Karnataka High Court
Rekha W/O Late Amaresh Kumar Hanchinal ... vs P Suresh S/O K.Periyasamy And Anr on 6 February, 2024
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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MFA No.202890 of 2022
C/W MFA No 200133 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
MISCL. FIRST APPEAL NO.202890 OF 2022 (MV-D)
C/W
MISCL. FIRST APPEAL NO.200133 OF 2023 (MV-D)
IN M.F.A.NO.202890 OF 2022
BETWEEN:
P. SURESH
S/O K. PERIYASAMY
AGED: 40 YEARS
OCC: OWNER OF BOREWELL LORRY
BEARING REG. NO.KA-01/ML-8567
R/O NO.10, S.S.S BUILDING
Digitally signed A.V ROAD, CHAMRAJPET
by SWETA
KULKARNI BENGALURU - 560 018
Location: HIGH M.NO.97158 22755.
COURT OF
KARNATAKA ...APPELLANT
(BY SRI ANAND TURE, ADVOCATE)
AND:
1. SMT. REKHA
W/O LATE AMARESH KUMAR HANCHINAL
AGE: 30 YEARS
OCC: COOLIE
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MFA No.202890 of 2022
C/W MFA No 200133 of 2023
2. MILINDKUMAR
S/O LATE AMARESH KUMAR HANCHINAL
AGE: 11 YEARS
OCC: STUDENT
3. SWETHA
D/O LATE AMARESH KUMAR HANCHINAL
AGE: 10 YEARS
OCC: STUDENT
4. SOUJANYA
D/O LATE AMARESH KUMAR HANCHINAL
AGE: 7 YEARS
OCC: STUDENT
5. MALLAMMA
D/O DODDAPPA HANCHINAL
AGE: 26 YEARS
OCC: STUDENT
6. BHOOMIKA
D/O DODDAPPA HANCHINAL
AGE: 24 YEARS
OCC: STUDENT
7. NEELAMMA
W/O DODDAPPA HANCHINAL
AGE: 66 YEARS
OCC: COOLIE
THE RESPONDENTS NO.2 TO 4
ARE UNDER GUARDIANSHIP OF
THEIR NATURAL MOTHER
I.E., RESPONDENT NO.1
ALL R/O HANCHINAL VILLAGE
TQ: YADRAMI
DIST: KALABURAGI.
NOW RESIDING AT NALWAR VILLAGE
TQ: CHITTAPUR
DIST: KALABURAGI - 585 218.
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MFA No.202890 of 2022
C/W MFA No 200133 of 2023
8. THE UNITED INDIA
INSURANCE COMPANY LTD.,
DIVISIONAL OFFICE 171800
TNA COMPLEX, SALEM ROAD
TIRUCHENGODE - 637 211
STATE - TAMILNADU
THROUGH ITS DIVISIONAL MANAGER
II FLOOR, CENTURY COMPLEX
OPPOSITE SANGAM TALKIES
KALABURAGI - 585 101.
...RESPONDENTS
(BY SRI SANJEEV PATIL, ADVOCATE FOR R1 TO R7;
SRI S.S.ASPALLI, ADVOCATE FOR R8;
R2 TO R4 ARE MINORS REP. BY R1)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO ALLOW THE APPEAL BY SETTING
ASIDE THE JUDGMENT AND AWARD DATED 25.08.2022
PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND M.A.C.T.
AT CHITTAPUR IN M.V.C.NO.608/2020 AND CONSEQUENTLY
DISMISS THE CLAIM PETITION AS AGAINST THIS APPELLANT
OR ALTERNATIVELY HOLD THE RESPONDENT NO.8
INSURANCE COMPANY LIABLE TO PAY THE COMPENSATION,
IN THE INTEREST OF JUSTICE AND EQUITY.
IN M.F.A.NO.200133 OF 2023
BETWEEN:
1. SMT. REKHA
W/O LATE AMARESH KUMAR HANCHINAL
AGE: 30 YEARS
OCC: COOLIE
2. MILINDKUMAR
S/O LATE AMARESH KUMAR HANCHINAL
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MFA No.202890 of 2022
C/W MFA No 200133 of 2023
AGE: 11 YEARS
OCC: STUDENT
3. SWETHA
D/O LATE AMARESH KUMAR HANCHINAL
AGE: 10 YEARS
OCC: STUDENT
4. SOUJANYA
D/O LATE AMARESH KUMAR HANCHINAL
AGE: 7 YEARS
OCC: STUDENT
APPELLANT NO.2 TO 4 ARE MINORS
U/G OF NATURAL MOTHER APPELLANT NO.1
5. MALLAMMA
D/O DODDAPPA HANCHINAL
AGE: 26 YEARS
OCC: STUDENT
6. BHOOMIKA
D/O DODDAPPA HANCHINAL
AGE: 24 YEARS
OCC: STUDENT
7. NEELAMMA
W/O DODDAPPA HANCHINAL
AGE: 68 YEARS
OCC: COOLIE
ALL R/O HANCHINAL VILLAGE
TQ: YADRAMI
DIST: KALABURAGI.
NOW AT NALWAR VILLAGE
TQ: CHITTAPUR
DIST: KALABURAGI.
...APPELLANTS
(BY SRI SANJEEV PATIL AND SRI V.S.REDDY, ADVOCATES)
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MFA No.202890 of 2022
C/W MFA No 200133 of 2023
AND:
1. P. SURESH
S/O K. PERIYASAMY
AGE: MAJOR
OCC: OWNER OF BOREWELL LORRY
NO.KA-01/ML-8567
R/O NO.10, S.S.S BUILDING
A.V. ROAD, CHAMRAJPET
BENGALURU - 560 018
M.NO.97158 22755.
2. THE UNITED INDIA
INSURANCE COMPANY LTD.,
DIVISIONAL OFFICE 171800
TNA COMPLEX, SALEM ROAD
TIRUCHENGODE - 637 211
TAMILNADU STATE
THROUGH ITS DIVISIONAL MANAGER
II FLOOR, CENTURY COMPLEX
OPPOSITE SANGAM TALKIES
KALABURAGI - 585 102.
...RESPONDENTS
(BY SRI S.S.ASPALLI, ADVOCATE FOR R2;
V/O DT.19.01.2023 NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO CALL FOR THE ENTIRE RECORDS
AND MODIFY THE JUDGMENT AND AWARD DATED 25.08.2022
PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND
M.A.C.T.-XV AT CHITTAPUR IN M.V.C.NO.608/2020 BY
ENHANCING THE COMPENSATION AMOUNT AS PRAYED FOR,
IN THE INTEREST OF JUSTICE AND EQUITY.
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MFA No.202890 of 2022
C/W MFA No 200133 of 2023
THESE APPEALS COMING ON FOR FURTHER ORDERS
THIS DAY, B.M.SHYAM PRASAD J., DELIVERED THE
FOLLOWING:
JUDGMENT
These appeals in MFA No.200133/2023 and MFA
No.202890/2023 are respectively by the claimants and
owner of a Drilling Rig Lorry fitted with Compressor and
Mobile Cranes bearing Reg. No. KA-01-ML-8567 [the
offending vehicle]. These appeals arise out of the judgment
and award dated 25.08.2022 in MVC No.608/2020 on the
file of the Senior Civil Judge and MACT-XV, Chittapur [for
short, 'the Tribunal']. The Tribunal has granted a total sum
of Rs.26,66,000/- under the following heads as
compensation along with interest at the rate of 6% per
annum with orders on apportionment of compensation inter
se the claimants.
Loss of dependency Rs.24,36,000.00
Loss of estate Rs.15,000.00
Towards spousal consortium Rs.40,000.00
(for petitioner No.1)
Towards filial consortium Rs.40,000 x 3 =
(for petitioner No.2 to 4) Rs.1,20,000.00
Towards parental consortium Rs.40,000.00
(for petitioner No.7)
Transportation of dead body and Rs.15,000.00
funeral expenses
Total Rs.26,66,000.00
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The parties to the proceedings, for reasons of convenience,
are referred to as the claimants, owner and the Insurer of
the offending vehicle.
2. It emerges from the records that Sri Amaresh
Kumar [the deceased] died on 24.06.2020 as a result of the
injuries suffered by him on 23.06.2020 when the offending
vehicle was being operated to drill a tube well in the land
owned by certain Sri Hanmanth Devadurga. The deceased is
survived by his widow, three minor children, widowed
mother and two dependant siblings. The owner of the
offending vehicle is placed ex-parte. The Insurer has filed
statement of objections contending that neither the driver of
the offending vehicle nor the operator operating the
offending vehicle was negligent and the accident is because
of Sri Amaresh Kumar's negligence.
3. The claimants have examined Sri Amaresh
Kumar's wife, the first claimant, as PW-1. The Insurer has
not examined any witness. The Tribunal, on examination of
the police records [Exs.P1 to P8], has opined that the
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evidence establishes that the operator had not fixed the
pipes properly and as a result when the pipe fell on Sri
Amaresh Kumar, he has suffered fatal injuries. The
Tribunal, on the question of liability, has opined that
because admittedly the accident is not on a public road, the
Insurer cannot be liable and the liability, if any, will have to
be on the owner of the offending vehicle. The owner and
claimants have come up with this appeal, both of them have
challenged the Tribunal finding on liability and the
claimants have also challenged the Tribunal's award of
compensation.
4. The owner has filed an application
[I.A.No.2/2022] under Order XLI Rule 27 CPC seeking leave
to produce Miscellaneous and Special Type of Vehicles
Package Policy dated 25.12.2019. In support of the
application for leave, Sri Anand Ture, the learned counsel for
the owner, submits that the notice is served on the owner
during the period when there was lockdown/restriction
because of Covid-19. Sri S.S. Aspalli, the learned counsel
for the Insurer, submits that the Insurer must be granted an
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opportunity to take its stand on the policy and lead evidence
to substantiate the risk that is covered under the policy and
also be given liberty to lead evidence in the light of the
Insurer's defense about the deceased's negligence. In the
circumstances of the case, and because this contention
remains incontrovertible, this application in I.A.2/2022 is
allowed in exercise of jurisdiction under Order XLI Rule 27
(1) (b) of CPC for judgment on all questions.
5. The Tribunal, which did not have the benefit of
the policy, has fixed the liability on the owner because the
accident is not in a public place, and with the material now
on record, this Court is of the considered view that there is
considerable force in the submission of Sri S.S. Aspalli and
the question of liability and negligence must be re-examined
in the light of the evidence that could be brought on record
by the claimants and insurer/owner on the risk that is
covered under the policy and the deceased negligence.
6. Insofar as the merits of the claimants' appeal for
enhancement in compensation, it would suffice for this
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Court to observe that in the absence of clear evidence on the
actual income, the Tribunal has rightly taken the notional
income at Rs.14,500/- per month as per the schedule
evolved for settlement in Lok Adalat with the addition of 25%
towards future prospects because the deceased was aged 43
years as of the date of the accident. The Tribunal has also
rightly deducted 1/5th of such income towards personal
expenses. In fact, the Tribunal has granted consortium at
the rate of Rs.40,000/- each to the wife, the children and
the mother of Sri Amaresh Kumar. The award is just and
proper and does not require any re-consideration. These
aspects are affirmed, and the Tribunal, consequently, must
examine only whether the Insurer can be made liable in the
light of the terms of the policy and whether any contributory
negligence can be attributed to the deceased. In the light of
the afore, the following:
ORDER
(i) The appeals in MFA No.202890/2022 and
MFA No.200133/2023 are allowed in part
and the Tribunal's finding on the liability is
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set aside and restored for re-consideration
with liberty to the owner to file statement of
objections and furnish the authenticated
duplicate copy of the policy with liberty to
the claimants and the Insurer to file
rejoinder to the pleadings, if advised.
(ii) The Tribunal is called upon to decide the
question of liability in terms of the policy
now permitted to be brought on record as
additional evidence, but the question of
compensation, except for any modification
that may be necessary subject to finding on
contributory negligence by the deceased, is
confirmed.
(iii) The amount deposited by the appellant -
owner shall be remitted to the Tribunal for
disbursement subject to its decision.
(iv) The claimants, the Insurer and the owner,
without further notice of the first hearing
before the Tribunal, shall appear before the
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Tribunal on 11.03.2024 and the Tribunal is
directed to re-consider the questions in the
light of this Court's order within a period of
three months from the date of first
appearance.
Sd/-
JUDGE
Sd/-
JUDGE
SWK
Ct;Vk
