Karnataka High Court

The Divisional Manager vs Smt.Gayatri W/O Santosh Kurani on 9 January, 2024

Author: V.Srishananda

Bench: V.Srishananda

                                                    -1-
                                                              NC: 2024:KHC-D:476
                                                           MFA No. 101466 of 2018
                                              C/W MFA No. 100891 of 2019, MFA No.
                                                                   100845 of 2022




                             IN THE HIGH COURT OF KARNATAKA, DHARWAD
                                                  BENCH

                              DATED THIS THE 9TH DAY OF JANUARY, 2024

                                                 BEFORE
                               THE HON'BLE MR JUSTICE V.SRISHANANDA
                         MISCELLANEOUS FIRST APPEAL NO.101466 OF 2018 (MV-D)
                                                   C/W
                              MISCELLANEOUS FIRST APPEAL NO.100891 OF 2019
                              MISCELLANEOUS FIRST APPEAL NO.100845 OF 2022


                        IN M. F. A. NO.101466 OF 2018
                        BETWEEN:

                        THE DIVISIONAL MANAGER,
                        ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LTD.,
                        1A AND 4A STAR TOWER,
                        2ND FLOOR, PANCH BUNGALOW,
                        SHAHAPURI, KOLHAPUR
                        NOW REPRESENTED BY ITS AUTHORIZED SIGNATORY.
           Digitally
           signed by
           BHARATHI                                                    ...APPELLANT
BHARATHI   HM
HM         Date:        (BY SRI. S.K. KAYAKAMATH, ADVOCATE)
           2024.01.27
           10:40:38
           +0530        AND:

                        1.   SMT.GAYATRI W/O. SANTOSH KURANI,
                             AGE: 29 YEARS, OCC: HOUSEHOLD WORK,
                             R/O: BELLAD BAGEWADI, TALUK. HUKKERI,
                             DIST. BELAGAVI-591309.

                        2.   KUMARI. SANIKA D/O. SANTOSH KURANI,
                             AGE:11 YEARS, OCC: STUDENT,
                             R/O: BELLAD BAGEWADI, TALUK. HUKKERI,
                             DIST. BELAGAVI-591309.
                               -2-
                                        NC: 2024:KHC-D:476
                                    MFA No. 101466 of 2018
                       C/W MFA No. 100891 of 2019, MFA No.
                                            100845 of 2022


3.    KUMAR. PUNITKUMAR S/O. SANTOSH KURANI,
      AGE:9 YEARS, OCC: STUDENT,
      R/O: BELALD BAGEWADI, TALUK.HUKKERI,
      DSIT. BELAGAVI-591309.

      THE RESPODENT NO. 2 AND 3 ARE
      MINORS AND ARE BEING REPRESENTED
      BY THEIR M/G MOTHER RESPONDENT NO.1

4.    SMT. PUTHALAWWA W/O. HOOVAPPA KURANI,
      AGE: 51 YEARS, OCC: HOUSEHOLD WORK,
      R/O: BELLAD BAGEWADI, TALUK.HUKKERI,
      DIST. BELAGAVI-591309.

5.    SRI. HOOVAPPA S/O. RAMA KURANI,

      IS ALREADY DEAD AND HIS LR'S NAMELY
      RESPONDENTS NO. 1 TO 4 ARE
      ALREADY ON RECORD.

6.    SRI. RAMAPPA S/O. MAHENDRA GARADE,
      AGE: 32 YEARS, OCC. BUSINESS,
      R/O: HANCHINAL, POST. KARAGOAN,
      TALUK: CHIKKODI, DIST. BELAGAVI-591201.

                                                ...RESPONDENTS

(BY    SRI. SANTOSH S.HATTIKATAGI, ADVOCATE FOR R1;
       R2 AND R3 MINORS REP. BY R1;
       R4 SERVED,
       R5 DECEASED REP. BY R1 - R4;
       SRI. SANTOSH B.MALAGOUDAR, ADVOCATE FOR R6)

      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173 (1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE
JUDGMENT AND AWARD DATED 02.12.2017 PASSED IN MVC
NO.2533/2016 ON THE FILE OF THE VI ADDITIONAL DISTRICT AND
SESSIONS JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL,     BELAGAVI,    AWARDING    COMPENSATION     OF
Rs.12,75,127/- WITH INTEREST AT 6% P.A. FROM THE DATE OF
PETITION TILL ITS REALISATION.
                               -3-
                                      NC: 2024:KHC-D:476
                                    MFA No. 101466 of 2018
                       C/W MFA No. 100891 of 2019, MFA No.
                                            100845 of 2022


IN M. F. A. NO.100891 OF 2019
BETWEEN:

THE DIVISIONAL MANAGER,
M/S. ROYAL SUNDARAM ALLIANCE INSURANCE COM. LTD.,
1A AND 4A STAR TOWER,
2ND FLOOR, PANCH BUNGALOW,
SHAHAPURI, KOLHAPUR,
NOW REPRESENTED BY ITS AUTHORIZED SIGNATORY.

                                                  ...APPELLANT
(BY SRI. S.K. KAYAKAMATH, ADVOCATE)

AND:

1.    SRI. SASHIKANT SHIVARUDRA HADADI,
      AGE: 33 YEARS, OCC: PRIVATE SERVICE,
      R/O: BELLAD BAGEWADI, TALUK: HUKKERI,
      DIST: BELAGAVI-590001.

2.    SRI. RAMAPPA MAHENDRA GARDALE,
      AGE: 33 YEARS, OCC: BUSINESS,
      R/O: HANCHINAL, POST: KARAGAON,
      TALUK: CHIKKODI, DIST: BELAGAVI-590001.

3.    SRI. MAHANTESH BASAPPA HUNASI,
      AGE: 31 YEARS, OCC: AGRICULTURE,
      R/O: SHRIDHAN, TALUK: HUKKERI,
      DIST: BELAGAVI-590001.
                                                ...RESPONDENTS

(BY    SRI. SANTOSH B.MALAGOUDAR, ADVOCATE FOR R2;
       SMT. SUNANDA P.PATIL, ADVOCATE FOR R3;
       R1 SERVED)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173 (1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE
JUDGMENT AND AWARD DATED 27.12.2018 PASSED IN MVC
NO.2532/2016 ON THE FILE OF THE VI ADDITIONAL DISTRICT AND
SESSIONS JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, BELAGAVI, AWARDING COMPENSATION OF Rs.2,58,716/-
WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL ITS
REALISATION.
                                -4-
                                       NC: 2024:KHC-D:476
                                     MFA No. 101466 of 2018
                        C/W MFA No. 100891 of 2019, MFA No.
                                             100845 of 2022


IN M. F. A. NO.100845 OF 2022
BETWEEN:
1. SMT. GAYATRI W/O. SANTOSH KURANI,
    AGE: 34 YEARS, OCC: HOUSEHOLD WORK,
    R/O: BELLAD BAGEWADI, TQ. HUKKERI,
    DIST. BELAGAVI-591302.
2.   KUMARI. SANIKA D/O. SANTOSH KURANI,
     AGE: 16 YEARS, OCC: STUDENT,
     R/O: BELLAD BAGEWADI, TQ. HUKKERI,
     DIST. BELAGAVI-591302.
3.   KUMAR. PUNITKUMAR S/O. SANTOSH KURANI,
     AGE: 14 YEARS, OCC: STUDENT,
     R/O: BELALD BAGEWADI, TQ.HUKKERI,
     DSIT. BELAGAVI-591302.
     THE RESPODENT NO. 2 AND 3 ARE
     MINORS REPRESENTED BY THEIR
     M/G. NATURAL MOTHER APPELLANT NO.1
4.   SMT. PUTHALAWWA W/O. HOOVAPPA KURANI,
     AGE: 56 YEARS, OCC: HOUSEHOLD WORK,
     R/O: BELLAD BAGEWADI, TQ.HUKKERI,
     DIST. BELAGAVI-591302.
                                                   ...APPELLANTS
(BY SRI. SANTOSH S. HATTIKATAGI, ADVOCATE)
AND:
1. SRI. RAMAPPA S/O. MAHENDRA GARDALE,
   AGE: 38 YEARS, OCC: BUSINESS,
   R/O: HANCHINAL, POST: KARAGAON,
   TQ: CHIKKDOI, DIST: BELAGAVI-591307.

2.  THE DIVISIONAL MANAGER,
    ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LTD.,
    1A AND 4A STAR TOWER, 2ND FLOOR, PANCH BUNGALOW,
    SHAHAPURI-416001.
                                             ...RESPONDENTS
(BY SRI. S.K. KAYAKAMATH, ADVOCATE FOR R2;
     SRI. SANTOSH B.MALAGOUDAR, ADVOCATE FOR R1-R2)

      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173
(1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD
DATED 02.12.2017 PASSED IN MVC NO.2533/2017 ON THE FILE OF THE VI
ADDITIONAL DISTRICT AND SESSIONS JUDGE AND ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
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                                        NC: 2024:KHC-D:476
                                      MFA No. 101466 of 2018
                         C/W MFA No. 100891 of 2019, MFA No.
                                              100845 of 2022


    THESE MISCELLANEOUS FIRST APPEALS, COMING ON FOR
ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:


                          JUDGMENT

Though the matter is listed for orders, with the

consent of the parties, matter is taken up for final

disposal.

2. Heard learned counsel Sri.S.K.Kayakmath and

Sri.Santosh S. Hattikatagi, Sri.Santosh B.Malagoudar and

Smt.Sunanda P. Patil.

3. Appeals in MFA No.101466/2018 is filed by the

insurance company of the offending tractor and MFA

No.100891/2019 is filed by the insurance company as

against the grant of compensation and fastening the

liability insofar as the injured pillion rider.

4. Appeal in MFA No.100845/2022 is filed by the

dependents of the deceased seeking enhancement of

compensation.

5. Brief facts which are necessary for disposal of claim

petition are as under:

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C/W MFA No. 100891 of 2019, MFA No. 100845 of 2022

5.1 In respect of road traffic accident that occurred on

23.01.2016 at 7 p.m involving motorcycle bearing No.KA-

25/U-1689 and tractor and trailer unit bearing No.KA-

23/TC-1752, KA-49/TR007536/2015-16, two claim

petitions came to be filed by the claimants.

5.2 While claim petition in MVC No.2533/2016 is filed by

the dependants of Sri.Santosh Hoovappa Kurani who was

the rider of vehicle bearing No.KA-25/U-1689 and died on

account of accidental injuries; claim petition in MVC

No.2532/2016 is filed by Shashikanth Shivarudrappa

Hadadi who is injured in the very same accident being

pillion rider of motorcycle.

5.3 In respect of the accident, complaint came to be filed

and Police after through investigation filed charge sheet

against the driver of the tractor and trailer unit.

5.4 The claim petitions were resisted by the insurance

company of the tractor trailer unit by filing necessary

written statement.

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C/W MFA No. 100891 of 2019, MFA No. 100845 of 2022

5.5 Tribunal after raising necessary issues in both the

cases, recorded the evidence of the parties and heard

arguments. Thereafter allowed the claim petitions in part.

5.6 The pillion rider has not questioned the quantum of

compensation awarded in MVC No.2532/2016 and it is

only the insurance company which has questioned the

validity of the award in fastening the liability.

6. Learned counsel Sri.S.K.Kayakmath for the appellant-

insurance company contended that the driver of the

tractor trailer unit did not possess valid driving license and

therefore, insurance company is not liable for the payment

of compensation.

7. Whereas, Sri.Santosh B. Malagouder, counsel

representing the owner of the tractor trailer unit has

drawn the attention of this court to the Ex.P4 which is the

driving license of the driver of the tractor trailer unit and

contended that the driver had valid driving license at the

time of accident and tractor trailer unit was duly insured

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C/W MFA No. 100891 of 2019, MFA No. 100845 of 2022

and therefore liability fastened on the insurance company

is just and proper.

8. Learned counsel Sri.S.K.Kayakmath also contended

that since the rider of the motorcycle who is deceased did

not possess valid driving license to ride the motor cycle

and motorcycle was also not insured, some amount of

contributory negligence is attributed to the rider of the

motorcycle and requests the court to assess the same at

50%.

9. Learned counsel Sri.Santosh S. Hattikatagi

representing the claimants of the deceased, however,

opposed the said submission of Sri.S.K.Kayakmath by

contending that the rider of the motorcycle though did not

possess driving license, 50% contributory negligence is

not to be attributed to him and only 10% need to be

attributed.

NC: 2024:KHC-D:476

C/W MFA No. 100891 of 2019, MFA No. 100845 of 2022

10. Smt.Sunanda P.Patil who is appearing for the owner

of the motorcycle supported the argument of the learned

counsel Sri.Santosh S Hattikatagi.

11. In view of the rival contentions of the parties, this

court has perused the material available on record

meticulously.

12. On such perusal of the material on record, the

accident involving motorcycle and tractor trailer unit

referred supra is established by placing necessary oral and

documentary evidence on record.

13. Admittedly, driver of the tractor trailer unit has been

charge sheeted by the Police. The driver of the tractor

trailer unit did possess valid driving license as is found in

Ex.R4. Therefore, tribunal assessing the quantum of

compensation and directing the insurance company of the

tractor trailer unit to pay the compensation is just and

proper.

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C/W MFA No. 100891 of 2019, MFA No. 100845 of 2022

14. Sri.Santosh S. Hattikatagi, learned counsel for the

claimants sought for enhancement of the compensation in

MFA No.100845/2022.

15. Learned counsel Sri.S.K.Kayakmath also questioned

the quantum of compensation.

16. Taking note of the fact that the rider of the

motorcycle who died in the road traffic accident namely

Santosh Hoovappa Kurani did not possess valid driving

license to ride the motorcycle involved in the accident and

motorcycle was not insured, there is a sufficient force in

the argument put forth by the learned counsel

Sri.S.K.Kayakmath that some amount of contributory

negligence is to be attributed to the rider of the

motorcycle.

17. Therefore, having regard to the nature of the accident

and taking note of the fact that the tractor trailer unit has

been charge sheeted, attributing the contributory

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C/W MFA No. 100891 of 2019, MFA No. 100845 of 2022

negligence to the extent of 25% to the rider of the

motorcycle would meet the ends of justice.

18. Insofar as the quantum of compensation is

concerned, having regard to the fact that the accident has

occurred in the year 2016, the monthly income ought to

have been assessed at Rs.8,750/- in the absence of proof

of monthly income as against the sum of Rs.8,000/-

calculated by the learned trial judge in the tribunal.

19. So also, dependants would be entitled for a sum of

Rs.40,000/- each towards loss of filial consortium as per

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.

20. On the question of conventional heads and other

aspects also the claimants are entitled for enhancement of

compensation.

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C/W MFA No. 100891 of 2019, MFA No. 100845 of 2022

21. Therefore, need has arisen to reassess the quantum

of compensation which is reassessed as under:

Sl.No. Name of heads Amount(Rs.) 1 Loss of dependency 17,64,000-00 (Rs.8750+3500 (40% of 8750) =12250x3/4x12x16) 2 Loss of filial consortium 2,00,000-00 3 Loss of estate and funeral 30,000-00 expenses 4 Medical expenses 53,127-00 Total 20,47,127-00 Less 25% contributory 5,11,782-00 negligence amount to Rs.

Total 15,35,345-00

22. Out of the said compensation, 25% of compensation

is to be deducted as 25% of contributory negligence is

attributed to the rider of the motorcycle. Accordingly, the

claimants in MVC No.2533/2016 are entitled to 75% of

sum of Rs.15,35,345/- with interest at 6% p.a. from the

date of petition till realization of entire award amount.