Karnataka High Court
National Insurance Company Ltd vs Krishnappa on 25 September, 2023
Bench: C M Joshi
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NC: 2023:KHC:34881
MFA No. 48 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
MISCELLANEOUS FIRST APPEAL NO. 48 OF 2020 (MV-D)
BETWEEN:
NATIONAL INSURANCE COMPANY LTD.,
DIVISIONAL OFFICE,
MANJUNATHESWARA COMPLEX,
BUS STAND ROAD,
HASSAN.
THROUGH ITS REGIONAL OFFICE,
NATIONAL INSURANCE CO. LTD.,
NO.144, SUBHARAM COMPLEX, M G ROAD,
BENGALURU-560 001.
REP BY ITS ASSISTANT MANAGER
SMT. SANDHYA RANI.
...APPELLANT
(BY SRI SHUBHAM, FOR SRI SEETHA RAMA RAO B C,
ADVOCATE, THROUGH VC)
Digitally AND:
signed by T S
NAGARATHNA
Location: High 1. SRI KRISHNAPPA,
Court of
Karnataka S/O. SRI PUTTANNA,
AGED ABOUT 67 YEARS.
2. SMT. GOWRAMMA,
W/O. SRI KRISHNAPPA,
AGED ABOUT 62 YEARS.
BOTH ARE COOLIES BY WORK,
R/O. BERUKUDIGE, HOSAGUDU VILLAGE,
HOSAKOPPA AND POST, KOPPA TALUK,
CHIKKAMAGALURU DISTRICT.
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MFA No. 48 of 2020
3. SRI HONNUR SAB,
S/O. LATE CHAMAN SAB,
AGED ABOUT 38 YEARS,
R/O. SHEKARAPPA NAGARA,
IN FRONT OF COMMUNIST PARTY OFFICE,
DAVANAGERE.
(DRIVER-CUM-OWNER OF
TATA ACE NO.KA.17/B-8589).
...RESPONDENTS
(BY SRI A.S. GIRISH, ADVOCATE FOR R1 & R2;
R3 SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 03.05.2019, PASSED IN MVC
NO. 398/2017, ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC., AND MACT, N.R.PURA, ITINERATE AT KOPPA,
AWARDING COMPENSATION OF RS.14,70,800/- WITH
INTEREST AT THE RATE OF 9 PERCENT P.A., FROM THE DATE
OF PETITION TILL THE DATE OF REALIZATION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal by the Insurance Company is directed
against the judgment and award dated 03.05.2019
passed in MVC No. 398/2017, by the learned Senior Civil
Judge and JMFC and MACT, N.R. Pura, Itinerate at Koppa,
whereby compensation of Rs.14,70,800/- with interest at
the rate of 9% p.a., from the date of petition till the date
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MFA No. 48 of 2020
of realization has been awarded on account of the death
of one B.K. Arun, in the road traffic accident.
2. The petitioners being the parents of deceased B.K.
Arun, have filed a claim petition before the Tribunal
claiming compensation of Rs.20,00,000/- contending that
on 21.03.2016 at about 5.15 p.m. while their son was
coming to his village from Koppa by riding his motor cycle
bearing Reg.No.KA-14/H 9373 after finishing his work on
Koppa-Hariharapura road, respondent No.1 being the
driver of TATA Ace vehicle bearing Reg.No.KA 17/B 8589
drove the same in a rash and negligent manner and
dashed the motorcycle of B.K.Arun. It was the further case
of the petitioners that, due to the said accident their son
fell on the road and sustained injuries on his head, when
brought to the hospital he was declared as dead. It was
their further case that, the brother of the deceased
B.K.Praveen, lodged the complaint before Hariharapura
police station and the police have visited the spot and
after conducting the post mortem the dead body was
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MFA No. 48 of 2020
handed over to them and they have performed his funeral
at their village. They have spent a sum of Rs.20,000/-
towards hospital expenses and Rs.10,000/-towards
conveyance and also spent a sum of Rs.1,00,000/- for the
rituals. It was also stated that, their son was working as a
coolie as he was specialist in arecanut trapping, he used
to get Rs.750/- as wages per day and also getting
Rs.100/-towards traveling and food charges and they
being his parents are depending upon him. It was further
contended that the accident had occurred due to the rash
and negligent driving by the respondent No.1, who is the
owner as well as driver of the offending vehicle and the
respondent No.2 is the insurer of the offending vehicle
and both the respondents are liable to pay compensation.
3. In response to service of notice, the respondent
No.2- Insurance Company appeared before the Tribunal
and filed its objection statement. Inspite of service of
notice, respondent No.1 did not appear before the
Tribunal and he was placed exparte.
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MFA No. 48 of 2020
4. In the objection statement, respondent No.2
denied the entire contents of the petition and contended
that, the respondent No.1 has not informed regarding the
alleged accident as per Section 158(6) of IMV Act. It has
admitted the issuance of insurance policy in favour of the
respondent No.1's vehicle and its validity from
08.07.2015 to 07.07.2016 and contended that the
petitioners and the respondent No.1 have colluded
together. It has also contended that, the offending vehicle
is a light goods vehicle and the DL details of the
respondent No.1 reveal that, he was having DL to drive
LMV non transport from 17.01.2012 valid till 05.03.2031,
but it was not valid for goods vehicle and that the RC
particulars of the vehicle goes to show that, the fitness
certificate of the vehicle is only up to 24.07.2015 and the
accident occurred on 21.03.2016 and as such, there is
clear violation of terms and conditions of the policy.
Respondent No.2 also denied the nature of the accident,
age, occupation and income of the deceased, and he had
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MFA No. 48 of 2020
no driving licence to drive the motor vehicle and the
insurer and the owner of the said vehicle are also
necessary parties and therefore, petition is bad for non-
joinder of necessary parties. Therefore, prayed to dismiss
the petition.
5. On the above pleadings, the Tribunal has framed
appropriate issues and petitioner No.1 has been examined
as PW1 and Exs.P1 to P5 were marked in evidence. On
behalf of respondents, the official of respondent No.2 has
been examined as RW1 and Exs.R1 and 2 were marked in
evidence.
6. The Tribunal after hearing both sides, allowed the
petition in part and awarded a sum of Rs.14,70,800/-
under different heads as below and directed the insurance
Company to deposit the same:
Loss of dependency Rs.13,60,800/-
Loss of love and affection Rs. 60,000/-
Loss of estate Rs. 25,000/-
Loss of funeral expenses Rs. 20,000/-
Transportation of dead body Rs. 5,000/-
Total Rs.14,70,800/-
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MFA No. 48 of 2020
7. Being aggrieved by the said judgment and award,
the Insurance company has approached this Court in
appeal, contending that the Tribunal erred in fastening
liability on the Insurance Company despite the fact that
TATA Ace goods vehicle had no Fitness Certificate as on
the date of the accident. It is also contended that the
quantum of compensation and the interest awarded is
also on the higher side and as such, the impugned
judgment deserves to be set aside.
8. On issuance of notice, the respondent Nos.1 and 2
appeared through their counsel and respondent No.3
served and unrepresented. On admitting the appeal, the
Tribunal records have been secured.
9. Heard the learned counsel for both the sides and
perused the records.
10. The first contention of the learned counsel for
the appellant-Insurance Company is that the offending
vehicle i.e. TATA Ace goods vehicle bearing
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MFA No. 48 of 2020
No.KA.17.B.8589 owned by the respondent
No.1(respondent No.3 herein) had no Fitness Certificate as
on the date of the accident. The 'B' Register Extract of the
said vehicle produced by the RW1, the official of the
Insurance Company shows that the Fitness Certificate had
expired on 24-7-2015. The Tribunal held that the
Insurance Company should have considered the same at
the time of issuance of the policy and relied on the
decision in the case of Rangappa @ Rangappa Shetty
Vs. Jayaramaiah and another reported in ILR 2014
Karnataka 191 rendered by this Court in fastening the
liability on the appellant-Insurance company.
11. The law relating to the violations of terms and
conditions of the policy, sofar as it relates to Fitness
Certificate is concerned, is no more res integra. The
decision of the Apex Court in the case of Amrit Paul Singh
and another Vs. Tata AIG General Insurance Company
Limited1 lays down that violation of the conditions of the
(2018) 2 SCC 558
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MFA No. 48 of 2020
policy sofar as it relates to Fitness Certificate is an
infraction of the policy conditions and in such
circumstances, the insurance company is liable to pay the
compensation and then is at liberty to recover the same
from the owner of the vehicle. Therefore, the argument of
the learned counsel appearing for the appellant that the
Insurance Company had to be absolved at the first
instance itself cannot be accepted.
12. In the case of Amruthpal Singh and another -
Supra, it was held as below:
"it does not require the wisdom of the "Tripitaka",
that the existence of a permit of any nature is
a matter of documentary evidence. Nothing has
been brought on record by the insured to prove that
he had a permit of the vehicle. In such a
situation, the onus cannot be cast on the insurer.
Therefore, the tribunal as well as the High Court had
directed the insurer was required to pay the
compensation amount to the claimants with
interest with the stipulation that the insurer shall be
entitled to recover the same from the owner and
the driver"
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MFA No. 48 of 2020
13. Sofar as the driving licence is concerned, the
decision in the case of Mukund Dewangon Vs. Oriental
Insurance Company Limited2 gives a quietus to the
contention of the learned counsel for the appellant. The
vehicle involved in the case on hand is the TATA Ace goods
vehicle which comes within the purview of LMV for which
the driver of the vehicle was having valid driving licence.
Obviously, the driving licence for LMV was valid till the
year 2021.
14. Sofar as the compensation is concerned, the
Tribunal has considered notional income of the deceased
at Rs.9,000/- per month and has added future prospects
at 40% and deducted 50% towards the personal expenses
and adopting multiplier of 18 has awarded the
compensation of Rs.13,60,800/-. This calculation is in
conformity with the guidelines laid down in the case of
(2017) 14 SCC 663
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MFA No. 48 of 2020
National Insurance Company Limited vs. Pranay
Sethi and others3.
15. The Tribunal has awarded a sum of
Rs.1,10,000/- towards the conventional heads which
needs to be modified to bring it in conformity with the
decision in the case of Pranay Sethi and others (Supra).
Therefore, a sum of Rs.48,400/- towards 'loss of love and
affection', a sum of Rs.18,150/- each under the head of
'loss of estate' and 'funeral expenses' respectively has to
be awarded to the petitioners by taking into consideration
escalation at 10% at every three years.
16. Sofar as the rate of interest is concerned, the
Tribunal in its impugned judgment relies on the decision of
the Apex Court in the case of Kaushnuma Begum Vs.
New India Assurance Company Limited reported in
(2001) 2 SCC 9 and several other decisions and as such,
it do not require any interference.
2017 SCC Online SC 1270
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MFA No. 48 of 2020
17. Hence, the petitioners are entitled for a
compensation of Rs.14,45,500/- instead of Rs.14,70,800/-
under the following heads:
Loss of dependency Rs.13,60,800/-
Loss of love and affection Rs. 48,400/-
Loss of estate Rs. 18,150/-
Funeral Expenses Rs. 18,150/-
Rs.14,45,500/-
18. In view of the above, the appeal filed by
appellant deserves to be allowed in part. Hence, the
following:
ORDER
(i) The appeal filed by the Insurance Company is
allowed in part.
(ii) The impugned judgment and award passed by
the Tribunal is modified by awarding a sum of
Rs.14,45,500/- instead of Rs.14,70,800/- together
with interest at 9% p.a. from the date of petition till its
realization.
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MFA No. 48 of 2020
(iv) The Insurance Company is directed to deposit
the compensation amount within six weeks from the date
of receipt of the copy of this order. The Insurance
Company is also entitled to recover the same from the
owner of the vehicle respondent No.1.
(v) The amount which is in deposit is ordered to be
transmitted to the Tribunal.
(vi) The apportionment of the compensation amount
and the deposit etc., as ordered by the Tribunal remain
unaltered.
(vii) IAs if any are disposed off.
Sd/-
JUDGE
tsn*
