The Divisional Manager vs Sri. Siddamma W/O Late Ramesh ...
2022 Latest Caselaw 11937 Kant

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                                        MFA No. 24623 of 2011




     IN THE HIGH COURT OF KARNATAKA, DHARWAD
                            BENCH

     DATED THIS THE 19TH DAY OF SEPTEMBER, 2022

                           BEFORE
         THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 24623 OF 2011
                            (MV-D)
BETWEEN:

1.    THE DIVISIONAL MANAGER,
      THE ORIENTAL INSURANCE CO. LTD., S.B.I. UPSTAIRS,
      PRIYADARSHINI, HOTEL BESIDES, STATION ROAD,
      HOSAPETH, REP. BY ITS MANAGER, REGIONAL OFFICE,
      SUMANGALA COMPLEX, LAMINGTON ROAD, HUBLI

                                                   ...APPELLANT

(BY SRI. G N RAICHUR, ADVOCATE)

AND:

1.    SMT. SIDDAMMA W/O LATE RAMESH KYADAGUMPA,
      AGE: 35 YEARS, OCC: HOUSEHOLD, R/O MORAL VILLAGE,
      TQ. HUNAGUND, DIST. BAGALKOT. NOW R/AT
      BANNIKATTI, KOPPAL

2.    SRI. AMBARISH S/O LATE RAMESH KYADAGUMPA
      AGE: 7 YEARS, OCC: STUDENT

3.    SHRI. ABHISHEK S/O LATE RAMESH KYADAGUMPA
      AGE: 2 YEARS, OCC: NIL,

4.    SHRI. AKSHAYA S/O LATE RAMESH KYADAGUMPA
      AGE: 2 YEARS, OCC: NIL

      RESPONDENTS No.2 TO 4 ARE MINORS UNDER THE
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                                      MFA No. 24623 of 2011

     GUARDIANSHIPS OF THEIR NATURAL MOTHER SIDDAMMA
     I.E. RESPONDENT NO.1.

5.   SHRI. DYAMAPPA S/O SIDDAPPA TALABAL,
     AGE: 37 YEARS, OCC: DRIVER OF BOLERO VEHICLE
     BEARING NO. KA-02/M.J.-9189, R/O HANAWAL, TQ. and
     DIST. KOPPAL

6.   M/S GAYATRI PROJECTORS LTD.,
     S-1107/1108, 6TH CROSS, 3RD MAIN, BHARATH NAGAR,
     II PHASE, MAGADI MAIN ROAD, BANGALORE

7.   CHANNABASAPPA S/O BASAPPA KYADAGUMPA
     AGE: 65 YEARS, OCC: RETD. GOVT. EMPLOYEE, R/O
     MARAL, TQ. HUNGUND, DIST. BAGALKOT

8.   DRAKSHAYANAMMA W/O CHANNABASAPPA
     KYADAGUMPA,
     AGE: 60 YEARS, OCC: HOUSEHOLD, R/O MARAL, TQ.
     HUNGUND, DIST. BAGALKOT

                                              ...RESPONDENTS
(BY SRI. DEEPAK MAGANUR, ADVOCATE
FOR SRI. CHANDRASHEKHAR P PATIL, ADVOCATE FOR R1 TO R4,
R5 TO R8 ARE SERVED)


      THIS MFA IS FILED U/SEC. 173(1) OF MV ACT, AGAINST THE
JUDGMENT    AND   AWARD    DTD:04-05-2011   PASSED   IN   MVC
NO.634/2010 ON THE FILE OF THE MEMBER, ADDL. MACT, AND
PRESIDING OFFICER, FAST TRACK COURT-I, AT KOPPAL, AWARDING
THE COMPENSATION OF RS.14,19,400/- WITH INTEREST AT THE
RATE OF 8% P.A., FROM THE DATE OF PETIITON TILL THE DATE OF
DEPOSIT.


      THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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                                     MFA No. 24623 of 2011

                        JUDGMENT

Heard learned counsel for both the parties.

2. This appeal is filed by the Insurance Company

challenging the judgement and award passed in MVC

No.634/2010 dated 04.05.2011 on the file of Additional

MACT and Fast Track Court-I, Koppal, questioning the

liability fastened on the Insurance Company.

3. The main contention of the Insurance Company

is that the police have invoked Section 185 of Motor

Vehicles Act against the driver of the offending vehicle. It

is the case of the Insurance Company that the driver had

consumed alcohol at the time of driving the vehicle.

Counsel also submits that the Tribunal has not taken note

of the said material on record and doctor also who has

been examined in C.C.No.33/2011 has stated that the

driver has not given consent to draw the blood and

refused to give his blood and hence, he could not get the

test of alcohol and Tribunal committed an error in taking

MFA No. 24623 of 2011

note of the said fact into consideration and hence, it

requires interference.

4. Per contra, learned counsel for respondents-

claimants submits that the Tribunal in para No.11 given

the finding with regard to not proving that the driver of

the offending vehicle had consumed the alcohol and mere

taking of defence and filing of charge sheet is not enough

to comes to such a conclusion that the driver was in

drunken stage at the time of accident and hence, no

grounds are made out to reverse the finding of the

Tribunal.

5. Counsel also submits that the deceased was a

police constable and no future prospects has been added

and hence, this Court can invoke Order 41 Rule 33 of CPC

to award just and reasonable compensation.

6. In view of the rival contentions of the parties,

the following points would arise for consideration:

i. Whether the Tribunal has committed an error in not considering that there was violation of

MFA No. 24623 of 2011

policy conditions and driver drove the vehicle with the influence of alcohol and hence, liability fastened on the Insurance Company requires to be interfered with?

ii. Whether the Tribunal has committed an error in not awarding just and reasonable compensation and it is a fit case to invoke Order 41 Rule 33 of CPC to grant just and reasonable compensation?

iii. Whether rate of interest awarded by the Tribunal is exorbitant?

iv. What order?

7. Regarding Point No.1: Having heard the

learned counsel for the parties and on perusal of the

material on record, no doubt the police have filed charge

sheet against the driver of the offending vehicle invoking

an offence under Section 185 of Motor Vehicles Act that he

was driving the vehicle under intoxication and in order to

prove the said fact, except filing of charge sheet, no

material is placed before the Court. No doubt, it is the

contention of Insurance Company that doctor who has

been examined in C.C.No.33/2011 has stated that the

driver has not given consent to draw the blood and mere

taking of defence is not enough and the same has to be

MFA No. 24623 of 2011

proved and there is no alcohol report with regard to the

percentage of consumption made by the driver. When

such being the case and when the Insurance Company has

failed to prove the fact that the driver was under the

influence of alcohol by producing chemical and medical

examination report, question of fastening the liability on

the respondent-owner cannot be accepted and hence, I do

not find any merit in the appeal filed by the Insurance

Company to reverse the finding of the Tribunal with regard

to liability. Hence, point No.1 is answered in Negative.

8. Regarding point No.2: No doubt, the

deceased was a police constable and he was drawing

salary of Rs.11,620/- as per the salary certificate which is

marked at Ex.P.15. The Tribunal failed to take note of the

fact that he was also paying Rs.150/- towards professional

tax and the same has to be deducted and the same has

not been deducted. When such being the case, if it is

deducted, the same comes to Rs.11,470/-. It is rightly

pointed out by the learned counsel for the claimants that

MFA No. 24623 of 2011

even in the absence of an appeal the Court can invoke

Order 41 Rule 33 of CPC in order to meet the ends of

justice when just and reasonable compensation has not

been awarded by the Tribunal.

9. By taking note of the age of the deceased as 40

years in terms of postmortem report, 30% has to be

added to Rs.11,470/-, then it comes to Rs.14,911/-. The

dependants are six in numbers. Hence, 1/4th has to be

deducted. If it is deducted, it comes to Rs.11,184/-.

Hence, the compensation payable under the head loss of

dependency would be:

Rs.11,184 x 12 x 15 = Rs.20,13,120/-.

10. The claimants are entitled for Rs.2,40,000/-

(Rs.40,000 x 6) towards loss of love and affection and loss

of consortium. Further, the claimants are entitled for

Rs.33,000/-, towards loss of estate and funeral

expenses. In all, the claimants are entitled for

Rs.22,86,120/-. Hence, point No.2 is answered in

affirmative.

MFA No. 24623 of 2011

11. Regarding point No.3: It is contended that

the interest awarded by the Tribunal is on higher side.

Taking note of the accident is of the year 2010 and rate of

interest at nationalized bank, it is appropriate to reduce

the interest from 8% to 6%.

12. Regarding point No.3: In view of the

discussions made above, I pass the following:

ORDER

Appeal filed by the Insurance Company is dismissed.

In modification of the impugned judgment and award

passed by the Tribunal, the claimants are entitled for a

sum of Rs.22,86,120/- with interest at 6% p.a. from the

date of petition till realization as against Rs.14,19,400/-

awarded by the Tribunal.

Compensation amount is directed to be

paid/deposited within six weeks from the date of this

order.

MFA No. 24623 of 2011

Apportionment is made at the rate of 55% to wife

and 15% each in favour of minor children. Out of the

share of the wife, 50% of the amount is to be released in

her favour and remaining amount shall be kept in fixed

deposit for three years.

Entire share of the minors shall be kept in fixed

deposit till they attain the age of majority and the mother

is entitled to draw the interest quarterly to meet the

educational expenses of minor children.

Amount in deposit, if any, is ordered to be

transferred to the Tribunal forthwith.

The registry is directed to transmit the trial court

records forthwith.

Sd/-

JUDGE