Karnataka High Court
M/S Icici Lombard General ... vs Smt H Rekha on 30 June, 2022
Bench: Anant Ramanath Hegde
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
M.F.A.NO.156 OF 2016 (MV-D)
C/W
M.F.A.NO.109 OF 2016 (MV-D)
M.F.A.NO.110 OF 2016 (MV-D)
IN M.F.A.NO.156/2016:
BETWEEN:
1. SMT. H. REKHA,
W/O LATE H UMAPATHI,
AGE 32 YEARS, OCC HOUSEWIFE.
2. KUMARI NANDI,
D/O LATE UMAPATHI
AGED ABOUT 8 YEARS
3. KUMAR KOTRESH,
S/O LATE UMAPATHI,
AGED ABOUT 5 YEARS,
THE PETITIONERS NO.2 AND 3 ARE
MINORS ARE REPRESENTED BY NATURAL
GUARDIAN MOTHER I.E., PETITIONER NO.1,
ALL ARE RESIDENTS OF
THOUDURU VILLAGE,
HARAPANAHALLI TALUK,
DAVANGERE DISTRICT. ...APPELLANTS
(BY SRI ARAVIND H, ADV.)
AND:
1. K. SIDDESHI,
2
S/O L HEMANNA,
AGED ABOUT 40 YEARS,
OCC: OWNER OF BUS,
BEARING NO KA-16 /B 3393,
R/O H NO 96, MUSLIM STREET,
ARASIKERI VILLAGE,
HARAPANAHALLI TALUK,
DAVANGERE DISTRICT.
2. BHARAKATHA ALI,
S/O KASIMSAB,
AGED ABOUT 37 YEARS
DRIVER OF BUS BEARING NO.
KA-16/B3393 R/O H NO 96,
MUSLIM STREET, ARASIKEREI VILLAGE,
HARAPANAHALLI TALUK,
DAVANGERE DISTRICT.
3. THE MANAGER,
ICICI LOMBARD GENERAL INSURANCE CO. LTD.,
HEAD OFFICE: NEAR APROOVA HOTEL,
P B ROAD, DAVANGERE. ...RESPONDENTS
(BY SRI K.S.LAKSHMINARASAPPA, ADV. FOR
SRI A.M.VENKATESH, ADV. FOR R3,
SRI M.R. HIREMATHAD, ADV. FOR R1,
R2 - SERVED)
----
THIS MFA FILED U/S 173 (1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 14.09.2015 PASSED IN MVC
NO.83/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE &
MACT-IX, HARAPANAHALLI, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
IN M.F.A.NO.109/2016:
BETWEEN:
M/S ICICI LOMBARD GENERAL
INSURANCE COMPANY LIMITED,
NEAR APOORVA HOTEL,
P.B. ROAD, DAVANAGERE,
3
REPRESENTED BY ITS
MANAGER-LEGAL. ...APPELLANT
(BY SRI K.S.LAKSHMINARASAPPA, ADV. FOR
SRI A.M.VENKATESH, ADV. )
AND:
1. SMT H REKHA,
W/O LATE H UMAPATHI,
AGED ABOUT 32 YEARS,
2. KUMARI NANDI,
D/O LATE H UMAPATHI,
GED ABOUT 8 YEARS,
OCC: HOUSEHOLD,
3. KUMARI KOTRESH,
S/O LATE H UMAPATHI,
AGED ABOUT 5 YEARS,
RESPONDENTS NOS.2 AND 3 ARE MINORS,
REPRESENTED BY A NATURAL GUARDIAN
AND MOTHER - RESPONDENT NO.1 HERIN,
ALL ARE R/O THOUDURU VILLAGE,
HARAPANAHALLI TALUK,
DAVANAGERE DISTRICT - 577001.
4. K SIDDESHI,
S/O L HEMANNA,
AGED ABOUT 39 YEARS,
OCC: DRIVER OF BUS BEARING
REG NO. KA-16/B-3393,
R/O HOSAKOTE VILLAGE,
HARAPANAHALLI TALUK
DAVANAGERE DISTRICT - 577001.
5. BHARKATHA ALI,
S/O KASIM SAB
AGED ABOUT 37 YEARS,
OCC: OWNER OF BUS BEARING
REG NO. KA-16/B-3393,
4
R/O H. NO. 96, MUSLIM STREET,
ARASIKERE VILLAGE,
HARAPANAHALLI TALUK,
DAVANAGERE DISTRICT. ...RESPONDENTS
(BY SRI M.R.HIREMATHAD, ADV. FOR R4,
R2 AND R3 ARE MINORS REPRESENTED BY R1,
SRI ARAVIND H, ADV. FOR R1,
R5 - SERVED)
----
THIS MFA IS FILED U/S 173 (1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 14.09.2015 PASSED IN MVC
NO.83/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE &
MACT-IX, HARAPANAHALLI, AWARDING COMPENSATION OF
RS.9,54,809/ WITH INTEREST @ 6% FROM THE DATE OF
PETITION TILL REALIZATION.
IN M.F.A.NO.110/2016:
BETWEEN:
M/S ICICI LOMBARD GENERAL
INSURANCE COMPANY LIMITED,
NEAR APOORVA HOTEL,
P.B. ROAD,
DAVANAGERE.
REPRESENTED BY ITS
MANAGER-LEGAL ...APPELLANT
(BY SRI K.S.LAKSHMINARASAPPA, ADV. FOR
SRI A.M.VENKATESH, ADV.)
AND:
1. SMT SHARADA PATIL,
W/O LATE P GURUPANDANAGOUDA,
AGED ABOUT 32 YEARS,
OCC: HOUSEHOLD
2. VARUN PATIL,
S/O LATEL P. GURUPADANAGOUDA,
AGED ABOUT 10 YEARS,
5
3. VISHWANATHA
S/O LATE P. GURUPADANAGOUDA,
AGED ABOUT 6 YEARS
RESPONDENTS NOS.2 AND 3 ARE MINORS,
REPRESENTED BY A NATURAL GUARDIAN
AND MOTHER-RESPONDENT NO.1 HEREIN.
4. PATIL VAMADEVANAGOUDA,
S/O GURUPADAGOUDA,
AGED ABOUT 69 YEARS,
AGED PERSON.
5. PATIL HALAMMA,
W/O VAMADEVANAGOUDA,
AGED ABOUT 62 YEARS,
ALL ARE R/O THOUDURU VILLAGE,
HARAPANAHALLI TALUK,
DAVANAGERE DISTRICT - 577001.
6. K. SIDDESHI,
S/O L. HEMANNA,
AGED ABOUT 39 YEARS,
OCC: DRIVER OF BUS BEARING
REG. NO.KA-16/B-3393,
R/O HOSAKOTE VILLAGE,
HARAPANAHALLI TALUK,
DAVANAGERE DISTRICT - 577001.
7. BHARKATHA ALI,
S/O KASIM SAB,
OCC: OWNER OF BUS BEARIN
REG.NO.KA-16/B-3393,
R/O H.NO.96, MUSLIM STREET,
ARASIKERE VILLAGE,
HARAPANAHALLI TALUK,
DAVANAGERE DISTRICT - 577001. ...RESPONDENTS
(BY SRI M.V.HIREMATH, ADV. FOR R1, 4,2,5
R2 AND R4 MINORS ARE REPRESENTED BY R1,
6
SRI M.R.HIREMATHAD, ADV. FOR R6,
R7 - SERVED)
-----
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 14.09.2015 PASSED IN MVC
NO. 116/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE &
MACT-IX, HARAPANAHALLI, AWARDING COMPENSATION OF
RS.9,95,000/- WITH INTEREST 6% P.A. FROM THE DATE OF
PETITION TILL REALIZATION.
THESE APPEALS COMING ON FOR HEARING THIS DAY,
AND THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
Heard Sri. Lakshminarasappa for Sri A M Venkatesh,
the learned advocate for insurance company, Sri R M
Hiremathad the learned advocate for the owner and Sri
Aravind H, learned advocate for claimants.
2. These three appeals arise against the judgment
and award dated 14.09.2015 on the file of the Senior Civil
Judge & MACT-IX at Harapanahalli in MVC nos.83/2011 &
116/2011. In terms of the impugned judgment, the
claims tribunal has awarded compensation of
Rs.9,54,809/- with interest @ 6% p.a. in favour of the
claimants in MVC 83/2011 and Rs.9,95,000/- with interest
@ 6% p.a. in favour of the claimants in MVC 116/2011.
3. Claimants in MVC 83/2011 have preferred appeal
seeking enhancement of compensation. The insurer in
both the petitions referred above has filed appeals in MFA
Nos.109 and 110/2016 respectively challenging the
judgment and award in MVC Nos. 83/2011 as well as MVC
116/2011. Both the cases were clubbed together and
common judgment was delivered as both the cases arose
from the same accident. Therefore, all these appeals are
heard together and disposed of by common judgment.
4. The undisputed facts of the case are that on
3.6.2011 H Umapathi was riding his motorcycle bearing
Regn.No.KA-17/Y-2156 on Maganahalli Road along with
Gurupadanagouda. When they were near "B" Chittanahalli
Village a speeding bus bearing Regn.No.KA-16/B-3393
driven in a rash and negligent manner dashed against the
motorcycle on which Umapathi and the pillion rider were
travelling resulting in the death of the pillion rider on the
spot while Umapathi died in the hospital.
5. The dependents of both the deceased filed claim
petitions seeking compensation. It was claimed that
deceased Umapathi was a clerk in Jain traders also doing
cable work at Sri Guru Kottureshwara Cable Network in his
village earning Rs.15,000/- per month while
Gurupadagouda was working as a computer operator at
Teligi Gram Panchayat earning Rs.18,000/- per month and
working in the agricultural land and earning more than
Rs.30,000/- per month.
6. The tribunal after considering the evidence and
documents on record, granted compensation to the
dependents of the deceased while fastening the liability on
the insurer and the insured.
7. Learned counsel appearing for the insurer submits
that there was no valid permit to ply the vehicle on the
road for which the insurer has examined the RTO as RW3.
It is also the submission of the insurer that the permit
relating to the vehicle involved in the accident is produced
and marked as Ex.R.10, R.17. According to the insurer, it
was valid from 07.06.2011 i.e. the date on which the
payment was made and endorsement to this effect was
issued on 08.06.2011. Admittedly, the accident in
question occurred on 03.06.2011. The owner has not
produced any document to show that the permit was in
force as on the date of the accident i.e. on 03.06.2011.
The RTO who was examined as RW3 in his evidence has
also stated that the payment relating permit was made on
07.06.2011 and an endorsement was issued on
08.06.2011. Under these circumstances, learned counsel
for the insurer would contend that the tribunal is not
justified in fastening the liability on the insurer.
8. The Learned counsel for the insurer would further
submit that in terms of the ratio laid down in the
judgments of the Hon'ble Supreme Court in AMIT PAUL
SINGH AND ANR. vs TATA AIG GENERAL INSURANCE
CO. LTD. AND ORS. reported in AIR 2018 SC 2662 and
RANI AND OTHERS vs NATIONAL INSURANCE
COMPANY LIMITED reported in (2018)8 SCC 492,
liberty may be reserved to the insurer to recover award
amount from the insured after satisfying the award.
9. As noticed from the records it is apparent that
there was no permit to ply the vehicle as on the date fop
accident. Under the circumstances, the ratio laid down by
the Apex Court judgment in AMIT PAUL SINGH supra
would apply. Thus, the insurer is entitled to recover the
amount from the insured after satisfying the award
amount. Accordingly, the appeals by the insurer will have
to be allowed to the said extent.
10. Learned counsel for the appellants/claimants
would submit that though the claimants contended that
the deceased Umapathi was earning Rs.15,000/- per
month and substantiated the same by producing a salary
certificate and leading the evidence of the employer, the
tribunal has erred in not accepting the contention of the
claimant relating to the income of the deceased.
11. This Court on perusing the records and the
documents produced by the claimants is of the view that it
is not possible to conclude that deceased Umapathi was
earning Rs.15,000/- per month. Tribunal has taken the
notional income of the deceased at Rs.6,000/- per month.
In the absence of valid proof relating to the income of the
deceased, the chart prepared by the Karnataka State Legal
Services Authority will be the guiding factor. The accident
occurred in 2011. Thus the notional monthly income of the
deceased Umapathi, as per the chart would be Rs.6,500/-
It is also noticed that the tribunal has not taken into
consideration the future prospects of the deceased. Since
the deceased was aged 35 years at the time of the
accident, 40% of the notional income is to be added
towards future prospects. Since the deceased is survived
by 3 dependents, 1/3 of his income is to be deducted
towards personal expenses Thus, the loss of dependency
would be Rs.11,64,800/- (Rs.9100 x12 x16 x 40% /3).
12. As regards compensation towards non-
pecuniary heads, applying the principles laid down by the
Apex Court in National Insurance Company Limited
V/s. Pranay Sethi and others reported in AIR 2017 SC
5157, Rs.40,000/- is awarded to each of the 3
dependents/claimants towards loss of consortium. Thus
total compensation under this head is Rs.1,20,000/-.
Towards loss of estate Rs.15000=00 is awarded and
Rs.15,000/- is awarded for the funeral expenses. Thus,
claimants are entitled to compensation as under:
13. Since the compensation of Rs.1,20,000=00
is awarded under the head of loss of consortium
compensation of Rs.50,000=00 under the head of love and
affection is set aside.
Sl. Heads of Award Amount in Rs.
No.
1. Loss of dependency 11,64,800.00
2. Loss of Consortium 1,20,000.00
3. Loss of estate 15,000.00
4. Funeral expenses 15,000.00
5. Medical bills 1,809.00
6. Total Compensation 13,16,609.00
LESS: compensation 9,54,809.00
awarded by the tribunal
TOTAL ENHANCEMENT 3.61.800.00
14. Hence, the following:
ORDER
(i) Appeals are partly allowed.
(ii) The impugned judgment and award dated
14.09.2015 on the file of the Senior Civil Judge &
MACT-IX at Harapanahalli in MVC nos.83/2011 &
116/2011 are modified.
(iii) The appellant/claimants in MFA No.156/2016 are
entitled to enhanced compensation of Rs. 3,61,800/- with
interest @ 6% p.a. from the date of petition till realization.
(iv) The insurer shall deposit the award amount before
the claims tribunal within 8 weeks from the date of receipt
of a copy of this order.
(v) The appellants/insurer is at liberty to recover the
compensation amount from the insured after depositing the
same in favour of the claimants.
(v) In all other aspects, the awards of the tribunal
remain intact.
(vi) Amount deposited by the insurer be transmitted to
the jurisdictional tribunal.
Sd/-
JUDGE
brn
