Karnataka High Court
The Divisional Manager vs Smt. Gourawwa W/O Yamanappa ... on 19 September, 2022
Bench: H.P.Sandesh
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MFA No. 21523 of 2011
C/W MFA No. 23137 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. 21523 OF 2011 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 23137 OF 2011
IN MFA No.21523/2011
BETWEEN:
THE DIVISIONAL MANAGER
NEW INDIA ASSURANCE CO. LTD.,
BIJAPUR, THROUGH THE AUTHORIZED SIGNATORY
NEW INDIA ASSURANCE CO. LTD.,T.P.HUB,
SRINATH COMPLEX, II FLOOR, NEW COTTON MARKET,
HUBLI-580 022.
...APPELLANT
(BY SRI. M K SOUDAGAR, ADVOCATE)
AND:
1. SMT. GOURAWWA W/O YAMANAPPA KADAPPANAVAR
AGE:41 YEARS, OCC:HOUSEHOLD WORK,
R/O LINGANUR, TQ:JAMKHANDI,
DIST:BAGALKOT.
2. SAGAREPPA S/O SAGAREPPA @ YAMANAPPA
KADAPPANAVAR
SINCE DECEASED BY HIS LRS
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MFA No. 21523 of 2011
C/W MFA No. 23137 of 2011
R2(A) GOURAWWA W/O YAMANAPPA KADAPPANAVAR
ALREADY ON RECORD AS R1.
R2(B) MALLAWWA W/O IRAPPA KADAPPANAVAR
AGE: 38 YEARS, OCC: HOUSEHOLD WORK
R2(C) YALAWWA W/O SANGAPPA GOUDAR
AGE: 37 YEARS, OCC: HOUSEHOLD WORK
R2(D) ISHWARAPPA S/O SAGAREPPA KADAPPANAVAR
AGE: 41 YEARS, OCC: AGRICULTURE
R2(E) SOMAWWA W/O LAXMAN KOTAGOL
AGE: 35 YEARS, OCC: HOUSEHOLD WORK
R2(F) MAHADEV S/O SAGAREPPA KADAPPANAVAR
AGE: 33 YEARS, OCC: AGRICULTURE
ALL ARE R/O: LINGANUR, TQ: JAMAKHANDI.
3. RUKMAWWA W/O SAGAREPPA KADAPPANAVAR
AGE:68 YEARS, OCC:NIL, R/O LINGANUR,
TQ:JAMKHANDI,
4. ASLAM S/O BASHASAB JAMADAR
AGE: MAJOR, OCC:BUSINESS,
R/O TIPPU SULTAN CIRCLE,TQ:JAMKHANDI,
DIST:BAGALKOT.
5. SADASHIV S/O VALABASAPPA MODI
AGE: MAJOR, OCC:BUSINESS,
R/O. JAMKHANDI, DIST:BAGALKOT.
...RESPONDENTS
(SRI S.S.SAJJAN, ADVOCATE FOR R1, R2(B-F) & R3;
R2A IS NONE OTHER THAN R1;
SRI. K.S.PATIL, ADVOCATE FOR R4;
R5 SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF M.V.ACT,
AGAINST THE JUDGMENT AND AWARD DATED 30.10.2010 PASSED
IN MVC No.748/2008 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE
AND MACTV, JAMKHANDI, AWARDING COMPENSATION OF
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MFA No. 21523 of 2011
C/W MFA No. 23137 of 2011
Rs.3,40,000/- WITH INTEREST AT THE RATE OF 6% P.A. FROM THE
DATE OF PETITION TILL ITS DEPOSIT.
IN MFA NO. 23137 OF 2011
BETWEEN:
1. SMT. GOURAVVA KOM YAMANAPPA KADAPPANAVAR,
AGE 49 YEARS, OCC: HOUSEHOLD,
2. SRI. SAGARAPPA S/O. SAGAREPPA @ YAMANAPPA,
KADAPPANAVAR, SINCE DIED, REP. BY L.RS.
2A. MALLAWWA W/O. IRAPPA KADAPPANAVAR,
AGE 40 YEARS, OCC: HOUSEHOLD,
2B. YALLAWWA W/O. SANGAPPA GOUDAR,
AGE 38 YEARS, OCC: HOUSEHOLD,
2C. ISHWARAPPA S/O. SAGAREPPA KADAPPANAVAR,
AGE 41 YEARS, OCC: AGRICULTURE,
2D. SOMAWWA W/O. LAXMAN KOTAGOL,
AGE 35 YEARS, OCC: HOUSEHOLD,
2E. MAHADEV S/O. SAGAREPPA KADAPPANAVAR,
AGE 33 YEARS, OCC: AGRICULTURE,
3. RUKMAWWA W/O. SAGAREPPA KADAPPANAVAR,
AGE 77 YEARS, OCC: HOUSEHOLD,
ALL ARE R/AT LINGANUR, TQ. JAMKHANDI,
DIST. BAGALKOT.
APPELLANTS
(SRI. SIDDAPPA S. SAJJAN, ADVOCATE FOR APPELLANTS)
AND:
1. ASALM S/O. BASHASAB JAMADAR,
AGE MAJOR, OCC: BUSINESS,
R/AT TIPPU SULTAN CIRCLE,
TQ. JAMKHANDI, DIST. BAGALKOT.
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MFA No. 21523 of 2011
C/W MFA No. 23137 of 2011
2. SADASHIV S/O. VALABASAPPA MODI,
AGE MAJOR, OCC : BUSINESS,
R/AT JAMKHANDI, DIST. BAGALKOT.
3. THE BRANCH MANAGER,
NEW INDIA ASSURANCE CO., LTD.,
BRANCH OFFICE HANUMASHETTY BUILDING,
GURUKUL ROAD, BIJAPUR.
...REPONDENTS
(SRI. M.K.SOUDAGAR, ADVOCATE FOR R3;
NOTICE TO R1 AND R2 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF M.V.ACT,
AGAINST THE JUDGMENT AND AWARD DATED 390.10.2010 PASSED
IN MVC No.748/2008 ON THE FILE OF THE PRL. SENIOR CIVIL
JUDGE, JAMKHANDI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE TWO APPEALS COMING ON FOR ORDERS THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING HEARING THIS DAY,
THE COURT PASSED THE FOLLOWING:
JUDGMENT
Heard the appellant counsel and also the counsel
appearing for the respondents.
2. These two appeals are filed by the Insurance
company, as well as the claimants, questioning the liability
and also the quantum of compensation.
3. The factual matrix of the case of the claimants
before the tribunal is that, on 06.03.2008 at 7.00 p.m.,
MFA No. 21523 of 2011
C/W MFA No. 23137 of 2011
the deceased was proceeding in the motorcycle from
Galagali to Hanchinal and when he reach near the Galagali
cross, the motorcyclist of KA-28/H949 driven the same in
a rash and negligent manner and dashed against the
motorcycle of the deceased, as a result, he has sustained
injuries and succumbed to the injuries. Hence, the claim
petition was filed before the tribunal contending that, the
deceased was earning Rs.8,000/- per month and on
account of the untimely death of the deceased, the
claimants have lost the bread earner i.e. husband and also
son. One of the claimants has been examined as P.W.1
and got marked documents at Ex.P.1 to P.12. On the other
hand, the respondents have not led any evidence before
the trial Court.
4. The tribunal after considering both oral and
documentary evidence allowed the claim petition granting
compensation of Rs.3,40,000/- with 6% interest. Hence,
the present appeal is filed by the Insurance company as
well by the claimants.
MFA No. 21523 of 2011
C/W MFA No. 23137 of 2011
5. The main contention of the Insurance company
is that the liability fastened on the Insurance Company is
erroneous, though the policy which is marked as Ex.P.10 is
subject to proof and the same has not been proved and
the counsel also would submits that, the policy which is
marked is a fake policy and no such policy is issued in
favour of the Insured and hence, the trial Court ought not
to have allowed the claim petition fastening the liability on
the Insurance company and hence, the impugned
Judgment and award is liable to be set aside. Learned
counsel for the appellant further submits that, this Court
has also directed him to file an affidavit and to that effect
and an affidavit is also filed before this Court.
6. Per contra, the learned counsel appearing for
the Insured/owner would submits that, in the written
statement there is a specific mentioning of the policy
number and the date and the same has not been denied
by the Insurance company and also even not disputed
before the trial Court regarding the validity of the policy
MFA No. 21523 of 2011
C/W MFA No. 23137 of 2011
and for the first time before this Court, took the contention
that no such policy was in existence and the same is fake
policy and no cross-examination was made to that effect
and hence, the very contention cannot be accepted.
7. The counsel appearing for the claimants would
also contends that, no cross-examination was made to
that effect and also in the written statement, specifically
the Insured had contended that the policy was in existence
as on the date of the accident and the same is also
marked as Ex.P.10 and though it is subject to proof and
the same has not been disputed by the Insurance
company during the trial and hence, now they cannot
contend that the policy was not in force.
8. The counsel also would submits that, the
tribunal failed to take note of the fact that, the deceased
was an agriculturist and he was 48 years old and the
family lost the earning member of the family and the
accident was taken place in the year 2008 and in terms of
the notional income, the income would be Rs.4,250/-. But
MFA No. 21523 of 2011
C/W MFA No. 23137 of 2011
the tribunal has taken only the income of Rs.3,000/- per
month and apart from that, future prospectus has not
been awarded and also the compensation awarded under
the other heads are also meager and hence, it requires
interference by modifying the Judgment and award.
9. Having heard the respective counsel and also
on perusal of the material available on record, the points
that would arise for consideration of this Court are :
(i) Whether the tribunal has committed an error in
fastening the liability on the Insurance company in
the absence of the policy which is in force?
(ii) Whether the tribunal has committed an error in
not awarding just and reasonable compensation ?
(iii) What order ?
10. Answer to Point No.1 : Having heard the
respective counsel and also on perusal of the material, the
claim petition was filed, wherein the claim petition, the
policy detail are given in the petition filed under Section
166 of the M.V.Act. The Insured also filed written
statement in paragraph No.2, reiterated the policy number
MFA No. 21523 of 2011
C/W MFA No. 23137 of 2011
what has been mentioned in the claim petition and this
written statement was filed on 29.07.2009. The Insurance
company also filed the written statement subsequent to
the filing of the written statement filed by the Insured i.e.
on 30.09.2009, almost after lapse of two months of the
filing of the written statement filed by the Insured. The
claimant also examined as P.W.1 and in the evidence of
P.W.1, the claimant reiterated the averments of the claim
petition in the affidavit and P.W.1 was also got marked the
documents at Ex.P.1 to Ex.P.12 including the copy of the
policy which is marked as Ex.P.10. In the cross-
examination of the P.W.1 by the counsel appearing for the
first respondent and the Insurance company not disputed
the evidence of P.W.1, with regard to the Ex.P.10 and no
suggestion was made that there was no any policy as on
the date of the accident and even not denied the same and
now only for the first time, took the defence that the
policy is a fake policy. No doubt, Ex.P.10 policy is marked
subject to proof, but during the course of cross-
examination the policy details has not been denied by the
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MFA No. 21523 of 2011
C/W MFA No. 23137 of 2011
Insurance company and instead of in the claim petition as
well as in the written statement filed by the Insured, full
details of policy is also given and there is no specific denial
that no policy was in force as on the date of the accident.
It is also important to note that, now for the first time, it is
contended that, the policy is a fake policy and in order to
prove the contention of fake policy, not examined any
witness before the trial Court. The counsel also would
submits that, this Court has directed the appellant to file
an affidavit before this Court that the policy is a fake
policy and no doubt the policy is not placed by the original
owner before the trial Court, but the same has been got
marked through the claimants and no such effort is made
by the Insurance company either to deny or to take the
contention that the policy is a fake policy and for the first
time, the said ground has been urged before this Court,
and when such being the case, when the defence of fake
policy is not proved before the trial Court, either by
examining any witness or effectively cross-examining the
witness P.W.1, now in the appeal cannot contend the same
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MFA No. 21523 of 2011
C/W MFA No. 23137 of 2011
and also not filed any application under Order 41 Rule 27
of CPC, to place any material before the Court except filing
of the affidavit and ought to have at least placed the
additional material before the Court. If additional material
is placed before this Court, this Court would have invoked
the jurisdiction of remanding the matter to the trial Court.
The counsel appearing for the appellant would contend
that, the matter may be remanded and question of
remanding does not arise when no specific defence is
taken and also not placed any additional material before
this Court and hence, I do not find any error committed by
the tribunal in fastening the liability on the Insurance
company and hence, I do not find any merit in the
contention of the Insurance company to reverse the
finding and hence, I answer point No.1 as negative.
11. Answer to Point No.2 : The contention of the
counsel appearing for the claimants is that, the income
was taken only Rs.3,000/- and the notional income would
be Rs.4,250/-. In terms of the Postmortem report, he is
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MFA No. 21523 of 2011
C/W MFA No. 23137 of 2011
aged about 48 years and the claimants are wife and two
parents and 1/3rd has to be deducted. Having taken the
notional income of Rs.4,250/-, 25% has to be added as
additional prospectus. If it is added additional 25% to
Rs.4,250/-, it comes to Rs.5,312/- and out of that, 1/3rd
has to be deducted, which comes to Rs.3,542/-. Hence,
the loss of dependency would be Rs.3,542/-
X12X13=Rs.5,52,552/-. The claimants are also entitle
for an amount of Rs.40,000/- each under the head of loss
of love and affection and also consortium, which in total
comes to Rs.1,20,000/-. The claimants are also entitle
for an amount of Rs.33,000/- towards loss of estate and
funeral expenses. In all the claimants are entitle for
compensation of Rs.7,05,552/-.
12. Answer to Point No.3 :In view of the
discussions made above, I pass the following:
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MFA No. 21523 of 2011
C/W MFA No. 23137 of 2011
ORDER
The appeal filed by the claimants is allowed in part
and the appeal filed by the Insurance company is
dismissed.
The Judgment and award dated 30.10.2010 passed
in MVC No.748/2008 by the Principal Senior Civil Judge
and MACT-V, Jamkhandi, is modified. The claimants are
entitle for compensation of Rs.7,05,552/- as against
Rs.3,40,000/- awarded by the tribunal. The claimants are
entitle for 6% interest on the enhanced compensation.
The amount in deposit if any, is ordered to be
transmitted to the tribunal, forthwith.
The Registry to send back the TCR if any, to the
concerned tribunal, forthwith.
SD/-
JUDGE
SVH
