Karnataka High Court
Smt Jayamma vs Venkatesh K V on 12 January, 2024
-1-
NC: 2024:KHC:1807
MFA No. 2816 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO. 2816 OF 2016 (MV-D)
BETWEEN:
SMT. JAYAMMA,
WIFE OF LATE LAKAPPA,
NOW AGED ABOUT 52 YEARS,
R/AT URAGAHALLI, BIDADI HOBLI,
RAMANAGAR TALUK AND DISTRICT - 562 109,
PRESENTLY RESIDING AT:
NO.194, 4TH CROSS,
35TH MAIN, SARAKKI GARDEN,
J.P. NAGAR, 5TH PHASE,
BENGALURU - 560 078.
...APPELLANT
(BY SRI. D. MANMOHAN, ADVOCATE)
AND:
Digitally
signed by
BHARATHI S 1. VENKATESH K.V,
Location:
HIGH S/O VENKATARAMANAPPA,
COURT OF
KARNATAKA AGED MAJOR,
NO.367, 4TH MAIN ROAD,
DHOBI GHAT, SINDHUNADI ROAD,
BENGALURU - 560 035,
SINCE DEAD IS REPRESENTED BY HIS L.R.,
1(A). SRI. NARAYANASWAMY K.V,
S/OF VENKATARAMANAPPA,
AGED MAJOR,
NO. 369, ANJANADRI STORES,
-2-
NC: 2024:KHC:1807
MFA No. 2816 of 2016
4TH MAIN ROAD, DHOBI GHAT,
SINDHUNADI ROAD, BENGALURU - 560 035.
2. TATA AIG GENERAL INSURANCE CO.LTD.,
NO.69, 2ND FLOOR, MILLERS ROAD,
BENGALURU - 560 052,
REPRESENTED BY ITS MANAGER.
3. SRI. P. SAMPATH,
FATHERS NAME NOT KNOWN,
AGED MAJOR,
NO.107, 4TH CROSS,
2ND MAIN, THYAGARAJANAGAR,
BENGALURU - 560 028.
...RESPONDENTS
(BY SMT. H.C. LOKESHWARI, ADVOCATE FOR R2;
R3 VIDE COURT ORDER DATED 25.03.2022 SERVICE OF
NOTICE IS HELD SUFFICIENT)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 09.12.2014 PASSED IN MVC
NO.6165/11 ON THE FILE OF THE 22ND ADDITIONAL SMALL
CAUSES JUDGE & MEMBER, MACT, BENGALURU, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The above appeal is filed by the claimant challenging the
judgment and award dated 09.12.2014 passed in
NC: 2024:KHC:1807
MVC No.6165/2011 on the file of XXII Additional Small Causes
Judge and Member MACT, Bangalore (hereinafter referred to as
Tribunal) challenging the findings of the Tribunal on liability and
seeking for enhancement of compensation awarded.
2. The relevant facts necessary for consideration of the
present appeal is that on 03.04.2011, one Lakkappa
(hereinafter referred to as deceased) was walking on the
extreme left side of the road, when an Autorikshaw bearing
registration No.KA-05-D-2730 came from behind and hit him
causing the accident in question wherein the deceased suffered
injuries and he succumbed to the same on the next day.
3. Claiming compensation for the death of the deceased,
the claimant, being the wife, filed the claim petition before the
Tribunal arraying the owner and insurer of the offending vehicle
as respondent Nos.1 and 2 therein. The insurer entered into
appearance and filed statement of objections taking a specific
contention that the owner of the vehicle is one Sri.P.Sampath,
who had purchased the vehicle from its original owner. Hence,
the claimant filed an application to implead the said subsequent
purchase and the said application was allowed on 29.05.2013
NC: 2024:KHC:1807
by the Tribunal, consequent to which the subsequent purchaser
was arrayed as respondent No.3 in the claim proceedings.
4. The claimant examined herself as PW.1 and a witness
as PW.2. Exs.P.1 to P.10 was marked in evidence. The official
of the insurer was examined as RW.1. The RTO has been
examined by the insurer as RW.2. Exs.R.1 to R.8 have been
marked in evidence.
5. The Tribunal by the judgment and award dated
09.12.2014 has dismissed the claim petition as against the
insurer and the subsequent purchaser and directed the first
respondent to pay the compensation of an amount of
Rs.4,52,000/- with interest at 6% per annum. Being aggrieved,
the claimant has filed the present appeal.
6. Learned counsel for the claimant submits that the
Tribunal has dismissed the claim petition against respondent
No.3 - subsequent purchaser of the vehicle on the ground that
there was no pleadings against respondent No.3. He further
submits that as on the date of the accident, respondent No.3
was the owner of the vehicle and the Tribunal having permitted
the claimant to implead respondent No.3, liability ought to have
NC: 2024:KHC:1807
been fastened on respondent Nos.2 and 3. Further the Tribunal
has exonerated the second respondent - insurer from the
payment of compensation on the ground of violation of permit
condition. That having regard to the judgment of the Hon'ble
Supreme Court in the case of AMRIT PAUL SINGH AND
ANOTHER VS. TATA AIG GENERAL INSURANCE COMPANY
LIMITED AND OTHERS1, the liability is required to be fastened
on the insurer with liberty to recover the same from the owner
of the vehicle. That the quantum of compensation is on the
lower side and the same is required to be enhanced.
7. Per contra, learned counsel for the second respondent
insurer justifies the judgment and award made by the Tribunal.
8. The submissions of both the learned counsels having
considered and material on record have been perused including
the records of the Tribunal.
9. The questions that arise for consideration are:
1."Whether the Tribunal was justified in
dismissing the claim petition against respondent Nos.2
and 3?
2018 7 SCC 558
NC: 2024:KHC:1807
2. Whether the liability of the insurer is required
to be exonerated having regard to the finding that
there is violation of permit condition?
3. Whether the quantum of compensation
required to be enhanced?"
Regarding question No.1:
10. Consequent to filing of the claim petition and a specific
objection having been taken by the insurer in the statement of
objections that one Sri.P.Sampath is the owner of the vehicle as
per the registration certificate, the claimant filed an application
to implead the said owner of the vehicle which application was
allowed by order dated 29.05.2013 passed by the Tribunal
consequent to which the owner of the vehicle has been arrayed
as respondent No.3 in the claim proceedings. Having regard to
the same, the Tribunal having permitted respondent No.3 to be
impleaded since the registration certificate of the vehicle
showed that the vehicle has been transferred from the name of
the first respondent to respondent No.3, the finding of the
Tribunal holding that there was no pleading and relief as against
respondent No.3 is erroneous and liable to be interfered with.
Hence, it is just and proper that respondent No.3 being the
NC: 2024:KHC:1807
owner of the vehicle also be held liable along with respondent
No.2 - insurer for payment of the compensation awarded.
Accordingly, question No.1 is answered in the negative.
Regarding question No.2:
11. The Tribunal has recorded a finding that the insured
vehicle was being plied beyond the area stipulated in the
permit. The question as to whether if there is violation of
permit conditions, the insurer is required to be exonerated from
payment of compensation is no longer resintegra. The Hon'ble
Supreme Court in the case of AMRIT PAUL SINGH1 has held
that the insurer will be required to pay the compensation
awarded with liberty to recover the same from the owner of the
vehicle. Hence, question No.2 framed for consideration is
answered in the negative.
Regarding question No.3:
12. The Tribunal has, upon appreciation of the oral and
documentary material has recorded a finding that since there
was no pleadings as to the income which the deceased earned
from his avocation as a coolie, the income was assessed at
`6,000/- per month. Since no material is produced for the
NC: 2024:KHC:1807
purpose of proving the income of the deceased, the same is
required to be re-assessed as that of a non-earning person as
per the chart followed for settlement of cases in Lok Adalath
conducted by High Court Legal Service Authority wherein the
notional income of the deceased for the year 2011 (which is the
year of the accident) is stated as `6,500/- and hence, the
income of the deceased is reassessed as such.
13. 10% of the income is required to be added towards
future prospects having regard to the judgment of the Hon'ble
Supreme Court in the case of NATIONAL INSURANCE
COMPANY LIMITED VS. PRANAY SETHI AND OTHERS2.
The Tribunal has recorded a finding that the deceased was
married and deducted 1/3rd towards personal expenses which is
just and proper. Hence, 1/3rd has to be deducted from the
income. Hence, for the purpose of assessment of loss of
dependency, income is re-assessed as `6,500-1/3x10% =
`4,766/-. The loss of dependency is re-assessed as `5,14,836/-
(Rs.4,766x12x9).
14. The Tribunal awarded a sum of `10,000/- towards
loss of consortium. Having regard to the judgment of the
2016 (16) SCC 680
NC: 2024:KHC:1807
Hon'ble Supreme Court in the case of MAGMA GENERAL
INSURANCE COMPANY LIMITED VS. NANU RAM ALIAS
CHUHRU RAM AND OTHERS3, the same is re-assessed as
`40,000/-.
15. The Tribunal has awarded a sum of `5,000/- towards
transport expenses and funeral expenses. Having regard to the
judgment in the case of MAGMA GENERAL INSURANCE
COMPANY LIMITED3 the same is reassessed as `15,000/-
each.
16. Accordingly, the total compensation under various
heads is re-assessed as follows:
Sl.No. Heads Amount awarded Amount awarded
by the Tribunal (`) by this Court (`)
1. Loss of 4,32,000.00 5,15,000.00
dependency
2. Loss of consortium 10,000.00 40,000.00
3. Transportation 5,000.00 15,000.00
expenses
4. Funeral and 5,000.00 15,000.00
obsequies
ceremony
Total 4,52,000.00 5,85,000.00
2018 (18) SCC 130
- 10 -
NC: 2024:KHC:1807
17. Hence, the appellant/claimant is entitled for enhanced
compensation of `1,33,000/- (`5,85,000 - `4,52,000) together
with interest at 6% per annum.
18. In view of the aforementioned, the following:
ORDER
i) The appeal is allowed in part;
ii) The judgment and award dated 09.12.2014 passed
in MVC No.6165/2011 on the file of XXII Additional
Small Causes Judge and Member MACT, Bangalore,
is modified to the extent stated herein. In all other
respects, the judgment and award of the Tribunal
remain unaltered;
iii) The appellant/claimant is entitled to enhanced
compensation of `1,33,000/- with interest at 6% per
annum from the date of petition till its realization in
addition to the compensation by the Tribunal;
iv) Respondent No.2 - Insurer is liable to pay the entire
compensation of `5,85,000/- with interest at 6% till
date of petition till the date of realization and is at
liberty to recover from the same from the third
respondent - owner of the vehicle. The
compensation shall be deposited within eight weeks
from the date of receipt of a copy of the judgment;
- 11 -
NC: 2024:KHC:1807
v) The disbursement of compensation shall be in terms
of the award of the Tribunal;
vi) The Registry to draw the modified award
accordingly.
vi) No costs.
SD/-
JUDGE
MEG
CT: BHK
