The Authorised Signatory vs Smt. Mallamma W/O Ramesh ...
2022 Latest Caselaw 2851 Kant

                                      M.F.A.100457/2018 &
                                    CONNECTED APPEALS
                        -1-


        IN THE HIGH COURT OF KARNATAKA
                DHARWAD BENCH

  DATED THIS THE 21 S T DAY OF FEBRUARY, 2022

                      BEFORE

THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY

           M.F.A. No.100457/2018 (MV)
                       C/W
             M.F.A.No.100458/2018,
             M.F.A.No.100698/2018 &
              M.F.A.No.100699/2018

IN M.F.A.No.100457/ 2018

B ETWEEN

THE AU THORISED SIGNAT ORY
SHRIRAM GENERA L INSU RANCE COMPANY LIM IT ED,
E-8, EPIP, SITAPP UR INDUSTRIAL AREA,
JAIPUR (RAJASTAN)-302022,
NOW REPTED B Y ITS
AUT HORIZED SIGN AT ORY.
                                       ...APPELLANT
(B Y SRI.NAGARAJ C. KOLLO OR I, ADVOCAT E)

AND

1 .   SMT . MALLAMMA W/O RAMESH NEERALAGI,
      AGE: 36 YEARS, OCC: HOUSEHOLD WORK,
      R/O: GOTAG ODI, TQ: SHIGGAON,
      DIST: HAVER I, PIN CODE: 581205.

2 .   KU M.SHAMBULINGA
      S/O RAMESH NEERALAGI,
      AGE: 18 YEARS, OCC: STU DENT,
      R/O: GOTAG ODI, TQ: SHIGGAON,
      DIST: HAVER I, PIN CODE: 581205.

3 .   KU M.SOUMYA
      D/O RAMESH NEERALAGI,
      AGE: 17 YEARS, OCC: STU DENT,
      R/O: GOTAG ODI, TQ: SHIGGAON,
      DIST: HAVER I, PIN CODE: 581205.
                                       M.F.A.100457/2018 &
                                    CONNECTED APPEALS
                        -2-



4 .   KU M.SU MANGALA
      D/O RAMESH NEERALAGI,
      AGE: 14 YEARS, OCC: STU DENT,
      R/O: GOTAG ODI, TQ: SHIGGAON,
      DIST: HAVER I, PIN CODE: 581205.

      (SINCE THE RESPONDENT NO.3 AND 4
      ARE MINORS REP RESENTED B Y THEIR
      NATU RAL GUARDIAN MOTHER RESPONDENT
      NO.1, SMT.MALLAMMA NEERALAGI.)

5 .   SMT .DRAKSHAYANEVVA
      W/O B ASAPPA NEERALAGI,
      AGE: 57 YEARS, OCC: HOUSEHOLD WORK,
      R/O: GOTAG ODI, TQ: SHIGGAON,
      DIST: HAVER I, PIN CODE: 581205.

6 .   BASAPPA
      S/O MAHADEVAPPA NEERALAGI,
      AGE: 63 YEARS, OCC: NIL,
      R/O: GOTAG ODI, TQ: SHIGGAON,
      DIST: HAVER I, PIN CODE: 581205.

7 .   MALLANAGOU DA
      S/O HANU MANTHAGOUDA PATIL,
      AGE: MAJ OR, OCC: BU SINESS,
      R/O: B AMMASAMUDRA,
      TQ: HU BBALLI,
      DIST: HAVER I- 580020.   ...RESPONDENTS

(B Y SRI.C.M.HOSAMANI, ADVOCATE FOR R1, R2, R5,
AND R6; R3 AND R4 MINOR REPT D BY R1; R7 SERVED)

      THIS MISCEL LANE OUS FIRST APPEAL IS F IL ED
U NDER SECTION 173(1) OF MOTO R VEH ICLES ACT,
1988, AGA INST T HE JU DGMENT AN D AWARD DAT ED
17. 11.2017 PASSED IN MVC No.186/ 2014 ON T HE FILE
OF THE MEMBER, MOTOR ACCIDENT CLAIMS T RIB UNAL
AND PRINC IPAL SENIOR CIV IL JU DGE, HAVERI,
AWARDING COMPENSATION OF ` 12,77,000/- WIT H
INTEREST AT 6% P.A. FROM THE DATE OF PET IT ION
TILL REA L IZ ATION .
                                        M.F.A.100457/2018 &
                                     CONNECTED APPEALS
                         -3-


IN M.F.A. No.100458/ 201 8

B ETWEEN

THE AU THORISED SIGNAT ORY
SHRIRAM GENERA L INSU RANCE COMPANY LIM IT ED,
E-8, EPIP, SITAPP UR INDUSTRIAL AREA,
JAIPUR (RAJASTAN)-302022,
NOW REPTED B Y ITS
AUT HORIZED SIGN AT ORY.
                                       ...APPELLANT
(B Y SRI.NAGARAJ C. KOLLO OR I, ADVOCAT E)

AND

1 .   MARU TI S/O RAMANNA PU JAR @ B YALI,
      AGE: 30 YEARS, OCC: COOLIE,
      R/O: GOTAG ODI,TQ: SHIGGAON,
      DIST: HAVER I, PIN CODE: 581205.

2 .   MALLANAGOU DA
      S/O HANU MANTHAGOUDA PATIL,
      AGE: MAJ OR, OCC: BU SINESS,
      R/O: B AMMASAMUDRA,
      TQ: HU BBALLI, DIST :HAVERI,
      PIN CODE: 580020.
                                    ...RESPONDENTS
(R1 SERVED; R2 N OTICE HELD SU FFICIENT )

      THIS MISCEL LANE OUS FIRST APPEAL IS F IL ED
U NDER SECTION 173(1) OF MOTO R VEH ICLES ACT,
1988, AGA INST T HE JU DGMENT AN D AWARD DAT ED
17. 11.2017 PASSED IN MVC No.187/ 2014 ON T HE FILE
OF THE MEMBER, MOTOR ACCIDENT CLAIMS T RIB UNAL
AND PRINC IPAL SENIOR CIV IL JU DGE, HAVERI,
AWARDING COMPENSAT ION OF ` 2,34,099/- WIT H
INTEREST AT 6% P.A. FROM THE DATE OF PET IT ION
TILL REA L IZ ATION .

IN M.F.A.No.100698/2018

B ETWEEN

1 .   SMT . MALLAMMA W/O RAMESH NEERALAGI,
      AGE: 35 YEARS, OCC: HOUSEHOLD WORK,
      R/O: GOTAG ODI, TQ: SHIGGAON,
      DIST: HAVER I.
                                      M.F.A.100457/2018 &
                                   CONNECTED APPEALS
                       -4-



2 .   KU M.SHAMBULINGA
      S/O RAMESH NEERALAGI,
      AGE: 18 YEARS, OCC: STU DENT,
      R/O: GOTAG ODI, TQ: SHIGGAON,
      DIST: HAVER I.

3 .   KU M.SOUMYA
      D/O RAMESH NEERALAGI,
      AGE: 16 YEARS, OCC: STU DENT,
      R/O: GOTAG ODI, TQ: SHIGGAON,
      DIST: HAVER I.

4 .   KU M.SU MANGALA
      D/O RAMESH NEERALAGI,
      AGE: 13 YEARS, OCC: STU DENT,
      R/O: GOTAG ODI, TQ: SHIGGAON,
      DIST: HAVER I.

      (SINCE THE APPELLANT Nos.3 AND 4
      ARE MINORS R/B Y APPELLANT No.1 MOTHER
      AS M/G SMT.MALLAMMA
      W/O RAMESH NEERALAG I,
      AGE: 35 YEARS, OCC: HOUSEHOLD WORK,
      R/O: GOTAG ODI, TQ: SHIGGAON,
      DIST: HAVER I.

5 .   SMT .DRAKSHAYENEVVA
      W/O B ASAPPA NEERALAGI,
      AGE: 58 YEARS, OCC: HOUSEHOLD WORK,
      R/O: GOTAG ODI, TQ: SHIGGAON,
      DIST: HAVER I.

6 .   BASAPPA
      S/O MAHADEVAPPA NEERALAGI,
      AGE: 64 YEARS, OCC: NIL,
      R/O: GOTAG ODI, TQ: SHIGGAON,
      DIST: HAVER I.
                                      ...APPELLANTS
(B Y SRI.C.M.HOSAMANI, ADVOCATE)

AND

1 .   SRI. MALLANAGOU DA
      S/O HANU MANTHAGOUDA PATIL,
      AGE: MAJ OR, OCC: BU SINESS,
      R/O: B AMMASAMUDRA, TQ: HUBUB ALLI,
                                         M.F.A.100457/2018 &
                                      CONNECTED APPEALS
                         -5-


      DIST: HAVER I, PIN CODE: 580030.

2 .   THE AUT HORISED SIGNAT ORY,
      SHREERA GENERA L INSURANCE CO. LTD.,
      E-8, EP IP, RIICO, INDU ST RIAL AREA,
      SITAPU R, JAIPU R, RAJASTHAN STATE,
      PIN CODE: 302022.             ...RESPONDENTS

(B Y SRI.NAGARAJ C. KOLLO OR I, ADVOCAT E FOR R2;
NOTICE TO R1 DIS PENSED WITH)

      THIS MISCEL LANE OUS FIRST APPEAL IS F IL ED
U NDER SECTION 173(1) OF MOTO R VEH ICLES ACT,
1988, AGA INST T HE JU DGMENT AN D AWARD DAT ED
17. 11.2017 PASSED IN MVC No.186/ 2014 ON T HE FILE
OF THE PR INCIPA L SENIOR CIVIL JUDGE AND MOTOR
ACCIDENT     CLAIMS  TRIB UNAL,   HAVER I,  PA RTLY
ALLOW ING T HE CLAIM PET ITION FOR COMPENSAT IO N
AND SEEKING ENHANCEMENT OF COMPENSATION.

IN M.F.A.No.100699/2018

AND

MARUTI S/O RAMANNA PUJAR @ B YALI,
AGE: 29 YEARS, OCC: COOLIE,
R/O: GOTAGOD I, TQ: SHIGGAON,
DIST: HAVERI.                ...APPELLANT

(B Y SRI.C.M.HOSAMANI, ADVOCATE)

B ETWEEN

1 .   SRI. MALLANAGOU DA
      S/O HANU MANTHAGOUDA PATIL,
      AGE: MAJ OR, OCC: BU SINESS,
      R/O: B AMMASAMUDRA, TQ: HUBUB ALLI,
      DIST: HAVER I, PIN CODE: 580030.

2 .   THE AUT HORISED SIGNAT ORY
      SHREERA GENERA L INSURANCE CO. LTD.,
      E-8, EP IP, RIICO, INDU ST RIAL AREA,
      SITAPU R, JAIPU R, RAJASTHAN STATE,
      PIN CODE: 302022.            ...RESPONDENTS

(B Y SRI.NAGARAJ C. KOLLO OR I, ADVOCAT E FOR R2;
NOTICE TO R1 DIS PENSED WITH)
                                               M.F.A.100457/2018 &
                                            CONNECTED APPEALS
                            -6-



      THIS MISCEL LANE OUS FIRST APPEAL IS F IL ED
U NDER SECTION 173(1) OF MOTO R VEH ICLES ACT,
1988, AGA INST T HE JU DGMENT AN D AWARD DAT ED
17. 11.2017 PASSED IN MVC No.187/ 2014 ON T HE FILE
OF THE MEMB ER, ADDIT IONAL M OTOR ACCIDENT
CLAIMS TRIB UNAL,    AND PRINCIP AL SEN IOR C IV IL
JU DGE, HAVERI, PART LY ALLOWING THE CLAIM
PET ITION   FOR    COMPENSATION     AND   SEEKING
ENHANCEMENT OF COMPENSATION.

     THESE APPEALS COMING ON FOR ADMISSION,
THIS DAY THE COU RT DELIVERED THE FOLLOW ING:

                      J U D G M E N T

These appeals are filed by the insurer of the

offending vehicle and the claimants challenging

the judgment and award dated 17 t h November

2017 passed by the M.A.C.T., Haveri, in MVC

Nos.186/2014 and 187/2014.

2. Though these appeals are listed for

admission, with the consent of the learned

counsels appearing for the parties, they are

taken up for final disposal.

3. The parties to these appeals are referred

to by their rankings before the Tribunal for the

sake of convenience.

M.F.A.100457/2018 & CONNECTED APPEALS

4. The undisputed facts of the case are:

On 05.12.2013 at about 8.30 p.m., when

the deceased Ramesh and the injured Maruti

Ramanna Byali were walking on the left side of

the road towards Shiggaon, the offending Canter

lorry bearing registration No.KA-25/C-1724

which was driven in a rash and negligent manner

dashed against Ramesh and Maruti Ramanna

Byali and caused the accident. In the said

accident, Ramesh, who was grievously injured

had succumbed to the injuries at the spot, while

Maruti Ramanna Byali, who also had suffered

grievous injuries was shifted to KIMS Hospital,

Hubballi for treatment wherein he was admitted

as an inpatient. It is under these

circumstances, the dependants of deceased

Ramesh and the injured Maruti had filed two

separate claim petitions under Section 166 of

the Motor Vehicles Act, 1988, which were partly

allowed by the Tribunal and the liability to pay M.F.A.100457/2018 & CONNECTED APPEALS

compensation amount was saddled on the

insurer of the offending canter lorry bearing

registration NO.KA-25/C-1724. Being aggrieved

by the same, the insurer of the canter lorry has

preferred M.F.A.Nos.100457/2018 and

100458/2018 while the claimants have filed

M.F.A.Nos.100698/2018 and 100699/2018

seeking enhancement of compensation awarded

by the Tribunal.

5. Learned counsel for the insurer

submits that the vehicle insured with the insurer

is a TATA lorry while the entire material on

record would go to show that the vehicle

involved in the said accident is Eicher Canter

lorry. He submits that the vehicle involved in

the accident and the vehicle insured with the

insurer are two different vehicles. Therefore,

the Tribunal had erred in saddling liability to pay

compensation on the insurer of the vehicle.

M.F.A.100457/2018 & CONNECTED APPEALS

6. Per contra, learned counsel appearing

for the claimants submits that it is for the first

time in these appeals, the identity of the vehicle

is being disputed by the insurer of the offending

vehicle. He submits that the charge sheet was

filed as against the driver of the canter lorry in

C.C.No.1824/2014 and thereafterwards a written

statement has been filed by the insurer of the

said lorry admitting that the said lorry which

was involved in the accident was duly insured by

them. Therefore, at this stage, it is not open for

the insurer of the offending lorry to dispute the

very identity of the vehicle in question when

such a contention was not raised by him before

the Tribunal and no issue was framed by the

Tribunal in this regard. He submits that the

compensation awarded by the Tribunal is on the

lower side and accordingly prays to enhance the

same.

M.F.A.100457/2018 & CONNECTED APPEALS

- 10 -

7. I have given my anxious consideration

to the arguments addressed on both sides and

also perused the material available on record.

8. In the accident that occurred on

05.12.2013 wherein the vehicle bearing

registration No.KA-25/C-1724 was involved,

deceased Ramesh had succumbed to the injuries

sustained by him in the accident and the

claimant Maruti, who was grievously injured in

the accident, was admitted in the hospital as

inpatient and treated for his injuries.

Immediately after the accident, a complaint was

lodged as against the driver of the Eicher Canter

lorry, which was involved in the accident and

during the course of investigation, the Police

have traced the driver of the vehicle which was

involved in the accident and charge sheet has

been filed as against the driver of the said

vehicle showing the registration number of the

vehicle as No.KA-25/C-1724 and the driver of M.F.A.100457/2018 & CONNECTED APPEALS

- 11 -

the said vehicle was tried for the alleged

offences in the charge sheet before the

jurisdictional Magistrate Court. In the written

statement filed by the insurer of the offending

vehicle bearing registration No.KA-25/C-1724

which was involved in the accident in question

and as against which the charge sheet was filed,

the insurer has categorically admitted that the

said vehicle was insured by the insurer and it is

also stated in the written statement that the

said vehicle is a Eicher Canter lorry. Therefore,

before the Tribunal it was not in dispute that the

vehicle involved in the accident in question,

which was insured by the insurer, was an Eicher

Canter lorry. It is for the first time before this

court, the insurer of the offending vehicle has

made a statement that the vehicle involved in

the accident is an Eicher Canter lorry while the

vehicle insured is TATA lorry and therefore, the

said two vehicles are different and the insured

vehicle was not the vehicle involved in the M.F.A.100457/2018 & CONNECTED APPEALS

- 12 -

accident. Since such a contention was not

raised by the insurer of the offending lorry,

which was involved in the accident in question,

it is not open for him to urge such contentions

for the first time before this court. Further in

the appeal memorandum also, such a ground is

not urged. Since the learned counsel for the

insurer has not taken the specific ground in this

regard, it is not open for him to raise the same,

which is a disputed question of fact, for the first

time during the course of his arguments. Under

the circumstances, as rightly contended by the

learned counsel for the claimants, such a

contention cannot be considered in these

appeals and therefore, I find no merit in the

appeals filed by the insurer.

9. Insofar as the appeals filed by the

claimants are concerned, the question that

arises for consideration in the said appeals is M.F.A.100457/2018 & CONNECTED APPEALS

- 13 -

with regard to the adequacy of compensation

awarded to the claimants by the Tribunal.

10. Insofar as M.V.C.No.186/2014 is

concerned, the deceased was aged about 35

years as on the date of accident. The accident

is of the year 2013. The notional income of the

deceased is required to be taken at `7,000/- per

month, having regard to the income chart

maintained by the Karnataka State Legal

Services Authority for the purpose of disposal of

the motor vehicle accident cases before the Lok

Adalat. 40% of the notional income is required

to be taken into consideration towards loss of

future prospects of the deceased. Out of the

total income, 1/4 t h is required to be deducted

towards the personal expenses of the deceased.

In the said event, the claimants would be

entitled for a sum of `14,11,200/- towards loss

of dependency. The claimants are entitled for a

sum of `40,000/- each towards loss of M.F.A.100457/2018 & CONNECTED APPEALS

- 14 -

consortium and loss of love and affection and

towards funeral expenses and loss of estate,

they are entitled for another sum of `30,000/-.

Therefore, under the conventional heads, they

are totally entitled for `2,70,000/-. In all the

claimants are entitled for a compensation of

`16,81,200/- as against `12,77,000/- awarded

by the Tribunal.

11. Insofar as M.V.C.No.187/2014 is

concerned, the claimant was aged about 26

years as on the date of accident. The material

on record would go to show that he had suffered

a fracture injury in addition to the other injuries

and the Doctor PW-2, who has issued the

disability certificate, has deposed before the

Tribunal that the disability to the particular limb

was to the extent of 33% and therefore, the

disability to the whole body is required to be

considered as 11%. The multiplier applicable is

'17'. The notional income of the claimant even M.F.A.100457/2018 & CONNECTED APPEALS

- 15 -

in this case is required to be taken at `7,000/-

per month. In the said event, the claimant

would be entitled for a sum of `1,57,080/-

towards loss of future income due to disability.

The claimant has incurred the medical expenses

of `799/- and he is entitled for reimbursement

of the same. Having regard to the injuries

suffered and treatment undergone by him, the

claimant is entitled for `35,000/- towards pain

and suffering; `10,000/- towards incidental

expenses; `14,000/- towards loss of earning

during laid-up period and `30,000/- towards loss

of amenities in future life. In all, the claimant

is entitled for a total compensation of

`2,46,879/- as against `2,34,099/- awarded by

the Tribunal.

The enhanced amount of compensation

shall carry interest @ 6% per annum from the

date of petition till realization in both the cases.

M.F.A.100457/2018 & CONNECTED APPEALS

- 16 -

Since the insurer of the offending lorry is

held liable to pay the compensation amount, the

balance amount of compensation shall be

deposited by the said insurer before the Tribunal

within a period of six weeks from the date of

receipt of certified copy of this order.

     The       amount             in     deposit           in

M.F.A.Nos.100457/2018         and      100458/2018         is

directed to be transferred to the Tribunal for the

purpose of disbursement.

The order passed by the Tribunal insofar as

it relates to apportionment, disbursement and

deposit, etc., remains unaltered and the same

shall be applicable even in respect of enhanced

amount of compensation.

Accordingly, M.F.A.No.100457/2018 and

M.F.A.No.100458/2018 filed by the insurer of

the offending lorry bearing registration No.KA-

25/C-1724 are dismissed.

M.F.A.100457/2018 & CONNECTED APPEALS

- 17 -

M.F.A.Nos.100699/2018 and 100698/2018

filed by the claimants are partly allowed.

SD/-

JUDGE

KNM/-