Karnataka High Court
Kodavath W/O Laxman And Ors vs K Jagan Reddy S/O K. Yadireddy And ... on 10 June, 2022
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF JUNE 2022
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
MFA No.30873/2011 (MV)
C/w
MFA No.200805/2014
In MFA No.30873/2011
BETWEEN:
Regional Manager,
APSRTC, Regional Office,
New Bus Stand,
Mahaboobnagar (AP)
.....Appellant
(By Sri. S.V.Deshmukh, Advocate)
AND:
1. Kodavath Ghamli W/o Laxman,
Aged about 40 years, Occ: Household,
2. Kodavath Srinu S/o Laxman,
Aged about 23 years, Occ: Student,
3. Kodavath Ramesh S/o Laxman,
Aged about 21 years, Occ: Student,
4. Kodavath Naresh S/o Laxman,
Aged about 18 years, Occ: Student,
2
Respondent No.4 is minor U/g
his natural mother i.e., respondent No.1,
All resident of
Somla Naik tanda, Balanagar Mandal,
Mahboobnagar Dist.
Now R/o Labour Colony, Shaktinagar,
Dist: Raichur-584101.
5. K.Jagan Reddy S/o K.Yadireddy,
Aged about Major,
Occ: Owner of Bus No.AP.29/TA-5057,
R/o H.No.3-2-149, Road No.6,
Sathavahan Nagar, I.B.Nagar,
Rangareddy Dist. (AP)-501111.
6. The New India Assurance Co. Ltd.,
Near Gunj Circle, Gunj Road,
Raichur-584101.
Raichur through its Branch Manager.
.....Respondents
(By Sri. Krupa Sagar patil, Advocate for
Sri.Veeranagouda, Advocate for R1 to R4;
By Smt. Preeti Patil Melkundi, Advocate for R6;
Notice to R5 is dispensed with)
This MFA is filed under Section 173(1) of the Motor
Vehicles Act, praying to allow the above appeal and
consequently be pleased to set aside the judgment and award
dated 09.02.2011 passed by the learned Addl. District Judge
and MACT Raichur in MVC No.449/2009.
In MFA No.200805/2014
BETWEEN:
1. Kodavath Ghamli W/o Laxman,
Aged: 43 years, Occ: Household,
3
2. Kodavath Srinu S/o Laxman,
Aged: 24 years, Occ: Student,
3. Kodavath Ramesh S/o Laxman,
Aged: 22 years, Occ: Student,
4. Kodavath Naresh S/o Laxman,
Aged: 20 years, Occ: Household,
All are R/o Somla Naik Tanda,
Balanagar Mandal, Mahabobnagar Dist.
Now residing at Labour Colony,
Shaktinagar, Dist: Raichur.
.....Appellants
(By Sri. Krupa Sagar Patil, Advocate for
Sri. Veeranagouda Advocate)
AND:
1. K.Jagan Reddy S/o K.Yadireddy,
Age: Major, Occ: Owner of Bus Business
Bearing No.AP 29-TA-5057,
R/o H.No.3-2-149, Road No.6,
Sathavahana Nagar, LB Nagar,
Rangareddy Dist. (AP)-501111.
2. The New India Assurance Co. Ltd.,
Near Gunj Circle, Gunj Road,
Raichur-584102.
Through its Branch Manager.
3. Regional Manager, APSRTC
Regional Office, New Bus Stand Complex,
Mahaboobnagar (AP)-509001.
.....Respondents
(By Smt. Preeti Patil Melkundi, Advocate for R2;
By Sri. S.V.Deshmukh, Advocate for R3;
Notice to R1 is dispensed with)
4
This MFA is filed under Section 173(1) of the Motor
Vehicles Act, praying to allow the appeal, the judgment and
award dated 09.02.2011 passed in MVC No.449/2009 by the
Addl. District Judge MACT Raichur, may kindly be modified by
enhancing the compensation as claimed in the claim petition.
These appeals coming on for Admission, this day, the
court delivered the following:
JUDGMENT
These two appeals are filed by the Corporation
and the appellants-petitioners challenging the
judgment and award dated 09.02.2011 passed in MVC
No.449/2009 by the Addl. District Judge (MACT)
Raichur.
2. MFA No.30873/2011 is filed by the
Corporation challenging the liability, while MFA
No.200805/2014 is filed by the petitioners seeking
enhancement of compensation. As these appeals are
arising out of the same judgment and award passed
by the tribunal, they are heard together and common
order is being passed.
3. For the sake of convenience, parties are
referred with the ranks occupied by them before the
Tribunal.
4. The brief facts leading to the case are that
the petitioners are wife and children of deceased
K.Laxman. That on 18.06.2009 at about 8.30 p.m.,
deceased was proceeding on motorcycle and at that
time the offending bus bearing registration No.AP-
29/TA-5057 belonging to respondent No.1 and hired
by APSRTC-appellant herein came in a rash and
negligent manner and knocked him, whereby the
deceased sustained fatal injuries and succumbed
because of the injuries. Hence, the claimants have
filed a claim petition seeking compensation of
Rs.15,50,000/-.
5. The respondent No.1 remained absent and
placed ex-parte. The respondent No.2-Insurance
Company filed objections denying the allegations and
assertions made thereunder. It is, contended that the
deceased himself is to be blamed in causing the
accident and deceased was not having valid driving
license to drive the motorcycle. Further it is contended
that the respondent No.1 has lent the bus on hire to
respondent No.3 and as such respondent No.2 is not
liable to pay compensation.
6. The respondent No.3 filed objections
contending that the accident was due to rash and
negligent riding of the deceased himself and the
vehicle is insured with respondent No.2 and as such
respondent No.2-Insurance Company is liable to pay
compensation.
7. After recording the evidence of parties and
appreciating the oral and documentary evidence, the
tribunal has awarded compensation of Rs.3,86,000/-
to the petitioners with interest @ 6% p.a. by fastening
the liability on respondent No.3-Corporation from the
date of impleadment of respondent No.3 i.e. from
26.06.2010.
8. Being aggrieved by the order of
compensation, the Corporation has filed MFA
No.30873/2011 challenging the liability on the
Corporation instead of respondent No.2/respondent
No.6 herein on the ground that the vehicle was duly
insured with respondent No.6 during the relevant
period and it was taken on hire by APSRTC. While the
claimants-petitioners have filed MFA No.200805/2014
seeking enhancement of compensation on the ground
that the compensation awarded is on lower side.
9. Heard the arguments advanced by the
learned counsel for appellant-Corporation and
petitioners as well as the learned counsel for
respondent-Insurance Company in both the appeals.
Perused the records
10. Learned counsel for the
appellant/Corporation would contend that the policy
was issued on 02.03.2009 in favour of
owner/respondent No.1 and 13.04.2009, he entered
into an agreement with the Corporation and accident
has occurred on 25.02.2009 and during the said
period, the policy was in force. Though the intimation
regarding hire was not intimated to the Insurance
Company, however, he contends that in view of the
covered decision of the Hon'ble Apex Court in the case
of Uttar Pradesh State Road Transport
Corporation Vs. Kulsum reported in AIR Online
2011 SC 451, the Insurance Company is liable.
Hence, he would contend that the tribunal has erred in
fastening the liability on the Corporation.
11. Learned counsel for the claimants-
petitioners would contend that the tribunal has taken
the income of deceased at Rs.3,000/- per month,
which is on lower side and no compensation was
awarded under the head of loss of consortium. Hence,
he would seek for enhancement of compensation.
12. Learned counsel for the Insurance
Company would support the judgment and award
passed by the tribunal contending that the agreement
was not intimated to the Insurance Company and
hence there is a breach of policy conditions.
13. Having heard the arguments and perusing
the records, it is evident that the offending vehicle
was duly insured with New India Assurance Company
and this fact is not under serious challenge and the
policy was issued on 02.03.2009. It is evident from
the records that the owner/respondent No.1
subsequently entered into an agreement with
Corporation on 13.04.2009 and thereby leased the
vehicle to the Corporation. The accident has occurred
on 02.05.2009. Though the learned counsel appearing
for the Insurance Company has asserted that the
Corporation has hired the vehicle and there is a
breach of policy conditions, the same is not
substantiated.
14. On the contrary, the officer of the
Insurance Company was examined as RW.1. In his
cross-examination on behalf of the Corporation, he
has admitted that there is an endorsement in the
policy regarding hire of the vehicle by the
Corporation-APSRTC and he has given this admission
on behalf of the Insurance Company. Hence, now it is
not open for the Insurance Company to raise the issue
that too when an admission is given by an officer.
Apart from that , this issue is again covered by the
decision of this Court in MFA No.200800/2014 clubbed
with MFA No.30143/2012 dated 25.03.2022. In the
said decision the Co-ordinate Bench of this Court has
dealt this issue and further observed that it is no more
res-integra in view of the fact that it has been covered
by the Hon'ble Apex Court in Kulsum's case (supra).
Under such circumstances, since the policy is in force
and the Corporation has taken the vehicle on hire as
per the legal agreement, the Insurance Company
cannot absolve the liability and the Insurance
Company having collected the premium is liable to
reimburse the claimants-petitioners.
15. Now as regards the enhancement, the
tribunal has awarded compensation of Rs.3,86,000/-.
It is evident that the tribunal has taken the income of
the deceased @ Rs.3,000/- per month, which is on
lower side. The accident has occurred in the year
2009. As per the Lok Adalath Chart, this Court is
consistently taking the notional income of Rs.5,000/-
per month for the accident occurred in the year 2009
in the absence of any other material. Hence, the
income of the petitioner is required to be taken @
Rs.5,000/- per month.
16. Further, in view of the law laid down by the
Constitution Bench of the Supreme Court in National
Insurance Co., Ltd., vs. Pranay Sethi and others
reported in AIR 2017 SC 5157, to the aforesaid
amount, 25% has to be added on account of future
prospects as the deceased was aged about 46 years.
Hence, the monthly income comes to Rs.6,250/-. Out
of which, it is appropriate to deduct 1/4th towards
personal expenses.
17. The deceased was aged about 46 years as
on the date of the accident and as such the multiplier
applicable to his age group is '13'. Hence, the loss of
dependency works out to Rs.7,31,250/- (Rs.6,250/- x
12 x 13 x 3/4)
18. Further the petitioners are entitled for a
sum of Rs.15,000/- under the head loss of estate as
against Rs.5,000/- awarded by the tribunal. Further,
the petitioners are entitled for Rs.15,000/- under the
head funeral expenses.
19. The tribunal has awarded a sum of
Rs.10,000/- under the head loss of love and affection,
which is not permissible and Rs.10,000/- awarded
under the head loss of consortium, which is on lower
side.
20. In view of the decision of the Hon'ble
Supreme Court in the case of Magma General
Insurance Company Limited vs. Nanu Ram Alias
Chuhru Ram & Others reported in 2018 ACJ 2782,
as well as in the case of United India Insurance Co.
Ltd., Vs. Satinder Kaur @ Satwinder Kaur and
Others, reported in AIR 2020 SC 3076, each of the
petitioners are entitled for compensation of
Rs.40,000/- under the head of 'loss of consortium'.
Hence they are entitled for Rs.1,60,000/- under this
head.
21. As such, the petitioners are entitled for
total compensation of Rs.9,21,250/- as against
Rs.3,86,000/- awarded by the tribunal under the
various heads as under;
Sl.No. Heads Amount
1. Loss of dependency Rs.7,31,250/-
2. Loss of estate Rs.15,000/-
3. Funeral expenses Rs.15,000/-
4. Loss of consortium Rs.1,60,000/-
Total Rs.9,21,250/-
22. In view of the above discussions, the
Insurance Company-respondent No.3 before the
tribunal is liable to pay compensation as the policy
was valid. There is a delay of 1084 days in filing the
appeal by the claimants and hence they are not
entitled interest for the delayed period of 1084 days.
At the same time, it is also important to note here
that though the Corporation has filed an appeal in MFA
No.30873/2011, same was dismissed for non-
prosecution and it was restored after condonation of
delay of 3035 days. In view of the latches on the part
of the Corporation, the Insurance Company cannot be
fastened liable to pay the interest on this period.
Hence, the appeal filed by the petitioners in MFA
No.200805/2014 and the appeal filed by the
Corporation in MFA No.30873/2011 needs to be
allowed in part.
23. Accordingly, I proceed to pass the
following;
ORDER
(a) The appeal filed by the Corporation in MFA
No.30873/2011 is allowed in part.
(b) The liability fastened on the respondent
No.3-Corporation is set aside and the entire
compensation is required to be paid by the
respondent No.2-Insurance Company
except the interest for the delayed period
of 3035 days, which shall be borne by the
Corporation in view of the restoration of
the appeal.
(c) The appeal filed by the petitioners in MFA
No.200805/2014 is allowed in part.
(d) The appellants-petitioners are held entitled
for total compensation of Rs.9,21,250/-
with interest @ 6% p.a. as against
Rs.3,86,000/- awarded by the tribunal.
(e) The enhanced compensation shall carry
interest @ 6% p.a.
(f) The petitioners are not entitled for any
interest for the delayed period of 1083
days as per the earlier order.
(g) The Insurance Company-respondent No.2
shall deposit the entire compensation
amount with interest thereon except the
interest for the period of 1083 days
regarding enhanced amount and 3035 days
of the appeal period within six weeks from
the date of this order.
(h) The statutory deposit made by the
respondent No.3-Corporation shall be
remitted to the tribunal to adjust towards
the interest portion which the Corporation
is liable to pay.
Sd/-
JUDGE
msr
