Karnataka High Court
Malan Bee And Ors vs S Devednra @ Devendrappa Nayak And Ors on 6 December, 2023
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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MFA No. 201279 of 2021
C/W MFA No. 200050 of 2021
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6 TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
MISCL. FIRST APPEAL NO. 201279 OF 2021 (MV-D)
C/W.
MISCL. FIRST APPEAL NO. 200050 OF 2021 (MV-I)
IN MFA NO. 201279 OF 2021
BETWEEN:
1. MALAN BEE @ MALANBI
W/O KHADAR SAAB,
D/O HUSEEN PEER SAAB,
AGE: 22 YEARS,
Digitally signed
by LUCYGRACE OCC: HOUSE HOLD WORK,
Location: HIGH
COURT OF 2. HUSSAIN SAB
KARNATAKA
S/O MURTUJA SAB,
AGE: 58 YEARS, OCC: COOLIE,
3. MOULAMMA
W/O HUSSAIN SAB,
AGE: 49 YEARS, OCC: HOUSEHOLD WORK,
ALL ARE R/O MEDIKINAL VILLAGE,
TQ. LINGASUGUR,
NOW RESIDING AT
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MFA No. 201279 of 2021
C/W MFA No. 200050 of 2021
KALMALA VILLAGE,
TQ. AND DIST. RAICHUR
...APPELLANTS
(BY SRI SANGANAGOUDA V. BIRADAR, ADVOCATE)
AND:
1. S. DEVENDRA @ DEVENDRAPPA NAYAK
S/O HANUMANTHA NAYAK,
AGE: 62 YEARS, OCC: DRIVER OF CAR,
R/O BADUGUMPA CAMP,
TQ. SINDHANUR,
DIST. RAICHUR- 584128.
2. NAGARAJ
S/O SHANKARAPPA MALAGI,
AGE: MAJOR, OCC: OWNER OF CAR
R/O. KUNAKERI TANDA,
POST KUNAKERI,
TQ. & DIST. KOPPAL - 583228.
3. THE MANAGER
UNITED INDIA GENERAL INSURANCE CO LTD.,
D.NO. 12-10-89/1, 1ST FLOOR,
ANAGA COMPLEX,
NEAR CHANDRAMOULESHWAR CHOUK,
RAICHUR- 584101.
...RESPONDENTS
(BY SRI RAHUL R. ASTURE, ADVOCATE FOR R3;
R1 & R2-V/O DATED 15.09.2022 NOTICE DISPENSED WITH )
THIS MFA IS FILED UNDER SECTION 173(1) OF
MOTOR VEHICLES ACT, PRAYING TO ENHANCE THE
COMPENSATION AMOUNT PAYABLE TO THE APPELLANTS
BY SUITABLY MODIFYING THE JUDGMENT AND AWARD
DATED 16.10.2019 PAST BY THE COURT OF THE I
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MFA No. 201279 of 2021
C/W MFA No. 200050 of 2021
ADDITIONAL DISTRICT AND SESSIONS JUDGE AND
MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL AT
RAICHUR IN MVC NO.490/2017.
IN MFA NO. 200050 OF 2021
BETWEEN:
DUAL SAB
S/O SHAMEED SAB,
AGE: 30 YEARS,
OCC: VEGETABLE MERCHANT (VEGETABLE
SELLER),
R/O MEDIKINAL VILLAGE,
TQ. LINGASUGUR,
NOW RESIDING AT
KALMALA VILLAGE,
TQ. & DIST. RAICHUR.
...APPELLANT
(BY SRI SANGANAGOUDA V. BIRADAR, ADVOCATE)
AND:
1. S. DEVENDRA @ DEVENDRAPPA NAYAK,
S/O HANUMANTHA NAYAK,
AGE: 62 YEARS, OCC: DRIVER OF CAR,
R/O BADUGUMPA CAMP,
TQ. SINDHANUR
DIST. RAICHUR - 584128.
2. NAGARAJ
S/O SHANKRAPPA MALAGI,
AGE: MAJOR, OCC: OWNER OF CAR,
R/O KUNAKERI TANDA,
POST. KUNAKERI,
TQ. & DIST. KOPPAL- 583228.
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MFA No. 201279 of 2021
C/W MFA No. 200050 of 2021
3. THE MANAGER
UNITED INDIA GENERAL INSURANCE CO LTD.,
D.NO. 12-10-89/1, 1ST FLOOR,
ANAGA COMPLEX,
NEAR CHANDRAMOULESHWAR CHOUK,
RAICHUR- 584101.
...RESPONDENTS
(BY SRI RAHUL R. ASTURE, ADVOCATE FOR R3;
R1 & R2-V/O DATED 26.08.2021 NOTICE IS DISPENSED )
THIS MFA IS FILED UNDER SECTION 173(1) OF
MOTOR VEHICLES ACT, PRAYING TO ENHANCE THE
COMPENSATION AMOUNT PAYABLE TO THE APPELLANT BY
SUITABLY MODIFYING THE JUDGMENT AND AWARD
DATED 16.10.2019 PASSED BY THE COURT OF I
ADDITIONAL DISTRICT AND SESSIONS JUDGE AND
MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL, AT
RAICHUR, IN MVC NO.489/2017.
THESE APPEALS COMING ON FOR ORDERS, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. The MFA No.201279/2021 is by the claimants
being wife and parents of deceased Khadar Saab and the
MFA No.200050/2021 is by the injured-claimant seeking
enhancement of compensation awarded in MVC
Nos.490/2017 and 489/2017, respectively, on the file of
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the Member, MACT, Raichur and I Additional District and
Sessions Judge, Raichur.
2. Brief facts of the case are that:
a) On 04.05.2017 at 11.00 a.m., on Maski-
Sindhanur Main Road, near Pariwar Dhaba, when the
deceased Khada Saab along with the pillion rider Daula
Sab (claimant in MVC No.489/2017) was proceeding on a
motorcycle bearing registration No. KA-36/EJ-0597 a Car
bearing registration No.KA-37/A-6717 came in rash and
negligent manner and dashed against the motorcycle
causing accident, in which, the Khadar Saab sustained
grievous injuries and succumbed to the same on the spot,
while Daula Sab sustained severe injuries. Thereupon,
claim petitions in MVC Nos.489 & 490/2012 were filed
respectively by the claimant and the legal heirs of the
deceased Khadar Saab. It is contended that Daula Sab
was earning Rs.15,000/- per month as vegetable Vendor
and the deceased was earning Rs.20,000/- per month
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from his vegetable business and that the accident was
caused due to negligent driving by the driver of the
offending car. Respondent Nos.1 and 2 who are the driver
and owner respectively of the offending car remained
absent and placed ex-parte before the Tribunal.
Respondent No.3 - Insurer of the Car filed statement of
objections denying the claim averments, mode and
manner of accident. It was specifically pleaded by the
Insurer that there was breach of terms of policy as
respondent No.2 had handed over the car to respondent
No.1, who did not have valid driving license and also that
the offending car did not have Permit and Fitness
Certificate at the time of accident, as such, the Insurance
Company sought for dismissal of the claim petitions.
b) The Tribunal based on the pleadings framed the
issues and recorded the evidence of the parties. Injured-
claimant Daula Sab examined himself as PW1 and Smt.
Malan Bee, the wife deceased Khadar Saab examined
herself as PW2 and exhibited 10 documents marked as
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Exs.P1 to P10. One witness has been examined on behalf
of the respondent No.3 - Insurance Company as RW1 and
copy of the Insurance Policy was marked as Ex.R1.
c) On appreciation of the evidence, the Tribunal
passed a common judgment and award, in that the
Tribunal came to the conclusion that accident in question
had occurred on account of rash and negligent driving of
the offending car by its driver and consequently held that
the appellant-injured claimant - Daula Sab is entitled for
compensation of Rs.40,000/-, while the appellants-
claimants being dependents of deceased were entitled for
total compensation of Rs.17,70,268/-. The Tribunal also
came to the conclusion that the driver of the offending car
did not possess valid driving license and accordingly
exonerated the Insurance Company from payment of the
compensation and fastened the liability on the owner of
the offending car - respondent No.2.
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3. Being aggrieved by the aforesaid order the
claimants are before this Court seeking enhancement of
compensation and also seeking direction to the respondent
- Insurance Company to pay the compensation at the first
instant and thereafter to recover the same from
respondent No.2 - owner of the offending Car.
4. Sri Sanganagouda V. Biradar, learned counsel
appearing for the appellants-claimants reiterating the
grounds urged in the memorandum of appeal submits that
the Tribunal grossly erred in awarding a meager and
inadequate compensation of Rs.40,000/- to the injured-
claimant and Rs.17,73,268/- in respect of death of
deceased Khadar Saab. He submits that considering
nature of the injuries suffered by the injured-claimant the
Tribunal ought to have awarded just and sufficient
compensation. As regards the compensation awarded in
the case of deceased Khadar Saab, he submits that the
Tribunal has assessed the notional income of the deceased
at Rs.8,000/- per month, even though, the deceased was
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earning Rs.20,000/- per month from his vegetable
business. Hence, seeks for allowing of the appeals.
5. Sri Rahul R. Asture, learned counsel appearing
for the respondent No.3 - Insurance Company justifying
the award passed by the Tribunal submits that nature of
the injuries suffered by the appellant-claimant are simple
in nature and no disability is pleaded or proved resulting in
reduction of income, therefore the grant of compensation
of Rs.40,000/- is just and proper. With regard to the
award of compensation in the case of appellants-claimants
in MFA No.201279/2021 he submits that no proof of
income was produced, as such, the Tribunal has taken
notional income at Rs.8,000/- per month. He also submits
that the grant of compensation under other heads is
exorbitant and contrary to the law laid down by the
Hon'ble Apex Court. He relies upon the judgment of
Division Bench of this Court in the case of SMT.
ADILAKSHMAMMAMA AND OTHERS Vs. SRI RAJU B.,
AND ANOTHER in MFA No.3297/2019 dated
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13.04.2023 and submits that the respondent-Insurance
Company is not liable to pay the compensation in any
manner whatsoever, since there was breach of terms of
the policy, hence, he seeks for dismissal of the appeals.
6. Heard the learned counsel for the parties and
perused the records.
7. The accident noted above is not in dispute. The
appellant-claimant namely, Daula Sab in MFA
No.200050/2021, (MVC No.489/2017), as per Ex.P5 -
Wound Certificate have suffered following injuries:
1. Pain, swelling and deformity at right hip joint
movements at hip joint are painful;
2. Abrasion over left leg two in number, each
measuring 3 x 3 cm; and
3. Dislocation of right hip joint and fracture of
accetabum.
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8. The injured-claimant was admitted for
treatment from 04.05.2017 to 07.05.2017. The Tribunal
taking into consideration of the material evidence has
granted total compensation of Rs.40,000/-. Considering
the nature of injuries and the length of treatment, this
Court is of the considered view that a sum of Rs.20,000/-
be awarded in addition to Rs.40,000/- awarded by the
Tribunal making in Rs.60,000/- in total to meet the ends
of justice.
9. As regards the compensation in respect of
claimants in MFA No.201279/2021, the deceased was aged
about 26 years and he is stated to have been earning
Rs.20,000/- per month from his vegetable business. In
the absence of proof of income, the Tribunal has assessed
the same at Rs.8,000/- per month. Though no evidence is
produced justifying the claim of income of Rs.20,000/- per
month, as per the Chart prepared by the Karnataka State
Legal Services Authority, since the accident is of the year
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2017, the notional income requires to be taken at
Rs.10,000/- per month. The same is accordingly taken.
10. In view of law laid down by the Hon'ble Apex
Court in the case of National Insurance Company
Limited vs. Pranay Sethi and Others - 2017 ACJ
2700, 40% of the assessed income is added towards
future prospects. Since, the deceased died leaving behind
his wife and parents, 1/3 is to be deducted towards
personal and living expenses of the deceased. Hence,
claimants are entitled for Rs.19,03,932/- (Rs.10,000/- +
40% of Rs,10,000/- i.e., Rs.4000/- = Rs.14,000/- less
1/3rd of Rs.14,000/- i.e. 4,667/- = Rs.9,333 x 12 x 17)
towards loss of dependency.
11. In view of law led down by the Hobn'ble Apex
Court in the case of Magma General Insurance
Company Limited vs. Nanu Ram Alias Chuhru Ram
and others - (2018) 18 SCC 130 the claimants would be
entitled to Rs.40,000/- each under the head loss of
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consortium. In addition, the claimants are entitled for
Rs.15,000/- towards funeral expenses and Rs.15,000/-
towards loss of estate.
12. That apart, in view of the law laid down by the
Hon'ble Apex Court in the case of National Insurance
Company Limited v. Pranay Sethi and others reported
in (2017) 16 SCC 680, there shall be 10% increment on
expiry of every three years on the compensation awarded
under conventional heads.
13. The claimants are entitled for total
compensation of Rs.20,53,932/- with interest at 6% per
annum from the date of petition till realization as against
Rs.17,73,268/- awarded by the Tribunal.
14. The Hon'ble Apex Court in the case of the
Hon'ble Apex Court in the case of PAPPU AND OTHERS
VS. VINOD KUMAR LAMBA AND ANOTHER reported in
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(2018) 3 SCC 208 at paragraphs 12 and 17 has held as
under:
"12. This Court in the case of National
Insurance Co. Ltd. (supra), has noticed the
defences available to the Insurance Company
under Section 149(2)(a)(ii) of the Motor
Vehicles Act, 1988. The Insurance Company is
entitled to take a defence that the offending
vehicle was driven by an unauthorised person
or the person driving the vehicle did not have a
valid driving licence. The onus would shift on
the Insurance Company only after the owner of
the offending vehicle pleads and proves the
basic facts within his knowledge that the driver
of the offending vehicle was authorised by him
to drive the vehicle and was having a valid
driving licence at the relevant time.
17. This issue has been answered in the case
of National Insurance Company Ltd. (supra).
In that case, it was contended by the insurance
company that once the defence taken by the
insurer is accepted by the Tribunal, it is bound
to discharge the insurer and fix the liability only
on the owner and/or the driver of the vehicle.
However, this Court held that even if the
insurer succeeds in establishing its defence, the
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Tribunal or the Court can direct the insurance
company to pay the award amount to the
claimant(s) and, in turn, recover the same
from the owner of the vehicle. The three-
Judge Bench, after analysing the earlier
decisions on the point, held that there was no
reason to deviate from the said well-settled
principle".
15. In the instant case the Tribunal has come to the
conclusion that the driver of the offending vehicle did not
possess valid driving license. Neither the owner of the
offending vehicle nor the driver himself filed any
statement of objections or entering the witness box. In
that view of the matter exoneration of liability to pay
compensation by the Insurance Company cannot be found
fault with.
16. Learned counsel for the respondent No.3 -
Insurance Company relied upon the judgment of Division
Bench of this Court in the case of Smt.
Adilakshmammama (supra), wherein at Para 28 the
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Division Bench has held that since there is breach of terms
of the policy, respondent No.2 - owner of the offending
vehicle cannot take benefit of his own wrong and as such,
held that the Insurance Company cannot be fastened with
the liability to pay and recover. Relying upon the said
judgment learned counsel for Insurance Company
vehemently submits that there cannot be even an order
for pay and recovery. It may be useful to refer to the
judgment of the Hon'ble Apex Court in the case of Balu
Krishna Chavan vs. The Reliance General Insurance
Company Ltd. & Ors., passed in Civil Appeal No.2022
(arising out of SLP(C) No. 33638/2017) disposed of on
03.11.2022, wherein the Apex Court in Para Nos.8, 9 and
10 has held as under:
"8. Hence, the only aspect for our
consideration herein, is as to whether in the
facts and circumstances of the present case, an
order to direct the Insurance Company to "pay
and recover", is required to be made. On this
aspect, the law is well settled that if the liability
of the Insurance Company is decided and they
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are held not to be liable, ordinarily, there shall
be no direction to "pay and recover". However,
in the facts and circumstances arising in each
case, appropriate orders are required to be
made by this Court to meet the ends of justice.
9. In the instant case, the appellant has
relied on the judgment 3 dated 21.02.2017
passed by this Court in Civil Appeal No(s).3047
of 2017 titled as "Manuara Khatun & Ors. Vs.
Rajesh Kr. Singh & Ors". In the said case also,
a Bench of this Court, having referred to the
earlier decisions in Para-15 and 16 of that
Judgment, has concluded that normally, there
would be no order to "pay and recover".
However, in the said facts, this Court, to meet
the ends of justice, had taken into
consideration the fact situation though, the
claimant therein, was a 'gratuitous passenger'
and had kept in view that the benevolent
object of the Act and had directed the payment
by the Insurance Company and to recover the
amount.
10. Therefore, on the legal aspect, it is clear
that in all cases such order of "pay and
recover" would not arise when the Insurance
Company is not liable but would, in the facts
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and circumstances, be considered by this Court
to meet the ends of justice."
17. Applying the principle of the said judgment of
the Apex Court, the fact of the present case needs to be
considered if the respondent - Insurance Company be
directed to pay and thereafter recover the compensation.
The claimants in MFA No.201279/2021, who are the widow
and parents of the deceased, cannot be left high and dry
for their existence, as the deceased was admittedly
contributing his income for their survival. Also considering
the global compensation of Rs.60,000/- awarded to the
claimant in MFA No.200050/2021 this Court is the of the
considered view that the respondent-Insurance Company
in the aforesaid facts and circumstance of the matters and
in the light of the judgment of the Apex Court in the case
of Balukrishna (supra) respondent - Insurance Company
be directed to pay the compensation at the first instance
to the claimants in both the appeals and thereafter recover
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the same from respondent No.3 - owner of the offending
vehicle.
18. With the above, the following:
ORDER
i. Both the appeals are allowed in part.
ii. The impugned common judgment and
award dated 16.10.2019 passed in MVC
Nos.489 and 490 of 2017 is modified.
iii. The appellants in MFA No.201279/2021
are entitled for total compensation of Rs.
20,53,932 with interest at 6% per annum
from the date of petition till realization as
against Rs.17,73,268/- awarded by the
Tribunal.
iv. The appellant-injured in MFA
No.200050/2021 is entitled for global
compensation of Rs.60,000/- with interest
at 6% per annum from the date of petition
till realization as against Rs.40,000/-
awarded by the Tribunal.
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v. The entire compensation is to be paid by
the respondent - Insurance Company in
the first instance within a period of 8
[eight] weeks from the date of receipt of a
copy of this judgment and thereafter
recover the same from the respondent
No.2 - owner of the offending car.
vi. The trial Court records be transmitted to
the Tribunal forthwith.
Sd/-
JUDGE
SBS
