Karnataka High Court
Icici Lombard vs Pujari Mangalamma on 4 April, 2024
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NC: 2024:KHC-D:6121
MFA No. 100451 of 2016
C/W MFA No. 100445 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 100451 OF 2016 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 100445 OF 2016 (MV-D)
IN MFA NO.100451/2016
BETWEEN:
1. SMT. PUJARI MANGALAMMA,
W/O. LATE PUJARI MALLANNA,
AGED ABOUT38 YEARS,
OCC: HOUSEWIFE CUM AGRICULTURIST.
2. PUJARI NAGARAJ S/O. LATE PUJARI MALLANNA,
AGED ABOUT 22 YEARS.
3. PUJARI MOHAN S/O. LATE PUJARI MALLANNA,
AGED ABOUT 20 YEARS.
4. PUJARI NEELAGANGA D/O. LATE PUJARI MALLANNA,
AGED ABOUT 17 YEARS,
SINCE THE APPELLANT NO.4 IS MINOR
Digitally signed SHE IS REPRESENTED BY HER MOTHER AND
by ROHAN NATURAL GUARDIAN THE APPELLANT NO.1,
HADIMANI T
Location: HIGH ALL ARE RESIDENTS OF KERENAHALLI VILLAGE,
COURT OF
KARNATAKA D. HIREHAL MANDAL, RAYADURGA TALUK,
ANATHAPUR DISTRICT, NOW RESIDING AT
ANDHRAL VILLAGE, BALLARI TALUK & DISTRICT.
...APPELLANTS
(BY SMT. SOUBHAGYA S. VAKKUND, FOR
SRI. Y. LAKSHMIKANT REDDY, ADVOCATES)
AND:
1. LAL SWAMY S/O. BUDIGINA HALAPPA,
AGED ABOUT 47 YEARS,
DRIVER OF THE LORRY BEARING REGN
NO.KA-35/TR-8763, R/O. NAGALAPURA VILLAGE,
RAYADURGA TALUK, ANANTAPUR DISTRICT.
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NC: 2024:KHC-D:6121
MFA No. 100451 of 2016
C/W MFA No. 100445 of 2016
2. SURESH REDDY S/O. THIPPESWAMY,
AGED ABOUT 44 YEARS,
OWNER OF THE LORRY BEATRING REGN
NO.KA-35/TR-8763, R/O. W.NO.22,
PARAVATHI NAGAR, MAIN ROAD
VODA PHONE OFFICE BACK SIDE, BALLARI.
3. THE BRANCH MANAGER,
M/S. ICICI LOMBARD GENERAL INSURANCE
CO. LTD, UP-STAIR MAYURA HOTEL,
DOBULE ROAD, BALLARI.
...RESPONDENTS
(BY SRI. RAVINDRA R. MANE, ADV. FOR R3;
NOTICE TO R1 & R2 DISPENSED WITH)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT & AWARD DATED: 04.12.2015, PASSED IN
MVC.NO.590/2014 ON THE FILE OF THE MOTOR ACCIDENT CLAIM
TRIBUNAL -II, BALLARI, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA NO.100445/ 2016
BETWEEN:
ICICI LOMBARD GENERAL INSURANCE CO. LTD,
BY ITS BRANCH MANAGER,
UP-STAIR MAYURA HOTEL, DOUBLE ROAD,
BALLARI, HEREIN REPRESENTED BY
ICICI LOMBARD GENERAL INSURANCE CO. LTD,
2ND FLOOR, BELLAD AND COMPANY,
HERO HONDA SHOW ROOM, GOKUL ROAD,
NEAR BANNIGIDAD STOP, HUBBALLI,
REPRESENTED BY ITS LEGAL MANAGER.
...APPELLANT
(BY SRI. RAVINDRA R. MANE, ADVOCATE)
AND:
1. SMT. PUJARI MANGALAMMA,
W/O. LATE PUJARI MALLANNA,
AGE: ABOUT 38 YEARS,
OCC: HOUSEWIFE CUM AGRICULTURIST.
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MFA No. 100451 of 2016
C/W MFA No. 100445 of 2016
2. PUJARI NAGRAJ S/O. LATE PUJARI MALLANNA,
AGE: ABOUT 22 YEARS.
3. PUJARI MOHAN S/O. LATE PUJARI MALLANNA,
AGE: 20 YEARS.
4. PUJARI NEELAGANGA D/O. LATE PUJARI MALLANNA,
AGE: 17 YEARS.
(RESPONDENT NO.4 BEING A MINOR REP.
BY HER NATURAL GUARDIAN MOTHER,
RESPONDENT NO.1 HEREIN)
RESPONDENTS NOS. 1 TO 4 ARE
RESIDENTS OF KERENHALLI VILLAGE,
D. HIREHAL MANDAL, RAYADURGA TALUK,
ANANTHAPUR DISTRICT, NOW RESIDING AT
ANDHRAL VILLAGE, BALLARI TALUK & DISTRICT.
5. LAL SWAMY S/O. BUDIGINA HALAPPA,
AGE: 47 YEARS, OCC: DRIVER OF THE LORRY
BEARING NO.KA-35/TR-8763,
R/O. NAGALAPURA VILLAGE,
RAYADURGA TALUK, ANANTAPUR DIST, A.P.
6. SURESH REDDY S/O. THIPESWAMY,
AGE: 44 YEARS, OCC: OWNER OF THE LORRY,
BEARING NO.KA-35/TR-8763,
R/O. W.NO.22, PARVATHI NAGAR, MAIN ROAD,
VODAPHONE OFFICE BACK SIDE, BALLARI.
...RESPONDENTS
(BY SMT. SOUBHAGYA S. VAKKUND, ADV. FOR
SRI. Y. LAKSHMIKANT REDDY, ADVS. FOR R1 TO R4;
NOTICE TO R5 DISPENSED WITH,
NOTICE TO R6 HELD SUFFICIENT)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT
1988, AGAINST THE JUDGMENT & AWARD DATED: 04.12.2015,
PASSED IN MVC.NO.590/2014 ON THE FILE OF THE MOTOR
ACCIDENT CLAIMS TRIBUNAL-II, BALLARI, AWARDING THE
COMPENSATION OF RS.6,40,000/- WITH INTEREST AT THE RATE OF
6% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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MFA No. 100451 of 2016
C/W MFA No. 100445 of 2016
JUDGMENT
Though these appeals are listed for admission, with the
consent of learned counsel for the parties, they are taken up
for final disposal.
2. MFA No.100445/2016 is filed by the insurance
company saddling the liability on it, as well as quantum of
compensation, whereas, MFA No.100451/2016 is filed by the
claimants seeking enhancement of compensation, being
aggrieved by the judgment and award dated 4.12.2015 passed
in MVC No.590/2014 on the file of learned Member, MACT-II,
Ballari (for short, 'Tribunal').
3. Sri. R.R. Mane, learned counsel for the
appellant/Insurance Company and learned counsel Smt.
Soubhagya Vakkund, for the appellants/claimants.
4. Sri. R.R.Mane, learned counsel for the
appellant/insurer submits that the Tribunal has committed an
error in saddling the liability on the insurance company. It is
submitted that the vehicle involved in the accident in question
was having Temporary Registration number and there was no
'permit' as on the date of the accident. He submits that even
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the driver of the offending vehicle was not possessing valid and
effective driving license to drive the same. It is also submitted
that the deceased was a gratuitous passenger sitting on the top
of Chilly bags and the passengers found in the vehicle was '8' in
number, which is more than seating capacity, resulted in
breach of policy conditions. Hence, he seeks to saddle the
liability on the owner of the vehicle. Insofar as quantum of
compensation, Sri. Mane submits that post-mortem report of
the deceased indicates that the deceased was aged about 55
years as on the date of the accident, however, the Tribunal has
incorrectly considered the age of the deceased as 50 years,
which is required to be modified appropriately. Thus, he seeks
to allow the appeal filed by the insurance company.
5. Per contra, learned counsel Smt. Soubhagya
Vakkund for the appellants/claimants submits that the
deceased was not a gratuitous passenger and he was with
goods carrying the Chilly and at that time, he met with
accident. She submits that insofar as contention of temporary
registration, No permit and non-possession of DL have been
rightly considered by the Tribunal recording a detailed reason.
Hence, she seeks dismissal of the appeal filed by the insurance
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company. It is submitted that insofar as award of
compensation, the Tribunal committed an error in assessing the
income of the deceased and no compensation has been
awarded by the Tribunal under the head of loss of future
prospects of the deceased. Hence, she seeks to re-assess the
entire compensation by allowing the appeal filed by the
appellants/claimants.
6. I have heard the learned counsel for the parties and
perused the material available on record including the tribunal
records.
7. It is not in dispute that on 3.3.2014, the deceased
Pujari Mallanna met with accident and succumbed to the
injuries sustained in the accident. The material available on
record indicates that the vehicle was having temporary
registration number and it was not having 'Permit'. The
evidence available on record indicates that the driver on wheel
was not having valid and effective driving license as on the date
of the accident. Insofar as contention that the deceased was
an unauthorized passenger is required to be rejected for simple
reason that the material available on record indicates that the
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deceased was traveling with goods i.e., red chilly. Admittedly,
the question was having temporary registration, no permit and
non-possession of valid and effective driving license are the
breach of policy conditions. Hence, owner of the offending lorry
bearing temporary registration No.KA-35/TR-8763 is liable to
pay compensation to the claimants. This Court keeping mind
the enunciation of law laid down by the Hon'ble Apex Court in
the case of Shamanna Vs. Oriental Insurance Company
Limited1 and also decision of the Division Bench of this Court
in the case of New India Assurance Company Limited Vs.
Yallavva & Another2, directs the appellant/insurance
company to pay compensation to the claimants and recover the
same from the owner of the offending vehicle.
8. Insofar as quantum of compensation is concerned,
this Court taking note of post-mortem report considers the age
of the deceased as 55 years by applying 11 as multiplier and
assesses the notional income of the deceased at Rs.7,500/- per
month placing reliance on the notional income chart prepared
by the KSLSA. The appellants/claimants are also entitled to an
(2018) 9 SCC 650
ILR 2020 KAR 2239
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addition of 10% of the assessed income towards loss of future
prospects of the deceased. Thus, the appellants/claimants are
entitled to compensation under the head of loss of dependency
as under:
Rs.7,500 + 10% x 12 x 11 x 3/4 = Rs.8,16,750/-
9. The appellants are entitled to Rs.44,000/- each
towards loss of consortium including 10% escalation, besides
Rs.16,500/- towards loss of estate and Rs.16,500/- towards
transportation of dead body and funeral expenses. Thus, the
appellants/claimants are entitled to modified compensation on
the following heads:
Loss of dependency Rs.8,16,750/-
Loss of consortium Rs.1,76,000/-
Loss of estate and funeral expenses Rs. 33,000/-
------------------
Total Rs.10,25,750/-
------------------
10. Thus, the appellants/claimants are entitled to total
compensation of Rs.10,25,750/- as against Rs.6,40,000/-
awarded by the Tribunal.
11. In the result, I proceed to pass the following:
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ORDER
a) Both appeals are allowed in part.
b) The impugned judgment and award of
the tribunal is modified to an extent that
the appellants/claimants are entitled to
modified compensation of
Rs.10,25,750/- as against
Rs.6,40,000/- 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
realization.
d) The appellant/insurance company is liable
to pay entire compensation amount and
is directed to deposit the entire
compensation amount along with accrued
interest before the Tribunal within six
weeks from the date of receipt of certified
copy of this judgment.
e) The appellant/insurance company is at
liberty to recover the compensation
amount from the owner of the offending
vehicle.
f) Apportionment, deposit and disbursement
shall be made as per award of the
Tribunal.
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g) The amount in deposit, if any, be
transmitted to the Tribunal along with
TCR forthwith.
h) Draw modified award accordingly.
Sd/-
JUDGE
JTR
Ct-an
