Karnataka High Court
M/S The Oriental Insurance ... vs Rangegowda S/O Boregowda on 10 February, 2022
Bench: P.Krishna Bhat
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE P. KRISHNA BHAT
MISCELLANEOUS FIRST APPEAL NO.6318 OF 2011 (MV)
CONNECTED WITH
MISCELLANEOUS FIRST APPEAL NO.5144 OF 2011 (MV)
MISCELLANEOUS FIRST APPEAL NO.5145 OF 2011 (MV)
MISCELLANEOUS FIRST APPEAL NO.6317 OF 2011 (MV)
MISCELLANEOUS FIRST APPEAL NO.10663 OF 2011 (MV)
IN MFA NO.6318/2011:
BETWEEN:
M/S. THE ORIENTAL INSURANCE COMPANY LIMITED
B.H. ROAD, TIPTUR TOWN,
TUMKUR DISTRICT,
THROUGH ITS REGIONAL OFFICE,
LEO SHOPPING COMPLEX,
NO.37/45, RESIDENCY ROAD,
BENGALURU-25,
REPRESENTED BY ITS REGIONAL MANAGER.
... APPELLANT
(BY SRI B. S. UMESH, ADV.)
AND:
1. RANGEGOWDA
S/O. BOREGOWDA,
AGED ABOUT 64 YEARS,
RESIDENT OF MARUVANAHALLI VILLAGE,
BAGURU HOBLI, CHENNARAYAPATNA TALUK,
HASSAN DISTRICT-562 137.
2. NANJUNDEGOWDA
S/O. SHIVANANAGEGOWDA,
SINCE DEAD, BY HIS LEGAL REPRESENTATIVES:
2
a) NANJEGOWDA
S/O. LATE NANJUNDEGOWDA,
AGED 49 YEARS.
b) KALEGOWDA
S/O. LATE NANJUNDEGOWDA,
AGED 47 YEARS.
c) SHIVANNA
S/O. LATE NANJUNDEGOWDA,
AGED 45 YEARS.
d) K.N. DEVARAJ
S/O. LATE NANJUNDEGOWDA
AGED 43 YEARS.
e) NAGEGOWDA
S/O. LATE NANJUNDEGOWDA
AGED 41 YEARS.
RESPONDENTS 2(a) TO 2(e)
ARE RESIDING AT KERECHIKKENAHALLI VILLAGE,
KASABA HOBLI, CHANNARAYAPATNA TALUK,
HASSAN DISTRICT-562 137.
3. SURESH
S/O. S. V. KARIGOWDA,
MAJOR,
RESIDING AT LEFT SIDE OF ANJANEYA TEMPLE,
GANDASI GRAMA,
ARASIKERE TALUK-582 135.
... RESPONDENTS
(BY: R-1, 2(a) to (e) and 3 ARE SERVED)
***
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE
JUDGMENT AND AWARD DATED 10-11-2010 PASSED IN M.V.C.
NO.255 OF 2007 ON THE FILE OF PRESIDING OFFICER, FAST
TRACK COURT, AND MACT, CHANNARAYAPATNA, AWARDING A
COMPENSATION OF RS.23,000/- WITH INTEREST AT 6% PER
ANNUM FROM THE DATE OF PETITION TILL THE DATE OF
DEPOSIT.
3
IN MFA NO.5144/2011:
BETWEEN:
M/S. THE ORIENTAL INSURANCE COMPANY LIMITED
B.H. ROAD, TIPTUR TOWN,
TUMKUR DISTRICT,
THROUGH ITS REGIONAL OFFICE,
LEO SHOPPING COMPLEX,
NO.37/45, RESIDENCY ROAD,
BENGALURU-25,
REPRESENTED BY ITS REGIONAL MANAGER.
... APPELLANT
(BY SRI B. S. UMESH, ADV.)
AND:
1. ANNAIAH
S/O. LAKKEGOWDA,
AGED ABOUT 41 YEARS,
RESIDENT OF LAGGALAHALLY VILLAGE,
HALLIMYSORE HOBLY, HOLENARSIPURA TALUK,
HASSAN DISTRICT.
2. NANJUNDEGOWDA
SINCE DEAD, BY HIS LEGAL REPRESENTATIVES:
a) KALEGOWDA
S/O. LATE NANJUNDEGOWDA,
AGED 48 YEARS.
b) NANJEGOWDA
S/O. LATE NANJUNDEGOWDA,
AGED 46 YEARS.
c) RAMAKRISHNA
S/O. LATE NANJUNDEGOWDA,
AGED 37 YEARS.
d) SHIVANNA
S/O. LATE NANJUNDEGOWDA,
AGED 42 YEARS.
e) NAGEGOWDA
S/O. LATE NANJUNDEGOWDA,
AGED 40 YEARS.
4
f) DEVARAJEGOWDA
S/O. LATE NANJUNDEGOWDA,
AGED 38 YEARS.
RESPONDENT NOS.2(a) to (f) ARE RESIDING AT
KERECHIKKENAHALLI VILLAGE,
KASABA HOBLI, CHANNARAYAPATNA TALUK,
HASSAN DISTRICT-562 137.
... RESPONDENTS
(BY SRI B.B. GIRISH KUMAR, ADV., FOR R-1,
R-2(a) TO (f) AND R-3 ARE SERVED)
***
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE
JUDGMENT AND AWARD DATED 27-5-2010 PASSED IN M.V.C.
NO.210 OF 2007 ON THE FILE OF THE FAST TRACK AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, HOLENARASIPURA, AWARDING A
COMPENSATION OF RS.10,000/- WITH INTEREST AT 8% PER
ANNUM FROM THE DATE OF PETITION TILL THE DATE OF
DEPOSIT.
IN MFA NO.5145/2011:
BETWEEN:
M/S. THE ORIENTAL INSURANCE COMPANY LIMITED
B.H. ROAD, TIPTUR TOWN,
TUMKUR DISTRICT,
THROUGH ITS REGIONAL OFFICE,
LEO SHOPPING COMPLEX,
NO.37/45, RESIDENCY ROAD,
BENGALURU-25,
REPRESENTED BY ITS REGIONAL MANAGER.
... APPELLANT
(BY SRI B. S. UMESH, ADV.)
5
AND:
1. SRI NANJUNDAPPA
S/O. JAVAREGOWDA,
AGED ABOUT 59 YEARS,
RESIDENT OF LAGGALAHALLY VILLAGE,
HALLIMYSORE HOBLY,
HOLENARSIPURA TALUK,
HASSAN DISTRICT.
2. NANJUNDEGOWDA
SINCE DEAD, BY HIS LEGAL REPRESENTATIVES:
a) KALEGOWDA
S/O. LATE NANJUNDEGOWDA,
AGED ABOUT 48 YEARS.
b) NANJEGOWDA
S/O. LATE NANJUNDEGOWDA,
AGED ABOUT 46 YEARS.
c) RAMAKRISHNA
S/O. LATE NANJUNDEGOWDA,
AGED ABOUT 37 YEARS.
d) SHIVANNA
S/O. LATE NANJUNDEGOWDA,
AGED ABOUT 42 YEARS.
e) NAGEGOWDA
S/O. LATE NANJUNDEGOWDA,
AGED ABOUT 40 YEARS.
f) DEVARAJEGOWDA
S/O. LATE NANJUNDEGOWDA,
AGED ABOUT 38 YEARS.
RESPONDENTS 2(a) TO 2(f)
ARE RESIDENT OF KERECHIKKENAHALLI VILLAGE,
KASABA HOBLI, CHANNARAYAPATNA TALUK,
HASSAN DISTRICT.
... RESPONDENTS
(BY SRI B.B. GIRISH KUMAR, ADV., FOR R-1,
R-2(a) TO (f) AND R-3 ARE SERVED)
6
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE
JUDGMENT AND AWARD DATED 27-5-2010 PASSED IN M.V.C.
NO.211 OF 2007 ON THE FILE OF THE COURT OF THE FAST
TRACK AND MACT, HOLENARASIPURA, AWARDING A
COMPENSATION OF RS.15,000/- WITH INTEREST AT 8% PER
ANNUM FROM THE DATE OF PETITION TILL THE DATE OF THE
DEPOSIT.
IN MFA NO.6317/2011:
BETWEEN:
M/S. THE ORIENTAL INSURANCE COMPANY LIMITED
B.H. ROAD, TIPTUR TOWN,
TUMKUR DISTRICT,
THROUGH ITS REGIONAL OFFICE,
LEO SHOPPING COMPLEX,
NO.37/45, RESIDENCY ROAD,
BENGALURU-25,
REPRESENTED BY ITS REGIONAL MANAGER.
... APPELLANT
(BY SRI B. S. UMESH, ADV.)
AND:
1. SMT. BHAGYA @ BHAGYAMMA
W/O. LATE R.S. RAJEGOWDA,
AGED ABOUT 36 YEARS.
2. KUM. REETHA
D/O. LATE R.S. RAJEGOWDA,
AGED ABOUT 20 YEARS.
3. KUM. VANITHA
D/O. LATE R.S. RAJEGOWDA,
AGED ABOUT 18 YEARS.
4. KUM. VIDYASHREE
D/O. LATE R.S.RAJEGOWDA,
AGED ABOUT 14 YEARS,
SINCE MINOR, REPRESENTED BY HER MOTHER
AND NATURAL GUARDIAN, RESPONDENT NO.1.
7
5. SMT. LAKSHMAMMA
W/O. LATE SANNEGOWDA,
AGED ABOUT 69 YEARS.
SINCE DEAD, RESPONDENT NOS.1 TO 4 ARE
LEGAL REPRESENTATIVES AND THEY ARE
ALREADY ON RECORD.
RESPONDENT NOS.1 TO 5 ARE RESIDING AT
RAJAPURA VILLAGE, S. BELAGOLA HOBLI,
C.R. PATNA TALUK,
HASSAN DISTRICT.
6. NANJUNDEGOWDA
S/O. SHIVANANJEGOWDA,
SINCE DEAD, BY HIS LEGAL REPRESENTATIVES:
a) NANJEGOWDA
S/O. LATE NANJUNDEGOWDA,
AGED 49 YEARS.
b) KALEGOWDA
S/O. LATE NANJUNDEGOWDA,
AGED 47 YEARS.
c) SHIVANNA
S/O. LATE NANJUNDEGOWDA,
AGED 45 YEARS.
d) K.N. DEVARAJ
S/O. LATE NANJUNDEGOWDA,
AGED 43 YEARS.
e) NAGEGOWDA
S/O. LATE NANJUNDEGOWDA,
AGED 41 YEARS.
RESPONDENT NOS.6(a) TO 6(e) ARE
RESIDING AT KERECHIKKENAHALLI VILLAGE,
KASABA HOBLI, CHANNARAYAPATNA TALUK,
HASSAN DISTRICT.
8
7. SURESH
S/O. S. V. KARIGOWDA,
MAJOR,
RESIDING AT LEFT SIDE OF ANJANEYA TEMPLE,
GANDASI GRAMA,
ARASIKERE TALUK-582 135.
... RESPONDENTS
(BY SRI HALESHA R.G., ADV., FOR R-1 TO 5;
R-6(a) TO (e) AND R-7 ARE SERVED)
***
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE
JUDGMENT AND AWARD DATED 10-11-2010 PASSED IN M.V.C.
NO.244 OF 2007 ON THE FILE OF PRESIDING OFFICER, FAST
TRACK COURT AND MACT, CHANNARAYAPATNA, AWARDING A
COMPENSATION OF RS.4,55,000/- WITH INTEREST @ 6% PER
ANNUM FROM THE DATE OF PETITION TILL DEPOSIT.
IN MFA NO.10663/2011:
BETWEEN:
1. SMT. BHAGYA @ BHAGYAMMA
W/O. LATE R. S. RAJEGOWDA @ RAJANNA,
AGED 36 YEARS.
2. REETHA
D/O. LATE R. S. RAJEGOWDA @ RAJANNA,
AGED 20 YEARS.
3. VANITHA
D/O. LATE R. S. RAJEGOWDA @ RAJANNA,
AGED 18 YEARS.
4. KUM. VIDYASHREE
D/O. LATE R. S. RAJEGOWDA @ RAJANNA,
AGED 14 YEARS,
SINCE MINOR, REPRESENTED BY HER
MOTHER AND NATURAL GUARDIAN,
RESPONDENT NO.1.
9
5. SMT. LAKSHMAMMA
W/O. LATE SANNEGOWDA,
AGED ABOUT 69 YEARS.
ALL ARE RESIDENT OF RAJAPURA VILLAGE,
S. BELAGOLA HOBLI,
C. R. PATNA TALUK.
... APPELLANTS
(BY SRI HALESHA R.G., ADV.)
AND:
1. NANJUNDEGOWDA
S/O. SHIVANANJEGOWDA,
SINCE DEAD, BY HIS LEGAL REPRESENTATIVES:
a) NANJEGOWDA
S/O. LATE NANJUNDEGOWDA,
AGED 49 YEARS.
b) KALEGOWDA
S/O. LATE NANJUNDEGOWDA,
AGED 47 YEARS.
c) SHIVANNA
S/O. LATE NANJUNDEGOWDA,
AGED 45 YEARS.
d) K.N. DEVARAJ
S/O. LATE NANJUNDEGOWDA
AGED 43 YEARS.
e) NAGEGOWDA
S/O. LATE NANJUNDEGOWDA
AGED 41 YEARS.
ALL ARE RESIDING AT
KERECHIKKENAHALLI VILLAGE,
KASABA HOBLI,
CHANNARAYAPATNA TALUK.
10
2. THE DIVISIONAL MANAGER
THE ORIENTAL INSURANCE COMPANY LTD.,
JAYADEVA HOSTEL BUILDING,
B.H. ROAD, TIPTUR TOWN,
TUMKUR DISTRICT.
3. THE DIVSIONAL MANAGER
THE ORIENTALL INSURANCE COMPANY LTD.
I FLOOR, S.S. COMPLEX, SUBASH SQUARE,
HASSAN CITY.
... RESPONDENTS
(BY SRI B.S. UMESH, ADV., FOR R-2 AND 3,
NOTICE TO R-1 (a-e) IS DISPENSED WITH VIDE
ORDER DATED 28-8-2012)
***
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE
JUDGMENT AND AWARD DATED 10-11-2010 PASSED IN M.V.C.
NO.244 OF 2007 ON THE FILE OF PRESIDING OFFICER, FAST
TRACK COURT, AND MACT, CHANNARAYAPATNA, AWARDING A
COMPENSATION OF RS.4,55,000/- WITH INTEREST @ 6% PER
ANNUM FROM THE DATE OF PETITION TILL DEPOSIT.
THESE MISCELLANEOUS FIRST APPEALS ARE COMING ON
FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
11
JUDGMENT
M.F.A. Nos.6318 of 2011 and 6317 of 2011 are filed
at the instance of the Insurance Company and M.F.A.
No.10663 of 2011 is filed at the instance of the claimants
calling in question the correctness and legality of the
judgment and award dated 10-11-2010 in M.V.C. Nos.244
of 2007 and 255 of 2007 passed by the Fast Track Court
and Motor Accident Claims Tribunal, Channarayapatna.
2. M.F.A. Nos.5144 of 2011 and 5145 of 2011 are
filed at the instance of the Insurance Company against the
judgment and award dated 27-5-2010 in M.V.C. Nos.210
of 2007 and 211 of 2007 passed by the Fast Track Court
and Motor Accident Claims Tribunal, Holenarasipura.
3. Claim petitions have been filed on the allegation
that on 13-3-2007 in the afternoon while Rajegowda @
Rajanna (hereinafter referred to as 'deceased') and other
claimants were traveling in an auto-rickshaw bearing
Registration No.KA-13 7394 near SBG Petrol Bunk on
B.M. Road, at that time, a tractor-trailer bearing
Registration No.KA-13 T-4648-4949 came in a rash and
negligent manner with high speed and dashed against the
auto-rickshaw resulting in injuries to the claimants and
death of Rajegowda @ Rajanna.
4. Both the owner and the Insurance Company
contested the proceedings by filing written statements.
5. During trial, witnesses were examined and
Exs.P.1 to P.40 were marked for the claimants.
Respondents examined an official of the Insurance
Company and Exs.R.1 and R.2 were marked.
6. After hearing the learned counsel on both sides
and perusing the records, the Tribunal allowed the claim
petitions in part by awarding compensation of
Rs.4,55,000/- and Rs.23,000/- in M.V.C. No.244 of 2007
and M.V.C. No.255 of 2007 respectively with interest
thereon at 6% per annum from the date of petitions till its
realisation and Rs.10,000/- and Rs.15,000/- in M.V.C.
Nos.210 of 2007 and 211 of 2007 respectively with
interest thereon at 8% per annum from the date of
petitions till the date of deposit.
7. Learned counsel for the appellant-Insurance
Company in support of his appeals submitted that the
Driver of the tractor-trailer insured with the appellant was
not possessing a valid and effective Driving License and he
was having a Driving License to drive LMV (non-transport
vehicle). He, therefore, submitted that there is violation
of policy conditions and therefore, Insurance Company is
not liable to pay the compensation and accordingly, award
to certain extent is liable to be set aside and the appeals
stand to be allowed.
8. Learned counsel for the claimants in M.F.A.
No.10663 of 2011, per contra, submitted that in view of
the decision of the Hon'ble Supreme Court in MUKUND
DEWANGAN v. ORIENTAL INSURANCE COMPANY
LIMITED reported in (2017) 14 SCC 663, the Driving
License which the Driver of the offending vehicle
possessed has to be construed as a valid and effective and
therefore, there is no merit in the appeals of the Insurance
Company and therefore, liable to be dismissed. He further
submitted that compensation awarded by the Tribunal is
on the lower side and the same is liable to be enhanced by
allowing the appeal.
9. I have given my anxious consideration to the
submissions made by the learned counsel on both sides
and perused the records.
10. The only contention urged by the learned
counsel for the appellant-Insurance Company is that the
Driver of the offending vehicle, which was insured with the
appellant-Insurance Company, was possessing LMV (non-
transport vehicle) Driving License and therefore, he was
not having any valid and effective Driving License to drive
the tractor-trailer. However, the said contention is no
longer valid in view of the decision of the Hon'ble Supreme
Court in Mukund Dewangan stated supra.
11. Learned counsel for the Insurance Company
submits that the gross weight of the tractor-trailer was
17,450 kgs as per the evidence let-in by it. However, no
substantive evidence has been produced with regard to
unladen weight of the tractor-trailer by producing
registration certificate or examining any official of the
Motor Transport Department. The only evidence let-in by
the Insurance Company is R.W.1, who is stated to be an
Investigator and not an expert in the matter. Accordingly,
submission of the learned counsel is not acceptable in
view of Section 2(21) of the Motor Vehicles Act, 1988. In
that view of the matter, it has to be construed as valid and
effective Driving License. Therefore, the Insurance
Company cannot disclaim the liability to pay the
compensation. Under such circumstances, there is no
merit in the contention advanced by the learned counsel
for the Insurance Company and the appeals are liable to
be dismissed.
12. The claimants in M.F.A. No.10663 of 2011 are
seeking enhancement of the compensation awarded,
namely Rs.4,55,000/- for the death of Rajegowda @
Rajanna.
13. In view of the decision of the Hon'ble Supreme
Court in ERUDHAYA PRIYA v. STATE EXPRESS
TRANSPORT CORPORATION LIMITED reported in
2020 SCC ONLINE SC 601, SANDEEP KHANUJA v.
ATUL DANDE AND ANOTHER reported in (2017) 3 SCC
351 and JAGADISH v. MOHAN AND OTHERS reported in
(2018) 4 SCC 571, loss of future prospects will have to be
added to the established income. Since the claimant was
aged thirty-seven years at the time of accident, as per the
law laid down by the Constitution Bench of the Hon'ble
Supreme Court in NATIONAL INSURANCE COMPANY
LIMITED v. PRANAY SETHI AND OTHERS reported in
(2017) 16 SCC 680, future prospects to be taken is at
40% of the established income and appropriate multiplier
applicable is '15'.
14. There is no clear evidence in the case with
regard to actual income earned by the deceased.
However, Exs.P.7 to P.10 are ROR extracts adduced to
show that he was owning 1 and ¼ acre of agricultural
land. He was a milk vendor and has produced milk dairy
passbook. As per the chart prepared by the Karnataka
Legal Services Authority, for the year 2008, the notional
income fixed for able bodied person is Rs.4,500/- per
month. In this case, accident has taken place on
13-3-2007. Since the deceased was aged thirty-seven
years at the time of accident, also owning agricultural land
and was vending milk, his income has to be fixed at
Rs.4,500/- per month. He has left behind his wife and
three daughters. Therefore, 1/4th of his income is
required to be enhanced towards his personal expenses.
Accordingly, loss of dependency is recomputed to
Rs.8,50,500/- (4,500 + 40% -1/4 x 12 x 15). Since he
has left behind wife and three children, towards loss of
consortium a sum of Rs.1,90,000/- is awarded.
Therefore, total compensation comes to Rs.10,40,500/-.
The Tribunal has already awarded Rs.4,55,000/-.
Therefore, the enhanced compensation comes to
Rs.5,85,500/- and it shall carry interest at the rate of 6%
per annum from the date of petition till the date of
payment. Accordingly, I pass the following
ORDER
i. M.F.A. Nos.6318 of 2011, 6317 of 2011, 5144 of
2011 and 5145 of 2011 filed by the Insurance
Company are dismissed;
ii. M.F.A. No.10663 of 2011 filed by the claimants is
partly-allowed;
iii. The claimants in M.F.A. No.10663 of 2011 are
entitled to enhanced compensation of
Rs.5,85,500/- (Rupees five lakh eighty-five
thousand and five hundred only) with interest at
the rate of 6% per annum from the date of petition
till the date of payment;
iv. The enhanced compensation shall be deposited
within four weeks' from the date of receipt of a
certified copy of this judgment;
v. The amount in deposit shall be transmitted to the
Tribunal, and
vi. Transmit the records to the Tribunal, forthwith.
Sd/-
JUDGE
kvk
