Karnataka High Court
Tasimbanu And Ors vs Hasansab And Anr on 8 June, 2022
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF JUNE 2022
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
MFA No.202471/2018 (MV)
BETWEEN:
1. TASIMBANU D/O FAYAZ KHATIB,
AGE: 19 YEARS, OCC: BUSINESS,
R/O JERATAGI, TQ. JEVARAGI,
DIST. KALABURAGI.
NOW RESIDING AT VIJAYAPUR.
2. KUMAR ZUBER S/O FAYAZ KHATIB,
AGE: 17 YEARS, OCC: STUDENT,
R/O JERATAGI, TQ. JEWARGI,
DIST. KALABURAGI.
NOW RESIDING AT VIJAYAPUR.
3. AMEERHAMZA S/O FAYAZ KHATIB,
AGE: 15 YEARS, OCC: STUDENT,
R/O JERATAGI, TQ. JEWARGI,
DIST. KALABURAGI.
NOW RESIDING AT VIJAYAPUR.
SINCE APPELLANT NO.2 & 3 ARE MINORS
REPRESENTED BY THEIR GRANDFATHER AND
GRANDMOTHER APPELLANT NO.4 & 5
AS NEXT FRIEND.
4. BASHEER AHMED S/O IMAMUDDIN KHATIB,
AGE: 73 YEARS, OCC: AGRICULTURE,
R/O JERATAGI, TQ. JEWARGI,
DIST. KALABURAGI.
NOW RESIDING AT VIJAYAPUR.
2
5. SMT. SHARIPABI
W/O BASHEER AHMED KHATIB,
AGE: 63 YEARS, OCC: HOUSEHOLD,
R/O JERATAGI, TQ. JEWARGI,
DIST. KALABURAGI.
NOW RESIDING AT VIJAYAPUR.
... APPELLANTS
(BY SRI. SANGANAGOUDA V.BIRADAR, ADVOCATE)
AND:
1. HASANSAB S/O BASHASAB,
AGE: MAJOR, OCC: AGRICULTURE,
R/O JERATAGI, TQ. JEWARGI,
DIST. KALABURAGI.
(OWNER OF MARUTI OMINI BEARING NO.
KA-32-N-0955)
2. THE BRANCH MANAGER,
NATIONAL INSURANCE CO. LTD.,
BEHIND S.S.TEMPLE, VIJAYAPURA
(POLICY NO.35101031136133898891
VALID FROM 04.11.2013 TO 03.11.2014)
... RESPONDENTS
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R2;
NOTICE TO R1 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO
ALLOW THE APPEAL BY MODIFYING THE IMPUGNED
JUDGMENT AND AWARD DATED 13.08.2018 PASSED BY THE I
ADDL. SENIOR CIVIL JUDGE AND MACT-VI, VIJAYAPUR IN
MVC NO.1585/2015 AND CONSEQUENTLY BE PLEASED TO
ENHANCE THE COMPENSATION FROM RS.9,14,000/- TO
RS.17,30,000/- WITH INTEREST @ 12% PER ANNUM FROM
THE DATE OF PETITION TILL ACTUAL REALIZATION BY
FASTENING THE LIABILITY ON RESPONDENT NO.2
INSURANCE COMPANY.
3
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is filed under Section 173(1) of the Motor
Vehicles Act, 1988 ( 'MV Act' for short) against the judgment
and award dated 13.08.2018 passed by the I-Additional
Senior Civil Judge and MACT VI at Vijayapura ('Tribunal' for
short) seeking enhancement of compensation as well as
disputing the finding of fastening liability on Respondent No.1-
Insured.
2. For the sake of convenience, the parties herein are
referred as per the ranks occupied by them before the trial
Court.
3. The brief factual matrix leading to the case is that,
on 21.12.2013 at about 10.30 a.m., while the deceased
Nazma and her children ie., claimants/petitioners No.1 to 3
were coming from Pune to their village-Jeratagi in Maruti Omni
bearing No.KA-32/N-0955 and they were near Tol-Naka on
High Way in Warawade Village, Solapur District, the driver of
the said vehicle drove the same in rash and negligent manner
and dashed to a pole situated by the road side, resulting in
the accident. In the said accident, claimants/Petitioners No.1
to 3 have sustained injuries and Nazma, the mother of
claimants/petitioners No.1 to 3 succumbed to injuries on the
spot. The claimants/Petitioners Nos.1 to 3 are the children,
while Claimant Nos. 4 & 5 are the in-laws of the deceased
Nazma. Hence, the petitioners/claimants filed claim petition
before the Tribunal under Section 166 of the MV Act claiming
compensation of Rs.17,30,000/- on account of death of
Nazma.
4. The respondents appeared before the Tribunal and
filed their objections denying the allegations and assertions
made in the claim petition.
5. Learned counsel for Respondent No.1- Owner
contended that the offending vehicle was duly insured with
Respondent No.2-National Insurance Co. Ltd. and the policy
was valid during the relevant period, and the driver of the
offending vehicle was possessing a valid and effective driving
licence. Hence, he sought for exonerating his liability.
6. Learned counsel for Respondent No.2-Insurance
Company filed objections denying the allegations and
assertions made in the claim petition. He contended that, the
policy in respect of the offending vehicle is a private package
policy and the petitioners/claimants have not produced any
heir ship certificate to show that they are the legal heirs and
dependents of the deceased. Further, learned counsel
contended that the driver was not possessing a valid and
effective driving licence as on the date of accident and hence,
disputed the claim.
7. On the basis of the pleadings and after considering
the oral and documentary evidence, the Tribunal has awarded
total compensation of Rs.9,14,000/- by fastening liability on
Respondent No.1-Owner of the offending vehicle on the
ground that the deceased was not a family member of
Respondent No.1 and there is breach of policy conditions.
Being aggrieved by this judgment and award, the claimants
have filed this appeal.
8. Heard the learned counsel for the appellant and
respondent. Perused the records.
9. Learned counsel for the appellants/claimants
would contend that, since the policy is a package policy, it
covers the risk of the inmates of the offending vehicle and as
such, Respondent No.2-Insurer is liable to pay compensation
and the trial Court has erred in exonerating Respondent No.2-
Insurance Company from paying compensation. He would also
contend that, no compensation was awarded under the head
of 'Loss of Consortium' and the compensation awarded under
other heads is on lower side, and the income of the deceased
taken for assessment of compensation is also on the lower
side. Hence, he would seek for enhancement of compensation
and to fasten the liability on Respondent No.2-Insurance
Company.
10. Per contra, the learned counsel for Respondent
No.2-Insurance Company would support the judgment and
award passed by the Tribunal. But, however he admits that
there is no serious challenge to the liability, in view of the
Insurance Company settling the dispute pertaining to the
claim arising out of the same accident in Lok-Adalat.
11. Having heard the arguments advanced by the
learned counsels appearing on both sides and perusing the
records, it is evident that there is no dispute regarding the
fact that the deceased was travelling in the offending vehicle
bearing Registration No.KA.32/N-0955, which met with an
accident on 21.12.2013 at about 10.30 a.m. There is also no
serious dispute of the fact that Respondent No.2 is the
Insurer and the Insurance Policy is a Package Policy. The
Package Policy covers the risk of the inmates of the offending
vehicle and the Tribunal has erroneously observed that the
deceased was not a member of the family. Further,
Respondent No.2-Insurance Company has not proved the case
that the deceased was travelling in the offending vehicle on
hire and reward basis. Under these circumstances, it is
Respondent No.2, who is liable to pay the compensation.
12. It is an admitted fact that the deceased was aged
about 32 years. The tribunal has taken the income of the
deceased at Rs.6,000/- per month. The accident had occurred
in 2013 and this Court consistently taking the notional income
at the rate of Rs.7,000/- per month in respect of the accidents
occurred during the year 2013. Further, considering the age
of the deceased, the multiplier '16' is applicable.
13. It is asserted that the petitioners No.1 to 3 are the
children and petitioners No.4 & 5 are the in-laws of the
deceased. The tribunal considering the number of dependents
has deducted 1/4th of the income towards personal expenses
of the deceased, which is not seriously challenged. Since the
deceased had no permanent avocation, 40% of the income
towards future prospects is required to be added to the
income of the deceased. As such, the total income would be
Rs.9,800/- (Rs.7,000x40/100) per month.
14. Though it is contended that there are five
dependants including in-laws of the deceased, since it is
evident from the records that the husband of the deceased is
alive, his parents, who are the in-laws of the deceased Nazma
cannot be termed as dependents of the deceased. As such,
1/3rd of the income has to be deducted towards the personal
expenses of the deceased and as such, only the claimants
No.1 to 3 (minor children of the deceased) are to be
considered as dependents. Hence, the compensation under
the head of 'loss of dependency' works-out to
Rs.12,54,400/- (Rs.9,800 x 12 x 16 x 2/3).
15. Under the head of 'funeral expenses', the
claimants 1 to 3 are entitled for Rs.15,000/- and under the
head of 'loss of estate', they are entitled for Rs.15,000/-.
16. Further, under the head of 'loss of consortium', the
claimants 1 to 3 are entitled for Rs.40,000/- each, which
works-out to Rs.1,20,000/- (Rs.40,000x3), as per the
decision of the Hon'ble Apex Court in Satinder Kaur @
Satwinder Kaur & Ors. v. United India Insurance Co.
Ltd. reported in AIR 2020 SC 3076 and in Magma General
Insurance Company Limited vs. Nanu Ram Alias Chuhru
Ram and others reported in (2018) 18 SCC 130.
17. Thus, the claimants are entitled for total
compensation under various heads as under:
Sl.No. Heads Amount
1. Loss of dependency Rs. 12,54,400/-
2. Loss of consortium Rs. 1,20,000/-
3. Loss of estate Rs. 15,000/-
4. Funeral expenses Rs. 15,000/-
Total Rs.14,04,400/-
Hence, the claimants are entitled for total compensation of
Rs.14,04,400/- along with interest at the rate of 6% p.a. as
against Rs.9,14,000/- awarded by the Tribunal.
18. Respondent No.1 being the owner and respondent
No.2 being the insurer are jointly and severally liable to pay
the compensation.
19. Under such circumstances, the appeal needs to be
allowed-in-part. Accordingly, I proceed to pass the following:
ORDER
i. The appeal is allowed-in-part.
ii. The appellants/claimants are held entitled for total
compensation of Rs.14,04,400/- as against
Rs.9,14,000/- awarded by the Tribunal.
iii. The enhanced compensation of Rs.4,90,400/-
(Rs.14,04,400 - Rs.9,14,000/-) shall carry interest
at the rate of 6% p.a. from the date of petition till
its realisation.
iv. The primary liability to pay the entire
compensation amount with accrued interest is
fixed on Respondent No.2-insurer.
v. Respondent No.2-insurer is directed to deposit the
entire compensation amount with interest accrued
thereon within six weeks from the date of this
Judgment.
vi. The entire compensation shall be apportioned and
deposited as per the award of the Tribunal to the
extent of 80% in favour of claimant Nos.1 to 3 and
the remaining 20% shall be released in favour of
claimant Nos.4 and 5, who are shown to be minor
guardian to meet out the expenses of claimant
Nos.1 to 3.
Sd/-
JUDGE
KGR*/LG
