Karnataka High Court

National Insurance Co.Ltd vs Mrs. Nelly D'Souza on 9 February, 2022

Bench: P.Krishna Bhat

                          1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 23RD DAY OF FEBRUARY, 2015
                       BEFORE

              THE HON'BLE MR. JUSTICE
               A.V.CHANDRASHEKARA

                M.F.A.NO.8728/2010 (MV)
                         c/w
                M.F.A.NO.7937/2010(MV)

 IN M.F.A.NO.8728/2010 (MV)

 BETWEEN:

 NATIONAL INSURANCE CO.LTD
 BRANCH JODUMARGA-574 219

 THROUGH ITS REGIONAL OFFICE
 NO.144, SUBHARAM COMPLEX,
 M.G.ROAD, BANGALORE-560001
 REP BY ITS ADMINISTRATIVE OFFICER
 SMT.D.KARTHIKA
                                          ... APPELLANT

 (By Sri: B C SEETHARAMA RAO, ADV.)


 AND:

 1.     MRS NELLY D SOUZA
        AGED ABOUT 42 YEARS,
        W/O LATE DAVID D SOUZA
                           2


     R/A NIRKARA HOUSE,
     VOGGA POST, BANTWAL TLUK

2.   KUM BABY DINY
     AGED ABOUT 18 YEARS,
     D/O LATE DAVID D SOUZA

3.   KUM BABY DAFENY D SOUZA
     AGED ABOUT 13 YEARS,
     W/O LATE DAVID D SOUZA
     SINCE MINOR REP BY HER MOTHER &
     NATURAL GUARDIAN MRS NELLY D SOUZA

4.   MRS MONTHI PINTO
     AGED ABOUT 69 YEARS,
     W/O LATE JOKIM D SOUZA
     R/A KARIANGANA HOUSE,
     AMTOOR VILLAGE, BANTWAL TALUK

5.   MRS S K ABOOBAKAR
     MAJOR,
     S/O FAKEERABBA
     R/O SALETHOOR HOUSE,
     KARIGANA HOUSE,
     AMTOOR VILLAGE, BANTWAL TALUK
     (OWNER OF AUTORICKSHAW NO.KA 19/A-671)
                              ... RESPONDENTS

(By Sri: P P HEGDE, ADV. FOR R1-4
R5 SERVED)

    MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED: 23.6.2010 PASSED IN
MVC NO.1413/2000 ON THE FILE OF MACT-VI & II
ADDITIONAL SENIOR CIVIL JUDGE, MANGALORE,
                         3


DAKSHINA KANNADA, AWARDING A COMPENSATION
OF RS.3,98,200/- WITH INTEREST @ 6% P.A. FROM THE
DATE OF PETITION TILL REALISATION.



IN M.F.A.NO.7937/2010 (MV)

BETWEEN:

1.   MRS NELLY D SOUZA
     AGED 42 YEARS
     W/O LATE DAVID D SOUZA
     R/AT NIRKARA HOUSE,
     VOGGA POST, BANTWAL TALUK

2.   BABY DAINY
     AGED 17 YEARS

3.   BABY DAFNY D SOUZA
     AGED 13 YEARS

     NOS 2 AND 3 MINOR CHILDREN
     OF APPELLANT NO. 1
     MRS NELLY D SOUZA,
     AND THEY ARE REP BY
     MOTHER NEXT FRIEND AND
     NATURAL GUARDIAN MRS NELLY D SOUZA,
     W/O LATE DAVID D SOUZA,
     R/AT NIRKARA HOUSE,
     VOGGA POST,BANTWAL TALUK

4.   MRS.MONTHI PINTO
     AGED 69 YEARS
     W/O LATE JOKIM D'SOUGZ,
                           4


      RESIDING AT KARINGANA HOUSE,
      AMTOOR VILLAGE, BANTWAL TALUK.

                                      ... APPELLANTS

(By Sri: P P HEGDE)


AND

1.MR S K ABOOBAKAR
S/O FAKEERABBA
R/AT SALETHUR HOUSE,
KARINGANA,
AMTOOR VILLAGE,
BANTWAL TALUK

2.NATIONAL INSURANCE CO. LTD.,
2ND FLOOR, GANESH BUILDING
B.C. ROAD, P.O.,
JODUMARGA.

... RESPONDENT(S)

(By Sri./Smt : R1-S K ABOOBAKAR SD)

    MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:23.6.2010 PASSED IN
MVC NO.1413/2000 ON THE FILE OF MACT-VI & II
ADDITIONAL SENIOR CIVIL JUDGE, MANGALORE,
DAKSHINA KANNADA,        PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
                                  5


     THESE APPEALS COMING ON FOR HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

The main appeal, M.F.A.8728/10 has been filed by the

insurer on the ground that no liability should have been fastened

on it to initially indemnify the claimants and later on to recover

the same from the owner of the offending vehicle. The further

grievance of the insurer is that the offending vehicle did not have

fitness certificate as on the date of the accident and therefore, the

insurer should not have been asked to indemnify the claimants.

2. The connected appeal, M.F.A.7937/10 is filed by the

claimants on the ground that compensation awarded is grossly

inadequate in the light of death of the lone earning male member

of the family. It is their further grievance that the amount awarded

under conventional heads like loss of love and affection, loss of

consortium, loss to estate and funeral expenses is also grossly

inadequate.

3. The facts leading to the filing of the claim petition before

the MACT, Mangalore, are as follows:

a) One person by name David D'souza, husband of 1st

claimant-Nelly, father of claimants 2 and 3 and son of 4th

claimant-Monthi Pinto died in a road accident that occurred on

27.1.2000 at 7.00 p.m. near a place called Mithabail of Mooda

village, Bantwal Taluk. He had opened the door of his car after

purchasing vegetables from a nearby shop. At that time, an auto

bearing registration no.KA-19-A-671 being driven in a rash and

negligent manner, dashed against him and caused grievous

injuries, as a result of which he died in Fr. Mullers' Hospital,

Kankanady, Mangalore, on 18.2.2000.

b) A claim petition was filed by his wife, children and

mother before the MACT, claiming compensation of

Rs.15,00,000/-. The 1st respondent also contested the said

petition on various grounds and the insurer-2nd respondent also

contested the claim petition. Claimants have been called upon to

prove the manner in which the accident took place and the cause

for the death and loss of future dependency.

c) Ultimately the petition has been allowed granting

Rs.3,98,200/- as compensation, making it clear that the owner and

insurer should jointly and severally pay the compensation amount.

The 2nd respondent-insurer has been directed to indemnify the

claimants and later on recover the same from the 1st respondent-

owner of the vehicle in question.

d) It is this judgment and award which is called in question

by the insurer on the ground of violation of policy conditions and

by the claimants on the ground of inadequacy of compensation.

4. First this court would like to consider inadequacy of

compensation. Admittedly the deceased was the lone earning

member in his family. He is survived by his wife, two minor

children and aged mother. His monthly income is assessed by the

Tribunal at Rs.3,000/-. Admittedly he ad an Ambassador car of his

own and was earning income by plying it as a taxi. This speaks of

his financial capacity. In the absence of exact income, the same

will have to be assessed on the broad preponderance of

probabilities, as per the decision in the case of

CHATURBHUJA PANDE .v. DISTRICT COLLECTOR,

RAIGAD (AIR 1969 SC 255). In the absence of concrete

materials, the judge is expected to chew his personal experience

into the facts of the case and assess compensation.

5. When four persons were depending on him, he could not

have certainly provided at least two square meals a day without

earning at least Rs.4,000/- to Rs.5,000/- per month. Therefore

assessing is income at Rs.4,500/- p.m. would not be excessive or

exorbitant. Thus annual income would be Rs.54,000/-.

6. Since four persons were depending on his income, 1/4th

will have to be deducted towards personal expenses as per the

principles enunciated in the case of SARLA VERMA .v.

DELHI TRANSPORT CORPORATION AND OTHERS

([2009] 6 SCC 121). Therefore Rs.13,500/- will have to be

deducted from the annual loss of dependency which would be

Rs.40,500/-. The deceased was aged 38 years as on the date of

the accident and the proper multiplier would be 15. Thus the net

loss of dependency would be Rs.6,07,500/- (Rs.40,500/- x 15).

7. Taking into consideration the fact that he has left behind

his mother, two minor children and aged mother, Rs.30,000/-

will have to be awarded towards loss of love and affection,

Rs.30,000/- towards loss of consortium, Rs.30,000/- towards

loss to estate and Rs.25,000/- towards transportation of dead

body and funeral expenses. Thus a sum of Rs.1,15,000/- will

have to be awarded under conventional heads apart from

Rs.6,07,500/- towards loss of dependency. It comes to

Rs.7,22,500/- instead of Rs.3,98,200/- as determined by the

Tribunal. This would be the just and reasonable compensation

within the purview of Sections 166 and 168 of the Motor Vehicles

Act.

8. The insurer is before this court on the ground that the

driver of the offending vehicle did not possess a valid driving

licence as on the date of the accident and therefore insurer is not

liable to indemnify the claimants. It is not the case of the insurer

that the driver did not possess any driving licence at all, but that

the D.L. had expired as on the date of the accident. Almost one

year and 5 months had elapsed from the date of expiry of D.L. A

distinction has to be drawn between a person who does not

possess a driving licence at all and a person who has driving

licence but has expired.

9. A co-ordinate Bench of this court has considered this

aspect in M.FA.2596/07. The said appeal filed by the insurance

company has been allowed by order dated 27.12.2012 stating that

there cannot be any order against the insurance company to

satisfy the award by indemnifying the claimants and thereafter to

recover compensation by it from the owner. Of course the

claimants have filed appeal against the judgment of this court in

M.F.A.2596/07 by way of SLP.(CC) 1968/13 and the said petition

is said to be pending. Considering the same, another Division

Bench in M.F.A.2595/07 c/w M.F.A.2593/07 has held that the

insurer will have to initially indemnify the claimants and later on

recover the same from the owner and the said order would be

subject to the final outcome of SLP.1968/13.

10. The Division Bench of this court in M.F.A.2595/07 has

held as follows in paragraph 7 of the judgment which is relevant:

'In view of the submission made by the learned counsel appearing for the parties, these appeals are allowed, the liability saddled on the appellant-

insurance company is set aside subject to the outcome of the judgment to be rendered by the Hon'ble Supreme Court in SLP(CC) No.1968/13 holding that both the parties are bound by the judgment of the Hon'ble Supreme Court. The amount if any in deposit in these appeals are ordered to be refunded to the appellant-insurance company.'

Insofar as the claimants' appeal is concerned, compensation is

enhanced from Rs.3,98,200/- to Rs.7,22,500/- .

11. In the result, I pass the following order:

ORDER

I) The appeal filed by the insurer, M.F.A.8728/10 is

allowed, making it clear that the decision in the present case is

subject to the outcome of the decision that would be rendered by

the Hon'ble apex court in SLP.1968/13.

II) The appeal filed by the claimants, M.F.A.7937/10 is

allowed in part, enhancing compensation from Rs.3,98,200/- to

Rs.7,22,500/- awarding interest at the rate of 6% p.a. on the

enhanced amount of Rs.3,24,300/- (three lakhs twenty four