Karnataka High Court

The Divisional Manager, National ... vs Rudrappa Parappa Parappanavar on 2 January, 2024

Author: V.Srishananda

Bench: V.Srishananda

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                                                            NC: 2024:KHC-D:12
                                                            MFA No. 21334 of 2012
                                                     C/W MFA.CROB No. 848 of 2012



                                 IN THE HIGH COURT OF KARNATAKA

                                          DHARWAD BENCH

                             DATED THIS THE 2ND DAY OF JANUARY, 2024

                                                BEFORE
                             THE HON'BLE MR JUSTICE V.SRISHANANDA
                       MISCELLANEOUS FIRST APPEAL NO.21334 OF 2012 (MV-D)
                                                  C/W
                                    MFA CROSS OBJ NO.848 OF 2012

                      IN M. F. A. NO.21334 OF 2012

                      BETWEEN:
                      THE DIVISIONAL MANAGER,
                      NATIONAL INSURANCE COMPANY LIMITED,
                      RAMDEV GALLI, BELAGAVI, POLICY ISSUED BY
                      B.O.HUBLI, REPRESENTED BY ITS, DEPUTY MANAGER,
                      REGIONAL OFFICE (CELL), SUJATA COMPLEX,
                      PB ROAD, HUBLI-580029.
                                                                       ...APPELLANT

                      (BY SRI. G.N. RAICHUR, ADVOCATE)
         Digitally
         signed by    AND:
         BHARATHI
BHARATHI H M
HM       Date:
         2024.01.11   1.   SRI. RUDRAPPA PARAPPA PARAPPANAVAR,
         11:41:47
         +0530             AGE: 68 YEARS, OCC: NIL,
                           R/O: BUDARKATTI, TQ: BAILHONGAL,
                           DIST: BELAGAVI.

                      2.   SMT. NEELAVVA
                           W/O RUDRAPPA PARAPPANAVAR,
                           AGE: 63 YEARS, OCC: HOUSEHOLD WORK,
                           R/O: BUDARKATTI, TQ: BAILHONGAL,
                           DIST: BELAGAVI.
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                                       MFA No. 21334 of 2012
                                C/W MFA.CROB No. 848 of 2012



3.   SMT. PARWATI
     W/O MADIWALAPPA PARAPPANAVAR,
     AGE: 31 YEARS, OCC: HOUSEHOLD WORK,
     R/O: BUDARKATTI, TQ: BAILHONGAL,
     DIST: BELAGAVI.

4.   KUMAR MANJU
     S/O MADIWALAPPA PARAPPANAVAR,
     AGE: 10 YEARS, OCC: NIL.,

5.   KUMAR SANJU
     S/O MADIWALAPPA PARAPPANAVAR,
     AGE: 08 YEARS, OCC0: NIL.,

6.   KUMARI ANUSUYA
     D/O MADIWALAPPA PARAPPANAVAR,
     AGE: 06 YEARS, OCC: NIL.,

     (RESPONDENT NO.4 TO 6 ARE MINORS
     REPRESENTED BY NATURAL GUARDIAN RESPONDENT
     NO.3 PARWATI MADIWALAPPA PARAPPANAVAR)
     R/O: BUDARKATTI, TQ: BAILHONGAL, DIST: BELAGAVI.

7.   SRI. MALLIKARJUN BASAPPA KALLUR,
     AGE: MAJOR, OCC: PWD CONTRACTOR,
     R/O: BASAVA SADANA, II ND CROSS, HUBLI,
     DIST: DHARWAD.
                                                      ...RESPONDENTS

(BY SRI. HANUMANTH R. LATUR, ADVOCATE FOR R1-3,
 R4-6 MINORS R/BY R3,
 SRI. J. S. SHETTY, ADVOCATE FOR R7)

      THIS   MISCELLANEOUS      FIRST   APPEAL   IS    FILED   UNDER
SECTION 173(1) OF M.V. ACT, AGAINST THE JUDGMENT AND
AWARD DATED:22.12.2011, PASSED IN M.V.C. NO.1906/2009 ON
THE FILE OF THE SENIOR CIVIL JUDGE, ASSISTANT SESSIONS
JUDGE   &    ADDL.   M.A.C.T.    BAILHONGAL,      AWARDING       THE
COMPENSATION OF RS.7,14,500/- WITH INTEREST AT THE RATE OF
6% P.A. FROM THE DATE OF PETITION TILL ITS DEPOSIT.
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                                        NC: 2024:KHC-D:12
                                    MFA No. 21334 of 2012
                             C/W MFA.CROB No. 848 of 2012



IN MFA CROSS OBJ NO.848 OF 2012

BETWEEN:
1.   SHRI. RUDRAPPA
     S/O. PARAPPA PARAPPANAVAR,
     AGE: 68 YEARS, OCC: NIL,
     R/O: BUDARKATTI, TQ: BAILHONGAL,
     DIST: BELAGAVI.

2.   SMT. NEELAVVA
     W/O. RUDRAPPA PARAPPANAVAR,
     AGE: 63 YEARS, OCC: HOUSE HOLD WORK,
     R/O: BUDARKATTI, TQ: BAILHONGAL,
     DIST: BELAGAVI.

3.   SMT. PARWATI
     W/O. MADIWALAPPA PARAPPANAVAR,
     AGE: 31 YEARS, OCC: HOUSEHOLD WORK,
     R/O: BUDARKATTI, TQ: BAILHONGAL,
     DIST: BELAGAVI.

4.   KUMAR MANJU
     S/O. MADIWALAPPA PARAPPANAVAR,
     AGE: 10 YEARS, OCC: NIL.,
     R/O: BUDARKATTI, TQ: BAILHONGAL,
     DIST: BELAGAVI.

5.   KUMAR SANJU
     S/O. MADIWALAPPA PARAPPANAVAR,
     AGE: 08 YEARS, OCC0: NIL.,
     R/O: BUDARKATTI, TQ: BAILHONGAL,
     DIST: BELAGAVI.

6.   KUMARI ANASUYA
     D/O. MADIWALAPPA PARAPPANAVAR,
     AGE: 06 YEARS, OCC: NIL.,
     R/O: BUDARKATTI, TQ: BAILHONGAL,
     DIST: BELAGAVI.

     (APPELLANTS NO.4 TO 6 ARE MINORS
     R/BY NATURAL GUARDIAN AND MOTHER
     APPELLANT NO.3)
                                           ...CROSS OBJECTORS

(BY SRI. HANUMANTH R. LATUR, ADVOCATE)
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                                     MFA No. 21334 of 2012
                              C/W MFA.CROB No. 848 of 2012



AND:

1.   SRI. MALLIKARJUN
     S/O. BASAPPA KALLUR,
     AGE: 50 YEARS, OCC: PWD CONTRACTOR,
     R/O: BASAVA SADAN, SENIOR CIVIL JUDGE
     BAILHONGAL ED CROSS, HUBLI,
     DIST. DHARWAD.

2.   THE DIVISIONAL MANAGER,
     NATIONAL INSURANCE CO. LTD.
     RAMDEV GALLI, BELAGAVI.
                                                  ...RESPONDENTS
(BY SRI. J. S. SHETTY, ADVOCATE FOR R1,
 SRI. G. N. RAICHUR, ADVOCATE FOR R2)

     THIS MISCELLANEOUS FIRST APPEAL CROSS-OBJECTION IS
FILED UNDER SECTION 41 RULE 22 OF THE CODE OF CIVIL
PROCEDURE, 1908, R/W. SEC. 173(1) OF M.V. ACT, AGAINST THE
JUDGMENT AND AWARD DATED:22.12.2011, PASSED IN M.V.C.
NO.1906/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE,
ASSISTANT SESSIONS JUDGE & MEMBER, ADDL. M.A.C.T.
BAILHONGAL, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

    THESE APPEAL AND CROSS-OBJECTION COMING ON FOR
ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:


                          JUDGMENT

Heard Sri.G.N.Raichur, learned counsel for the

appellant - Insurance Company, Sri.Hanumanth R Latur

and Sri.J.S.Shetty, learned counsels for the respondents.

2. These two appeal and cross-objection are

arising out of MVC No.1906/2009 challenging the validity

of judgment and award passed in the said case dated

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22.12.2011 on the file of the Senior Civil Judge and

Assistant Sessions Judge and Additional Motor Accident

Clams Tribunal, Bailhongal (hereinafter referred to as

'Tribunal' for brevity).

3. Facts in brief which are utmost necessary for

disposal of these two cases are as under:

3.1 A claim petition came to be filed under Section

166 of IMV Act claiming compensation from the

respondents on the following grounds:

"a) On 25/03/2009 at about 09-10 p.m. when Madiwalappa Parappanavar was traveling by sitting in a tipper No.KA 25/A-

8388 on Yaraguddi-Jakkanayakanakoppa road near land owned by Fakirgouda Patil, Yaraguddi village, Bailhongal Taluka, driver of tipper drew the same negligently made the attempt to overtake a tractor-trailer, lost control, made the tipper to fell in a ditch situated by the side of the road, thereby caused accident caused grievous injuries to Madiwalappa Parappanava, Immediately after the accident, Madiwalappa Parappanavar has been admitted to KLE Hospital Belagavi, on 26/03/2009 at KLE Hospital Belagavi Madiwalappa Parappanavar succumbed to the injuries.

b) The Nesargi have registered a case in Cr.No.37/2009 against the driver of Tipper.

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c) As on the date of accident deceased Madiwalappa Parappanavar being aged about 30 years being coolie/labourer in the tipper owned by Respondent No.1, use to earn Rs.6,000/- p.m. and use to contribute entire income to the family.

d) Respondents being owner and insurer of the tipper No.KA 25/A-8388 are liable to pay the compensation."

3.2 In pursuance of the notice issued by the

Tribunal, respondent No.2-Insurance Company appeared

before the Tribunal and filed written statement denying

the claim petition averments including the mode of

accident, age and occupation and income of the deceased.

3.3 Respondent No.1 remained exparte before the

Tribunal and therefore, the Tribunal raised the following

issues:

1. "Whether the petitioners prove that on 25/03/2009 at about 9-10 p.m. on Yaraguddi-

Jakkanayakanakoppa (Yaraguddi to Hannikeri) road, near land of one Shri. Fakkirgouda Basavaneppa Patil @ Sanagoudar Basanagouda Yabanagouda Patil of Yaraguddi, at Yaraguddi village, within the limits of Nesargi Police station, in view of negligent use of a Tata HGV vehicle bearing No.KA 25/A-8388 an accident took

NC: 2024:KHC-D:12

place resulting in the death of Mr.Madiwalappa Rudrappa Parappanavar?

2. Whether the petitioners are entitle for compensation, If so, at what extent and from whom?

3. What order?"

3.4 In order to prove the case of the claimant,

Smt.Parwati, claimant No.3 is examined as PW.1 and an

eyewitness to the accident by name Vithal Basalingappa

Madiwalar is examined as PW.2 and as many as 13

documents were relied on by the claimants on their behalf

to prove the claim, which were exhibited and marked as

Exs.P.1 to P.13. As against the evidence placed on record

by the claimants, Sri.Raghuveer Shankar Baliga officer of

the Insurance Company is examined as RW.1 and relied

on two documents i.e. copy of policy and authorization

letter which were exhibited and marked as Exs.R.1 and

R.2.

3.5 On conclusion of recording of evidence, the

Tribunal considered the oral and documentary evidence

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placed on record by the parties in a cumulative manner

and allowed the claim petition in part.

4. Being aggrieved by the same, the Insurance

Company has filed the appeal on the following grounds:

"a) The tribunal has committed an error in saddling the liability on the appellant Insurance Company in spite of the evidence on record to show that the deceased was travelling in the Tipper which does not require any persons to unload the goods. The tribunal has only travelled on the aspect that two employees are covered under the policy. Mere collecting premium it does not show that they are allowed to travel in the vehicle. It is submitted that they are covered only for loading purpose and not for travelling. But the tribunal has failed understand this aspect of the mater and saddled the liability on the appellant.

b) The tribunal has committed an error in calculating the compensation as per Motor Vehicle Act. The policy issued in only liability policy (Act Policy), therfore the compensation to be awarded as per the schedule of the Workmen Compensation Act and not under the motor Vehicle Act.

Therefore the tribunal has wrongly awarded compensation of Rs 7, 14, 500/- by calculating the compensation as per MV Act.

c) The tribunal has committed an error in projecting the 50% of the additional income of Rs 1,500/- which is not proper. It is submitted that the judgment of the Hon'ble Apex Court in Delhi Transport Corpn V/s Sarla Verma does not apply to the labour class people and it is applicable only to the permanent employees of the salaried class people. Therefore the

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calculation of the 50% additional income is not proper and liable to be set aside.

d) The compensation awarded by the tribunal is excessive, exorbitant and without due application of mind.

e) The Judgment and award passed by the tribunal is contrary to law, weight of evidence and in all probabilities of the case, hence liable to be set aside.

f) The Tribunal passed the judgment and award mechanically without proper application of mind.

g) The impugned judgment and award suffers from other factual and legal infirmities which will be pointed out at the time of hearing."

5. The claimants have also filed cross-objection

seeking for enhancement of compensation on the following

grounds:

"5. That, the Judgment and award passed by Court below insofar as it relates to the quantum of compensation is contrary to law and facts of the case.

6. That, the Tribunal has erred in awarding a Compensation of Rs.6,48,000/- towards loss of dependency by considering Rs.3,000/- as monthly income of deceased and deducted 1/4 as his personal expenses even he was earning Rs. 4,000/- p.m. and produced the salary certificate. Therefore the compensation awarded is liable to be enhanced.

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7. That, the Tribunal has awarded Rs.15,000/- towards loss of estate which on Lower side. Therefore the judgment and award liable to be enhanced.

8. That, the Tribunal has awarded compensation of Rs.15,000/- towards for loss of love and affection and Rs. 15,000/- towards loss of estate which are on lower side. Therefore the judgment and award liable to be enhanced.

9. The Tribunal awarded the compensation of Rs.15,000/- towards funeral expenses which is on lower side.

10. That, the Tribunal has to be awarded interest at 6% p.a. only which is on Lower side.

11. That notice of appeal has served on 2-6-12 hence Cross objection filed in time."

6. Reiterating the grounds urged in the appeal

memorandum, Sri.G.N.Raichur, learned counsel for the

Insurance Company vehemently contended that as could

be seen from Ex.R.1, the contents of Ex.R.1 would only

make it clear that it is an act only policy and therefore the

Tribunal erred in fastening the liability by ordering to pay

compensation and recover the same from the owner.

7. He also pointed out that the deceased being a

hamali, ought not to have travelled in the tipper as he was

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not supposed to travel in the tipper and therefore the

Insurance Company is not liable to pay the compensation.

8. Per contra, Sri.Hanumanth R Latur, learned

counsel for the claimants while supporting the impugned

judgment and award, contended that the compensation

amount awarded by the Tribunal is incorrect and in fact

the Tribunal has taken income as Rs.3,000/- as against

Rs.5,000/- for the year 2009 and so also, the Tribunal

failed to consider grant of compensation on account of loss

of consortium for the dependants.

9. In view of the rival contentions, this Court

perused the material on record meticulously. Having

perused the material on record, the following points would

arise for consideration:

i. Whether the Insurance Company has made out a case for fastening the entire liability on the owner of the tipper?

ii. Whether the claimants have made out a case for enhanced compensation?

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iii. Whether the impugned judgment and award are suffering from legal infirmity and thus call for interference?

          iv.     What order?


Reg. Points No.1 to 3:

10. In the case on hand, having regard to the

documentary evidence placed on record especially the

certified copy of the FIR, complaint, postmortem report,

spot mahazar and IMV report, the accident stands

established. Admittedly, the deceased was travelling in the

offending vehicle as a hamali. The driver possessed valid

driving licence at the time of accident. Therefore, the only

point that would now arise for consideration is whether the

Insurance Company is not liable to pay the compensation

having regard to the fact that Ex.R.1 is only an act only

policy.

11. On perusal of Ex.R.1, it is seen that in respect

of employer No.2, additional premium of Rs.50/- is

charged and it is been paid by the owner. Therefore, the

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contention of Insurance Company that the deceased

cannot be treated as a regular passenger in the tipper and

therefore he is not covered by the policy cannot be

countenanced in law.

12. Further, Insurance Company has also taken a

contention that since it is a tipper, hamali was not

supposed to travel in the tipper. No such contention was

taken by the Insurance Company before the Tribunal.

Even otherwise, along with the goods one hamali is

entitled to travel in the tipper. Having regard to the fact

that a sum of Rs.50/- is charged as additional premium

covering employer No.2, the contention of Insurance

Company that the deceased could not have travelled in the

tipper cannot be countenanced in law. Accordingly, point

No.1 is answered in negative.

13. As far as points No.2 and 3 are concerned, the

Tribunal has awarded a compensation of Rs.7,14,500/-

along with interest at 6% p.a. Taking note of the fact that

income that has to be taken for the year 2009 is a sum of

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Rs.5,000/-, the compensation on the head of loss of

dependency has to be reworked as under:

Rs.5,000/- (income) + Rs.2,000 (40% addition) =

Rs.7,000 x 12 (months) x 3/4th (deduction towards

personal expenses of deceased) x 16 (multiplier) =

Rs.1,00,8000/-

14. Further, Rs.15,000/- is awarded by the Tribunal

towards loss of consortium. Following the dictum of the

Hon'ble Apex Court in the case of United India

Insurance Company Limited vs. Satinder Kaur alias

Satwinder Kaur and Others reported in AIR 2020 SC

3076 and Magma General Insurance Company

Limited vs. Nanu Ram and Others reported in 2018

ACJ 2782, the claimants are entitled for Rs.40,000/- each

towards loss of consortium. Therefore, the compensation

has to be reassessed as under:

       Loss of dependency                   Rs.1,00,8000/-
       Loss of consortium                    Rs.2,40,000/-
       Rs.40,000 x 6
       Funeral expenses                          Rs.15,000/-
       Loss of estate                            Rs.15,000/-
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         Medical expenses                 Rs.6,500/-
                               Total Rs.12,84,500/-

15. Hence, as against Rs.7,14,500/- awarded by

the Tribunal, the claimants are entitled to Rs.12,84,500/-

with interest at 6% p.a. Accordingly, points No.2 and 3 are

answered partly in affirmative. To the above extent, the

impugned judgment and award needs to be modified.

Reg. point No.4:

16. In view of the findings of this Court on points

No.1 to 3, following order is passed: