Karnataka High Court

The Legal Manager Icici Lombard vs Savita And Ors on 11 January, 2024

Author: B.M.Shyam Prasad

Bench: B.M.Shyam Prasad

                                              -1-
                                                    NC: 2024:KHC-K:482-DB
                                                       MFA No.203121 of 2023



                               IN THE HIGH COURT OF KARNATAKA,

                                      KALABURAGI BENCH

                           DATED THIS THE 11TH DAY OF JANUARY, 2024

                                           PRESENT

                          THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
                                              AND
                        THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA

                          MISCL. FIRST APPEAL NO.203121 OF 2023 (MV-D)

                   BETWEEN:

                   THE LEGAL MANAGER
                   ICICI LOMBARD GENERAL / MOTOR
                   INSURANCE COMPANY LTD.,
                   GROUND FLOOR, BIRE COMPLEX
                   BAGALKOT ROAD, VIJAYAPURA
                   THROUGH ITS REPRESENTED BY
                   BRANCH MANAGER
                   KALABURAGI - 585 103.
                                                                ...APPELLANT

                   (BY SRI MANJUNATH MALLAYYA SHETTY, ADVOCATE)

                   AND:
Digitally signed
by SWETA
KULKARNI           1.   SMT. SAVITA
Location: HIGH          W/O NAMDEV RATHOD @ BANUR
COURT OF
KARNATAKA               AGE ABOUT 38 YEARS, OCC: H.H.WORK

                   2.   RAHUL
                        S/O NAMDEV RATHOD @ BANUR
                        AGE ABOUT 20 YEARS, OCC: STUDENT

                   3.   PRATIKSHA
                        D/O NAMDEV RATHOD @ BANUR
                        AGE ABOUT 16 YEARS, OCC: STUDENT

                   4.   PRADEEP
                        S/O NAMDEV RATHOD @ BANUR
                        AGE ABOUT 16 YEARS, OCC: STUDENT
                            -2-
                                 NC: 2024:KHC-K:482-DB
                                      MFA No.203121 of 2023



     RESPONDENT NO.3 & 4 ARE MINORS
     REPRESENTED BY NEXT FRIEND NATURAL MOTHER
     I.E., RESPONDENT NO.1.

5.   MUKTABAI
     W/O RUPSING RATHOD @ BANUR
     AGE ABOUT 67 YEARS, OCC: NIL.,

     ALL ARE R/O SHANKAR NAGAR TANDA
     NIMBARGI, TQ. SOUTH SOLAPUR
     DIST: SOLAPUR.

     NOW R/O AT ARAKERI TANDA NO.1
     SOLAPUR ROAD, VIJAYAPURA - 586 109.

6.   VINAYAK PRABHAKAR BOJ RANGE
     AGE: MAJOR, OCC: OWNER OF VEHICLE
     R/O H.NO.165, NARTH KASABA
     TQ: NORTH SOLAPUR
     DIST: SOLAPUR - 413 007.
                                            ...RESPONDENTS

(BY SRI BASAVARAJ R. MATH, ADV. FOR C/R1, R2 AND R5)

     THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, 1988 PRAYING TO ALLOW THE ABOVE
APPEAL AND CONSEQUENTLY TO SET ASIDE THE JUDGMENT
AND AWARD DATED 02.01.2023 PASSED BY THE II ADDL.
SENIOR CIVIL JUDGE AND M.A.C.T. - VII AT VIJAYAPURA IN
M.V.C.NO.39/2021 AND CONSEQUENTLY TO DISCHARGE ITS
LIABILITY TO PAY THE COMPENSATION AND ALSO REDUCE
COMPENSATION     AWARDED    BY    THE   TRIBUNAL,   IN   THE
INTEREST OF JUSTICE AND EQUITY.

     THIS APPEAL COMING ON FOR ORDERS THIS DAY,
B.M.SHYAM PRASAD J., DELIVERED THE FOLLOWING:
                                -3-
                                     NC: 2024:KHC-K:482-DB
                                           MFA No.203121 of 2023



                          JUDGMENT

The respondents-claimants' petition under Section 166

of the Motor Vehicles Act, 1988 [for short, 'the M.V. Act'] in

MVC No.39/2021 on the file of the II Additional Senior Civil

Judge and MACT No.VII at Vijayapur [for short, 'the

Tribunal'] is allowed in part granting compensation in a sum

of Rs.22,40,996/- under the following heads:

               Particulars                     Amount (Rs.)
Notional income of the deceased                     13,750-00
25% addition towards future prospects                3,437-00
                                   Total            17,187-00
After 1/4th deduction (4,296/-) towards             12,891-00
living and personal expenses
Compensation worked out under the                 20,10,996-00

head 'loss of dependency' (12,891 x 12 months x multiplier 13) Loss of estate 15,000-00 Towards transportation & funeral 15,000-00 expenses Towards loss of consortium 2,00,000-00 Medical expenses Nil Grand total 22,40,996-00

2. It is undisputed that the respondents-claimants

are the wife, minor children and mother of Sri Namdev S/o

Rupsing Rathod who has died in a road accident on

11.11.2020 while riding his motor cycle bearing Reg.No.MH-

13/AB-5702. The accident has occurred at 7.30 p.m. when

he was traveling from Solapur to Shankar Nagar Tanda at

NC: 2024:KHC-K:482-DB

Nimbaragi, Maharashtra. The accident is because of the

collusion with another motorcycle.

3. Sri Manjunath M. Shetty, the learned counsel for

the appellant-Insurer, and Sri Basavaraj R. Math, the

learned counsel for the respondents-claimants, are

categorical that the death of Sri Namdev in a road accident

on 11.11.2020, the relationship of the respondents-

claimants with Sri Namdev and the Insurer's liability as the

Insurer of the other motor cycle are not denied. In fact, Sri

Manjunath M. Shetty submits that this appeal is filed

essentially on two grounds viz., that the respondents-

claimants have filed a claim petition before the Tribunal

though the accident had occurred in Maharashtra and that

the Tribunal has granted consortium in a sum of

Rs.2,00,000/- to five claimants-respondents.

4. As regards the first ground, Sri Manjunath M.

Shetty submits that the respondents-claimants do not deny

that as of the date of accident they and the deceased were

residents of Shankar Nagar Tanda, Solapur taluk but they

have chosen to file the present complaint before the Tribunal

NC: 2024:KHC-K:482-DB

asserting that they are residing at Arakeri Tanda No.1,

Solapur Road, Vijayapur and therefore, they should have

placed some material on record to demonstrate that they

were residing in Vijayapura. Sri Manjunath M. Shetty

submits that they have failed to do so and the Tribunal has

overlooked this material aspect.

5. In response, Sri Basavaraj R. Math relies upon

the decision of the Hon'ble Supreme Court in Malati Sardar

vs. National Insurance Company Limited1 and a recent

decision of the Hon'ble Supreme Court in Transfer Petition

(Civil) No.1792/2023 which is decided on 31.07.2023. The

learned counsel submits that the proposition enunciated by

the Hon'ble Supreme Court in the first decision is

emphasized by the recent decision in view of the provisions

of Section 166 of the M.V. Act and the Insurer cannot

dispute the Tribunal's jurisdiction in view of the

indisputable fact that the Insurer has a branch within the

Tribunal's jurisdiction.

1 2016 Kant M.A.C. 395 (SC)

NC: 2024:KHC-K:482-DB

6. The submissions are considered in the light of

the afore two decisions and the undisputed fact that the

Insurer has its branch within the Tribunal's jurisdiction.

Even otherwise there is formidable force in the submission

of Sri Basavaraj R. Math that the respondents-claimants,

who were residing at Solapur at the date of accident, have

re-located within the Tribunal's jurisdiction because of the

constraints visited on them by the tragic death of Sri

Namdev, a fact that is brought out in the cross-examination

of their evidence.

7. As regards the other grounds, this Court must

observe that the respondents-claimants are the wife, two

minor children and another son who was just 19 years as of

the date of the demise of Sri Namdev. These claimants are

joined by Sri Namdev's mother as the fifth claimant. It is

settled that in appropriate cases it is permissible to grant a

higher consortium than the conventional consortium

amount of Rs.40,000/- to ensure there is just and

reasonable compensation. The children of the deceased

have lost their father at a crucial stage of their life and are to

NC: 2024:KHC-K:482-DB

be supported by the first claimant - the widow who is only

37 years. The constraint gets emphasized by the fact that

they have to relocate from Solapur. These circumstances, in

this Court's opinion, are exceptional and the grant of

consortium at Rs.40,000/- to each of the claimants cannot

be held to result in a bonanza. Therefore, there is no reason

for interference. Hence, the following:

ORDER

The appeal stands disposed of permitting the

appellant-Insurer to deposit the amount in terms

of the Tribunal's judgment and award within a

period of three months from the date of receipt of

copy of this judgment.