The Divisional Manager vs Basappa
2022 Latest Caselaw 1727 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

       DATED THIS THE 4TH DAY OF FEBRUARY, 2022

                         BEFORE

     THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY

       MISCELLANEOUS FIRST APPEAL No.102571/2014(MV)

BETWEEN:

THE DIVISIONAL MANAGER
ROYAL SUNDARAM ALLIANCE INSURANCE CO.LTD.,
SUBRAMANYAM BUILDING 2ND FLOOR NO.1,
CLUB HOUSE ROAD ANNASALAY CHENNAI,
600002 COVER NOTE NO.2419313 VALID
FROM 20/08/2011 TO 20/08/2012,
REPRESENTED BY ITS AUTHORISED OFFICER,
ROYAL SUNDARAM ALLIANCE INSURANCE CO.LTD.,
SUBRAMANYAM BUILDING, 2ND FLOOR NO.1,
CLUB HOUSE ROAD ANNASALAY CHENNAI 600002
                                          ...APPELLANT

(BY SRI. G N RAICHUR, ADVOCATE)


AND:

1.     BASAPPA,
       S/O SHIVAPPA DEGINAL,
       AGE: 42 YEARS, OCC: AGRICULTURAL COOLIE,
       R/O: GUGADADDI, TQ and DIST: BIJAPUR,
       NOW AT BARAGI VILLAGE, TQ: MIDHOL

2.     SMT.MAHADEVI, W/O BASAPPA DEGINAL
       AGE: 37 YEARS, OCC: HOUSEHOLD WORK
       R/O: GUGADADDI, TQ and DIST: BIJAPUR,
       NOW AT BARAGI VILLAGE, TQ: MIDHOL
                                     2




3.   VITTHAL LIMBAJI GORE
     SHETTY AGE: 37 YEARS,
     OCC: OWNER OF VEHICLE,
     R/O: NITRUD, TQ: MAJALGAON,
     DIST: BEED, MAHARASTRA STATE.
                                                    ...RESPONDENTS

(BY SRI. HARISH S. MAIGUR, ADVOCATE FOR R1 and R2;
 R3 - NOTICE HELD SUFFICIENT)

     THIS MFA IS FILED U/SEC.173(1) OF MV ACT, AGAINST
JUDGMENT AND AWARD DTD:08.07.2014, PASSED IN
MVC.NO.141/2012 ON THE FILE OF THE MOTOR VEHICLE
ACCIDENT CLAIMS TRIBUNAL IX, MUDHOL, AWARDING THE
COMPENSATION OF `5,80,000/- WITH INTEREST AT THE RATE
OF 9% P.A. FROM 26.10.2013 TILL THE DATE OF DEPOSIT.


     THIS APPEAL COMING ON FOR FURTHER HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:


                          JUDGMENT

This appeal is preferred by the Insurer of the

offending Tractor bearing registration No.MH-23/T-

3549, challenging the judgment and award dated

08.07.2014 passed by the MACT-IX, Mudhol

(hereinafter referred to as 'the Tribunal', for brevity),

in MVC No.141/2012, on the ground of quantum as

well as the liability.

2. Though this appeal is listed for admission,

with the consent of learned counsel appearing on

both sides, the same is taken up for final disposal.

3. The parties to this appeal are referred to by

their rankings assigned to them before the Tribunal

for the sake of convenience.

4. The facts of the case that would be relevant

for the purpose of disposal of this appeal are;

The claimants had fled MVC No.141/2012 under

Section 166 of the Motor Vehicles Act before the

Tribunal claiming compensation of `7,50,000/- from

the owner of the Insurer of the offending Tractor, in

respect of the death of their minor son Mahesh @

Mayappa, who had died in the road traffic accident

that had taken place on 17.12.2011. It is the case of

the claimants that, on 17.12.2011, when the minor

Mahesh was riding his bicycle near Marikatti Village

cross, the offending Tractor, which was attached with

the Trailer bearing registration No.MH-23/A-509 and

MH-23/A-510 driven in a rash and negligent manner

by the driver of the Tractor, dashed against the

bicycle of Mahesh from its rear side and caused the

accident. As a result, the minor Mahesh, who was

aged about 10 years, had sustained grievous injuries

in the accident and he had died on the spot. It is

under these circumstances, the claim petition was

filed by the parents of the deceased Mahesh as

against the owner and Insurer of the offending

tractor.

The Tribunal partly allowed the claim petition

and awarded a compensation of `5,80,000/- with

interest at 9% p.a. and saddled the liability to pay

the compensation on the Insurer of the offending

Tractor. Being aggrieved by the same, the Insurer

has preferred this appeal.

5. Learned counsel for the Insurer submits

that the Tractor was insured with the appellant

Insurer and the Trailers attached to the Tractor were

not insured. He submits that, therefore the Tribunal

was not justified in saddling the liability to pay the

compensation on the Insurer of the Tractor. He

submits that the compensation and the rate of

interest awarded by the Tribunal is on the higher

side. He submits that the Tribunal had erred in

taking into consideration the notional income of the

deceased, who was aged about 10 years, at

`30,000/- per annum. He refers to the judgment of

the Hon'ble Supreme Court in the case of Rajendra

Singh Vs. National Insurance Company Ltd, (Civil

Appeal No.2624/2020) reported in 2020 (7) SCC 256

and submits that the notional income was required to

be taken at `15,000/- per annum having regard to

the age of the deceased. He also relied upon the

judgment of the Division Bench of this Court passed

in MFA No.21210/2013 and connected appeals,

disposed of on 08.03.2018 and submits that the

notional income of the deceased was required to be

considered in the light of the judgment of the Hon'ble

Supreme Court in the case of Reshma Kumari and

Others Vs. Madan Mohan and Another reported in

2013 ACJ 1253.

6. Per contra, learned counsel appearing for

the claimants submits that the Division Bench of this

Court in the judgment reported in 2012 ACJ 936 in

the case of Suvarna and Others Vs. Murtujsab and

another, in identical circumstances has held that, in a

case of the Tractor, which is attached to the

uninsured Trailer involved in the accident, the

Insurer of the Tractor attached to the uninsured

Trailer cannot be absolved of his liability to pay the

compensation on the ground that the Trailer is not

insured. He submits that the said judgment has been

followed by another Division Bench of this Court in

MFA No.24621/2012 and connected appeal, disposed

of on 18.09.2009 and submits that there is no merit

in the contention urged by the learned counsel for

the appellant with regard to the correctness of the

judgment passed by the Tribunal insofar as it relates

to saddling the liability to pay the compensation on

the Insurer of the Tractor. He further submits that

the Hon'ble Supreme Court in Civil Appeal

No.6902/2021 in the case of Kurvan Ansari alias

Kurvan Ali and Anr. Vs. Shyam Kishore Murmu and

Another, taking into consideration the inflation,

devaluation of the rupee and cost of living, has held

that the notional income even in respect of the non-

earning member is required to be increased. He

submits that, in the said case, the accident was of

the year 2004 and the notional income of the minor

boy aged about 7 years was considered by the

Hon'ble Supreme Court at `25,000/- per annum.

Therefore, the notional income of the deceased

minor, who was aged about 10 years and died in the

accident that had taken place on 17.12.2011, taken

at `30,000/- per annum, cannot be said to be on the

higher side. He submits that, the judgment of the

Hon'ble Supreme Court in the case of Rajendra Singh

& Others has been considered in Kurvan Ansari's case

and it was held that the same would not assist the

case of the Insurance Company because in the said

case, the inflation, devaluation of the rupee and cost

of living was not considered.

7. I have carefully considered the rival

arguments and also perused the material on record.

8. The undisputed facts of the case are that,

on 17.12.2011, the minor son of the claimants, aged

about 10 years, had met with an accident and the

Tractor bearing registration No.MH-23/T-3549, which

was attached to the Trailer was involved in the said

accident. The minor son of the claimants, who

suffered grievous injuries in the said accident, had

succumbed to the injuries on the spot. The offending

Tractor was covered with the Insurance Policy and

the said policy was valid as on the date of the

accident.

9. The question whether the Insurer of the

Tractor, which was attached to the Trailer involved in

the accident, which was not insured, can be held

liable to pay the compensation has been already

considered by the Division Bench of this Court in the

case of Suvarna and Others Vs. Murtujsab and

another, reported in 2012 ACJ 936. In para 10 of

the said judgment, it is observed as follows:

"10. It is clear from the judgment and award passed by the Claims Tribunal that the Tribunal has ab solved the liability of the insurance company on the ground that second trailer was not insured as on the d ate of accid ent though tractor was insured as on the d ate of the accident (3.4.2004) as per Exh.R1 and that the driver of the tractor did not possess an effective driving licence and there is b reach of conditions of the policy. The evid ence of PW1 and contents of the insurance policy, Exh. R1, show that the policy covered tractor and the tractor was insured as on the date of accident as per Exh.R1.

It is well settled that it is the tractor which can b e driven by the driver and the trailer by itself is not a vehicle unless it is attached to the tractor and the averments mad e in the petition, it has to b e held that the accident occurred due to rash and negligent driving of the tractor b y its driver and when the tractor is insured as on the date of the accident, it is not open to the insurance company to contend that the

second trailer was not insured as in this case, the claimants cannot be termed as third parties, as the deceased was riding his motor cycle and the accident occurred due to rash and negligent driving by the driver of the tractor which was ad mittedly insured as on the d ate of the accid ent and wherefore the finding of the Tribunal that since the trailer was not insured, liability of the insurance company cannot be imposed, is perverse and arbitrary and is liable to be set aside."

10. The said judgment has been followed by

another Division Bench of this Court in MFA

No.24261/2012 disposed of on 18.09.2019 and it has

been held that the liability of the Tractor, which is

attached to a uninsured Trailer cannot be absolved

merely for the reason that the Trailer was not

insured, if the Tractor and Trailer both were involved

in the accident in question.

11. Therefore, I find no merit in the contention

of the learned counsel for the Insurer that the

Tribunal had erred in saddling the liability to pay the

compensation on the Insurer of the Tractor when the

Trailers attached to the Tractor at the time of

accident were not insured.

12. The Tribunal following the judgment of the

Hon'ble Apex Court reported in 2013 ACJ 2594 in the

case of Kishan Gopal and Another Vs. Lala and

Others, had taken into consideration the notional

income of the minor, who was aged about 10 years at

the time of death at `30,000/- per annum and by

applying the multiplier of 18, awarded a

compensation of `5,40,000/- towards 'loss of

dependency'. Though the learned counsel for the

Insurer relying upon Rajendra Singh's case has

contended that the Tribunal was not justified in

taking into consideration the notional income of the

deceased minor at `30,000/- per annum, having

regard to the judgment of the Hon'ble Apex Court in

the case of Kishan Gopal and Kurvan Ansari,

wherein the Hon'ble Supreme Court taking into

consideration the inflation, devaluation of the rupee

and cost of living, has held that the notional income

of the non-earning member is also required to be

enhanced on passage of time, I am of the considered

view that the Tribunal was fully justified in taking the

notional income of the deceased minor at `30,000/-

p.a. As rightly contended by the learned counsel for

the claimants, in the case of Kurvan Ansari, wherein

the accident was of the year 2004 and the deceased

boy was aged about 7 years, the notional income of

the deceased was taken at `24,000/- by the Hon'ble

Supreme Court. In the present case, the accident is

of the year 2011 and the deceased minor was aged

about 10 years at the time of accident and therefore,

the Tribunal is justified in taking the notional income

of the deceased minor at `30,000/- p.a. However,

the Tribunal has erred in taking the applicable

multiplier at 18. The proper multiplier applicable

having regard to the age of the deceased is '15' and

therefore the claimants are entitled for a sum of

`4,50,000/- as compensation towards loss of

dependency. Towards filial love and affection, the

claimants are entitled for a sum of `40,000/- each

and towards funeral expenses, the claimants are

entitled for a further sum of `15,000/-. Therefore,

under the conventional heads, the claimants are

entitled for a sum of `95,000/-. In all, the claimants

are entitled for a total compensation of `5,45,000/-

as against `5,85,000/- awarded by the Tribunal.

13. As rightly contended by the learned counsel

for the insurer, the Tribunal has erred in awarding

the interest at 9% per annum. The Hon'ble Supreme

Court in the case of Kurvan Ansari alias Kurvan Ali

and another V/s Shyam Kishore Murmu and

another which has been disposed off on 16.11.2021

has awarded interest at 6% per annum from the date

of claim petition till the date of realization.

Therefore, following the said judgment of the Hon'ble

Supreme Court, I am of the considered view that the

rate of interest awarded by the Tribunal is required

to be reduced from 9% per annum to 6% per annum

which would be applicable from the date of petition

till realization.

14. The insurer/appellant is directed to deposit

the balance of the compensation amount with interest

within a period of six weeks from the date of receipt

of certified copy of this order. The amount in deposit

before this Court shall be transferred to the Tribunal

for the purpose of disbursement. The order passed by

the Tribunal insofar as it relates to apportionment,

deposit and disbursement remains unaltered.

The Miscellaneous First Appeal is accordingly

partly allowed.

Sd/-

JUDGE

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