Karnataka High Court
M/S. Icici Lombard General ... vs Smt. Mahadevamma on 12 January, 2021
Author: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.2004 OF 2015(MV)
C/W
MFA No.287 OF2016(MV)
IN MFA 2004/2015
BETWEEN:
M/S ICICI LOMBARD GENERAL
INSURANCE COMPANY LIMITED
NO.204, 1ST FLOOR,
MYTHRI ARCADE
KANTHARAJ URS ROAD
SARASWATHIPURAM
MYSORE-570001.
REPRESENTED BY ITS
MANAGER LEGAL.
... APPELLANT
(BY SRI. LAKSHMINARASAPPA, ADV. FOR
SRI. A.M. VENKATESH, ADV.)
AND
1. SMT. MAHADEVAMMA
W/O LATE. SRIKANTEGOWDA
AGED ABOUT 49 YEARS.
2. SRI. ARJUNGOWDA
2
S/O LATE SRIKANTEGOWDA
AGED ABOUT 23 YEARS.
BOTH ARE R/AT
KADUKOTHANAHALLI VILLAGE
C.A.KERE HOBLI
MADDUR TALUK
MANDYA DISTRICT-571 401.
3. SRI. SATHISH K.,
S/O SRI. KAPANIGOWDA @ BILIYAPPA
AGED ABOUT 36 YEARS
R/AT KADUKOTHANAHALLI VILLAGE
C.A. KERE HOBLI
MADDUR TALUK
MANDYA DISTRICT-571401.
... RESPONDENTS
(BY SRI.R.PRAMOD, ADV. FOR R1 & R2:
R3 SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED: 27.12.2014 PASSED IN MVC NO.830/2014 ON
THE FILE OF THE SENIOR CIVIL JUDGE, MACT,
MADDUR, AWARDING COMPENSATION OF
RS.8,99,000/- WITH INTEREST @7% P.A. FROM THE
DATE OF PETITION TILL REALIZATION.
IN MFA 287/2016
BETWEEN
1. SMT. MAHADEVAMMA
W/O LATE. SRIKANTEGOWDA
AGED 50 YEARS.
3
2. SRI. ARJUNGOWDA
S/O LATE SRIKANTEGOWDA
AGED 24 YEARS.
APPELLANT NOs.1 & 2 ARE R/AT
KADUKOTHANAHALLI VILLAGE
C.A.KERE HOBLI
MADDUR TALUK
MANDYA DISTRICT-571 436.
...APPELLANTS
(BY SRI. R.PRAMOD R., ADV.)
AND
1. SRI. SATHISHA K.,
S/O KAPANIGOWDA @ BILIYAPPA
AGED ABOUT 37 YEARS
R/AT KADUKOTHANAHALLI VILLAGE
C.A. KERE HOBLI
MADDUR TALUK
MANDYA DISTRICT-571436.
2. THE BRANCH MANAGER
ICICI LOMBARD GENERAL
INSURANCE CO. LTD.,
SEETHA VILAS ROAD
MYSORE-571024.
...RESPONDENTS
(BY SRI. LAKSHMINARASAPPA, ADV. FOR
SRI. A.M.VENKATESH, ADV. FOR R2:
R1 SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED: 27.12.2014 PASSED IN MVC NO. 830/2014
ON THE FILE OF THE SENIOR CIVIL JDUGE & MACT
4
MADDUR, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THESE MFAs COMING ON FOR ADMISSION,
THROUGH VIDEO CONFERENCE, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA 2004/2015 has been filed by the Insurance
Company and MFA 287/2016 has been filed by the
claimants under Section 173(1) of the Motor Vehicles
Act, 1988 (hereinafter referred to as 'the Act', for
short) being aggrieved by the judgment dated
27.12.2014 passed by the Motor Accident Claims
Tribunal.
2. Facts giving rise to the filing of the appeals
briefly stated are that on 3.3.2014 the deceased Manu
was transporting the egg load in TATA Ace goods
vehicle bearing registration No.KA-11-A-5965 from
Gopalakrishna Poultry Farm, Devipura, near Halli
mane Mess at Bugathagalli Village, at that time, the
driver of the said vehicle drove the same in a rash and
negligent manner, dashed to the tipper lorry bearing
No.KA-03-D-2174. As a result of the aforesaid
accident, the deceased sustained grievous injuries and
succumbed to the injuries at the spot.
3. The claimants filed a petition under Section
166 of the Act on the ground that the deceased was
aged about 25 years at the time of accident and was
doing agricultural work and egg business and was
earning Rs.20,000/- p.m. The claimants claimed
compensation to the tune of Rs.17,00,000/- along
with interest.
4. On service of summons, the respondents
appeared through counsel and filed written statements
in which the averments made in the petition were
denied. Respondent No.1 has pleaded that the
petition itself is false and frivolous in the eye of law.
It was further pleaded that he is the owner of the
goods vehicle and it was insured with respondent No.2
and policy was in force. The Insurance Company is
liable to pay compensation to the claimants. It was
further pleaded that the quantum of compensation
claimed by the claimants is exorbitant. Hence, he
sought for dismissal of the petition.
Respondent No.2 has pleaded that vehicle was
insured with this respondent. The driver of the
offending vehicle did not possess valid driving licence
as on the date of the accident. The liability is subject
to terms and conditions of the policy. It was further
pleaded that the quantum of compensation claimed by
the claimants is exorbitant. Hence, he sought for
dismissal of the petition.
5. On the basis of the pleadings of the parties,
the Claims Tribunal framed the issues and thereafter
recorded the evidence. The claimants, in order to
prove their case, examined claimant No.1 as PW-1,
two more witnesses as PWs-2 and 3 and got exhibited
documents namely Ex.P1 to Ex.P8. On behalf of
respondents, two witnesses were examined as RWs-1
and 2 and got exhibited documents namely Ex.R1 and
2. The Claims Tribunal, by the impugned judgment,
inter alia, held that the accident took place on account
of rash and negligent driving of the offending vehicle
by its driver, as a result of which, the deceased
sustained injuries and succumbed to the injuries. The
Tribunal further held that the claimants are entitled to
a compensation of Rs.8,99,000/- along with interest
at the rate of 7% p.a. and directed the Insurance
Company to deposit the compensation amount along
with interest and later to recover the same from the
owner of the vehicle. Being aggrieved, these appeals
have been filed.
6. The learned counsel for the Insurance
Company has contended that deceased was traveling
in the goods vehicle as gratuitous passenger. To prove
the same, the Insurance Company has taken a specific
defence in the written statement and they have
examined the officer of the Insurance Company. He
has specifically stated that the deceased was traveling
as gratuitous passenger.
Secondly, at the time of the accident, the driver
of the offending vehicle was having licence to drive
LMV (Non-transport) and he was driving transport
vehicle. Since the insured has violated the terms and
conditions of the policy, the Insurance Company is not
liable to pay compensation.
Thirdly, in respect of quantum of compensation
is concerned, the deceased was bachelor, the Tribunal
instead of deducting 50% of the income towards
personal expenses has wrongly deducted 1/3rd.
Fourthly, the claimants are not entitled for
compensation under the head of loss of love and
affection. In support of his contention, he has relied
upon the decision of the Apex Court in the case of
Smt.Sangita Arya & ors -v- Oriental Insurance
Company and Others (AIR 2020 SC 2877).
Fifthly, the interest awarded by the Tribunal at
the rate of 7% p.a. on the compensation is on the
higher side.
Hence, the learned counsel appearing for the
Insurance Company prays for allowing the appeal filed
by the Insurance Company and dismiss the appeal
filed by the claimants.
7. On the other hand, the learned counsel for
the claimants has contended that claimants have
examined PW-3, who is the owner of the poultry farm.
He has specifically deposed that the deceased was
doing egg business and he was transporting egg load
in the goods vehicle bearing No.KA-11-A-5965. In the
cross examination nothing worthwhile has been
elicited from PW-3 to disprove his version. Therefore,
the Tribunal has rightly held that the deceased was
traveling in the goods vehicle along with his goods.
Secondly, as per the decision of the Apex Court
in the case of MUKUND DEWANGAN vs. ORIENTAL
INSURANCE COMPANY LIMITED reported in
(2017) 14 SCC 663, licence to drive LMV (Non-
transport) includes licence to drive transport vehicle.
Even though the driver of the offending vehicle was
having licence to drive LMV (non-transport), he can
also drive goods vehicle. Therefore, the Insurance
Company is liable to pay compensation.
Thirdly, even though the claimants claim that the
deceased was earning Rs.20,000/- per month by
doing egg business, the Tribunal is not justified in
taking the monthly income of the deceased as merely
as Rs.6,000/-.
Fourthly, as per the law laid down by the Hon'ble
Supreme Court in the case of NATIONAL
INSURANCE CO. LTD. -v- PRANAY SETHI AND
OTHERS [AIR 2017 SC 5157], in case the deceased
was self-employed or on a fixed salary, an addition of
40% of the established income towards 'future
prospects' should be the warrant where the deceased
was below the age of 40 years. But the Tribunal has
failed to consider the same.
Fifthly, as per the judgment of the Hon'ble
Supreme Court in the case of MAGMA GENERAL
INSURANCE CO. LTD. -V- NANU RAM reported in
2018 ACJ 2782, each of the claimants are entitled
for compensation under the head of 'loss of love and
affection and consortium'.
Sixthly, the compensation awarded by the
Tribunal under the conventional heads is on the lower
side.
Hence, the learned counsel appearing for the
claimants prays for allowing the appeal filed by the
claimants and dismiss the appeal filed by the
Insurance Company.
8. Heard the learned counsel for the parties
and perused the records.
9. It is not in dispute that deceased Manu died
in the road traffic accident occurred due to rash and
negligent driving of the offending vehicle by its driver.
The specific case of the claimants is that
deceased was doing egg business and he was
transporting egg load in the goods vehicle bearing
No.KA-11-A-5965. To prove the case, the claimants
have examined the owner of the poultry farm
Mr.Gopalakrishna as PW-3. He has deposed that the
deceased was doing agricultural work and doing egg
business and on 3.3.2014, when the deceased was
transporting eggs from his farm in the goods vehicle
No.KA-11-A-5965 to Malavalli, the accident has taken
place. In the cross examination, the respondent has
not elicited anything from PW-3 contrary to his
evidence.
Therefore, the Tribunal considering the evidence
of the parties and materials available on record has
rightly held that the deceased was transporting egg
load in the said goods vehicle and was traveling in the
goods vehicle along with goods.
Re: Liability
10. It is not in dispute that the driver of the
goods vehicle was having licence to drive LMV (Non-
transport). As on the date of the accident, the driver
was driving goods vehicle. As per the decision of the
Apex Court in the case of MUKUND DEWANGAN vs.
ORIENTAL INSURANCE COMPANY LIMITED
reported in (2017) 14 SCC 663, licence to drive LMV
(Non-transport) includes licence to drive transport
vehicle.
In view of the said decision, the Insurance
Company is liable to pay compensation to the
claimants.
Re: Quantum of compensation:
11. The claimants have not produced any
evidence or documents with regard to the income of
the deceased. Therefore, the notional income has to
be assessed as per the guidelines issued by the
Karnataka State Legal Services Authority. Since the
accident has taken place in the year 2014, the
notional income has to be taken at Rs.8,500/- p.m.
To the aforesaid amount, 40% has to be added on
account of future prospects in view of the law laid
down by the Constitution Bench of the Supreme Court
in 'PRANAY SETHI' (supra). Thus, the monthly
income comes to Rs.11,900/-. Out of which, it is
appropriate to deduct 50% towards personal expenses
since the deceased was a bachelor and therefore, the
monthly income comes to Rs.5,950/-. The deceased
was aged about 25 years at the time of the accident
and multiplier applicable to his age group is '18'.
Thus, the claimants are entitled to compensation of
Rs.12,85,200/- (Rs.5,950*18*12) on account of 'loss
of dependency'.
In view of the law laid down by the Supreme
Court in 'MAGMA GENERAL INSURANCE', claimant
No.1, mother of the deceased is entitled for
compensation of Rs.40,000/- under the head of 'filial
consortium' and claimant No.2 is entitled for
compensation of Rs.40,000/- under the head 'loss of
love and affection .
In addition, the claimants are entitled to
Rs.15,000/- on account of 'loss of estate' and
Rs.15,000/- on account of 'funeral expenses'.
12. Thus, the claimants are entitled to the
following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 12,85,200
Funeral expenses 15,000
Loss of estate 15,000
Loss of filial consortium 40,000
Loss of love and affection 40,000
Total 13,95,200
The claimants are entitled to a total compensation
of Rs.13,95,200/-.
The Insurance Company is directed to deposit the
compensation amount along with interest at 7% p.a.
within a period of six weeks from the date of receipt of
copy of this judgment excluding interest for the delayed
period of 266 days in filing the appeal.
To the aforesaid extent, the judgment of the
Claims Tribunal is modified.
Accordingly, the appeals are disposed of.
The amount in deposit is ordered to be transferred
to the Tribunal.
Sd/-
JUDGE
DM
