Karnataka High Court
The Branch Manager vs Smt.Roopa W/O Raghavendra Goudar on 8 February, 2024
Author: S G Pandit
Bench: S G Pandit
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NC: 2024:KHC-D:2840-DB
MFA No. 101170 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8TH 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. 101170 OF 2019 (MV-D)
BETWEEN:
THE BRANCH MANAGER,
NATIONAL INSURANCE CO. LTD,
NAVANAGAR BRANCH,
NEAR KEB BAGALKOT
NOW REPRESENTED BY ITS
AUTHORISED SIGNATORY.
...APPELLANT
(BY SRI. RAJASHEKHAR S. ARANI, ADVOCATE)
AND:
1. SMT. ROOPA.
W/O. RAGHAVENDRA GOUDAR,
AGE: 26 YEARS,
Digitally signed by
CHANDRASHEKAR
CHANDRASHEKAR LAXMAN
LAXMAN
OCC: HOUSEHOLD WORK,
KATTIMANI
KATTIMANI
Date: 2024.02.16
12:05:16 +0530
R/O. KELUR, TQ: HUNGUND,
DIST: BAGALKOT.
2. KUMAR SWAROOP,
S/O. RAGJAVENDRA GOUDAR,
AGE: 04 YEARS,
R/O. KELUR, TQ: HUNGUND,
DIST: BAGALKOT,
SINCE MINOR REPRESENTED BY HIS
NATURAL GUARDIAN MOTHER
RESPONDENT NO.1.
3. SMT. CHANDRAVVA,
W/O. SANNAPPA @ SHARANAPPA GOUDAR,
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NC: 2024:KHC-D:2840-DB
MFA No. 101170 of 2019
AGE: 61 YEARS, OCC: NIL,
R/O. KELUR, TQ: HUNGUND,
DIST: BAGALKOT.
4. SRI. LAXMAN S/O. HULLAPPA DONIYAVAR,
AGE: 41 YEARS, R/O. GUNDUR SC,
TQ: HUNGUND, DIST: BAGALKOT.
...RESPONDENTS
(BY SRI. S. C. HIREMATH, ADV. FOR RESPONDENT NO.1 TO 3,
RESPONDENT NO.2 MINOR REP.BY RESPONDENT NO.1,
NOTICE TO RESPONDENT NO.4 IS SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF
MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD
DATED 17.01.2019 PASSED IN MVC NO.189/2018 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS
TRIBUNAL-X, HUNGUND, AWARDING COMPENSATION OF
Rs.22,54,264/- WITH INTEREST AT 7% P.A. FROM THE DATE OF
PETITION TILL ITS REALISATION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
K V ARAVIND, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the Insurance Company aggrieved by
the quantum of compensation and disputing the liability in
MVC No.189/2018 dated 17.01.2019 on the file of the
learned Senior Civil Judge and MACT-X, Hungund (for short,
'Tribunal').
2. The petitioners-claimants are wife, son and
mother of the deceased Raghavendra, who died in a road
traffic accident occurred on 11.09.2017 involving Tum-Tum
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bearing registration No.KA-49/B-407 and canter lorry
bearing registration No.KA-29/A-4585. It is stated that the
deceased was earning Rs.18,000/- per month by working as
a driver and he was aged 30 years. Petitioners are
dependents on earning of deceased Raghavendra.
3. On service of notice, respondents appeared
through their respective counsels. Respondent No.1 alleged
that the accident was not due to negligence on the part of
the driver of the canter lorry. Denying the petition
averments, contended that driver of the canter lorry was
possessing valid driving licence and if petitioners are entitled
for compensation prays to fasten the liability on respondent
No.2-Insurer.
4. Respondent No.2 denying the petition averments
alleged that accident was due to contributory rash and
negligent driving of the deceased, driver of the canter lorry
had no valid and effective driving licence to drive that
particular class of vehicle. Further, respondent No.1 has
violated conditions of the policy and denied its liability to pay
compensation.
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5. Before the Tribunal, 1st claimant-wife of the
deceased examined herself as PW1 and got marked the
documents as Exs.P1 to P12. Respondents have not
examined any witness, however marked Ex.R1-insurance
policy. The Tribunal on appreciation of the evidence on
record awarded total compensation of Rs.22,54,264/- with
interest at 7% per annum on the following heads:
1. Loss of dependency Rs.19,71,264/-
2. Medical & conveyance Rs.1,73,000/-
3. Funeral expenses Rs.15,000/-
4. Loss of estate Rs.15,000/-
5. Loss of consortium Rs.40,000/-
6. Loss of love & affection Rs.40,000/-
Total Rs.22,54,264/-
6. The Tribunal while computing the compensation
considered income of the deceased at Rs.11,000/- per month
deducted 1/3rd towards personal expenses, considered age of
the deceased as 32 years and applied multiplier '16'.
7. Heard Sri. Rajashekhar S.Arani, learned counsel
for the insurer and Sri S.C.Hiremath, learned counsel
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respondents-claimants No.1 to 3. Respondent No.4 though
served remained absent. Perused the appeal papers.
8. Learned counsel for the insurer submits that the
accident is of the year 2017. In the absence of any evidence
to prove the income of the deceased, the Tribunal has
assessed the notional income at Rs.11,000/-. For the
accident that took place in the year 2017, the notional
income is to be assessed at Rs.10,250/-. It is further
submitted that the deceased was driving Tum-Tum vehicle.
The driver of the lorry was holding LMV licence. The LMV
licence would not permit the driver to drive canter lorry
being different class of vehicle. It is further submitted that
the interest awarded at 7% is on the higher side. On the
above submissions, prays that the compensation awarded is
on the higher side and the insurer is not liable to pay
compensation.
9. Per contra, learned counsel appearing for the
respondents-claimants submits that the income assessed by
the Tribunal is justified. It is further submitted that the
driver of the lorry was possessing valid and effective driving
NC: 2024:KHC-D:2840-DB
licence. The Tribunal justified in directing the insurer to pay
the compensation. Thus, prays to dismiss the appeal.
10. Having heard the learned counsel for the parties
and on perusal of the appeal papers, the points arise for
consideration are as under:
i. Whether the Tribunal is right in fastening
liability on the insurer?
ii. Whether the compensation awarded by the
Tribunal needs modification?
11. Our answer to the above points are 'in the
affirmative' for the following reasons.
12. The death of deceased Raghavendra on
11.09.2017 due to road traffic accident involving Tum-Tum
bearing No.KA-49/B-407 and canter lorry bearing No.KA-29/
A-4585 is not in dispute in this appeal. The respondents-
claimants have claimed income of deceased at Rs.18,000/-
per month. In the absence of any evidence to prove income
of the deceased, the Tribunal estimated the notional income.
It is settled position of law that in the absence of any proof
NC: 2024:KHC-D:2840-DB
of income, the income of the deceased is to be estimated
notionally. Though the Tribunal was correct in estimating the
notional income, committed an error in assessing the
notional income at Rs.11,000/- per month. As per the chart
prepared by the Karnataka State Legal Services Authority
(KSLSA), for accident during 2017, the notional income of
the deceased is to be considered at Rs.10,250/- per month.
We assess the monthly income of the deceased at
Rs.10,250/-. As per National Insurance Company
Limited V/s Pranay Sethi1, considering age of deceased as
32 years and deceased being self-employed, 40% of the
assessed income to be added towards future prospects.
13. The Tribunal considering the number of
dependents as three and rightly deducted 1/3rd towards
personal expenses from income assessed. As the age of the
deceased as 32 years is not in dispute, the multiplier '16'
applied by the Tribunal needs no interference. Thus, the
claimants would be entitled for compensation on the head of
(2017) 6 SCC 680
NC: 2024:KHC-D:2840-DB
loss of dependency at Rs.9,18,400/- (Rs.10,250 + 40% x
12 x 16 x 1/3).
14. The insurer has contended that the driver of the
canter lorry was possessing LMV licence not eligible to drive
canter lorry being different class of vehicle. The insurer has
not examined the driver of the canter lorry. The insurer has
not proved that driver was not having licence to drive canter
lorry. The Hon'ble Supreme Court in the case of Mukund
Dewangan V/s Oriental Insurance Company Limited2
has held that driver possessing licence to drive light motor
vehicle is competent to drive a transport vehicle where the
gross weight/unladen weight of the vehicle does not exceed
7500 kilograms. No evidence has been led or proved by the
insurer to prove that the driver of the canter lorry was not
competent to drive canter lorry on the basis of LMV licence.
In the circumstances, the contention of the insurer that the
driver of the canter lorry was not possessing valid and
effective licence requires to be rejected.
(2017) 14 SCC 663
NC: 2024:KHC-D:2840-DB
15. The Tribunal has awarded a sum of Rs.40,000/-
towards loss of consortium. As per the judgment in National
Insurance Company Limited V/s Pranay Sethi3, the
claimants being wife, son and mother would be entitled to
Rs.40,000/- each under the head loss of consortium. The
deceased Raghavendra met with an accident on 11.09.2017
and was in treatment till his death on 11.10.2017. The
compensation awarded towards medical expenses and
conveyance is on the basis of evidence. Hence calls no
interference.
16. The accident is of the year 2017. In terms of
decision of the Hon'ble Apex Court in Pranay Sethi supra,
the claimants would be entitled 10% escalation on the
conventional heads as well as loss of consortium. Thus, the
claimants would be entitled for modified compensation on
the following heads:
Sl.No. Particulars Amount
1. Loss of dependency Rs.9,18,400/-
2. Medical and conveyance Rs.1,73,000/-
(2017) 6 SCC 680
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3. Funeral expenses Rs. 16,500/-
4. Loss of estate (15,000+10%) Rs. 16,500/-
5. Loss of consortium Rs.1,32,000/-
(40,000 X 3 + 10%)
Total Rs.12,44,400/-
17. Thus, the claimants would be entitled to total
compensation of Rs.12,44,400/- as against Rs.22,54,264/-
awarded by the Tribunal.
18. The Tribunal committed an error in granting 7%
interest on the compensation. Taking note of the present day
Bank interest rate, we reduce the rate of interest from 7% to
6%. The entire compensation amount will bear interest at
the rate of 6% per annum from the date of petition till
realization.
19. In the result, 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
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NC: 2024:KHC-D:2840-DB
Rs.12,44,400/- as against Rs.22,54,264/-
awarded by the Tribunal.
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 appellant-Insurance Company shall
deposit the compensation amount with
accrued interest before the Tribunal within
six weeks from the date of receipt of
certified copy of this judgment.
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
