Karnataka High Court
Shriram Gen.Ins.Co.Ltd vs Mallavva on 18 December, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2023:KHC-D:14808
MFA No. 24425 of 2013
C/W MFA No. 24424 of 2013
MFA No. 24426 of 2013
MFA.CROB No. 100137 of 2014
MFA.CROB No. 100062 of 2015
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 18TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.24425/2013(MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO.24424/2013(MV-D)
MISCELLANEOUS FIRST APPEAL NO.24426/2013(MV-D)
MFA CROSS OBJ NO.100137/2014(MV-D)
MFA CROSS OBJ NO.100062/2015(MV-D)
IN MFA.NO.24425/2013:
BETWEEN:
SHRIRAM GEN. INS. CO. LTD.,
10003-E, E-8, EPIP, RIICO,
SITAPUR, JAIPUR-RAJASTAN - 302 022,
REPRESENTED BY ITS
Digitally AUTHORIZED SIGNATORY.
signed by ...APPELLANT
BHARATHI
HM (BY SRI NAGARAJ C. KOLLOORI, ADVOCATE)
AND:
1. SMT. DODDAVVA
W/O. NAGAPPA KALLESHANAVAR,
AGE: 23 YEARS,
OCC: HOUSEHOLD WORK,
2. SUNANDA
D/O. NAGAPPA KALLESHANAVAR,
AGE: 5 YEARS, OCC: NILL,
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NC: 2023:KHC-D:14808
MFA No. 24425 of 2013
C/W MFA No. 24424 of 2013
MFA No. 24426 of 2013
MFA.CROB No. 100137 of 2014
MFA.CROB No. 100062 of 2015
3. SRI GANGAPPA
S/O. KALLAPPA KALLESHANAVAR,
AGE: 45 YEARS, OCC: COOLIE,
4. SMT. FAKKIRAVVA
W/O GANGAPPA KALLESHANAVAR,
AGE: 40 YEARS,
OCC: HOUSEHOLD WORK,
(RESPONDENT NO.2 BEING MINOR
R/BY RESPONDENT NO.1 MOTHER AS
MINOR GUARDIAN).
5. SRI ALLASAB
S/O. HUSENSAB VALIKAR,
AGE: MAJOR, OCC: BUSINESS,
R/O: H.NO.34 A, HIREKOPPA,
TQ AND DIST: GADAG.
...RESPONDENTS
(BY SMT. SHAILA BELLIKATTI, ADVOCATE FOR R1 TO R4;
R2 MINOR R/BY R1;
APPEAL AGAINST R5 ABATED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT
AND AWARD DATED 28TH MARCH 2013 PASSED BY THE
PRESIDING OFFICER FAST TRACK COURT OF ADDL. MACT,
SAUNDATTI IN MVC NO.2444/2011 AND ETC.,
IN MFA.NO.24424/2013:
BETWEEN:
SHRIRAM GEN. INS. CO. LTD.,
E-8, EPIP, RIICO,
SITAPUR, JAIPUR-RAJASTAN - 302 022,
REPRESENTED BY ITS
AUTHORIZED SIGNATORY.
...APPELLANT
(BY SRI NAGARAJ C. KOLLOORI, ADVOCATE)
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NC: 2023:KHC-D:14808
MFA No. 24425 of 2013
C/W MFA No. 24424 of 2013
MFA No. 24426 of 2013
MFA.CROB No. 100137 of 2014
MFA.CROB No. 100062 of 2015
AND:
1. SRI SHIVALINGAPPA
S/O. NINGAPPA HURALI,
AGE: 44 YEARS, OCC: COOLIE,
2. SMT. KALLAVVA
W/O. SHIVALINGAPPA HURALI,
AGE: 40 YEARS,
OCC: HOUSEHOLD WORK,
BOTH ARE R/O: GORAGUDDI,
TQ: SAUNDATTI, DIST: BELAGAVI.
3. SRI ALLASAB S/O. HUSENSAB VALIKAR,
AGE: MAJOR, OCC: BUSINESS,
R/O: H.NO.34 A, HIREKOPPA,
TQ AND DIST: GADAG.
...RESPONDENTS
(BY SMT. SHAILA BELLIKATTI, ADVOCATE FOR R1 AND R2;
APPEAL AGAINST R3 ABATED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT
AND AWARD DATED 28TH MARCH 2013 PASSED BY THE
PRESIDING OFFICER FAST TRACK COURT OF ADDL. MACT,
SAUNDATTI IN MVC NO.2446/2011 AND ETC.,
IN MFA.NO.24426/2013:
BETWEEN:
SHRIRAM GEN. INS. CO. LTD.,
10003-E, E-8, EPIP, RIICO,
SITAPUR, JAIPUR-RAJASTAN - 302 022,
REPRESENTED BY ITS
AUTHORIZED SIGNATORY.
...APPELLANT
(BY SRI NAGARAJ C. KOLLOORI, ADVOCATE)
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NC: 2023:KHC-D:14808
MFA No. 24425 of 2013
C/W MFA No. 24424 of 2013
MFA No. 24426 of 2013
MFA.CROB No. 100137 of 2014
MFA.CROB No. 100062 of 2015
AND:
1. SMT. MALLAVVA
W/O. YALLAPPA GOURI,
AGE: 40 YEARS, OCC: COOLIE,
2. SRI KALLAPPA
S/O YALLAPPA GOURI,
AGE: 16 YEARS,
OCC: HOUSEHOLD WORK,
(RESPONDENT NO.2 BEING MINOR REP. BY
RESPONDENT NO.1 MOTHER
AS MINOR GUARDIAN)
BOTH ARE R/O: GORAGUDDI,
TQ: SAUNDATTI, DIST: BELAGAVI.
3. SRI ALLASAB
S/O. HUSENSAB VALIKAR,
AGE: MAJOR,
OCC: BUSINESS,
R/O: H.NO.34 A, HIREKOPPA,
TQ AND DIST: GADAG.
...RESPONDENTS
(BY SMT. SHAILA BELLIKATTI, ADVOCATE FOR R1 - R2;
APPEAL AGAINST R3 ABATED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT
AND AWARD DATED 28TH MARCH 2013 PASSED BY THE
PRESIDING OFFICER FAST TRACK COURT OF ADDL. MACT,
SAUNDATTI IN MVC NO.2445/2011 AND ETC.,
IN MFA.CROB. NO.100137/2014:
BETWEEN:
1. SMT. MALLAVVA
W/O YALLAPPA GOURI,
AGE: 41 YEARS,
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NC: 2023:KHC-D:14808
MFA No. 24425 of 2013
C/W MFA No. 24424 of 2013
MFA No. 24426 of 2013
MFA.CROB No. 100137 of 2014
MFA.CROB No. 100062 of 2015
OCC: HOUSE HOLD WORK,
R/O: GORAGUDDI,
TQ: SAUNDATTI,
DIST: BELAGAVI
2. KALLAPPA S/O. YALLAPPA GOURI,
AGE: 18 YEARS, OCC: STUDENT.
R/O: GORAGUDDI,
TQ: SAUNDATTI,
DIST: BELAGAVI.
...CROSS OBJECTORS
(BY SMT. SHAILA BELLIKATTI, ADVOCATE)
AND:
1. ALLASAB
S/O. HUSENSAB VALIKAR,
AGE: MAJOR, OCC: BUSINESS,
R/O: H.NO.34 A, HIREKOPPA,
TQ AND DIST: GADAG.
2. SHRIRAM GENERAL
INSURANCE COMPANY LTD.,
10003-E, E-8, EPIP, RIICO,
INDUSTRIAL AREA,
SITAPUR, JAIPUR-RAJASTAN - 302 022.
...RESPONDENTS
(BY SRI NAGARAJ C. KOLLORI, ADVOCATE FOR R2;
APPEAL AGAINST R1 IS ABATED)
THIS CROSS OBJECTION IN MFA NO.24426/2013 IS
FILED UNDER ORDER XLI RULE 22(1) OF CIVIL PROCEDURE
CODE, PRAYING TO MODIFY THE JUDGMENT AND AWARD BY
ENHANCING COMPENSATION IN MVC NO.2445/2011 DATED
28.03.2013 ON THE FILE OF PRESIDING OFFICER FAST TRACK
COURT AND ADDL. MACT, SAUNDATTI AND ETC.,
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MFA No. 24425 of 2013
C/W MFA No. 24424 of 2013
MFA No. 24426 of 2013
MFA.CROB No. 100137 of 2014
MFA.CROB No. 100062 of 2015
IN MFA.CROB. NO.100062/2015:
BETWEEN:
1. SHIVALINGAPPA S/O. NINGAPPA HURALI,
AGE: 46 YEARS, OCC: COOLIE,
R/O: GORAGUDDI, TQ: SAUNDATTI,
DIST: BELAGAVI
2. SMT. KALLAVVA W/O. SHIVALINGAPPA HURALI,
AGE: 42 YEARS, OCC: HOUSEHOLD WORK.
R/O: GORAGUDDI, TQ: SAUNDATTI,
DIST: BELAGAVI.
...CROSS OBJECTORS
(BY SMT. SHAILA BELLIKATTI, ADVOCATE)
AND:
1. ALLASAB S/O. HUSENSAB VALIKAR,
AGE: MAJOR, OCC: BUSINESS,
R/O: H.NO.34 A, HIREKOPPA,
TALUK AND DIST: GADAG.
2. SHRIRAM GENERAL
INSURANCE COMPANY LTD.,
10003-E, E-8, EPIP, RIICO,
INDUSTRIAL AREA,
SITAPUR, JAIPUR-RAJASTAN - 302 022.
...RESPONDENTS
(BY SRI NAGARAJ C. KOLLORI, ADVOCATE FOR R2;
APPEAL AGAINST R1 IS ABATED)
THIS CROSS OBJECTION IN MFA NO.24424/2013 IS
FILED UNDER ORDER XLI RULE 22(1) OF CIVIL PROCEDURE
CODE, PRAYING TO MODIFY THE JUDGMENT AND AWARD BY
ENHANCING COMPENSATION IN MVC NO.2446/2011 DATED
28.03.2013 ON THE FILE OF PRESIDING OFFICER FAST TRACK
COURT AND ADDL. MACT, SAUNDATTI AND ETC.,
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NC: 2023:KHC-D:14808
MFA No. 24425 of 2013
C/W MFA No. 24424 of 2013
MFA No. 24426 of 2013
MFA.CROB No. 100137 of 2014
MFA.CROB No. 100062 of 2015
THESE APPEALS AND CROBS, COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED
THE FOLLOWING:
JUDGMENT
MFA No.24425/2013, MFA No.24424/2013 and MFA
No.24426/2013 are filed by the insurance company
challenging 50% of the rash and negligence attributed on
the part of the driver of the lorry bearing No.KA-26/7478.
2. MFA Crob.No.100137/2014 and MFA
Crob.No.100062/2015 are filed by the claimants for
seeking enhancement of compensation as well as
questioning 50% of negligence attributed on the part of
the deceased.
3. Heard the arguments and perused the material
placed on record.
4. In this case, the factum of accident, death of
deceased in the said accident and coverage of insurance
are not in dispute. The question before the court is how
NC: 2023:KHC-D:14808
much contributory negligence is between the rider of the
motorcycle and the driver of the lorry is to be considered.
5. The learned counsel for the insurance company
submitted that the lorry was parked on the left side of the
road and therefore, the deceased while riding motorcycle
along with two pillion riders has dashed hind portion of the
lorry and died in the accident. Hence, submitted that the
driver of the lorry was not rash and negligent in driving
the lorry and therefore, he is not responsible for the
accident. Therefore, submitted that the deceased while
riding motorcycle was rash and hit the lorry. Therefore,
fastening contributory negligence at 50% on the part of
the driver of the lorry is not correct. Therefore, prays to
allow the appeals by setting aside the judgment and award
passed by the Tribunal.
6. On the other hand, the learned counsel for the
claimants-cross objectors submitted that the lorry was
parked on the middle of the road without having any
NC: 2023:KHC-D:14808
precautionary measures like switch on the indicators,
signals and without putting stones around the lorry and
accident is caused at midnight 11.45 p.m. Therefore, the
driver of the lorry was completely rash and negligent.
Hence, submitted that fastening 50% of rash and
negligence on the part of the deceased is not correct.
Therefore, prays to allow the cross objections and enhance
the quantum of compensation.
7. The accident is between lorry and motorcycle. The
lorry was parked on the left side of the road and deceased
was riding the motorcycle along with two pillion riders and
dashed hind portion of the lorry. Upon considering the
documentary evidence, complaint, FIR, Spot panchanama,
it is proved that the lorry was parked at the left side of the
road. But, without taking any precautionary
measurements like putting signals and indicators or
putting stone around the lorry where it was parked.
Therefore, the tribunal has held that the driver of the lorry
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has contributed 50% negligence while parking the lorry.
The accident is caused at midnight 11.45 p.m. mid night.
Even though, the lorry was parked at the left side of the
road, the driver ought to have put stone around the lorry
and switch on the indicator so as to caution other vehicles.
But, without doing so, parking of the lorry without
indicators or signals or putting stone around the lorry is
amounting to negligence on the part of the driver of the
lorry. Therefore, the tribunal is correct in holding both
deceased who is rider of the motorcycle and driver of the
lorry are equally responsible for accident at 50:50%.
Therefore, the tribunal is correct in holding the rash and
negligence on both rider of the motorcycle and driver of
the lorry and needs no interference by this Court.
Therefore, the appeals filed by the insurance company are
liable to be dismissed.
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MFA Crob.No.100137/2014 in
MFA No.24426/2013 (MVC No.2445/2011)
8. The learned counsel for the appellant-insurance
company submitted that in the claim petition itself, the
income of the deceased is stated as Rs.5,000/- p.m.
Therefore, the same is to be taken into consideration. But,
the accident is caused in the year 2011 and minimum
wage of Rs.6,000/- per month is based on the minimum
wage for sustaining life and therefore, what would be the
minimum wage is to be taken as notional income of the
deceased. Hence, Rs.6,000/- p.m. income is taken into
consideration.
9. In the present case, the deceased was 18 years old.
The tribunal has committed error in choosing multiplier
considering the age of the parent as 45 years. But, the
multiplier has to be adopted according to the age of the
deceased. Therefore, considering the age of the deceased,
the appropriate applicable multiplier is 18.
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10. In view of the decision of the Hon'ble Apex Court in
case of National Insurance Company Limited vs.
Pranay Sethi and others, reported in (2017) 16
Supreme Court Cases 680, 40% of the income is to be
added towards loss of future prospects in life. Since, the
deceased is bachelor, 50% of income is to be deducted
towards personal and living expenses. Therefore loss of
dependency is re-assessed and quantified at as
Rs.6,000/-+2,400/-(40% of Rs.6,000/-)X50%X18X12
= Rs.9,07,200/-.
11. In view of the decision of the Hon'ble Supreme Court
in the case of Magma General Insurance Co. Limited
v. Nanu Ram & Others, reported in 2018 ACJ 2782 and
in the case of Pranay Sethi supra, the claimants are
entitled to Rs.40,000/- each under the head 'loss of
consortium', along with 10% escalation. Accordingly,
Rs.88,000/- (Rs.40,000 x 2 + 10%) is awarded under
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the head 'loss of consortium including loss of love and
affection'.
12. Further, a compensation of Rs.15,000/- each is
awarded under the head 'loss of estate' and 'funeral and
transportation' respectively, along with 10% escalation.
Therefore under these heads Rs.33,000/- (Rs.15,000 x 2
+ 10%) is awarded.
13. Thus, the claimants would be entitled for
compensation under various heads as under:
Sl. Heads. Amount in (Rs.)
No.
1. Towards loss of dependency 09,07,200-00
2. Towards loss of consortium 88,000-00
3. Towards loss of estate and 33,000-00
transportation of dead body
& funeral expenses.
Total: 10,28,200-00
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14. Therefore, the claimants are entitled for
compensation of Rs.10,28,200-00 along with interest at
the rate of 6% p.a. from the date of filing of the petition
till realization, as against Rs.4,60,000-00 awarded by the
tribunal. The insurance company is directed to deposit the
compensation within eight weeks from the date of receipt
of a certified copy of this judgment.
MFA Crob.No.100062/2015 in
MFA No.24424/2013 (MVC No.2446/2011)
15. The deceased was aged 45 years as on the date of
accident. The accident is of the year 2011. Hence notional
income is to be taken at Rs.6,000/- as recognized by the
Karnataka State Legal Services Authority and appropriate
multiplier is 14.
16. In view of the decision of the Hon'ble Apex Court in
case of National Insurance Company Limited vs.
Pranay Sethi and others, reported in (2017) 16
Supreme Court Cases 680, 25% of the income is to be
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added towards loss of future prospects in life. Since, the
deceased is bachelor, There are two legal representatives.
Hence, 1/3 amount is to be deducted towards personal
and living expenses. Therefore loss of dependency is
re-assessed and quantified at as
Rs.6,000/-+1500/-(25% of Rs.6,000/-)X2/3X14X12
= Rs.8,40,000/-.
17. In view of the decision of the Hon'ble Supreme Court
in the case of Magma General Insurance Co. Limited
v. Nanu Ram & Others, reported in 2018 ACJ 2782 and
in the case of Pranay Sethi supra, the claimants are
entitled to Rs.40,000/- each under the head 'loss of
consortium', along with 10% escalation. Accordingly,
Rs.88,000/- (Rs.40,000 x 2 + 10%) is awarded under
the head 'loss of consortium including loss of love and
affection'.
18. Further, a compensation of Rs.15,000/- each is
awarded under the head 'loss of estate' and 'funeral and
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transportation' respectively, along with 10% escalation.
Therefore under these heads Rs.33,000/- (Rs.15,000 x 2
+ 10%) is awarded.
19. Thus, the claimants would be entitled for
compensation under various heads as under:
Sl. Heads. Amount in (Rs.)
No.
1. Towards loss of dependency 8,40,000-00
2. Towards loss of consortium 88,000-00
3. Towards loss of estate and 33,000-00
transportation of dead body
& funeral expenses.
(15,000 x 2 + 10%)
Total: 9,61,000-00
20. Therefore, the claimants are entitled for
compensation of Rs.9,61,000-00 along with interest at
the rate of 6% p.a. from the date of filing of the petition
till realization, as against Rs.3,37,500-00 awarded by the
tribunal. The insurance company is directed to deposit the
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compensation within eight weeks from the date of receipt
of a certified copy of this judgment. The claimants are not
entitled for interest for the delayed period of 155 days in
filing the appeal.
21. In the result, I proceed to pass the following:
ORDER
i) The appeals filed by the insurance
company are dismissed.
ii) The appeals filed by the claimants-
cross objectors are allowed in part.
iii) The common judgment and award
passed in MVC Nos.2446/2011 and MVC
Nos.2445/2011 dated 28.03.2013 by the
Presiding Officer, Fast Track Court and Addl.
MACT., Saundatti stands modified.
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iv) The claimants in MFA Crob.
No.100137/2014 are entitled for total
compensation of Rs.10,28,200-00 along with
interest at the rate of 6% p.a. from the date of
petition till its realization.
v) The claimants in MFA Crob.
No.100062/2015 are entitled for total
compensation of Rs.9,61,000-00 along with
interest at the rate of 6% p.a. from the date of
petition till its realization.
vi) The claimants in MFA Crob No.
100062/2015 are not entitled for interest for the
delayed period of 155 days in filing the appeal.
vii) The insurance company shall deposit
50% of the compensation amount within a
period of eight weeks from the date of receipt of
a copy of this judgment.
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viii) Send back the trial Court records
along with a copy of this judgment.
ix) Amount in deposit is ordered to be
transmitted to the tribunal along with copy of
this order to tribunal.
x) No order as to costs.
xi) Draw award accordingly.
SD/-
JUDGE
HMB
