Karnataka High Court

Smt. Jayamma vs Ravi on 28 May, 2021

Author: H.P.Sandesh

                              1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 28TH DAY OF MAY, 2021

                           BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                   M.F.A.NO.559/2021(MV)
                            C/W.
                   M.F.A.NO.753/2021 (MV)

IN M.F.A.NO.559/2021 (MV):

BETWEEN:

1.     SMT. JAYAMMA
       AGED 47 YEARS
       W/O LAKKEGOWDA

2.     LOKKEGOWDA
       AGED 52 YEARS
       S/O LATE KURIGOWDA

       BOTH ARE R/AT C/O BOREGOWDA
       HOUSING BOARD COLONY
       SRIRANGAPATNA TOWN AND TALUK
       MANDYA DISTRICT-571401.
                                          ... APPELLANTS
             (BY SRI MANJUNATH N.D., ADVOCATE)
AND:

1.     RAVI
       AGED 40 YEARS
       S/O RANGEGOWDA
       R/AT CHOTTANAHALLI VILLAGE
       S.B.HALLI HOBLI, K.R.PETE TALUK
       MANDYA DISTRICT-571 401
                            2



2.   THE MANAGER
     IFFICO TOKIO GENERAL INSURANCE CO. LTD.,
     NO.846, NEW KANTHARAJ URS ROAD
     NEAR AKSHAYA BANDAR,
     MYSURU-570009.
                                        ... RESPONDENTS

 (BY SRI B.PRADEEP, ADVOCATE FOR R2 VIDE ORDER DATED
         22.03.2021, R1 NOTICE DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 27.07.2020
PASSED IN MVC.NO.177/2018 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE, MACT, SHRIRANGAPATNA, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.


IN M.F.A.NO.753/2021 (MV):

BETWEEN:

THE BRANCH MANAGER
IFFICO TOKIO GIC LTD.,
R/AT CHOTTANAHALLI VILLAGE
S.B.HALLI HOBLI
K.R.PETE TALUK, MANDYA
NOW REP. BY ITS LEGAL OFFICER
IFFCO TOKIO GIC LTD.,
CUSTOMER SERVICE CENTER
SRI SHANTHI TOWERS,
5TH FLOOR, NGEF LAYOUT
KASTURBANAGAR
BENGALURU-560 043.
                                        ... APPELLANT

             (BY SRI B.PRADEEP, ADVOCATE)
                               3



AND:

1.     SMT. JAYAMMA
       W/O LAKKEGOWDA
       AGED ABOUT 47 YEARS

2.     LOKKEGOWDA
       S/O LATE KURIGOWDA
       AGED ABOUT 52 YEARS

       BOTH ARE R/AT C/O BOREGOWDA
       HOUSING BOARD COLONY
       SRIRANGAPATNA TOWN AND TALUK
       MANDYA DISTRICT.

3.     RAVI, MAJOR,
       S/O RANGEGOWDA
       R/AT CHOTTANAHALLI VILLAGE
       S.B.HALLI HOBLI, K.R.PETE TALUK
       MANDYA DISTRICT.
                                         ... RESPONDENTS

     (BY SRI MANJUNATH N.D., ADVOCATE R1 AND R2
 (VAKALATH NOT FILED); R3-SERVED AND UNREPRESENTED)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 27.07.2020
PASSED IN MVC.NO.177/2018 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE, MACT, AWARDING COMPENSATION OF
Rs.12,44,000/- WITH INTEREST AT 9 PERCENT P.A. FROM THE
DATE OF FILING THE PETITION TILL THE DATE OF DEPOSIT.

     THESE MFA's COMING ON FOR ADMISSION THROUGH
'VIDEO CONFERENCE' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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                        JUDGMENT

These two appeals are filed by the claimants and the

Insurance Company challenging the quantum of compensation

and also the liability passed in M.V.C.No.177/2018 dated

27.07.2020 on the file of the Additional Senior Civil Judge,

MACT, Srirangapatna.

2. The factual matrix of the case is that on 23.07.2017

at about 3.00 a.m. in the land of one Devachari of Giduvina

Hosahalli Village, when the son of the claimants namely Lokesh

was trying to remove coconut leave, struck in router attached to

the tractor bearing Registration No.KA-51-T-3014, the driver of

the said tractor drove it in negligent manner, as a result of

which, the son of the claimants got into router and sustained

grievous injuries and thereafter succumbed to the injuries.

3. It is the contention of the claimants that the

deceased was aged about 25 years and was hale and healthy.

He was working as an Agriculturist and was also doing milk

vending business earning of Rs.20,000/- per month. Due to the

untimely death of their son, they have lost the source of income

for their livelihood.

4. The claim petition was objected by the Insurance

Company contending that the tractor was insured for the

agricultural purpose however, the same was used for hire

purpose and there is a violation of the terms and conditions of

the policy and also denied the age, income and occupation of the

deceased.

5. The claimants in order to substantiate their claim

have examined second claimant as P.W.1 and another witness as

P.W.2 and got marked the documents Exs.P1 to P10. On the

other hand, the respondent-Insurance Company examined one

witness as R.W.1 and got marked the documents Exs.R1 and R2.

6. The Tribunal, after considering both oral and

documentary evidence placed on record, allowed the claim

petition in part granting compensation of Rs.12,44,000/- with

interest at 9% per annum and fastened the liability on the

respondent-Insurance Company. Hence, these two appeals are

filed by the claimants as well as the Insurance Company.

7. The claimants in their appeal have contended that

the Tribunal has committed an error in awarding just and

reasonable compensation. The Tribunal, while calculating loss of

dependency has taken the income of the deceased at Rs.7,000/-

per month and added 50% as future prospects and awarded

meager compensation of Rs.11,34,000/- towards loss of

dependency. The counsel also would submit that the Tribunal

has awarded an amount of Rs.1,10,000/- on the other

conventional heads and the same is to be retained. He would

further submit that this Court has to revisit for calculation of loss

of dependency and award just and reasonable compensation.

8. Per contra, the learned counsel appearing for the

respondent-Insurance Company would vehemently contend that

the tractor was insured only for the purpose of agricultural use

and the same has been used for hire purpose. The witnesses

P.Ws.1 and 2 have been examined before the Tribunal and have

categorically admitted that the tractor was used for hire purpose.

When such being the admission elicited from the mouth of

witnesses P.Ws.1 and 2, it is clear that there is a violation of the

terms and conditions of the policy. He would vehemently

contend that the Tribunal has taken note of the income of the

deceased, in the absence of any documentary proof and hence,

it does not require any interference of this Court. The counsel

also would vehemently contend that instead of taking 40%, the

Tribunal has added 50% as future prospects and the same

requires interference of this Court.

9. In reply to the arguments of the learned counsel for

the respondent-Insurance Company, the counsel appearing for

the claimants would rely upon the judgment of the Apex Court in

the case of New India Insurance Company v. Darshana

Devi and Others reported in (2008) 7 SCC 416 and referring

this judgment, the counsel would vehemently contend that under

Section 149(2) of Motor Vehicles Act, 1988, if there is any

violation in the usage of vehicle, the Insurance Company has to

pay the amount and recover the same from the owner.

10. Having heard the arguments of learned counsel for

the claimants and the learned counsel for the respondent-

Insurance Company and on perusal of the material available on

record, the points that arise for consideration before this Court

are:

(1) Whether the Tribunal has committed an error in not awarding just and reasonable compensation and it requires interference of this Court?

(2) Whether the Tribunal has committed an error in fastening the liability on the Insurance Company and whether it requires interference of this Court?

(3) What order?

Point No.(1)

11. Having perused the material available on record,

there is no dispute with regard to the accident and the only

dispute is with regard to the quantum of compensation and

consideration of future prospects. The Tribunal while considering

the loss of dependency has taken the income of the deceased as

Rs.7,000/- per month. It is not in dispute that accident has

taken place in the year 2017 and in the absence of any

documentary proof with regard to the income is concerned, the

Tribunal has to take the notional income and in the year 2017,

the notional income would be Rs.11,000/-.

12. It is rightly pointed out by the learned counsel for

the respondent-Insurance Company that the Tribunal has taken

50% as future prospects. When the deceased was working as an

Agriculturist and when there is no definite income, the Tribunal

ought to have taken 40% towards future prospects, taking into

account the age of the deceased. In the case on hand, the

deceased is a bachelor and after adding 40% towards future

prospects at the rate of Rs.4,400/-(11,000x40/100), the

monthly income of the deceased comes to Rs.15,400/- per

month. Having deducted 50% towards personal expense, it

comes to Rs.7,700/-. The relevant multiplier applicable to the

case on hand is 18 and after taking the income at Rs.7,700/- per

month, the loss of dependency comes to Rs.16,63,200/-

(7,700x12x18). In view of the principles down in the judgment

of the Apex Court in National Insurance Company Limited v.

Pranay Sethi and Others reported in (2017) 16 SCC 680,

this Court has to add an amount of Rs.30,000/- on the other

conventional heads, as he was a bachelor and the claimants are

parents. After adding the same, the compensation comes to

Rs.16,93,200/-. Hence, point No.(1) is answered as

'affirmative'.

Point No.(2)

13. The learned counsel appearing for the respondent-

Insurance Company in his arguments vehemently contends that

P.Ws.1 and 2 have categorically admitted in the cross-

examination that they have given the tractor for hire purpose. It

is elicited in the cross-examination that one Devaraj took the

tractor for hire purpose for Rs.600/- per hour and the tractor

was used for hire purpose. P.W.2 also in the cross-examination

admitted the same.

14. The learned counsel appearing for the claimants also

not disputed the said fact in his argument and relied upon the

judgment referred supra and also submit that the respondent-

Insurance Company has to pay the compensation and recover

the same from the owner, if there is any violation in respect of

the terms and conditions of the policy.

15. Having taken note of the answers elicited from the

mouth of P.Ws.1 and 2, Tribunal while passing the order has

come to the conclusion that mere usage of vehicle for hire

purpose does not amount to violation and policy does not

disclose the fact that vehicle should be used for his own purpose.

Hence, fastened the liability on the respondent-Insurance

Company. Having considered the reasons assigned by the

Tribunal, and when the admissions are elicited from the mouth

of P.Ws.1 and 2 that tractor was used for hire purpose and policy

was issued for the usage of the tractor for agricultural purpose, I

am of the opinion that it amounts to violation of the terms and

conditions of the policy. It is rightly pointed out by the learned

counsel appearing for the claimants that the Insurance Company

has to pay the amount and thereafter, recover the same from

the owner and the same is also not disputed by the learned

counsel appearing for the respondent-Insurance Company.

Hence, point No.(2) is answered accordingly.

Point No.(3)

16. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeals are allowed in part.

(ii) The judgment and award passed by the Tribunal in M.V.C.No.177/2018 dated 27.07.2020 on the file of the Additional Senior Civil Judge, MACT, Srirangapatna is modified granting compensation of Rs.16,93,200/- as against Rs.12,44,000/- with interest at the rate of 6% per annum.