Karnataka High Court
The Manager Reliance General ... vs Chandrakala W/O Late Ravindra And ... on 22 June, 2022
Bench: Sreenivas Harish Kumar, S Rachaiah
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF JUNE 2022
PRESENT
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR.JUSTICE S. RACHAIAH
MFA.No.201837/2016
C/W
MFA.No.200533/2016 (MV)
IN MFA.No.201837/2016
1. CHANDRAKALA
W/O LATE RAVINDRA MANIGIRE
AGED ABOUT 41 YEARS
OCC: HOUSEHOLD
2. SUKESH S/O LATE RAVINDRA MANIGIRE
AGED ABOUT 18 YEARS
OCC: STUDENT
3. SWETHA D/O LATE RAVINDRA MANIGIRE
AGED ABOUT 16 YEARS
OCC: STUDENT
4. SUMIT S/O LATE RAVINDRA MANIGIRE
AGED ABOUT 13 YEARS
OCC: STUDENT
5. KASHINATH S/O NINGAPPA MANIGIRE
AGED ABOUT 66 YEARS
OCC: NIL
2
6. PARAMMA W/O KASHINATH MANIGIRE
AGED ABOUT 61 YEARS
OCC: HOUSEHOLD
APPELLANTS NO.3 AND 4 ARE MINOR
R/BY MOTHER APPELLANT NO.1
ALL ARE R/O VILLAGE KANKATTA
TQ: HUMNABAD, NOW AT BANASHANKARI GALLI
BASAVAKALYAN, DIST. BIDAR
...APPELLANTS
(BY SRI SANJEEVKUMAR C. PATIL, ADVOCATE)
AND:
1. REDDY NAGNATH S/O GUNDAREDDY
AGED ABOUT 48 YEARS, OCC: BUSINESS
AND OWNER OF LORRY BEARING NO.MH-25/B-9171
TQ: BASAVAKALYAN, DIST: BIDAR - 584 101
2. THE MANAGER
RELIANCE GENERAL INSURANCE COMPANY LTD.
3RD FLOOR, ASIAN PLAZA
TIMMAPURI CIRCLE, MAIN ROAD
KALABURAGI - 585 101
...RESPONDENTS
(SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R2
R1 SERVED)
THIS MFA IS FILED UNDER SECTION 173 (1) OF THE
MOTOR VEHICLE ACT, PRAYING TO MODIFY THE
JUDGMENT AND AWARD DATED 14.12.2015 PASSED BY THE
II ADDITIONAL DISTRICT AND SESSIONS COURT AND
ADDITIONAL MACT, BIDAR SITTING AT BASAVAKALYAN IN
MVC NO.71/2015 AND ENHANCE THE COMPENSATION
AMOUNT WITH COST.
3
MFA NO.200533/2016:
BETWEEN:
THE MANAGER
RELIANCE GENERAL INSURANCE COMPANY LTD.
3RD FLOOR, ASIAN PLAZA
TIMMAPUR CIRCLE, MAIN ROAD
GULBARGA
(NOW REPRESENTED BY AUTHORIZED
SIGNATORY, DIVISION OFFICE, HUBLI)
...APPELLANT
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
AND:
1. CHANDRAKALA
W/O LATE RAVINDRA MANIGIRE
AGE: 41 YEARS
OCC: HOUSEHOLD
2. SUKESH S/O LATE RAVINDRA MANIGIRE
AGE: 18 YEARS
OCC: STUDENT
3. SWETHA D/O LATE RAVINDRA MANIGIRE
AGE: 16 YEARS
OCC: STUDENT
MINOR U/G OF HER MOTHER CLAIMANT NO.1
4. SUMIT S/O LATE RAVINDRA MANIGIRE
AGE: 13 YEARS
OCC: STUDENT
MINOR U/G OF HIS MOTHER CLAIMANT NO.1
5. KASHINATH S/O NINGAPPA MANIGIRE
AGE: 66 YEARS
OCC: NIL
4
6. PARAMMA W/O KASHINATH MANIGIRE
AGE: 61 YEARS
OCC: HOUSEHOLD
ALL R/O VILLAGE KANKATTA
TQ: HUMNABAD, NOW RESIDING AT
BANASHANKARI GALLI
BASAVAKALYAN, DIST. BIDAR - 585 401
7. REDDY NAGNATH S/O GUNDAREDDY
AGE: 48 YEARS, OCC: BUSINESS
AND OWNER CUM DRIVER OF LORRY BEARING
NO.MH-25/B-9171
R/O: VILLAGE GADDIGOUDGAON
TQ: BASAVAKALYAN, DIST: BIDAR - 585 401
...RESPONDENTS
(SRI. SANJEEVKUMAR C. PATIL, ADVOCATE FOR R1, R2,
R5 & R6;
SRI. RAJESH G. DODDAMANI, ADVOCATE FOR R7;
R3 AND R4 ARE MINORS R/BY R1)
THIS MFA IS FILED UNDER SECTION 173 (1) OF THE
MOTOR VEHICLE ACT, PRAYING TO CALL FOR THE
RECORDS AND ALLOW THE ABOVE APPEAL BY SETTING
ASIDE THE IMPUGNED JUDGMENT AND AWARD DATED
14.12.2015 IN MVC.NO.71/2015 PASSED BY THE II
ADDITIONAL DISTRICT AND SESSIONS COURT AND
ADDITIONAL MACT, BIDAR SITTING AT BASAVAKALYAN.
THESE MFAS HAVING BEEN HEARD AND
RESERVED ON 01.06.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, S. RACHAIAH J.,
DELIVERED THE FOLLOWING:
5
JUDGMENT
The claimants and the insurance company are
before this Court assailing the judgment and award
passed in MVC.No.71/2015 dated 14.12.2015 by the II
Additional District and Sessions Court and Additional
MACT, Bidar sitting at Basavakalyan (hereinafter referred
as 'Tribunal').
02. BRIEF FACTS OF THE CASE:
On 25.06.2014 at about 9.50 p.m., the deceased was
going on a motor-cycle bearing Chassis
No.MRIHA11F1A9K04406 towards Narayanpur. When he
reached Narayanpur cross, the driver of the lorry bearing
registration No.MH-25/B-9171 came in opposite direction
in a rash and negligent manner and dashed the deceased,
resultantly he was killed in the accident. Basavakalyan
police registered the case in Crime No.88/2013 against
the driver of the Lorry. After investigation charge-sheet
was filed.
03. The Tribunal after appreciating the evidence of
PW.1 and documents on record, passed an award for a
sum of `.41,74,500/- in favour of the claimants. Being not
satisfied by the award passed by the Tribunal, both the
claimants and insurance company have preferred these
appeals. The claimants have sought enhancement of
compensation and the insurance company has denied the
liability.
04. Heard Sri. Sanjeevkumar C. Patil, learned
counsel for the appellants and Smt. Preeti Patil Melkundi,
learned counsel for the respondent No.2 - insurance
company. Respondent No.1 served.
IN MFA.NO.201837/2016:-
05. The contention of Sri. Sanjeevkumar C. Patil,
learned counsel for the appellants is that the award
passed by the Tribunal is inadequate and it has to be
enhanced by taking into consideration the changed
circumstances.
06. Learned counsel for the appellants submitted
that he has preferred this appeal mainly on the three
grounds. Firstly, the Tribunal could have added 50% of
the future prospects instead of 30%. Secondly, the
Tribunal could have given the compensation towards loss
of consortium as per the recent guidelines issued by the
Hon'ble Supreme Court. Thirdly, he submitted that the
Tribunal could have deducted the personal expenditure at
the rate of 1/6th, instead of 1/4th.
07. Per contra, learned counsel for the respondent
submits that the Tribunal ought not to have fastened the
liability, on the insurance company.
08. As regards future prospects and deduction of
personal expenditure are concerned, these two issues are
interlinked. Therefore, it will be taken up together for
consideration. As could be seen from the records, the
Tribunal has considered the income of the deceased under
the heading of determination of income. The Tribunal has
awarded the future prospectus at the rate of 30%. Now,
the question is as to whether the Tribunal has awarded
the future prospects correctly or not? In order to analyze
the said issue, we have placed the reliance on the
judgment of the Hon'ble Supreme Court in the case of
National Insurance Company Ltd., V/s Pranay Sethi
reported in 2017 ACJ 2700, wherein it is held as under:-
"59.3. While determining the income, an
addition of 50% of actual salary to the income
of the deceased towards future prospectus,
where the deceased had permanent job and
was below the age of 40 years, should be
made. The addition should be 30%, if the age of
the deceased was between 40 to 50 years. In
case the deceased was between the age of 50
to 60 years, the addition should be 15%.
Actual salary should be read as actual salary
less tax.
59.4. In case the deceased was self employed
or on a fixed salary, an addition of 40% of the
established income should be the warrant
where the deceased was below the age of 40
years. The established income should be the
warrant where the deceased was below the
age of 40 years. An addition of 25% where the
deceased was between the age of 40 to 50
years and 10% where the deceased was
between the age of 50 to 60 years should be
regarded as the necessary method of
computation. The established income means
the income minus the tax component."
09. In the present case, the age of the deceased
was 47 years as on the date of accident. As per the
guidelines issued in the above case, he is coming under
the age group between 40 to 50 years category. In the light
of observation made above, the Tribunal has rightly
considered the future prospectus. Hence, Interference is
not required to the said reasons assigned by the Tribunal.
10. As regards the deduction of personal and living
expenses is concerned, the reliance is placed on the
judgment of the Hon'ble Supreme Court in the case of
United India Insurance Company Ltd., vs. Satinder
Kaur @ Satwinder Kaur, reported in 2020 SCC ONLINE
SC 410, at para 38 it is held as under:
x Where the deceased was married, the deduction
towards personal and living expenses should be
1/3rd if the number of dependants of the family
members is two to three.
x 1/4th if the number of dependants family members is
four to six; and
x 1/5th if the number of dependants family members
exceeds six.
11. Admittedly, in the present case, the number of
dependents family members is between 4 to 6, the
deduction comes to 1/4th. Hence, we find no force in the
submission of the learned counsel for the claimants to
accept his submission regarding deduction of personal
and living expenses. The Tribunal has rightly considered
and deducted the personal and living expenses. No good
grounds to interfere with.
12. As regards the loss of consortium is concerned,
the Tribunal has awarded `.10,000/- as lump-sum. Now,
let us place a reliance to the judgment of the Hon'ble
Supreme Court in the case of Magma General Insurance
Company Limited vs. Nanu Ram and others, reported
in 2018 ACJ 2782, in which it is held that the
consortium will be the right of the dependents payable by
the insurance company to the claimants. Accordingly, the
Hon'ble Supreme Court issued guidelines to award
`.40,000/- to each claimants who are the dependants. In
the present case, since the Tribunal has not awarded
compensation as per the dictum of the Hon'ble Supreme
Court, a sum of `.40,000/- can be granted to each
dependents and it workout to `.2,40,000/- (`.40,000/- x
6). Accordingly, the compensation under this head is
enhanced.
IN MFA.NO.200533/2016
13. The insurance company has raised two
grounds. Firstly, insurance company said it is not liable to
pay the compensation on the ground that the accident
had occurred on account of the negligence of the rider of
the motor-cycle. Secondly, the rider of the motor-cycle had
no driving license at the time of accident.
14. It is the contention of the insurance company
that it was fault of the rider of the motor-cycle, the
accident had occurred. In order to show the fault of the
rider of the motor-cycle, it has relied on Ex.P.5 - spot
sketch. As per the spot sketch, the accident said to have
occurred in the middle of the road, hence the Tribunal
should not have fastened the liability on the insurance
company. In this context, it is necessary to place a
reliance on the judgment of the Hon'ble Supreme Court in
the case of National Insurance Company vs. Swarna
Singh reported in (2004)1 ACJ 1. The Hon'ble Supreme
Court made the following observation that "the proposition
of law is no long res-integra that, the person who alleges
breach, must prove the same." Taking into consideration
the dictum of the Hon'ble Supreme Court, in the present
case, the insurance company has not made any efforts to
examine any witnesses to absolve its liability. Mere denial
is not sufficient to deny the liability. Since, the insurance
company has failed to prove that the accident is said to
have occurred on account of the negligence of the
deceased, it has to indemnify the claimants.
15. So far as the rider of the motor-cycle had no
valid driving licence is concerned, it is settled principle of
law that the Hon'ble Supreme Court reiterated that if there
is breach of policy, the insurance company should pay the
compensation to the claimants and recover the same from
the owner of the vehicle. As could be seen from the
records, the insurance company has made certain
attempts by filing necessary application for the production
of valid driving licence of the deceased by the claimants.
No licence was produced by the claimants. However, it is
settled principle of law that, if the driver of the vehicle met
with an accident and was killed in the accident, even if he
had no valid driving licence, the dependants are entitled
for compensation provided, the Tribunal has fixed the
liability on the insurance company. In the present case on
hand, the liability has been fixed by the Tribunal on the
insurance company. Now, the insurance company has
failed to prove the negligence on the part of the deceased.
Hence, the insurance company cannot deny the liability.
16. In the light of the observations made above, we
pass the following;
ORDER
I. MFA.No.201837/2016 is allowed in part.
II. The judgment and award passed by the Tribunal in
MVC.No.71/2015 dated 14.12.2015 is hereby
modified.
III. The appellants - claimants are entitled to a sum of
`.2,40,000/- in addition to the award passed by the
Tribunal, with interest @ 6% p.a. from the date of
claim petition till the date of realization.
IV. The insurance company is directed to deposit the
above said amount within 60 days from the date of
receipt of a certified copy of this judgment, failing
which the insurance compensation will be liable to
pay the interest at the rate of 9% after 60th day.
V. The Registry is directed to transmit the record along
with the statutory deposit if any, to the Tribunal
forthwith.
VI. MFA.No.200533/2016 filed by the insurance
company is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
KJJ
