Karnataka High Court
M/S Icici Lombard General ... vs Smt Jayamma on 26 November, 2021
Bench: Sachin Shankar Magadum
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
M.F.A.NO.1428 OF 2016 (MV-D)
C/W
M.F.A.NO.8570 OF 2015 (MV-D)
IN MFA NO.1428/2016
BETWEEN:
1. SMT. JAYAMMA
W/O LATE MUTHEGOWDA @ KRISHNEGOWDA
AGED ABOUT 41 YEARS
2. SMT. KEMPAJAMMA
S/O LATE R RAMESH
W/O LATE MUTHEGOWDA @ KRISHNEGOWDA
AGED ABOUT 39 YEARS
3. MUTHURAJ
S/O LATE MUTHEGOWDA @ KRISHNEGOWDA
AGED ABOUT 35 YEARS
4. SMT GEETHA
W/O KUMARA
D/O LATE MUTHEGOWDA @ KRISHNEGOWDA
AGED ABOUT 31 YEARS
ALL ARE RESIDING AT NO.29,
SATHANURU VILLAGE, KANAKAPURA TALUK
RAMANAGARA DISTRICT.
4TH APPELLANT IS PERMANENT
RESIDENT OF HONGANIDODDI VILLAGE
2
SATHNURU HOBLI,
KANAKAPURA TALUK
...APPELLANTS
(BY SRI GOPAL KRISHNA N, ADVOCATE)
AND:
1. SRI. RANGASWAMY
S/O MUTHAIAH
MAJOR IN AGE
RESIDING AT NO.136
HALASURU VILLAGE, SATHANURU HOBLI
KANAKAPURA TALUK,
RAMANAGARA DISTRICT-562 162
2. ICICI LOMBARD GENERAL
INSURANCE COMPANY LTD
NO.89, S V R COMPLEX, 2ND FLOOR
MADIVALA, HOSURU ROAD
BANGALORE-560 068
REP:BY ITS MANAGER
...RESPONDENTS
(BY SRI.N.S.BHAT, ADVOCATE FOR R1;
SRI.A M VENKATESH, ADVOCATE FOR R2)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED: 07.09.2015 PASSED IN MVC
NO.01/2013 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC.,
AND ADDL. MACT CHANNAPATTANA, RAMANAGAR DISTRICT
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
3
IN MFA NO.8570/2015
BETWEEN:
M/S. ICICI LOMBARD GENERAL
INSURANCE COMPANY LTD
NO.89, 2ND FLOOR, S.V.R. COMPLEX,
HOSUR MAIN ROAD,
MADIVALA, BENGALURU-560 068,
NOW REPRESENTED BY NO.204, 1ST FLOOR,
MYTHRI ARCADE, NEW KANTHRAJ URS ROAD,
SARASWATHIPURAM, MYSURU,
REP. BY ITS MANAGER-LEGAL.
...APPELLANT
(BY SRI.A M VENKATESH, ADVOCATE)
AND:
1. SMT JAYAMMA
W/O. LATE MUTHEGOWDA @ KRISHNEGOWDA,
AGED ABOUT 40 YEARS
2. SMT. KEMPAJAMMA
W/O. LATE MUTHEGOWDA @ KRISHNEGOWDA,
AGED ABOUT 38 YEARS
3. MUTHURAJ
S/O. LATE MUTHEGOWDA @ KRISHNEGOWDA,
AGED ABOUT 34 YEARS
4. SMT. GEETHA
W/O. KUMARA,
D/O. LATE MUTHEGOWDA @ KRISHNEGOWDA,
AGED ABOUT 30 YEARS
ALL ARE R/AT NO.29,
SATHANURU VILLAGE, KANAKAPURA TALUK,
RAMANAGARA DISTRICT,
4
AND PERMANENTLY R/AT
HONGANIDODDI VILLAGE, SATHANURU HOBLI,
KANAKAPURA TALUK.
5. RANGASWAMY
S/O. MUTHAIAH,
R/AT NO.136, HALASURU VILLAGE,
SATHANURU HOBLI, KANAKAPURA TALUK,
RAMANAGARA DISTRICT-562 162.
...RESPONDENTS
(BY SRI.BHAT.N.S, ADVOCATE FOR R5;
SRI.S.RAJU, ADVOCATE FOR R1-4)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED: 07.09.2015 PASSED IN MVC
NO.01/2013 ON THE FILE OF THE COURT OF SENIOR CIVIL JUDGE
AND JMFC & ADDITIONAL MACT, CHANNAPATTANA, AWARDING
COMPENSATION OF RS.4,46,000/- WITH INTEREST @ 6% P.A
FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The Insurance Company as well as the claimants have
questioned the judgment and award passed in
MVC.No.1/2013.
2. For the sake of convenience, the parties are
referred to as per their rank before the Tribunal.
3. The claimants have preferred appeal in
MFA.No.1428/2016 seeking enhancement of compensation
whereas the Insurance Company has preferred appeal in
MFA.No.8570/2015 questioning the liability on the ground that
the rider of the offending bike was possessing Learner's
Licence and was not accompanied by a person having valid
driving licence and therefore, has violated Rule 3 of the
Central Motor Vehicles Rules.
Re: Quantum:
4. Insofar as the claim of the claimants is concerned,
though this Court cannot find fault with the Tribunal in
notionally assessing the income of the deceased, however,
having regard to the fact that accident is of the year 2012,
this Court is of the view that the income assessed by the
Tribunal appears to be on the lower side. In absence of proof
of income, by placing reliance on the chart issued by the legal
services Authority, the income of the deceased is notionally
assessed at Rs.7,000/- and having regard to the age of the
deceased who was aged 55 years, 10% has to be added
towards future prospects. Thus, the income of the deceased is
assessed at Rs.7,700/- and after deducting 1/3rd towards
personal expenses, the income is taken at Rs.5,133.33/- and
by applying the multiplier of 11, the compensation payable
under the head 'loss of dependency' works out to
Rs.6,77,599/- (5,133.33x11x112).
5. Though there are four dependents, however,
learned counsel appearing for the Insurance Company would
submit to this Court that claimant No.2 is claiming to be the
second wife. Therefore, she cannot claim to be a dependent
of the deceased and therefore, question of paying consortium
would not arise. Accordingly, under conventional heads, only
claimant Nos.1, 3 and 4 are regarded as dependents and by
applying the principles 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, a sum of Rs.1,50,000/- is
2018 (9) SC 51
awarded under conventional heads. Hence, the total
compensation re-determined by this Court works out to
Rs.8,27,599/- rounded off to Rs.8,27,600/- as against
Rs.4,46,000/- awarded by the Tribunal.
Re: Liability:
6. Learned counsel appearing for the Insurance
Company in MFA.No.8570/2015 would submit to this Court
that the Insurance Company has succeeded in establishing the
breach of policy conditions. The Tribunal has ignored the
categorical admission given by the eye witness examined as
PW.2 who has admitted in unequivocal terms that deceased
was possessing Learner's Licence and was riding the bike on
his own without being assisted by a person possessing valid
driving licence. However, the Tribunal on the ground that
Insurance Company has not adduced independent witness to
demonstrate that deceased was driving alone on the bike has
proceeded to fasten the liability on the Insurance Company.
7. On re-appreciation of the oral and documentary
evidence, this Court would find that the finding of the Tribunal
in holding that the appellant/Insurance Company is liable to
pay compensation appears to be erroneous and contrary to
evidence on record. The evidence on record clearly
establishes that deceased was possessing Learner's Licence
and was not accompanied by a person possessing licence as
required under Rule 3 of the Central Motor Vehicle Rules,
1989. Therefore, by way of rebuttal evidence, the Insurance
Company has succeeded in establishing that there is violation
of the policy condition. If the deceased was holding a Learner's
Licence, in all probability, the accident has occurred since he
was not accompanied by a person possessing valid driving
licence and in law, is required to accompany as a pillion rider.
If the breach is established, then the principles laid down by
the Hon'ble Apex Court in the case of Pappu and Others vs.
Vinod Kumar Lamba and Another2 and also the Full Bench
decision rendered in New India Assurance Company
AIR 2018 SC 592
Limited, Bijapur vs. Yallavva W/o Yamanappa
Dharanakeri and Another3 are squarely applicable to the
present case on hand. Accordingly, by applying the principles
laid down by the Hon'ble Apex Court in the case of Pappu and
Others (supra) and also the Full Bench judgment rendered by
this Court in the case of Yallavva (supra), the appeal filed by
the Insurance Company has to be allowed directing the
Insurance Company to pay the compensation and recover the
same from the owner.
8. Accordingly, the appeal filed by the claimants in
MFA.No.1428/2016 is allowed in part and the appeal filed by
the Insurance Company in MFA.No.8570/2015 is allowed. The
claimants are entitled for enhanced compensation of
Rs.3,81,600/- which shall carry interest at the rate of 6% per
annum from the date of petition till realisation. The Insurance
Company is directed to pay the compensation and thereafter
recover the same from the owner.
2020 (2) AKR 484
The amount in deposit, if any, in MFA.No.8570/2015
shall be remitted to the Tribunal.
Sd/-
JUDGE
CA
