Karnataka High Court

K G Ramappa Gowda vs Ramesh on 2 February, 2022

Bench: P.Krishna Bhat

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 02ND DAY OF FEBRUARY, 2022

                      BEFORE

     THE HON'BLE MR.JUSTICE P.KRISHNA BHAT

 M.F.A.No.7761/2010 C/W M.F.A.CROB.NO.14/2012

IN M.F.A.NO.7761/2010

BETWEEN:

M/S. UNITED INDIA INSURANCE COMPANY LIMITED
BRANCH OFFICE,
CHICKMAGALUR,
NOW REP. BY ITS DIVISIONAL OFFICE,
B.H.ROAD, SHIMOGA
REP. BY ITS DIVISIONAL MANAGER
                                      ...APPELLANT

(BY SRI.K.S.LAKSHMINARASAPPA, ADV., FOR
SRI. A.M.VENKATESH, ADVOCATE)

AND:

1.     SRI. K.G.RAMAPPA GOWDA
       S/O. GIRIYAPPA GOWDA
       AGED ABOUT 69 YEARS
       RETD. EMPLOYEE OF KEB DEPARTMENT

2.     SMT. VANAJAKSHI
       W/O. K.G.RAMAPPA GOWDA
       AGED ABOUT 62 YEARS
       HOUSE WIFE WORK

3.     NAVEEN
       S/O. K.G.RAMAPPA GOWDA
                         2


     MINOR, REP. BY HIS
     NATURAL GUARDIAN - MOTHER

     ALL ARE R/O. KALLUGUDDE VILLAGE,
     THIRTHAHALLI TALUK,
     SHIMOGA DISTRICT.

4.   RAMESH
     S/O. GOVINDA
     AGED ABOUT 36 YEARS
     DRIVER,
     R/O. AGUMBE,
     THIRTHAHALLI TALUK.
     (DRIVER OF GOODS AUTO
     BEARNING NO.KA-14/0727)


5.   MAHESH
     S/O. MANJAPPA GOWDA
     AGE: MAJOR
     R/O. HOSANGADI - HOSAGADDE
     THIRTHAHALLI TALUK,
     (OWNER OF GOODS AUTO
     BEARING NO.KA-14/0727)
                                    ...RESPONDENTS

(BY SRI.PRUTHIVI WODEYAR, ADVOCATE FOR R1 AND R2;
SRI. PRAKASH HEGDE.K. FOR R4 & R5;
R3 IS MINOR REP. BY R1)

     THIS MFA FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 09.03.2010 PASSED
IN MVC NO.2419/2006 ON THE FILE OF PRESIDING
OFFICER, FAST TRACK COURT-II, ADDITIONAL MACT-III,
SHIMOGA,     AWARDING      A   COMPENSATION    OF
RS.2,50,000/- WITH INTEREST @ 6% P.A. FROM THE
DATE OF PETITION TILL REALIZATION.
                           3


IN M.F.A.CROB.NO.14/2012

BETWEEN:

1.     K.G.RAMAPPA GOWDA
       S/O. GIRIYAPPA GOWDA
       AGED ABOUT 70 YEARS
       RETD. EMPLOYEE OF KEB DEPT.

2.     SMT. VANAJAKSHI
       W/O. K.G.RAMAPPA GOWDA
       AGED ABOUT 63 YEARS
       HOUSEHOLD WORK

3.     NAVEEN
       S/O. K.G.RAMAPPA GOWDA
       MINOR,
       REPRESENTED BY HIS NATURAL GUARDIAN
       MOTHER

       ALL ARE RESIDENTS OF
       KALLUGUDDE VILLAGE,
       THIRTHAHALLI TALUK - 577432
       SHIMOGA DISTRICT.
                                  ...CROSS OBJECTORS

(BY SRI. PRUTHVI WODEYAR, ADVOCATE)

AND:

1.     RAMESH
       S/O. GOVINDA
       AGED ABOUT 37 YEARS
       DRIVER,
       R/O. AGUMBE,
       THIRTHAHALLI TALUK - 577432

2.     MAHESH
       S/O. MANJAPPA GOWDA
                             4


     MAJOR
     R/O. HOSANGADI - HOSAGADDE
     THIRTHAHALLI TALUK - 577432

     (OWNER OF GOODS AUTO
     BEARING NO.KA-14/0727)

3.   THE BRANCH MANAGER
     UNITED INDIA INS. CO. LTD.
     CHICKMAGALUR.

     (POLICY NO.240401/31/05/07325
     FROM 29.10.2005 TO 28.10.2006)
                                            ...RESPONDENTS

(BY SRI.K.S.LAKSHMINARASAPPA, ADV., FOR
SRI. A.M.VENKATESH, ADVOCATE FOR R3;
SRI. K.L.SRINIVASA, ADVOCATE FOR R1 & R2)

     THIS MFA.CROB IN MFA NO.7761/2010 FILED U/O-
41 RULE 22 OF CPC, AGAINST THE JUDGMENT AND
AWARD    DATED    09.03.2010   PASSED    IN  MVC
NO.2419/2006 ON THE FILE OF PRESIDING OFFICER,
FAST TRACK COURT-II, ADDITIONAL MACT, SHIMOGA,
PARTLY   ALLOWING    THE   CLAIM   PETITION  FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

     THIS MFA C/W MFA CROB COMING ON FOR
HEARING THROUGH VIDEO CONFERENCING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                      JUDGMENT

These appeals are at the instance of the Insurance

Company and the claimants calling in question the

correctness of the judgment and award dated 9.03.2010 in

M.V.C.Nos.2419/2006 and 5419/2006 passed by the

Presiding Officer, Fast Track Court-II, Additional MACT-III,

Shimoga.

2. The allegation in the claim petition is that one

Prakash (hereinafter referred to as the 'deceased') was

traveling in a goods autorikshaw bearing registration

No.KA.14/0727 and on 11.12.2005 at about 3.30 P.M. it

met with an accident on account of rash and negligent

driving of its driver and Prakash suffered serious injury and

subsequently he died on 19.12.2005.

3. Before the Learned Tribunal, respondent Nos.1

and 2 namely the driver and the owner had entered

appearance and the owner filed his statement of

objections. Respondent No.3 was the Insurance Company

which also filed its detailed written statement. Insurance

Company filed additional statement of objections stating

that the vehicle in question was insured with it and

deceased was traveling in the same as an unauthorized

passenger. During the trial, claimant No.2 examined

herself as P.W.1 and one Ganapathi was examined as

P.W.2, Exs.P1 to 12 were marked. The driver of the goods

auto was examined as R.W.1 and one official of the

Insurance Company was examined as R.W.2 and Exs.R1 to

R5 were also marked.

4. Upon hearing the learned counsel on both

sides and on perusal of the records, the learned Tribunal

allowed the claim petition in part awarding a compensation

of Rs.2,50,000/- with interest thereon at 6% per annum

with a direction to the pay the compensation fastened on

the Insurance Company.

5. It is urged on behalf of the Insurance Company

that the deceased was a passenger in the goods vehicle

and therefore, the Insurance Company is not liable to pay

the compensation awarded by the learned MACT. He also

contended that since the deceased was a Bachelor,

towards his personal expenses 50% of his income should

have been deducted and learned MACT has only deducted

1/3rd of his income which is erroneous. He therefore,

submitted that the impugned award is liable to be set

aside and the appeal allowed.

6. Learned counsel for the claimants in support of

their appeals submitted before me that the learned MACT

has taken a lower income for the deceased and thereby

has awarded a lesser compensation. He submitted that

the learned Tribunal has also not taken into consideration

the loss of future prospects while computing the loss of

dependency. He further submitted that the learned

Tribunal has also awarded a lesser amount under the head

of loss of consortium, loss of dependency, obsequies

ceremony and other conventional heads. He therefore

submitted that the compensation awarded by the learned

Tribunal is liable to be enhanced and the appeal is entitled

to be allowed.

7. I have given my anxious consideration to the

submissions made on both sides and I have perused the

records carefully.

8. There is no dispute about the fact that at the

time of the accident the deceased Prakash was an inmate

in goods auto bearing registration No.KA.14/0727. The

contention of the learned counsel for the Insurance

Company is that since it was a goods vehicle, the insured

owner was not authorized to take any passengers in the

said goods auto and therefore, the policy of insurance

issued does not cover the risk of passenger and hence, the

appellant-Insurance Company is liable to be absolved of

the liability to pay compensation. The above contention

is liable to be rejected in view of the decision of the

Hon'ble Supreme Court in Shivraj V. Rajendra and

another reported in AIR 2018 SC 4252. Paragraph 10 is

extracted as follows:

"10. At the same time, however, in the facts of the present case the High Court ought to have directed the Insurance Company to pay the compensation amount to the claimant (appellant) with liberty to recover the same from the tractor owner, in view of the consistent view taken in that regard by this

Court in National Insurance Co. Ltd. Vs. Swarna Singh & Ors.1, Mangla Ram Vs. Oriental Insurance Co. Ltd.2, Rani & Ors. Vs. National Insurance Co. Ltd. & Ors.3 and including Manuara Khatun and Others Vs. Rajesh Kumar Singh And Others.4 In other words, the High Court should have partly allowed the appeal preferred by the respondent No.2. The appellant may, therefore, succeed in getting relief of direction to respondent No.2 Insurance Company to pay the compensation amount to the appellant with liberty to recover the same from the tractor owner (respondent No.1)."

9. The Hon'ble Supreme Court in the above

decision has observed that the proper directions to be

issued in such cases for the Insurance Company to pay the

amount in the first instance and thereafter, recover the

same from the owner of the vehicle in the same

proceedings which is otherwise known as "pay and

recover". Accordingly, the direction of learned Tribunal is

required to be modified to the extent that the award

amount shall be paid by the appellant-Insurance Company

in the first instance and thereafter, it shall recover the

same from the owner insured in the same proceedings.

10. Learned counsel for the appellant-Insurance

Company is right in its contention that towards personal

expenses, the learned Tribunal ought to have deducted

50% of the income of the deceased, he being a Bachelor.

11. Learned Tribunal has taken the monthly

income of the deceased as Rs.3,000/- and since the death

has taken place in the year 2005, the same is reasonable.

12. The deceased was stated to be aged about 28

years. Therefore, the appropriate multiplier applicable in

this case is 17. Learned counsel for the claimants is right

in his contention that in view of the decision of the Hon'ble

Supreme Court held in the case of National Insurance

Company Limited Vs. Pranay Sethi and others

reported in AIR 2017 SC 5157. Loss of future prospects

is required to be added to the income of the deceased.

The relevant observation of Hon'ble Supreme Court is as

follows:

"61. (iv) - In case the deceased was self-

employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component." ,

40% of the income of the deceased is liable to be

added towards loss of future prospects while computing

loss of dependency. Hence, the loss of dependency is

required to be recomputed is as follows:-

Rss.3,000+40%-½x12x17 = 4,28,400/-

13. Since the deceased has left behind his parents,

a sum of Rs.1,10,,000/- is required to be awarded under

the head of filial consortium and other conventional heads.

Thus, the total compensation the claimants are entitled to

be receive is Rs.5,38,000/-. Learned Tribunal has already

awarded a sum of Rs.2,50,000/-, thus the enhancement in

the compensation is (5,38,400-2,50,000) Rs.2,88,400/-.

The enhanced compensation amount shall carry interest at

the rate of 6% per annum from the date of the petition till

the date of payment. Accordingly, both the appeals are

allowed to the above extent. Hence, the following:

ORDER

The above appeals are allowed in part.

The claimants are entitled to enhanced

compensation of Rs.2,88,400/- which shall

carry interest in the rate of 6% per annum

from the date of petition till the payment.