Karnataka High Court

Icici Lombard Gen. Ins. Co. Ltd vs Sangamma W/O Sanganagouda And Ors on 25 November, 2021

Bench: M.G.S.Kamal

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        IN THE HIGH COURT OF KARNATAKA
               KALABURAGI BENCH
     DATED THIS THE 25TH DAY OF NOVEMBER, 2021
                      BEFORE
      THE HON'BLE MR.JUSTICE M.G.S.KAMAL


            MFA.No.201125/2016 (MV)
                      C/W

               MFA.NO.200825/2016


IN MFA.No.201125/2016
Between:
1.   SANGAMMA W/O SANGAGOUDA,
     AGE: 39 YEARS, OCC: HOUSEHOLD,

2.   BHARATHI D/O SANGAGOUDA,
     AGE: 21 YEARS, OCC: NIL,

3.   NINGANNA S/O SANGAGOUDA,
     AGE: 19 YEARS, OCC: NIL,

4.   NAGARAJ S/O SANGAGOUDA,
     AGE: 17 YEARS, OCC: NIL,

5.   MALLIKARJUN @ MALLANNA
     S/O SANGAGOUDA,
     AGE: 16 YEARS, OCC: STUDENT,

6.   ISHAMMA D/O SANGAGOUDA,
     AGE: 15 YEARS, OCC: STUDENT,

7.   BASAMMA W/O LATE LINGANNA @ NINGAPPA,
     AGE: 71 YEARS, OCC: NIL,
                            2




       APPELLANT 4 TO 6 ARE MINORS U/G OF THEIR
       NATURAL MOTHER APPELLANT NO.1.

       ALL ARE R/O H.NO.69/1, BALKAL VILLAGE,
       TQ. SHAHAPUR, DIST. YADGIRI,
       NOW RESIDING AT SAIDAPUR,
       TQ. & DIST. YADGIRI-585202
                                       ... APPELLANTS

(BY SRI VEERANAGOUDA MALIPATIL, ADVOCATE)

And:

1.     CHANDAPPA S/O DEVAPPA,
       AGE: 31 YEARS, OCC: OWNER OF AUTO
       BEARING REG.NO.KA-33-A-2364,
       R/O BALKAL VILLAGE,
       TQ: SHAHAPUR, DIST. YADGIRI-585202.

2.     THE ICICI LOMBARD GENERAL
       INSURANCE CO. LTD.,
       COURT ROAD, NEAR THIMMAPURI CIRCLE,
       KALABURAGI-585102
       THROUGH ITS CLAIMS MANAGER.

                                    ... RESPONDENTS

(BY SRI. SUBHASH MALLAPUR, ADVOCATE FOR R2;
BY SRI.M.M.ALLUR, ADVOCATE FOR R1)


     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT,
PRAYING TO ALLOW THE APPEAL, THE JUDGMENT AND
AWARD DATED 29.01.2016 IN MVC NO.23/2015 PASSED
BY THE MEMBER M.A.C.T-II, AT YADGIRI, MAY KINDLY BE
MODIFIED BY ENHANCING THE COMPENSATION AS
CLAIMED IN THE CLAIM PETITION, IN THE INTEREST OF
JUSTICE AND EQUITY.
                            3




IN MFA.No.200825/2016
Between:
ICICI LOMBARD GEN. INS. CO. LTD.
COURT ROAD TIMMAPURI CIRCLE,
KALABURAGI,
THROUGH ITS: MANAGER
                                        ... APPELLANT

(BY SRI SUBHASH MALLAPUR, ADVOCATE)

And:

1.     SANGAMMA W/O SANGAGOUDA,
       AGE: 39 YEARS, OCC: HOUSEHOLD,

2.     BHARATHI D/O SANGAGOUDA,
       AGE: 21 YEARS, OCC: NIL,

3.     NINGANNA S/O SANGAGOUDA,
       AGE: 19 YEARS, OCC: NIL,

4.     NAGARAJ S/O SANGANGOUDA,
       AGE: 17 YEARS, OCC: NIL,

5.     MALLIKARJUN @ MALLANNA S/O SANGANAGOUDA,
       AGE: 16 YEARS, OCC: STUDENT,

6.     ISHAMMA D/O SANGANAGOUDA,
       AGE: 15 YEARS, OCC: STUDENT,

7.     BASAMMA W/O LATE LINGANNA @ NINGAPPA,
       AGE: 72 YEARS, OCC: NIL,

       ALL R/O H.NO.69/1, BALKAL VILLAGE,
       TQ. SHAHAPUR, DIST. YADGIRI,
       NOW AT SAIDAPUR-585202
                            4




8.   CHANDAPPA S/O DEVAPPA,
     AGE: 31 YEARS, OCC: OWNER OF
     AUTO BEARING NO.KA-33/A-2364,
     R/O BALAKAL VILLAGE, TQ: SHAHAPUR,
     DIST. YADGIRI-585201.

                                     ... RESPONDENTS

(BY SRI. VEERANAGOUDA MALIPATIL, ADVOCATE FOR R1
TO R3 & R7, R4, R5 & R6 ARE MINORS;
BY SRI. M.M.ALLUR, ADVOCATE FOR R8)


     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT,
PRAYING TO       ALLOW THE ABOVE APPEAL AND
CONSEQUENTLY BE PLEASED TO SET ASIDE THE
JUDGMENT AND AWARD DATED 29.01.2016 PASSED THE
MEMBER M.A.C.T-II, YADGIRI IN MVC NO.23/2015, IN THE
INTEREST OF JUSTICE AND EQUITY.


     THESE APPEALS COMING ON FOR HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-

                      JUDGMENT

MFA No.201125/2016 is filed by the claimants

whereas MFA No.200825/2016 is filed by the insurance

company under Section 173(1) of the Motor Vehicles Act,

1988 (for short 'M.V.Act') aggrieved by the judgment and

award dated 29.01.2016 passed in MVC No.23/2015 on the

file of Motor Accident Claims Tribunal No.II at Yadgiri (for

short 'Tribunal').

2. Facts leading up to filing of the present appeals

in brief are that, on 11.10.2014, at 9.00 a.m., on Balkal -

Naikal road near the land of Venkatareddy of Nalwadagi

village, deceased Sanganagouda was proceeding in an

Auto bearing registration No.KA-33/A-2364 from the side

of Balkal towards Yadgir, at that time driver of Auto who

was driving the same at high speed and in a rash and

negligent manner, lost control over the vehicle and the

same turned turtle. Due to the impact, deceased sustained

severe injuries and succumbed to the same on the spot. A

case in crime No.128/2014 was registered.

3. Thereupon, the claimants being the wife,

children and mother of the deceased filed a claim petition

under Section 166 of the M.V.Act seeking compensation of

Rs.17,70,000/- together with interest at the rate of 12%

p.a. on the premise that deceased was aged about 42

years and was earning Rs.20,000/- per month by doing

agricultural and coolie work and was contributing his

income to the maintenance of the family and that the

untimely death of the deceased, which occurred due to

rash and negligent driving of the Auto by its driver, has

caused financial and emotional distress to the family

hence, sought for compensation.

appeared through their respective counsel and filed

separate objection statement. Respondent No.1 in the

objection statement denied the petition averments, age,

income and occupation of the deceased. It is contended

that the vehicle was insured with respondent No.2 and

policy was valid from 17/12/2013 to 16/12/2014 and on

that day there was heavy rain and the road was filled with

mud and suddenly a bullock cart came from opposite side

and in order to avoid the same, the Auto was taken to the

side of the road, during the process the Auto turned turtle

and as such there is no negligence on the part of

respondent No.1. Hence, sought for dismissal of the claim

petition.

5. Respondent No.2 in its objection statement

denied the petition averments and age, occupation and

income of the deceased. It is contended that the liability of

the insurance company is subject to the terms and

conditions of the insurance policy. That the driver of the

Auto was not having valid and effective driving licence as

on the date of accident to drive the same, there was

violation of policy conditions. Hence, sought for dismissal

of the claim petition.

6. Based on the pleadings of the parties, the

Tribunal framed issues and recorded evidence. The

claimant No.1 being the wife of the deceased examined

herself as PW.1 and exhibited 4 documents marked as

Exs.P1 to P4. On behalf of respondents, Mr.Chandappa-

respondent No.1 was examined as RW.1 and one

Yankannagouda has been examined as RW.2 and exhibited

2 documents as Exs.R1 and 2.

7. On evaluation of evidence, the Tribunal held

that the accident in question had occurred due to rash and

negligent driving by the driver of the offending vehicle,

resulting in death of the deceased. Consequently, held

that the claimants are entitled for total compensation of

Rs.9,88,488/- together with interest at 6% per annum and

directed the respondent No.2 to deposit the compensation

amount within a period of 30 days from the date of petition

till realization. Aggrieved by the same, the claimants are

before this Court seeking enhancement of compensation

while the insurance company is before this Court seeking

setting aside the finding with regard to liability fixed on it.

8. The learned counsel for the appellant/claimant

reiterating the grounds urged in the appeal memorandum

submitted that the Tribunal erred in assessing the notional

income of the deceased at Rs.6,000/- per month instead of

Rs.20,000/- being the actual income from his agricultural

and coolie work. He further submitted that the Tribunal

has not granted any compensation under conventional

heads. Hence, he seeks for allowing of the appeal by

enhancing the compensation.

9. On the other hand, the learned counsel for the

appellant-insurance company drawing the attention of this

Court to Ex.R1 an extract of Form No.42 permit in respect

of a contract carriage issued by the Regional Transport

Authority, Yadgir, which reveals that the permit issued in

respect of the offending vehicle was valid from 20/03/2015

to 19/03/2020, whereas the accident in question had

occurred on 11/10/2014, submitted that the vehicle did

not have the permit on the relevant date. Further

referring to the reasoning given by the Tribunal at

paragraph 14 of the impugned judgment, he submits that

the Tribunal had misconstrued the fact of the vehicle not

having permit to that of violation of the permit conditions.

He relies upon the judgment of Apex Court in the case of

AMRIT PAUL SINGH AND ANOTHER Vs. TATA AIG

GENERAL ISURANCE CO. LTD., AND OTHERS reported

in (2018) SCCR 818 and submits that the fastening of

liability under the facts and circumstances of the case on

appellant-insurance company is illegal and therefore,

sought setting aside for the same.

10. Heard the learned counsel for the parties and

perused the records.

11. On hearing of the submissions of the learned

counsel for the parties, the points that arise for

consideration are:

"1) Whether the claimants have made out a case for enhancement of compensation?

2)whether the insurance company has made out a case for interference with regard to liability is concerned?"

12. The accident in question resulting in death of

the deceased is not in dispute. The vehicle belonging to

respondent No.1 and being insured with respondent No.2-

insurance company is also not in dispute. Though it is

claimed on behalf of the claimants that the deceased being

agriculturist and coolie was earning Rs.20,000/- per

month, no material evidence has been produced to justify

the said claim. The Tribunal however has assessed the

notional income of the deceased at Rs.6,000/- per month.

This Court in the absence of any evidence with regard to

the income of the victims of road traffic accident takes into

consideration the chart prepared by the Karnataka State

Legal Services Authority. As per the chart, the notional

income of the victims of the road traffic accident for the

year 2014 is assessed at Rs.7,500/- per month. Even in

the instant case, accident occurred on 11.10.2014 and the

deceased who was working as agriculturist and coolie, not

having produced any documents with regard to the

income, this Court is of the considered view that the

notional income of the deceased needs to be reassessed at

Rs.7,500/- p.m. In view of the law laid down by Apex

Court in the case of NATIONAL INSURANCE COMPANY

LTD. VS. PRANAY SETHI [(2017) 16 SCC 680], since

the deceased was aged about 43 years at the time of

accident, 25% of the future prospects is to be added to the

aforesaid notional income instead of 30% taken by the

Tribunal. Therefore, income of the deceased comes to

Rs.9,375/- p.m. (7500+25%). Since there are 7

dependents, it is appropriate to deduct 1/5th of the income

towards personal and living expenses of the deceased and

on such deduction, the income of the deceased would be

Rs.7,500/- per month. Applying multiplier of '14', loss of

dependency would come up to Rs.12,60,000/-

(7,500x12x14).

13. In terms of the law laid down by the Apex

Court in the case of MAGMA GENERAL INSURANCE

COMPANY LIMITED VERSUS NANU RAM ALIAS

CHUHRU RAM AND OTHERS [2018) 18 SCC 130]

which clarified in the subsequent judgment of the Apex

Court in the case of UNITED INDIA INSURANCE CO.

LTD., VS. SATINDER KAUR @ SATWINDER KAUR &

ORS. [2020 SCC ONLINE SC 410], and in the case of

the New India Assurance Company Limited vs.

Smt. Somwati and Others, (2020)9 SCC 644., the

claimants being wife, children and mother of the deceased

are entitled for Rs.40,000/- each towards spousal

consortium, parental consortium and filial consortium. In

addition, the claimants are entitled for compensation of

Rs.15,000/- towards loss of estate and Rs.15,000/-

towards funeral expenses. Thus, the claimants are entitled

to a total compensation of Rs.15,70,000/- instead of

Rs.9,88,488/- as follows:

       Heads               By Tribunal           By this Court
 Loss of dependency         Rs.9,43,488/-        Rs.12,60,000/-
 Loss of love and            Rs.10,000/-                   -
 affection
 Loss of estate              Rs.10,000/-           Rs.15,000/-
 Towards      funeral        Rs.10,000/-           Rs.15,000/-
 expenses
 Towards                     Rs.10,000/-          Rs.2,80,000/-
 consortium
 Towards                      Rs.5,000/-                   -
 transportation    of
 dead body
 Total                      Rs.9,88,488/-        Rs.15,70,000/-
                                                 Rs.

14. Adverting to the point regarding liability, Ex.R1

produced by the respondent No.1 before the Tribunal

reveals that the offending vehicle had permit only from

20/03/2015 to 19/03/2020. The said document has

remained unchallenged, no contra evidence or any

material is produced by the owner of the offending vehicle,

either before the Tribunal or before this Court. In the

circumstances, the said document needs to be taken into

consideration with regard to validity of permit of the

offending vehicle. Since the accident had occurred much

prior to the date of permit i.e. on 11/10/2014, on the

relevant date there was no permit. The Tribunal without

taking this aspect of the matter into consideration has

dealt with regard to driving licence of the driver and the

vehicle not plying beyond the permit area at paragraph 14

of its judgment which as under.

"14. The respondent No.2 examined as RW.2 in support of defence and admitted in the cross examination the policy was valid at the time of accident and they have not got conducted investigation in respect of violation of policy conditions. Further admitted that he has not produced any record to prove that driver was not having driving licence at the time of accident. Further admitted that, the deceased was third party to the policy. Further ignored the facts the spot of the offence comes within 8 km of Shahapur TMC. Further admitted that as per Ex.R2 driving licence was valid. So the admission made in cross examination of RW.2 proves that the driver of respondent No.1 was

having valid driving licence at the time of accident. The respondent No.2 has not produced any record to prove that the spot of the offence beyond the limit of permit."

15. Thus, in the light of above reasoning given by

the Tribunal is unsustainable. In view of the law laid down

by the Apex Court in the case of AMRIT PAUL SINGH

(supra), the relevant portion of paragraph 23 of the

judgment is extracted hereunder;

"23. In the case on hand, it is clearly demonstrable from the material brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. the said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in swaran Singh (supra)

and Lakhmi Chand (supra) in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the "Tripitaka", that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the tribunal as well as the High Court had directed the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh (supra) and other cases pertaining to pay and recover principle "

Therefore, the insurance company having established

the breach of policy conditions shall pay the compensation

amount to the claimants at the first instance with liberty to

recover the same from the owner of the offending vehicle-

respondent No.1. Hence, the above points answered

accordingly.

16. For the aforesaid reasons, the following order.

ORDER

i) The appeal in MFA.No.201125/2016 filed by

the appellants/claimants is allowed-in-part.

ii) The appeal in MFA.No.200825/2016 filed by

the insurance company is disposed off.