Karnataka High Court

Smt.Khasim Bee vs Mohammed Mustafa on 14 January, 2022

Bench: S G Pandit, Anant Ramanath Hegde

         IN THE HIGH COURT OF KARNATAKA,
                  DHARWAD BENCH

       DATED THIS THE 14TH DAY OF JANUARY 2022

                        PRESENT

        THE HON'BLE MR. JUSTICE S.G. PANDIT

                         AND

 THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

                 MFA No.100723/2016
                         C/W.
           MFA CROB. NO.100135/2016 (MV)

IN MFA NO.100723/2016

BETWEEN:

THE DIVISIONAL MANAGER,
SREERAMA GENERAL INSURANCE
COMPANY LIMITED, NO.3-5, 2ND FLOOR,
MONARCH CHAMBERS,
INFANTRY ROAD, BENGALURU.
NOW REPRESENTED BY ITS
AUTHORIZED SIGNATORY,
SHRIRAM GENERAL INSURANCE
COMPANY LTD., NO.5/4, 3RD FLOOR,
S V ARCADE, BELEKAHALLI MAIN ROAD
OPP. BENNURUGHATTA ROAD,
IIMB POST, BENGALURU-560076.
                                           ...APPELLANT
(BY SRI.S K KAYAKAMATH, ADVOCATE)

AND

1.    SMT.KHASIM BEE,
      W/O LATE SHASHAVALI,
      AGE: 24 YEARS,
                           2



2.   MINOR TAYABBA,
     D/O LATE SHASHAVALI,
     AGE: 3 YEARS 3 MONTHS,
     SINCE MINOR REPRESENTED BY HER
     NATURAL GUARDIAN MOTHER
     I.E. RESPONDENT NO.1.

3. KURSHID BEE W/O LATE MILITARY MOHIDDIN, AGE: 53 YEARS,

4. SHAIKSHAVALI S/O LATE MILITARY MOHIDDIN, AGE: 20 YEARS,

5. SHAHENA D/O LATE MILITARY MOHIDDIN, AGE: 19 YEARS,

ALL ARE R/O: WARD NO.3, NEAR OLD POLICE STATION, TEKKALAKOTE TOWN, SIRUGUPPA TALUK, BALLARI DISTRICT.

6. MOHAMMED MUSTAFA S/O MOHIDDIN SAB, AGE: 31 YEARS, DRIVER OF THE LORRY BEARING REGISTRATION NO.

AP-31/V-8546, R/O: MUBARAK MOHALLA, MOLAKALMRU, CHITRADURGA DISTRICT

7. ABDUL GAFOOR K.R.

S/O K.ABDUL RAJAK SAB, AGE: 28 YEARS, OWNER OF THE LORRY BEARING REGISTRATION NO.

AP-31/V-8546, R/O: BHAGYAJYOTHINAGAR,

MOLAKALMRU, CHITRADURGA DISTRICT.

...RESPONDENTS (BY SRI.Y.LAKSHMIKANT REDDY, ADVOCATE FOR R1-5)

THIS APPEAL IS FILED U/S.173(1) OF MOTOR VEHICLES ACT 1988, AGAINST THE JUDGMENT & AWARD DATED:06.11.2015, PASSED IN MVC.NO.716/2013 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL - II, BALLARI, AWARDING THE COMPENSATION OF RS.8,00,000/- WITH INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF PETITION TILL ITS REALISATION.

IN MFA CROB. NO.100135/2016

BETWEEN

1. SMT.KHASIM BEE W/O LATE SHASHAVALI, AGE: 24 YEARS, R/O: WARD NO.3, NEAR OLD POLICE STATION, TEKKALAKOTE TOWN, SIRUGUPPA TALUK, BALLARI DISTRICT. 583103

2. MINOR TAYABBA D/O LATE SHASHAVALI, AGE: 3 YEARS 3 MONTHS, REP. BY MOTHER KHASIM BEE, R/O: WARD NO.3, NEAR OLD POLICE STATION, TEKKALAKOTE TOWN, SIRUGUPPA TALUK, BALLARI DISTRICT. 583103

3. KURSHID BEE W/O LATE MILITARY MOHIDDIN, AGE: 53 YEARS, R/O: WARD NO.3, NEAR OLD POLICE STATION, TEKKALAKOTE TOWN,

SIRUGUPPA TALUK, BALLARI DISTRICT. 583103

4. SHAIKSHAVALI S/O LATE MILITARY MOHIDDIN, AGE: 20 YEARS, R/O: WARD NO.3, NEAR OLD POLICE STATION, TEKKALAKOTE TOWN, SIRUGUPPA TALUK, BALLARI DISTRICT. 583103

5. SHAHENA D/O LATE MILITARY MOHIDDIN, AGE: 19 YEARS, R/O: WARD NO.3, NEAR OLD POLICE STATION, TEKKALAKOTE TOWN, SIRUGUPPA TALUK, BALLARI DISTRICT. 583103 ...CROSS OBJECTORS (BY SRI.Y LAKSHMIKANT REDDY, ADVOCATE)

AND

1. MOHAMMED MUSTAFA S/O MOHIDDIN SAB, AGE: 31 YEARS, DRIVER OF THE LORRY BEARING REGISTRATION NO.

AP-31/V-8546, R/O: MUBARAK MOHALLA, MOLAKALMRU, CHITRADURGA DISTRICT 571081

2. ABDUL GAFOOR K.R.

S/O K.ABDUL RAJAK SAB, AGE: 28 YEARS, OWNER OF THE LORRY BEARING REGISTRATION NO.

AP-31/V-8546, R/O: BHAGYAJYOTHINAGAR,

MOLAKALMRU, CHITRADURGA DISTRICT.

571081

3. THE DIVISIONAL MANAGER, SREERAMA GENERAL INSURANCE COMPANY LIMITED, NO.3-5, 2ND FLOOR, MONARCH CHAMBERS, INFANTRY ROAD, BENGALURU. 560202 ...RESPONDENTS

(BY SRI.S.K.KAYAKAMATH, ADVOCATE FOR R3, NOTICE TO R1 & 2 IS DISPENSED WITH)

THIS MFA.CROB. IN MFA NO.100723/2016 IS FILED U/O

41 RULE 22 OF CPC., 1908, AGAINST THE JUDGMENT AND

AWARD DATED 06.11.2015 PASSED IN MVC NO.716/2013 ON

THE FILE OF THE MEMBER, MOTOR ACCIDENT CLAIMS

TRIBUNAL-II, BALLARI, PARTLY ALLOWING THE CLAIM

PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT

OF COMPENSATION.

THESE APPEALS AND CROSS-OBJECTIONS COMING ON

FOR FINAL HEARING, THIS DAY,

ANANT RAMANATH HEGDE J., DELIVERED THE FOLLOWING:

COMMON JUDGEMENT

The death of Shashavali on account of a motor

vehicle accident that occurred on 16.03.2013 is the cause

of action for dependents of late Shashavali to seek

compensation. Their petition in MVC No.716/2013 on the

file of the Motor Accident Claims Tribunal-II, Ballary (for

short, 'the Tribunal') claiming compensation of

Rs.49,50,000/- is allowed in part and compensation of

Rs.8,00,000/- is awarded in favour of the claimants.

2. Aggrieved by the said judgement and award,

the insurer of the vehicle bearing Reg.No.AP-31/V-8546

has filed MFA No.100723/2016 taking an exception to the

judgement and award. To the extent of rejection of the

claim of the petitioners, MFA Cross-objection

No.100135/2016 is filed by the claimants for enhancement

of compensation.

3. Heard learned counsel for the contesting

parties on merits.

4. The brief facts necessary for adjudication of

this case are summarized as under:

4.1 The deceased Shashavali on 16.03.2013 was

travelling from Siruguppa to Sindhanur in a lorry bearing

Reg.No.KA-27/A-4576 and said to be the cleaner of the

said lorry. According to the claimants, around 2:30 a.m.,

when the lorry was passing through J.G. Halli village in

Hiriyur taluk, the rear side wheel of the lorry burst and the

lorry was parked on the left side of the road to replace the

tyre. It is alleged by the claimants that

when Shashavali was replacing the tyre, the lorry bearing

Reg.No.AP-31/V-8546 dashed him resulting in the spot

death of Shashavali. Pursuant to the complaint, FIR in

Crime No.60/2013 is registered against respondent No.1

before the Tribunal who is the driver of the lorry bearing

Reg.No.AP-31/V-8546.

4.2 According to the claimants deceased was aged

23 years and was earning Rs.7,000/- per month as salary

and in addition to that was earning Rs.100/- per day as

batta. Petitioner No.1 before the Tribunal is the wife,

petitioner No.2 is the minor daughter, petitioner No.3 is

the mother, petitioner No.4 is the minor brother and

petitioner No.5 is the minor sister of the deceased.

4.3 Before the Tribunal, respondent No.1-driver

remained exparte. Respondent No.2 did not file a

statement of objection in time and his application seeking

permission to file a written statement at a later stage was

rejected. Respondent No.3-insurer contested the claim by

filing a statement of objection. Except admitting the

coverage in respect of lorry bearing Reg.No.AP-31/V-8546,

subject to just exceptions the insurer has denied all other

contentions. It is the stand of the insurer that the vehicle

did not have the necessary permit to ply on the public road

and the insurer denies the liability to pay the

compensation.

5. After conducting the trial, the Tribunal

concluded that respondent No.1-driver was rash and

negligent and is responsible for the accident and

consequent death of Shashavali. This finding is based on

materials placed on record particularly, complaint, FIR and

panchnama.

6. In deciding the quantum of compensation, the

Tribunal has taken the income of the deceased at

Rs.5,000/- per month. The Tribunal has adopted a

multiplier of 18 and deducted 1/3rd towards the personal

expenditure of the deceased and has awarded

compensation of Rs.7,20,000/- under the head of loss of

dependency. The Tribunal has further awarded Rs.20,000/-

under each of the heads namely, loss of expectancy of life,

loss of consortium, funeral expenses and loss of love and

affection. The Tribunal has also awarded interest at the

rate of 6% per annum on the compensation from the date

of petition till the date of realisation.

7. Learned counsel for the appellant-insurer has

also filed an application Order XLI Rule 27 of CPC to

produce additional documents namely endorsement dated

03.02.2016 issued by the Regional Transport Officer,

Chitradurga and also registration certificate of the vehicle

bearing Reg.No.AP-31/V-8546. From the endorsement

dated 03.02.2016, it is evident that the vehicle in question

had the permit to ply the vehicle from 10.04.2013 to

09.04.2018 and earlier to that, there was no permit to ply

the said vehicle. The accident in question took place on

16.03.2013 when there was no permit. Placing reliance on

this document, learned counsel for the appellant-insurer

would contend that, the insured violated the terms and

conditions of the policy and based on this would contend

that there is no liability on the insurer to pay the

compensation.

8. Alternatively, he would contend that in case

the insurer is found liable to pay the compensation, then

the right to recover the said amount from the owner is to

be conferred on the insurer.

9. Learned counsel for the cross-objectors would

contend that breach if any committed by the owner is not

a fundamental breach which would absolve the Insurance

Company from its liability and placing reliance on the

judgement of the Hon'ble Apex Court in Amrit Paul Singh

and another vs. TATA AIG General Insurance

Company Limited and others reported in AIR 2018 SC

2662, it is urged by cross-objectors that even if there is

any violation of the rules relating to permit, the liability of

the insurer vis-a-vis the claimants is still available for

enforcement and insurer is bound to pay the compensation

payable.

10. Elaborating on the grounds urged in the cross-

objection seeking enhancement of the compensation, it is

urged by the cross-objectors that the Tribunal ought to

have taken Rs.7,000/- per month as the income of the

deceased. It is further contended that the Tribunal has not

taken into consideration the future prospects of the

deceased and it is also urged that deduction of 1/3rd

towards the personal expenditure of the deceased is also

erroneous and given the fact that the deceased is survived

by five dependents, 1/4th should have been deducted

towards the personal expenditure of the deceased. It is

also urged that the award of compensation on conventional

heads is contrary to the law declared by the Hon'ble Apex

Court in the matter of National Insurance Company

Limited Vs. Pranay Sethi and others reported in

(2017) 16 SCC 680.

11. We have considered the materials on record

and the contentions raised at the bar. It is borne out from

the records that the documentary evidence is not available

to assess the income of the deceased. Admittedly, the

accident took place in the year 2013. In the absence of

proof relating to income based on the chart prepared by

the Karnataka State Legal Services Authority, this Court

would take Rs.7,000/- per month as the income and since

the deceased was aged 23 years 40% is added towards

future prospects to the income of the deceased and 1/4th is

to be deducted towards the personal expenditure of the

deceased. Thus, the dependency would be,

Rs.7,000 (income per month) + Rs.2,800 (40% addition towards future prospects) = 9,800 - 1/4th (deduction towards personal expenditure) = 7,350

7,350 x 12 (months) x 18 (multiplier) = Rs.15,87,600/-

Accordingly, the claimants would be entitled to

Rs.15,87,600.00 on the head of dependency.

12. The compensation awarded by the Tribunal

under the conventional heads is not in conformity with the

ratio laid down in the case of Pranay Sethi (supra) and

Magma General Insurance Co.Ltd Vs Nanu Ram and

Others (2018 ACJ 2782).

13. It is also noticed that among the claimants two

of them are sisters of the deceased. The judgments

referred supra do not discuss the compensation payable to

the sisters of the deceased. Because the sisters were aged

20 and 19 at the time of the accident, would have spent

time together with the brother in their maternal home till

they are married and considering the fact that they will be

missing the brother's love and affection for the rest of their

life, we deem it appropriate to award Rs.25,000.00 each

to the sisters under the head loss of consortium.

14. Thus, the compensation under conventional

heads needs to be modified as indicated in the chart

below:

                        Heads                       Amount in
                                                      (Rs.)
         Loss of dependency                        15,87,600.00
         (7,000 + 40% = 9,800 - 1/4th =
         7,350

7,350 x 12 x 18 = Rs.15,87,600/- Loss of estate and funeral expenses 30,000.00 Loss of consortium (40,000 x 3, wife, 1,20,000.00 minor daughter and mother) Loss of consortium (25,000 x 2 50,000.00 sisters) Total 17,87,600.00

15. Thus, the claimants are entitled to

Rs.17,87,600.00 as against Rs.8,00,000.00. The

compensation shall carry interest at the rate of 6% p.a.

from the date of petition till the date of realization.

Accordingly, the cross-objection is to be allowed in part

and the judgement and award of the Tribunal are to be

modified to that extent.

16. As regards the contention of the insurer

relating to the permit not being with the owner of the lorry

to ply the lorry, this Court is of the view that the said

breach on the part of the owner does not absolve the

liability of the insurer as against the claimants. In terms of