Karnataka High Court
Kumari. Anisa @ Khutija vs Kumar Hanumanthappa S/O ... on 17 February, 2022
Bench: S.Vishwajith Shetty
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17 T H DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY
M.F.A.CROB No.100137/2017
C/W
M.F.A.No.100668/2014
M.F.ANo.100669/2014
M.F.A.CROB No.100138/2017 (MV)
IN M.F.A.CROB No.100137/2017 (MV)
BET WEEN
1 . AMINA B EGUM @ NAIYAR B ANU,
W/O KHALIL KHAN DAFEDAR,
AGE: 48 YEARS, OCC: HOU SEHOLD WORK,
R/O: CHOLACHAGU DDA, TALUK: BADAMI,
NOW RESIDING AT DANDAPUR ONI,
NARAGU ND, DIST: GADAG.
2 . ANISA @ KHU TIJA,
D/ O KHALIL KHAN DAFEDAR,
AGE: 27 YEARS, OCC: STUDENT ,
R/O: CHOLACHAGU DDA, TALUK: BADAMI,
NOW RESIDING AT DANDAPUR ONI,
NARAGU ND, DIST: GADAG.
3 . AAFRIN D/O KHAL IL KHAN DAFEDAR,
AGE: 23 YEARS, OCC: STUDENT ,
R/O: CHOLACHAGU DDA, TALUK: BADAMI,
NOW RESIDING AT DANDAPUR ONI,
NARAGU ND, DIST: GADAG.
4 . HAJARAB I D/O KHALIL KHAN DAFEDAR,
AGE: 22 YEARS, OCC: STUDENT ,
R/O: CHOLACHAGU DDA, TALUK: BADAMI,
NOW RESIDING AT DANDAPUR ONI,
NARAGU ND, DIST: GADAG.
2
5 . GOUSKHAN S/O KHALIL KHAN DAFEDAR,
AGE: 20 YEARS, OCC: STUDENT ,
R/O: CHOLACHAGU DDA, TALUK: BADAMI,
NOW RESIDING AT DANDAPUR ONI,
NARAGU ND, DIST: GADAG.
6 . HASHAMBI D/O KHALIL KHAN DAFEDAR,
AGE: 18 YEARS, OCC: STUDENT ,
R/O: CHOLACHAGU DDA, TALUK: BADAMI,
NOW RESIDING AT DANDAPUR ONI,
NARAGU ND, DIST: GADAG.
7 . AAYISHA D/ O KHA LIL KHAN DAFEDAR,
AGE: 15 YEARS, OCC: STUDENT ,
R/O: CHOLACHAGU DDA, TALUK: BADAMI,
NOW RESIDING AT DANDAPUR ONI,
NARAGU ND, DIST: GADAG.
(SINCE APP ELLANT NO.7 IS MINOR,
REP.B Y HIS NATU RAL MOTHER
APPELLANT NO.1 A S MINOR GU ARDIA N)
...CROSS OB JECTORS
(BY SRI. H.M.DHARIGOND, ADVOCAT E)
AND
1 . KUMAR HANUMANTHAPPA,
S/O HANUMANTHAPPA HADIMANI,
AGE: MAJOR, OCC: BUSINESS,
R/O: NEAR B ULL HOSPIT AL, AMINAGAD,
TALUK: HU NAGUND, DIST: B AGALKOT E.
2 . SHRIRAM GENERA L INSU RANCE COMPANY LIM IT ED,
AT B IRLA SUNLIFE INSU RANCE BU ILDING,
VIDYA NAGAR, HUBB ALLI,
REP.B Y ITS AU THORIZ ED SIGNAT ORY.
3 . SRIKANT YALLAPP A B ILLAR (WALIKA R)
AGE: MAJOR, OCC: BUSINESS,
R/O: MAMATAGERI, T ALU K: B ADAMI,
DIST: B AGALKOTE.
4 . THE REL IANCE GENERAL INSURANCE
COMPANY LIMITED,
B RANCH NEAR DESAI CROSS,
DESHPANDE NAGAR, HUBB ALLI,
3
REP.B Y ITS DIVIS IONAL MANAGER.
...RESP ONDENTS
(BY SRI.S.K.KAYAKAMATH, ADVOCATE FOR R2;
SRI.NAGARAJ C.KOLL OOR I, ADVOCAT E FOR R4;
NOT ICE T O R1 DIS PENSED WITH; R3 SERVED)
THIS M.F.A. CROB IN MFA No.100669/ 2014 F ILED
UNDER ORDER 41 RU LE 22 OF C.P.C., AGAINST THE
JUDGMENT AND AWARD DATED 06.0 8.201 7 PASS ED IN MVC
No.238/ 2009 ON THE FILE OF THE DIST RICT JUDGE AND
MEMBER, MOTOR ACCIDENT CLAIMS TRIB U NAL, GADAG,
PARTLY AL LOWING THE CLAIM PETIT ION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN M.F.A.No.100668/2014
BET WEEN
SHRIRAM GENERA L INSURANCE COMPANY LIM ITED,
AT B IRLA SU N LIFE INSU RANCE BUILDING,
VIDYA NAGAR, HUB LI, NOW REPRES ENTED B Y
ITS AU THORIZ ED SIGNAT ORY,
SHRIRAM GENERA L INSURANCE COMPANY LIM ITED
LEGAL CELL, E- 8, EP IP R IICO INDU S TRIAL AREA,
SITAPU RA, J AIPU R-302022,
RAJASTHAN STATE.
...APPEL LANT
(BY SRI. S.K.KAYAKAMATH, ADVOCAT E)
AND
1 . KUMARI ANISHA @ KHUTIJA,
D/ O. KHALIL KHAN DAFEDAR,
AGE: 24 YEARS, OCC: STUDENT ,
DANDAPU R ONI, NARAGU ND.
2 . KUMAR HANUMANTHAPPA
S/O. HANU MANTHAPPA HAD IMANI
AGE: MAJOR, OCC: BUSINESS,
R/O. NEAR BU LL HOSPITAL,
AMINAGAD, T Q: HU NAGU ND,
DIST: B AGALKOT.
3 . SRIKANT YALLAPP A B ILLAR (WALIKA R)
AGE: MAJOR, OCC: BUSINESS,
4
R/O. MAMATAGERI, TQ: B ADAMI,
DIST: B AGALKOT.
4 . THE REL IANCE GENERAL INSURANCE
COMPANY LIMITED,
B RANCH NEAR DESAI CROSS,
DESHPANDE NAGAR, HUBB ALLI.
...RESP ONDENTS
(BY SRI. H.M.DHARIGOND, ADVOCATE FOR R1;
NOT ICE T O R2 HELD SU FFICIENT; R3 SERVED)
THIS M.F.A. IS FILED U NDER SECTION 173( 1) OF
MOTOR VEHICLES ACT, 1988, AGA INST T HE JUDGMENT AND
AWARD DATED 06.08.2017 PASSED IN MVC No.240/2009
ON THE FIL E OF THE DISTR ICT JUDGE AND MEMB ER, MOTOR
ACCIDENT CLAIMS T RIB UNAL, GADAG, AWARDING
COMPENSATION OF ` 3,04,600/- WIT H INT EREST AT THE
RATE OF 6% P.A. FROM THE DATE OF PETIT ION T ILL THE
DATE OF REALIZ AT ION.
IN M.F.ANo.100669/2014
BET WEEN
SHRIRAM GENERA L INSURANCE COMPANY LIM ITED,
AT B IRLA SU N LIFE INSU RANCE BUILDING,
VIDYA NAGAR, HUB LI, NOW REPRES ENTED B Y
ITS AU THORIZ ED SIGNAT ORY,
SHRIRAM GENERA L INSURANCE COMPANY LIM ITED
LEGAL CELL, E- 8, EP IP R IICO INDU S TRIAL AREA,
SITAPU RA, J AIPU R-302022,
RAJASTHAN STATE.
...APPEL LANT
(BY SRI. S.K.KAYAKAMATH, ADVOCAT E)
AND
1 . AMINA B EGUM @ NAIYAR B ANU
W/O KHALIL KHAN DAFEDAR,
AGE: 45 YEARS, OCC: HOU SEHOLD WORK.
2 . KUMARI ANISHA @ KHUTIJA,
D/ O KHALIL KHAN DAFEDAR,
AGE: 24 YEARS, OCC: STUDENT .
3 . AAFRIN D/O KHAL IL KHAN DAFEDAR,
5
AGE: 23 YEARS, OCC: STUDENT .
4 . HAJARAB I D/O KHALIL KHAN DAFEDAR,
AGE: 22 YEARS, OCC: STUDENT .
5 . GOUSKHAN S/O KHALIL KHAN DAFEDAR,
AGE: 17 YEARS, OCC: STUDENT .
6 . HASHAMBI S/O KHALIL KHAN DAFEDAR,
AGE: 15 YEARS, OCC: STUDENT .
7 . AAYISHA D/ O KHA LIL KHAN DAFEDAR,
AGE: 12 YEARS, OCC: STUDENT ,
ALL ARE R/O: CHOLACHGUDDA,
TALUK: B ADAMI,
NOW RESIDING AT DANDAPUR ONI,
NARAGU ND.
RESPONDENT NO.5, 6 AND 7 ARE
MINOR, REPR ESEN TED B Y THEIR
M/R RESPONDENT NO.1.
8 . KUMAR HANUMANTHAPPA,
S/O HANUMANTHAPPA HADIMANI,
AGE: MAJOR, OCC: BUSINESS,
R/O NEAR B ULL HOSPITAL,
AMINAGAD, T Q: HU NAGU ND,
DIST: B AGALKOT.
9. SRIKANT YALLAPP A B ILLAR (WALIKA R)
AGE: MAJOR, OCC: BUSINESS,
R/O HAMATAGERI, TQ: B ADAMI,
DIST: B AGALKOT.
10. THE REL IANCE GENERAL INSURANCE CO.LTD.,
B RANCH NEAR DESAI CROSS,
DESHPANDE NAGAR, HUBB ALLI.
... RESPONDENTS
(BY SRI. H.M.DHARIGOND, ADVOCAT E FOR R1 TO R4;
R5, R6 & R7 MINOR, R/ BY R1;
R8- NOTICE HELD SUFFICIENT; R9- SERVED;
SRI NAGARAJ C.KOLLOOR I, ADVOCATE FOR R10)
THIS M.F.A. IS FILED U NDER SECT ION 173( 1) OF
MOTOR VEHICLES ACT, 1988, AGA INST T HE JUDGMENT AND
6
AWARD DATED 06.08.2017 PASSED IN MVC No.238/ 2009
ON THE FIL E OF THE DISTR ICT JUDGE AND MEMB ER, MOTOR
ACCIDENT CLAIMS T RIB UNAL, GADAG, AWARDING
COMPENSATION OF ` 5,28,000/- WITH INT ER EST AT THE
RATE OF 6% P.A. FROM THE DATE OF PETIT ION T ILL THE
DATE OF REALIZ AT ION.
IN M.F.A.CROB No.100138/2017 (MV)
BET WEEN
KU MARI ANISA @ KHUTIJA,
D/O KHALIL KHAN DAFEDAR,
AGE: 27 YEARS, OCC: STU DENT,
R/O: CHOLACHAGU DDA, T ALU K: B ADAMI,
NOW RESID ING AT DANDAPU R ONI,
NARAGU ND, DIST: GADAG.
...CROSS OB JECTOR
(BY SRI. H.M.DHARIGOND, ADVOCATE)
AND
1 . KUMAR HANUMANTHAPPA,
S/O HANUMANTHAPPA HADIMANI,
AGE: MAJOR, OCC: BUSINESS,
R/O: NEAR B ULL HOSPIT AL, AMINAGAD,
TALUK: HU NAGUND, DIST: B AGALKOT E.
2 . SHRIRAM GENERA L INSU RANCE COMPANY LIM IT ED,
AT B IRLA SUNLIFE INSU RANCE BU ILDING,
VIDYA NAGAR, HUBB ALLI.
3 . SRIKANT YALLAPP A B ILLAR (WALIKA R)
AGE: MAJOR, OCC: BUSINESS,
R/O: MAMATAGERI, T ALU K: B ADAMI,
DIST: B AGALKOTE.
4 . THE REL IANCE GENERAL INSURANCE
COMPANY LIMITED,
B RANCH NEAR DESAI CROSS,
DESHPANDE NAGAR, HUBB ALLI.
...RESP ONDENTS
(BY SRI.S.K.KAYAKAMATH, ADVOCATE FOR R2;
SRI.NAGARAJ C.KOLL OOR I, ADVOCAT E FOR R4;
NOT ICE T O R1 DIS PENSED WITH; R3 SERVED)
7
THIS M.F.A. CROB IN MFA No.100668/ 2014 F ILED
UNDER ORDER 41 RU LE 22 OF C.P.C., AGAINST THE
JUDGMENT AND AWARD DATED 06.08.201 7 PASS ED IN MVC
No.240/ 2009 ON THE FILE OF THE DIST RICT JUDGE AND
MEMBER, MOTOR ACCIDENT CLAIMS TRIB U NAL, GADAG,
PARTLY AL LOWING THE CLAIM PETIT ION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE CROSS- OB JECTIONS AND APPEALS COM ING ON
FOR ADMISSION, THIS DAY T HE COURT DELIVERED THE
FOLLOWING:
J U D G M E N T
The instant app eals and cross-objections arise
from the common judgment and award p assed in
M.V.C.Nos.238/2009 and 240/2009 passed by the
M.A.C.T., Gadag dated 6 t h August 2012 and therefore,
all the cases are taken up tog ether and d isposed of by
this common jud gment.
2. Though these appeals and cross-objections
are listed for ad mission, with the consent of the
learned counsels appearing for the parties, they are
taken up for final disposal.
3. The p arties to these appeals are referred to
by their ranking s before the Tribunal for the sake of
convenience.
4. The und isputed facts of the case are:
On 30.05.2009 d eceased Khalil Khan Dafed ar and
his family members were traveling in a p assenger
rickshaw bearing registration No.KA-25/TR-5901 and
the driver of the said vehicle was driving the same in a
rash and negligent manner. When the autorickshaw
reached near Mamatag eri canal on Badami-Kulag eri
road, the offending Tum Tum vehicle bearing
registration No.KA-29/9977 which was also d riven in a
rash and neg ligent manner by its driver came from
Bad ami sid e and dashed against the autorickshaw in
which the deceased Khalil Khan Dafed ar was traveling
along with his family memb ers. In the said accident,
Khalil Khan Dafedar who suffered grievous injuries died
on the spot and his d aughter Kumari Anisa who was
aged about 19 years suffered grievous injuries. She
was treated in a hosp ital as inpatient and her right leg
was amputated below knee. It is under these
circumstances, the wife and children of the deceased
Khalil Khan Dafedar and the injured Kum.Anisa had
filed two sep arate claim p etitions und er Section 166 of
the Motor Vehicles Act claiming comp ensation towards
the death of Khalil Khan Dafedar and toward s the
injuries suffered by Kum.Anisa in the accident in
question. The Tribunal had p artly allowed the claim
petitions and award ed compensation of `5,28,000/- and
`3,04,600/- respectively with interest @ 7% per annum
from the d ate of petition till realization and it held the
owners and insurers of both the vehicles jointly and
severally liab le to p ay the compensation in equal
proportion. The insurer of the autorickshaw bearing
registration No.KA-25/TR-5901 was given lib erty to
recover the compensation amount from the owner of
the autorickshaw on the g round that the owner of the
autorickshaw had no valid permit to ply the vehicle on
road as on the date of accident and the d river of the
autorickshaw d id not possess a valid and effective
driving licence as on the date of the accident. Being
agg rieved by the liability saddled on it, the insurer of
the offending autorickshaw bearing registration
No.KA-25/TR-5901 has preferred M.F.A.
No.100668/2014 and M.F.A.No.100669/2014 while the
claimants in both the cases have filed cross objections
seeking enhancement of comp ensation award ed by the
Tribunal.
5. Learned counsel for the insurer submits that
the owner of the autorickshaw did not have a valid
permit to ply the vehicle on road as on the d ate of the
accid ent and even the driver of the autorickshaw, who
was d riving the said vehicle as on the d ate of the
accid ent, did not possess valid and effective driving
licence as on the d ate of accident and therefore, the
Tribunal had erred in directing the insurer to ind emnify
the owner of the vehicle. He sub mits that the Tribunal
ought to have exonerated the liab ility of the insurer
since the vehicle was used in violation of the terms and
cond itions of the policy.
6. Per contra, learned counsel for the claimants
submits that the owner of the autorickshaw has
produced the licence before the Tribunal and even if
there is no permit to ply the autorickshaw on road as
on the d ate of the accid ent, it cannot b e said that the
vehicle was used in violation of the terms and
cond itions of the policy, having regard to the judgment
of a Full Bench of this court in the case of New India
Assurance Co.Ltd. -vs- Yallavva and Another 1. He
submits that the Tribunal was fully justified in directing
the insurer of the offending autorickshaw to p ay
comp ensation amount and recover the same from the
owner of the autorickshaw. He submits that the
comp ensation award ed in both cases to the claimants is
on the lower side. He submits that the Trib unal has
failed to take into consid eration that the right leg of
Anisa, who was ag ed 19 years, was amp utated below
knee and without appreciating that she had a brig ht
future has awarded meager compensation and
according ly p rays to enhance the compensation in both
the cases.
7. I have carefully appreciated the arguments
addressed on both sides and also perused the
material available on record.
ILR 2020 KAR 2239
8. The undisputed facts of these cases are
that on 30.05.2009 when the deceased Khalil Khan
Dafedar was traveling in an autorickshaw bearing
registration No.KA-25/TR-5901 along with his family
members, the accident in question occurred as a
result of Tum Tum vehicle bearing registration
No.KA-29/9977 dashing against the autorickshaw in
which the deceased was traveling along with his
family. The Tribunal has held the drivers of both the
vehicles guilty and has apportioned the liability at
50% each on the owner and insurer of both the
vehicles. The insurer of the autorickshaw has
challenged the impugned judgment and award insofar
as it relates to directing the insurer to pay and
recover the compensation amount from the owner of
the offending autorickshaw bearing registration
No.KA-25/TR-5901. The Tribunal relying upon the
judgment of the Hon'ble Supreme Court in the case of
Kusum Lata and others -vs- Satbir and others 2
and also in the case of National Insurance Co.Ltd.
2011 ACJ 926
-vs- Swaran Singh 3 had directed the insurer of the
offending autorickshaw bearing registration
No.KA-25/TR-5901 to pay compensation to the
claimants and then recover the same from the owner
of the autorickshaw bearing registration
No.KA-25/TR-5901. As rightly contended by the
learned counsel for the claimants, the fact that the
owner of the autorickshaw did not have a valid
permit as on the date of accident and that he had
failed to produce the copy of the driving licence of
the driver who was driving the autorickshaw cannot
be considered as basic violation of the terms and
conditions of the insurance policy which had resulted
in the accident. Therefore having regard to the
judgment of the full bench of this Court in the case of
New India Assurance Company Limited V/s
Yallavva and another reported in 2020(2) KCR
1405 (FB) and also taking into consideration the
judgments that were referred to by the Tribunal, I
am of the considered view that the Tribunal was fully
2004 ACJ 1
justified in saddling the liability on the insurer of the
offending autorickshaw bearing registration
No.KA-25/TR-5901 to pay the compensation amount
to the claimants and then recover the same from the
owner of the said autorickshaw. Therefore, I find no
merit in the appeals filed by the insurer of the
offending autorickshaw bearing registration
No.KA-25/TR-5901 is concerned.
9. The claimants in both the cases have
preferred cross-objections seeking enhancement of
the compensation awarded by the Tribunal.
10. In MVC No.238/2009, the claimants are the
wife and children of deceased Khalil Khan Dafedar
who was aged about 48 years as on the date of
accident. The accident is of the year 2009. The
notional income of the deceased was required to be
taken at `5,000/- per month in view of the income
chart maintained by the Karnataka Legal Services
Authority for the purpose of disposal of motor
accident cases in the Lok Adalath and 25% of his
income was required to be taken towards loss of his
future prospects and having regard to the number of
dependants, 1/5 t h of the same was required to be
deducted towards his personal expenses. The proper
multiplier applicable would be '13'. In the said event,
the claimants are entitled for a sum of `7,80,000/-
towards loss of dependency. Further the claimants
are entitled for a sum of `40,000/- each towards loss
of consortium and towards loss of filial love and
affection. In addition to the same, they are also
entitled for a sum of `30,000/- towards loss of estate
and towards funeral expenses. Therefore, under the
conventional heads, they are totally entitled for a
compensation of `3,10,000/-. In all, the claimants
are entitled for a compensation of `10,90,000/- as
against `5,28,000/- awarded by the Tribunal. The
enhanced amount of compensation shall also carry
interest at 6% per annum.
11. In MVC No.240/2009, the claimant is a girl
aged about 19 years and she was a student at the
time of accident. The material on record would go to
show that she had sustained multiple injuries on her
body and her right leg was amputated below the
knee. The doctor who has treated her has been
examined before the Tribunal as PW3 and he has
given an opinion that her permanent physical
disability to the whole body was at 55-60%. The
notional income of the claimant is required to be
considered at `5,000/- per month even in this case.
Since the right lower limb has been amputated below
knee, it is necessary to consider the loss of future
prospects of the claimant. Therefore, 40% of the
income is taken into consideration towards loss of
future prospects. The disability to the whole body is
assessed at 60%. In the said event, the injured
claimant would be entitled for a sum of `9,07,200/-
towards loss of future earning due to disability.
Towards pain and suffering, the claimant is awarded
a compensation of `75,000/- as against `40,000/-
awarded by the Tribunal. The compensation amount
of `1,79,000/- awarded by the Tribunal towards
medical expenses remains unaltered. Towards loss of
amenities, the claimant is awarded compensation of
`75,000/- as against `25,000/- awarded by the
Tribunal. Towards incidental expenses, the claimant
is awarded a sum of `32,000/- as against `12,000/-.
In addition to the same, the claimant is also awarded
a sum of `1,00,000/- towards loss of marriage
prospects. Therefore in all, the claimant is entitled
for a compensation of `13,68,200/- as against
`3,04,600/- awarded by the Tribunal. The enhanced
amount of compensation shall also carry interest at
6% per annum.
12. The order passed by the Tribunal insofar as
it relates to disbursement and deposit remains
unaltered and shall be applicable even to the
enhanced amount of compensation. Accordingly, the
Miscellaneous First Appeals filed by the insurer of the
offending autorickshaw bearing registration No.KA-
25/TR-5901 are dismissed and the cross-objections
filed by the claimants are partly allowed.
13. The insurer of the offending autorickshaw 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.
14. It is made clear that the insurer is at
liberty to recover the amount paid to the claimant
from the owner of the autorickshaw.
15. The trial Court records are directed to be
transferred to the Tribunal along with amount in
deposit in both the appeals filed by the insurer
forthwith for the purpose of disbursement.
Sd/-
JUDGE
KNM/CLK
