Karnataka High Court

Geeta And Ors vs Dharmanna And Ors on 30 August, 2023

Bench: Ravi V Byrvhj

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                                                      NC: 2023:KHC-K:6869
                                                       MFA No. 202065 of 2018




                              IN THE HIGH COURT OF KARNATAKA,

                                     KALABURAGI BENCH

                          DATED THIS THE 30TH DAY OF AUGUST, 2023

                                           BEFORE
                          THE HON'BLE MR. JUSTICE RAVI V HOSMANI


                        MISCL. FIRST APPEAL NO.202065 OF 2018 (MV)
                   BETWEEN:

                   1.   GEETA W/O LATE JANARDHAN,
                        AGE: 33 YEARS, OCC: HOUSEWIFE,

                   2.   LIKHIT S/O LATE JANARDHAN,
                        AGE: 09 YEARS, MINOR,

                   3.   SATHWIK S/O LATE JANARDHAN,
                        AGE: 06 YEARS, MINOR,

                   4.   VENKATAMMA D/O LATE LAXMAN DORE,
                        AGE: 38 YEARS, UNMARRIED,

                        APPELLANT NO.2 AND 3 ARE MINORS,
                        REPRESENTED BY APPELLANT NO.1 GEETA,
Digitally signed
by                      AS GUARDIAN AND NATURAL MOTHER.
LUCYGRACE
Location: HIGH
COURT OF
KARNATAKA
                        ALL ARE R/O ANWAR VILLAGE,
                        TQ. SHAHAPUR, DIST. YADGIR,
                        NOW R/O BRESTWARPET,
                        RAICHUR-584 101.

                                                                ...APPELLANTS

                   (BY SRI. BASAVARAJ R. MATH, ADVOCATE)

                   AND:

                   1.   DHARMANNA
                        S/O BALAVANTAPPA GHANTI,
                        AGE: MAJOR, OCC: DRIVER OF TATA ACE
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                                 NC: 2023:KHC-K:6869
                                  MFA No. 202065 of 2018




     NO.KA.33/2485, R/O GUNDAGURTI,
     TQ. SHAHAPUR, DIST. YADGIR-585 223.

2.   SURESH S.,
     AGE: MAJOR, OCC: OWNER OF TATA ACE
     NO.KA.33/2485, R/O ANWAR, TQ. SHAHAPUR,
     DIST. YADGIR-585 223.

3.   ICICI LOMBARD GENERAL
     INSURANCE COMPANY LTD.,
     1-45A KOTHARI COMPLEX, STATION BAZAR,
     COURT ROAD, GULBARGA-585 103.
     POLICY NO.3003/TM-00198833/00/000
     VALID FROM: 28/01/2014 TO 27/01/2015

                                           ...RESPONDENTS

(SRI. MANJUNATH MALLAYYA SHETTY, ADVOCATE FOR R3;
 V/O DATED 17.08.2022, NOTICE TO R1 IS HELD SUFFICIENT;
 V/O DATED 30.08.2023, NOTICE TO R2 IS DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO MODIFY THE IMPUGNED
JUDGMENT AND AWARD DATED 28.04.2017 PASSED BY THE
II ADDL. DIST. AND SESSIONS JUDGE, RAICHUR, IN MVC
NO.388/2015.

    THIS APPEAL COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                       JUDGMENT

Challenging judgment and award dated 28.04.2017

passed by II Additional District and Sessions Judge at

Raichur (for short 'Tribunal') in MVC No.388/2015, this

appeal is filed.

NC: 2023:KHC-K:6869 MFA No. 202065 of 2018

2. Shri.Basavaraj R. Math, learned counsel for

appellants submitted that appeal was by claimants,

seeking enhancement of compensation. It was submitted

that in an accident that occurred on 06.10.2014,

Janardhan, aged 45 years, agriculturist travelling in Tata

Ace bearing registration no.KA-33/2485, sustained

grievous injuries, when it turtled due to blast of tyre and

he later died in hospital. Claiming compensation on

account of his untimely death, his wife, minor children and

unmarried sister filed claim petition under Section 166 of

Motor Vehicles Act against driver, owner and insurer of

vehicle.

3. Despite service of notice, driver and owner did

not appear. They were placed exparte. Only insurer

entered appearance and filed objections denying claim

petition averments and specifically contending that

deceased was travelling as gratuitous passenger in goods

vehicle and therefore, insurer was not liable to pay

compensation. It was also contended that deceased

NC: 2023:KHC-K:6869 MFA No. 202065 of 2018

contributed negligence for his death by sitting in extreme

hind portion of vehicle. Violation of policy conditions was

also alleged.

4. Based on pleadings, Tribunal framed issues and

recorded evidence of claimant as PW.1 and got marked

Exs.P1 to P8. It also examined official of insurer as RW.1

and got marked Exs.R1 and R2. On consideration, it held

that accident had occurred due to rash and negligent

driving of insured vehicle by its driver and claimants were

entitled for compensation of Rs.9,27,000/-. However, it

dismissed claim petition against respondent no.3-insurer

on ground that deceased was gratuitous passenger. It

was submitted that dismissal of claim petition against

insurer was contrary to decision of Hon'ble Supreme Court

in case of Anu Bhanvara vs. IFFCO Tokiyo General

Insurance Company Limited1. It was also submitted

that though claimants had stated that deceased was 45

years of age, earning Rs.12,000/- per month from

2020 (20) SCC 632

NC: 2023:KHC-K:6869 MFA No. 202065 of 2018

agriculture, Tribunal considered lower monthly income at

Rs.6,000/- and without adding future prospects, awarded

inadequate compensation and therefore sought

enhancement.

5. On other hand, Sri Manjunath Mallayya Shetty,

learned counsel for respondent no.3-insurer sought to

justify impugned award. It was submitted that there was

no dispute about fact that deceased was travelling in a

goods vehicle. Except mentioning about deceased

travelling in vehicle to go to market for purchase of

household articles, no specific evidence was led about

hiring of vehicle. Therefore, deceased was admittedly a

gratuitous passenger. Hence, finding of Tribunal on liability

was justified.

6. On quantum, it was submitted that, Tribunal

had granted excessive compensation towards conventional

heads and same would off set any possibility of

enhancement. It was also submitted that during cross-

examination, PW.1-wife of deceased admitted that age of

NC: 2023:KHC-K:6869 MFA No. 202065 of 2018

her husband was mentioned as 55 years in ration card and

Aadhar card of deceased. Since there was no specific

objection regarding age, adverse inference ought to have

been drawn and deceased ought to have been considered

as more than 55 years old. On above ground, sought for

dismissal of appeal.

7. Heard learned counsel, perused impugned

judgment and award and certified copies of exhibits made

available by learned counsel for claimants.

8. From above submission and since only

claimants are in appeal challenging dismissal of claim

petition against respondent no.3-insurer and seeking for

enhancement, following points would arise for

consideration:

"1. Whether Tribunal was justified in dismissing claim petition against respondent no.3-insurer?

2. Whether claimants are entitled for enhancement of compensation?"

NC: 2023:KHC-K:6869 MFA No. 202065 of 2018

Point no.1:

9. Even though in Ex.P2-complaint it is stated that

on date of accident, deceased had travelled in vehicle to

market for purchasing household articles, except said

statement, there is no other corroborative or substantive

evidence to establish same. Therefore, observation of

Tribunal that deceased was travelling in goods vehicle as

gratuitous passenger cannot be interfered with. However,

in view of decision of Hon'ble Supreme Court in case of

Anu Bhanvara (supra), even in respect of gratuitous

passenger, insurer would be liable to pay compensation,

unless it establishes that accident was caused by presence

of such gratuitous passenger. In instant case, since there

is no such evidence, as per ratio in aforesaid case, insurer

would be liable to pay compensation to claimant in first

instance and recover same from insured subsequently.

Point no.1 is thus answered partly in affirmative.

NC: 2023:KHC-K:6869 MFA No. 202065 of 2018

Point no.2:

10. Insofar as monthly income, though claimants

had stated that deceased was earning Rs.12,000/- per

month from agriculture, there is no sufficient evidence and

same has to be considered notionally. Notional income for

year 2014 is Rs.7,500/-. Therefore, Rs.7,500/- is taken as

income of deceased. Claimants are wife, two minor

children and unmarried sister of deceased i.e., four in

number. Though there is dispute about age of deceased,

merely on basis of suggestion that deceased was 55 to 60

years old, no inference can be drawn. Even insofar as

admission about age of deceased mentioned as 55 years in

ration card, Tribunal has referred to explanation offered

that it was wrongly mentioned. Ex.P8-Post Mortem report

mentions age of deceased as 45 years. Under

circumstances, determination of age of deceased between

46 and 50 years by Tribunal would not call for

interference. As per ratio in case of National Insurance

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Company Limited v. Pranay Sethi and others2,

claimants would be entitled for addition of 10% towards

'future prospects'. Deductions towards personal expenses

would be at 1/4th and multiplier applicable would be '13'.

Thus, total loss of dependency would be:

Rs.7,500 + 10% x 3/4 x 12 x 13 = Rs.9,65,250/-.

11. In addition, as per decision of Hon'ble Supreme

Court in Magma General Insurance Company Limited

vs. Nanu Ram Alias Chuhru Ram and others3 and in

United India Insurance Co. Ltd., v. Satinder Kaur

alias Satwinder Kaur and others4, claimant no.1-wife

would be entitled for Rs.40,000/- towards 'loss of

spousal consortium', claimants no.2 and 3 are entitled

for Rs.40,000/- each towards 'loss of filial consortium'

and claimant no.4 is entitled for Rs.40,000/- towards

'loss of consortium'.

(2017) 16 Supreme Court Cases 680

(2018) 18 SCC 130

AIR 2020 SC 3076

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NC: 2023:KHC-K:6869 MFA No. 202065 of 2018

12. Further, claimants would be entitled for sum

of Rs.15,000/- towards 'funeral expenses' and

Rs.15,000/- towards 'loss of estate'. Since three years

have been lapsed after rendering decision in Pranay

Sethi's case (supra), claimants would be entitled for

addition of 10% on compensation under conventional

heads i.e., Rs.19,000/-.

13. Thus, claimants would be entitled for total

compensation of Rs.11,74,250/- with interest at 6% p.a.

14. Point no.2 is answered partly in affirmative as

above. Consequently, following:

ORDER

i. Appeal is allowed in part with costs.

ii. Claimants are entitled for total compensation of Rs.11,74,250/- with interest at 6% p.a. from date of claim petition till deposit excluding interest for delayed period of 437 days in filing appeal, as against Rs.9,27,000/- awarded by Tribunal.

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NC: 2023:KHC-K:6869 MFA No. 202065 of 2018

iii. Dismissal of claim petition against respondent no.3 is set aside.

iv. Respondent no.3-insurer is held liable to pay compensation to claimants in first instance and thereafter recover same from insured.

v. Respondent no.3 is directed to deposit entire compensation with interest within six weeks from date of receipt of certified copy of this order.