Karnataka High Court
Bheembai And Ors vs Shrikanth And Anr on 10 January, 2023
Bench: J.M.Khazi
1 MFA No.201226/2021
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MS. JUSTICE J.M.KHAZI
MFA No.201226/2021 (MV)
BETWEEN
1. BHEEMBAI W/O LATE RAMESH,
AGE 26 YEARS, OCCU. HOUSEHOLD,
R/O KANAKAPUR TQ. CHINCHOLI
DIST. KALABURAGI
2. TUKKAMMA W/O LATE NAGAPPA
AGE 49 YEARS, OCCU. HOUSEHOLD,
R/O KANAKAPURA TQ. CHINCHOLI
DIST. KALABURAGI
3. SHIVAPPA S/O LATE NAGAPPA,
AGE 13 YEARS, MINOR,
R/O KANAKAPURA TQ. CHINCHOLI,
DIST. KALABURAGI
4. GURAPPA S/O LATE NAGAPPA,
AGE 13 YEARS, MINOR,
R/O KANAKAPURA TQ. CHINCHOLI
DIST. KALABURAGI
5. CHINNAMMA D/O LATE NAGAPPA,
AGE 09 YEARS, MINOR,
R/O KANAKAPURA, TQ. CHINCHOLI
DIST. KALABURAGI.
2 MFA No.201226/2021
PETITIONERS 3 TO 5 ARE MINORS
U/G OF THEIR NATURAL MOTHER
PETITONER NO. 2 SMT. TUKKAMMA.
...APPELLANTS
(BY SRI. HARSHAVARDHAN R MALIPATIL, ADVOCATE)
AND
1. SHRIKANTH S/O RAJAPPA KARAKMUKALI,
AGE MAJOR, OCCU. OWNER OF AUTO APE PIAGGIO,
BEARING REG NO. KA-32-C-0694,
R/O KANAKAPURA TQ. CHINCHOLI,
DIST. KALABURAGI-585102.
2. CHOLAMANDALUM MS GENERAL
INSURANCE CO., LTD.,
NIRMAL BUILDING, OPPOSITE
COSMO POLITAN CLUB
DOUBLE ROAD, BELLARY- 583101
...RESPONDENTS
(BY SRI.S.S.ASPALLI, ADVOCATE FOR R2;
NOTICE TO R1 D/W V/O DTD 13.01.2022)
THIS MFA IS FILED UNDER SEC. 173(1) OF MVC ACT,
PRAYING TO ALLOW THIS APPEAL AND ENHANCE THE
COMPENSATION TO RS.9,69,500/- (EXCLUDING THE AMOUNT
AWARDED BY THE TRIBUNAL) ALONG WITH INTEREST BY
MODIFYING THE JUDGMENT AND AWARD OF THE SENIOR CIVIL
JUDGE AND MACT AT CHINCHOLLI DATED 18.02.2020 IN MVC
NO.700/2016.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
3 MFA No.201226/2021
JUDGMENT
Not being satisfied with the quantum of compensation
and also fixing the liability on the owner and thereby
exonerating the insurance company from payment of
compensation, appellants who are petitioners before the
Trial Court have come up with this appeal.
2. For the sake of convenience, the parties are
referred to by their rank before the Tribunal.
3. It is the case of the petitioners that they are the
wife, mother and siblings of deceased-Ramesh. On
10.11.2015 deceased-Ramesh was proceeding on his
motorcycle bearing Reg.No.KA-32-Y-2903. At around 11:30
p.m. when he was opposite to Gurupadeshwar temple of
Manna Ekheli on Muttangi-Madaragi road, a Ape Goods Auto
bearing Reg.No.KA-32-C-0694, driven by its driver in a rash
or negligent manner came and dashed against the
motorcycle of deceased. He sustained grievous injuries.
While undergoing treatment at Gandhi Hospital,
Musheerabad of Secundrabad, he died on 13.11.2015.
3.1 Deceased was aged 25 years, earning
Rs.12,000/- per month. Petitioners were dependents on
him. As owner and insurer respondents are jointly and
severally liable to pay the compensation.
4. Before the Tribunal respondent No.1 remained
ex parte.
5. Respondent No.2 appeared and filed written
statement, denying the age, occupation and income of the
deceased and that petitioners were dependent on him.
Deceased contributed to the cause of accident, but in
collusion with the police, a false case is registered against
the driver of the offending vehicle. Though the offending
vehicle was covered by a valid policy, since the driver was
not holding a valid licence, it is not liable to indemnify the
owner. It has sought for dismissal of the appeal.
6. Based on the pleadings, the Tribunal has framed
necessary issues.
7. Petitioner No.2 has got examined herself as
PW.1 and Exs.P1 to 7 are marked.
8. On behalf of respondent No.2, RW.1 is examined
and Exs.R1 to 9 were marked.
9. Vide the impugned judgment and award, the
Tribunal partly allowed the petition granting compensation
in a sum of Rs.21,70,500/- with interest @ 6% per annum
and directed respondent No.1 to pay the same on the
ground that at the time of accident, the driver was not
holding a valid driving licence. The details of the
compensation granted are as under:
Sl.No. Heads Amount
1 Loss of dependency Rs. 20,65,500/-
2. Funeral expenses Rs. 15,000/-
3. Loss of estate Rs. 20,000/-
4. Loss of consortium Rs. 30,000/-
5. Love and affection Rs. 40,000/-
Total Rs. 21,70,500/-
10. During the course of argument, learned counsel
for petitioners submitted that the Tribunal has erred in
exonerating respondent No.2/insurance company on the
ground that the driver of the offending vehicle was not
holding a valid driving licence. Respondent No.2 has not
examined the RTO and failed to produce documents to
prove that there is violation of policy condition. The Tribunal
has erred in coming to the conclusion that the driver of the
offending vehicle was not holding a valid driving licence
solely on the ground that charge-sheet was filed for the
offence punishable under Section 181 of the Motor Vehicles
Act. In view of the decision of the Hon'ble Supreme Court in
Pappu & Ors vs. Vinod Kumar Lamba & Anr. 1,
respondent No.2 may be directed to pay the compensation
and recover the same from respondent No.1.
10.1 So far as quantum is concerned, learned
counsel for petitioners submitted the income of the
(2018) 3 SCC 208
deceased ought to have been taken at Rs.12,000/- per
month as against Rs.9,000/- and prays to allow the appeal.
11. On the other hand, learned counsel for
respondent No.2 supported the impugned judgment and
award and sought for dismissal of the appeal.
12. Heard arguments and perused the records.
13. Having regard to the specific grounds urged in
the appeal, it is necessary to examine whether the
compensation granted by the Tribunal is just and
reasonable or it calls for interference by this Court under
the following various heads.
14. Loss of dependency: Though the petitioners
claim that deceased was aged 25 years, in the absence of
evidence to prove the same, based on medical records the
Tribunal correctly taken deceased to be coming in the age
group of 26-30 and therefore multiplier '17'. Though
petitioners claim that deceased was earning Rs.12,000/-
per month they have not produced any evidence to prove
the same. Therefore, notional income of Rs.9,000/- taken
by the Tribunal is just and reasonable, although as per the
minimum wages it ought to have been taken at Rs.8,000/-.
Since there are five dependents 1/4th deduction towards
his personal and living expenses is correct. Since deceased
was less than 40 years and he was a coolie 40% of his
income was required to be added towards loss of future
prospects, but the Tribunal has wrongly added 50% by
referring to decision of the Hon'ble Supreme Court in Hem
Raj vs. Oriental Insurance Co. Ltd. and others2.
However, in the said decision, the Hon'ble Supreme Court
has allowed only 40% future prospects. If notional income
taken at Rs.8,000/- per month and added 40% of it at
Rs.3,200/- the income comes to Rs.11,200/-. With these
components the loss of dependency is Rs.11,200 x 12 x 17
x 3/4 = Rs.17,13,600/-. But Tribunal has granted
Rs.20,65,500/- which is on the higher side.
2018 ACJ 5
15. Loss of Consortium: As wife and mother only
petitioner Nos.1 and 2 are entitled for compensation in a
sum of Rs.40,000/- each which comes to Rs.80,000/-. But
the Tribunal has granted compensation in a sum of
Rs.30,000/- to petitioner No.1 and Rs.10,000/- each to
petitioner Nos.2 to 5.
16. Loss of estate and funeral expenses: As per
National Insurance Company Limited vs. Pranay Sethi
and others3 (Pranay Sethi's case), and Magma
General Insurance Company Limited Vs. Nanu Ram
Alias Chuhru Ram And Others4 (Magma Insurance
Company case) when substantial compensation is granted
under the head loss of dependency a sum of Rs.15,000/-
each is to be granted under these two heads. However,
though the Tribunal has granted Rs.15,000/- under the
head funeral expenses, it has granted Rs.20,000/- under
the head loss to estate.
(2017) 16 SCC 680
(2018) 18 SCC 130
17. As per the correct calculation, the petitioners are
entitled for total compensation in a sum of Rs.18,23,600/-
i.e. loss of dependency - Rs.17,13,600/-
Loss of consortium - Rs.80,000/-
Funeral expenses - Rs.15,000/-
Loss to estate - Rs.15,000/-
Total - Rs.18,23,600/-
18. Since the Tribunal has granted Rs.21,70,500/-
which is higher than what petitioners are eligible and as
respondents have not challenged the same, I hold that
petitioners are not entitled for any enhancement.
19. Now coming to the question of liability. It is an
undisputed fact that as on the date of accident, the
offending vehicle was covered by a valid policy issued by
respondent No.2. The Tribunal has exonerated respondent
No.2 from the liability on the ground that at the time of
accident driver of the offending vehicle was not holding a
valid driving licence. However, in Pappu's case5, the
Hon'ble Supreme Court held that when the offending
vehicle is insured, in the absence of the driver of offending
vehicle possessing a valid driving licence, the insurance
company is liable to pay the compensation and recover the
same from the owner. Therefore, in this case also it is
necessary to direct respondent No.2/insurance company to
pay the compensation with interest and recover the same
from respondent No.1-owner.
20. Though petitioners are not entitled for
enhancement, to this extent, the appeal deserves to be
allowed-in-part and accordingly, I proceed to pass the
following:
ORDER
(i) Appeal is allowed in part.
(ii) Respondent No.2 is directed to pay the
compensation as quantified by the Tribunal
together with interest and recover the
same from respondent No.1.
Sd/-
JUDGE
sdu
(2018) 3 SCC 208
