Karnataka High Court
The Divisional Manager vs Smt. Vidyashree Alias Eramma on 7 February, 2024
Author: S G Pandit
Bench: S G Pandit
-1-
NC: 2024:KHC-D:2687-DB
MFA No. 101410 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 7TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE K V ARAVIND
MISCELLANEOUS FIRST APPEAL NO. 101410 OF 2021 (MV-D)
BETWEEN:
THE DIVISIONAL MANAGER,
NATIONAL INSURANCE COMPANY LTD,
IIND FLOOR, ARIHANT PLAZAN,
KUSUGAL ROAD, HUBBALLI-23,
NOW REPRESENTED BY ITS
ADMINISTRATIVE OFFICER.
...APPELLANT
(BY SRI. RAJESH B. RAJANAL, ADVOCATE)
AND:
1. SMT. VIDYASHREE @ ERAMMA
W/O. KALAKAPPA PATTANASHETTI,
AGE: 36 YEARS, OCC. AGRICULTURE,
Digitally signed by
CHANDRASHEKAR
LAXMAN
2. VEERESH
KATTIMANI
Date: 2024.02.13
S/O. KALAKAPPA PATTANASHETTI
10:20:39 +0530
AGE: 16 YEARS, MINOR,
3. GIRISH
S/O. KALAKAPPA PATTANASHETTI,
AGE: 16 YEARS, MINOR,
4. AKHASH
S/O. KALAKAPPA PATTANASHETTI,
AGE: 8 YEARS, MINOR,
(SINCE RESPONDENT NO.2 TO 4 ARE
MINOR REPTD BY THEIR N/G
MOTHER RESPONDENT NO.1.
ALL ARE R/O.BEVINAAKATTI,
TQ: RON,
-2-
NC: 2024:KHC-D:2687-DB
MFA No. 101410 of 2021
NOW AT HANAAMANAL,
TQ: KUSHTAGI,
DIST: KOPPAL-583277.
5. SMT. ERAMMA
W/O. VEERAPPA PATTANASHETTI,
AGE: 66 YEARS,
OCC. AGRICULTURE,
R/O. BEVINAKATTI, TQ: RON,
DIST: GADAG-582211.
6. SRI. BASAYYA,
S/O. CHANNAYYA KARADAGI,
AGE: 48 YEARS,
OCC: DRIVER OF KA-26/P-5744,
R/O. BEVINAKATTI, TQ: RON,
DIST: GADAG-582211.
7. MALLAPPA,
S/O. BASAPPA GUTTEPPANAVAR,
AGE: 42 YEARS,
OCC: OWNER OF KA-26/P-5744,
R/O. BEVINAKATTI, TQ: RON,
DIST: GADAG-582211.
...RESPONDENTS
(BY SMT. SHRUTI A. NEELOPANT, ADV. FOR
SRI. SHRIHARSH A. NEELOPANT, ADVOCATE FOR R1 TO R5;
RESPONDENT NO.2 TO 4 ARE MINORS R/BY RESPONDENT NO.1;
NOTICE TO RESPONDENT NO.6 AND 7 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF
MOTOR VEHICLES ACT, 1988, PRAYING TO CALL THE RECORDS,
HEAR THE PARTIES, AND ALLOW THE APPEAL AS PRAYED FOR BY
SETTING ASIDE THE JUDGMENT AND AWARD 12.02.2021 PASSED BY
THE SENIOR CIVIL JUDGE AND MACT, KUSHTAGI, IN MVC
NO.179/2017, WITH COST IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
K V ARAVIND, J., DELIVERED THE FOLLOWING:
-3-
NC: 2024:KHC-D:2687-DB
MFA No. 101410 of 2021
JUDGMENT
Though this appeal is listed for admission, it is taken up
for final disposal, with the consent of learned counsel for
both the parties.
2. The insurer is in appeal challenging the judgment
and award dated 12.02.2021 passed in MVC No.179/2017 on
the file of learned Senior Civil Judge and Member, MACT,
Kushtagi (for short, 'Tribunal').
3. The claimants being wife, three children and
mother preferred a claim petition under Section 166 of the
Motor Vehicles Act, 1988 claiming compensation of
Rs.25,00,000/- for the accidental death of Kalakappa that
took place on 18.03.2016 involving motorcycle bearing
registration No.KA-26/K-5744. It is pleaded that the
deceased was aged about 43 years as on the date of the
accident and he was earning Rs.500/- per day from
agriculture and coolie.
4. On issuance of notice, respondent No.1 appeared
through counsel and filed written statement denying the
NC: 2024:KHC-D:2687-DB
petition averments and denying the liability. Respondent
No.2 though served remained absent and placed ex-parte.
Respondent No.3-Insurance Company appeared through
counsel and filed written statement denying the accident and
the petition averments. It is further contended that the
vehicle was not involved in the accident and the same is
fixed in collusion with the police. The driver of the offending
vehicle was not possessing the valid licence and owner has
violated the policy conditions.
5. Before the Tribunal, 1st claimant-wife of the
deceased examined herself as PW1 and one witness Siddaraj
was examined as PW2 and marked the documents as Exs.P1
to P14. On behalf of respondents, RW1 and RW2 were
examined and marked documents as Exs.R1 to R9. The
Tribunal on examination of the material evidence on record
determined the compensation at Rs.18,07,480/- with interest
at 8% per annum under various heads as under:
Loss of dependency Rs.15,72,480/-
Loss of spousal consortium Rs. 40,000/-
Loss of parental consortium
each petitioner No.2 to 4 Rs. 1,20,000/-
NC: 2024:KHC-D:2687-DB
Loss of filial consortium to
petitioner No.5 Rs. 40,000/-
Transportation of dead body Rs. 5,000/-
For funeral expenses Rs. 15,000/-
For loss of estate Rs. 15,000/-
Total Rs.18,07,480/-
6. Heard Sri. Rajesh B.Rajnal, learned counsel for
the appellant-insurer as well as Smt.Shruti A.Neelopant,
learned counsel for Shriharsh A.Neelopant, learned counsel
for the claimants-respondents.
7. Learned counsel for the insurer submits that rider
of the motorcycle was not possessing the valid driving
licence and thus violated the policy conditions. He submits
that the Tribunal is not justified in saddling the liability on
the insurer. He further submits that number of dependents
were five and the deduction towards personal expenses
ought to be 1/4th of income whereas the Tribunal committed
an error in deducting 1/5th. It is further submitted that future
prospects awarded at 30% of assessed income is on the
higher side. Further the interest awarded at 8% is also on
NC: 2024:KHC-D:2687-DB
higher side. On the above submission, prays to re-compute
the compensation.
8. Learned counsel for claimants-respondents
submits that the compensation awarded under various heads
needs no interference. It is submitted that in the absence of
licence, in view of law laid down by the Hon'ble Apex Court in
the case of New India Assurance Company Limited V/s
Yallavva and another1, the insurer is to be ordered to
satisfy the award.
9. Having heard the learned counsel for the parties
and on perusal of the appeal papers, the points that arise for
consideration are as under:
i. Whether the compensation awarded by the
Tribunal requires modification?
ii. Whether the liability saddled on the insurer is
justified?
10. Our answer to the above points are 'in the
affirmative' for the following reasons.
ILR 2020 KAR 2239
NC: 2024:KHC-D:2687-DB
11. The death of Sri Kalakappa on 18.03.2016
involving motorcycle bearing No.KA-26/K-5744 is not in
dispute in this appeal. The insurer has contended that the
rider of the motorcycle was not possessing valid licence to
ride the motorcycle. The claimants have not proved that
rider of the motorcycle possessed valid and effective driving
licence. In the absence of any evidence to establish that
rider of motorcycle possessed valid and effective driving
licence, it is to be considered that rider has no licence. The
finding of the Tribunal that rider was having valid driving
licence is incorrect.
12. In view of the judgment of this Court in the case
of Yallavva supra, in the absence of licence, the rule of pay
and recovery is to be applied. In terms of the judgment
supra, the insurer has to indemnify the award. However, in
view of the above referred judgment, the insurer is at liberty
to recover the same from owner of the offending vehicle.
13. It is not in dispute that the claim petition is
preferred by the five petitioners claiming to be the
NC: 2024:KHC-D:2687-DB
dependents of the deceased. As per law laid down by the
Hon'ble Apex Court in the case of National Insurance
Company Limited V/s Pranay Sethi and others2, the
deduction up to 6 dependents is 1/4th. The deduction of 1/5th
applied by the Tribunal is modified to 1/4th. The deceased
was aged 43 years as on the date of accident not in dispute.
The future prospects awarded at 30% is on the higher side.
In view of the law laid down by the Hon'ble Apex Court in
Pranay Sethi supra, considering that deceased was aged 43
years, the future prospects is to be added by 25% of the
income determined. Thus the claimants would be entitled for
compensation on the head of loss of dependency at
Rs.14,17,500/- (Rs.9,000 + 25% x 12 x 14 x 3/4).
14. The Tribunal committed an error in awarding
interest @ 8% per annum. Considering the prevailing Bank
interest, we deem it appropriate to award 6% interest. Thus,
the total compensation awarded by the Tribunal is modified
as under:
(2017) 6 SCC 680
NC: 2024:KHC-D:2687-DB
Sl.No. Particulars Amount
1. Loss of dependency Rs.14,17,500/-
(Rs.9,000 (income per
month) + Rs.2,250 (25%
towards future prospects)
=11,250 x 12 (months) x 14
(multiplier) x ¾ (1/4th
deduction)
2. Loss of spousal consortium Rs.40,000/-
3. Loss of parental consortium Rs.1,20,000/-
4. Loss of filial consortium Rs.40,000/-
5. Towards funeral expenses Rs.15,000/-
6. Towards loss of estate Rs.15,000/-
Total Rs.16,47,500/-
15. Thus, the claimants would be entitled to total
compensation of Rs.16,47,500/- as against Rs.18,07,480/-
awarded by the Tribunal.
16. Hence, we pass the following:
ORDER
a) The above appeal is allowed in part.
b) The impugned judgment and award of the
Tribunal is modified to the extent that the
claimants are entitled to total compensation
Rs.16,47,500/- as against Rs.18,07,480/-
awarded by the Tribunal.
- 10 -
NC: 2024:KHC-D:2687-DB
c) The compensation amount will bear interest
at the rate of 6% per annum from the date
of claim petition till date of realization.
d) The respondent/insurance company shall
pay the entire compensation amount along
with accrued interest in favour of the
claimant at the first instance and shall
recover the same from the 2nd
respondent/owner.
e) Apportionment, deposit and disbursement of
the enhanced compensation shall be made
as per the award of the Tribunal.
f) Draw modified award accordingly.
g) Registry to transmit the records to the
Tribunal forthwith.
h) No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
CLK
