Shri. Gurusangappa S/O ... vs Basavaraj S/O Mallappa Biradar
2022 Latest Caselaw 9010 Kant

                               1



            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

         DATED THIS THE 17TH DAY OF JUNE 2022

                            BEFORE

     THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

                 MFA No.201983/2014 (MV)

BETWEEN:

1.     Shri Gurusangappa
       S/o Channabasappa Metri,
       Age: 53 years, Occ: Agriculture,

2.     Smt. Shivamma @ Shridevi
       W/o Revanasiddappa Masali,
       Age: 23 years, Occ: Household work,

3.     Shri Chandrakanth
       S/o Channabasappa Metri,
       Age: 21 years, Occ: Agriculture,

       All are R/o Benakanahalli,
       Tq. Dist. Bijapur-586 101.
                                             ... Appellants
(By Sri. Basavaraj R. Math, Advocate)

AND:

1.     Basavaraj S/o Mallappa Biradar,
       Age: 41 years, Occ: Business,
       R/o Benakanahalli,
       Tq. & Dist. Bijapur,
       Dist. Bijapur-586 101.

2.     The Branch Manager,
       The New India Insurance Co. Ltd.,
       Gurukul Road, Bijapur-586 101.
                                   2



3.    Kumar Channabasappa
      S/o Channabasappa Metri,
      Age: 18 years, Occ: Agriculture,
      R/o Benakanahalli,
      Tq. & Dist. Bijapur-586 101.
                                           ... Respondents

(Sri. S.S. Aspalli, Advocate for R2;
 R1 & R3 - served)

      This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, praying to modify the
impugned judgment and award dated 11.07.2014 passed by
the MACT No.VI, Bijapur in MVC No.1051/2013.


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

This appeal is filed by the claimants under Section

173(1) of the Motor Vehicles Act, challenging the judgment

and award dated 11.07.2014 passed in MVC No.1051/2013 by

the MACT-VI, Bijapur (hereinafter referred to as 'the Tribunal'

for short), seeking enhancement of compensation and also for

fastening the liability on respondent No.2-insurance company.

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 19.11.2012 at about 4.15 p.m., deceased Bhagamma

Metri was waiting with her fertilizers and seeds for

transporting the same to her land. At that time, a vehicle

bearing Reg. No.KA-28/A-0625 came there and she has hired

the entire vehicle to transport the goods to her garden land.

She sat in the cabin of the vehicle and the driver drove it in a

high speed and rash and negligent manner. When the vehicle

came near her garden land, he stopped the vehicle and when

the deceased was alighting from the vehicle, the driver drove

it in a rash and negligent manner, as a result, rear body of the

vehicle came in contact with the head of the deceased and she

fell down and sustained grievous injuries on the head and

face. She was shifted to Sanjeevini Super-specialty Hospital

and subsequently on 20.11.2012 she succumbed because of

the injuries. The claimants have incurred more than

Rs.70,000/- towards medical expenses. The deceased was

aged about 40 years and was earning Rs.250/- per day by

doing agricultural coolie work. Hence, the claimants assert

that the accident is because of actionable negligence on the

part of the driver of the offending vehicle and the claimants

being the husband and children of the deceased, filed a claim

petition under Section 166 of the M.V. Act, claiming

compensation of Rs.22,96,200/-.

4. Respondent Nos.1 and 2 appeared. Respondent

No.1-owner filed objections. The involvement of the vehicle in

the accident came to be admitted and the owner has also

admitted that the deceased has hired the entire vehicle for

transporting her goods i.e., the fertilizers and seeds. It is also

contended by respondent No.1 that the vehicle was duly

insured with respondent No.2 and the driver was possessing

valid and effective driving licence. Hence, respondent No.1 has

sought for dismissal of the claim petition as against him.

5. Respondent No.2 also filed objections denying the

allegations and assertions made in the claim petition. Even

respondent No.2 has gone to the extent of denying the

coverage of insurance of the vehicle and it is denied that the

deceased was transporting manure in the vehicle. They have

disputed the age, occupation and income of the deceased and

further contended that the driver was not possessing valid and

effective driving licence. It is also asserted that there is no

nexus between the accident and the alleged death and further

contended that the deceased was unauthorized passenger

travelling in a goods vehicle and she being gratuitous

passenger is not covered under the policy. Hence, they

prayed for dismissal of the claim petition.

6. The Tribunal, after assessing the oral and

documentary evidence has come to a conclusion that the

claimants are entitled for a sum of Rs.3,74,000/- as

compensation. However, it has fastened the liability on

respondent No.1-owner by exonerating respondent No.2-

insurance company on the ground that there is breach of

policy conditions.

7. Being aggrieved by this judgment and award

passed by the Tribunal, the claimants have filed this appeal.

8. Heard the arguments advanced by the learned

counsel for the appellants and the learned counsel for

respondent No.2-insurance company and perused the records.

9. The learned counsel for the appellants would

contend that Ex.R1-insurance policy would establish that it is a

commercial package policy and hence, the Tribunal has erred

in exonerating the insurance company. He would also contend

that the deceased was travelling along with her goods and as

such, he would seek for fastening the liability on respondent

No.2-insurance company. He would also assert that the

compensation awarded by the Tribunal is on the lower side, as

the income and other aspects were taken on lower side.

Hence, he has sought for enhancement of the compensation.

10. Per contra, learned counsel for respondent No.2-

insurance company has supported the judgment and award

passed by the Tribunal and contended that the deceased being

a gratuitous passenger is not covered under the policy and

sought for dismissal of the appeal.

11. Having heard the arguments and after perusing

the oral and documentary evidence, it is evident that there is

no dispute of the fact that the offending vehicle was insured

with respondent No.2-insurance company. Further, it is also

evident from Ex.R1 that the policy is commercial package

policy. The Tribunal has come to a conclusion that the

deceased was a gratuitous passenger. According to the

claimants, the deceased was travelling in the vehicle along

with her goods. In this context, learned counsel for

respondent No.2-insurer has invited the attention of the Court

towards recitals of FIR and complaint, which are silent

regarding the deceased travelling along with goods and hence,

he would contend that the deceased was a gratuitous

passenger. However, this issue has been dealt in the decision

of the Hon'ble Apex Court reported in AIR 2017 SC 1204

(Manuara Khatun v. Rajesh Kr. Singh), wherein the

Hon'ble Apex Court has held that even if the deceased is

travelling as a gratuitous passenger, then the insurance

company is liable to pay the compensation and recover the

same from the owner.

12. In this context, the learned counsel for respondent

No.2 has placed reliance on a decision of the Division Bench of

this Court in MFA No.101633/2014 (Kariyamma W/o Ugrani

Chandrappa and others vs. Kumar S/o Marappa and another)

and the decision of the Hon'ble Apex Court reported in (2017)

4 SCC 803 (National Insurance Company vs. Roshan Lal

and another). But, the facts and circumstances are entirely

different. In the decision reported in (2017) 4 SCC 803

(Supra), the Hon'ble Apex Court has clearly held that there

shall be an order of pay and recovery. Further, in the other

decision relied on by the learned counsel for respondent No.2,

it is in respect of an Act policy. But, in the instant case, the

policy is a commercial package policy and hence, the liability

of the insurance company is covered. Even in the decision

reported in AIR 2019 SC 3934 (Anu Bhanvara Etc. v.

IFFCO Tokio General Insurance Company Limited and

others), the Hon'ble Apex Court has clearly held that the

insurance company is liable to pay the compensation and

recover the same from the owner, if there is breach of policy

conditions.

13. Apart from that, it is also important to note here

the nature of accident. The vehicle did not met with the

accident while moving on the road along with the deceased,

but the vehicle has halted and when the deceased was getting

down it moved, which has resulted in the accident. Under

these circumstances, considering the peculiar facts and

circumstances, the deceased cannot be termed as a gratuitous

passenger so as to deny the benefit of claiming the

compensation from the insurance company. Under these

circumstances, it is the respondent No.2-insurance company,

which is required to pay the compensation and is at liberty to

recover the same from the owner.

14. Now the other issue is regarding enhancement.

Admittedly, the deceased was survived by the claimants, who

are husband and two children. The deceased was aged about

56 years. Though it is asserted that the deceased was earning

Rs.250/- per day and though it is claimed that considering the

service rendered by her in the house at Rs.100/- per day she

was earning Rs.10,500/- per month, no material evidence was

placed. In the absence of any other material evidence, the

Tribunal has taken the income of the deceased at Rs.4,500/-

per month. The accident has occurred in the year 2012. This

Court is consistently taking the notional income at Rs.6,500/-

per month in respect of accidents occurred in the year 2012.

Hence, the income taken by the Tribunal is on the lower side.

Further, the deceased was aged about 56 years, which is

evident from the P.M. report. Though it is asserted as 40

years in the judgment, that is not proper, as the medical

evidence establish that she is aged about 56 years. Hence, 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, 10% is required to be

added towards loss of future prospects. Hence, the total

income of the deceased would be Rs.7,150/- per month.

Considering the age of the deceased, multiplier '9' is

applicable. Since there are 4 dependents, 1/4th is required to

be deducted. Hence, the total loss of dependency would work

out to Rs.5,79,150/- (Rs.7150 x 12 x 9 x 3/4).

15. Since there are four claimants being the husband

and three children of the deceased, they are entitled for

Rs.40,000/- each, amounting to Rs.1,60,000/- under the head

of loss of consortium 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.

16. Further, the claimants are entitled for Rs.15,000/-

under the head of funeral expenses and Rs.15,000/- under the

head of loss of estate.

17. As such, the claimants are entitled for total

compensation under various heads as under:

      Sl.No. Heads                           Amount

      1.     Loss of dependency              Rs.5,79,150/-

      2.     Loss of consortium              Rs.1,60,000/-

      3.     Loss of estate                  Rs.15,000/-

      4.     Funeral expenses                Rs.15,000/-

                              Total          Rs.7,69,150/-

Hence, the claimants are entitled for total compensation

of Rs.7,69,150/- with interest at 6% p.a. as against

Rs.3,74,000/- awarded by the Tribunal.

18. Considering these facts and circumstances, the

appeal needs to be allowed in respect of quantum as well as

liability. Accordingly, I proceed to pass the following:

ORDER

i. The appeal is allowed.

ii. The judgment and award dated 11.07.2014 passed by the Tribunal in MVC No.1051/2013 are hereby modified.

iii. The claimants are held entitle for total compensation of Rs.7,69,150/- as against Rs.3,74,000/- awarded by the Tribunal.

iv. The enhanced compensation shall carry interest at the rate of 6% p.a. from the date of petition till realization.

v. Respondent Nos.1 and 2 are jointly and severally liable to pay the compensation and the primary liability to pay the compensation is fixed on respondent No.2-insurance company.

vi. Respondent No.2-insurance company is directed to deposit the entire compensation with interest accrued thereon within six weeks from the date of this judgment and is at liberty to recover the same

from respondent No.1-owner for breach of policy conditions.

vii. The apportionment, disbursement and deposit shall be as per the award of the Tribunal.

Sd/-

JUDGE

LG