Karnataka High Court

H Sharnappa vs Ummakka on 13 January, 2021

Author: Alok Aradhe Rangaswamy

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 13TH DAY OF JANUARY, 2021

                       PRESENT

         THE HON'BLE MR.JUSTICE ALOK ARADHE

                         AND

     THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY

            M.F.A. NO.6120 OF 2017 (MV-D)
                         C/W
            M.F.A. NO.8699 OF 2017 (MV-D)


IN MFA NO.6120/2017:

BETWEEN:

H. SHARNAPPA
S/O HANUMANTHAPPA,
AGED ABOUT    YEARS,
OWNER OF TRACTOR-TRAILER
BEARING NO.KA-16/TA-8887-8888,
R/O HEGGERE VILLAGE,
CHALLAKERE TALUK,
CHITRADURGA DISTRICT-577 522.
                                   ...APPELLANT

(BY SRI. A.K.BHAT, ADVOCATE FOR SRI. SHASHIDHARA R.,
ADVOCATE)

AND:

1.     UMMAKKA
       W/O LATE MANJANNA,
       AGED ABOUT 27 YEARS
                            2




2.   AKASH
     S/O LATE MANJANNA,
     AGED ABOUT 8 YEARS

3.   TULASI
     D/O LATE MANJANNA,
     AGED ABOUT 7 YEARS

4.   THIPPAMMA
     W/O SIDDANNA,
     AGED ABOUT 57 YEARS

5.   SIDDANNA
     S/O KARECHIKKAJJI,
     AGED ABOUT 62 YEARS

THE APPELLANTS NO.2 AND 3 ARE
MINORS, REPRESENTED BY
NATURAL GUARDIAN MOTHER APPELLANT NO.1,

ALL ARE R/O HONNUR VILLAGE,
CHALLAKERE TALUK-577 522,
APPELLANTS NO.1 TO 3 ARE NOW
R/O MANAGI VILLAGE,
CHITRADURGA TALUK-577 501.

6.   THE DIVISIONAL MANAGER
     TATA AIG GENERAL INSURANCE CO. LTD.,
     2ND FLOOR, J.P. & DEVI JAMBUKESHWAR ARCADE,
     NO.69, MILLERS ROAD,
     BENGALURU-560052.
                                ...RESPONDENTS

(RESPONDENT NOS.2 AND 3 ARE MINORS REPRESENTED BY
RESPONDENT NO.1;
SRI. PRAMOD, ADVOCATE FOR RESPONDENT NOs.1 TO 5;
SRI. Y.P.VENKATAPATHY, ADVOCATE FOR SRI.
RAVI.S.SAMPRATHI, ADVOCATE FOR RESPONDENT NO.6)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST
THE JUDGMENT AND AWARD DATED: 12.05.2017 PASSED IN
MVC NO.218/2015 ON THE FILE OF THE 1ST SENIOR CIVIL
                            3




JUDGE AND IV MACT AT CHITRADURGA, AWARDING
COMPENSATION OF RS.18,67,000/- WITH INTEREST AT 8%
P.A. FROM THE DATE OF PETITION TILL DATE OF DEPOSIT.

IN MFA NO.8699/2017:

BETWEEN:

1.   UMMAKKA
     W/O LATE MANJANNA
     AGED ABOUT 27 YEARS

2.   AKASH
     S/O LATE MANJANNA
     AGED ABOUT 8 YEARS

3.   TULASI
     D/O LATE MANJANNA
     AGED ABOUT 2 YEARS

4.   THIPPAMMA
     W/O SIDDANNA
     AGED ABOUT 57 YEARS

5.   SIDDANNA
     S/O KARECHIKKAJJI
     AGED ABOUT 62 YEARS

APPELLANT NOS.2 AND 3 ARE MINORS,
REP. BY NATURAL GUARDIAN AND MOTHER
APPELLANT NO.1 - UMMAKKA

ALL ARE R/O HONNUR VILLAGE,
CHALLAKERE TALUK
APPELLANT NOS.1 TO 3 ARE NOW
R/O MANAGI VILLAGE,
CHITRADURGA TALUK PIN - 577501.
                                  ...APPELLANTS

(BY SRI. B. PRAMOD, ADVOCATE)
                             4




AND:

1.     H. SHARNAPPA
       S/O HANUMANTHAPPA,
       MAJOR,
       R/O HEGGER TALUK VILLAGE,
       CHALLAKERE TALUK,
       CHITRADURGA VILLAGE-577522.

2.     THE DIVISIONAL MANAGER
       TATA AIG GENERAL INSURANCE CO. LTD.,
       2ND FLOOR, J.P. & DEVI JAMBUKSHWAR ARCADE,
       NO.69, MILLER'S ROAD,
       BENGALURU-560052.
                                    ...RESPONDENTS

(BY SRI. Y.P. VENKATAPATHY, ADVOCATE FOR RESPONDENT
NO.2;
SERVICE OF NOTICE ON RESPONDENT NO.1 IS DISPENSED
WITH VIDE COURT ORDER DATED 11.12.2017)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST
THE JUDGMENT AND AWARD DATED: 12.05.2017 PASSED IN
MVC NO.218/2015 ON THE FILE OF THE 1ST ADDITIONAL
SENIOR CIVIL JUDGE AND IV MACT AT CHITRADURGA PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

    THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
NATARAJ RANGASWAMY, J., DELIVERED THE FOLLOWING:

                        JUDGMENT

Though these appeals are listed for admission, as

records are received from the Motor Accident Claims

Tribunal, the same are taken up for final disposal with the

consent of the learned counsel for the parties.

2. MFA No.6120/2017 is filed by the owner of the

tractor trailer involved in the accident challenging the

liability fastened on him to pay the compensation as well

as the quantum of compensation awarded by the 1st Senior

Civil Judge and IV Motor Accident Claims Tribunal

(hereinafter referred to as the 'Tribunal') at Chitradurga in

MVC No.218/2015.

3. MFA No.8699/2017 is filed by the claimants

seeking enhancement of the compensation awarded by the

Tribunal in MVC No.218/2015.

4. Appellants in MFA No.8699/2017, who are

respondent Nos.1 to 5 in MFA No.6120/2017, will

henceforth be referred to as 'claimants'. The appellant in

MFA No.6120/2017, who is respondent No.1 in MFA

No.8699/2017, will henceforth be referred to as the

'owner' of the offending vehicle involved in the accident.

The respondent No.6 in MFA No.6120/2017, who is

respondent No.2 in MFA No.8699/2017, will henceforth be

referred to as the 'insurer' of the offending vehicle involved

in the accident.

5. The claim petition discloses that the claimants

are the dependents of Manjanna, who was employed with

the owner of the tractor trailer - appellant in MFA

No.6120/2017. It is stated that on 09/01/2015 at about

12:15 p.m., the said Manjanna and others were loading

cement electric poles on to a tractor trailer bearing

registration No.K-16-TA-8887-8888 (henceforth referred to

as the 'offending vehicle') in Challakere town and when the

vehicle came near Kammath Marikunte gate, the driver of

the offending vehicle drove it in a rash and negligent

manner which resulted in the trailer overturning. The said

Manjanna, who was in the trailer sustained injuries and

died at the spot. The claimants contended that the

deceased was paid a sum of Rs.10,000/- every month and

Rs.100/- as daily allowance and as a result of the death of

Manjanna, they were deprived of emotional and financial

support. The claimants, therefore, filed a petition under

section 166 of the Motor Vehicles Act, 1988, claiming

compensation of Rs.30,00,000/- from the owner and

insurer of the offending vehicle.

6. The insurer contested the claim petition and

claimed that the driver of the offending vehicle did not

possess a licence to drive the offending vehicle and

therefore, it was not liable to pay the compensation. It

claimed that the offending vehicle was to be used for

agricultural purpose and that the insurance policy also

covered the risk of accidents only when it was put to

agricultural use. It contended that the respondent No.1

had put the offending vehicle to non-agricultural use and

therefore, it was not liable to pay the compensation.

7. With these contentions, the claim petition was

set down for trial.

8. Claimant No.1 was examined as PW.1 and a

witness was examined as PW.2 and they marked

documents as Exs.P1 to P8. The owner of the offending

vehicle was examined as RW.1 and the officer of the

insurer was examined as RW.2 and they marked Exs.R1 to

R11.

9. The Tribunal considered the evidence of PW.2

as well as the statement filed by the owner and insurer of

the offending vehicle and held that the driver of the

offending vehicle was negligent in driving it and was

responsible for the accident. In so far as the claim for

compensation is concerned, the Tribunal held that the

notional income of the deceased was a sum of Rs.8,000/-

per month and taking into consideration the age of the

deceased at 35 years, deducted 1/4th of the income of the

deceased towards his living expenses and awarded the

following compensation:

Sl. Heads of compensation Amount in Rupees No.

1 Towards loss of dependency 11,52,000/-

salary - Rs.8,000/- 1/4th deducted towards personal expenses i.e. Rs.6000 x 12 x

16) 2 Towards funeral and obsequies 10,000/-

3 Towards transportation of dead 5,000/-

body etc.

4 Towards loss of consortium 1,00,000/- 5 Loss of love affection to 2,00,000/-

petitioners-2 and 3 (children) 6 Loss of guidance to petitioners- 2,00,000/-

2 and 3 (children) 7 Loss of love and affection to 2,00,000/-

petitioners-5 and 6 (parents) TOTAL 18,67,000/-

10. In so far as the liability to pay the

compensation is concerned, the Tribunal held that the

owner of the offending vehicle had violated the terms and

conditions of the policy and thus, exonerated the insurer

from the liability to pay the compensation.

11. Feeling aggrieved by the liability imposed upon

him to pay the compensation as well as the quantum of

compensation awarded by the Tribunal, the owner of the

offending vehicle has filed MFA No.6120/2017 while the

claimants have filed MFA No.8699/2017 for enhancement

of compensation.

12. The learned counsel for the owner contended

that the offending vehicle was used to transport electric

poles for the personal use of the owner which was

primarily meant to draw electric lines. He contended that

the offending vehicle was not used for any commercial

purpose. The learned counsel invited the attention of the

Court to Ex.R3 which discloses that one electric pole was

ordered to install in the agricultural land of the owner. He

claimed that as per Ex.R4, since the vehicle belonging to

BESCOM was left for repair, the offending vehicle was used

to transport electric poles to his land. Therefore, he

contended that the offending vehicle was not used for any

commercial purpose but was used for agricultural purpose.

He also contended that the driver of the offending vehicle

possessed a licence to drive a tractor trailer and thus in

the absence of any material to show that the offending

vehicle was used for non-agricultural purpose, the Tribunal

ought to have fastened the liability to pay the

compensation on the insurer of the offending vehicle. The

learned counsel alternatively contended that in view of the

law laid down by the Apex Court in the case of Mukund

Dewangan vs. Oriental Insurance Company Limited

((2016) 4 SCC 298), the insurer cannot be exonerated

from the liability to pay the compensation.

13. The learned counsel for the insurer claimed

that Exs.R3 and R4 placed on record would clearly

establish that the offending vehicle was used for non-

agricultural purpose and therefore, in an appeal filed by

the owner, there was no question of directing the insurer

to pay and recover the compensation.

14. The learned counsel for the claimants on the

other hand, contended that the accident occurred in the

year 2015 and therefore, the Tribunal committed an error

in not accepting the notional income of the deceased at a

sum of Rs.9,000/- per month. They also contended that

the Tribunal committed an error in not awarding loss of

future prospects at the rate of 40% as held by the Apex

Court in the case of National Insurance Co. Ltd vs

Pranay Sethi (2017) 16 SCC 680. Further, he contended

that the deceased had left behind five dependents of whom

two were minor children and therefore, the Tribunal must

have deducted 1/5th of the notional income of the

deceased towards his living expenses.

15. We have given our anxious consideration to

the arguments advanced by the learned counsel for the

parties. We have perused the records of the Tribunal as

well as its judgment and award.

16. In so far as the liability of the owner of the

offending vehicle to pay the compensation is concerned, it

is not in dispute that the offending vehicle was covered by

a policy of insurance treating the offending vehicle as a

commercial vehicle and the policy type which is evident

from Ex.R6 "Auto Secure Commercial Vehicle Package

Policy". Ex.R7 is the extract of the licence of the driver of

the offending vehicle which indicates that he was

authorized to drive a tractor with effect from 21.04.2014.

the unladen weight of tractor and trailer is less than 7500

kilos which is evident from Exs.R1 and R2. Though the

policy contains limitation as to use which provides for

agricultural and forestry purposes yet, there is no material

to indicate that the vehicle is used for hire or reward. In

that view of the matter, the impugned judgment and

award of the Tribunal fastening the liability to pay the

compensation upon the owner of the offending vehicle is

unjust and improper and therefore, impugned judgment

and award deserves to be interfered with.

17. In so far as the claim for enhancement is

concerned, having regard to the fact that the accident

occurred in the year 2015, the notional income of the

deceased could be considered at a sum of Rs.9,000/- per

month and the claimants are entitled to loss of future

prospects at the rate of 40%. The claimants are also

entitled to loss of filial / spousal / parental love and

affection in view of the judgment of Apex Court in the case

of Magma General Insurance Co. Ltd vs Nanu Ram

Alias Chuhru Ram (2018 (18) SCC 130) and United

India Insurance Co. Ltd. vs Satinder Kaur @

Satwinder Kaur and others (2020 SCC OnLine SC 410).

Consequently, the compensation awarded by the Tribunal

is redetermined as follows:

           Heads under which                  Amount
         compensation awarded               (in Rupees)
 Loss of dependency                         18,14,400/-
 (Rs.9000 + future prospects at 40% =

Rs.12600/- after deducting 1/4th of the same, Rs.9450/- x 16 x 12)

Loss of consortium to claimant No.1 40,000/- Loss of parental love and affection to 80,000/- claimants 2 and 3 at the rate of Rs.40,000/- each Loss of filial consortium to claimant 80,000/- Nos.4 and 5 at the rate of Rs.40,000/-

 Funeral expenses                              25,000/-
 Loss of estate                                25,000/-
               Total                       20,64,400/-

18. Hence, the appeal, MFA No.8699/2017, filed by

the claimants is allowed in part. In modification of the

impugned judgment and award passed by the Tribunal, the

compensation awarded to the claimants is enhanced from

Rs.18,67,000/- to Rs.20,64,400/-, which is payable by the

insurer along with interest at the rate of 6% per annum

from the date of the claim petition till the date of

realization.

19. MFA No.6120/2017 filed by the owner of the

offending vehicle is also allowed in part and the impugned

judgment and award passed by the Tribunal fastening

liability on the owner of the offending vehicle to pay the