Karnataka High Court
Smt. Shaheen And Ors vs Khaja Moinuddin And Ors on 5 January, 2024
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NC: 2024:KHC-K:209
MFA No. 201693 of 2017
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MRS. JUSTICE LALITHA KANNEGANTI
MISCL. FIRST APPEAL NO. 201693 OF 2017 (MV-D)
BETWEEN:
1. SMT. SHAHEEN W/O LATE SHASHAVALI,
AGE: 31 YEARS, OCC: HOUSEHOLD,
R/O DEVI NAGAR, NEAR KASAPPA HOTEL,
RAICHUR-585401.
2. RESHMA D/O LATE SHASHAVALI
AGE: 12 YEARS, OCC: MINOR STUDENT,
U/G OF NATURAL MOTHER SHAHEEN/THE
APPELLANT NO.1 HEREIN ABOVE
PIN CODE NO.-585401.
3. SAMEER S/O LATE SHASHAVALI
AGE: 17 YEARS, OCC: STUDENT,
MINOR U/G OIF NATURAL MOTHER SHAHEEN/THE
Digitally signed APPELLANT NO.1 HEREIN ABOVE
by
KHAJAAMEEN PIN CODE NO.-585401.
L MALAGHAN ...APPELLANTS
Location: High (BY SRI. BABU H METAGUDDA, ADVOCATE)
Court of
Karnataka
AND:
1. KHAJA MOINUDDIN S/O ABDUL SALAM,
AGE: MAJOR, OCC: DRIVER,
R/O NAWAB GADDA RAICHUR-585401.
2. MALLIKARJUN S/O RAMANNA
AGE: MAJOR, OCC: BUSINESS & OWNER OF VEHICLE
/RCHOLDER, AP-04/U-3863,
R/O MADDIPET, RAICHUR-585401.
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MFA No. 201693 of 2017
3. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE, V.V. SUKHANI COMPLEX,
1ST FLOOR, GANDHI CHOWK,
RAICHUR-585401.
...RESPONDENTS
(BY SRI. MQ. ABDUL QUAYUM ADV. FOR R3 V/O DATED
01/09/2023 NOTICE TO R1 AND R2 TO DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO A) CALL FOR THE RECORDS IN MVC NO.27/08 ON
THE FILE OF THE II ADDL. DIST. AND SESSIONS JUDGE AT
RAICHUR. B) ALLOW THIS APPEAL AND MODIFY THE
JUDGMENT AND AWARD DATED-04.07.2017 PASSED IN MVC
NO.27/2008 BY THE II ADDL. DIST. AND SESSIONS JUDGE AT
RAICHUR. AND ENHANCING THE COMPENSATION FROM
RS.7,18,000/- WITH 6% INTEREST TO RS.15,00,000/- WITH
12% INTEREST. C) ALLOW THIS APPEAL AND SET ASIDE THE
JUDGMENT AND AWARD DATED-04.07.2017 PASSED IN MVC
NO.27/2008 BY THE II ADDL. DIST. AND SESSIONS JUDGE
AT RAICHUR. AND DIRECT THE RESPONDENT NO.3 INSURANCE
COMPANY TO PAY THE COMPENSATION TO THE CLAIMANT. IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Aggrieved by the award passed in MVC No.27/2008,
dated 04.07.2017, by the II Additional District And
Sessions Judge, at Raichur, the claimant is before this
court seeking enhancement of the compensation, as well
as questioning the liability fixed on the owner instead of
insurance company.
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2. The case of the claimant is that on 11.12.2007,
at about 7.30 p.m., the driver of the passenger jeep drove
the same in a rash and negligent manner and dashed
against the deceased who was a pedestrian. As a result of
the accident, the deceased fell down on the ground and
died. The jeep driver went without stopping the jeep.
Thereafter, three claimants have filed the claim petition
seeking compensation for the death of the deceased in the
accident. According to the claimants the deceased was
doing building construction work and was earning
Rs.6,000/- per month. The court below had taken the
income at Rs.4,500/- and granted a compensation of
Rs.4,78,000/-. When it comes to the liability the court
below had observed that whether the deceased was a
pedestrian or inmate of the jeep is within the special
knowledge of the driver. It is the duty of the respondent
No.2 to prove the said fact because in case of failure to
prove the said fact he is liable to pay the compensation. If
the owner wants to get to indemnify the compensation
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payable by him he has to put forth the facts within his or
his servants special knowledge as required under Section-
106 of the Indian Evidence Act. The insurance company
has proved that the jeep owner carried the passengers for
reward and violated the policy condition. Therefore, the
insurance company is not liable to pay the compensation
and hence that it is the owner alone who is liable to pay
the compensation.
3. Learned counsel appearing for the claimants in
support of his contention contends that the insurance
company is still liable to pay the compensation in case of a
comprehensive policy and has relied on the judgment of
the division bench of this Court in the case of United
India Insurance Co. Ltd., Bengaluru vs. Kalawathi1
where the Court has held that on the ground of the
violation of terms of insurance policy that the passenger is
a paid inmate, the insurer cannot avoid the liability, as the
claimant was a paid passenger. He had also relied on
2011 (1) MACR 11 (Kar)(DB)
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another judgment of this Court in the case of BHIMARAY
HANAMANTRAY BAICHALBAL VS. SRI.GUDUSAB @
GUDUBAI AND ANOTHER2. Basing on these judgments
the learned counsel submits that considering the case of
Kalawathi referred to supra, it was held that as it was a
comprehensive policy the insurance company was liable to
pay the compensation. The learned counsel appearing for
the insurance company submits that it is a private car and
they are carrying the passengers for reward which is not
permissible. When there is a clear violation of the terms
and conditions of the policy the insurance company is not
liable to pay the compensation. The Tribunal had rightly
exonerated the insurance company from paying the
compensation.
4. Having heard the learned counsel on either
side, perused the material on record. First and foremost
the issue is about the liability of the insurance company.
The claimant is a third party to the insurance policy. The
MFA NO.31909/2012 A/W. MFA NO.31747/2012, DT.12.11.2020.
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insurance company has issued the policy in respect of a
private car. It is proved by way of adducing the evidence
that the owner of the vehicle is plying the vehicle for
reward contrary to the terms and conditions of the policy.
Even if there is violation of the terms and condition of the
policy, still the insurance company is liable to pay the
compensation, as the claimant is a third party to the policy
and they can recover the same from the owner of the
vehicle. Hence, this court holds that the insurance
company is liable to pay the compensation and recover the
same from the owner.
5. Then coming to the compensation, the court
below had rightly taken the salary at Rs.4,500/-, as the
deceased was aged 25 years, the future prospects of 40%
comes to Rs.1,800/- i.e., Rs.6,300/-, as there was three
claimants 1/3rd has to be deducted towards personal
expenses i.e., Rs.2,100/-, then the contribution to the
family would be Rs.4,200 x 12 x 18 = Rs.9,07,200/-
under the head of loss of dependency. Towards loss of
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consortium an amount of Rs.1,44,000/- (48,000 x 3) is
awarded, towards funeral expenses an amount of
Rs.36,000/- is awarded.
6. Further in the light of the law laid down by the
Hon'ble Supreme Court in the case of V.MEKALA vs. M.
MALATHI AND ANOTHER3, the claimant is entitled for an
amount of Rs.10,000/- towards legal expenses.
7. The claimant is therefore, entitled to the
compensation under the following heads:
Heads Compensation
Awarded
1. Loss of Dependency : Rs. 9,07,200/-
2. Loss of Consortium : Rs. 1,44,000/-
3. Funeral Expenses : Rs. 36,000/-
4. Legal Expenses : Rs. 10,000/-
TOTAL : Rs. 10,97,200/-
(2014) 11 SCC 178
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8. Accordingly, the Appeal is Partly Allowed,
enhancing the compensation amount from Rs.4,78,000/-
to Rs.10,97,200/-.
i) The enhanced amount shall carry interest at 6%
p.a. from the date of petition till the date of
realization.
ii) The respondent - insurance company shall
deposit the amount within a period of eight
weeks from the date of receipt of copy of the
judgment. On such deposit, the claimant is
entitled to withdraw the entire amount without
furnishing any security. The Insurance
Company can recover the same from the owner
of the vehicle.
iii) Registry is directed to return the Trial Court
Records to the Tribunal, along with certified
copy of the order passed by this Court forthwith
without any delay.
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iv) No costs.
Pending miscellaneous petitions, if any, shall stand closed.
Sd/-
Judge
JJ
