Karnataka High Court
Smt Lakshminarasamma vs Sri Dharmaraju on 8 January, 2024
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MFA No. 2400 of 2013
C/W MFA No. 5497 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO. 2400 OF 2013 (MV)
C/W
MISCELLANEOUS FIRST APPEAL NO. 5497 OF 2012 (MV)
IN M.F.A.NO.2400/2013
BETWEEN:
1. SMT. LAKSHMINARASAMMA,
AGED ABOUT 47 YEARS,
W/O LATE N. ASHWATHANARAYANAPPA,
2. SRI. HARISHA H.A.,
AGED ABOUT 30 YEARS,
S/O LATE N. ASHWATHANARAYANAPPA,
BOTH ARE R/AT HIRENAGAVALLI,
Digitally MANDIKAL HOBLI,
signed by
BHARATHI S CHIKKABALLAPURA TALUK & DISTRICT.
Location: ...APPELLANTS
HIGH
COURT OF
KARNATAKA (BY SRI. R. PRAMOD, ADVOCATE)
AND:
1. SRI. DHARMARAJU,
S/O D. PALANISWAMY,
MAJOR,
NO.13, 4TH MAIN ROAD,
R/O NEW THARAGUPET,
BANGALORE - 560 002.
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MFA No. 2400 of 2013
C/W MFA No. 5497 of 2012
2. BAJAJ ALLIANZ GENERAL
INSURANCE CO. LTD.,
NO.27, T.B.R. COMPLEX,
ADJACENT TO BANGALORE
STOCK EXCHANGE AND JAIN COLLEGE,
NEW MISSION ROAD,
BANGALORE.
...RESPONDENTS
(BY SRI. O. MAHESH, ADVOCATE FOR R2;
NOTICE TO R1 DISPENSED WITH VIDE ORDER
DATED 16.07.2015)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 3.4.2012 PASSED IN MVC
NO.4567/2009 ON THE FILE OF THE MEMBER, MACT, VI ADDL.
JUDGE, COURT OF SMALL CAUSES, BANGALORE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A.NO.5497/2012
BETWEEN:
THE SENIOR MANAGER,
BAJAJ ALLIANZ GENERAL
INSURANCE COMPANY LIMITED,
NO.27, T.B.R. COMPLEX,
ADJACENT TO BANGALORE
STOCK EXCHANGE AND JAIN COLLEGE,
NEW MISSION ROAD,
BANGALORE - 560 024.
BY ITS MANAGER.
...APPELLANT
(BY SRI. O.MAHESH, ADVOCATE)
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MFA No. 2400 of 2013
C/W MFA No. 5497 of 2012
AND:
1. SMT. LAKSHMINARASAMMA,
AGED ABOUT 48 YEARS,
W/O LATE N. ASHWATHANARAYANAPPA,
2. HARISHA H.A.,
AGE 31 YEARS,
S/O N. ASHWATHANARAYANAPPA,
BOTH ARE R/AT HIRENAGAVALLI,
MANDIKAL HOBLI,
CHIKKABALLAPURA TALUK
AND DISTRICT - 562 101.
3. SRI. DHARMARAJU,
S/O D. PALANISWAMY,
MAJOR,
NO.13, 4TH MAIN ROAD,
R/O NEW THARAGUPET,
BANGALORE - 560 002.
...RESPONDENTS
(BY SRI. R.PRAMOD, ADVOCATE FOR R1;
NOTICE TO R2 AND R3 HELD SUFFICIENT VIDE ORDER
DATED 20.10.2014)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 3.4.2012 PASSED IN MVC
NO.4567/2009 ON THE FILE OF THE MEMBER, MACT, VI ADDL.
JUDGE, COURT OF SMALL CAUSES, BANGALORE, AWARDING A
COMPENSATION OF RS.8,80,460/- WITH INTEREST @ 6% P.A.
FROM THE DATE OF PETITION TILL REALIZATION.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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MFA No. 2400 of 2013
C/W MFA No. 5497 of 2012
JUDGMENT
M.F.A.No.5497/2012 is filed by the insurer
challenging the finding on liability and
M.F.A.No.2400/2013 is filed by the claimants seeking
enhancement of compensation. In both the appeals, the
judgment and award dated 03.04.2012 passed in M.V.C
No.4567/2009 by the VI Additional Judge, Court of
Small Causes, Bangalore (hereinafter referred to as 'the
Tribunal' for short) is assailed. Hence, both the appeals
are taken up for consideration together .
2. For the sake of convenience, the parties
herein are referred as per their rank before the Tribunal.
3. The relevant facts necessary for the
consideration of the present appeals are that on 28.02.
2009, one N.Ashwathnarayanappa (hereinafter referred
to as 'the deceased' for short) was riding his motorcycle,
when a lorry being driven in a rash and negligent
manner came from behind and hit the motor cycle
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causing the accident in question as a result of which the
rider of the motorcycle succumbed to his injuries.
Claiming compensation for the death of the deceased,
his wife and son filed a claim petition before the
Tribunal.
4. The claim proceedings were contested by the
owner and insurer of the lorry. The claimant No.1 was
examined as PW1. Ex.P1 to Ex.P10 were marked in
evidence. The officer of respondent No.2 - insurer was
examined as RW1. Ex.R1 to Ex.R6 have been marked in
evidence. The Tribunal upon an appreciation of the oral
and documentary evidence on record, allowed the claim
petition and awarded a compensation of Rs.8,80,460/-
together with interest at 6% per annum and held the
respondents jointly and severally liable to pay the
compensation awarded and directed respondent No.2 -
insurer to pay the compensation. Being aggrieved, the
present appeals are filed.
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5. The learned counsel for the insurer contends
that the finding of the Tribunal fastening the liability on
the insurer is erroneous having regard to the fact that
as on the date of the accident, the driver did not have a
valid and effective driving licence to drive the vehicle in
question inasmuch as the driving licence of the driver
did not have the requisite transport endorsement. He
further contends that the quantum of compensation
awarded is on the higher side.
6. Per contra learned counsel for the claimants
justifies the finding of the Tribunal on the aspect of
liability and submits that the quantum of compensation
is required to be enhanced.
7. The arguments of both the learned counsel
have been considered and the records, including the
records of the Tribunal have been perused. The
questions that arise for consideration are:
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(i) Whether the finding of the Tribunal
regarding liability is erroneous and is liable to
be interfered with?
(ii) Whether the compensation awarded
is required to be enhanced?
Re Point No.1:
8. It is forthcoming that the insurer has a
adduced the evidence of its officer as RW1 and Ex.R1 to
Ex.R6 have been marked in evidence. It is forthcoming
from the endorsement issued by the transport
department (Ex.R2) that the driver was issued with the
licence to drive Light Motor Vehicle in (LMV) and
Motorcycle With Gear (MCWG) vide DL
No.3633/2002/TN29 dated 24.05.2002 and was issued
endorsement vide batch No.59761/28.04.2004/829 to
drive Heavy Transport Vehicle (HTV) from 23.03.2005,
which is valid up to 27.04. 2013.
9. It is the vehement contention of the learned
counsel for the appellant that in the translated copy
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(Ex.R3), it is stated that the authorization to drive the
transport weight vehicle was issued on 23.03.2013.
That in any event, the license to drive transport vehicle
is only for a period of three years as per the provisions
of Motor Vehicles Act and hence, the driver of the
vehicle did not have the requisite licence to drive the
vehicle in question.
10. It is relevant to note that Ex.R2 itself
specifically states that the driver was authorized to drive
a heavy transport vehicle from 23.03.2005, which
validity was upto 27.04.2013. It is forthcoming from the
testimony of RW1 that in the examination in chief, it is
sought to be deposed that the transport endorsement is
with effect from 28.04.2010 up to 27.04.2013. The
testimony of RW1 is contrary to the certificate Ex.R2. In
any event, the official of the transport department has
not been examined by the insurer with regard to validity
of the transport endorsement Ex.R2.
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11. The Tribunal has appreciated the said aspect
of the matter and noticed that licence having been
issued on 21.03.2005 and being valid upto 27.04.2013
and the accident having occurred on 28.02.2009, the
finding of the Tribunal holding the insurer liable to pay
the compensation is just and proper and not liable to be
interfered with. Hence point No.1 is answered in the
negative
Re Point No. 2:
12. With regard to the quantum of compensation,
the Tribunal has noticed that the age of the deceased
was 51 years and that the appropriate multiplier is '11'
which is just and proper. The Tribunal while assessing
the income has noticed the salary certificate (Ex.P9),
which stipulates that the gross salary is ` 9,707/-, out
of which the professional tax of `.100/- is deducted.
Hence, the income is assessed at `9,607, which is just
and proper. To the aforesaid amount, 10% has to be
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added on account of future prospects i.e., (9,607+ 10%
=10,567), having regard to the law laid down by the
Constitution Bench of the Hon'ble Supreme Court in
NATIONAL INSURANCE COMPANY LIMITED Vs.
PRANAY SETHI AND OTHERS reported in AIR 2017
SC 5157. Thus, the monthly income is re-assessed to
`10,567/-. 1/3rd is required to be deducted towards
personal expenses. Hence, the monthly dependency is
re-assessed as ` 7,045/- (10567-1/3=7,045). Thus, the
loss of dependency is re-assessed as (7045 x 12 x 11)
` 9,29,940/-.
13. In view of the law laid down by the Hon'ble
Supreme Court in case of MAGMA GENERAL
INSURANCE CO. LTD. Vs. NANU RAM reported in 2018
ACJ 2782, the claimants are entitled to `.40,000/- each
under the head loss of consortium and loss of love and
affection. Thus, the total amount of compensation
under this head is assessed at ` 80,000/-. In addition,
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the claimants are entitled to ` 15,000/- each towards
loss of estate and funeral expenses.
14. Hence, the quantum of compensation is re-
assessed as follows:
Sl. Heads Amount awarded Amount awarded
No. by the Tribunal (`) by this Court (`)
1. Loss of dependency 845460.00 929940.00
2. Loss of love and 20000.00 80000.00
affection and Loss
of Consortium
3. Funeral expenses 15000.00 30000.00
Total 880460.00 1039940.00
15. Hence, the appellants/claimants are entitled
for enhanced compensation of ` 1,59,480/- (`10,39,940
- ` 8,80,460) together with interest at 6% p.a.
16. In view of the aforementioned, the following:
ORDER
i) The appeals are allowed in part;
ii) The judgment and award dated
03.04.2012 passed in M.V.C
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No.4567/2009 by the VI Additional
Judge, Court of Small Causes,
Bangalore, is modified to the extent
stated herein.
iii) The appellant/claimant is entitled to
enhanced compensation of
`1,59,480/- with interest at 6% per
annum from the date of petition till its
realization in addition to the
compensation awarded by the
Tribunal.
iv) Respondent No.2 - Insurance
Company is directed to deposit the
said compensation together with
accrued interest within a period of
eight weeks from the date of receipt of
a copy of this judgment;
v) After deposit, the entire enhanced
compensation with accrued interest
shall be disbursed to the Claimant
No.1 / Appellant No.1 in
M.F.A.No.2400/2013;
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vi) The Registry to draw the modified
award accordingly.
vi) No costs.
Sd/-
JUDGE
ss
