Karnataka High Court
The Branch Manager vs S M Siddalingayya Swamy on 25 July, 2022
Bench: H.P.Sandesh
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MFA No. 24547 of 2012
C/W MFA No. 24668 of 2012
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 24547 OF 2012 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 24668 OF 2012
IN M.F.A.No.24547/2012
BETWEEN:
1. THE BRANCH MANAGER
NATIONAL INSURANCE CO. LTD.,
REPRESENTED. THROUGH ITS REGIONAL OFFICE,
ARIHANT PLAZA, 2ND FLOOR,
KUSUGAL ROAD, HUBLI,
BY ITS DEPUTY MANAGER.
... APPELLANT
(BY SHRI.N.R.KUPPELUR, ADVOCATE)
AND:
1. S M SIDDALINGAYYA SWAMY
S/O. S.M. VEERABHADRAYYA SWAMY AGE: 50 YEARS,
OCC: AGRICULTURER/O. CHANAL VILLAGE, TQ and
DIST: BELLARY
Digitally signed
J
by J MAMATHA
Location:
2. S.M. VEERAYYA SWAMY
Dharwad
MAMATHA Date:
2022.07.27
S/O. SIDDALINGAYYA SWAMY AGE: 19 YEARS, OCC:
11:36:04 +0530
STUDENT, R/O. CHANAL VILLAGE, TQ and DIST:
BELLARY
3. U.M. NEELAKANTHA S/O. RUDRAYYA SWAMY
AGE: MAJOR, OCC:BUSINESS, R/O. CHANAL VILLAGE,
-2-
MFA No. 24547 of 2012
C/W MFA No. 24668 of 2012
TQ and DIST: BELLARY
4. P.M. SOMASHEKHAR @ PITALU SOMANNA SWAMY
S/O. MALLAYYA, AGE: MAJOR,R/O. CHANAL VILLAGE,
TQ and DIST: BELLARY
...RESPONDENTS
(BY SRI.Y.LAKSHMIKANT REDDY, ADV. FOR R1 AND R2,
R3 AND R4 ARE SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT 1988,
AGAINST THE JUDGMENT AND AWARD DATED:19-07-2012
PASSED IN MVC NO.86/2012 ON THE FILE OF MEMBER,
MACT-XII, BELLARY, AWARDING THE COMPENSATION OF
RS.4,18,176/- WITH INTEREST AT THE RATE OF 7% P.A. FROM
THE DATE OF PETITION TILL ITS DEPOSIT.
IN M.F.A.No.24668/2012
BETWEEN
1. S.M. SIDDALINGAIAH SWAMY,
W/O LATE S.M. VEERABHADRAIAH SWAMY,
AGED: ABOUT 50 YEARS,
2. S.M. VEERESH SWAMY,
S/O S.M.SIDDALINGAIAH SWAMY,
AGED: ABOUT 19 YEARS,
BOTH ARE R/O: CHANALU VILLAGE,
TALUK: BELLARY, DIST:BALLARI.
..APPELLANTS
(BY SHRI Y LAKSHMIKANT REDDY, ADV.)
AND
1. U.M. NEELAKANTA S/O RUDRAIAH SWAMY,
AGED: MAJOR, OWNER OF THE MOTOR
CYCYLE,BEARING REG.NO.KA-34/V-2965
R/O: CHANAL VILLAGE, TALUK: BELLARY.
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MFA No. 24547 of 2012
C/W MFA No. 24668 of 2012
DIST:BALLARI.
2. THE BRANCH MANAGER,
NATIONAL INSURANCE CO. LTD.,
BELLARY.
RESPONDENTS
(BY SHRI N.R.KUPPELUR, ADV. FOR R2,
R1 SERVED)
THIS IS MFA FILED U/S 173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED:19.07.2012 PASSED IN MVC
NO.86/2012 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS
TRIBUNAL -XII, AT BELLARY, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING.
JUDGMENT
Heard the learned counsel appearing for the parties in
M.F.A.No.24547/2012 and M.F.A.No.24668/2012. As
M.F.A.No.24668/2012 is admitted and M.F.A.No.24547/2012 is
not admitted, with the consent of both the learned counsel, the
appeals are taken up for final disposal on merits.
2. The factual matrix of the case of the claimants
before the Tribunal are that the 1st petitioner is the husband
and the 2nd petitioner is the son of the deceased. On
MFA No. 24547 of 2012
C/W MFA No. 24668 of 2012
03.08.2011 at 11.45 a.m. when the deceased was proceeding
on a motorcycle bearing registration No.KA-34/V-2965 along
the 1st respondent as a pillion rider, as the 1st respondent rode
the said motorcycle in a rash and negligent manner as a result
of which the deceased/pillion rider fell down and sustained
severe injuries and immediately was shifted to VIMS Hospital,
Ballari and while taking treatment, on 05.08.2011, she
succumbed to the injuries. Hence, the claimants have filed
claim petition seeking compensation on the ground that the
deceased was a housewife and doing agricultural coolie work
and earning Rs.10,000/- p.m. and she used to contribute the
said earnings to the family and consequent upon her death,
they had suffered the loss. Respondent No.1 and respondent
No.2 being the rider and the owner remained unrepresented
and did not contest the matter. However, respondent
No.3/Insurance Company contested the matter by filing
objection statement before the Tribunal.
3. The claimants got examined the 1st petitioner as
PW-1 and also got marked documents Ex.P.1 to Ex.P.7. On the
other hand, respondents examined one witness as RW-1 and
MFA No. 24547 of 2012
C/W MFA No. 24668 of 2012
got marked the copy of the policy as Ex.R.1. The Tribunal after
assessing both oral and documentary evidence allowed the
claim petition awarding compensation of Rs.4,18,176/- with
interest at the rate of 7% p.a. Being aggrieved by the
judgment and award, the Insurance Company has filed
M.F.A.No.24547/2012 and the claimants have filed
M.F.A.No.24668/2012.
4. The main contention of Shri N.R.Kuppelur, learned
counsel appearing for the Insurance Company is that in spite of
the Tribunal coming to the conclusion that the rider of the
motor cycle had no driving licence to drive the motorcycle,
erroneously directed the Insurance Company to pay the
compensation and recover the same from respondent No.2/the
owner, relying on the judgment of the Hon'ble Apex Court in
KUSUM LATA AND OTHERS VS. SATBIR AND OTHERS
(AIR 2011 SC 1234). Hence, learned counsel for the
appellant would vehemently contend that the Tribunal has
committed an error in directing the Insurance Company first to
pay the compensation and thereafter recover the same from
the owner. Learned counsel also relied upon the unreported
MFA No. 24547 of 2012
C/W MFA No. 24668 of 2012
judgment of this Court in M.F.A.No.102884/2018 dated
21.12.2020 wherein at paragraph 12 the division bench has
held that the finding of the Tribunal absolving the liability of the
insurer to pay compensation cannot be interfered with as non-
possession of the driving license to drive any vehicle would be a
fundamental breach.
5. Per contra, Shri Y.Lakshmikant Reddy, learned
counsel appearing for the claimants would vehemently contend
that the Tribunal has committed an error in taking the monthly
income of the deceased only at Rs.4,127/- p.m. though the
deceased was a housewife and working as an agriculturist and
earning Rs.10,000/- p.m. Hence, the notional income that
ought to be taken was Rs.6,000/- since the accident had taken
place in the year 2011. He further contends that the Tribunal
has committed grave error in not awarding future prospects.
He also submits that the compensation awarded towards
funeral and last obsequies, loss of consortium to the 1st
petitioner and loss of love and affection to the 1st and 2nd
petitioner requires inference of this Court.
MFA No. 24547 of 2012
C/W MFA No. 24668 of 2012
6. Having heard the learned counsel for the parties, on
perusal of the oral and documentary evidence available on
record and the grounds urged in the respective appeals, the
points that arise for consideration of this Court are:
i) Whether the Tribunal has committed an error in
directing the Insurance Company to pay and
recover?
ii) Whether the Tribunal committed an error in not
awarding just and reasonable compensation?
iii) What order?
Reg: Point No.1:
7. The main contention of the learned counsel for the
Insurance Company is that even though the rider of the motor
cycle had no driving license to drive the said vehicle, the
Tribunal committed an error in directing the Insurance
Company to pay and recover the same relying upon the
judgment of the Apex Court in KUSUM LATA's case. When
there was a fundamental breach of the terms of the policy,
question of pay and recover does not arise. The material also
MFA No. 24547 of 2012
C/W MFA No. 24668 of 2012
disclose that the owner as well as the rider of the vehicle have
not contested the matter and they have been placed exparte.
The Tribunal has also given a finding that the rider of the
motorcycle had no valid driving license to drive the motorcycle.
The said finding has not been challenged in the appeal filed by
the claimants. The material placed on record discloses that the
deceased is a third party and does not belong to the family of
the rider or the family of the insured. As held by the Hon'ble
Apex Court in the judgment referred by the Tribunal that the
Insurance Company has to pay and recover the compensation
from the owner in respect of third party, in the present case
also when the deceased is a third party, this Court does not
find any error committed by the Tribunal in directing to pay and
recover the same in view of the judgment of the Hon'ble Apex
Court in PAPPU VS. VINOD KUMAR LAMBA (2018 (3) SCC
208). Hence, I answer point No.1 in the negative.
Reg:Point No.2:
8. The main contention of the appellants/claimants
that the deceased who was a housewife was also working as an
MFA No. 24547 of 2012
C/W MFA No. 24668 of 2012
agriculturist, is not in dispute. The Tribunal while considering
the income of the deceased has taken only Rs.4,127/- p.m.
wherein the notional income ought to have been taken at
Rs.6,000/- p.m. The Tribunal also failed to take into
consideration future prospects while considering the loss of
dependency. Though the claimants have claimed that the
deceased was 42 years at the time of the accident, no
document has been placed before the Tribunal to prove the
same. The Tribunal has rightly taken note of the age of the
elder daughter aged about 27-28 years and hence taken the
age of the deceased at 51 to 55 years and applied the correct
multiplier of 11. Hence, I do not find any error committed by
the Tribunal in considering the age of the deceased at 51 years
taking into account of age of the elder daughter as 28 years.
9. Now, the question before the Court is regarding not
taking into consideration the future prospects while computing
the loss of dependency. Admittedly, the deceased was working
as an agriculturist and also a housewife. The Tribunal ought to
have added future prospects at 10% taking the income as
Rs.6,000/- p.m. as notional income. Accordingly, towards loss
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MFA No. 24547 of 2012
C/W MFA No. 24668 of 2012
of dependency the claimants are entitled to Rs.5,80,800/-
(Rs.6,000+10%=6,600X12X11X2/3) after deducting 1/3rd
towards personal expenses of the deceased.
10. The records reveal that the accident had taken
place on 03.08.2011 and the injured succumbed to the injuries
on 05.08.2011 i.e., 3 days after the accident. The Tribunal
taking note of the medical expenses incurred, has rightly
awarded a sum of Rs.10,000/- which is just and reasonable
compensation.
11. The claimants being the husband and son of the
deceased, are entitled to Rs.40,000/- each under the head 'loss
of consortium and loss of love and affection'. They are also
entitled to further sum of Rs.15,000/- towards funeral expenses
and Rs.15,000/- towards loss of estate. Thus, the claimants
are entitled to a sum of Rs.7,00,800/-.
12. In the result, I pass the following:
ORDER
i) The appeal filed by the Insurance Company in
M.F.A.No.24547/2012 is dismissed,
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MFA No. 24547 of 2012
C/W MFA No. 24668 of 2012
ii) The appeal filed by the claimants in
M.F.A.No.24668/2012 is allowed in part.
iii) The judgment and award dated 19.07.2012 in
M.V.C.No.86/2012 passed by the Motor Accident
Claims Tribunal XII, Ballari, stands modified.
iv) The claimants are entitled to total compensation of
Rs.7,00,800/- instead of Rs.4,18,176/- awarded by
the Tribunal.
v) The enhanced compensation shall carry interest at
the rate of 6% p.a.
vi) The amount deposited by the Insurance Company is
ordered to be transferred to the Tribunal forthwith
and directed to pay the difference amount within
four weeks.
(Sd/-)
JUDGE
Jm
