Karnataka High Court
Mrs.Razia vs Sadananda Sherigar on 20 February, 2024
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NC: 2024:KHC:7136
MFA No. 4317 of 2014
C/W MFA No. 4653 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO. 4317 OF 2014 (MV)
C/W
MISCELLANEOUS FIRST APPEAL NO. 4653 OF 2014 (MV)
IN MFA NO. 4317/2014
BETWEEN:
1. MRS. RAZIA,
W/O LATE NOORUDDIN @ MOHD. NOORULLAH
@ NOOR MOHAMMAD,
AGED ABOUT 28 YEARS,
2. SUHANA,
D/O LATE NOORUDDIN @ MOHD. NOORULLAH
@ NOOR MOHAMMAD,
AGED ABOUT 9 YEARS,
3. RAZIK @ MOHAMMED RAZUK
S/O LATE NOORUDDIN @ MOHD. NOORULLAH
@ NOOR MOHAMMED,
AGED ABOUT 7 YEARS,
Digitally
signed by 4. APNAM,
BHARATHI S
D/O LATE NOORUDDIN @ MOHD. NOORULLAH
Location:
HIGH COURT @ NOOR MOHAMMAD,
OF AGED ABOUT 5 YEARS,
KARNATAKA
5. AFRAZ,
D/O LATE NOORUDDIN @ MOHD. NOORULLAH
@ NOOR MOHAMMAD,
AGED ABOUT 3 1/2 YEARS,
NO. 2 TO 5 ARE MINORS HENCE REPRESENTED BY THEIR
NEXT FRIEND NATURAL GUARDIAN,
MOTHER APPELLANT NO.1.
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MFA No. 4317 of 2014
C/W MFA No. 4653 of 2014
ALL ARE RESIDING AT THODAR HOUSE,
MIJAR VILLAGE, MANGALORE TALUK,
D.K. DISTRICT - 575 008.
...APPELLANTS
(BY SRI. RAVISHANKAR SHASTRY G, ADVOCATE)
AND:
1. SADANANDA SHERIGAR,
S/O GOPAL SHERIGAR,
AGED ABOUT 41 YEARS,
R/A LALITHA MAHAL, PERADKA,
MAELA POST, KARKALA TLAUK,
UDUPI DISTRICT - 575 014.
2. NATIONAL INSRUANCE CO. LTD.,
FIRST FLOOR, NITHYANANDA COMPLEX,
NEAR BUS STAND, MOODABIDRI - 575006,
MANGALORE TALUK, D.K. DISTRICT,
REPRESENTED BY ITS BRANCH MANAGER.
...RESPONDENTS
(BY SRI. JANARDHAN REDDY, ADVOCATE FOR R2;
R1 SERVED AND UNREPRESENTED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 10.03.2014 PASSED IN MVC
NO.1828/2012 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE
& MEMBER, MACT, MANGALORE, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA NO. 4653/2014
BETWEEN:
NATIONAL INSURANCE CO. LTD.,
MANGALORE BRANCH OFFICE,
THROUGH ITS REGIONAL OFFICE,
NO.144, SUBHARAM COMPLEX,
M.G.ROAD, BANGALORE - 560 001,
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MFA No. 4317 of 2014
C/W MFA No. 4653 of 2014
REPRESENTED BY ITS ADMINISTRATIVE OFFICER.
...APPELLANT
(BY SRI. JANARDHAN REDDY, ADVOCATE)
AND:
1. SMT RAZIA,
W/O SRI LATE NOORUDDIN @ MOHD.NOORULLA @NORR
MOHAMMAD,
AGED ABOUT 28 YEARS,
2. KUMARI SUHAN,
D/O LATE NOORUDDIN @ MOHD.NOORULLA
@NOOR MOHAMMAD,
AGED ABOUT 9 YEARS,
3. CHI.RAZIK @ MOHAMMED RAZIK,
S/O SRI. LATE NOORUDDIN @ MOHD.NOORULLA
@ NOOR MOHAMMAD,
AGED ABOUT 7 YEARS,
4. KUMARI APNAM,
D/O SRI. LATE NOORUDDIN @ MOHD.NOORULLA @NOOR
MOHAMMAD,
AGED ABOUT 5 YEARS,
5. CHI AFRAZ,
S/O SRI. LATE NOORUDDIN @ MOHD.NOORULLA @NOOR
MOHAMMAD,
AGED ABOUT 3 1/2 YEARS
RESPONDENT NO.1 TO 5 ARE RESIDING AT
THODAR HOUSE, MIJAR VILLAGE,
MANGALORE TALUK - 575 001.
RESPONDENTS NO. 2 TO 5 ARE MINORS
REPRESENTED BY ITS NATURAL GUARDIAN
THEIR MOTHER 1ST RESPONDENT HEREIN.
6. SRI. SADANANDA SHERIGAR,
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MFA No. 4317 of 2014
C/W MFA No. 4653 of 2014
S/O SRI GOPAL SHERIGAR,
AGED ABOUT 41 YEARS,
R/AT LALITHA MAHAL,
PERADKA, MAELA POST,
KARKALA TALUK - 574 107.
(OWNER OF THE BUS KA-20-B-5397)
...RESPONDENTS
(BY SRI. C. RAVISHANKAR SHASTRY, ADVOCATE
FOR R1 TO R5;
R2 TO R5 ARE MINORS REPRESENTED BY R1
R6 SERVED AND UNREPRESENTED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 10.03.2014 PASSED IN MVC
NO.1828/2012 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE
& MEMBER, MACT, MANGALORE, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE APPEALS, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA.No.4317/2014 is filed by the claimant and
MFA.No.4653/2014 is filed by the insurer. In both the appeals
the judgment and award dated 10.03.2014 passed in
MVC.No.1828/2012 by the Principal Senior Civil Judge and
MACT, Mangalore1, is under challenge. Hence, both the appeals
are taken up together for consideration.
2. For the sake of convenience, the parties herein are
referred as per their ranking before the Tribunal.
Hereinafter referred to as 'Tribunal'
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3. It is the case of the claimants that on 28.06.2012
when one Nooruddin2 was driving a Goods tempo towards
Karkala when a bus proceeding in the opposite direction from
Karkala towards Moodabidre being driven in rash and negligent
manner came and hit the Goods tempo being driven by the
deceased causing the accident in question, wherein the
deceased sustained grievous injuries and succumbed to the
same. Claiming compensation for the death of the deceased,
his wife and four children filed a claim petition arraying the
owner and insurer of the bus as Respondents. The Respondents
entered appearance before the Tribunal and contested the
claim proceedings. First claimant - wife examined herself as
PW.1. Ex.P.1 to Ex.P.8 were marked in evidence. The policy of
insurance was marked as Ex.R.1. No oral evidence was
adduced from the Respondents. The Tribunal by its judgment
and award dated 10.03.2014, awarded a compensation of
`8,55,000/- together with interest at the rate of 6% per
annum. Being aggrieved the present appeals have been filed.
4. Learned counsel for the insurer assailing the finding
of the Tribunal on negligence and submits that the deceased
Hereinafter referred to as 'Deceased'
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who was driving the Goods auto did not have a driving license.
Hence, it ought to be have been held that the deceased
contributed to causing the accident in question. He further
submits that the driver of the insured bus did not have a valid
and effective driving license as on the date of accident. Hence,
the insurer ought to be exonerated from payment of the
compensation. Hence, he seeks for allowing of the appeal field
by the insurer.
5. Per contra, learned counsel for the claimants
submits that the finding of the Tribunal on negligence and
liability is just and proper and seeks for enhancement of the
compensation awarded.
6. The submissions of both the learned counsels have
been considered and the material on record including the
records of the Tribunal have been perused. Hence, the
questions that arise for consideration are:
"i) Whether the finding of the Tribunal on negligence is
erroneous and liable to be interfered with?
ii) Whether the insurer is liable to be exonerated from its
liability to pay the compensation awarded on the ground
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that the drive of the bus did not have a valid and
effective driving license as on the date of the accident?
iii) Whether the quantum of compensation is required to
be enhanced?"
Reg. Question No.(i):-
7. The claimants have stated that the accident was
caused due to rash and negligent driving of the driver of the
bus. PW.1 is not the eye witness to the accident. However,
Police records have been produced and marked in evidence. It
is forthcoming from the spot sketch (Ex.P.4) that the road on
which the accident occurred was an 18 feet road and at the
spot of the accident there was a distance of 5 feet on the left
side of Goods auto and a distance of 13 feet on the left side of
the bus. Hence, it is clear the bus was on its wrong side of the
road at the time of occurrence of the accident.
8. It is vehement contention of the learned counsel for
the insurer that having regard to the fact that the deceased
himself did not have a driving license at the time of the
accident, some contributory negligence is required attributed to
the deceased. However, the said contention is liable to be
rejected, having regard to the clear indication as to the spot of
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the accident at Ex.P.4 as noticed above. Further, the insurer
has not examined the driver of the bus. In view of the
aforementioned, no interference in the finding of negligence
recorded by the Tribunal is warranted in the present appeal.
Hence, question No.(i) framed for consideration is answered in
the negative.
Reg. Question No.(ii):-
9. It is alleged by the insurer that the driver of the bus
did not have valid and effective driving license at the time of
the accident. In support of the said contention the portion of
the charge sheet (Ex.P.6) relied upon where there is a report
that the driver of the bus was not duly licensed is relied upon
by the learned counsel for the insurer. However, as pointed out
by the learned counsel for the claimants, the reply given by the
owner of the bus to the Police Inspector (Ex.P.8) discloses that
the details of driving license held by the driver wherein it is
stated that the license was issued on 25.02.1999 and that it
was renewed from 02.07.2012 to 01.07.2015. Hence, it is
forthcoming that as on the date of accident i.e., 28.06.2012 the
driver of the bus was not authorized to drive a Heavy Motor
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Vehicle. However, he had the requisite license prior to the
accident and subsequently the said license was renewed from
02.07.2012.
10. In this context it is relevant to note that the Hon'ble
Supreme Court in the case of NATIONAL INSURANCE
COMPANY LTD V/S SWARAN SINGH AND OTHERS3 has
held as follows:
"110. ....
(x) Where on adjudication of the claim under the Act the
Tribunal arrives at a conclusion that the insurer has
satisfactorily proved its defence in accordance with the
provisions of Section 149(2) read with sub-section (7), as
interpreted by this Court above, the Tribunal can direct that
the insurer is liable to be reimbursed by the insured for the
compensation and other amounts which it has been compelled
to pay to the third party under the award of the Tribunal. Such
determination of claim by the Tribunal will be enforceable and
the money found due to the insurer from the insured will be
recoverable on a certificate issued by the Tribunal to the
Collector in the same manner under Section 174 of the Act as
arrears of land revenue. The certificate will be issued for the
recovery as arrears of land revenue only if, as required by sub-
section (3) of Section 168 of the Act the insured fails to deposit
(2004)3 SCC 297
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the amount awarded in favour of the insurer within thirty days
from the date of announcement of the award by the Tribunal.
11. Having regard to the position of law as a
enumerative in the case of NATIONAL INSURANCE
COMPANY LTD3 the insurer is liable to pay the compensation
awarded with liberty to recover the same is from the owner of
the vehicle. Hence, question No.(ii) framed for consideration is
answered partly in the affirmative.
Reg. Question No.(iii):-
12. The deceased was aged 30 years as on the date of
the accident. Hence, the appropriate multiplier is 17 as has
been assessed by the Tribunal.
13. In the claim petition it is averred that the deceased
was carrying on business. However, no documents were
produced to prove the same. The Tribunal assessed the income
of the deceased at `5,000/- per month. Having regard to the
fact that the claimant has not produced any documents to
prove the income of the deceased, the same is re-assessed as
notional income as per the chart being followed for settlement
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of claims by the Lok-Adalath conducted by the Legal Service
Authority and having regard to the date of accident the same is
re-assessed at `7,000/- per month.
14. The claimants are wife and four children. Hence,
1/4th is required to be deducted towards personal expenses.
Hence, the income is assessed as (7000 - 1/4) =`1750/-;
(7000 - 1750) = `5250/-
15. 40% is required to be added towards future
prospects. In view of the judgement of the Hon'ble Supreme
Court in the case of NATIONAL INSURANCE COMPANY LTD
V/S PRANAY SETHI AND ORS4. Hence, the income together
with future prospects is assessed at (5250 + 40%) = `2100/-;
(5250 + 2100) = `7,350/-.
16. In view of the aforementioned the loss of
dependency is re-assessed as (7,350 X 12 X 17) =
`14,99,400/-.
17. Loss of consortium is required to be awarded to the
wife and children of the deceased as per the judgment of
Hon'ble Supreme Court in the case of MAGMA GENERAL
(2017)16 SCC 680
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INSURANCE COMPANY V/S NANU RAM ALIAS
CHUBRU RAM AND ORS5 at `44,000/- each. Hence, loss of
consortium is re-assessed as (44000 X 5) =`2,20,000/-.
18. A compensation of `16,500/- is required to be
awarded towards loss of estate and funeral expenses and for
love and affection `16,500/- is awarded.
19. Hence, the compensation is re-assessed as follows:
Sl.No. Heads Amount awarded Amount awarded
by the Tribunal by this Court (`)
(`)
1. Funeral 30000.00 16500.00
expenses and
loss of estate
2. Loss of love and 40000.00 16500.00
affection
3. Loss of 765000.00 1499400.00
dependency
4. Loss of 20000.00 220000.00
consortium
Total 855000.00 1752400.00
(2018)18 SCC 130
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20. Hence, the appellant/claimant is entitled for
enhanced compensation of `8,97,400/- (`1752400 - `855000)
rounded of to `8,98,000/-together with interest at 6% p.a.
21. In view of the aforementioned, the following:
ORDER
i) MFA.No.4317/2014 filed by the claimant and
MFA.No.4653/2014 filed by the insurer are allowed
in part;
ii) The judgment and award dated 10.03.2014 passed
in MVC.No.1828/2012 by the Principal Senior Civil
Judge and MACT, Mangalore, is modified to the
extent stated herein. In all other respects, the
judgment and award of the Tribunal remain
unaltered;
iii) The claimants are entitled to an enhancement of
`8,98,000/- with interest at 6% per annum from
the date of petition till its realization, in addition to
the compensation awarded by the Tribunal;
iv) The appellant in MFA.No.4653/2014 - insurer is
liable to pay compensation awarded with liberty to
recover the same from the owner of the vehicle
who is arrayed as Respondent No.1 before the
Tribunal;
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v) The amount deposited by the Appellant in
MFA.No.4653/2014 be transmitted to the Tribunal
for disbursement in terms of the award of the
Tribunal;
vi) The Appellant in MFA.No.4653/2014 - insurer shall
deposit the balance compensation awarded by the
by the Tribunal and as enhanced by this Court
together with accrued interest within eight weeks
from the date of receipt of a copy of this judgment;
vii) The Registry to draw the modified award
accordingly;
viii) No costs.
Sd/-
JUDGE
PNV
CT: BHK
