Karnataka High Court

Rathnamma vs Thiru Palanivel (Pazadivel) on 17 November, 2022

Bench: H.P.Sandesh

                             1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 17TH DAY OF NOVEMBER, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                M.F.A.NO.6273/2014 (MV-I)
                           C/W.
                M.F.A.NO.6274/2014 (MV-D)

IN M.F.A.NO.6273/2014:

BETWEEN:

SHASHIKALA
AGED ABOUT 32 YEARS,
W/O. M.C. MANCHAIAH,
R/O. MACHAGOWDANAHALLI VILLAGE,
BASARALU HOBLI,
MANDYA TALUK,
MANDYA DISTRICT-571 401.                     ...APPELLANT

       (BY SRI RAVI L. VAIDYA, ADVOCATE [THROUGH VC])

AND:

1.     THIRU PALANIVEL (PAZADIVEL)
       AGED ABOUT 49 YEARS,
       S/O. KUPPANNA GOUNDER,
       PROP: POWER BOREWELL, NO.8A,
       KATTUKOTTAI MAVUREDDY PATTI POST,
       THIRUCHENGOD TALUK,
       NAMAKKAL DISTRICT,
       TAMIL NADU-600 112.

2.     THE BRANCH MANAGER
       ORIENTAL INSURANCE CO.LTD,
                              2



       MUSLIM HOSTEL COMPLEX,
       OPP. FIRE BRIGADE,
       SARASWATHIPURAM,
       MYSURU-570 009.                  ... RESPONDENTS

                   (BY SRI ANOOP, ADVOCATE FOR
           SRI B.C. SEETHARAMA RAO, ADVOCATE FOR R2;
                R1 IS SERVED & UNREPRESENTATED)

     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 05.12.2013
PASSED IN MVC NO.215/2012 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE & CJM, MACT, MANDYA, ALLOWING THE
CLAIM   PETITION    FOR   COMPENSATION    AND   SEEKING
ENHANCEMENT OF COMPENSATION.

IN M.F.A.NO.6274/2014:

BETWEEN:

RATHNAMMA
AGED ABOUT 32 YEARS,
W/O. LATE SHIVARAMU
R/O. MACHAGOWDANAHALLI VILLAGE,
BASARALU HOBLI,
MANDYA TALUK,
MANDYA DISTRICT-571 401.                     ...APPELLANT

       (BY SRI RAVI L. VAIDYA, ADVOCATE [THROUGH VC])

AND:

1.     THIRU PALANIVEL (PAZADIVEL)
       AGED ABOUT 49 YEARS,
       S/O. KUPPANNA GOUNDER,
       PROP: POWER BOREWELL, NO.8A,
       KATTUKOTTAI MAVUREDDY PATTI POST,
       THIRUCHENGOD TALUK,
                                3



      NAMAKKAL DISTRICT,
      TAMIL NADU-600 112.

2.    THE BRANCH MANAGER
      ORIENTAL INSURANCE CO. LTD.,
      MUSLIM HOSTEL COMPLEX,
      OPP. FIRE BRIGADE,
      SARASWATHIPURAM,
      MYSURU-570 009.                       ... RESPONDENTS

                    (BY SRI ANOOP, ADVOCATE FOR
            SRI B.C. SEETHARAMA RAO, ADVOCATE FOR R2;
                 R1 IS SERVED & UNREPRESENTATED)

     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 05.12.2013
PASSED IN MVC NO.214/2012 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE & CJM, MACT, MANDYA, ALLOWING THE
CLAIM   PETITION    FOR   COMPENSATION    AND   SEEKING
ENHANCEMENT OF COMPENSATION.

     THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

Though these matters are listed for admission today, with

the consent of both the learned counsel, they are taken up for

final disposal.

These appeals are filed challenging the judgment and

award dated 05.12.2013 passed in M.V.C.Nos.214/2012 and

215/2012 on the file of the Additional Senior Civil Judge & CJM

and MACT, Mandya ('the Tribunal' for short) questioning the

quantum of compensation and also the liability.

2. The parties are referred to as per their original

rankings before the Tribunal to avoid confusion and for the

convenience of the Court.

3. The factual matrix of the case of the claimant in

M.F.A.No.6273/2014 before the Tribunal is that she met with an

accident on 31.10.2011 and both upper and lower tooth were

broken. The case of the claimant in M.F.A.No.6274/2014 before

the Tribunal is that her husband Shivaramu met with an accident

on 31.10.2011 and died at the post. It is the case of the

claimants that the accident occurred due to the negligence on

the part of the driver of the lorry hearing registration No.JH-01-

L-2496.

4. The claimants, in order to substantiate their claim,

examined themselves as P.Ws.1 and 2 and got marked the

documents as Exs.P1 to P10. On the other hand, the respondent

No.2-Insurance Company examined a witness as R.W.1 and got

marked the documents as Exs.R1 to R3 and R2(a).

5. The Tribunal, after considering both oral and

documentary evidence placed on record in M.V.C.No.214/2012,

allowed the claim petition in part granting compensation of

Rs.6,30,000/- with interest at 9% per annum and in

M.V.C.No.215/2012 awarded global compensation of Rs.50,000/-

with interest at 9% per annum. Hence, these two appeals are

filed by the claimants.

6. M.F.A.No.6273/2014 is filed by the claimant

questioning the award of global compensation of Rs.50,000/-.

The learned counsel for the claimant would contend that the

global compensation awarded by the Tribunal in a sum of

Rs.50,000/- is very meager since, both the upper and lower

tooth were broken and she is having difficulty in chewing the

food.

7. M.F.A.No.6274/2014 is filed by the claimant

questioning the quantum of compensation of Rs.6,30,000/-

awarded by the Tribunal. The learned counsel for the claimant

would contend that the Tribunal committed an error in taking the

income at Rs.5,000/- per month and the notional income would

be Rs.6,500/- per month. Apart from that, no future prospects

is added while awarding compensation on the head of loss of

dependency and on the other heads also, compensation awarded

is very meager. Hence, it requires interference of this Court.

8. Per contra, learned counsel appearing for the

respondent No.2-Insurance Company would submit that the

Tribunal has considered the material available on record and

rightly awarded a global compensation of Rs.50,000/- in

M.V.C.No.215/2012 since, only the upper and lower tooth of the

claimant were broken. The counsel would also submit that in the

case in M.V.C.No.214/2012 where there is no documentary

evidence with regard to the income is concerned, the Tribunal

has taken the income of the deceased at Rs.5,000/- per month

and awarded just and reasonable compensation and it does not

require any interference. The counsel would further submit that

the liability is fastened on the insured since, there was no permit

to ply the vehicle in Karnataka and permit was there only to ply

the vehicle within the state of Jharkhand. Hence, no liability is

fastened on the Insurance Company.

9. In reply to the arguments of the learned counsel

appearing for the respondent No.2-Insurance Company, learned

counsel appearing for the appellants/claimants would submit

that the liability is also questioned before this Court and the

Tribunal ought to have ordered for pay and recovery, even

though there is no permit to ply the vehicle in the state of

Karnataka.

10. Having heard the respective counsel and also on

perusal of the material available on record with regard to the

liability is concerned, admittedly, the permit was given to ply the

vehicle only in the state of Jharkhand and there was no permit to

ply the vehicle in the state of Karnataka.

11. However, the Apex Court in AMRIT PAUL SINGH

AND ANOTHER v. TATA AIG GENERAL INSURANCE CO.

LTD. AND OTHERS reported in AIR 2018 SC 2662 held that

the offending vehicle had no permit and exceptions to necessity

for permits under Section 66 of the Motor Vehicles Act are to be

pleaded and proved. It cannot be taken aid of for seeking

absolution from liability. Use of vehicle in public place without

permit is a fundamental statutory infraction. Pay and recover

principle is applicable. Insurer though liable to pay

compensation to claimants but entitled to recover same from

owner and driver. Hence, in view of the judgment of the Apex

Court, the judgment and award of the Tribunal is modified

directing the Insurance Company to pay the compensation and

recover the same from the insured.

12. Now, coming to the quantum of compensation in

M.F.A.No.6273/2014 is concerned, the Tribunal has awarded a

global compensation of Rs.50,000/- considering the fact that

lower and upper tooth of the claimant were broken. The claimant

was inpatient for a period of 2 days and no medical bills are

produced and hence, the same does not require any

interference.

13. Now coming to the quantum of compensation in

M.F.A.No.6274/2014 is concerned, the Tribunal, while awarded

compensation under the loss of dependency, taken the income of

the deceased only at Rs.5,000/- per month and the same

erroneous and the Tribunal, ought to have taken the notional

income at Rs.6,500/- per month. Having taken the income at

Rs.6,500/- per month and adding 40% as future prospects, the

income works out comes to Rs.9,100/- per month. Out of the

income of Rs.9,100/- per month, 50% has to be deducted

towards personal expenses, since there is only one claimant.

Hence, after deducting the same, the income works out to

Rs.4,500/- per month and applying the relevant multiplier of

'15', the loss of dependency works out to Rs.8,19,000/- (4,550 x

12 x 15).

14. The claimant is entitled for compensation of

Rs.40,000/- on the head of loss of consortium. Apart from that,

the claimant is also entitled for compensation of Rs.33,000/-

towards funeral expenses and loss of estate. Hence, in all, the

claimant is entitled for compensation of Rs.8,92,000/-.

15. The learned counsel for the respondent No.2-

Insurance Company would submit that the liability is fastened on

the insured and hence, no appeal is filed with regard to the

interest is concerned and interest awarded on the compensation

at 9% per annum is exorbitant and the same has to be reduced

to 6% per annum. Having taken note of the said fact into

consideration, this Court can reduce the interest to 6% per

annum only in respect of the enhanced compensation.

16. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal filed by the claimant in M.F.A.No.6273/2014 is dismissed. The appeal filed by the claimant in M.F.A.No.6274/2014 is allowed in part.

(ii) The impugned judgment and award of the Tribunal dated 05.12.2013 passed in M.V.C.No.214/2012 is modified granting compensation of Rs.8,92,000/- as against Rs.6,30,000/- with interest at 6% per annum on the enhanced compensation from the date

of the appeal till the date of deposit and in respect of the remaining amount, the interest shall be paid at the rate of 9% per annum from the date of petition till deposit.