Karnataka High Court
Smt Naseem Taj @ Nasreen Taj vs Sri K Thawlath on 5 January, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
-1-
NC: 2024:KHC:727
MFA No. 3400 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.3400 OF 2018 (MV-D)
BETWEEN:
1. SMT. NASEEM TAJ @ NASREEN TAJ
W/O. LATE BABU,
AGED ABOUT 42 YEARS,
RESIDING AT
JAGIRDAR MOHALLA,
NALAGALLI, HOSKOTE TOWN,
BANGALORE DISTRICT.
2. MOHAMMED ANWAR @ ANWAR
S/O. ABDUL KHUDDUS,
AGED ABOUT 70 YEARS,
RESIDING AT :
NO.32, KAVERI NAGAR, T
HANISANDRA, SRK NAGAR POST,
BANGALORE - 77.
Digitally signed by ...APPELLANTS
RAMYA D
Location: HIGH COURT
OF KARNATAKA (BY SRI. A.K.BHAT, ADVOCATE)
AND:
1. SRI K THAWLATH
S/O. KHASIM, MAJOR,
R/O. NO.1/4A, THOKARAPALLI,
VILLAGE, AND POST,
KRISHNAGIRI DISTRICT.
2. THE LEGAL MANAGER
M/S. SRIRAM GENERAL INSURANCE CO. LTD.
NO.4/5, 3RD FLOOR, S.V. ARCADE,
-2-
NC: 2024:KHC:727
MFA No. 3400 of 2018
BELEKAHALLI MAIN ROAD,
OPP. B.G.ROAD,
II M POST, BANGALORE - 76.
...RESPONDENTS
(BY SRI. A.N. KRISHNASWAMY ADVOCATE FOR R2;
R1- NOTICE HELD SUFFICEINT V/O DATED: 17.01.2023)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 07.02.2018 PASSED IN MVC
NO.5773/2016 ON THE FILE OF THE XIII ADDITIONAL JUDGE,
COURT OF SMALL CAUSES AND 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
This appeal is filed by the claimants seeking
enhancement of compensation awarded by the MACT,
Bengaluru, vide judgment and award dated 07.02.2018 in
MVC No.5773/2016.
2. The factum of accident and death of deceased
are not in dispute.
3. Heard the arguments of both sides and perused
the records.
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4. The Tribunal has not adopted the correct
parameters while determining the compensation.
Therefore, the claimants are before this Court seeking
enhancement of compensation.
5. In the present case, the deceased was pillion
rider on the motorcycle, which was hit by canter lorry.
The deceased was aged 47 years at the time of accident
and was doing bakery business. The alleged accident has
occurred on 17.03.2016. As per the provisions of KSLSA,
the notional income of the deceased is ought to be taken
at Rs.9,500/- per month and 25% is to be added towards
'loss of future prospects'. The claimants are wife and
father of the deceased. As such, 1/3rd is to be deducted
towards personal expenses of the deceased. The
appropriate multiplier applicable is '13'. Therefore, loss of
dependency is reassessed and quantified as under:
Rs.9,500/- + 25% (Rs.2,375/-) = Rs.11,875/-
Rs.11,875/- x 12 x 13 x 2/3rd = Rs.12,35,000/-
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Thus, claimants are entitled to compensation of
Rs.12,35,000/- under the head 'loss of dependency'.
6. The Tribunal has awarded compensation of
Rs.40,000/- under the head 'loss of consortium'. As per
the judgment of Hon'ble Supreme Court in the case of
MAGMA GENERAL INSURANCE CO. LIMITED V. NANU
RAM & OTHERS1, each claimant is entitled for
Rs.40,000/- towards 'loss of consortium'. In the present
case, there are two dependants. Therefore, compensation
of Rs.88,000/- [Rs.40,000/- x 2 dependants + 10%
escalation) is awarded under the head 'loss of consortium
as against the compensation of Rs.40,000/- awarded by
the Tribunal.
7. The compensation of Rs.16,500/- is awarded
towards 'funeral expenses and transportation of dead
2018 ACJ 2782
NC: 2024:KHC:727
body' as against compensation of Rs.15,000/- awarded by
the Tribunal.
8. The compensation of Rs.16,500/- is awarded
towards 'loss of estate' as against compensation of
Rs.15,000/- awarded by the Tribunal.
9. Thus, in all, the appellants/claimants are
entitled for total compensation under various heads as
follows:
Sl. By the By this
Particulars Rs.
No. Tribunal Court
1 Loss of dependency Rs. 7,28,000/- 12,35,000/-
2 Loss of consortium Rs. 40,000/- 88,000/-
3 Loss of estate Rs. 15,000/- 16,500/-
4 Funeral expenses
and transportation
of dead body Rs. 15,000/- 16,500/-
TOTAL Rs. 7,98,000/- 13,56,000/-
10. The Tribunal has awarded compensation of
Rs.7,98,000/-, but the appellants/claimants are entitled to
total compensation of Rs.13,56,000/-. Hence, the
appellants/claimants are entitled to compensation of
Rs.5,58,000/- (Rs.13,56,000/- - Rs.7,98,000/-).
NC: 2024:KHC:727
Therefore, the appellants/claimants are entitled to
enhanced compensation of Rs.5,58,000/- along with
interest at the rate of 6% per annum from the date of
petition till the date of realization, in addition to what has
been awarded by the Tribunal.
REGARDING PAY AND RECOVERY:
11. In the present case, the Tribunal has observed
that the driver of the offending vehicle had possessed only
Light Motor Vehicle (LMV) at the time of the accident and
there was no endorsement on the driving licence regarding
Medium Goods Vehicle (MGV). Therefore, the Tribunal is
correct in exonerating the Insurance Company from
paying compensation to the claimant. However, as per
Sub-section (2) of Section 149 of Motor Vehicle Act, when
the Insurance Company established the fact that the
driver was not holding driving licence, then as per Sub-
sections (1), (4), (7) of Section 149 of Motor Vehicle Act,
the Insurance Company as if the judgment debtor shall
satisfy the claim in respect of third parties and then
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recover the same from the owner of the lorry.
Accordingly, the order of pay and recovery is made as per
the principle of law laid down by the Hon'ble Supreme
Court in the cases of PAPPU AND OTHERS Vs. VINOD
KUMAR LAMBA AND ANOTHER2; NATIONAL
INSURANCE COMPANY LIMITED VS. SWARAN
SINGH AND OTHERS 3 and also as per the full bench
decision of this Court in the case of NEW INDIA
ASSURANCE COMPANY LIMITED VS. YELLAVVA AND
ANOTHER4. Accordingly, an order of pay and recovery is
made. To this extent, the judgment and award passed by
the Tribunal is modified.
12. The driver of the vehicle was holding a driving
licence to drive a light motor vehicle transport but the
offending vehicle is a medium goods vehicle. Therefore,
there is a violation of conditions of policy. Hence,
(2018) 3 SCC 208
(2004) 3 SCC 297
2020 ACJ 2560
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insurance company has proved that there is violation of
conditions of policy.
13. Accordingly, I proceed to pass the following:
ORDER
i. Appeal is allowed-in-part.
ii. The impugned judgment and award
dated 07.02.2018 in MVC No.5773/2016
passed by the MACT, Bengaluru, is
modified to the extent that
appellants/claimants are entitled to
enhanced compensation of
Rs.5,58,000/- along with interest at
the rate of 6% per annum from the date
of petition till the date of realization, in
addition to what has been awarded by
the Tribunal.
iii. The respondent No.2/insurance
company is directed to pay the
compensation at the first instance and
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then recover the same from the
respondent No.1/owner of the vehicle.
iv. No order as to costs.
v. Draw award accordingly.
Sd/-
JUDGE
DR
