAiÀÄ°è 10 aî ¹ªÉÄAmï, PÀ©âtzÀ
©lÄÖ. 10 PÉÆqÀ, EvÁå¢ EzÀݪÀÅ. J®è ¥ÀAZÀ£ÁªÉÄ ªÀiÁr vÀªÀÄä vÁ¨ÁPÉÌ
vÉUÉzÀÄPÉÆAqÀÄgÀ D §UÉÎ zÁR¯É PÉÆnðUÉ PÉÆnÖzÉÝãÉ."
11. In my view, since the plea set up by the
claimants was not d isputed by the owner as well as by
the Insurance Comp any coup led with the fact that the
claimants had also categorically stated even during the
course of cross-examination (as extracted above) that
Fakirapp a Karep pa Madar was traveling in the goods
vehicle along with his goods, the Tribunal has
committed an error in holding that the claimants had
not p roved that the deceased was traveling in the
vehicle along with his goods and by fastening the
liability on the owner.
12. I therefore set aside that portion of the
award of the trib unal by which the Insurance Company
has been exonerated of the liab ility and hold that the
Insurance Comp any is liab le to satisfy the compensation
i.e., award ed for the death of Fakirapp a Karepp a Mad ar
as d etermined by the tribunal.
13. The app eal in MFA No.101541/2017 filed by
the appellant is accordingly allowed to this extent.
14. The amount d eposited by the owner shall b e
refunded to the owner-appellant.
15. Ap art from the above appeal by the Owner,
the claimants have also filed an appeal in MFA
No.103327/2017 seeking for enhancement.
16. The Tribunal in order to assess the
comp ensation that the claimants were entitled to has
come to the conclusion that it would b e just and proper
to consider the notional income of the deceased at
Rs.6,000/- per month. The accid ent is of the year 2011
and even as per the chart prepared by the Karnataka
State Leg al Services Authority for the purpose of
assessing compensation for motor vehicle accident
victims in the Lok Ad alat, for the accident of the year
2011, the notional income has been determined at
Rs.6,000/- per month.
17. I am therefore of the view that the
determination of the comp ensation on the assumption
that the deceased was earning monthly income of
Rs.6,000/- per month and the resultant compensation
of Rs. 11,32,880/- assessed by the Trib unal cannot be
found fault with. Conseq uently, the appeal in MFA
No.103327/2017 filed by the claimants seeking for
enhancement is liab le to be dismissed and is
accord ing ly dismissed.
SD/-
JUDGE
Vnp*
