Mr. H. Krishnappa vs Bachegowda. C
2021 Latest Caselaw 4769 Kant

                             1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 25TH DAY OF NOVEMBER, 2021

                           BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

              M.F.A NO. 7969 OF 2017 (MV-D)
                           C/W
               M.F.A NO.789 OF 2018 (MV-D)

IN MFA NO.7969/2017
BETWEEN:

MR. H. KRISHNAPPA
S/O HANUMANTHARAYAPPA
AGED ABOUT 65 YEARS,
R/AT ANGAREKANAHALLI VILLAGE,
KASABA HOBLI, MARALUKUNTE POST,
CHICKBALLAPUR TALUK-562 105

                                              ...APPELLANT

(BY SRI. CHANDRASHEKAR.C, ADVOCATE FOR
SRI. MALLA REDDY B V, ADVOCATE)

AND:

1. BACHEGOWDA. C.
S/O LATE CHIKKA SONNAPPA
AGED ABOUT 58 YEARS

2. SMT. K. KHANTHAMMA
W/O BACHEGOWDA C
AGED ABOUT 43 YEARS

BOTH ARE R/AT ANGAREKANAHALLI VILLAGE,
KASABA HOBLI, MARALUKUNTE POST,
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CHICKBALLAPUR TALUK/DISTRICT-562 105

3. THE REGIONAL MANAGER
UNITED INDIA INSURANCE CO.LTD.,
REGIONAL OFFICE, 5TH & 6TH FLOOR,
KRUSHI BHAVAN, NO.18, NRUPATHUNGA ROAD,
HUDSON CIRCLE, BANGALORE-560 001

4. ANAND B
S/O BACHEGOWDA C
AGED ABOUT 27 YEARS
R/AT ANGAREKANAHALLI VILLAGE,
KASABA HOBLI, MARALUKUNTE POST,
CHICKBALLAPUR TALUK/DISTRICT-562105

                                             ...RESPONDENTS

(BY SRI.K N HARISH BABU, ADVOCATE FOR R1, 2 & 4;
SRI.JWALA KUMAR, ADVOCATE FOR R3)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED: 01.04.2017 PASSED IN MVC
NO.188/2014 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
JUDGE AND JMFC, CHIKKABALLAPUR, AWARDING COMPENSATION
OF RS.8,05,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF
PETITION (THE DATE ON WHICH PETITION WAS PRESENTED
BEFORE THE MACT BENGALURU).


IN MFA NO.789/2018
BETWEEN:

1. SRI. BACHE GOWDA C
S/O LATE CHIKKA SONNAPPA
AGED ABOUT 59 YEARS

2. SMT. K KANTHAMMA
W/O BACHE GOWDA C
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AGED ABOUT 44 YEARS

BOTH ARE RESIDING AT
ANGAREKANAHALLI VILLAGE,
KASABA HOBLI, MARALUKUNTE POST
CHICKBALLAPURA TALUK/DISTRICT

                                          ...APPELLANTS

(BY SRI.HARISH BABU K N, ADVOCATE)

AND:

1. MR. H KRISHNAPPA
S/O HANUMANTHARAYAPPA,
R/AT ANGAREKAHANALLI VILLAGE,
KASABA HOBLI, MARALUKUNTE POST
CHICKBALLAPURA TALUK/DISTRICT-562105

2. THE REGIONAL MANAGER
UNITED INDIA INSURANCE COMPANY LTD.,
REGIONAL OFFICE, 5TH AND 6TH FLOOR,
KRUSHI BAVAN, NO.18, NRUPATHUNGA ROAD,
HUDSON CIRCLE, BANGALORE-560 001

3. SRI ANAND B
S/O BACHE GOWDA C
AGED ABOUT 28 YEARS,
R/AT ANGAREKANAHALLI VILLAGE,
KASABA HOBLI, MARALUKUNTE POST
CHICKBALLAPURA TALUK/DISTRICT-562105

                                         ...RESPONDENTS

(BY SRI.CHANDRASHEKAR.C, ADVOCATE FOR
SRI.B V MALLA REDDY, ADVOCATE FOR R1;
SRI.JWALA KUMAR, ADVOCATE FOR R2)
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     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED: 01.04.2017 PASSED IN MVC
NO.188/2014 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
JUDGE & JMFC, CHICKBALLAPUR, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

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

                            JUDGMENT

The claimants as well as the owner of the offending

vehicle have filed independent appeals questioning the

judgment and award dated 01.04.2017 passed in

MVC.No.188/2014. The respondent No.1/owner has preferred

appeal in MFA.No.7969/2017 questioning the liability as well

as quantum where as claimants have preferred appeal in

MFA.No.789/2018 seeking enhancement of compensation.

2. For the sake of convenience, the parties are

referred to as per their rank before the Tribunal.

3. The claimants filed claim petition for having lost

one Chethan in a road traffic accident dated 22.10.2012. The

claimants contended that their son Chethan succumbed to

injuries on account of rash and negligent driving by the driver

of the offending Tractor and Trailer. The claimants contended

that deceased was working as a driver and was hardly aged 22

years and had an earning of Rs.10,000/- per month. To

substantiate their claim, the claimants examined claimant

No.1 as PW.1 and adduced documentary evidence vide Exs.

P-1 to P-14. The respondent No.2/Insurance Company

examined its official as RW.1 and relied on documentary

evidence vide Exs.R-1 to R-4.

4. The Tribunal having assessed the oral and

documentary evidence, in absence of income proof, assessed

the income of the deceased at Rs.6,000/- and without adding

future prospects, awarded a sum of Rs.6,48,000/- under the

head 'loss of dependency'. Under conventional heads, the

Tribunal has awarded a sum of Rs.1,57,000/-. The Tribunal,

in all, awarded a sum of Rs.8,05,000/-. However, while

fastening the liability, the Tribunal was of the view that since

the claimants have failed to establish that the offending

vehicle was duly insured with the respondent/Insurance

Company, has proceeded to dismiss the claim petition against

the respondent No.2/Insurance Company thereby fastening

the liability on the respondent No.1/owner.

5. Therefore, the claimants are before this Court

questioning the liability as well as quantum determined by the

Tribunal whereas the owner has also preferred independent

appeal questioning the finding of the Tribunal insofar as

fastening of liability on respondent No.1/owner on the ground

that the vehicle was duly insured.

6. Pending appeal, the respondent No.1/owner filed an

application and sought leave of this Court to produce a copy of

policy by way of additional evidence. The said application was

not at all contested by the respondent No.2/Insurance

Company. On the contrary, the learned counsel appearing for

the respondent No.2/Insurance Company fairly conceded and

the said application was allowed and the policy copy was taken

on record.

7. If the additional evidence placed on record is taken

into consideration, then the contention raised by the

respondent No.2/Insurance Company before the Tribunal is

unreasonable and further this Court is of the view that a very

unfair stand is taken by the respondent No.2/Insurance

Company. When the respondent No.2/Insurance Company

has issued the policy and if the details of the vehicle were

furnished to it, it was incumbent on the part of the respondent

No.2/Insurance Company to verify and make a responsible

statement before the Tribunal. When the records were well

within the custody of the respondent No.2/Insurance

Company, this Court is of the view that a very unfair stand

was taken before the Tribunal in the written statement

denying very issuance of policy in favour of respondent

No.1/owner.

8. On perusal of the additional evidence, this Court is

of the view that the offending vehicle involved in the accident

was duly insured with the respondent No.2/Insurance

Company. Therefore, the finding recorded by the Tribunal in

fastening the liability on the owner and dismissing the claim

petition against the respondent No.2/Insurance Company

stands reversed by holding that the respondent

No.2/Insurance Company being the insurer of the offending

vehicle is liable to indemnify the respondent No.1/insured.

Accordingly, the said finding is set aside.

9. Regarding quantum - On perusal of the oral and

documentary evidence, though this Court cannot find fault

with the finding arrived at by the Tribunal in assessing the

income of the deceased notionally in absence of income proof,

however, having regard to the date of accident, this Court

would find that the income assessed by the Tribunal appears

to be on the lower side. In absence of income proof, having

regard to the date of accident which is dated 22.10.2012, this

Court by placing reliance on the chart issued by the legal

services authority, the income of the deceased is notionally

assessed at Rs.7,000/-. Having regard to the age of the

deceased who was hardly aged 22 years, 40% has to be

added towards future prospects. Thus, the income of the

deceased is notionally assessed at Rs.9,800/-. Having regard

to the fact that deceased was a bachelor, 50% needs to be

deducted towards personal expenses. After 50% deduction,

the income is taken at Rs.4,900/- and by applying the

multiplier of 18, the compensation under the head 'loss of

dependency' works out to Rs.10,58,400/- (4,900x12x18).

Under conventional heads, a sum of Rs.1,10,000/- is awarded

by following the dictum laid down by the Hon'ble Apex Court in

the case of Magma General Insurance Co. Ltd., vs. Nanu

Ram alias Chuhru Ram & Ors.1. Hence, the total

compensation re-determined by this Court works out to

Rs.11,68,400/- as against Rs.8,05,000/- awarded by the

Tribunal.

2018 (9) SC 51

10. Accordingly, the appeal filed by the owner in

MFA.No.7969/2017 is allowed and the appeal filed by the

claimants in MFA.No.789/2018 is allowed in part. The

judgment and award of the Tribunal is modified. The

appellants are entitled for enhanced compensation of

Rs.3,63,400/- which shall carry interest at the rate of 6% per

annum from the date of petition till realisation. The finding of

the Tribunal fastening liability on the respondent No.1/owner

is reversed since the vehicle is duly insured. The respondent

Nos.1 and 2 are jointly and severally liable to pay

compensation. The respondent No.2/Insurance Company

being the insurer of the offending vehicle is liable to indemnify

the respondent No.1/insured. The statutory deposit made by

the owner while preferring the appeal shall be remitted to the

owner after securing proper identification.

Sd/-

JUDGE CA