Karnataka High Court

United India Insurance Co.Ltd vs Parwati Rama Kabber on 16 April, 2024

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                                                               NC: 2024:KHC-D:6444
                                                     MFA No. 100706 of 2021
                                            C/W MFA.CROB No. 100057 of 2022




                        IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                             DATED THIS THE 16TH DAY OF APRIL, 2024

                                             BEFORE
                          THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
                   MISCELLANEOUS FIRST APPEAL NO. 100706 OF 2021 (MV-D)
                                          C/W
                            MFA CROSS OBJ NO. 100057 OF 2022

                   IN MFA NO. 100706 OF 2021

                   BETWEEN:

                   UNITED INDIA INSURANCE CO. LTD,
                   BRANCH OFFICE, MODI COMPLEX,
                   HOSPET ROAD SIRSI,
                   REPRESENTED BY ITS AUTHORIZED
                   SIGNATORY, DIVISIONAL MANAGER.

                                                                      ...APPELLANT
                   (BY SRI. S. S. KOLIWAD, ADVOCATE)


Digitally signed
                   AND:
by JAGADISH T
R
Location: HIGH     1.   PARWATI RAMA KABBER,
COURT OF
KARNATAKA               AGE: 53 YEARS, OCC: LABOUR,
                        R/O. CHIPAGI, NEAR LOKDHWANI OFFICE
                        TQ: SIRSI, PIN-581401.

                   2.   M. VIJAYRAGHAV BHAT S/O. M.N.MANJUNATH,
                        AGE: MAJOR, OCC: BUSINESS,
                        R/O. STATE BANK COLONEY SIRSI,
                        TQ: SIRSI, PIN-581401.

                   3.   PRAMOD CHIDANAND ACHARI,
                        AGE: 33 YEARS, OCC: DRIVER OF MARUTI
                        OMINI CAR, R/O. MARIKAMBA NAGAR,
                        SIRSI, TQ: SIRSI, PIN-581401.
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                                           NC: 2024:KHC-D:6444
                                   MFA No. 100706 of 2021
                          C/W MFA.CROB No. 100057 of 2022




4.   RAMESH SHETTY,
     SECTOR A, RAMA SHREY,
     NEW PANAVEL, RAIGAD,
     DIST: RAIGAD, PIN-406001,
     STATE: MAHARASTRA.

5.   NAGARAJ BAILAPPA BHOVI,
     MARIGUDI ROAD, SIRSI, TQ: SIRSI,
     DIST: UTTAR KANNADA, PIN-581401.

                                                ...RESPONDENTS
(BY SRI. LINGESH V. KATTEMANE, ADV. FOR R1,
     NOTICE TO R2 TO R5 DISPENSED WITH)

       THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED 05.01.2021
PASSED IN MVC NO.610/2015 ON THE FILE OF THE I ADDITIONAL
DISTRICT AND SESSIONS JUDGE, U.K.KARWAR, SITTING AT SIRSI,
ITINERARY    AT   YALLAPUR,   AWARDING     COMPENSATION    OF
RS.12,34,000/- WITH INTEREST AT 9 PERCENT P.A. FROM THE DATE
OF PETITION TILL ITS REALISATION.


IN MFA CROB NO.100057 OF 2022

BETWEEN:

PARWATI RAMA KABBER,
AGE: 53 YEARS, OCC: LABOUR,
NOW HOUSEWIFE, R/O. CHIPAGI,
NEAR LOK DHWANI OFFICE,
TQ: SIRSI, DIST: U.K-581401.
                                              ...CROSS OBJECTOR
(BY SRI. LINGESH V. KATTEMANE, ADVOCATE)

AND:

1.   UNITED INDIA INSURANCE CO. LTD,
     BRANCH OFFICE, MODI COMPLEX,
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                                          NC: 2024:KHC-D:6444
                                   MFA No. 100706 of 2021
                          C/W MFA.CROB No. 100057 of 2022



     HOSPET ROAD, SIRSI, REPRESENTED BY
     DIVISIONAL MANAGER-581401.

2.   M. VIJAYRAGHAV BHAT
     S/O. M. N. MANJUNATH,
     AGE: MAJOR, OCC: BUSINESS,
     R/O. STATE BANK COLONY,
     SIRSI-581401, DT: U.K.

3.   PRAMOD CHIDANAND ACHARI,
     AGE: 32 YEARS, OCC: DRIVER,
     R/O. MARIKAMBA NAGAR,
     SIRSI-581401, DT: U.K.

4.   RAMESH SHETTY,
     AGE: MAJOR, R/O. SECTOR A,
     RAMA SHREY, NEW PANAVEL,
     RAIGAD 406001,
     STATE: MAHARASHTRA.

5.   NAGARAJ BAILAPPA BHOVI,
     AGE: MAJOR, R/O. MARIGUDI ROAD,
     SIRSI-581401, DT: U. K.

                                                ...RESPONDENTS
(BY SRI. S. S. KOLIWAD, ADV. FOR R1;
    NOTICE TO R2 TO R5 DISPENSED WITH)

      THIS MFA.CROB IN MFA NO.100706/2021 IS FILED UNDER
ORDER 41 RULE 22 OF CPC, AGAINST THE JUDGMENT AND AWARD
DATED 05.01.2021 PASSED IN MVC NO. 610/2015 ON THE FILE OF
THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, U.K. KARWAR,
SITTING AT SIRSI, ITINERARY AT YALLAPUR,        ALLOWING THE
PETITION FILED UNDER SECTION 166 OF M.V. ACT.


      THIS APPEAL AND CROB, COMING ON FOR ORDERS, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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                                       MFA No. 100706 of 2021
                              C/W MFA.CROB No. 100057 of 2022




                              JUDGMENT

MFA No.100706/2021 is filed by the Insurance Company

challenging the liability as well as quantum of compensation,

whereas MFA.CROB No.100057/2022 is filed by the

appellant/claimant seeking enhancement of compensation,

being aggrieved by the judgment and award dated 05.01.2021

passed in MVC No.610/2015 on the file of Addl. District &

Sessions Judge, U.K.Karwar, Sitting at Sirsi, Itinerary, Yallapur

(for short, 'Tribunal').

2. Heard Sri.Sharnappa.S.Koliwad learned counsel

appearing for the appellant/Insurance Company and

Sri.Lingesh.V.Kattemane learned counsel appearing for the

Cross objector/claimant.

3. Learned counsel appearing for the

appellant/Insurance Company submits that the Insurance

Company is assailing the judgment and award of the Tribunal

with regard to direction to the Insurance Company to pay the

compensation amount initially and recover the same from the

owner of the offending vehicle. It is submitted that the driver of

the offending vehicle was not having driving license to drive the

vehicle in question. Hence, directing the Insurance Company to

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C/W MFA.CROB No. 100057 of 2022

pay the compensation initially and recover the same from the

owner of the offending vehicle is liable to be interfered in the

appeal filed by the Insurance Company. It is further submitted

that the Tribunal has committed an error in allowing the claim

petition in part by directing the Insurance Company to pay the

compensation as there is no nexus between the accident in

question and the death of the Shivanand. As the accident in

question took place on 13.03.2009 and the death of Shivanand

occurred on 09.03.2014, hence, there is a gap of more than 5

years. Hence, he seeks to allow the appeal.

4. It is further submitted that the award of interest by

the Tribunal at 9% is exorbitant and is required to be reduced

to 6%. He further submits that the award of compensation by

the Tribunal on the other heads i.e. Attendant Charges, Food

and Nourishment etc., could not be granted as it is a case of

death, hence, the claimant would not be entitled for any

compensation under the aforesaid head. Hence, he seeks to

allow the appeal.

5. Per contra, learned counsel appearing for the Cross

objector/claimant supports the impugned judgment and award

insofar as direction to the Insurance Company to pay the

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C/W MFA.CROB No. 100057 of 2022

compensation and recover the same from the owner of the

offending vehicle. He submits that the direction of the Tribunal

is in consonance with the law laid down by the by the Hon'ble

Apex Court in the case of Shamanna Vs. Oriental Insurance

Company Limited1. It is further submitted that the deceased

Shivanna took treatment for nearly 5 years and during the

course of treatment, he succumbed to the injuries suffered in a

road accident. Hence, the Tribunal rightly recorded the finding

and awarded compensation. He submits that the Tribunal has

committed an error in assessing the compensation of the

deceased Shivanand and has failed to award compensation

under the head of loss of future prospects of the deceased

Shivanand. Hence, he seeks to allow the Cross objection by

dismissing the appeal filed by the Insurance Company.

6. I have heard the arguments of learned counsel for the

respective parties and perused the material available on record.

7. The material available on record indicates that on

13.03.2009 one Shivanand while returning from home met with

a road accident and sustained various injuries including the

head injury and he was provided treatment at Kasturba

(2018) 9 SCC 650

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C/W MFA.CROB No. 100057 of 2022

Hospital, Manipal. The material available on record indicates

that the said Shivanand succumbed to the injuries during the

course of treatment on 09.03.2014. The contention of the

Insurance Company that there is no nexus between the

accidental injuries and the death of the Shivanand is taken note

only for the purpose of rejection. The material available on

record clearly indicates that immediately after the accident, the

said Shivanand was shifted to the local hospital and provided

initial treatment and thereafter he was shifted to Kasturba

Hospital, Manipal for higher treatment. During the course of

treatment, the said Shivanand could not recover from the

multiple injuries sustained by him in the road accident, hence,

contrary stand of Insurance Company has no merit

consideration. The second contention of the Insurance

Company with regard to pay and recovery order of the Tribunal

is concerned, the said issue is no more res integra and the

same is covered by the decision of the Hon'ble Apex Court in

the case of Shamanna referred supra. Keeping in mind the

enunciation of law laid down referred supra, this Court does not

find any error in the direction of the Tribunal to the Insurance

Company to pay initially the compensation and recover the

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C/W MFA.CROB No. 100057 of 2022

same from the owner of the offending vehicle. Accordingly, the

said contention of the Insurance Company is also rejected.

8. This Court is of the considered view that the Tribunal

has committed an error in awarding interest at the rate of 9%.

This Court taking note of the rate of interest paid in the

nationalized bank, reassesses the interest at the rate of 6% per

annum on the compensation amount.

9. Insofar as the award of compensation by the Tribunal

is concerned, it requires re-assessment by taking note of the

fact that the said Shivanand met with a road accident on

13.03.2009 and succumbed to the injuries on 09.03.2014.

Admittedly, the injured was under treatment for a period of 5

years, hence, this Court does not find any error insofar as

award of compensation by the Tribunal under the heads of

Attendant charges, Food and nourishment and Medical

expenses. Insofar as award of compensation under the heads

of loss of dependency, loss of estate and funeral expenses is

reassessed as under by assessing the notional income of the

deceased Shivanand at Rs.5,000/- per month placing reliance

on the notional income chart prepared by the Karnataka State

Legal Services Authority. The claimant is entitled to addition of

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C/W MFA.CROB No. 100057 of 2022

40% of the assessed income towards loss of future prospects of

the deceased. Thus, the claimant would be entitled for modified

compensation on the head of loss of dependency as under:

Rs.5,000 + 40% x 12 x 17 - 50% = 7,14,000/-

10. The appellant being a Cross objector/claimant is entitled to

Rs.44,000/- under the head of loss of consortium including

10% escalation. The appellant is also entitled to Rs.16,500/-

under the head of loss of estate and Rs.16,500/- under the

head of transportation of dead body and funeral expenses

including 10% escalation. Thus, the claimants would be entitled

to modified compensation on the following heads:

             Particulars                     Amount
                                             (in Rs.)
Loss of dependency                            7,14,000/-
Loss of estate                                  16,500/-
Funeral expenses                                16,500/-
Loss of consortium (Rs.44,000 x 1)              44,000/-
Medical expenses                              1,31,433/-
Attendant Charges                             3,30,000/-
Food and nutrition                            3,30,000/-
                 Total                      15,82,433/-

Thus, the claimant shall be entitled to total compensation

of Rs.15,82,433/- as against Rs.12,34,000/- awarded by the

Tribunal.

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C/W MFA.CROB No. 100057 of 2022

11. In the result, this Court proceeds to pass the

following:

ORDER

a) Appeals stands allowed in part.

b) The impugned judgment and award of the Tribunal is modified to an extent that the claimant would be entitled to total compensation of Rs.15,82,433/- as against Rs.12,34,000/- awarded by the Tribunal.

c) The enhanced compensation amount shall carry interest at the rate of 6% per annum from the date of petition till the date of payment.

d) The insurance company is liable to pay entire compensation and accordingly is directed to deposit the entire compensation amount with accrued interest before the Tribunal within a period of six weeks from today and liberty is granted to it to recover the same from the owner of the offending vehicle.

e) The Cross objector/claimant being age old mother has no independent source of income, hence, she is permitted to withdraw 50% of the deposit amount and remaining 50% amount shall be kept in a