Karnataka High Court

Renuka W/O Gurappa Jambagi And Anr vs Shreeshail S/O Mallappa Kannur And Anr on 27 February, 2024

Author: H.T.Narendra Prasad

Bench: H.T.Narendra Prasad

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                                                        MFA No. 201104 of 2021




                              IN THE HIGH COURT OF KARNATAKA,

                                     KALABURAGI BENCH

                          DATED THIS THE 27TH DAY OF FEBRUARY, 2024

                                           PRESENT

                        THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
                                                AND
                             THE HON'BLE MR. JUSTICE K V ARAVIND

                        MISCL. FIRST APPEAL NO. 201104 OF 2021 (MV-D)

                   BETWEEN:

                   1.   RENUKA
                        W/O GURAPPA JAMBAGI,
                        AGE: 47 YEARS,
                        OCC: HOUSE HOLD WORK,

                   2.   GURAPPA
                        S/O ADIVEPPA JAMBAGI,
                        AGE: 50 YEARS,
                        OCC: AGRICULTURE,

Digitally signed        ALL ARE R/O. SHRAKANALLI,
by VARSHA N
RASALKAR                TQ: INDI, DIST: VIJAYAPURA,
Location: HIGH
COURT OF                NOW RESIDING AT IBRAHIMPUR,
KARNATAKA
                        VIJAYAPURA-585101.

                                                                 ...APPELLANTS
                   (BY SRI. BABU H. METAGUDDA, ADVOCATE)

                   AND:

                   1.   SHREESHAIL
                        S/O MALLAPPA KANNUR,
                        AGE: 45 YEARS, OCC: BUSINESS,
                        R/O SHIRAKANAHALLI, TQ: INDI,
                        DIST: VIJAYAPURA-585101.
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                                     MFA No. 201104 of 2021




2.   THE BRANCH MANAGER,
     BAJAJ ALLIANZ GENERAL
     INSURANCE CO. LTD.,
     VIVEKANAND CORNER,
     DESAI CROSS, CLUB ROAD,
     HUBLI-580029.

                                             ...RESPONDENTS


(BY SRI. RAVI G. MADABHAVI, ADVOCATE FOR R1;
    SRI. SUBHASH MALLAPUR, ADVOCATE FOR R2)


       THIS MFA IS FILED UNDER SECTION 173(1) OF M.V. ACT,

PRAYING TO ALLOW THIS APPEAL AND MODIFY THE JUDGMENT

AND AWARD DATED: 02.07.2020 PASSED IN M.V.C NO:

222/2016 BY THE I ADDITIONAL SENIOR CIVIL JUDGE AND

MACT     VI,   AT    VIJAYAPUR,     AND    ENHANCING     THE

COMPENSATION        FROM   RS.7,18,000/-   WITH   6   PERCENT

INTEREST TO RS.25,50,000/- WITH 12 PERCENT INTEREST

AND ALLOW THIS APPEAL AND DIRECT THE 2 ND RESPONDENT

INSURANCE COMPANY TO PAY THE COMPENSATION TO THE

CLAIMANTS IN THE INTEREST OF JUSTICE AND EQUITY.



       THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,

H.T.NARENDRA PRASAD J., DELIVERED THE FOLLOWING:
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                                          MFA No. 201104 of 2021




                         JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act', for

short) has been filed by the claimants being aggrieved by

the judgment and award dated 02.07.2020 passed by the

MACT-VI, Vijayapura, in MVC No.222/2016 whereby

awarded compensation of Rs.7,18,000/- along with

interest at the rate of 6% p.a. and fastened the liability on

insured.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 03.08.2015, when the deceased-

Parasuram Jambagi along with two others were traveling

in a Trax Jeep bearing registration No.KA-28/M-4986 from

Shirakanalli to Vijayapura, the driver of the said vehicle

driving the same with a high speed and in rash and

negligent manner, and lost control over the said vehicle

toppled down by the side of the road and caused the

accident. As a result of the aforesaid accident, the

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deceased fell down and sustained grievous injuries and

succumbed to the injuries.

3. The claimants are the parents of the deceased

filed a claim petition under Section 166 of the Act seeking

compensation for the death of the deceased along with

interest.

4. On service of summons, respondent No.2-

Insurance Company appeared through counsel and filed

written statement in which the averments made in the

petition were denied. They have denied the occurrence of

the accident and the said accident occurred due to rash

and negligent driving of Jeep by the driver. He further

contended that the owner of the said vehicle has used it

for commercial purpose and has violated the policy

conditions. They have also denied that the driver of the

offending vehicle was not holding a valid and effective

driving licence as on the date of the accident. Hence,

prays to dismiss the appeal.

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5. Respondent No.1 appeared through the counsel

but not filed any objections before the Tribunal.

6. On the basis of the pleadings of the parties, the

Tribunal has framed the following issues:

1. Whether the petitioners prove that the deceased Parasuram S/o Gurappa Jambagi died in the accident on account of rash and negligent driving of the driver of Trax Jeep bearing No.ΚΑ-28/M-4986 which occurred on 03-08-2015 at about 9-30 hours on Shirakanalli to Vijayapura?

2. Whether the petitioners are entitled for the compensation? If so? To what extent and from whom they are entitled?

3. What order or award?

7. The claimants, in order to prove their case,

examined claimant No.1/Renuka as PW-1 and another

witness as PW-2 and got exhibited documents namely

Ex.P1 to Ex.P22. On behalf of respondent No.2, one

witness was examined as RW-1 and got exhibited

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documents namely Ex.R1 and Ex.R2. On appreciation of

oral and documentary evidence, the Tribunal has

answered issue No.1 in affirmative and issue No.2 partly in

affirmative and awarded compensation of Rs.7,18,000/-

along with interest at the rate of 6% p.a. and fastened

liability on the owner of the offending vehicle. Being

aggrieved, this appeal has been filed.

8. Sri. Babu H. Metagudda, the learned counsel for

the claimants has raised the following contentions:

Firstly, contended that as on the date of the accident

driver of the offending vehicle was having valid and

effective driving licence; the owner has appeared through

the counsel before this Court and has filed application

along with driving licence. He further contended that even

though the driver of the offending vehicle was having light

motor vehicle non-transport licence and in view of the

judgment of the Hon'ble Apex Court in the case of

Mukund Dewangan V/s. Oriental Insurance

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Company Limited (2017) 14 SCC 663, the insurance

company is liable to pay compensation.

Secondly, in respect of quantum he has contended

that at the time of accident deceased was earning

Rs.15,000/- per month by doing agricultural work. But the

Tribunal has assessed notional income of the deceased as

Rs.6,000/- per month which is on the lower side.

Thirdly, as per the law laid down by the Hon'ble Apex

Court in the case of NATIONAL INSURANCE CO. LTD. -

v- PRANAY SETHI AND OTHERS [AIR 2017 SC 5157],

40% income of the deceased has to be added towards

future prospects.

Fourthly, as per the judgment of the Hon'ble Apex

Court in the case of MAGMA GENERAL INSURANCE CO.

LTD. -V- NANU RAM [2018 ACJ 2782], each of the

claimants are entitled for compensation of Rs.40,000/-

under the head of 'loss of filial consortium'.

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Lastly, considering the age and avocation of the

deceased, the overall compensation awarded by the

Tribunal is on the lower side. Hence, he prays for allowing

the appeal.

9. Per contra, Sri. Subhash Mallapur, the learned

counsel for the Insurance Company has raised the

following counter-contentions:

Firstly, he has contended that as on the date of the

accident the driver of the offending vehicle was not having

valid and effective driving licence and in spite of service of

notice the insured has not produced driving licence before

the Tribunal and first time he has produced driving licence

before this Court and the same is light motor vehicle non-

transport driving licence, but the vehicle involved in the

accident is transport vehicle since the insured has violated

the policy conditions the insurance company is not liable to

pay the compensation. The Tribunal has rightly exonerated

the insurance company.

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Secondly, in respect of quantum he has contended

that even though the claimants claim that the deceased

was earning Rs.15,000/- per month, the same is not

established by the claimants by producing documents.

Therefore, the Tribunal has rightly assessed the income of

the deceased notionally.

Thirdly, since the claimants have not established the

income of the deceased, they are not entitled for

compensation towards 'future prospects'.

Lastly, on appreciation of oral and documentary

evidence and considering the age and avocation of the

deceased, the overall compensation awarded by the

Tribunal is just and reasonable. Hence, he prays for

dismissal of the appeal.

10. Sri. Ravi G. Madabhavi, the learned counsel

appearing for the offending vehicle has contended that the

offending vehicle is insured with respondent

No.2/insurance company and it had a valid insurance

policy and as on the date of the accident driver of the

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offending vehicle was having valid and effecting driving

licence. Even though he had light motor vehicle non-

transport driving licence in view of the judgment of the

Hon'ble Apex Court in the case of Mukund Dewangan

(supra) the insurance company is liable to pay

compensation because unladen weight is less than 7500kg

therefore the insurance company is liable to pay

compensation. Hence, sought for disposal of the appeal.

11. Heard the learned counsel for the parties and

perused the judgment and award of the Tribunal.

12. It is not in dispute that deceased-Parashuram

Jambagi died in a road traffic accident occurred on

03.08.2015 due to rash and negligent driving of the driver

of the Trax Jeep bearing Reg.No.KA-28/M-4986.

13. The claimants claim that deceased was earning

Rs.15,000/- per month. But they have not produced any

documents to prove the income of the deceased. In the

absence of proof of income, the notional income has to be

assessed as per the guidelines issued by the Karnataka

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State Legal Services Authority, for the accident taken

place in the year 2015, the notional income of the

deceased has to be taken at Rs.8,000/- p.m. To the

aforesaid income, 40% has to be added on account of

future prospects in view of the law laid down by the

Constitution Bench of the Supreme Court in 'PRANAY

SETHI' (supra). Thus, the monthly income comes to

Rs.11,200/-. Since the deceased was bachelor 50% has

to be deducted towards his personal expenses and

remaining amount has to be taken as his contribution to

the family. The deceased was aged about 21 years at the

time of the accident and multiplier applicable to his age

group is '18'. Thus, the claimants are entitled to

compensation of Rs.12,09,600/- (Rs.5,600/- x 12 x 18) on

account of 'loss of dependency'.

14. In addition, the claimants are entitled to

compensation of Rs.15,000/- on account of 'loss of estate'

and compensation of Rs.15,000/- on account of 'funeral

expenses'.

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15. In view of the law laid down by the Hon'ble

Apex Court in the case of 'MAGMA GENERAL

INSURANCE' (supra), claimants are the parents of the

deceased are entitled for compensation of Rs.40,000/-

each under the head of 'loss of filial consortium' .

16. Thus, the claimants are entitled to the following

compensation:

                Compensation                 Amount in
               under different                 (Rs.)
                     Heads
             Loss of dependency          Rs.12,09,600/-
             Funeral expenses               Rs.15,000/-
             Loss of estate                 Rs.15,000/-
             Loss of Filial                 Rs.80,000/-
             consortium
                            Total       Rs.13,19,600/-

17. In respect of liability is concerned the owner of

the offending vehicle has filed an application enclosing the

driving licence before this Court. It is clear from the

driving licence that the driver of the offending vehicle was

having light motor vehicle non-transport licence but he

was driving the transport vehicle at the time of accident

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and unladen weight of the offending vehicle is less than

7500kg as per decision of the Hon'ble Apex Court in the

case of Mukund Dewangan (supra) has held that the

driver of the offending vehicle holding a light motor vehicle