The Manager Oriental Insurance ... vs Laxmi W/O Late Chidanandappa And ...
2022 Latest Caselaw 8921 Kant

                              1



            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

         DATED THIS THE 16TH DAY OF JUNE 2022

                           BEFORE

     THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

                MFA No.201415/2016 (MV)

BETWEEN:

The Manager,
Oriental Insurance Co. Ltd.,
Branch Office,
City Talkies Road, Raichur.
(Now represented by Authorized
Signatory, Division Office,
Kalaburagi)
                                            ... Appellant

(By Smt. Preeti Patil Melkundi, Advocate)

AND:

1.     Laxmi W/o Late Chidanandappa,
       Age: 41 years, Occ: Housewife,

2.     Ashok S/o Late Chidanandappa,
       Age: 15 years, Minor, Student,

3.     Tayamma W/o Durugappa &
       D/o Late Chidanandappa,
       Age: 22 years, Occ: Housewife,
       R/o: Udyala, Tq: Gangavati,
       Dist: Koppal-583 231.

4.     Parvati W/o Beerappa &
       D/o Late Chidanandappa,
                                   2



      Age: 20 years, Occ: Housewife,
      R/o: Sukalpet, Sindhanur-584 128.

5.    M. Shantakumar
      S/o Pampayya Swamy,
      Age: 28 years, Occ: Rider of
      Motor cycle No.KA-34/ED-7156,
      R/o: Kolur Village, Tq: Siruguppa,
      Dist: Bellary-583 101.

6.    T.M.Rajashekar
      S/o Late Mruthunjaya,
      Age: Major,
      Occ: Owner of Motor Cycle
      No.KA-34/ED-7156,
      R/o Ward No.9, Near Nada Kacheri,
      Post: Tekkalakota, Tq: Siruguppa,
      Dist: Bellary-583 101.
                                              ... Respondents

(Sri. Basavaraj R. Math, Advocate for R1, R3 & R4;
 R2 is Minor;
 R5 & R6 - served)

      This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, praying to allow the appeal
by setting aside the impugned judgment and award dated
11.07.2016 in MVC No.460/2015 passed by the IInd Addl.
District and Sessions Judge at Raichur.


      This appeal coming on for final hearing this day, the
Court delivered the following:-
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                              JUDGMENT

This appeal is filed by the insurance company

challenging the judgment and award dated 11.07.2016 passed

by the II-Addl. District and Sessions Judge, Raichur

(hereinafter referred to as 'the Tribunal' for short) in MVC

No.460/2015.

2. For the sake of convenience, the parties herein are

referred with the original ranks occupied by them before the

Tribunal.

3. The brief factual matrix leading to the case are

that, on 09.05.2015 at about 7.00 a.m., the deceased

Chidanandappa was walking by the side of the road on

Gangavati-Raichur main road. At that time, the rider of

motorcycle bearing No.KA-34/ED-7156 rode it in a rash and

negligent manner and knocked the deceased from backside

resulting in the accident, who subsequently due to injuries

succumbed in the Hospital. The claimants claiming to be the

dependents have filed a claim petition under Section 166 of

the M.V. Act, claiming compensation of Rs.51,50,000/- with

costs and interest thereon.

4. The respondents have contested the matter

denying the allegations and assertions made in the claim

petition and respondent No.3-insurer has contended that the

rider of the motorcycle was not possessing valid and effective

driving licence and they have also denied the age, occupation

and income of the deceased. Hence, sought for dismissal of

the claim petition.

5. The Tribunal, after considering the oral and

documentary evidence has awarded total compensation of

Rs.12,81,000/- with interest at 6% p.a. from the date of

petition till realisation to the claimants.

6. Being aggrieved by this judgment and award, the

insurance company has come up in this appeal.

7. Heard the arguments advanced by the learned

counsel for the appellant-insurance company and learned

counsel for the respondents/claimants. Perused the records.

8. The main contention of the learned counsel for the

appellant-insurance company is that, the rider of the

motorcycle was not holding valid and effective driving licence

to drive a motorcycle. She would further contend that

claimants Nos.3 and 4 being the married daughters are not

the dependents and the Tribunal has erred in deducting 1/4 th

towards personal expenses of the deceased. She has also

disputed the quantum.

9. Per contra, learned counsel for the

respondents/claimants would support the judgment and award

passed by the Tribunal and further contended that infact the

quantum awarded is on lower side, as future prospects was

not considered and income was also taken on lower side

against the Lok Adalath chart.

10. Having heard the arguments and perusing the

records, it is evident that the deceased was knocked down by

the motor bike and he succumbed because of the injuries.

Though it is asserted that he was aged about 38 years, the

Post Mortem report disclose that he was aged about 45 years.

The Tribunal has taken the income of the deceased at the rate

of Rs.6,000/- per month. However, this Court is consistently

taking the notional income at the rate of Rs.8,000/- per month

in respect of the accidents occurred in the year 2015. Further,

the Tribunal has also not considered the future prospects of

25% as per the decision of the Hon'ble Apex Court reported in

(2017) 16 SCC 680 in the case of National Insurance

Company Limited V. Pranay Sethi and others.

11. The learned counsel for the appellant has raised

an issue regarding claimant Nos.3 and 4 being married

daughters are not dependents and contended that 1/3rd ought

to have been deducted towards personal expenses of the

deceased. It is also important to note here that the Tribunal

has not awarded compensation under the head of loss of

consortium to all the claimants. Even if the standard rule is

applied by taking notional income at Rs.8,000/- per month,

adding 25% future prospects, deducting 1/3rd towards

personal expenses and by applying the multiplier of 14, the

claimants would have been entitled for Rs.11,20,000/-

towards loss of dependency and by adding Rs.1,60,000/-

towards loss of consortium, Rs.15,000/- towards loss of estate

and Rs.15,000/- towards funeral expenses, they would have

been entitled for total compensation of Rs.13,10,000/-.

However, the Tribunal has awarded Rs.12,81,000/-.

12. Apart from that, if the deduction of 1/4th is taken

note of as taken by the Tribunal, the compensation would be

still more. The learned counsel for the appellant would

contend that since the claimants have not challenged the

award, the notional income at Rs.8,000/- cannot be taken.

However, this argument cannot be entertained, as when the

quantum is being recalculated, it should be done in

accordance with law as per the entitlement of the parties.

13. The further contention raised by the learned

counsel for the appellant-insurer is that, the rider of the

motorcycle was not possessing valid and effective driving

licence to drive a motorcycle. In this regard, she placed

reliance on Ex.R6. But, on perusal of Ex.R6 - D.L. Extract, it

does not disclose as to in respect of what type of vehicle, the

D.L. was issued. Even the author of Ex.R6 was not examined.

On the contrary, the Xerox copy of the D.L. with the same

number as referred in Ex.R6 is available in the records of the

Tribunal, wherein it is evident that the rider i.e., respondent

No.1 was holding valid driving licence to drive a motorcycle

with gear with effect from 23.08.2011. This document is not

challenged and now it is not open for the insurance company

to rely on Ex.R6, which is not proved by examining the author

and it also does not explain in respect of what type of vehicle,

the D.L. was issued. Under the said circumstances, question of

pay and recovery also does not arise at all. Admittedly, the

vehicle was insured with appellant herein/respondent No.3

and the appellant is liable to pay the compensation.

14. Though after recalculation the claimants are

entitled for marginal enhanced compensation, since the

claimants did not seek any enhancement by filing an appeal or

cross objections, the Court is required to restrict the claim

only as awarded by the Tribunal.

15. Looking to these facts and circumstances, the

appeal is devoid of any merits and needs to be dismissed.

Accordingly, the appeal stands dismissed.

The statutory amount or any additional amount in

deposit shall be transmitted to the Tribunal.

Sd/-

JUDGE

LG