Karnataka High Court
The Divisional Manager vs Parvati And Ors on 5 December, 2023
Author: R.Devdas
Bench: R.Devdas
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NC: 2023:KHC-K:9060-DB
MFA No. 203685 of 2023
C/W MFA No. 201594 of 2019
MFA No. 201595 of 2019
MFA No. 201596 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MR. JUSTICE C M JOSHI
MISCL. FIRST APPEAL NO. 203685 OF 2023 (MV-D)
C/W
MISCL. FIRST APPEAL NO. 201594 OF 2019
MISCL. FIRST APPEAL NO. 201595 OF 2019
MISCL. FIRST APPEAL NO. 201596 OF 2019
MISCL. FIRST APPEAL NO. 203685 OF 2023 (MV-D)
BETWEEN:
Digitally signed by
SOMANATH 1. VIJAYLAXMI @ LAXMIBAI
PENTAPPA MITTE W/O LATE BAPURAO VARAD,
Location: HIGH
COURT OF AGE: 40 YEARS, OCC: HOUSEHOLD,
KARNATAKA
2. BHUVANESHWARI
D/O LATE BAPURAO VARAD,
AGE: 25 YEARS, OCC: NIL,
3. MAHESHWARI
D/O LATE BAPURAO VARAD,
AGE: 23 YEARS, OCC: NIL,
4. MAHADEV
S/O LATE BAPURAO VARAD,
AGE: 21 YEARS, OCC: STUDENT,
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MFA No. 203685 of 2023
C/W MFA No. 201594 of 2019
MFA No. 201595 of 2019
MFA No. 201596 of 2019
5. SANTOSH
S/O LATE BAPURAO VARAD,
AGE: 18 YEARS, OCC: STUDENT,
6. KALAMMA
W/O LATE BASAVANTHRAO VARAD
AGE: 73 YEARS, OCC: NIL,
ALL R/O NELGI VILLAGE,
TQ. BHALKI, DIST: BIDAR.
...APPELLANTS
(BY SRI. B. M. KINIKERI, ADVOCATE)
AND:
1. BASWARAJ
S/O SRIKANTH JOLDABKE,
AGE: 48 YEARS, OCC: BUSINESS,
R/O OLD TOWN BHALKI,
DIST: BIDAR.
(OWNER OF TEMPO TRAX TOOFAN BEARING
REG. NO. KA-39/8981)
2. THE DIVISIONAL MANAGER,
THE NATIONAL INSURANCE CO. LTD.,
BILGUNDI COMPLEX,
NEAR MINI VIDHANA SOUDHA,
STATION ROAD, KALABURAGI.
(VIDE POLICY NO. 610401/131/13/6300005411
VALID FROM 15-2-2014 TO 14-2-2015)
3. UMESH
S/O SIDRAMAPPA HALEPURGE,
AGE: MAJOR, OCC: AGRICULTURE,
R/O NELGI VILLAGE,
TQ: BHALKI, DIST: BIDAR.
4. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
DIVISION OFFICER,
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MFA No. 203685 of 2023
C/W MFA No. 201594 of 2019
MFA No. 201595 of 2019
MFA No. 201596 of 2019
DR. JAWALI COMPLEX,
SUPER MARKET, KALABURAGI.
POLICY NO. 240683/31/14/00000674
DATE 9-7-2014 TO 8-7-2015
...RESPONDENTS
(BY SRI. SUDARSHAN M, ADVOCATE FOR R2;
SRI. KADLOOR SATYANARAYANA CHARYA, ADVOCATE FOR R3;
SRI. S.S. ASPALLI, ADVOCATE FOR R4)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO EXERCISE ITS APPELLATE JURISDICTION, CALL
FOR THE ENTIRE LOWER COURT RECORDS AND MODIFY THE
JUDGEMENT AND AWARD DATED 05.04.2019 PASSED BY THE
LEARNED ADDL. MACT AND ADDL. DIST. AND SESSIONS
JUDGE AT BIDAR IN MVC NO. 280/2015 BY ENHANCING THE
COMPENSATION AMOUNT AS PRAYED IN CLAIM PETITION AND
ETC.
MISCL. FIRST APPEAL NO. 201594 OF 2019
BETWEEN:
THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
DIVISION OFFICER,
DR. JAWALI COMPLEX,
SUPER MARKET, KALABURAGI-585101.
...APPELLANT
(BY SRI. S.S. ASPALLI, ADVOCATE)
AND:
1. VIJAYLAXMI @ LAXMIBAI
W/O LATE BAPURAO VARAD,
AGE: 36 YEARS, OCC: HOUSEHOLD,
2. BHUVANESHWARI D/O LATE BAPURAO VARAD,
AGE: 21 YEARS, OCC: STUDENT,
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MFA No. 203685 of 2023
C/W MFA No. 201594 of 2019
MFA No. 201595 of 2019
MFA No. 201596 of 2019
3. MAHESHWARI D/O LATE BAPURAO VARAD,
AGE: 19 YEARS, OCC: STUDENT,
4. MAHADEV S/O LATE BAPURAO VARAD,
AGE: 17 YEARS, OCC: STUDENT,
5. SANTOSH S/O LATE BAPURAO VARAD,
AGE: 14 YEARS, OCC: STUDENT,
PETITIONER NO. 4 & 5 ARE MINORS U/G OF
PETITIONER NO.1
6. KALAMMA W/O LATE BASAVANTHRAO VARAD,
AGE: 69 YEARS, OCC: NIL,
ALL R/O NELGI VILLAGE,
TQ. BHALKI, DIST: BIDAR-585328.
7. BASWARAJ S/O SRIKANTH JOLDABKE,
AGE: 44 YEARS, OCC: BUSINESS,
R/O OLD TOWN BHALKI,
DIST: BIDAR-585328.
8. THE DIVISIONAL MANAGER,
THE NATIONAL INSURANCE CO. LTD.,
BILGUNDI COMPLEX,
NEAR MINI VIDHANA SOUDHA,
STATION ROAD, KALABURAGI-585102.
9. UMESH S/O SIDRAMAPPA HALEPURGE,
AGE: MAJOR, OCC: AGRICULTURE,
R/O NELGI VILLAGE,
TQ: BHALKI, DIST: BIDAR-585328.
...RESPONDENTS
(BY SRI. B.M. KINIKERI, ADVOCATE FOR R1 TO R6;
NOTICE TO R2 IS HELD SUFFICIENT
SRI. SUDARSHAN M, ADVOCATE FOR R8;
SRI. KADLOOR STYANARAYANA CHARYA, ADV. FOR R9)
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MFA No. 203685 of 2023
C/W MFA No. 201594 of 2019
MFA No. 201595 of 2019
MFA No. 201596 of 2019
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO SET-ASIDE THE JUDGMENT AND AWARD DATED:
05.04.2019 IN MVC NO. 280/2015 PASSED BY THE ADDL.
MACT & ADDL. DISTRICT & SESSIONS JUDGE BIDAR, BY
ALLOWING THE ABOVE APPEAL IN THE INTEREST OF JUSTICE
AND EQUITY.
MISCL. FIRST APPEAL NO. 201595 OF 2019
BETWEEN:
THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
DIVISION OFFICER,
DR. JAWALI COMPLEX,
SUPER MARKET, KALABURAGI-585101.
...APPELLANT
(BY SRI. S.S. ASPALLI, ADVOCATE)
AND:
1. KASHINATH
S/O BASAPPA @ BASWANAPPA KAMLAPURE,
AGE: 39 YEARS, OCC: AGRICULTURE,
NOW NIL R/O NELGI, TQ: BALKI,
DIST: BIDAR-585401.
2. BASWARAJ
S/O SRIKANTH JOLDABKE,
AGE: 44 YEARS, OCC: BUSINESS,
R/O OLD TOWN BHALKI,
DIST: BIDAR-585401.
3. THE DIVISIONAL MANAGER,
THE NATIONAL INSURANCE CO. LTD.,
BILGUNDI COMPLEX,
NEAR MINI VIDHANA SOUDHA,
STATION ROAD, KALABURAGI-585102.
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MFA No. 203685 of 2023
C/W MFA No. 201594 of 2019
MFA No. 201595 of 2019
MFA No. 201596 of 2019
4. UMESH
S/O SIDRAMAPPA HALEPURGE,
AGE: MAJOR, OCC: AGRICULTURE,
R/O NELGI VILLAGE,
TQ: BHALKI, DIST: BIDAR-585401.
...RESPONDENTS
(BY SRI. SUDARSHAN M, ADVOCATE FOR R3;
SRI. KADLOOR STYANARAYANA CHARYA, ADVOCATE FOR R4;
R1 & R2 SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO SET-ASIDE THE JUDGMENT AND AWARD DATED:
05.04.2019 IN MVC NO. 298/2015 PASSED BY THE
ADDL. MACT & ADDL. DISTRICT & SESSIONS JUDGE BIDAR, BY
ALLOWING THE ABOVE APPEAL IN THE INTEREST OF JUSTICE
AND EQUITY.
MISCL. FIRST APPEAL NO. 201596 OF 2019
BETWEEN:
THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
DIVISION OFFICER,
DR. JAWALI COMPLEX,
SUPER MARKET, KALABURAGI-585101.
...APPELLANT
(BY SRI. S.S. ASPALLI, ADVOCATE)
AND:
1. PARVATI W/O LATE RAJKUMAR DADGE,
AGE: 36 YEARS, OCC: HOUSEHOLD,
R/O NELGI, TQ: BALKI-585328.
2. SIDAM S/O LATE RAJKUMAR DADGE,
AGE: 12 YEARS, OCC: STUDENT,
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MFA No. 203685 of 2023
C/W MFA No. 201594 of 2019
MFA No. 201595 of 2019
MFA No. 201596 of 2019
3. BHAVANI D/O LATE RAJKUMAR DADGE,
AGE: 10 YEARS, OCC: STUDENT,
4. SHIVANI D/O LATE RAJKUMAR DADGE,
AGE: 08 YEARS, OCC: STUDENT,
PETITIONER NO. 2 TO 4 ARE MINORS
U/G THEIR MOTHER PARVATI CLAIMANT NO.1
5. SANGSHETTY S/O SHIVLINGAPPA DADGE,
AGE: 69 YEARS, OCC: NIL,
R/O NELGI, TQ: BHALKI-585328.
6. SUSHILABAI W/O SANGSHETTY DADGE,
AGE: 64 YEARS, OCC: HOUSEHOLD,
R/O NELGI, TQ: BHALKI-585328.
7. BASAVARAJ S/O SRIKANTH JOLDABKE,
AGE: 44 YEARS, OCC: BUSINESS,
R/O OLD TOWN, BHALKI,
DIST:BIDAR-585328.
8. THE DIVISIONAL MANAGER,
NATIONAL INSURANCE CO.LTD.,
BILGUNDI COMPLEX,
NEAR MINI VIDHANA SOUDHA,
STATION ROAD,
KALABURAGI-585102.
9. UMESH S/O SIDRAMAPPA HALEPURGE,
AGE: MAJOR, OCC: AGRICULTURE,
R/O VILLAGE NELGI, TQ: BHALKI,
DIST: BIDAR-585328.
...RESPONDENTS
(BY SRI. SUDARSHAN M, ADVOCATE FOR R8;
SRI. KADLOOR SATYANARAYA CHARYA, ADVOCATE FOR R9;
R1, R5 & R6 ARE SERVED
R2 TO R4 ARE MINOR U/G OF R1
NOTICE TO R7 IS HELD SUFFICIENT)
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MFA No. 203685 of 2023
C/W MFA No. 201594 of 2019
MFA No. 201595 of 2019
MFA No. 201596 of 2019
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO SET-ASIDE THE JUDGMENT AND AWARD DATED:
05.04.2019 IN MVC NO. 299/2015 PASSED BY THE
ADDL. MACT & ADDL. DISTRICT & SESSIONS JUDGE BIDAR, BY
ALLOWING THE ABOVE APPEAL IN THE INTEREST OF JUSTICE
AND EQUITY.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, C.M.JOSHI J., DELIVERED THE FOLLOWING:
JUDGMENT
These appeals are arising out the judgment and
award passed in MVC Nos.280/2020, 299/2015, 298/2015
passed by the learned Addl. MACT & Addl. District and
Sessions Judge, Bidar, dated 05.04.2019. All these
appeals arise out of one and same motor vehicle accident
that took place on 03.02.2015 involving the TATA Indica
car bearing registration No.MH-43/A-1006 and Tempo
Trax bearing registration KA-39/8981.
2. The main questions raised in these appeals are
regarding the liability of the insurer of the Tempo Trax
(respondent No.1 in all the matters) and the quantum of
the compensation in MVC NO.280/2015.
NC: 2023:KHC-K:9060-DB
3. The facts germane for disposal of these appeals
are as below;
On 03.02.2015 the deceased Bapurao, Rajkumar and
their friends Kashinath and Umesh were returning to their
village Nelgi in a car bearing registration No.MH-43-
A/1006. The car was driven by the deceased Rajkumar.
When the car came near Halhipparga cross on Bidar-Bhalki
Road, at about 5.30 p.m., the Tempo Trax baring No.KA-
39/8981, came from the opposite direction in a negligent
manner and collided with the car. It was alleged that the
driver of the Tempo Trax ran away from the spot and the
driver of the car i.e., Rajkumar and the inmate Bapurao
died on the spot. The other inmates i.e., Kashinath and
Umesh sustained injuries and they were shifted to
Hospital. Based on the complaint lodged by Kashinath, a
case was registered in Crime No.19/2015 against the
driver of the Tempo Trax by Dhannur police. So also,
based on the complaint filed by one Chandrakanth Reddy,
a case was registered in Crime No.18/2015 against the
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deceased driver of the car i.e., Rajkumar by Dhannur
Police. Both the matters were investigated and separate
charge sheets were filed alleging that the driver of the car
i.e., Rajkumar and the driver of the Tempo Trax
Siddeshwar had driven the vehicles in a rash and negligent
manner and had caused the accident.
4. The respondent No.1 and 2 in all these claim
petitions are the owner and insurer of the Tempo Trax and
respondent Nos.3 and 4 are the owner and insurer of the
car. In MVC No.280/2015, respondent No.1 to 4 appeared
through their counsel and filed written statements. IN MVC
No.299/2015, the respondent Nos.1, 2 and 4 appeared
and filed written statement, but respondent No.3 remained
ex-parte. In MVC No.298/2015, respondent No.1, 2 and 4
appeared, but only respondent No.2 and 4 filed written
statement. The respondent No.3 remained ex-parte.
5. The respondent No.1 contended that
respondent No.2 being the insurer of the vehicle owned by
him, any compensation payable by him, be saddled upon
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respondent No.2 as the insurance policy was in force.
Respondent No.3 contended that the accident occurred
due to the negligence of the driver of the Tempo Trax and
therefore the claim petition is liable to be dismissed
against him. It was contended that the driver of the car
was having valid driving license and therefore the liability
of respondent No.3 is to be indemnified by respondent
No.4.
6. The respondent No.2-Insruance Company
contended that there was contributory negligence on the
part of the driver of the car. It was contended that the
element of contributory negligence on the part of the
driver of the car is more. It was also alleged that the
driver of the Tempo Trax was not holding valid and
effective driving license and there was violation of terms
and conditions of the policy and therefore the petition is
liable to be dismissed.
7. The respondent No.4 resisted the claims on the
ground that there was no negligence on the part of the car
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driver, car driver did not possess valid driving license and
there was violation of conditions of the policy. It was
alleged that the policy was an 'act policy' and therefore the
Insurance Company cannot be held liable for the injuries
of inmates of car. Apart from these main contentions, it
was alleged by both the Insurance Companies that the
age, income and occupation of the deceased Rajkumar and
Bapurao and also the injured are to be proved by the
petitioners and that the compensation claimed is highly
exorbitant imaginary and untenable.
8. On the basis of the above pleadings, the
tribunal framed appropriate issues and recorded the
evidence adduced by the parties.
In MVC No.280/2015, petitioner No.1 was examined
as PW.1 and Exs.P1 to 9 were marked. Respondent Nos.2
and 4 examined as RW.1 and RW.2 and Exs.R1 to 11 were
marked.
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In MVC No.299/2015, petitioner No.1 was examined
as PW.1 and Exs.P1 to 10 were marked. On behalf of the
respondents, RW.1 and RW.2 were examined and Exs.R1
to 11 came to be marked.
In MVC No.298/2015, petitioner was examined as
PW.1 and the doctor who assessed the disability was
examined as PW2 and Exs.P1 to 14 were marked. On
behalf of the respondents, RW.1 and 2 were examined and
Ex.R1 to11 were marked.
9. After hearing the arguments by both the sides,
through the impugned judgments, the tribunal held the
contributory negligence at 50% each and awarded
compensation saddling the liability on the insurance
companies, as below;
IN MVC No.280/2015:
Sl.
Heads of compensation Amount
No.
1. Love of dependency Rs.18,00,000/-
2. Loss of estate Rs.15,000/-
3. Loss of consortium Rs.40,000/-
4. Funeral expenses Rs.15,000/-
Total Rs.18,70,000/-
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IN MVC No.298/2015:
Sl.
Heads of compensation Amount
No.
1. Love of future earnings Rs.3,60,000/-
2. Medical expenses Rs.2,36,700/-
3. Pain and suffering Rs.75,000/-
4. Conveyance and attendant Rs.30,000/-
charges
5. Food and nourishment Rs.30,000/-
6. Loss of laid up period for 3 Rs.32,000/-
months
Total Rs.7,63,700/-
IN MVC No.299/2015:
Sl.
Heads of compensation Amount
No.
1. Love of dependency Rs.16,20,000/-
2. Loss of estate Rs.15,000/-
3. Loss of consortium Rs.40,000/-
4. Funeral expenses Rs.15,000/-
Total Rs.16,90,000/-
10. Being aggrieved by the said judgment and
award, the claimants in MVC No.280/2015 have
approached this Court in MFA No.203685/2023. The
respondent No.4 in all these claim petitions have
approached this Court in MFA No.201594 to 201596 of
2019 disputing the liability fastened upon it by the
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tribunal. The claimants in MVC No.280/2015 have
approached this Court in appeal seeking enhancement of
the compensation on account of death of Bapurao.
11. On issuance of notice in these appeals, the
respective claimants-respondents and the Insurance
Company have appeared through their counsel.
12. The learned counsel appearing for the
appellant-United India Insurance Company, who is arrayed
as respondent No.3 in all these claim petitions submitted
that the car bearing registration No.MH-43/A1006 is a
private car and policy issued was liability only (Act policy)
and therefore the risk of the occupants of the said vehicle
was not covered. It is contended that the Tribunal has not
appreciated this aspect and erroneously fastened the
liability on respondent No.4-appellant. He submits that the
inmates of the car would be covered, only if additional
premium was paid by the insured. In support of his
contention, he relied on the decision in the case of
National Insurance Company Limited Vs.
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Balakrishnan and Another1, wherein it was held that as
below;
"26. In view of the aforesaid factual position, there
is no scintilla of doubt that a
"comprehensive/package policy" would cover the
liability of the insurer for payment of compensation
for the occupant in a car. There is no cavil that an
"Act policy" stands on a different footing from a
"comprehensive/package policy". As the circulars
have made the position very clear and IRDA, which
is presently the statutory authority, has commanded
the insurance companies stating that a
"comprehensive/package policy" covers the liability,
there cannot be any dispute in that regard. We may
hasten to clarify that the earlier pronouncements
were rendered in respect of the "Act policy" which
admittedly cannot cover a third-party risk of an
occupant in a car. But, if the policy is a
"comprehensive/package policy", the liability would
be covered. These aspects were not noticed
in Bhagyalakshmi [(2009) 7 SCC 148] and,
therefore, the matter was referred to a larger
Bench. We are disposed to think that there is no
necessity to refer the present matter to a larger
Bench as IRDA, which is presently the statutory
(2013) 1 SCC 731
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authority, has clarified the position by issuing
circulars which have been reproduced in the
judgment by the Delhi High Court and we have also
reproduced the same."
13. He also relied on the decision in the case of
United India Insurance Co. Ltd Vs. Tilak Singh and
others reported in 2006 ACJ 1441, and Jagtar SIngh @
Jagdev Singh Vs. Sanjeev Kumar and Others, in Civil
Appeal No.7546/2013, where also it was held that the 'Act
policy' would not cover the inmates or occupant of a car
unless additional premium is paid or it is a package
policy/comprehensive policy.
14. He also submitted that the contributory
negligence attributed to the driver of the car insured by
the appellant-Insurance Company is not proper and the
entire negligence should have been fastened upon the
driver of the Tempo Trax.
15. Per contra, the learned counsels appearing for
the respondents/claimants contended that the charge
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sheet was filed against both the drivers of the vehicles
involved in the vehicles and therefore the finding of the
tribunal could not be interfered with. They also submitted
that the decision in the case of Khenyei Vs. New India
Assurance Company Limited 2 lays down the manner in
which the composite negligence has to be considered.
They submit that the petitioners in all these claim petitions
are the inmates and dependants of the inmates and
therefore they have no role to play in contributing any
negligence. It is submitted that even the claimants in MVC
No.299/2015, are also entitled for entire compensation
from the respondent Nos.1 and 2 though they are not
entitled to claim the compensation from respondent Nos.3
and 4.
16. Learned counsel appearing for the
appellants/claimants in MFA No.203685/2023 submitted
that the tribunal though considered the notional income of
the deceased Bapurao, however it failed to appreciate that
2015 (9) SCC 273
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future prospects should have been considered at 40% but
not 25%. It is submitted that the age of the deceased had
not crossed the age 40 years and appropriate multiplier
was 15 and therefore the assessment of the compensation
by the tribunal is not proper and correct.
17. The first aspect to be considered is regarding
the liability. There cannot be any doubt that it is a case of
composite negligence so far as the inmates of the car are
concerned. They had no role to play in actionable
negligence that could be attributed to the driver of the car.
Hence, they are entitled to claim the compensation from
any one of the tort-feasor. The liability of the joint tort-
feasors would be joint and several. The decision in the
case of Kheneyi Vs. New India Assurance Company
Limited lays down as below;
"22. What emerges from the aforesaid discussion is
as follows:
22.1. In the case of composite negligence, the
plaintiff/claimant is entitled to sue both or any one
of the joint tortfeasors and to recover the entire
compensation as liability of joint tortfeasors is joint
and several.
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22.2. In the case of composite negligence,
apportionment of compensation between two
tortfeasors vis-à-vis the plaintiff/claimant is not
permissible. He can recover at his option whole
damages from any of them.
22.3. In case all the joint tortfeasors have been
impleaded and evidence is sufficient, it is open to
the court/Tribunal to determine inter se extent of
composite negligence of the drivers. However,
determination of the extent of negligence between
the joint tortfeasors is only for the purpose of their
inter se liability so that one may recover the sum
from the other after making whole of the payment
to the plaintiff/claimant to the extent it has satisfied
the liability of the other. In case both of them have
been impleaded and the apportionment/extent of
their negligence has been determined by the
court/Tribunal, in the main case one joint tortfeasor
can recover the amount from the other in the
execution proceedings.
22.4. It would not be appropriate for the
court/Tribunal to determine the extent of composite
negligence of the drivers of two vehicles in the
absence of impleadment of other joint tortfeasors.
In such a case, impleaded joint tortfeasor should be
left, in case he so desires, to sue the other joint
tortfeasor in independent proceedings after passing
of the decree or award."
18. Therefore, the claimant-petitioners in MVC
No.280/2015 and MVC NO.298/2015 are entitled for
compensation from the respondent Nos.1 and 3, who are
the joint tort-feasors. Since the respondent Nos.2 and 4
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have insured the vehicles of respondent Nos.1 and 3, they
would become liable if the policy issued by them is valid.
19. The perusal of Ex.R11, the policy issued by the
respondent No.4/appellant herein shows that it is an 'act
only' policy. The premium paid by the respondent No.3
owner of the car does not cover the inmates of the car.
Therefore, the respondent No.4 is entitled to deny the
claim of the inmates of the car. As such, the appellant-
United Insurance Company has to be absolved from the
liability to pay any compensation for the injuries sustained
or death of the inmates of the car.
20. So far as the driver of the car is concerned, a
petition under Section 166 of M.V.Act, to cover the
statutory liability is not available to the driver as he
himself is the tort-feasor. The liability of the owner with
driver of the car was vicarious and the liability of the
insurance company was contractual. Therefore, the MVC
No.299/2015 filed by the dependants of the car driver
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Rajkumar is not maintainable as against respondent Nos.3
and 4.
21. Under these circumstances, the liability to pay
the compensation to the petitioners in MVC No.280/2015
and 298/2015 has to be fastened upon the respondent
Nos.1, 2 and 3 and such liability would be joint and
several. So far as the petitioners-claimants in MVC
No.299/2015 is concerned, the respondent No.1 and 2
would be liable to pay compensation jointly and severally
as they happen to be the tort-feasors in the matter of the
injury caused to the driver of the car.
22. As noted supra, the liability being joint and
several in respect of the petitioners in MVC No.280/15 and
298/15, the respondent Nos.1 and 2 are liable to the
extent of contributory negligence and respondent No.3 is
liable to the extent of his contributory negligence. Insofar
as the petitioner No.299/15 is concerned, the respondent
Nos.1 and 2 are liable to pay the compensation jointly and
severally. There being no violation of the conditions of the
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policy by respondent No.1, the respondent No.2 is liable to
indemnify the respondent No.1.
23. Coming to the question of negligence, it is
evident from the charge sheet filed against the driver of
the Tempo Trax at Ex.P7 and charge sheet filed against
the driver of the car as per Ex.R6, the IO found that there
was negligence by both the drivers. A perusal of the spot
sketch produced at Ex.R10 and panchanama at Ex.R4 and
P4 would indicate that the accident had occurred at the
centre of the road and it was head on collision. Therefore,
no fault can be found in the finding of the tribunal that
there was contributory negligence by both the drivers in
equal proportion. The learned counsels would fairly submit
that a finding rendered in MVC NO.567 and 658 of 2015
would also show the same.
24. Learned counsel appearing for the petitioners in
MVC No.280/2018 (MFA No.203685/2023) submitted that
the compensation awarded by the tribunal is erroneous
and future prospects were not properly considered.
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25. A careful perusal of the record would show that
as on the date of the accident, the deceased had not
completed the age of 40 years, therefore, the appropriate
multiplier was 15 and future prospects should have been
considered by the tribunal at 40%. The decision in the
case of National Insurance Co., Ltd., vs. Pranay Sethi
and others3 is clear in this regard. The notional income of
the deceased Bapurao held at Rs.10,000/- per month is
not in dispute. Therefore, the appropriate multiplicand
would be Rs.14,000/- (Rs.10,000/- + Rs.4,000/-). Hence,
the loss of dependency is calculated as Rs.14,000 x12x15
x4/5th = Rs.20,16,000/- by adopting personal expenses at
1/5th owing to the 6 dependants left by him.
26. In view of the decision in the case of Pranay
Sethi, there has to be enhancement on loss of consortium,
funeral expenses and loss of estate at 10% at every 3
years. By giving two escalations as above, the petitioners
are entitled for a sum of Rs.48,400/- under the head loss
AIR 2017 SC 5157
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of consortium and love and affection, a sum of
Rs.18,150/- each towards funeral expenses and loss of
estate.
27. Hence, the petitioners are entitled for a
compensation of Rs.21,00,700/- instead of Rs.18,70,000/-
awarded by the tribunal. Thus, there shall be an
enhancement of Rs.2,30,700/-.
28. For the aforesaid reasons, all the appeals are to
be allowed in part.
29. Hence, we proceed to pass the following;
ORDER
(a) The appeals are allowed in part.
(b) The petitioners in MVC No.280/2015 are
entitled for a compensation of Rs.21,00,700/-
instead of Rs.18,70,000/- as awarded by the
tribunal.
(c) The respondent Nos.1 to 3 are liable to pay
compensation jointly and severally to the
petitioners in MVC No.280/2015 and 298/2015.
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(d) However, the interest liability of respondent
No.1 and 2 is 50% and that of respondent No.3
is 50%. In case the respondent No.2 pays the
liability of respondent No.3 to the extent of
50%, it is at liberty to recover the same from
respondent No.3.
(e) The respondent Nos.1 and 2 are liable to pay
the compensation to the petitioner in MVC
NO.299/2015 and the respondent No.2 shall
keep the respondent No.1 indemnified.
(f) All other aspects regarding interest,
apportionment, fixed deposit as ordered by the
Tribunal remain unaltered.
Sd/-
JUDGE
Sd/-
JUDGE
MSR
