Karnataka High Court
Thayamma vs Reliance General Ins Co Ltd on 22 June, 2022
Bench: Hanchate Sanjeevkumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JUNE, 2022
BEFORE
THE HON'BLE Mr. JUSTICE HANCHATE SANJEEVKUMAR
M.F.A.NO.7184/2017 C/W
M.F.A.NO.1478/2018 (MV)
IN M.F.A. No.7184/2017
BETWEEN:
THE BRANCH MANAGER,
RELIANCE GENERAL INSURANCE CO. LTD.,
1ST FLOOR, P.B.ROAD,
MAGANOOR COMPLEX,
CHITRADURGA.
LEGAL MANAGER,
RELIANCE GENEAL INSURANCE CO. LTD.,
REGIONAL OFFICE,
5TH FLOOR, CENTENARY BUILDING,
NO.28, M G ROAD,
BANGALORE - 560 001.
...APPELLANT
(BY SRI.PRADEEP B., ADVOCATE )
AND:
1. THAYAMMA,
W/O HANUMANTHAPPA,
NOW AGED ABOUT 41 YEARS,
2. MANJULA D.,
D/O LATE HANUMANTHAPPA,
W/O RUDRASWAMY,
NOW AGED ABOUT 23 YEARS,
2
3. MANGALAMMA,
D/O LATE HANUMANTHAPPA,
NOW AGED ABOUT 21 YEARS,
4. SAKAMMA,
D/O LATE HANUMANTHAPPA,
NOW AGED ABOUT 19 YEARS,
5. KAVITHA,
D/O LATE HANUMANTHAPPA,
NOW AGED ABOUT 17 YEARS,
6. THIPPESWAMY,
S/O LATE HANUMANTHAPPA,
NOW AGED ABOUT 15 YEARS,
RESPONDENT NO.5 AND 6 ARE MINORS
REPRESENTED BY THEIR
NATURAL GUARDIAN
MOTHER AS 1ST RESPONDENT,
ALL R/AT DODDA BEERENAHALLY,
CHITRADURGA TALUK
AND DISTRICT - 577 501.
7. MUNAWAR BASHA,
S/O LATE PYAREJAN SAB,
MAJOR, R/O BEHIND BACKSIDE OF KSFC
SOCIETY , CHELUGUDDA,
CHITRADURGA - 577 501.
...RESPONDENTS
(BY SRI SPOORTHY HEGDE N., ADVOCATE FOR R1 TO R6;
R5 AND R6 ARE MINORS REPRESENTED BY R1;
R7 - NOTICE DISPENSED WITH VIDE ORDER
DATED 22.06.2022)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
01.08.2017 PASSED IN MVC NO.689/2014 ON THE FILE OF
THE 1ST ADDITIONAL SENIOR CIVIL JUDGE AND MACT-IV
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AT CHITRADURGA, AWARDING COMPENSATION OF
RS.12,06,400/- WITH INTEREST AT THE RATE OF 6% P.A.
FROM THE DATE OF FILING OF THE PETITION TILL THE
DATE OF REALIZATION.
IN M.F.A. No.1478/2018
BETWEEN:
1. THAYAMMA,
W/O HANUMANTHAPPA,
AGED ABOUT 42 YEARS,
2. MANJULA,
D/O LATE HANUMANTHAPPA,
AGED ABOUT 24 YEARS,
3. MANGALAMMA,
D/O LATE HANUMANTHAPPA,
AGED ABOUT 22 YEARS,
4. SAKAMMA,
D/O LATE HANUMANTHAPPA,
AGED ABOUT 20 YEARS,
5. KAVITHA,
D/O LATE HANUMANTHAPPA,
AGED ABOUT 18 YEARS,
6. THIPPESWAMY,
D/O LATE HANUMANTHAPPA,
AGED ABOUT 16 YEARS,
APPELLANT NO.6 IS MINOR AND
REPRESENTED BY HER NEXT FRIEND
AND NATURAL GUARDIAN
I.E 1ST APPELLANT HEREIN.
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ALL ARE RESIDENTS OF
DODDA BEERENAHALLY,
CHITRADURGA TALUK
AND DISTRICT - 577 501.
... APPELLANTS
(BY SRI.SPOORTHY HEGDE N., ADVOCATE )
AND:
1. RELIANCE GENERAL INS. CO. LTD.,
BY ITS BRANCH MANAGER,
1ST FLOOR, P.B.ROAD,
MAGANOOR COMPLEX,
CHITRADURGA - 577 501.
2. MANAWAR BASHA,
S/O LATE PYAREJAN SAB,
MAJOR,
OWNER OF AUTO
REGN. NO.KA-16/A-4882,
R/O BEHIND BACKSIDE OF KSFC, SOCIETY,
CHELUGUDDA,
CHITRADURGA - 577 501.
... RESPONDENTS
(BY SRI.PRADEEP B., ADVOCATE FOR R1;
R2 - NOTICE DISPENSED WITH VIDE ORDER
DATED 18.06.2019 IN MFA NO.7184/2017)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
01.08.2017 PASSED IN MVC NO.689/2014 ON THE FILE OF
1ST ADDITIONAL SENIOR CIVIL JUDGE & ADDITIONAL
MACT-IV, CHITRADURGA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
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THESE M.F.As COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.7184/2017 is filed under Section-173(1)
of the Motor Vehicles Act 1988, (hereinafter referred
to as 'MV Act' for brevity) by the insurance company,
challenging the judgment and award dated
01.08.2017, passed in MVC No.689/2014, on the file
of First Additional Senior Civil Judge and Additional,
MACT-IV, Chitradurga (hereinafter referred to as 'the
Tribunal' for brevity) seeking to set aside the said
judgment and award.
2. MFA No.1478/2018 is filed under Section-
173(1) of the Motor Vehicles Act 1988, (hereinafter
referred to as 'MV Act' for brevity) by the appellants-
claimants, seeking modification of the judgment and
award dated 01.08.2017, passed in MVC
No.689/2014, on the file of First Additional Senior Civil
Judge and Additional, MACT-IV, Chitradurga
(hereinafter referred to as 'the Tribunal' for brevity)
and enhancement of the compensation amount.
3. Brief facts of the case are as under:
On 26.08.2014 at about 10.30 a.m., one
Hanumanthappa along with his villagers were standing
on the left side of road near Taluk Office compound,
Ambedkar Circle, Chitradurga. At that time, the driver
of Autorikshaw bearing No.KA-16/A-4882 drove it in a
rash and negligent manner with high speed and
dashed against the Hanumanthappa, as a result, he
sustained severe bleeding injuries. Immediately, he
was shifted to District Hospital, then to NIMHANS
Hospital, Bangalore. Despite better treatment, he
succumbed to the injuries.
4. In the present case, the Tribunal has given
finding that, there is a contributory negligence on the
part of the driver of the Auto Rikshaw and the
deceased Hanumanthappa respectively at the ratio of
80:20. Therefore, the Tribunal has awarded 80% of
the compensation to the claimants by deducting 20%
of the amount out of the total compensation.
5. The learned counsel appearing for the
appellants/claimants submits that the place of
accident is opposite side to the Taluk Office,
Chitradurga and it is within the city limits of
Chitradurga and busy road and the driver of the
autorickshaw was supposed to drive slowly and
carefully and cautiously as it is busy road. The
deceased died in the said accident, therefore, it shows
that, the driver of the Auto was driving the same in a
rash and negligent manner with high speed.
Therefore, the learned counsel for the appellants
submits that the entire negligence is to be attributed
on the driver of the offending Auto. Learned counsel
further submits that upon considering the spot
mahazer and sketch-Ex.P3 and P4, the place of
accident is in front of Taluk Office, Chitradurga. The
place of accident is 15 feet away from Mahaveer Circle
and 4 feet away from the footpath. Therefore,
considering these aspects that the road on which, the
accident was caused is a busy road and the same is
within the city limits. Therefore, the driver of the auto
ought to have driven the same very slowly, carefully
and cautiously and at the same time, the deceased
Hanumanthappa was crossing the road and the
accident was occurred. Therefore, considering these
aspects, the deceased might have attributed 10%
negligence. Therefore, the driver of the auto has
attributed 90% negligence. Hence, considering all
these factors, contributory negligence is to be
assessed at 90:10 between driver of the Auto and the
deceased respectively. Therefore, submitted that, in
this regard, the judgment and award is to be modified
by enhancing compensation amount awarded by the
Tribunal.
6. The compensation awarded by the Tribunal
under various heads are as follows:
1 Loss of dependency Rs.10,53,000/-
2 Loss of consortium Rs.80,000/-
3 Love and affection Rs.2,50,000/-
4 Loss of estate Rs.50,000/-
5 Transportation and Funeral Rs.25,000/-
Expenses
6 Loss of life expectancy Rs.50,000/-
TOTAL Rs.15,08,000/-
7. Heard the learned counsels and perused
the material on record.
8. The deceased was working as a mason.
The accident was occurred in the year 2014. The
Tribunal had considered notional income of the
deceased at the rate of 6,000/- per month and added
30% of monthly income of the deceased by
considering the age of the deceased towards loss of
future prospects. The year of accident was 2014. The
Tribunal has considered the notional income of the
deceased at Rs.6,000/- per month and added 30%
towards loss of future prospects. But considering the
year of accident, the notional income at Rs.8,500/-
ought have been taken by the Tribunal as per the
Notional Income Chart recognized by the Karnataka
State Legal Service Authority. As per the principles of
law laid down by the Hon'ble Apex Court in the case of
National Insurance Co. Ltd. Vs. Pranay Sethi and
others reported in (2017) 16 SCC 680, 25% of
income is to be added to the income towards loss of
future prospects in life as the deceased was aged 40
years as on the date of the accident, but the Tribunal
has committed error by taking 30%. Further according
to the age of the appellant, the appropriate multiplier
is "15". The legal dependants are wife and five
children and among them three children are minors at
the time of the accident. Therefore, 1/4th is to be
deducted towards personal and living expenses of the
deceased and remaining 3/4th is the contribution by
the deceased to the family. Therefore, loss of
dependency including loss of future prospects in life is
calculated and quantified as follows:
Rs.8,500/- + Rs.2,125/- (25%) = Rs.10,625/-
Rs.10,625/- x 3/4 x 15 x 12=Rs.14,34,375/-
9. The Tribunal has awarded compensation of
Rs.80,000/- towards loss of consortium, but each
claimants are entitled to Rs.40,000/- under the said
head. Hence, all the claimants are entitled to
Rs.2,40,000/- under the head "loss of consortium".
The Tribunal has awarded Rs.2,50,000/- under the
head "love and affection", but as per the principles of
law laid down by the Hon'ble Apex Court in the case of
MAGMA GENERAL INSURANCE COMPANY
LIMITED VS. NANU RAM ALIAS CHUHRU RAM
AND OTHERS reported in (2018) 18 CC 130, loss of
love and affection and loss of consortium are one and
the same and if any compensation is awarded under
the head loss of consortium, then there is no
necessary to once again award compensation under
the head loss of love and affection. Therefore,
compensation of Rs.2,50,000/- is set aside, which is
awarded under the head "loss of love and affection".
10. Further the Tribunal has awarded
compensation of Rs.50,000/- under the head "loss of
estate", Rs.25,000/- is awarded towards
"transportation and funeral expenses" and
Rs.50,000/- is awarded under the head "loss of life
expectancy", which are correct. Therefore, there is no
disturbance can be made on these heads.
11. Therefore, the appellants/claimants are
entitled for compensation under various heads as
follows:
1 Loss of dependency Rs. 14,34,375/-
2 Loss of consortium Rs. 2,40,000/-
3 Loss of estate, Rs. 1,25,000/- Kept in tact
Transportation and
Funeral Expenses
and Loss of life
expectancy
TOTAL Rs.17,99,375/-
12. Therefore, as observed above, there was
10% of negligence on the part of the deceased in
causing the accident. Therefore, the
appellants/claimants are entitled to 90% of
compensation, which comes to Rs.16,19,437/-
(Rs.17,99,375/- x 90%).
13. The Tribunal has awarded the
compensation of Rs.15,08,000/-, but the
appellants/claimants are entitled to total
compensation of Rs.16,19,437/- (Rs.17,99,375/- x
90%) as the deceased has attributed 10% of
contributory negligence in causing the accident.
Hence, the appellants/claimants are entitled to
enhanced compensation of Rs.1,11,437/-
(Rs.16,19,437/- - Rs.15,08,000/-). Therefore, the
appellants/claimants are entitled to enhanced
compensation of Rs.1,11,437/- along with interest at
the rate of 6% per annum from the date of petition till
the date of realization.
14. Learned counsel for the Insurance
Company submitted that as on the date of the
accident, the appellants/claimants did not have the
fitness certificate. Therefore, the Insurance Company
is not liable to pay the compensation. Ex.R4 is the
fitness certificate issued by the RTO, Chitradurga,
which reveals that the offending vehicle was having
permit from 03.04.2013 to 02.04.2014 and then
renewed from 25.11.2014 to 24.11.2015. But the
accident was occurred on 26.08.2014 on which date
there was no fitness certificate. Therefore, on these
grounds, learned counsel for the Insurance Company
prays for exonerating from paying the liability.
15. In this regard, I place reliance on the
judgment of this Court in the case of Mr.Rajesh
Poojary Vs., Mr.Rajesh and Another reported in
ILR 2019 KAR 2940 and full bench of Kerala High
Court in the case of V.M.Augustine, Vattakavumkal
Vs. Ayyappankutty alias Mani and Another
reported in AIR 2015 KERALA 131. The principles
of law laid down in the above cases are squarely
applicable to the case on hand.
16. In the above stated cases, the facts are
that as on the date of the accident, there was no
fitness certificate and it amounts to only technical
violation and there is no fundamental breach of
insurance policy. Therefore, it was held that the
Insurance Company is not entitled to disown liability
to third party. In the present case, the deceased is the
third party. Therefore, applying the principles of law
laid down in the above stated cases, even though, as
on the date of the accident, in that interregnum
period, there was no fitness certificate in respect of
autorickshaw, but this is only a technical violation and
disown of liability in respect of third party is not
applicable. Therefore, the Insurance Company is liable
to pay the compensation. Therefore, both the owner
and insurer of the autorickshaw are jointly and
severally liable to pay the compensation, since the
insurance policy was in force as admitted by both the
parties. Therefore, the appeal filed by the Insurance
Company is liable to be dismissed and the appeal filed
by the claimants is liable to be allowed-in-part.
17. Hence, I proceed to pass the following:
ORDER
MFA.No.7184/2017 filed by the Insurance
Company is dismissed and MFA.No.1478/2018 filed
by the claimants is allowed-in-part.
The impugned judgment and award dated
01.08.2017, passed in MVC No.689/2014, on the file
of First Additional Senior Civil Judge and Additional,
MACT-IV, Chitradurga, is modified to the extent that
the appellants/claimants in MFA.No.1478/2018 are
entitled to the compensation amount of
Rs.1,11,437/- with the rate of interest at 6% per
annum from the date of petition till the date of
realization. The apportionment made by the Tribunal
is kept in tact.
The amount in deposit made by the Insurance
Company shall be transmitted to the Tribunal along
with TCR and copy of this order.
Draw award accordingly.
No order as to costs.
Sd/-
JUDGE
JS/PB
