Karnataka High Court
The Divisional Manager United ... vs Nagarathna W/O Kamalakar ... on 1 February, 2022
Bench: S.R.Krishna Kumar, K S Hemalekha
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 01ST DAY OF FEBRUARY 2022
PRESENT
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
AND
THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA
MFA NO.201106/2016 (MV)
BETWEEN:
The Divisional Manager,
United India Insurance Co. Ltd.,
Jawali Complex, Super Market,
Gulbarga.
... Appellant
(By Sri S.S. Aspalli, Advocate)
AND:
1. Nagarathna
W/o Kamalakar Yalakapalli,
Age: 48 Years, Occ: Household,
2. Kamalakar
S/o Virabhadrappa Yalakapalli,
Age: 51 years, Occ: Nil,
Both are R/o H.No.10-343/2,
'Kale Layout' Gulbarga - 585 101.
2
3. Jagadish S/o Revansidappa,
Age: Major, Occ: Owner of Vehicle
(As per Insurance),
R/o Yankanchi, Post: Nagur,
Tq. & Dist. Gulbarga - 585 101.
4. Mallikarjun S/o Veeranna,
Age: Major, Occ: Owner of Vehicle
(As per RC Holder),
R/o H.No.9-429, Patwegargalli,
Shah Bazar, Gulbarga - 585 101.
... Respondents
(Sri. Babu H. Metagudda, Advocate for R1 & R2;
V/O Dtd. 23.02.2021, appeal against R3 & R4
is dismissed as not pressed)
This Miscellaneous First Appeal is filed under Section
173 (1) of the Motor Vehicles Act, praying to set aside the
judgment and award dated 23.04.2016 in MVC
No.187/2013 passed by the I Addl. Senior Civil Judge &
MACT, Kalaburagi, by allowing the above appeal.
This appeal coming on for Final Hearing this day,
K.S. Hemalekha J., delivered the following:
JUDGMENT
The insurance company has preferred this appeal,
assailing the judgment and award dated 23.04.2016
passed in MVC No.187/2013 by the I Addl. Senior Civil
Judge & MACT, Kalaburagi (hereinafter referred to as 'the
Tribunal' for short) on the ground of liability as well as
quantum.
2. The claimants filed a claim petition before the
Tribunal under Section 166 of the Motor Vehicles Act,
seeking compensation of Rs.53,25,000/- on account of
death of one Anand S/o Kamalakar Yalkpalli, contending
that on 09.09.2012 at around 9.15 a.m. when the
deceased was proceeding towards SVP Chowk on
Gulbarga-Goa Hotel road, an autorickshaw bearing
Reg.No.KA.32/8554 came in a rash and negligent manner
and dashed the deceased, due to which he sustained
grievous injuries and died on the spot. The deceased was
aged about 26 years and was working as a professor in
Basavakalyan Engineering College and earning Rs.40,000/-
per month. The claimants being the parents of the
deceased were dependent upon the income the deceased.
3. Pursuant to issuance of summons by the
Tribunal, respondent Nos.1 to 3 appeared and filed their
objections.
4. Respondent Nos.1 and 2 contended that the
offending vehicle is insured with respondent No.3 and the
driver of the vehicle possessed a valid and effective driving
licence.
5. The insurance company, who was arrayed as
respondent No.3 contended that the accident occurred due
to the rash and negligent riding of the motorcycle by the
deceased and the deceased was not holding a valid driving
licence and also contended that the driver of the offending
vehicle bearing No.KA.32/8554 was not possessing a valid
and effective driving licence and the owner of the vehicle
has violated the policy conditions and hence, sought to
absolve the insurance company from its liability on the said
ground.
6. On the basis of the pleadings, the Tribunal
framed the following:
ISSUES
1. Whether the petitioners prove that on
09.09.2012 at about 9.15 A.M, while
the deceased Anand proceeding
towards S.V.P. Chowk, near Dr.More
Hospital, at that time the autorickshaw
bearing No.KA-32/8554 belongs to the
respondent No.2, driving in a high
speed, rash and negligent manner and
endangering to human life without
control over his vehicle, suddenly
dashed to the deceased Anand, due to
which the deceased sustained injuries
on vital parts of the body and
succumbed to the injuries on the spot?
2. Whether the respondent No.3 proves
that, the driver of the Autorickshaw
bearing No.KA-32/8554 was not
holding valid and effective D.L. on the
date of accident?
3. Whether the petitioners are entitled for
the compensation? If so, what amount
and from whom?
4. What Award or Order?
7. In order to substantiate the case of the
claimants, claimant No.1- Nagarathna, the mother of the
deceased examined herself as PW.1 and examined another
witness as PW.2 and got marked 20 documents at Exs.P1
to P20. On contrary, the insurance company has examined
its Administrative Officer as RW.1 and got marked Exs.D1
and D2.
8. The Tribunal, on considering the material on
record held that the driver of the offending vehicle
possessed a valid and effective driving licence and the
accident occurred due to the rash and negligent driving of
the offending vehicle bearing Reg.No.KA.32/8554 and
accordingly, fastened the liability on the insurance
company and awarded a total compensation of
Rs.34,05,180/- under the following heads.
Towards loss of dependency Rs.33,75,180/-
Towards transportation of dead Rs.10,000/-
body and funeral expenses
Towards loss of love and Rs.10,000/-
affection
Towards loss of estate Rs.10,000/-
Total Rs.34,05,180/-
9. Being aggrieved by the fastening of liability
and quantum of compensation awarded by the Tribunal,
the insurance company has preferred this appeal.
10. Heard the learned counsel for the appellant-
insurance company and the learned counsel for respondent
Nos.1 and 2-claimants.
11. Sri. S.S.Aspalli, learned counsel for the
appellant-insurance company would contend that the
fastening of liability on the insurance company is without
considering the fact that the driver of the offending vehicle
was not possessing a valid and effective driving licence and
the owner of the vehicle has violated the terms and
conditions of the insurance policy. It is also contended that
as on the date of accident, the driving licence did not have
endorsement to drive the transport vehicle, as the driving
licence issued in favour of the driver of the offending
vehicle was only to drive three wheeler and the accident
reveals that the vehicle involved is a passenger carrying
commercial vehicle and thus, sought to absolve the liability
fastened upon the insurance company by the Tribunal.
Insofar as the quantum of compensation awarded by the
Tribunal is concerned, it is contented that the Tribunal had
taken the income of the deceased at Rs.22,060/- per
month without any material on record and contended that
adding 50% of the income towards future prospects is not
just and proper and the compensation arrived at by the
Tribunal towards loss of dependency is much on the higher
side.
12. Per contra, Sri. Babu H. Metagudda, learned
counsel for respondent Nos.1 and 2-claimants would justify
the judgment and award passed by the Tribunal and
contend that mere non-endorsement to the driving licence
would not absolve the liability of the insurance company,
as the driver of the offending vehicle possessed a valid and
effective driving licence to drive the offending vehicle,
which is an autorickshaw and would contend that the
quantum of compensation awarded by the Tribunal under
the various heads is just, fair and proper compensation
and does not call for any interference by this Court.
13. Having heard the learned counsel for the
parties and in view of the rival contentions, the only point
that arises for consideration in this appeal is,
Whether the judgment and award passed by
the Tribunal requires any interference?
14. The date, time and occurrence of the accident
and the death of the deceased Anand due to the accident
are not in dispute. It is the contention of the appellant that
the driver of the offending vehicle was not possessing valid
and effective driving licence and no endorsement was
effected to drive the transport vehicle on the date of the
accident. Looking into the material on record, it clearly
depicts that the driver of the offending vehicle possessed a
valid and effective driving licence as per Ex.D2, wherein it
is clearly mentioned that the driver of the vehicle is
holding driving licence to drive three wheeler non-
transport vehicle for 20 years and mere non-endorsement
in the driving licence does not mean that the driver of the
autorickshaw bearing Reg.No.KA.32/8554 was not holding
a valid and effective driving licence. The Hon'ble Apex
Court in the case of MUKUND DEWANGAN vs.
ORIENTAL INSURANCE COMPANY LIMITED AND
OTHERS reported in (2016) 4 SCC 298 has held that a
person holding LMV licence is competent to drive a
transport vehicle. The Tribunal, considering all these
aspects has rightly come to the conclusion that the driver
of the offending vehicle possessed a valid and effective
driving licence as on the date of the accident and has
rightly fastened the liability on the insurance company
holding that the accident occurred due to the rash and
negligent driving of the offending vehicle.
15. Insofar as quantum of compensation awarded
by the Tribunal, which is assailed by the insurance
company also does not call for any interference, as the
Tribunal, on the basis of Exs.P11 to Ex.P16 corroborated
with the evidence of PW.2-Registrar of the College in which
the deceased was working, who deposed that the deceased
was earning Rs.22,060/- per month has considered the
monthly income of the deceased at Rs.22,060/- and
adding 50% i.e., Rs.11,030/- towards future prospects as
per the judgment of Hon'ble Supreme Court in the case of
Sarla Verma and others V. Delhi Transport
Corporation & another reported in AIR 2009 SC 3104,
deducting 50% of it towards personal expenses of the
deceased as he was bachelor and applying the multiplier of
17 considering the age of the deceased has awarded a sum
of Rs.33,75,180/- towards loss of dependency, which is
just and proper. Further, the Tribunal has awarded a sum
of Rs.10,000/- towards transportation of dead body and
funeral expenses, Rs.10,000/- towards loss of love and
affection and Rs.10,000/- towards loss of estate. Looking
from all angles, the quantum of compensation awarded by
the Tribunal is just and proper and does not call for any
interference.
16. In view of the reasons stated above, the point
raised for consideration is answered in the negative
holding that the judgment and award passed by the
Tribunal does not call for any interference.
17. In the result, we pass the following
ORDER
i) The appeal is dismissed.
ii) The judgment and award dated 23.04.2016
passed by the Tribunal in MVC No.187/2013 is
hereby confirmed.
iii) The amount in deposit before this Court is
directed to be transmitted to the Tribunal for
disbursement.
iv) No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
SMP/LG
