Karnataka High Court
M/S The United India Insurance Company ... vs Laxmi And Ors on 26 June, 2024
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MFA No. 201656 of 2021
C/W MFA No. 200531 of 2022
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 26TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
MISCL. FIRST APPEAL NO. 201656 OF 2021 (MV-D)
C/W
MISCL. FIRST APPEAL NO. 200531 OF 2022(MV-D)
IN M.F.A NO.201656 OF 2021
BETWEEN:
1. SMT. LAXMI
W/O LATE MAHADAYYA,
AGE: 50 YEARS, OCC: HOUSEHOLD,
R/O H.NO. 3/251, ALLAMPRABHU NAGAR,
CHITTA CROSS, NEAR GUMPA,
BIDAR - 585 401.
Digitally signed by
BASALINGAPPA
SHIVARAJ
DHUTTARGAON
2. ADARSH KUMAR
Location: HIGH S/O LATE MAHADAYYA,
COURT OF
KARNATAKA AGE: 31 YEARS, OCC: STUDENT,
R/O VILLAGE KOUTH-B, TQ. AURAD,
NOW RESIDING AT H.NO. 3/251,
ALLAMPRABHU NAGAR, CHITTA CROSS,
NEAR GUMPA, BIDAR- 585 401.
3. ANAND KUMAR
S/O LATE MAHADAYYA
AGE: 30 YEARS,OCC: STUDENT,
4. AKASH KUMAR
S/O LATE MAHADAYYA
AGE: 28 YEARS, OCC: STUDENT,
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MFA No. 201656 of 2021
C/W MFA No. 200531 of 2022
5. ASHWINI
D/O LATE MAHADAYYA
AGE: 25 YEARS, OCC: STUDENT,
APPELLANTS NO.3 TO 5 R/O H.NO.36A,
VILLAGE KOUTH-B, TQ. AURAD,
NOW RESIDING AT H.NO. 3/251,
ALLAMPRABHU NAGAR,CHITTA CROSS,
NEAR GUMPA, BIDAR- 585 401.
...APPELLANTS
(BY SRI. BASAVARAJ R. MATH, ADVOCATE)
AND:
1. SRI. BALAJI BORE WELLS
REP. BY ITS PROP,
SHASHI KUMAR, H.NO.11 AND 12, 2ND MAIN,
3RD CROSS, CHAMRAJPET, BENGALURU- 560 018,
(OWNER OF BORE WELL LORRY BEARING REGN.
NO.KA.01/MK-5879)
2. M/S UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE 171800,
146/N, IIND FLOOR,
KUMAR COMPLEX ANNA SALAI,
TIRUCHENGUDA NAMAKKAL TAMIL NADU,
REPRESENTED BY BRANCH MANAGER,
UNITED INDIA INSURANCE CO.LTD.,
BRANCH OFFICE BIDAR -585 401.
(VIDE POLICY NO.1718003117P105035548
VALID FROM 05.07.2017 TO 04.07.2018)
...RESPONDENTS
(BY SRI. J. AUGUSTIN, ADVOCATE FOR R2;
NOTICE TO R1 DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO CALL FOR RECORDS AND MODIFY THE IMPUGNED
JUDGMENT AND AWARD DATED 09.07.2021 PASSED BY THE II
ADDL. SENIOR CIVIL JUDGE JMFC, AND MACT, AT BIDAR, IN
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MFA No. 201656 of 2021
C/W MFA No. 200531 of 2022
MVC NO.502/2018, IN THE INTEREST OF JUSTICE AND
EQUITY.
IN M.F.A NO.200531 OF 2022
BETWEEN:
M/S UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE, 2ND FLOOR,
KUMAR COMPLEX, ANNA SALAI,
TIRUCHENGODE, NAMAKKAL, TAMIL NADU,
REPRESENTED BY BRANCH MANAGER,
THE UNITED INDIA INSURANCE CO.LTD.,
BRANCH OFFICE BIDAR,
NOW THROUGH ITS AUTHORISED SIGNATORY,
DIVISIONAL OFFICE, OPP. SANGAM TALKIES,
SUPER MARKET, KALABURAGI-585101.
...APPELLANT
(BY SRI. J. AUGUSTIN, ADVOCATE)
AND:
1. SMT. LAXMI
W/O LATE MAHADAYYA,
AGE: 51 YEARS, OCC: HOUSEHOLD,
R/O H.NO. 3/251, ALLAMPRABHU NAGAR,
CHITTA CROSS, NEAR GUMPA,
BIDAR - 585 403.
2. ADARSH KUMAR
S/O LATE MAHADAYYA,
AGE: 32 YEARS, OCC: STUDENT,
R/O VILLAGE KOUTH-B, TQ. AURAD,
NOW RESIDING AT H.NO. 3/251,
ALLAMPRABHU NAGAR, CHITTA CROSS,
NEAR GUMPA, BIDAR- 585 403.
3. ANAND KUMAR
S/O LATE MAHADAYYA
AGE: 31 YEARS,OCC: STUDENT,
R/O H.NO.36 A VILLAGE KOUTHA-B, TQ.AURAD,
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MFA No. 201656 of 2021
C/W MFA No. 200531 of 2022
NOW RESIDING AT H.NO.3/251,
ALLAMPRABHU NAGAR, CHITTA CROSS,
NEAR GUMPA, BIDAR-585 403.
4. AKASH KUMAR
S/O LATE MAHADAYYA
AGE: 29 YEARS, OCC: STUDENT,
R/O H.NO.36 A VILLAGE KOUTHA-B, TQ. AURAD,
NOW RESIDING AT H.NO.3/251,
ALLAMPRABHU NAGAR, CHITTA CROSS,
NEAR GUMPA, BIDAR-585 403.
5. ASHWINI
D/O LATE MAHADAYYA
AGE: 26 YEARS, OCC: STUDENT,
R/O H.NO.36 A VILLAGE KOUTHA-B, TQ. AURAD,
NOW RESIDING AT H.NO.3/251,
ALLAMPRABHU NAGAR, CHITTA CROSS,
NEAR GUMPA, BIDAR-585 403.
...RESPONDENTS
(BY SRI. BASAVARAJ R. MATH, ADV. FOR R1 TO R5)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED
09.07.2021 PASSED IN M.V.C NO.502/2018 BY THE II ADDL.
SENIOR CIVIL JUDGE AND JMFC AND MACT AT BIDAR
REDUCING THE QUANTUM OF COMPENSATION. PASS ANY
SUCH ORDER THAT THIS HON'BLE Court DEEMS FIT UNDER
THE FACTS AND CIRCUMSTANCES OF THE CASE IN THE
INTEREST OF JUSTICE AND EQUITY.
THESE APPEAL, COMING ON FOR ADMISSION, THIS DAY
RAJESH RAI K J., DELIVERED THE FOLLOWING:
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MFA No. 201656 of 2021
C/W MFA No. 200531 of 2022
JUDGMENT
These two Miscellaneous First Appeals are directed
against the judgment and award passed in
M.V.C.No.502/2018 dated 09.07.2021 passed by the Court
of II Additional Senior Civil Judge and JMFC - Bidar and
MACT, at Bidar, (hereinafter referred to as 'the Tribunal')
wherein, the Tribunal allowed the claim petition in part
filed by the claimants in MFA No.201656/2021 and MFA
No.200531/2022 by awarding compensation of
Rs.27,50,408/- along with interest at the rate of 6% per
annum from the date of petition till its realization. Further
directed that, respondent Nos.1 and 2 are jointly and
severally liable to pay the aforesaid compensation amount.
2. For the sake of convenience, parties are
referred to as per their ranking before the Tribunal.
3. The facts giving rise to the filing of the appeal
briefly stated are that:
The deceased in this case i.e., Mahadayya was a
Government servant working as Junior Assistant in
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Karnataka Industrial Areas Development Board, Bidar (for
short 'KIADB') and residing with his family in
Allamaprabhu Nagar near Gumpa, Bidar. On 07.06.2019,
the deceased left his house in the morning hour for
attending his duty in the office of KIADB Naubad, Bidar
and after completing his duty at about 7:40 p.m. while he
was returning back towards his house on his motorcycle
bearing Registration No.KA-38/K-9055, near Diamond
College Naubad on KIADB Basaveshwar Chowk road, the
driver of the Bore well lorry bearing Registration No.KA-
01/MK-5879 came driving the lorry in a high speed and in
a rash and negligent manner from back side of the
deceased and dashed to the motorcycle of the deceased.
Due to which, the deceased fell down on the road and
succumbed to the injuries. Subsequently, the jurisdictional
Police filed FIR in Crime No.70/2018 against the driver of
the offending vehicle i.e., the Bore Well lorry bearing
Registration No.KA-01/MK-5879 for the offences
punishable under Sections 279 and 304(A) of IPC and filed
charge sheet in the said case. Hence, the legal
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representatives of the deceased Mahadayya filed the claim
petition before the Tribunal.
4. In pursuance of the notice by the Tribunal, the
respondent No.1 i.e., owner of the offending vehicle
remained absent and as such he placed ex-parte.
However, respondent No.2/Insurance Company appeared
through its counsel and filed the written statement by
denying the averments made in the claim petition.
5. On the basis of pleadings, the Tribunal framed
relevant issues for consideration. In order to substantiate
the issues and to establish the case, claimant No.1 herself
got examined as PW.1 and got marked 10 documents as
per Exs.P1 to P10. On the other hand, the Insurance
Company neither examined any witness nor got marked
any documents on its behalf.
6. After assessment of oral and documentary
evidence, the Tribunal allowed the claim petition in part
and awarded the compensation as stated supra. The said
judgment and award is challenged by the claimants in MFA
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No.201656/2021 for enhancement of the compensation
and the Insurance Company i.e., respondent No.2 before
the Tribunal also challenged on the ground that the driver
of the offending vehicle was not possessing a valid driving
license at the time of accident. As such, he prayed to set-
aside the judgment and award passed in
M.V.C.No.502/2018.
7. We have heard the learned counsel Sri
Basavaraj R Math for appellants in MFA No.201656 and for
respondent Nos.1 to 5 in MFA No.200531/2022 and
learned counsel Sri J. Augustin for appellant in MFA
No.200531/2022 and for respondent No.2/Insurance
Company in MFA No.201656/2021 and also perused the
documents made available before us. .
8. It is the primary contention of the learned
counsel for the claimants that the Tribunal erred while
granting the compensation without properly considering
the income of the deceased so also on the other heads.
Accordingly, he prays to allow the appeal.
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9. Per contra, learned counsel for the Insurance
Company submits that the Tribunal erred while granting
compensation on the head of loss of dependency of
Rs.25,35,408/- by considering the gross salary of the
deceased without deducting the income tax and
professional tax. He would also contend that the driver of
the offending vehicle had not possessing a valid driving
license at the time of accident and the Tribunal failed to
frame the issues on that regard. A extract of the driving
license obtained from the RTO confirmed that the driving
license of the offending vehicle was expired on 22.07.2016
and it was renewed on 16.08.2019 since the accident took
place on 07.06.2019, he had no such valid driving license.
Hence, according to him, the award is liable to be set-
aside. Accordingly, he prays to allow the appeal filed by
the Insurance Company.
10. Having heard the learned counsel for the parties
so also having perused the records made available before
us, the only point that would arise for our consideration is:
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"Whether the Tribunal is justified in
passing the impugned judgment and award?"
11. As could be seen from records, the accident in
question and so also the coverage of insurance policy to
the offending vehicle by the second respondent is not in
dispute in this case. Even otherwise to prove the accident,
the jurisdictional Police registered the FIR against the
offending vehicle and laid the charge sheet against him. In
such circumstance, it is clear that due to the negligent
driving of the offending vehicle, the accident in question
occurred. Though, the learned counsel for the Insurance
Company vehemently contends that the driving license
was not in force at the time of accident. On careful perusal
of the evidence and the law laid down by the Hon'ble Apex
Court in the case of Sudhir Kumar Rana v. Surinder
Singh and Others reported in (2008) 12 SCC 436,
wherein it is held that, though driving a vehicle without a
license is an offence, but the same, by itself, may not lead
to a finding of negligence as regards the accident. The
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said law laid down by the Hon'ble Apex Court is followed
by the Co-ordinate Bench of this Court in the case of
Shivamma and Others vs. Sri. Govindu Malothu and
Another in MFA No.200157/2019. Hence, applying the
law laid down by the Hon'ble Apex Court which is followed
by the Co-ordinate Bench of this Court, we are of the
considered view that the arguments advanced by the
learned counsel for the Insurance Company in respect of
not possessing the driving license by the offending vehicle
is liable to be rejected. Nevertheless, the Insurance
Company failed to produce the driving license of the driver
of the offending vehicle before the Tribunal in spite of
granting sufficient opportunities to place the same. After
filing of this appeal, the appellant/Insurance Company
filed an application under Order 41 Rule 27 of CPC to
produce the driving license by way of additional
documents.
12. We have perused the application filed by the
Insurance Company, the Insurance Company in support of
an application stated that the driver was not having a valid
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and effective driving license as on the date of accident and
the extract of driving license is produced from the RTO and
the Insurance Company came to know about the said fact
after filing the appeal. Hence, the same could not be
produced before the Tribunal and the said document is
necessary to prove the fact that the insured owner of the
vehicle allowed the use of vehicle in violation of the policy
terms and also the provisions of the Motor Vehicles Act.
Hence, prays to allow the application.
13. From perusal of an application, the Insurance
Company has not made out any ingredients of Order 41
Rule 27 of CPC and though the Insurance Company has
filed written statement and respondent has taken defence
in the written statement that the driver of the offending
vehicle was not possessing a valid and effective driving
license. Though, the burden was on the
respondent/Insurance Company, to prove the same, the
Insurance Company has not led oral evidence and not
produced any documents in order to establish that the
driver of the offending vehicle was not possessing a valid
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and effective driving license as on the date of accident and
further, the Insurance Company has not stated that why
the said document was not produced before the Tribunal,
no such explanation is forthcoming in the application.
Hence, requirement of Order 41 Rule 27 of CPC is not
forthcoming in the application. Further, in view of the law
laid down by the Hon'ble Apex Court in the case of N.
Kamalam v. Ayyasamy, (2001) 7 SCC 503, wherein it
is held that, Rule 21 provision of Rule 27 are not designed
to help the parties to patch up a weak points and make up
for omissions earlier made, the jurisdiction of Appellate
Court is restricted to permitting such additional evidence
as would enable it to pronounce judgment.
14. The claim petition was filed in the year 2019
and the appeal was filed in the year 2022. The Insurance
Company has filed the application only with an intention to
fill up a lacuna which is not permissible in law. By applying
the law laid down by the Hon'ble Apex Court in the case of
N. Kamalam case supra, we hold that the Insurance
Company has not made out any grounds to allow the
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application for production of additional evidence. Hence,
the appeal filed by the Insurance Company in MFA
No.200531/2022 is liable to be dismissed.
15. In order to substantiate the claim of the
claimants/petitioners, the deceased was a Junior Assistant
in KIADB and was getting a monthly salary of Rs.33,346/-,
he was aged about 56 years and after deduction of Income
Tax, he was getting a monthly salary of Rs.33,146/-. In
view of the law laid down by the Hon'ble Apex Court in the
case of National Insurance Company Limited vs.
Pranay Sethi and Others reported in AIR 2017 SC
5157, 15% of the future prospects is to be added to the
monthly income. Thus, it comes to Rs.38,118/- (Rs.33,146
+ 15%). Thus, we assess the notional income of the
deceased at Rs.38,118/- per month. Out of which,
considering that there are 5 dependents, 1/4th has to
deducted out of Rs.38,118/-. Thus, it comes to
Rs.28,588/- (Rs.38,118 - 9530). The deceased was aged
about 56 years as on the date of accident, the multiplier of
'9' has to be adopted as per the judgment of the Hon'ble
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Supreme Court in the case of Sarla Verma vs. Delhi
Transport Corporation reported in (2009) 6 SCC 121,
thus, it comes to Rs.30,87,504/- (Rs.28,588 X 12 X 9).
Therefore, the claimants are entitled to a sum of
Rs.30,87,504/- towards loss of dependency.
16. Further, in view of the law laid down by the
Hon'ble Apex Court in the case of Magma General
Insurance Company Limited vs. Nanu Ram Alias
Chuhru Ram & Others reported in (2018) 18 SCC 130,
each claimant is entitled to a sum of Rs.40,000/- towards
loss of consortium. The claimants are five in number,
hence the compensation towards loss of consortium would
be Rs.2,00,000/- (40,000 X 5). In addition, the claimants
are entitled for a sum of Rs.15,000/- towards Funeral
Expenses and Rs.15,000/- towards Transportation
Charges.
17. Thus, in all, the claimants are entitled for a
total compensation of Rs.33,17,504/- as against
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Rs.27,50,408/-. Thus, the claimants are entitled for
enhanced compensation of Rs.5,67,096/-.
18. In view of the above discussion, we proceed to
pass the following:
ORDER
i. The appeal filed by the Insurance
Company in MFA No.200531/2022 is
dismissed.
ii. The appeal by the
claimants/petitioners in MFA
No.201656/2021 is allowed.
iii. The petitioners/claimants are entitled
for enhanced compensation of
Rs.5,67,096/- along with interest at
the rate of 6% per annum from the
date of petition till the date of
realization.
iv. Respondent/Insurance Company is
directed to deposit the enhanced
compensation amount with accrued
interest before the Tribunal within a
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period of eight weeks from date of the
receipt of copy of this judgment.
v. Amount in deposit shall be transmitted
to the Tribunal.
vi. The Registry is directed to transmit
the records to the Tribunal, forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
HKV
CT:BN
