National Insurance Co. Ltd vs Shantaveeramma @ Shantamma
2022 Latest Caselaw 2395 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

     DATED THIS THE 15TH DAY OF FEBRUARY, 2022

                        BEFORE

     THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY

        MISCELLANEOUS FIRST APPEAL No.21491/2013
                          C/W.
        MISCELLANEOUS FIRST APPEAL No.24291/2012


IN MFA NO.21491/2013

BETWEEN:

SMT.SHANTAVEERAMMA @ SHANTAMMA
W/O. K. BASAVARAJ BHOOMARADDI,
AGED ABOUT 28 YEARS,
R/AT: HARTIKOTI, TQ: HIRIYUR,
NOW AT NAGARAHAL,
TQ: LINGALSUGUR, DIST: RAICHUR.
                                            ...APPELLANT
(BY SRI. S S YALIGAR, ADVOCATE)

AND:

1.     SRI.MOHAN S/O DEVAPPA HOSAMANI,
       AGED 40 YEARS,
       R/AT: ILKAL, TQ: HUNGUND,
       DIST: BAGALKOTE.

2.     THE BRANCH MANAGER,
       NATIONAL INSURANCE CO., LTD.,
       WARD NO. III, PORWAL BUILDING,
       SHIDDESHWAR CROSS ROAD, BIJAPUR.
                                          ...RESPONDENTS

(BY SMT. PREETI SHASHANK, ADVOCATE FOR R2; R1-SERVED)
                             2




     THIS MFA IS FILED U/S 173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED:06-06-2012
PASSED IN MVC NO.386/2009 ON THE FILE OF MEMBER,
MACT.NO.II, BAGALKOT, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.

IN MFA NO.24291/2012

BETWEEN:

NATIONAL INSURANCE CO. LTD.,
THE BRANCH OFFICE, WARD NO.III,
PORWAL BUILDING SHIDDESHWAR CROSS ROAD,
BIJAPUR. REP. THROUGH ITS
REGIONALOFFICE CELL
HARIYANT PLAZA,KUSUGAL ROAD, HUBLI,
REP. BY ITS DY. MANAGER MRS.SAVITA KAMAT.
                                              ...APPELLANT

(BY SRI. PREETI SHASHANK, ADVOCATE)


AND:

1.     SMT.SHANTAVEERAMMA @ SHANTAMMA,
       W/O. K. BASAVARAJ BHOOMARADDI,
       AGED ABOUT 28 YEARS, OCC: HOUSEHOLD,
       R/O: HARTIKOTI, TQ: HIRIYUR,
       NOW AT NAGARAHAL, TQ: LINGALSUGUR,
       DIST: RAICHUR.

2.     MOHAN DEVAPPA HOSAMANI,
       AGE: MAJOR, OCC: NILL,
       R/O: JOSHI GALLI, ILKAL,
       TQ: HUNGUND, DIST: BAGALKOT.
                                         ...RESPONDENTS

(BY SRI. SHIVARAJ BALLOLLI, ADVOCATE FOR R1;
    SRI. MAHANTESH MATHAD FOR SRI. MRUTYUNJAYA TATA
    BANGI, ADVOCATE)
                                   3




      THIS MFA IS FILED U/SEC.173(1) OF MV ACT, 1988,
AGAINST THE JUDGMENT AND AWARD DTD:06-06-2012
PASSED IN MVC.NO.386/2009 ON THE FILE OF THE MEMBER,
MACT.NO.II, BAGALKOT, AWARDING THE COMPENSATION OF
`4,24,000/- WITH INTEREST AT THE RATE OF 6% P.A., FROM
THE DATE OF PETITION TILL REALISATION.

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


                           JUDGMENT

The instant appeals have been filed by the

claimant as well as by the Insurer of the offending

vehicle challenging the judgment and award dated

06.06.2012 passed by the MACT-II, Bagalkot

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

in MVC No.386/2009.

2. Though these appeals are listed for

admission, with the consent of learned counsel

appearing on both sides, the same are taken up for

final disposal.

3. The parties to these appeals are referred to

by their rankings assigned to them before the

Tribunal for the sake of convenience.

4. The facts of the case as revealed from the

records are:

On 06.10.2008 at about 8.00 pm, when the

deceased K. Basavaraj was standing on the side of

the road near Balakundi village, the offending truck

bearing registration No.KA-29/4953 driven in a rash

and negligent manner by its driver while reversing

the said vehicle, dashed against the deceased

Basavaraj and as a result, the deceased Basavaraj,

who suffered grievous injuries in the said accident,

succumbed and died on the spot. The claimant being

the widow of deceased Basavaraj had filed a claim

petition under Section 166 of the Motor Vehicles Act,

1988 before the Tribunal claiming compensation from

the Insurer and owner of the offending truck bearing

registration No.KA-29/4953. The Tribunal vide the

impugned judgment and award had allowed the claim

petition in part and awarded a compensation of

`4,24,000/- with interest at 6% p.a. from the date of

petition till realization. Being not satisfied with the

quantum of compensation, the claimant has preferred

MFA No.21491/2013 and MFA No.24291/2012 has

been preferred by the Insurer of the offending truck

questioning the liability to pay compensation.

5. Learned counsel for the claimant submits

that the compensation awarded by the Tribunal is on

the lower side. He submits that the Tribunal has

taken the notional income of the deceased on the

lower side and even under the conventional heads,

the claimant is entitled for a higher compensation.

Accordingly, he prays to allow the appeal and

enhance the compensation amount.

6. Learned counsel for the Insurer submits

that the driver of the offending truck did not possess

a valid and effective licence to drive the truck as on

the date of the accident. She submits that, as on the

date of accident, the driver of the offending truck

possessed a light motor vehicle driving licence and

the heavy goods vehicle licence, which was granted

to him earlier had expired on 24.01.2008, i.e., much

prior to the accident in question, which has taken

place on 06.10.2008. She has relied upon the

Division Bench judgment of this Court in the case of

Smt. Padma and Others Vs. Ramanjali and

Others passed in MFA No.100226/2016, disposed

of on 22.04.2021 and submits that, since the driver

of the offending truck did not have a valid driving

licence, the Tribunal was not justified in saddling the

liability to pay compensation on the Insurer of the

offending truck.

7. Per contra, learned counsel Sri.Mahantesh

Mathad, appearing on behalf of the owner of the

offending vehicle, submits that the driver of the

offending vehicle had a driving licence to drive heavy

goods vehicle and it is not a case where he never

possessed a heavy goods licence and therefore, the

Tribunal was justified in saddling the liability on the

Insurer of the offending vehicle.

8. Learned counsel for the claimant submits

that, having regard to the judgment of this Court in

the case of New India Assurance Co. Ltd., Vs.

Yallavva and Another reported in 2020 ACJ 2560,

even if the driver of the offending vehicle did not

possess a valid driving licence as on the date of

accident, the Insurer of the offending vehicle is

required to pay the compensation to the claimant and

then recover the same from the owner.

9. I have carefully considered the rival

arguments and also perused the material on record.

10. The involvement of the offending truck in

the accident in question that had taken place on

06.10.2008 is not in dispute, so also the fact that the

said vehicle was duly insured by the appellant

Insurance Company and the Insurance Policy was

valid as on the date of accident. It is also not in

dispute that, at the time of accident the driver of the

offending truck was holding a valid and effective

licence to drive a light motor vehicle. However, the

fact remains that the driver of the offending truck

had a licence to drive heavy goods vehicle earlier and

the same expired on 24.01.2008. Therefore, from

the records it is very clear that the driver of the

offending vehicle had a transport goods vehicle

driving licence earlier, but as on the date of accident,

the same has been expired.

11. Under the circumstances, in view of the

judgment of the Full Bench of this Court in the case

of New India Assurance Co. Ltd., Vs. Yallavva

and Another reported in 2020 ACJ 2560, the

Insurer of the offending lorry cannot be completely

exonerated from paying the compensation to the

claimant. The Insurer of the offending truck is

required to pay the compensation to the claimant and

thereafterwards recover the same from the owner of

the offending truck.

12. In the judgment of this Court in the case of

Smt. Padma and Others Vs. Ramanjali and

Others passed in MFA No.100226/2016, disposed of

on 22.04.2021, relied upon by the learned counsel

for the appellant-Insurer, the Full Bench judgment of

this Court in the case of Yallavva (supra) has not

been considered. Since the case of judgment of the

Full Bench of this Court in the case of

Yallavva(supra) would be applicable to the facts and

circumstances of the present case, following the

same, it is held that the Insurer of the offending

lorry is required to pay the compensation to the

claimant and thereafter recover the same from the

owner of the offending truck, in the event if it is

found that the driver of the offending truck did not

possess valid and effective licence to drive the truck

as on the date of accident.

13. Insofar as the quantum of compensation

awarded by the Tribunal to the claimant is concerned,

admittedly the deceased was aged about 30 years as

on the date of accident. The Tribunal has taken the

notional income of the deceased at `3,000/- per

month. Having regard to the income chart

maintained by the Karnataka State Legal Services

Authority for the purpose of disposal of motor vehicle

accident cases before the Lok Adalath, the notional

income of the deceased having regard to the year of

accident ought to have been taken at `4,250/- per

month. 40% of the said income ought to have been

taken towards loss of future prospects and 1/3 r d of

the same is required to be deducted towards personal

expenses. The appropriate multiplier applicable shall

be 17 and in the said event, the claimant would be

entitled for a compensation of ` 8,09,268/- (`3967 x

12 x 17) towards 'loss of dependency'. Towards 'loss

of consortium', the claimant is therefore entitled for

a sum of ` 40,000/- and towards funeral expenses

and loss of estate, the claimant is entitled for

another sum of ` 30,000/-. The claimant is therefore

entitled for a total sum of ` 8,79,268/- as

compensation as against `4,24,000/- awarded by the

Tribunal.

14. The enhanced amount of compensation

shall carry interest at 6% p.a. from the date of

petition till realization. Since the Insurer of the

offending truck is held liable to pay the compensation

to the claimant and then recover the same from the

owner of the offending truck, the Insurer of the

offending truck is directed to deposit the balance

amount of compensation with interest before the

Tribunal within a period of six weeks from the date of

receipt of certified copy of this order. The amount in

deposit before this Court in MFA No.24291/2012 is

directed to be transferred to the Tribunal for the

purpose of disposal. The order passed by the

Tribunal insofar as it relates to deposit and

disbursement etc., remains unaltered and the same is

also applicable to enhanced amount of compensation.

Accordingly, MFA Nos.24291/2012 and

21491/2013 are partly allowed.

In view of disposal of the main appeals, all

pending I.As. will not survive for consideration.

Sd/-

JUDGE

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