The Branch Manager vs Bhimashankar S/O Shivamurtappa ...
2022 Latest Caselaw 3079 Kant

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             IN THE HIGH COURT OF KARNATAKA
                    KALABURAGI BENCH

       DATED THIS THE 23RD DAY OF FEBRUARY 2022

                              PRESENT

       THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

                                 AND

        THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA


                   M.F.A. NO.200076/2019 (MV)
                              C/W
                   M.F.A. NO.202285/2019 (MV)

IN MFA No.200076/2019:

Between:

The Branch Manager
HDFC ERGO General Ins. Co. Ltd.,
Shankar Narayan Building
1st Floor, M.G. Road
Bangalore-5600001
(Now represented by Authorized
Signatory, Hubli)
                                                ... Appellant

(By Smt. Preeti Patil Melkundi, Advocate)

And:

1. Bhimashankar S/o Shivamurtappa
   Awati, Age: 70 years, Occ: Nil

2. Gundawwa W/o Bhimashankar
   Awati Age: 63 years, Occ: Nil
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3. Rekha W/o Shivanand Awati
   Age: 27 years, Occ: Household Work

4. Rohit S/o Shivanand Awati
   Age: 07 years

5. Ranjeet S/o Shivanand Awati
   Age: 04 years

   Respondent No.4 and 5, minor M/g by
   Respondent No.2, All R/o Tidagundi
   Tq. & Dist. Vijayapura-586101.

6. Sunil S/o Sharanappa Ginni
   Age: 43 years, Occ: Business
   R/o Indi,
   Dist. Vijayapur-586101.
                                                          ... Respondents

(By Sri Sangangouda V. Biradar, Advocate for R1 to R5;
    Sri D.P. Ambekar, Advocate for R6)

       This Miscellaneous First Appeal is filed under Section 173(1) of
the Motor Vehicle Act, 1988, praying to call for the records and allow the
above appeal by setting aside the impugned Judgment and Award dated
23.11.2018 in MVC No.1249/2016 passed by the Motor Accident Claims
Tribunal, Vijayapura.

IN MFA No.202285/2019:

Between:

1. Bhimashankar S/o Shivamurtappa
   Awati, Age: 70 years, Occ: Nil

2. Gundawwa W/o Bhimashankar
   Awati Age: 63 years, Occ: Nil

3. Rekha W/o Shivanand Awati
   Age: 27 years, Occ: Household Work

4. Rohit S/o Shivanand Awati
   Age: 07 years, M/G by Appellant No.3
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5. Ranjeet S/o Shivanand Awati
   Age: 04 years, M/G by Appelalnt No.3

   All are R/o Tidagundi
   Tq. & Dist. Vijayapura-586101.
                                                          ... Appellants

(By Sri Sangangouda V. Biradar, Advocate)

And:

1. Sunil S/o Sharanappa Ginni
   Age: 43 years, Occ: Business
   R/o Indi,
   Dist. Vijayapur-586101.

2. The Branch Manager
   HDFC ERGO General Ins. Co. Ltd.,
   Shankar Narayan Building
   1st Floor, M.G. Road
   Bangalore-5600001
                                                       ... Respondents
(By Sri D.P. Ambekar, Advocate for R1)
    Smt. Preeti Patil Melkundi, Advocate for R2)

       This Miscellaneous First Appeal is filed under Section 173(1) of
the Motor Vehicle Act, 1988, praying to enhance the compensation
amount payable to the appellant by suitably modifying the judgment and
award dated 23.11.2018 passed by the Court of III Addl. Motor Accident
Claims Tribunal No.IV at Vijayapura in MVC No.1249/2016.

     These appeals coming on for Admission this day, S.R.Krishna
Kumar J., delivered the following:

                            JUDGMENT

These appeals are directed against the impugned

judgment and award dated 23.11.2018 passed in MVC

No.1249/2016 by the Motor Accident Claims Tribunal,

Vijaypaura (for short, 'the Tribunal') whereby the Tribunal

allowed the claim petition filed by the claimants who are

father, mother, wife and children of the deceased Shivanand

Awati who expired in a fatal road traffic accident that occurred

on 01.01.2016. By the impugned judgment and award, the

Tribunal came to the conclusion that the claimants are entitled

to compensation of Rs.9,59,000/- together with interest @ 6%

per annum from the date of petition till realization and by

directing the insurance company to pay the compensation in

favour of the claimants.

2. MFA No.200076/2019 is filed by the insurance

company while MFA No.202285/2019 is preferred by the

claimants.

3. Heard the learned counsel for the appellant-

insurance company, learned counsel for the respondent Nos.1

to 5-claimants and learned counsel for the respondent No.6,

the owner of the offending vehicle and perused the material

available on record.

4. The material on record indicates that it is the

specific contention of the insurance company that the

offending vehicle did not possess a valid or a requisite permit

as on the date of the accident and consequently the Tribunal

committed an error in fastening the liability to pay

compensation upon the insurance company. It is also

contended that the fitness certificate in respect of the

offending vehicle had expired as on the date of the accident.

It is also submitted that the quantum of compensation

awarded by the Tribunal is excessive and exorbitant and the

same deserves to be reduced by this court.

5. Per contra, learned counsel for the

claimants/respondent Nos.1 to 5 while supporting the

impugned judgment and award fastened the liability upon the

insurance company and submits that the quantum of

compensation awarded by the Tribunal is meager and

inadequate and same requires enhancement by this court.

6. So also, learned counsel for the respondent No.6,

the owner of the offending vehicle submits that the impugned

judgment and award passed by the Tribunal is correct and

proper and the same does not warrant any interference by this

court.

7. Learned counsel for the respondent No.6-owner

of the offending vehicle has filed a memo dated 22.02.2022

along with certain documents. However, the said documents

do not establish that the offending vehicle possessed a valid

and requisite permit and fitness certificate as on the date of

the accident.

8. Learned counsel for the respondent No.6 submits

that if one more opportunity is granted to the respondent No.6,

owner by setting aside the finding of the Tribunal that

offending vehicle did not possess a valid permit and fitness

certificate, the respondent No.6 would produce the same

before the Tribunal.

9. We have given our anxious consideration to the

rival submissions made at the Bar and perused the material

on record.

10. Insofar as the quantum of compensation is

concerned, a perusal of the impugned judgment and award

will indicate that the same is contrary to the decisions of the

Apex Court in National Insurance Company Limited vs. Pranay

Sethi and others reported in (2017) 16 SCC 680, Magma General

Insurance Company Limited vs. Nanu Ram Alias Chuhru Ram

and others reported in (2018) 18 SCC 130, Satinder Kaur @

Satwinder Kaur & Ors. v. United India Insurance Co.

Ltd. reported in AIR 2020 SC 3076 and Sarla Verma vs.

Delhi Transport Corporation reported in (2009) 6 SCC 121

and consequently the same deserves to be re-worked as

hereunder.

  1    Date of Accident                              01.01.2016
  2    Age of the deceased                             31 Years
  3    Occupation of the decease                       Business
  4    Income of the deceased                  Rs.15,000/- p.m.
  5    Income taken by the Tribunal              Rs.6,000/- pm.
  6    Actual income to be taken                      Rs.8,750/-
  7    Number of dependents                  05 (parents, wife, 2
                                                 minor children)




  8    Applicable deductions                                1/4th

       Loss of dependency
  10   8750x 40%                                  Rs.17,64,000/-
       8750+3500=12,250/-
       12250x12x16x3/4
  11   Other heads                                 Rs.2,30,000/-
                               Total amount       Rs.19,94,000/-

11. Insofar as the liability to pay compensation is

concerned, in view of the rival claims between the insurance

company which alleged breach of the terms and conditions of

the policy and the contention of the respondent No.6, owner

who contends that the vehicle was possessed a valid permit

and a fitness certificate as on the date of the accident, without

expressing any opinion on the merits/de-merits of the rival

contentions as regards the liability to pay the compensation,

we deem it just and proper to set aside the finding recorded by

the Tribunal only sofaras it relates liability and to pay

compensation and remand the matter back to the Tribunal for

re-consideration only to the said extent by re-working and

enhancing the compensation payable in favour of the

claimants.

12. In the result, we pass the following:

ORDER

i) Both the appeals i.e., MFA No.200076/2019 filed by the insurance company and MFA No.202285/2019 filed by the claimants are hereby allowed.

ii) The impugned judgment and award dated 23.11.2018 passed by the MACT, Vijayapura only insofar as it relates to the liability of the insurance company vis-à-vis the liability fastened on respondent No.6-Sunil, the owner of the offending vehicle is hereby set aside.

iii) The quantum of compensation awarded by the Tribunal is modified by directing to pay compensation of Rs.19,94,000/- together with interest @ 6% p.a. to the claimants from the date of petition till the realization as against Rs.9,59,000/-, awarded by the Tribunal.

iv) The matter is remitted back to the Tribunal for re-consideration afresh only insofar as it relates to the liability to pay compensation i.e., whether the insurance company is liable to pay the compensation or whether the respondent No.6 is liable to pay the compensation.

v) In the event, the Tribunal comes to the conclusion that there has been breach of the terms and conditions of the policy, the Tribunal shall direct the insurance company to pay the aforesaid compensation of Rs.19,94,000/-

together with interest as stated supra in favour of the claimants and liberty is reserved in favour of the insurance company to pay and recover the same from the owner of the offending vehicle.

vi) All the parties undertake to appear before the Tribunal on 21.03.2022, without expecting any further notice from the Tribunal.

vii) The amount/statutory amount in deposit is directed to be transferred to the Tribunal and same shall be kept in fixed deposit by the Tribunal till the disposal of the matter before the Tribunal pursuant to this order.

viii) The Tribunal is directed to conclude the proceedings within a period of six months from the date of receipt of copy of this order.

ix) All rival contentions only in relation to liability to pay the compensation are kept open to be decided by the Tribunal.

x) Liberty is reserved in favour of the parties to adduce additional oral and documentary evidence in support of their claims.

Sd/-

JUDGE

Sd/-

JUDGE BL