Karnataka High Court

Smt Poovamma vs Rajendra Gowda on 10 November, 2021

Bench: H T Prasad

                             1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 10TH DAY OF NOVEMBER 2021

                          BEFORE

     THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD

                MFA No.2895 OF 2016(MV)

BETWEEN:

1.     Smt. Poovamma,
       57 years,
       W/o of Lingappa Kumbara.

2.     Gopi,
       40 years,
       D/o Lingappa Kumbara.

3.     Kaveri,
       38 years,
       D/o Lingappa Kumbara.

       All are R/o Koppa house,
       Noojibalthila Village,
       Renjilady post,
       Puttur Taluk,
       Dakshina Kannada District.
                                          ... Appellants

(By Sri.Vishwanatha Poojary, Advocate)

AND:

1.     Rajendra Gowda,
       42 years,
       S/o Veerappa gowda
        R/o # 1-72/5,
                            2



     Kengudelu House,
     Kokkada Post & Village,
     Belthangady Taluk,
     Dakshina Kannada District pin-574214.

2.   Narayana Moolya,
     47 years,
     S/o Kakkanna Moolya,
     R/o Shantherimane,
     Maladi Post & Village,
     Belthangady Taluk,
     Dakshina kannada District-574214.

3.   The Manager,
     National Insurance Co. Ltd.,
     1st floor, Shree Kshetra,
     Dharmasthala Building,
     Puttur Taluk,
     Dakshina Kannada District-574201.

                                         ... Respondents

(By Sri. Janardhana Reddy, Advocate for R3:
Notice to R2 is D/W v/o dated: 16.01.2017:
R1 served)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:22.02.2016 passed
in MVC No.1004/2014 on the file of the 5th Additional
Judge, Court of Small Causes, Member, MACT-5,
Bangalore, partly allowing the claim petition for
compensation and seeking enhancement of compensation.

      This MFA, coming on for hearing, this day, this
Court, delivered the following:
                                 3



                         JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) has been filed by the claimants being

aggrieved by the judgment dated 22.01.2016 passed

by the Motor Accident Claims Tribunal, D.K.,

Mangaluru, sitting at Puttur, D.K in MVC

No.1004/2014.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 29.01.2014 at about 8.10

p.m. the deceased Lingappa Kumbara was proceeding

by walk on the road at Kapinabagilu of Kowkrady

Village, Puttur Taluk. At that time, an autorickshaw

bearing registration No.KA-21/A-2460 which was

being driven in a rash and negligent manner, dashed

against the deceased. 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 seeking compensation for the death of

the deceased along with interest.

4. On service of summons, the respondent

Nos.1 to 3 appeared through counsel and respondent

Nos. 1 and 2 filed common written statement and

respondent No.3 filed separate written statement in

which the averments made in the petition were

denied. The age, occupation and income of the

deceased are denied. It was pleaded that the petition

itself is false and frivolous in the eye of law. It was

further pleaded that the accident was due to the rash

and negligent riding of the motorcycle by the

deceased himself. 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, they 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

and another witness as PW-2 and got exhibited

documents namely Ex.P1 to Ex.P9. On behalf of

respondents, one witness was examined as RW-1 got

exhibited documents namely Ex.R1 to Ex.R6. 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.5,02,972/- along with interest at

the rate of 7% p.a. and since the driver of the

offending vehicle was not having valid and effective

driving licence and also the offending vehicle has plied

beyond permit limit, directed the owner of the

offending vehicle to deposit the compensation amount

along with interest. Being aggrieved, this appeal has

been filed.

6. The learned counsel for the claimants has

raised the following contentions:

Firstly, the claimants claim that the deceased

was earning Rs.12,000/- per month by working as a

mason. But the Tribunal is not justified in taking the

monthly income of the deceased as only Rs.8,000/-.

Secondly, 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 reported in AIR 2017 SC 5157, the

claimants are entitled for Rs.15,000/- towards 'loss of

estate' and Rs.15,000/- towards 'funeral expenses'.

Thirdly, 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'.

Lastly, the Tribunal has given a finding that the

driver of the offending vehicle was not having a valid

and effective driving licence and the offending vehicle

has traveled beyond the permit area and since the

insured has violated the policy conditions, has rightly

exonerated the Insurance Company from its liability.

But, in view of the law laid down by the Hon'ble Apex

Court in the cases of RANI vs. NATIONAL

INSURANCE COMPANY LTD. reported in (2018) 8

SCC 492, AMRIT PAUL SINGH AND ANOTHER vs.

TATA AIG GENERAL INSURANCE COMPANY

LIMITED AND OTHERS reported in (2018) 7 SCC

558, NATIONAL INSURANCE CO. LTD. Vs.

SWARAN SINGH reported in (2004) 3 SCC 297

and PAPPU AND ORS. vs. VINOD KUMAR LAMBA

AND ANR. reported in AIR 2018 SC 592, in respect

of third party is concerned, Insurance Company has to

pay the compensation at the first instance with liberty

to recover the same from the owner of the offending

vehicle. Hence, he prays for allowing the appeal.

7. On the other hand, the learned counsel for

the Insurance Company has raised the following

contentions:

Firstly, even though the claimants claim that the

deceased was earning Rs.12,000/- per month, the

same is not established by the claimants by producing

documents. Therefore, the Tribunal has rightly

assessed the income of the deceased notionally.

Secondly, on appreciation of oral and

documentary evidence, the Tribunal has awarded just

and reasonable compensation.

Thirdly, it is not in dispute that as on the date of

the accident the driver of the offending vehicle was

not having a valid and effective driving licence and the

offending vehicle was not having a valid permit.

Therefore, Insured has violated the policy condition.

The Tribunal has rightly exonerated the Insurance

Company. Since the claimants have not taken any

specific contention for pay and recovery, this Court

cannot direct the Insurance Company to pay the

compensation amount with liberty to recover the same

from the owner of the offending vehicle. Hence, he

prays for dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the judgment and award and original

records.

9. It is not in dispute that deceased Lingappa

died in the road traffic accident occurred due to rash

and negligent driving of the offending vehicle by its

driver.

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.,

out of which, it is appropriate to deduct 1/3rd towards

personal expenses and therefore, the monthly income

comes to Rs.5,667/-. The deceased was aged about

65 years at the time of the accident and multiplier

applicable to his age group is '7'. Thus, the claimants

are entitled to compensation of Rs.4,76,028/-

(Rs.5,667*12*7) on account of 'loss of dependency'.

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'.

In view of the law laid down by the Supreme

Court in MAGMA GENERAL INSURANCE (supra),

the claimants are entitled for compensation of

Rs.40,000/- each under the head of 'loss of love and

affection and consortium'.

10. Thus, the claimants are entitled to the

following compensation:

        Compensation under                         Amount in
           different Heads                           (Rs.)
       Loss of dependency                             4,76,028
       Funeral expenses                                 15,000
       Loss of estate                                   15,000
       Loss of spousal                                  40,000
       consortium
       Loss of Parental                                     80,000
       consortium
                      Total                          6,26,028


      The     claimants          are        entitled        to   a     total

compensation of Rs.6,26,028/-.




     Re. liability:

11. The Tribunal after considering the evidence

available on record has held that the autorickshaw

was having permit to ply in Belthangady Taluk but the

accident occurred in Puttur Taluk and the owner of the

offending vehicle has violated the policy conditions

and also the driver of the offending vehicle was not

having valid and effective driving licence as on the

date of the accident. Therefore, the Tribunal has

rightly exonerated the Insurance Company from its

liability. However, in view of the law laid down by the

Hon'ble Apex Court in the cases of RANI (supra),

AMRUTPAUL SINGH (supra), SWARAN SINGH