Karnataka High Court

Reshma vs Bharathi Axa General Insurance Company ... on 29 July, 2024

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                                                         NC: 2024:KHC:29797
                                                        MFA No. 802 of 2015




                       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 29TH DAY OF JULY, 2024

                                            BEFORE
                  THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
                  MISCELLANEOUS FIRST APPEAL NO. 802 OF 2015 (MV-D)
                  BETWEEN:

                  1.    RESHMA
                        S/O LATE SALEEM PASHA A,
                        AGED ABOUT 34 YEARS

                  2.    SHAIK AYAN
                        S/O LATE SALEEM PASHA.A
                        AGED ABOUT 13 YEARS

                  3.    ZEENIYA
                        D/O LATE SALEEM PASHA A,
                        AGED ABOUT 9 YEARS

                  4.    SHAIK AYMAN
                        S/O LATE SALEEM PASHA A,
                        AGED ABOUT 9 YEARS,
Digitally signed by
PRAJWAL A
Location: HIGH COURT    THE PETITIONER NOS.2 TO 4 ARE
OF KARNATAKA            MINORS AND THEY ARE REPRESENTED
                        BY THEIR MOTHER RESHMA AS A NATURAL
                        GUARDIAN,

                        ALL ARE RESIDING AT NO. 36/3,
                        MAIN ROAD, GURAPPANAPALYA,
                        BENGALURU 560 029
                                                              ...APPELLANTS
                  (BY MISS. RAKSHA KEETHANA K., ADVOCATE FOR
                      SRI. KEMPARAJU., ADVOCATE)
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                                       NC: 2024:KHC:29797
                                      MFA No. 802 of 2015




AND:

1.   BHARATHI AXA GENERAL INSURANCE
     COMPANY LIMITED,
     NO.2951/A, D-29/1,
     FIRST FLOOR,
     TEMPLE ROAD,
     KALIDASA CIRCLE,
     V.V. MOHALLA,
     MYSORE 570 002

2.   NAYAZ
     S/O SUNEGAR,
     AGED ABOUT MAJOR,
     NO.649, 29/4, 1ST CROSS,
     CARPENTER COLONY, JAYANAGAR,
     BANGALORE 560 059
                                          ...RESPONDENTS
(BY SRI. B.C. SHIVANNE GOWDA, ADVOCATE FOR
    SRI. B. PRADEEP, ADVOCATE FOR R1;
    SRI. A.C. BALARAJ, ADVOCATE FOR R2)

       THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 21.07.2014 PASSED IN MVC
NO.4431/2011 ON THE FILE OF THE XII ADDITIONAL SMALL
CAUSES JUDGE AND MEMBER, MACT, BANGALORE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

       THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,

JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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                                            NC: 2024:KHC:29797
                                         MFA No. 802 of 2015




CORAM:     HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA


                        ORAL JUDGMENT

1. In this appeal, the petitioners have challenged the

judgment and award dated 21.07.2014 passed in

M.V.C.No.4431/2011 on the file of the XII Additional Small

Causes Judge and Member, MACT, Bangalore ('the

Tribunal' for short).

2. The appellants were the petitioners and respondents

were the respondents before the Tribunal. For the sake of

convenience, the rank of the parties shall be referred to as

per their status before the Tribunal.

3. Brief facts of the case are, on 12.03.2011 one Abdul

Saleem Pasha, the deceased, the husband of the 1st

petitioner and father of petitioners 2 to 4 while traveling in

the Cabin as second driver in DCM Van bearing registration

No.KA-05-AA-4594 from Hyderabad to Bangalore, on NH-

7, at 4.30 near Krishna River Bridge at Beehupalli Village,

the DCM Van hit against the lorry bearing Registration

NC: 2024:KHC:29797

No.KA-01-A-5135 from the rear side, due to the impact

the deceased succumbed to death on the spot. The

petitioners have approached the Tribunal seeking

compensation, claim was opposed by the Insurance

Company, the Tribunal after taking evidence and hearing

both the parties by impugned judgment awarded the

following compensation:-

a. Loss of dependency Rs.9,82,800/-

b.    Loss of consortium                        Rs.   10,000/-

 c.   Loss of Love and affection                Rs.   20,000/-

d.    Loss of estate                            Rs. 10,000/-

e.    Transportation of dead body               Rs.   20,000/-
       and funeral expenses

      TOTAL                                     Rs.10,42,800/-

fixing the liability against the owner of the DCM Vehicle

bearing Registration No.KA-05-AA-4594 i.e., 2nd

respondent. Pleading inadequacy and seeking

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enhancement of compensation, the petitioners have filed

this appeal on various grounds.

4. Heard Miss Raksha Keerthana K., learned counsel for

the appellants, Sri B.C. Shivanne Gowda, learned counsel

for Sri B. Pradeep, learned counsel for the 1st respondent

and Sri A.C. Balaraj, learned counsel for the 2nd

respondent.

5. Learned counsel for the petitioners has contended

that the deceased was second Driver in the lorry, earning

Rs.18,000/- per month at the time of accident, but the

Tribunal has taken Rs.6,000/- and awarded lesser

compensation. Lesser compensation is awarded under

conventional heads and sought for enhancement.

6. Per contra, learned counsel for the Insurance

Company has contended that the Tribunal has fastened

the liability against the owner of the vehicle as the policy

is not covering the risk of the second driver. The accident

is of the year 2011, taking into consideration all the

NC: 2024:KHC:29797

relevant factors, the Tribunal has assessed the

compensation and supported the Tribunal's judgment.

7. Learned counsel for the owner of the vehicle has

contended that there is a valid policy in force, he has to be

indemnified by the insurer and sought to fastening the

liability on the Insurance Company to pay the

compensation.

8. I have given my anxious consideration to the

arguments advanced by learned counsel for both the

parties and perused the material on record.

9. There is no dispute as to the relationship between

the petitioners, death of the deceased in the accident in

question and the petitioners are entitled to claim

compensation as dependents.

10. The accident is of the year 2011, Tribunal has taken

the notional income at Rs.6,000/- per month, though it is

claimed that the deceased was the second driver in the

very vehicle, no Driving Licence is placed before the

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Tribunal. Hence the deceased is to be treated as a person

with no proof of income and his monthly notional income

has to be taken at Rs.6,500/- instead of Rs.6,000/- taken

by the Tribunal.

11. In a case of this nature, compensation has to be

determined by following the judgment of the Apex Court

in NATIONAL INSURANCE COMPANY LIMITED vs.

PRANAY SETHI AND OTHERS, reported in (2017) 16

SUPREME COURT CASES 680 and SARLA VERMA

(SMT) AND OTHERS VS. DELHI TRANSPORT

CORPORATION AND ANOTHER reported in (2009) 6

SUPREME COURT CASES 121.

12. There are four dependents, hence 1/4th has to be

deducted towards personal expenses. Since the age of

the deceased was 41 years at the time of accident, the

multiplier to be adopted is '14'. If the deceased is aged

between 40 to 50 years and he has no permanent

avocation 25% is to be considered towards future

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prospects. Applying these factors the loss of dependency

would come to :-

Rs.6,500/- + Rs.1,625/- (25%) = Rs.8,125/- - Rs.2,031

(1/4th) = Rs.6,094/- x 12 x 14 = Rs.10,23,792/-

13. Under conventional heads Rs.15,000/- each is

awarded towards funeral expenses and loss of estate.

Loss of consortium to wife and loss of filial love to the

children Rs.40,000/- each is to be awarded. Since the

accident 12 year old, in view of PRANAY SETHI's case

10% appreciation on conventional heads is to be

considered at Rs.19,000/-. Hence the petitioners are

entitled to compensation as follows:-

a. Loss of dependency Rs.10,23,792/-

b. Loss of consortium/love and Rs. 1,60,000/-

affection c. Towards Funeral expenses Rs. 15,000/-

 d.     Loss of estate                        Rs.     15,000/-

 e.     10%      appreciation             on Rs.    19,000/-
        conventional heads
        TOTAL                                 Rs.12,32,792/-

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       Less compensation                  Rs.10,42,800/-
       awarded by the Tribunal


       Enhanced compensation              Rs.1,89,992/-

       Rounded off to                     Rs.1,90,000/-

This is the just compensation, that the petitioners are

entitled to in the facts and circumstances of the case.

14. Insofar as the liability is concerned, adverting to the

arguments of the learned counsel for the owner to fasten

liability against insurance company, the policy is in force,

but the terms of the policy does not cover the risk of the

second driver or passenger. Even if it is accepted that the

deceased was the second driver there is no statutory

liability to cover the second driver of the vehicle. In the

absence of any evidence to establish that there is a

premium paid for the second driver, Insurance Company

cannot be directed to indemnify the owner of the vehicle.

The Tribunal has rightly fastened the liability against the

owner of the vehicle to pay the compensation. Hence the

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NC: 2024:KHC:29797

owner of the lorry has to pay the compensation. Hence

appeal merits consideration, in the result, the following :-

ORDER

(i) The appeal is allowed in part.

(ii) The impugned judgment and award is modified.

(iii) The petitioners would be entitled to enhanced

compensation of Rs.1,90,000/- together with interest

at 6% p.a. from the date of petition till the date of

deposit.

(iv) The owner of the vehicle is directed to deposit the

compensation within eight weeks from the date of

receipt of the certified copy of this judgment.