Karnataka High Court
The Divisional Manager vs Shantamma W/O Hanumesh Hariwan on 8 February, 2022
Bench: S G Pandit, Anant Ramanath Hegde
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 8th DAY OF FEBRUARY 2022
PRESENT
THE HON'BLE MR. JUSTICE S.G. PANDIT
AND
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
MFA No.20291 OF 2013 (MV-D)
C/W
MFA CROB NO.824 OF 2013 (MV-D)
IN MFA NO.20291/2013
BETWEEN:
THE DIVISIONAL MANAGER
ORIENTAL INSURANCE CO. LTD.
PARVATI NAGAR, SLV TOWERS BELLARY,
NOW REP. BY BALAKRISHNA K. NAYAK
ASSISTANT MANAGER, ORIENTAL INSURANCE
COL. LTD., REGIONAL OFFICE, SUMANGALA
COMPLEX, OPP:HDMC, LAMINGTON ROAD,
HUBBALLI.
...APPELLANT
(BY SRI. RAJASHEKHAR S ARANI, ADVOCATE)
AND
1. SMT. SHANTAMMA W/O HANUMESH HARIWAN
AGE:29 YEARS, OCC:HOUSEHOLD WORK
& AGRICULTURE, R/O KALKERI, TQ:GANGAVATI,
DIST:KOPPAL.
2. KU. MALIK S/O HANUMESH HARIWAN
2
AGE:13 YEARS
3. KU. NAGARATNA D/O HANUMESH HARIWAN
AGE:11 YEARS
4. KU. LINGARAJ S/O HANUMESH HARIWAN
AGE:8 YEARS,
5. KU. GANESH S/O HANUMESH HARIWAN
AGE:6 YEARS,
RESPONDENTS 2 TO 5 ARE MINORS REP. BY THEIR
NATURAL GUARDIAN/MOTHER RESPONDENT NO.1
6. SMT. HANUMAMMA W/O NARASAPPA HARIWAN
AGE:52 YEARS, OCC:COOLIE & HOUSEHOLD WORK
R/O KALKERI, TQ:GANGAVATHI, DIST:KOPPAL.
7. A.S. SHIVAKUMAR S/O A. SOMASHEKHAR
AGE:25 YEARS, OCC:DRIVER, R/O H.NO.60,
PARVATI NAGAR, BELLARY, TQ & DIST:BELLARY.
8. Y. NAGARAJ S/O YALLA REDDY
AGE:47 YEARS, OCC:OWNER OF VEHICLE IN
QUESTION NO. 510, ESHARA TEMPLE STREET,
DODDASANDRA POST, SARJAPUR ROAD,
BANGALORE-562125.
...RESPONDENTS
(BY SRI. HARISH S MAIGUR, ADV. FOR R1 TO R6)
(SRI. K. RAGHAVENDRA ROAD, ADV. FOR R8)
(NOTICE TO R7 DISPENSED WITH)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF THE
MV ACT, PRAYING TO CALL FOR THE RECORDS, HEAR THE
PARTIES AND ALLOW THE APPEAL AS PRAYED FOR SETTING
ASIDE THE JUDGMENT AND AWARD PASSED BY THE
LEARNED PRESIDING OFFICER, FAST TRACK COURT-I AND
ADDL. MACT, GANGAVATHI IN MVC NO.281/2011 DATED
3
9.11.2012 WITH COSTS AND INTERESTS IN THE INTEREST
OF JUSTICE AND EQUITY.
IN MFA CROB NO.824/2013
BETWEEN:
1. SMT. SHANTAMMA W/O HANUMESH HARIWAN
AGE:29 YEARS, OCC:HOUSEHOLD WORK
& AGRICULTURE,
2. KU. MALIK S/O HANUMESH HARIWAN
AGE:13 YEARS, OCC:STUDENT,
3. KU. NAGARATNA D/O HANUMESH HARIWAN
AGE:11 YEARS, OCC:STUDENT,
4. KU. LINGARAJ S/O HANUMESH HARIWAN
AGE:8 YEARS, OCC:STUDENT,
5. KU. GANESH S/O HANUMESH HARIWAN
AGE:6 YEARS, OCC:STUDENT,
CROSS OBJECTORS 2 TO 5 ARE MINORS REP. BY
NATURAL GUARDIAN/MOTHER CROSS OBJECTOR NO.1
6. SMT. HANUMAMMA W/O NARASAPPA HARIWAN
AGE:52 YEARS, OCC:COOLIE & HOUSEHOLD WORK
ALL ARE R/O KALAKERI, TQ: GANGAVATHI,
DIST:KOPPAL.
.....CROSS OBJECTORS
(BY SRI. HARISH S MAIGUR, ADVOCATE)
AND:
1. A.S. SHIVAKUMAR S/O A. SOMASHEKHAR
AGE:25 YEARS, OCC:DRIVER OF TATA 207 VEHICLE
BEARING REG. NO.KA-51/9137, R/O H.NO.60,
PARVATI NAGAR, BELLARY,
4
TQ & DIST:BELLARY.
2. Y.NAGARAJ S/O YALLA REDDY
AGE:47 YEARS, OCC:OWNER OF TATA 207
BEARING REG. NO.KA-51/9137,
ESHWARA TEMPLE STREET,
DODDASANDRA POST,
SARJAPUR ROAD,
BANGALORE-562125.
3. THE DIVISIONAL MANAGER
THE ORIENTAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE, PARVATI NAGAR,
SLV TOWERS, BELLARY,
DIST:BELLARY.
....RESPONDENTS
(BY SRI. K. RAGHAVENDRA RAO, ADV. FOR R2)
(BY SRI. RAJASHEKHAR S ARANI, ADV. FOR R3)
(R1-NOTICE DISPENSED WITH)
THIS CROSS OBJECTION IS FLED UNDER ORDER XLI
RULE 22 OF CPC READ WITH SECTION 151 OF CPC PRAYING
TO MODIFY THE JUDGMENT AND AWARD PASSED IN MVC
NO.281/2011 ON THE FILE OF THE ADDL. MACT & FTC-I,
GANGAVATHI, DATED 9.11.2012 BY ALLOWING THE CROSS
OBJECTION WITH COSTS, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL AND CROSS OBJECTIONS COMING ON
FOR ADMISSION, THIS DAY, S.G. PANDIT J., DELIVERED
THE FOLLOWING:
5
JUDGEMENT
Though the appeal and cross objection are listed for
admission, they are taken up for final disposal, with the
consent of learned counsel for both the parties.
2. The insurer is in appeal in MFA No.20291/2013
questioning the liability on the ground that the driver of
the offending vehicle had no valid and effective driving
license as on the date of the accident. The claimants are
in cross-objection in MFA Crob No.824/2013 praying for
enhancement of compensation, not being satisfied with the
compensation awarded under judgment and award dated
09.11.2012 passed in MVC No.281/2011 on the file of the
learned Presiding Officer, FTC-I and Member, Addl. MACT,
Gangavathi (for short, 'Tribunal').
3. The claimants, who are the wife, children and
mother of the deceased Hanumesh Hariwan, filed a claim
petition under Section 166 of the Motor Vehicles Act, 1988
seeking compensation for the accidental death of
Hanumesh Hariwan that occurred on 06.06.2011 involving
Motor Cycle bearing registration No.KA-37/K-7961 and
Tata 207 vehicle bearing registration No.KA-51-9137. It is
stated that the deceased was aged 40 years as on the date
of the accident and he was doing agricultural work and
also working at Flour mill thereby earning Rs.15,000/- per
month.
4. On issuance of notice, the insurer appeared
and filed objections denying the claim petition averments
as well as contending that the driver of the offending
vehicle had no valid and effective driving license as on the
date of the accident.
5. 1st claimant being wife of the deceased
examined as PW1 apart from marking the documents as
Exs.P1 to P10. Respondent/Insurance Company marked
the documents as Exs.R1 to R3. The Tribunal on scrutiny
of the material on record awarded total compensation of
Rs.6,32,500/- with interest at 6% per annum on the
following heads:
Loss of Dependency Rs.6,07,500/-
Funeral and obsequies
Expenses Rs. 10,000/-
Transportation of dead body Rs. 5,000/-
Loss of consortium Rs. 5,000/-
Loss of love & affection Rs. 5,000/-
Total Rs.6,32,500/-
6. While awarding the above compensation, the
Tribunal assessed the notional income of the deceased at
Rs.4,500/- per month, deducted 1/4th towards personal
and living expenses of the deceased and applied multiplier
of 15. The claimants not being satisfied with the quantum
of compensation awarded by the Tribunal are before this
Court praying for enhancement of compensation and
insurer is in appeal questioning the liability on the ground
that the driver of the offending vehicle had no valid and
effective driving license as on the date of the accident.
7. Heard the learned counsel for the claimants as
well as learned counsel for the insurance company and
perused the appeal papers along with original records.
8. Sri. Harish S Maigur, learned counsel for the
claimants in support of his cross objection would contend
that the notional income of the deceased assessed by the
Tribunal at Rs.4,500/- per month is on the lower side and
it ought to have assessed the same at more than
Rs.4,500/- per month. It is submitted that the Tribunal
committed an error in not awarding compensation towards
future prospects, since the claimants would be entitled to
future prospects at 25% of the assessed income as held by
the Honb'ble Apex Court in the case of National
Insurance Company Limited Vs. Pranay Sethi and
Others, (2017)16 SCC 680. He further submits that
claimant No.1 being wife of the deceased would be entitled
to Rs.40,000/- towards spousal consortium, and claimants
2 to 5-children of the deceased would be entitled to
Rs.40,000/- each towards parental consortium and
claimant No.6-mother of the deceased would be entitled to
Rs.40,000/- towards filial consortium as held by the
Hon'ble Apex Court in the case of Magma General
Insurance Company Ltd., Vs. Nanu Ram and Others,
reported in 2018 ACJ 2782.
9. With regard to the contention of the insurer
that the driver of the offending vehicle had no valid and
effective driving license as on the date of the accident,
learned counsel for the claimants submits that the driver
had LMV license but there was no endorsement to drive
the transport vehicle. He submits that the said issue is
covered by the decision of the Hon'ble Apex Court in the
case of the Mukund Dewangan Vs. Oriental Insurance
Company Limited, AIR 2017 SC 3668. Thus, he prays
for dismissal of the appeal filed by the insurer by allowing
the cross objection filed by the claimants.
10. Per contra, Sri. Rajashekhar S Arani, learned
counsel appearing for the insurance company in support of
his appeal would contend that the driver of the offending
vehicle had no valid and effective driving license to drive
the transport vehicle, since he had license only to drive
LMV. Therefore, he submits that the Tribunal could not
have fastened the liability on the insurer, since there is
violation of terms and conditions. He further submits that
the notional income of the deceased assessed by the
Tribunal at Rs.4,500/- per month is proper and correct, as
there is no documentary evidence to establish the exact
income of the deceased. Thus, he prays for dismissal of
the cross objection filed by the claimants and reduce the
compensation by allowing the appeal filed by the insurance
company.
11. There is no dispute with regard to the accident
and accidental death of deceased Hanumesh Hariwan in
the appeal as well as cross objection. The issue with
regard to the contention of the insurance company that the
driver of the offending vehicle had no valid and effective
driving license as on the date of the accident would no
more available in the light of the decision of the Hon'ble
Apex Court in the case of Mukund Dewangan (supra).
Admittedly, Ex.R1-driving license discloses that the driver
of the offending vehicle had license to drive LMV, but he
had no endorsement to drive the transport vehicle. The
decision referred to above makes it clear that the driver
who possesses DL to drive LMV can also drive the
transport vehicle. Hence, the contention of the insurance
company that the driver of the offending vehicle had no
license to drive the transport vehicle is liable to be
rejected, accordingly, rejected.
12. It is the contention of the claimants that the
notional income of the deceased assessed by the Tribunal
at Rs.4,500/- per month is on the lower side and it ought
to have assessed the same more than Rs.4,500/- per
month, since the deceased was doing agricultural work and
also working at Flour Mill, thereby earning Rs.15,000/- per
month. But there is no documentary evidence to establish
the exact income of the deceased. However, in the
absence of any documents to establish the income of the
deceased, this Court and Lok Adalath, while settling the
accidental claims of the year 2011 would assess the
notional income of the deceased at Rs.6,000/- per month,
taking note of the chart prepared by KSLSA based on
various factors including the minimum wage fixed. In the
instant case also, taking note of the same, we deem it
appropriate to assess the notional income of the deceased
at Rs.6,000/- p.m.
13. Further, the Tribunal failed to award any
compensation towards future prospects. In the case of
Pranay Sethi (supra), the Hon'ble Supreme Court has
held that wherever the deceased was aged between 40 to
50 years, the claimants would be entitled for addition of
25% of the assessed income towards future prospects.
Therefore, in the instant case, the claimants would be
entitled for addition of 25% of the assessed income
towards future prospects. Deduction of 1/4th towards
personal expenses and multiplier of 15 adopted by the
Tribunal is just and proper which needs no interference.
Thus, the claimants would be entitled to compensation on
the head of loss of dependency at Rs.10,12,500/-
(Rs.6,000 (income per month) + Rs.1,500 (25% towards
future prospects) = Rs.7,500 - 1/4 (Rs.1,875) x 12
(months) x 15 (multiplier).
14. It is well settled law that the 1st claimant being
wife of the deceased would be entitled to Rs.40,000/-
towards spousal consortium, claimants 2 to 5-children of
the deceased would be entitled to Rs.40,000/- each
towards parental consortium and claimant No.6-mother of
the deceased would be entitled to Rs.40,000/- towards
filial consortium as held by the Hon'ble Apex Court in the
case of Magma General Insurance Co. Ltd. (supra).
Further, no compensation has been awarded on the head
of loss of estate. As held by the Hon'ble Apex Court in the
case of Pranay Sethi (supra), the claimants would be
entitled to Rs.15,000/- towards loss of estate, besides
Rs.15,000/- towards transportation of dead body and
funeral expenses. Thus, the claimants would be entitled
for modified compensation on the following heads:
Sl.No. Particulars Amount
1. Loss of dependency Rs.10,12,500/-
(Rs.6,000 (income per month) +
Rs.1,500 (25% towards future
prospects) = Rs.7,500 - 1/4
(Rs.1,875) x 12 (months) x 15
(multiplier)
2. Loss of estate Rs. 15,000/-
3. Spousal consortium Rs. 40,000/-
4. Parental consortium Rs. 1,60,000/-
5. Filial consortium Rs. 40,000-
6. Transportation of dead body Rs. 15,000/-
and funeral expenses
Total Rs.12,82,500/-
15. Thus, the claimants would be entitled to total
compensation of Rs.12,82,500/- as against
Rs.6,32,500/-awarded by the Tribunal.
16. Hence, we pass the following:
ORDER
a) Appeal filed by the insurance
company is dismissed.
b) Cross objection filed by the claimants
is allowed in part.
c) The impugned judgment and award of
the Tribunal is modified to the extent
that the claimants are entitled to total
compensation of Rs.12,82,500/- as
against Rs.6,32,500/-awarded by the
Tribunal.
d) The enhanced compensation amount
will bear interest at the rate of 6% per
annum from the date of claim petition
till date of realization.
e) The insurance company shall deposit
the enhanced compensation amount
before the Tribunal within a period of
six weeks from the date of receipt of
certified copy of this judgment.
f) On such deposit, Rs.1 lakh each shall
be kept in fixed deposit in the name
of claimants 4 and 5-minor children of
the deceased until they attain the age
of majority. Rs.1 lakh each shall be
kept in fixed deposit in the name of
claimants 2 and 3-major children of
the deceased for a period of five years
with liberty to withdraw the accrued
interest thereon periodically.
g) Rs.1,50,000/- shall be released in
favour of the 1st claimant-wife of the
deceased and remaining amount shall
be released in favour of the claimant
No.6-mother of the deceased on
proper identification.
h) Draw modified award accordingly.
i) Amount in deposit, if any, before this
Court be transmitted to the Tribunal
along with original records.
j) No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
JTR
