Karnataka High Court
United India Insurance Co.Ltd vs Smt.Yankawwa W/O Mallappa ... on 9 November, 2023
Bench: S.Sunil Dutt Yadav, Vijaykumar A.Patil
-1-
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 09th DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO.103113/2017
C/W
MISCELLANEOUS FIRST APPEAL NO.104390/2017
IN MAFA NO.103113/2017
BETWEEN
UNITED INDIA INSURANCE CO. LTD,
THE DIVISIONAL MANAGER,
MARUTI GALLI, BELAGAVI-590002,
REPRESENTED BY ITS DIVISIONAL MANAGER.
...APPELLANT
(BY SRI. SHASHANK S. HEGDE, & SMT. PREETI SHASHANK,
ADVS)
SHIVAKUMAR
HIREMATH
Digitally
signed by
AND
SHIVAKUMAR
HIREMATH
Date:
2023.11.10
10:41:41
+0530
1. SMT. YANKAWWA W/O. MALLAPPA BUDIHAL,
AGE: 28 YEARS, OCC: HOUSEWIFE.
2. KUM. LAXMAN S/O. MALLAPPA BUDIHAL,
AGE: 8 YEARS, OCC: STUDENT,
THE RESPONDENT NO.2 IS MINOR AND REPRESENTED
BY HIS NATURAL GURARDIN MOTHER RESPONDNET NO.1.
-2-
3. SMT. YALLAWWA W/O. LAXAMAPPA BUDIHAL,
AGED ABOUT 52 YEARS, OCC: NIL
ALL ARE R/O. MALLAPUR, TQ: MUDHOL,
DIST: BAGALKOT-587301.
4. SRI. ABDULWAHAB S/O. MAGUDUMSAB DESNUR,
AGE: 62 YEARS, OCC: NIL,
R/O. SHREE NAGAR, M. M. EXTENSION,
BELAGAVI-590016.
(OWNER OF THE CAR BEARING NO. KA-35/M-2358)
RESPONDENTS
(SRI. VITTHAL S. TELI, ADV. FOR R1 TO R3,
SRI. PRASAD JOSHI, ADV. FOR R4)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED 10.08.2017
PASSED IN MVC NO.45/2016 ON THE FILE OF THE MEMBER
MOTOR VEHICLES ACCIDENT CLAIMS TRIBUNAL AND II
ADDITIONAL DISTRICT COURT, BELAGAVI, AWARDING THE
COMPENSATION OF RS. 8,83,000/-, ALONG WITH INTEREST AT
THE RATE OF 9% P.A. FROM THE DATE OF PETITION TILL
REALIZATION.
IN MFA NO. 104390/2017
BETWEEN
1. SMT. YANKAWWA W/O. MALLAPPA BUDIHALL,
AGE: 26 YEARS, OCC: HOUSE HOLD WORK,
R/O. MALLAPUR, TQ: MUDHOL,
DIST: BAGALKOT-587111.
2. KUMAR LAXMAN BIN MALLAPPA BUDIHALL,
AGE: 7 YEARS, OCC: STUDENT,
SINCE MINOR REPRESENTED BY APPELLANT NO.1.
3. SMT. YALLAWWA W/O. LAXMAN BUDHIHALL,
AGE: 51 YEARS, OCC: NIL,
ALL ARE R/O MALLAPUR, TQ: MUDHOL,
DIST: BAGALKOT-587111.
...APPELLANTS
-3-
(BY SRI. VITTHAL S. TELI, ADVOCATE)
AND
1. ABDULWAHAB BIN S/O. MAGDUMSAB DESHUR
BIN
OCC: NIL, C/O. SRINAGAR,
M. M. EXTENSION, BELAGAVI,
DIST: BELAGAVI-590017.
2 . DIVISIONAL MANAGER,
UNITED INDIA INSURANCE COMPANY LTD,
MARUTI GALLI, BELAGAVI-540001.
RESPONDENTS
(SRI. SHASHANK S. HEGDE AND
SMT. PREETI SHASHANK, ADVS. FOR R2,
NOTICE TO R1 DISPENSED WITH).
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED 10.08.2017
PASSED IN MVC NO.45/2016 ON THE FILE OF THE II ADDITIONAL
DISTRICT AND SESSIONS JUDGE AND MOTOR ACCIDENT CLAIMS
TRIBUNAL, BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE APPEALS HAVING BEEN HEARD, RESERVED ON
02.11.2023 AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT VIJAYKUMAR A PATIL, J., PRONOUNCED THE
FOLLOWING:
JUDGMENT
MFA No.104390/2017 is filed by the appellants-
claimants, who are the legal heirs of deceased Mallappa,
seeking for enhancement of compensation. MFA
No.103113/2017 is filed by the appellant-Insurance
Company challenging the liability as well as the quantum of
compensation awarded by the Tribunal vide judgment and
award dated 10.08.2017 passed by the II Additional District
and Sessions Judge and MACT, Belagavi (hereinafter referred
to as 'the Tribunal') in MVC No.45/2016.
2. Brief facts giving rise to filing of these appeals are
that the legal heirs of the deceased Mallappa filed a claim
petition seeking compensation before the Tribunal. It is
averred that on 07.12.2015 the deceased Mallappa was
proceeding on motorcycle bearing registration No.KA-48/E-
9028 from Lokapur towards Mallapur, when he reached near
Kotabagi Petrol Pump, the driver of the offending car bearing
registration No.KA-35/M-2358 came from Belagavi towards
Bagalkote in a rash and negligent manner without observing
the traffic rules, dashed the motorcycle, resultantly deceased
sustained grievous injuries. Later the deceased Mallappa
shifted to Kerudi Hospital and thereafter he was shifted to
KLE Hospital, Belagavi, where the deceased Mallappa
succumbed to injuries and was declared dead. It is further
averred that, the deceased Mallappa was hale and healthy
prior to the accident and he was earning Rs.15,000/- per
month by doing a Mason work. It is also averred that he was
the only bread earner in the family and the claimants are the
dependents.
3. The respondent Nos.1 and 2 have filed their
objections by denying the averments of the claim petition. It
is averred that, the deceased Mallappa was negligent in
riding his motorcycle which has resulted in the accident and
sought for dismissal of the claim petition.
4. The Tribunal has framed the issues and recorded
the evidence of the parties. The appellant/claimant No.1 has
examined herself as P.W.1, another witness as P.W.2 and got
marked Ex.P.1 to P.8 and respondent Insurance company
has not adduced any oral evidence however with the
consent, got marked Ex.R.1. The Tribunal on appreciation of
evidence, available on record has awarded compensation of
Rs.8,83,000/- along with 9% interest. With the aforesaid
factual matrix, the present appeal has been filed.
5. Learned counsel Sri. Shashank S. Hegde,
appearing for the appellant-Insurance company submits that,
the Tribunal has committed grave error in fastening the
liability on the insurance company as the jurisdictional police
after investigation have filed 'C' report. It is submitted that
the complaint is filed two days after the accident and
complaint does not disclose the vehicle number. It is further
submitted that the eyewitness PW-2 has given categorical
statement before the police that he has not seen the vehicle
number. Hence, it is clear case that the claimants have
implicated the vehicle No.KA-35/M-2358. It is also
submitted that the police have filed 'C' report clearly
indicates that the police were unable to secure the vehicle
and the driver of the vehicle hence, the involvement of the
vehicle is itself doubtful and these aspects have not been
properly considered by the Tribunal resulted in fastening the
entire liability on the insurance company. It is contended
that the appellant/claimants have filed complaint to the
Superintendent of Police Bagalkote at Ex.P-6 alleging that
the investigating officer has filed 'C' report which clearly
demonstrates that the alleged offending vehicle is not
involved in the road accident. Hence, there cannot be any
liability on the appellant insurance company. On quantum of
compensation, it is further contended that the award of
compensation by the Tribunal is just and proper and does not
call for any enhancement in the appeal filed by the
claimants. He seeks to allow the appeal filed by the
Insurance Company by dismissing the appeal of the
claimants.
6. Per contra, Sri Vittal S. Teli, learned counsel for
claimants submits that the Tribunal has recorded detailed
reasoning at para 10 to 12 on the liability aspect. It is
submitted that the insurance company has failed to adduce
any evidence before the Tribunal to substantiate their
contention that they are not liable to pay the compensation.
It is further submitted that the evidence on record clearly
indicates that the vehicle bearing No.KA-35/M-2358 was
involved in the accident in question. Hence, the contention
of the insurance company is required to be rejected. It is
also submitted that the Tribunal has committed an error in
assessing the income of the deceased at Rs.6,000/- p.m. as
the deceased was working as mason and he was earning
more than Rs.15,000/- p.m. It is contended that the Tribunal
has committed an error in not adding 40% to the assessed
income of the deceased under the head loss of future
prospects. He seeks to allow the appeal by enhancing the
compensation.
7. Having heard the learned counsel for the
appellant insurance company, learned counsel for the
appellant claimants, perused the memorandum of appeals
and Tribunal records. The points that arise for consideration
in these appeals are
1) Whether the Tribunal has justified in fastening
the liability on the insurance company?
2) Whether the claimants are entitled for the
enhanced compensation?
8. The answer to the above points are in the
affirmative for the following reasons:
a) It is not in dispute that one Sri Mallappa has died in the
road accident dated 07.12.2015 when he was
proceeding on his motorcycle from Lokapur to Mallapur
at the time a car bearing No.KA-35/M-2358 insured
with the appellant insurance company came in opposite
direction and dashed against the motorcycle. It is also
not in dispute that the appellant/claimants filed a claim
petition seeking compensation. The insurance
company has raised specific contention that the
Tribunal has committed an error in fastening the
liability on the insurance company as the evidence on
record demonstrates that the vehicle bearing No. KA-
35/M-2358 was not involved in the accident. On close
scrutiny of evidence on record, more particularly, the
oral testimony of PW-2 who is the eyewitness to the
accident has categorically stated that vehicle No.KA-
35/M-2358 has caused the accident in question. On
perusal of the documents Ex.P-1 and P-2 i.e., complaint
and FIR, it is clear that the vehicle No.KA-35/M-2358 is
mentioned in the said documents. Hence, the
statement given before the police during the course of
investigation by PW-2 has no relevance as the very
same witness has entered the witness box before the
Tribunal and deposed that he has witnessed the
accident and confirms the involvement the vehicle
No.KA-35/M-2358 in the accident. The further
contention of the insurance company that the
jurisdictional police filed 'C' report hence they be
exonerated from liability which has no bearing with
regard to fastening of liability on the insurance
company. The owner of the vehicle bearing No.KA-
25/M-2358 has admitted the involvement of his vehicle
in the road accident in the written statement before the
Tribunal and the said statement is reaffirmed by the
eyewitness PW-2 in his oral testimony and also further
evident from the complaint and FIR. The appellant has
filed complaint against the Investigating Officer to the
Superintendent of Police alleging that there is lapse on
the part of the Investigating Officer in investigating the
crime. The said complaint is marked as Ex.P-6. Ex.P-6
further crystalises the fact that there was a lapse on
the part of the Investigating Officer in filing C report.
The oral and documentary evidence on record clearly
demonstrates that vehicle No.KA-25/M-2358 was
involved in the accident. It is admitted that the
insurance company has not adduced any oral evidence
before the Tribunal to substantiate their contention.
The Tribunal on appreciation of the evidence on record,
has recorded the categorical finding at paragraphs 10
to 12 of the judgment on the negligence and the
liability. Those findings are neither perverse nor
contrary to the material on record calling for any
interference in the appeal filed by the insurance
company. Hence, contrary contention raised by the
insurance company does not merit consideration.
Accordingly, the same is rejected.
b) The Tribunal has assessed the notional income of the
deceased at Rs.6,000/- p.m. There is no dispute that
the appellants have not produced any evidence to
substantiate the income of the deceased. In the
absence of any evidence on record, this Court and Lok
Adalaths normally rely on the notional income chart
prepared by the Karnataka State Legal Services
Authority to assess the income. In the instant case,
the accident is of the year 2015. Basing our reliance on
the aforesaid chart, this Court assesses the income of
the deceased at Rs.8,000/-.
c) The Tribunal has committed an error in not adding 40%
of the assessed income towards loss of future
prospects. The deceased was self-employed and was
aged about 32 years. Hence, keeping in mind the law
laid down by the Hon'ble Supreme Court in the case of
National Insurance Company Limited Vs. Pranay
Sethi and others1, the appellant/claimants are
entitled for addition of 40% of future prospects to the
assessed income of the deceased.
d) The Tribunal has deducted 1/3rd towards personal
expenses of the deceased and applied 16 as multiplier,
the same do not call for any interference. Thus, the
claimants would be entitled for compensation under the
head loss of dependency as under:
Rs.8,000 + 40% x 12 x 16 x 2/3= Rs.14,33,600/-
9. It is settled law that the claimants being wife, son
and mother of the deceased would be entitled to Rs.40,000/-
each towards spousal, parental & filial consortium as held by
the Hon'ble Apex Court in the case of Magma General
Insurance Company Limited Vs Nanu Ram2.
10. As held by the Hon'ble Apex Court in the case of
Pranay Sethi (supra), the claimants would be entitled to a
(2017) 16 SCC 680
(2018) SCC 130
sum of Rs.15,000/- towards loss of estate and a sum of
Rs.15,000/- towards transportation of dead body and funeral
expenses.
11. Thus, the appellant/claimants would be entitled
for modified compensation on the following heads:
Sl.No. Particulars Amount
1. Loss of dependency Rs.14,33,600/-
2. Loss of estate and funeral Rs.30,000/-
expenses & transportation of dead
body
3. Loss of consortium Rs.1,20,000/-
(Rs.40,000/-x3)
Total Rs.14,48,600/-
12. In view of the aforementioned, we pass the
following:
ORDER
(i) M.F.A.No.103113/2017 filed by the
insurance company is dismissed.
(ii) M.F.ANo.104390/2017 filed by the
claimants is allowed in part.
(iii) The impugned judgment and award of the
Tribunal is modified to the extent that the
claimants are entitled to total
compensation Rs.14,48,600/- as against
Rs.8,83,000/- awarded by the Tribunal.
(iv) The enhanced compensation amount will
bear interest at the rate of 6% per annum
from the date of claim petition till date of
realization.
(v) The respondent-Insurance Company shall
deposit the enhanced compensation
amount with accrued interest before the
Tribunal within six weeks from the date of
receipt of certified copy of this judgment.
(vi) Apportionment, deposit and disbursement
of the enhanced compensation shall be
made as per the award of the Tribunal.
(vii) The amount deposited by the insurance
company in M.F.ANo.103113/2017 shall be
transmitted to the Tribunal.
(viii) Draw modified award accordingly.
(ix) Registry to transmit the records to the
Tribunal forthwith.
(x) No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
Naa
