Gangawwa Balappa Kamati vs Abdul Kalam
2022 Latest Caselaw 985 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

      DATED THIS THE 21 S T DAY OF JANUARY, 2022

                        BEFORE

     THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY

              M.F.A. No.21340/2013 (MV)

BET WEEN

1.    SMT.GANGAWWA BALAPPA KAMATI,
      AGE: 45 YEARS,
      OCC: HOU SEHOLD WORK,
      R/O B ASAPUR, TQ: HUKKERI,
      DIST: B ELAGAVI.

2.    SHRI MANJ UNAT H B ALAPPA KAMATI,
      AGE: 22 YEARS,
      OCC: AGRICULTU RE,
      R/O B ASAPUR, TQ: HUKKERI,
      DIST: B ELAGAVI.

3.    SHRI MALAP PA B ALAPPA KAMATI,
      AGE: 19 YEARS, OCC: STUDENT ,
      R/O B ASAPUR, TQ: HUKKERI,
      DIST: B ELAGAVI.

4.    KUMAR VITHAL BALAPPA KAMATI,
      AGE: 17 YEARS, OCC: STUDENT ,
      R/O B ASAPUR, TQ: HUKKERI,
      DIST: B ELAGAVI.
      (SINCE MINOR R/B Y APPEL LANT NO.1
      WHO IS T HE MOTH ER OF APPELLANT NO.4)

5.    SMT.DUNDAWWA B EERASIDDAPPA KAMATI,
      AGE: 67 YEARS,
      OCC: HOU SEHOLD WORK,
      R/O B ASAPUR, TQ: HUKKERI,
      DIST: B ELAGAVI.
                                      ...APPELLANTS

(BY SRI SANTOSH B.RAWOOT , ADVOCATE)
                                2




AND

1.    STEIL ABDUL KALAM,
      S/O S.MAHABOOBSAB,
      AGE: MAJOR, OCC: BUSINESS,
      R/O -6/500, 6 T H WARD,
      HOLAGUNDA (V.M.)
      KURNOOL DISTR ICT,
      ANDHRA PRADESH STATE.

2.    THE MANAGER,
      CHOLAMANDALAM MS GENERAL
      INSURANCE COMPANY LIMITED,
      OFFICE AT 1 S T FLOOR,
      KALB U RGI SQUARE,
      DESHPANDE NAGAR, HUBB ALLI,
      DISTR ICT: DHARWAD.
                                                  ...RESPONDENTS

(BY MISS ANU SHA SANGAMI, ADVOCATE FOR
 SRI S.K.KAYAKAMATH, ADVOCATE FOR R2;
 NOTICE TO R1 HELD SUFFICIENT)

     THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE J UDGMENT AND AWARD DATED 29.01.2 013 PASS ED IN
MVC No.2601/ 20 11 ON THE FILE OF T HE III ADDIT IONAL
SENIOR CIV IL JU DGE AND ADDIT IONAL MOT OR ACCIDENT
CLAIMS TRIB UNAL, B ELAGAV I, P ARTLY ALL OWING THE
CLAIM   PET IT ION FOR  COMPENSAT ION   AND   S EEKING
ENHANCEMENT OF COMPENSATION.

     THIS APPEA L COMING ON FOR ADMISSION, TH IS DAY
THE COU RT DELIVERED THE FOLL OWING:

                           JUDGMENT

The claimants have p referred this appeal

challenging the judgment and award dated

29.01.2013 passed by the Court of III Addl.Senior

Civil Judge and Addl. M.A.C.T., Belagavi (hereinafter

referred to as the 'Tribunal', for brevity) in MVC

No.2601/2011.

2. Though this appeal is listed for admission,

with the consent of the learned counsels appearing

for the parties, the appeal is taken up for final

disposal. The parties to this appeal are referred to by

their rankings before the Tribunal for the purpose of

convenience.

3. Brief facts of the case that would be

relevant for the purpose of disposal of this appeal

are:

The deceased Balappa Birasiddappa Kamate and

his relative had gone to Holagunda village for

marketing on 19.10.2010. When they were returning

to their village on a motorcycle bearing registration

No.KA-34/J-3983 the offending piaggio vehicle

bearing registration No.AP-21/TU-1869 which was

driven by its driver in a rash and negligent manner

dashed against the motorcycle in which the deceased

and another were traveling and as a result, in the

said accident, deceased who had sustained grievous

injuries subsequently succumbed to the same in the

hospital. The claimants who are the wife, children

and mother of the deceased had filed a claim petition

under Section 166 of the Motor Vehicles Act, 1988

(for short, the 'Act') claiming compensation of

`10,00,000/- with interest from the owner and

insurer of the offending piaggio vehicle in respect of

the death of deceased Balappa in the road traffic

accident that had taken place on 19.10.2010. The

said claim petition was partly allowed by the Tribunal

and compensation amount of `5,54,100/- was

awarded to the claimants with interest at 9% per

annum from the date of petition till realization. The

1 s t respondent who was the owner of the offending

piaggio vehicle was saddled with the liability to pay

the compensation amount on the ground that the

driver of the vehicle was not holding valid driving

licence at the time of accident. Being aggrieved by

the same, the claimants have preferred this appeal

questioning the impugned judgment and award on the

ground of liability as well as on the quantum of

compensation.

4. Learned counsel for the claimants submits

that the Tribunal was not justified in absolving the

insurer of the offending vehicle from paying the

compensation amount. He submits that the claimant

is a third party and therefore the Tribunal ought to

have saddled the liability jointly and severally on the

owner and insurer of the vehicle and even if the

driver of the offending vehicle did not possess a valid

licence, the Tribunal ought to have directed the

insurer to pay and recover the compensation amount.

He has also relied upon the judgment of full bench of

this Court in the case of New India Assurance

Company Limited V/s Yallavva and another

reported in 2020(2) KCCR 1405 (FB) and submits

that the Tribunal ought to have directed the insurer

of the offending vehicle to pay and recover the

compensation amount.

5. Per contra, learned counsel appearing for

the insurer submits that the impugned judgment and

award passed by the Tribunal is just and proper and

needs no interference. He submits that the Tribunal

had recorded a finding that the driver of the

offending vehicle did not have valid licence and

therefore the Tribunal had saddled the liability on the

owner. However he does not dispute that in view of

the judgment in Yallavva's case, the Tribunal is

required to pay the compensation and recover the

same from the owner.

6. I have carefully appreciated the arguments

addressed on both sides and also perused the

material available on record.

7. The undisputed facts of the case are that

on 19.10.2010, the deceased had met with an

accident, wherein the piaggio vehicle bearing

registration No.AP-21/TU-1869 was involved, which

belonged to the 1 s t respondent and which was validly

insured by the 2 n d respondent as on the date of

accident. It is not in dispute the deceased who had

suffered injuries in the said accident subsequently

succumbed to the same. It is the specific case of the

respondent-insurer that the driver of the offending

vehicle was not holding a valid licence as on the date

of accident. The material on record would go to show

that inspite of notices issued by the insurer to the

owner of the vehicle; he had failed to furnish copy of

the driving licence of the offending vehicle either to

the insurer or to the Court. The insurer had filed an

application before the Tribunal under Order-XVI Rule-

VI read with Section 151 of CPC on 16.08.2012 with a

prayer to direct the owner and driver of the offending

vehicle bearing registration No.AP-21/TU-1869 to

produce the driving licence of the driver. The

Tribunal had allowed the said application and issued

summons to the owner as well as the driver of the

offending vehicle. The 1st respondent-owner had

refused to receive the summons while the summons

issued to the driver had returned un-served. The 1 s t

respondent who was served with the summons in the

main matter had not participated in the proceedings

and therefore he had been placed ex-parte. Having

regard to all these aspects of the matter, the

Tribunal has drawn the adverse inference as against

the owner of the offending vehicle bearing

registration No.AP-21/TU-1869 and has held that the

driver of the said vehicle was not holding valid and

effective driving licence at the time of accident in

question. Even if that is so the Tribunal ought not to

have absolved the liability of the insurer of the

offending vehicle to pay the compensation to the

claimant, who is a 3 r d party. The Full Bench of this

Court in the case of Yallavva's has held that even if

the Insurance Company establishes that insured has

committed breach of policy, the insurer is liable to

satisfy the award and he is entitled to recover the

same from the insured. Therefore, I am of the

considered view that having regard to the Judgment

of the Full Bench of this Court in Yallavva's case,

the insurer cannot be completely exonerated from

paying the compensation amount to the claimants

and therefore I hold that the 2 n d respondent-Insurer

is liable to pay the compensation amount to the

claimants and thereafter recover the same from the

Insured-owner of the offending vehicle bearing

registration No.AP-21/TU-1869.

8. Insofar as the quantum of compensation

awarded to the claimants is concerned, the accident

had taken place in the year 2010 and the deceased

was aged about 45 years as on the date of accident.

The notional income of the deceased, having regard

to the income chart maintained by the Karnataka

Legal Services Authority for the purpose of disposal

of motor accident cases in the Lok-Adalath ought to

have been taken at `5,500/- per month as against

`4,000/- per month considered by the Tribunal.

Considering the age of the deceased as 45 years, the

proper multiplier applicable would be 14. 25% of the

income of the deceased is required to be taken into

consideration towards the loss of his future

prospects. Out of the total income, 1/4 t h of the same

is required to be deducted towards the personal

expenses of the deceased. In the said event, the

claimants are entitled for a sum of `8,66,376/-

towards the loss of dependency as against

`5,04,000/- awarded by the Tribunal. Towards loss of

consortium, loss of love and affection, loss of filial

love, etc., the claimants are entitled for a sum of

`40,000/- each. In addition to the same, they are

also entitled for a sum of `30,000/- towards funeral

expenses and loss of estate. Therefore, under the

conventional heads, claimants are entitled for a sum

of `2,30,000/- and in all the claimants are entitled

for a sum of `10,96,376/- towards compensation as

against `5,44,100/- awarded by the Tribunal.

9. The claimants are entitled for interest at

the rate of 6% per annum from the date of petition

till realization. Since it has been held that the insurer

shall pay and recover the compensation amount, the

insurer shall deposit the entire amount of

compensation with interest at the rate of 6% per

annum before the Tribunal within a period of eight

weeks from the date of receipt of a certified copy of

this order.

The order passed by the Tribunal insofar as it

relates to apportionment, disbursement and the

deposit, etc., remains unaltered.

The Miscellaneous First Appeal is accordingly

partly allowed.

Sd/-

JUDGE

CLK /c k k