Karnataka High Court
Reliance General Insurance ... vs Jotiba Shatuppa Ghadi on 17 July, 2023
Bench: S G Pandit, Vijaykumar A.Patil
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MFA No. 102220 of 2020
C/W MFA No. 102048 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 17TH DAY OF JULY, 2023
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO.102220 OF 2020 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO.102048 OF 2020 (MV-D)
IN MFA No.102220/2020
BETWEEN:
RELIANCE GENERAL INSURANCE CO.LTD.,
MAHADEV PLAZA, CTS NO.10719 SY.NO.1351/A,
NEAR KOLAHPUR CIRCLE, BELAGAVI-591108,
REPT. BY AUTHORIZED SIGNATORY.
...APPELLANT
(BY SRI. S.V. YAJI, ADVOCATE)
AND:
1. JOTIBA SHATUPPA GHADI,
AGE: 43 YEARS, OCC: ARMY SERVICE,
2. SANCHITA JOTIBA GHADI,
Digitally
signed by
AGE: 14 YEARS, OCC: STUDENT,
JAGADISH T
R
JAGADISH Location: 3. SMIKSHA JOTIBA GHADI,
TR DHARWAD
AGE: 11 YEARS, OCC: STUDENT,
Date:
2023.07.20
11:59:30 -
0700 THE RESPONDENTS NO.2 AND 3 BEING MINORS
R/BY THEIR MINOR GUARDIAN FATHER RESPONDENT 1.
ALL ARE RESIDENT OF YALLUR,
TQ AND DIST: BELAGAVI, PIN:590005.
4. VILAS KALLAPPA GURAV,
AGE:52 YEARS, OCC: BUSINESS,
R/O: NO.439, MAULI NAGAR DESUR,
TQ AND DIST: BELAGAVI, PIN:590014.
...RESPONDENTS
(BY SRI. SANTOSHGOUDA L. LINGANAGOUDAR FOR
SRI. HARISH S. MAIGUR, ADVOCATES FOR R1 TO R3)
(R2 AND R3 ARE MINOR REP. BY R1) (NOTICE TO R4 IS SERVED)
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MFA No. 102220 of 2020
C/W MFA No. 102048 of 2020
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, AGAINST JUDGMENT & AWARD DATED 18.06.2020 PASSED IN
MVC NO.842/2019 ON THE FILE OF X ADDL. DISTRICT JUDGE &
MEMBER, ADDL. MACT, BELAGAVI, AWARDING COMPENSATION OF
Rs.24,89,200/- WITH INTEREST AT 9% P.A. FROM THE DATE OF
PETITION TILL ITS REALISATION.
IN MFA No. 102048 OF 2020
BETWEEN:
1. SHRI. JOTIBA SHATUPPA GHADI,
AGE: 43 YEARS, OCC: ARMY SERVICE,
2. KUMARI. SANCHITA JOTIBA GHADI,
AGE: 14 YEARS, OCC: STUDENT,
3. KUMARI. SMIKSHA JOTIBA GHADI,
AGE: 11 YEARS, OCC: STUDENT,
SINCE APPELLANTS NO-2 AND 3 ARE MINORS
R/BY THEIR MINOR GUARDIAN, NATURAL FATHER
I.E., APPELLANT NO-1
ALL ARE R/O: YALLUR,
TQ:DIST: BELAGAVI-590005.
...APPELLANTS
(BY SRI. SANTOSHGOUDA L. LINGANAGOUDAR FOR
SRI. HARISH S. MAIGUR, ADVOCATES)
AND:
1. SHRI. VILAS KALLAPPA GURAV,
AGE: MAJOR, OCC: BUSINESS,
R/O: 439, MAULI NAGAR, DESUR,
TQ:DIST: BELAGAVI-590014.
2. THE MANAGER,
RELIANCE GENERAL INSURANCE COMPANY LTD.,
MAHADEV PLAZA, CTS NO-10719, SY NO-1351/A,
NEAR KOLHAPUR CIRCLE, BELAGAVI-590019.
...RESPONDENTS
(BY SRI. S.V. YAJI, ADVOCATE FOR R2) (NOTICE TO R1 IS SERVED)
THIS MFA IS FILED U/S.173 (1) OF MOTOR VEHICLES ACT,
AGAINST JUDGMENT & AWARD DATED 18.06.2020 PASSED IN MVC
NO.842/2019 ON THE FILE OF X ADDL. DISTRICT JUDGE & MEMBER,
ADDL. MACT, BELAGAVI, PARTLY ALLOWING CLAIM PETITION FOR
COMPENSATION & SEEKING ENHANCEMENT OF COMPENSATION.
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MFA No. 102220 of 2020
C/W MFA No. 102048 of 2020
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY,
S.G. PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT
Though these appeals are listed for admission, they are
taken up for final disposal, with the consent of learned
counsel for both the parties.
2. The insurer is in appeal in MFA No.102220/2020
challenging the quantum of compensation granted as well as
liability saddled on it. Whereas, the claimants are also in
appeal in MFA No.102048/2020 praying for enhancement of
compensation, not being satisfied with the quantum of
compensation awarded under judgment and award dated
18.06.2020 passed in MVC No.842/2019 on the file of
learned X Addl. District Judge and Member, Addl. MACT,
Belagavi (for short, 'Tribunal').
3. The claimants, who are the husband and minor
children of the deceased Nirupa, filed a claim petition under
Section 166 of the Motor Vehicles Act, 1988 (for short, 'MV
Act') seeking compensation for the accidental death of
deceased Nirupa, that took place on 23.03.2019 involving
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MFA No. 102220 of 2020
C/W MFA No. 102048 of 2020
Motorcycle bearing registration No.KA-22/ER-9324 and Truck
bearing registration No.KA-22/B-4758. It is stated that the
deceased was aged 35 years as on the date of accident and
was earning Rs.18,000/- per month by doing tailoring work.
4. On service of notice, respondent No.1-owner of
the offending Truck remained exparte, whereas respondent
No.2/Insurer appeared and filed its statement of objections
denying the entire claim petition averments. It was
contended that neither the rider of motorcycle nor driver of
the offending Truck were holding valid and effective driving
license as on the date of the accident. It was further
contended that the insured vehicle was not having valid
Certificate of Registration, Fitness Certificate and Permit as
on the date of accident, which would be breach of terms and
conditions of policy and therefore, insurer is not liable to
indemnify owner of the offending vehicle i.e. respondent
No.1. Thus, prayed for dismissal of the claim petition.
5. Before the Tribunal, claimant No.1-husband of the
deceased Nirupa was examined himself as PW1 apart from
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MFA No. 102220 of 2020
C/W MFA No. 102048 of 2020
marking the documents as Exs.P1 to P17. Respondent No.2-
Insurer examined its officer as RW1 and marked the
documents as Ex.R1 to R5. The Tribunal based on the
material on record awarded a total compensation of
Rs.24,89,200/- with interest at 9% per annum from the date
of petition till realization on the following heads:
Loss of dependency Rs.24,19,200/-
Loss of Consortium Rs. 40,000/-
Funeral expenses Rs. 15,000/-
Loss of Estate Rs. 15,000/-
-------------------
Total Rs.24,89,200/-
-------------------
6. While awarding the above compensation, the
Tribunal assessed monthly income of the deceased at
Rs.12,000/-, added 40% of the same towards future
prospects, applied multiplier of 16 taking the age of
deceased as 35 years and deducted 1/4th towards personal
expenses of the deceased. The claimants are in appeal
praying for enhancement of compensation, whereas the
Insurer is also in appeal challenging the liability as well as
quantum of compensation.
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MFA No. 102220 of 2020
C/W MFA No. 102048 of 2020
7. Heard Sri.S.V.Yaji, learned counsel for Insurance
Company and Sri.Santoshgouda Linganagoudar appearing
for Sri.Harish S Maigur, learned counsel for claimants.
Perused the appeal papers along with original records.
8. Sri. S.V. Yaji, learned counsel appearing for the
appellant-Insurer in support of his appeal strenuously
contended that the offending Truck which involved in the
accident was not having valid Fitness Certificate as well as
Permit as on the date of the accident. He submitted that as
on the date of issuance of insurance policy i.e. 24.08.2018,
the offending vehicle was having Fitness Certificate as well
as Permit. He further submits that Fitness Certificate expired
on 11.10.2018 and the accident had occurred on
23.03.2019. It is his submission that subsequently, Permit
was renewed, but Fitness Certificate was not obtained by
owner of the offending Truck/respondent No.1. Therefore,
he submits that as there is breach of terms and conditions of
policy, insurance company is not liable to indemnify the
owner of the offending Truck i.e. respondent No.1.
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MFA No. 102220 of 2020
C/W MFA No. 102048 of 2020
9. With regard to quantum of compensation, learned
counsel Sri. S.V.Yaji would submit that the Tribunal
committed an error in deducting 1/4th towards personal and
living expenses of the deceased, since the husband of the
deceased was working in Indian Army and he was not a
dependent on the deceased. It is submitted that as the
claimants No.2 and 3 are minor children, the Tribunal ought
to have deducted 50% of the assessed income towards
personal expenses of the deceased. He would further submit
that the Tribunal is justified in awarding just and reasonable
compensation on other heads, which needs no interference
at the hands of this Court. He further submits that the
Tribunal committed an error in granting 9% interest on the
compensation amount. He therefore, submits that taking
note of present day's bank interest rate, the Tribunal ought
to have granted 6% interest on the compensation amount.
Thus, learned counsel would pray for allowing the appeal
filed by the Insurance Company and seeks to dismiss the
appeal filed by the claimants.
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MFA No. 102220 of 2020
C/W MFA No. 102048 of 2020
10. Per contra, Sri.Santoshgouda Linganagoudar,
learned counsel appearing on behalf of Sri.Harish S Maigur,
learned counsel for the claimants in support of his appeal
would contend that the Tribunal committed an error in
assessing monthly income of the deceased at Rs.12,000/-,
inasmuch as the deceased was doing tailoring work and
earning more than Rs.18,000/- per month, even though
claimants have produced Ex.P8-Invoice of tailoring bill and
Ex.P9-Photographs of the deceased working with tailoring
machine. Learned counsel would further submit that the
income assessed by the Tribunal is less than notional income
as per chart prepared by Karnataka State Legal Services
Authority for the accident of the year 2019. He would
further submit that the claimants would be entitled for loss of
consortium of Rs.40,000/- each as held by the Hon'ble Apex
Court in the case of Magma General Insurance Co. Ltd.
Vs. Nanu Ram & Others1. Thus, learned counsel prays for
allowing the appeal filed by the claimants by enhancing the
compensation.
2018 ACJ 2782
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MFA No. 102220 of 2020
C/W MFA No. 102048 of 2020
11. Having heard the learned counsel for both the
parties and on perusal of the appeal papers along with
original records, the following points would arise for our
consideration in these appeals:
a) Whether the Insurance Company can
escape from liability to indemnify owner
of the offending Truck on the ground of
no valid Fitness Certificate?
b) Whether the claimants would be entitled
for enhanced compensation in the facts
and circumstances of the case?
12. Our answer to the above points would be in the
negative and affirmative for the following reasons:
13. The occurrence of the accident on 23.03.2019
involving Motorcycle bearing registration No.KA-22/ER-9324
and Truck bearing registration No.KA-22/B-4758 and
resultant death of deceased Nirupa is not in dispute in these
appeals.
14. It is the contention of the appellant/insurer that
as there was no valid Fitness Certificate as on the date of the
accident, the insurance company is not liable to indemnify by
paying compensation on behalf of respondent No.1/onwer of
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MFA No. 102220 of 2020
C/W MFA No. 102048 of 2020
the offending Truck. It is not in dispute that there was valid
insurance policy in force as on the date of the accident and
Permit which expired during the currency of insurance policy
was also renewed. Admittedly, there is no valid Fitness
Certificate. The only question is, when there is no valid
Fitness Certificate, whether insurance company can escape
from its liability?.
15. Possessing valid Fitness Certificate or not, is not a
valid defence available under the provisions of MV Act to
deny its liability by the insurer. In an identical fact situation,
a co-ordinate Bench of this Court in the case of Oriental
Insurance Co. Ltd. Vs. Kumara & Others2, on considering
the provisions of Sections 56(1), 66(1) and 84(A) of the MV
Act has specifically held that even if there is no valid fitness
certificate as on the date of the accident, it is not a defence
available for the insurance company and it is not the
condition which is mentioned in the policy, but it is only an
offence under the MV Act and the insurer cannot escape from
the liability. Thus, the contention of the insurer that as there
MFA No.7792/2015 c/w MFA No.6449/2015, dated 21.12.2020
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MFA No. 102220 of 2020
C/W MFA No. 102048 of 2020
was no valid fitness certificate as on the date of the accident,
the insurance company is not liable to pay compensation is
liable to be rejected and accordingly, it is rejected.
16. As regards the quantum of compensation, the
Tribunal has assessed income of the deceased at Rs.12,000/-
per month placing reliance on Ex.P8-Invoice of tailoring bill
and Ex.P9-Photograph of deceased working with tailoring
machine. A perusal of Ex.P8 and P9 would no doubt disclose
that the deceased was doing tailoring work, but that itself
would not be a conclusive evidence to establish exact income
of the deceased. No cogent or acceptable evidence is placed
on record to prove the exact earning of the deceased. In
the absence of any material on record to establish the exact
income, this Court and Lok Adalath while settling the
accidental claims of the year 2019, would normally assess
the notional income at Rs.13,250/- per month, taking note of
the chart prepared by KSLSA based on various factors
including the minimum wage fixed.
17. It is further contention of the insurance company
that the 1st claimant-husband of the deceased cannot be
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MFA No. 102220 of 2020
C/W MFA No. 102048 of 2020
considered as dependent, since he was working in Indian
Army. It is an admitted fact that the 1st claimant-husband is
working in Indian Army and claimants No.2 and 3 are minor
children of the deceased. As the 1st claimant-husband of the
deceased is in Indian Army, he cannot be considered as
dependent, but claimants No.2 and 3 are certainly
dependents and they have lost love, affection and care of
their mother forever. Even if we consider there are 2 to 3
dependents, in terms of Sarla Verma and Others Vs.
Delhi Transport Corporation & Another3, 1/3rd has to be
deducted towards personal and living expenses of the
deceased. But the Tribunal committed grave error in
deducting 1/4th towards personal expenses of the deceased,
when there are only three family members. Thus, 1/3rd of
assessed income has to be deducted towards personal
expenses of the deceased. There is no dispute with regard to
the age of the deceased as 35 years. Addition of 40%
towards future prospects and applicability of multiplier of 16
to the age of the deceased are just and proper. Accordingly,
2009 ACJ 1298
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MFA No. 102220 of 2020
C/W MFA No. 102048 of 2020
the claimants would be entitled for compensation on the
head of loss of dependency at Rs.23,74,400/- (Rs.13,250
+ 40/100 x 12 x 16x 2/3).
18. Further, the claimants would be entitled to
Rs.40,000/- each towards Filial Consortium and Parental
Consoritum as held by the Hon'ble Apex Court in Magma
General Insurance Company Limited (supra) apart from
Rs.15,000/- towards loss of estate and Rs.15,000/-
towards funeral expenses and transportation of dead body.
Thus, the claimants would be entitled for modified
compensation on the following heads:
Sl.No. Particulars Amount
1. Loss of dependency Rs.23,74,400/-
(Rs.13,250 (income) + 40/100
(future prospects) x 12
(months) x 17 (multiplier) x
2/3 (deduction 1/3))
2. Loss of estate & Funeral Rs. 30,000/-
expenses & transportation of
dead body
3. Filial Consortium (Rs.40,000/- Rs. 1,20,000/-
each)
Total Rs.25,24,400/-
19. The Tribunal while awarding compensation
granted rate of interest at 9% per annum. Taking note of
the present day's Bank rate of interest, we are inclined to
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MFA No. 102220 of 2020
C/W MFA No. 102048 of 2020
reduce the rate of interest on the compensation amount from
9% awarded by the Tribunal to 6% per annum.
20. Thus, the claimants would be entitled to total
compensation of Rs.25,24,400/- as against Rs.24,89,200/-
awarded by the Tribunal with interest at the rate of 6% per
annum from the date of petition till date of realization.
21. In the result, we pass the following:
ORDER
a) Both appeals are allowed in part.
b) The impugned judgment and award of
the Tribunal is modified to an extent that
the claimants are entitled to total
compensation of Rs.25,24,400/- as
against Rs.24,89,200/- awarded by the
Tribunal.
c) The entire compensation amount will
bear interest at the rate of 6% per
annum from the date of claim petition till
date of realization.
d) The appellant-Insurer shall deposit the
entire compensation amount with
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MFA No. 102220 of 2020
C/W MFA No. 102048 of 2020
accrued interest before the Tribunal
within a period of six weeks from the
date of receipt of certified copy of this
judgment.
e) The amount in deposit, if any, be
transmitted to the concerned Tribunal
forthwith along with original records.
f) The apportionment, deposit and
disbursement shall be made as per the
award of the Tribunal.
g) Draw modified award accordingly.
h) No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
JTR
