The Branch Manager, United India ... vs Vijayalaxmi @ Laxmi W/O Basavaraj ...
2022 Latest Caselaw 1835 Kant

            IN THE HIGH COURT OF KARNATAKA,
                     DHARWAD BENCH

        DATED THIS THE 07TH DAY OF FEBRUARY 2022

                         PRESENT

           THE HON'BLE MR. JUSTICE S.G. PANDIT

                           AND

     THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

                M.F.A.NO.102709 OF 2015 (MV)
                           C/W
             M.F.A.CROB. NO.100113 OF 2016 (MV)

IN M.F.A.NO.102709 OF 2015 (MV)

BETWEEN

THE BRANCH MANAGER
UNITED INDIA INSURANCE CO. LTD
MEELLIGERIL COMPLEX,
KALADAGI ROAD, BAGALKOT
REPRESENTED BY ITS DIVISIONAL OFFICE
UNITED INDIA INSURANCE CO.LTD.,
THE DIVISIONAL MANAGER
MARUTI GALLI, BELAGAVI
REPRESENTED BY ITS ASSISTANT MANAGER.

                                               ... APPELLANT

(BY SRI. N.R.KUPPELUR, ADVOCATE)

AND

1.      SMT. VIJAYALAXMI @ LAXMI
        W/O BASAVARAJ GIDDIYAVAR
        AGE:30 YEARS, OCC. HOUSEHOLD
                            2



2.   KUM. ANNAPURNA D/O BASAVARAJ GIDDIYAVAR
     AGE:12 YEARS

3.   KUM. VINAYAK S/O BASAVARAJ GIDIYAVAR
     AGE:10 YEARS

4.   KUM. NEELAKANTHA S/O BASAVARAJ GIDDIYAVAR
     AGE:8 YEARS

     SINCE RESPONDENTS NO.2 TO 4 ARE MINORS

REPRESENTED BY THERI NATURAL GUARDIAN MOTHER RESPONDENT NO.1.

5. DASHARAT S/O BASAVARAJ @ BASAPPA GIDDIYAVAR AGE:71 YEARS, OCC. PENSIONER

6. SMT. SHAVAKKA W/O DASAHRAT GIDDIYAVAR AGE:71 YEARS, OCC. PENSIOENR

ALL ARE RESIDENTS OF NEAR LAXMI TEMPLE AND RAILWAY STATION WARD NO.10 BAGALKOT.

7. GURUSANGAYYA S/O SHIVAYYA HIREMATH AGE: MAJOR, OCC. BUSINESS R/O VIDYANAGAR, MUDDEBIHAL DIST. VIJAYAPURA.

... RESPONDENTS

(BY SRI SIDDAPPA S.SAJJAN, ADVOCATE FOR R1 TO 6; NOTICE TO R7 IS SERVED)

THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 14.05.2015 PASSED IN MVC NO.299/2011 ON THE FILE OF THE MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL NO.IV, BAGALKOT, AWARDING THE COMPENSATION OF

RS.20,67,880/-, ALONG WITH INTEREST AT THE RATE OF 9% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

IN M.F.A.NO.100113 OF 2016 (MV)

BETWEEN

1. SMT. VIJAYALAXMI @ LAXMI W/O BASAVARAJ GIDDIYAVAR AGE:31 YEARS, OCC. HOUSEHOLD

2. KUM. ANNAPURNA D/O BASAVARAJ GIDDIYAVAR AGE:14 YEARS

3. KUM. VINAYAK S/O BASAVARAJ GIDIYAVAR AGE:12 YEARS

4. KUM. NEELAKANTHA S/O BASAVARAJ GIDDIYAVAR AGE:10 YEARS

C/O NOS.2 TO 4 ARE THE MINORS REPRESENTED BY THERI NATURAL GUARDIAN MOTHER CROSS OBJECTOR NO.1.

5. DASHARAT S/O BASAVARAJ @ BASAPPA GIDDIYAVAR AGE:73 YEARS, OCC. PENSIONER (SINCE DEAD, HIS LR'S ARE ALREADY ON RECORD)

6. SMT. SHAVAKKA W/O DASAHRAT GIDDIYAVAR AGE:67 YEARS, OCC. HOUSEHOLD WORK.

ALL ARE RESIDENTS OF NEAR LAXMI TEMPLE AND RAILWAY STATION WARD NO.10 BAGALKOT, TQ & DIST: BAGALKOT.

... CROSS OBJECTORS

(BY SRI SIDDAPPA S.SAJJAN, ADVOCATE)

AND

1. GURUSANGAYYA S/O SHIVAYYA HIREMATH AGE: MAJOR, OCC. BUSINESS R/O VIDYANAGAR, MUDDEBIHAL DIST. VIJAYAPURA.

2. THE BRANCH MANAGER UNITED INDIA INSURANCE CO. LTD MEELLIGERIL COMPLEX, KALADAGI ROAD, BAGALKOT POLICY ISSUED BY VIJAYAPURA BRANCH.

... RESPONDENTS

(BY SRI.N.R.KUPPELUR, ADVOCATE FOR R2; NOTICE TO R1 IS SERVED)

THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 14.05.2015 PASSED IN MVC NO.299/2011 ON THE FILE OF THE MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL NO.IV, BAGALKOT, AWARDING THE COMPENSATION OF RS.20,67,880/-, ALONG WITH INTEREST AT THE RATE OF 9% P.A. FROM THE DATE OF PETITION TILL REALIZATION AND PRAYS FOR ENHANCEMENT OF COMPENSATION.

THESE APPEALS COMING ON FOR ADMISSION THIS DAY, ANANT RAMANATH HEGDE, J DELIVERED THE FOLLOWING:

COMMON JUDGEMENT

The insurer who has issued an insurance policy in

favour of the owner of the Tata Indica Vista Car bearing

No.KA-28-M-7965 is saddled with the liability to pay a

compensation of Rs.20,67,880/- along with interest at the

rate of 9% per annum to the dependants of Basavaraj

Giddiyavar. The defence of the insurer that there was a

violation of terms and conditions of the policy namely

private vehicle was used for hire or reward is ejected by

the Tribunal. Questioning liability, the insurer is in

appeal.

2. Aggrieved by the compensation of

Rs.20,67,880.00 awarded by the Tribunal, the claimants

have also filed a cross-appeal in M.F.A.Crob.No.

100113/2016, seeking enhancement of compensation.

3. Both the cases are taken up together for

disposal by a common judgment.

4. Brief facts unfolding from the pleadings found

in the petition in M.V.C.No.299/2011 would read as

under;

One Basavaraj was traveling along with Tukaram

Mamadapur in Tata Indica Vista Car bearing No.KA-28-M-

7965. It is averred in the petition that one Shivayya

Gurulingayya Hiremath, who was driving the vehicle drove

the vehicle in a rash and negligent manner and dashed

against the roadside tree, resulting in the spot death of

Basavaraj. Since the vehicle was insured, the claim was

laid against the owner as well as the insurer. It is further

averred that the said Basavaraj was aged 36 years,

working as a Ticket Collector in KSRTC, Bijapur Depot

No.1 with a monthly salary of Rs.20,000/- per month.

5. The claim was objected by the insurer on the

ground that the complaint filed by the inmate of the car,

which was involved in the accident itself would disclose

that the vehicle was used on a contract basis which

violated specific terms and conditions in the policy which

prohibited use of a vehicle for hire or reward. This

contention was analysed by the Tribunal and the Tribunal

in terms of paragraph No.19 of the judgment has

concluded that the stand relating to violation of terms and

conditions of policy i.e., use of the vehicle for hire or

reward is not established.

6. Learned counsel for the appellant/insurer, Sri.

N.R.Kuppelur with all vehemence would urge before this

Court that the complaint, which is marked at Ex.P1 itself

discloses that the vehicle was used for hire or reward. This

Court has gone through the complaint marked at Ex.P1.

In the said complaint, it is averred that the vehicle was

used on a contract basis. However, the complaint does not

disclose that the vehicle is used for hire or reward. The

Tribunal has observed that the insurer has not produced

any contract relating to hire or reward as alleged by the

insurance company. Moreover, the complainant or driver

of the car is not examined on behalf of the respondent-

insurer, who would have been the best witness to say

about the contract of hire or reward. Under these

circumstances, this Court is not inclined to take a

different view to hold that the vehicle was used for hire or

reward in the absence of any acceptable material to

conclude that the vehicle was used for hire or reward.

Under these circumstances, this Court is of the opinion

that there is no violation of the terms and conditions of

the insurance policy.

7. This being the position the point for

consideration is whether the compensation awarded by

the Tribunal is on the higher side or lower side.

8. The Tribunal has taken Rs.11,290.00 as the

salary of the deceased based on Ex.P9-salary certificate.

After deducting Rs.100.00 towards professional tax,

Rs.11,190.00 is taken as his salary per month. The

Tribunal has taken the age of the deceased as 41 years

and has added 30% towards future prospects and

applying a multiplier of 14, has awarded a compensation

of Rs.18,32,880.00. Since the deceased is survived by six

dependants, the Tribunal deducted 1/4th of the income

towards the personal expenditure of the deceased and

dependency is calculated at Rs.18,32,880.00.

9. However, the Tribunal has awarded

Rs.2,35,000.00 towards other conventional heads like loss

of consortium, loss of estate and funeral expenses.

Considering the fact that there were six dependants, the

loss of consortium would be Rs.2,40,000.00

(Rs.40,000.00 x 6=Rs.2,40,000.00) and wife is entitled to

Rs.15,000.00 towards loss of estate and Rs.15,000.00

towards funeral expenses.

10. Learned counsel for the appellant,

Sri.N.R.Kuppelur brings to the notice of the Court that the

interest of 9% awarded by the Tribunal is on the higher

side. Considering the prevailing interest rate awarded by

the nationalized banks, this Court deems it appropriate to

award interest at the rate of 6% per annum on the

compensation awarded. Under these circumstances, both

appeal, as well as cross-objections, are allowed in part.

11. The compensation payable to the appellants

would be as under;

                    Heads                       Amount in (Rs.)
        Loss of dependency.                       18,32,880.00

        Loss      of      consortium                2,40,000.00
        (Rs.40,000.00 each)
        Loss of estate and funeral                   30,000.00
        expenses.
                               Total              21,02,880.00

12. The Tribunal has awarded interest at the rate

of 6% per annum on the compensation awarded. The rate

of interest is retained. Hence, the following;

ORDER

MFA No.102709/2015 is allowed in part.

MFA Crob. No.100113/2016 is allowed in part.

Judgment and award of the Tribunal dated 14.05.2015 passed by the Member M.A.C.T No.IV, Bagalkot in MVC No.299/2011 is modified awarding compensation of Rs.21,02,880.00 along with interest at the rate of 6% per annum.

The apportionment, deposit and disbursement shall be made as per the award of the Tribunal.

Draw modified award accordingly.

Amount in deposit, if any, before this Court be transmitted to the Tribunal.

No order as to costs.

Given the disposal of the main appeals, all the pending applications are disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

am.