Karnataka High Court
D Srinivasulu S/Or Sri Ramulu vs K Prakash S/O Basanna Acharya on 19 July, 2022
Bench: Krishna S Dixit, P.Krishna Bhat
-1-
MFA No.25405 of 2011
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 19TH DAY OF JULY, 2022
PRESENT
THE HON'BLE MR JUSTICE KRISHNA S.DIXIT
AND
THE HON'BLE MR JUSTICE P.KRISHNA BHAT
MFA NO.25405 OF 2011 (MV)
BETWEEN:
1. D. SRINIVASULU S/O. R. SRI RAMULU,
AGE 43 YEARS, OCC: AGRICULTURE,
2. SMT. BALACHANNAMMA W/O. SRINIVASULU,
AGE 42 YEARS, OCC: AGRI. & HOUSEHOLD,
3. RAVI S/O. D. SRINIVASULU,
AGE 18 YEARS, OCC: STUDENT,
ALL ARE R/O.: JAYANAGAR,
GANGAVATHI, DIST.: KOPPAL.
... APPELLANTS
(BY SHRI MAHANTA GOUDA, ADVOCATE - ABSENT)
AND:
1. K. PRAKASH S/O. BASANNA ACHARYA,
Digitally
signed by
VISHAL
AGE 40 YEARS, OCC: DRIVER OF TRACTOR
NINGAPPA
VISHAL PATTIHAL NO. KA-37/T-5695,
NINGAPPA Location:
PATTIHAL DHARWAD
Date:
R/O.: AMARAVATHI, 15TH WARD,
2022.07.20
14:40:02
+0530
NEAR CHANDRAMOULASHWARATEMPLE,
HOSPET, BELLAY.
-2-
MFA No.25405 of 2011
2. SMT. N. NAGAMANI W/O. SURYANARAYANARAO,
AGE 35 YEARS, OCC: OWNER OF TRACTOR
NO. KA-37/T-5695,
R/O.: SANGAPUR, TQ.: GANGAVATHI
DISTRICT KOPPAL.
3. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
RAICHUR.
... RESPONDENTS
(BY SHRI GANGADHAR S.HOSAKERI, ADVOCATE FOR R1;
SHRI S.C. JAINAR, ADVOCATE FOR R2;
RESPONDENT NO.1 - SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF M.V.
ACT, AGAINST THE JUDGMENT AND AWARD DATED
28.04.2011, PASSED IN MVC NO.310/2010 ON THE FILE
OF THE SENIOR CIVIL JUDGE & MACT AT GANGAVATHI,
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS MFA COMING ON FOR FINAL HEARING, THIS
DAY, P.KRISHNA BHAT, J., DELIVERED THE FOLLOWING.
JUDGMENT
1. This appeal is at the instance of the
claimants seeking enhancement of compensation
awarded by the learned Senior Civil Judge & MACT at
Gangavathi in the Judgment & Award dated 28th April,
2011 in MVC No.310/2009.
MFA No.25405 of 2011
2. Brief facts of the case are that on
13.09.2009 at about 11:00 a.m. near Panjabi Dhaba
Hotel, Haveri Road, while the deceased was
proceeding on TVS Motorcycle bearing registration
No.KA-37/K-5797 as a pillion rider, offending Tractor
bearing registration No.KA-37/T-5695 with its driver
driving in a rash and negligent manner and in high
speed came and dashed against the motorcycle,
resulting in death of the deceased.
3. On claim petition being filed, the driver and
owner (respondent Nos.1 & 2 before the learned
MACT) remained exparte and only the Insurance
Company resisted the claim petition by filing detailed
statement of objections.
4. During the trial, claimant No.2 examined
herself as PW1 and also examined another witness as
PW2. Exs.P1 to P17 were marked. Respondents did
not examine any witnesses but marked Insurance
Policy as Ex.R1.
MFA No.25405 of 2011
5. After hearing the learned counsel on both
sides and perusing the records, learned MACT allowed
the claim petition in part awarding compensation in a
sum of Rs.3,04,000/- with interest thereon at the rate
of 6% p.a. from the date of the petition till date of
payment. The liability to pay the compensation was
fastened on the driver and owner of the offending
Tractor with the Insurance Company being exonerated
completely from the liability of paying compensation.
6. In support of the appeal, amongst others, it
is urged that the compensation awarded by the
learned MACT is on the lower side by taking the
notional income of the deceased at a lower sum of
Rs.3,000/- per month and also denying the component
of loss of future prospects. It is also contended that
the learned MACT has committed an error in
exonerating the Insurance Company from the liability
to pay the compensation in view of decision in
MUKUND DEWANGAN vs. ORIENTAL INSURANCE
MFA No.25405 of 2011
COMPANY LIMITED1. It is, therefore, urged that the
appeal is liable to be allowed.
7. Shri S.C. Jainar, learned counsel for the
Insurance Company submitted that the learned MACT
was right in exonerating the Insurance Company
inasmuch as at the time Judgment & Award was
passed by the learned MACT, it had followed the
settled position of law as it then prevailed and the
decision in the case of MUKUND DEWANGAN
(Supra) having been rendered subsequently and
therefore, since the driver of the offending vehicle was
not in possession of valid and effective driving licence,
that being a breach of policy conditions, the Insurance
Company was not liable to pay the compensation. He
therefore, submits that there is no merit in the appeal
and it is liable to be dismissed.
8. To deal with the first ground urged on
behalf of the appellants, it is necessary to determine
(2017) 14 SCC 663
MFA No.25405 of 2011
the just compensation the claimants are entitled to
receive. Learned MACT has taken the notional income
of the deceased at Rs.3,000/- per month and the
accident having taken place in the year 2009, as per
the Chart prepared by the Karnataka State Legal
Services Authority, the notional income for the said
year is Rs.5,000/- per month. The deceased was aged
about 24 years at the time of accident and therefore,
appropriate multiplier applicable is 18 for his age.
There is no dispute about the fact that he was
unmarried and therefore, 50% of his income is
required to be deducted towards personal expenses of
the deceased. In view of decision of Constitution
Bench of the Hon'ble Supreme Court in NATIONAL
INSURANCE COMPANY LIMITED vs. PRANAY
SETHI AND OTHERS2, 40% of the income is required
to be added towards loss of future prospects.
Therefore, the loss of dependency is required to be
(2017) 16 SCC 680
MFA No.25405 of 2011
recomputed as Rs.7,56,000/- (Rs.5,000 + 40% x 12
x 18 x 1/2).
9. Since the deceased has left behind his
parents, Rs.80,000/- is required to be awarded
towards 'filial consortium' and another sum of
Rs.30,000/- is required to be awarded under the
head of 'funeral expenses & loss of estate'.
10. Thus, in all the claimants would be entitled
to a total compensation of Rs.8,66,000/- as against
Rs.3,04,000/- awarded by the learned MACT along
with interest at the rate of 6% p.a. from the date of
claim petition till the date of deposit.
11. Since appellant No.3 cannot be regarded as
either a legal representative of the deceased or as a
dependent on him, the entire compensation is payable
to appellant Nos.1 & 2 only.
12. The next important question that falls for
consideration is, as to whether the Insurance
MFA No.25405 of 2011
Company is not liable to pay the compensation
amount on account of the fact that the driver of the
offending Tractor was in a possession of only LMV
driving licence and not for driving the Tractor.
However, contention of the learned counsel for the
Insurance Company in this behalf and the
consideration of the correctness of the finding of the
learned MACT on this aspect pales into insignificance
after the decision of the Hon'ble Supreme Court in the
case of MUKUND DEWANGAN3, and the Insurance
Company cannot disclaim its liability to pay the
compensation, since the Tractor also belongs to the
class of vehicle, which is LMV itself.
13. In the above circumstances, we pass the
following:
ORDER
(i) The appeal is allowed in part. The Judgment &
Award dated 28th April 2011, passed by the Senior
Civil Judge & MACT, Gangavathi in MVC No.310/2009
(2017) 14 SCC 663
MFA No.25405 of 2011
is modified to the extent that the claimants i.e.,
appellants Nos.1 & 2 are entitled to total
compensation of Rs.8,66,000/- as against
Rs.3,04,000/- awarded by the learned MACT.
(ii) The enhanced compensation amount shall carry
interest at the rate of 6% p.a. from the date of claim
petition till the date of deposit.
(iii) The respondent Insurance Company is directed
to deposit the entire compensation amount along with
interest within six weeks from today.
(iv) The Registry to send back the TCR to the learned
MACT and also send a copy of this Judgment to the
claimants i.e., appellant Nos.1 & 2 forthwith. No costs.
Sd/-
JUDGE
Sd/-
JUDGE
Vnp*
