Karnataka High Court
The New India Assurance Co Ltd vs Bibi Nafisa on 28 May, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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MFA No. 7683 of 2014
C/W MFA.CROB No. 54 of 2020
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.7683 OF 2014(MV-D)
C/W
MFA CROSS OBJECTION NO. 54 OF 2020 (MV-D)
IN MFA NO.7683 OF 2014
BETWEEN:
THE NEW INDIA ASSURANCE CO LTD.
BRANCH OFFICE, KUNDAPURA.
THROUGH MOTOR THIRD PARTY CLAIMS,
HUB,M.G. ROAD, BANGALORE-560 001,
BY DULY CONSTITUTED ATTORNEY.
...APPELLANT
(BY SRI. C.R RAVI SHANKAR, ADVOCATE FOR
SRI. K. SURYANARAYANA RAO, ADVOCATE)
Digitally AND:
signed by V
KRISHNA
1. BIBI NAFISA,
Location:
High Court of W/O LATE HASSAN SHABBAR MOHTISAM,
Karnataka AGED ABOUT 50 YEARS,
2. AYSHA NAYYARA MOHTISAM
D/O LATE HASSAN SHABBAR MOHTISAM,
AGED ABOUT 29 YEARS.
3. MOHAMMAD SUHAIMI
D/O LATE HASSAN SHABBAR MOHTISAM,
AGED ABOUT 28 YEARS,
ALL ARE RESIDING AT SHIROOR,
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MFA No. 7683 of 2014
C/W MFA.CROB No. 54 of 2020
KUNDAPURA TALUK 576 201.
4. MOHAMMAD MUSTAPA
MAJOR IN AGE,
S/O MOHAMMAD HASSAN,
R/O MOTISHAMA SHEGA,
MUGALI HONDA, HOUSE NO. 131,
BHATKAL. 581 320.
...RESPONDENTS
(BY SRI. NAGARAJA HEGDE, ADVOCATE FOR R1 TO R3)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 11.08.2014
PASSED IN MVC NO.269/2009 ON THE FILE OF THE
ADDITIONAL DISTRICT AND SESSIOS JUDGE, ADDITIONAL
MACT, UDUPI, (SITTING AT KUNDAPURA), KUNDAPURA,
AWARDING COMPENSATION OF RS. 2,56,000/- WITH
INTEREST @ 8% P.A. FROM THE DATE OF PETITION TILL
REALIZATION.
IN MFA CROB. NO. 54 OF 2020
BETWEEN:
1 SMT. BIBI NAFISA,
W/O LATE. HASSAN SHABBAR MOHTISAM,
AGED ABOUT 55 YEARS.
2 SMT. AYSHA NAYYARA MOHTISAM
W/O LATE. HASSAN SHABBAR MOHTISAM,
AGED ABOUT 34 YEARS.
3 SMT. MOHAMMED SUHAIMI,
W/O LATE. HASSAN SHABBAR MOHTISAM,
AGED ABOUT 33 YEARS.
ALL ARE RESIDING AT SHIROOR,
KUNDAPURA TALUK.
... CROSS OBJECTORS
(BY SRI. NAGARAJA HEGDE, ADVOCATE)
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MFA No. 7683 of 2014
C/W MFA.CROB No. 54 of 2020
AND:
1. SRI MOHAMMAD MUSTAPA,
S/O MOHAMMAD HASSAN,
AGE MAJOR,
R/O. MOTISHAMA SHEGA,
MUGALI HONDA,
HOUSE NO.131,
BHATKAL.
2. THE NEW INDIA INSURANCE CO., LTD.,
BRANCH OFFICE: KUNDAPURA,
REP. BY ITS
BRANCH MANAGER.
...RESPONDENTS
(BY SRI. C.R RAVISHANKAR, ADVOCATE FOR
SRI. K. SURYANARAYANA RAO, ADVOCATE FOR R2;
NOTICE TO RESPONDENT NO.1 DISPENSED WITH)
THIS MFA CROB IN MFA NO.7683/2014 FILED UNDER
ORDER 41 RULE 22 OF CPC, AGAINST THE JUDGMENT AND
AWARD DATED 11.08.2014 PASSED IN MVC NO.269/2009 ON
THE FILE OF THE ADDITIONAL DISTRICT AND SESSIONS
JUDGE AND ADDITIONAL MACT, UDUPI(SITTING AT
KUNDAPURA), KUNDAPURA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS APPEAL AND CROSS OBJECTION COMING ON FOR
HEARING, THIS DAY, THROUGH VIDEO CONFERENCING THE
COURT DELIVERED THE FOLLOWING:
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MFA No. 7683 of 2014
C/W MFA.CROB No. 54 of 2020
JUDGMENT
MFA No.7683/2014 is filed by the Insurance
Company challenging the judgment and award dated
11.08.2014 in MVC No.269/2009, passed by the Additional
District & Sessions Judge and Additional MACT, Udupi
(sitting at Kundapura), Kundapura, insofar as it relates to
fastening liability on the Insurance Company to pay
compensation. MFA.CROB.54/2020 is filed by the
claimants seeking enhancement of compensation.
2. Brief facts of the case are as under:
It is the case of the claimants that on 12.12.2008, at
about 8.45 P.M., deceased Hassan Shabbar
s/o Ali Saheb was proceeding on the side of the road near
Vinayaka Hotel on NH17, Ranginakatta, Bhatkal and at
that time, a two wheeler came from Shirali side in a rash
and negligent manner and dashed against the deceased
due to which the deceased sustained grievous injuries and
succumbed to the injuries on the way to the hospital. The
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Tribunal after appreciating the evidence on record has
awarded the compensation on various heads as follows:
01. Loss of Dependency Rs.2,10,000/-
02. Loss of Consortium Rs. 10, 000/-
03. Love and Affection Rs. 15,000/-
04. Transportation of dead body Rs. 10,000/-
05. Cremation obsequies and Rs. 8,000/-
religious
06. Ambulance charges Rs. 3,000/-
Total Rs. 2,56,000/-
3. The Tribunal has fastened the liability on the
Insurance Company to pay compensation.
4. Heard the arguments of learned Counsel on both
sides and perused the records.
5. It is the submission made by the learned Counsel
for the Insurance Company that the accident was caused
by a minor boy, aged 16 years, who was riding the motor
cycle at the time of accident. Since the rider was a
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minor, he did not have a valid driving licence to ride the
motor cycle. Hence, the Insurance Company is not
liable to pay the compensation. Therefore, he prays for
exoneration of the Insurance Company from the liability.
6. On the other hand, learned counsel for the
claimants submitted that owner of the motor cycle namely,
Mohammed Mustapa (respondent No.4 in the appeal) was
riding the motor cycle but not the minor. He has given his
evidence as R.W.1. Therefore, learned Counsel submitted
that Tribunal was justified in fastening the liability on the
Insurance Company.
He further prays for enhancement of compensation.
7. Upon considering the rival submissions made in
this regard, the point that arises for consideration is, who
was riding the motor cycle. It is the evidence of R.W.1
who is the owner of the motor cycle that he was riding the
motor cycle. It is only the oral evidence of R.W.1 and he
has not produced any documentary evidence. Therefore,
his evidence does not have any corroboration. The
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documentary evidence placed by the claimants,
particularly exhibits P1 & P2 which are FIR and complaint
respectively, prove that one Mushraff, s/o Hakeem
Mothisham was riding the motor cycle as on the date and
time of the accident which is reflected in the FIR and
complaint. The accident has occurred on 12.12.2008 at
8.45 P.M. and the complaint was lodged on the same day
at 10.00 P.M. and within
1 hour & 15 minutes, complaint has been lodged before
the police. It is stated in the complaint that one Mushraff
s/o Hakeem Mothisham was riding the motor cycle. The
claimants are not related to R.W.1-Mohammad Mustapa to
make any manipulation in the complaint. The incident as
stated in the complaint has occurred in the natural course
of way and what the claimants have seen, including the
rider of the motor cycle, accordingly, Ex.P1-FIR is
registered. Therefore, it is proved that one Mushraff S/o
Hakeem Mothisham was riding the motor cycle and he has
caused the accident. The police, after investigation, have
filed the charge sheet as per Ex.R3 making accusation
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against one Ibrahim Mushraff S/o Abdul Hakeem Gavayi,
aged 16 years. The Insurance Company has produced
Ex.R3-charge sheet wherein it is stated that the accused
who has caused the accident was a minor boy aged 16
years. Therefore, Insurance Company has proved the
documentary evidence that accident was caused by a
minor boy aged 16 years whereas, R.W.1 did not produce
any documentary evidence corroborating his oral evidence.
Therefore, evidence of R.W.1 is proved to be self-
explanatory in nature, deposed according to his
convenience and he has tried to evade the liability upon
him and made effort to fasten the liability on the
Insurance Company to pay compensation. Therefore,
upon analyzing the evidence, it is proved that minor boy of
16 years old was riding the motor cycle as on the date and
time of accident and he has caused the accident.
8. Learned Counsel for the claimants submitted that
an order of pay and recovery can be made. In support of
his submissions, learned Counsel has placed reliance on
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several judgments of the Hon'ble Supreme Court and this
Court including the judgment in New India Assurance
Company Ltd. Vs. Yellavva & Another
(ILR 2020 KAR 2239). Upon perusal of the facts and
circumstances in the settled judgments of the Hon'ble
Supreme Court and this Court, it can be seen that facts
are different from this case. In the above stated cases,
the drivers of the offending vehicles were majors.
But in the present case, a minor boy of 16 years old who
was riding the motor cycle has caused the accident. This
makes a difference in the factual matrix in the settled
cases and the present case. Therefore, settled cases are
not helpful to the case of the claimants.
In the present case, the rider was a minor and aged 16
years. For such persons who are below the age of 18
years, driving licence cannot be granted and issued.
A minor boy is not qualified to apply for a driving licence.
9. For applying the principles of pay and recovery as
per sub-sections (1) & (2) of Section 149 of the Motor
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Vehicles Act, 1988, if any of the conditions is violated,
though Insurance Company can be exonerated from the
liability, but the order of pay and recovery can be made.
But in the present case, while considering
Sub-Clause (ii) of Sub-Section (2) of Section 149 of the
Motor Vehicles Act, in the case of a minor boy of 16 years
old who was riding the vehicle and caused the accident,
this proviso is not applicable so as to say that terms and
conditions of the Insurance Company are violated.
Where a minor boy under the age of 16 years cannot be
said to be a qualified person to apply for driving licence, it
cannot also be categorized that he is not duly licenced so
as to come within the ambit of sub-clause (ii) of sub-
section (2) Section 149 of the MV Act when a minor boy of
16 years old inherently is not a qualified person so as to
apply for driving licence. Therefore, the principle of pay
and recovery is not applicable in case minor boy drives the
vehicle and causes the accident. Hence, the prayer of pay
and recovery is hereby rejected.
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10. Respondent No.4-Mohammad Mustapa being the
owner of the motor cycle has handed over the motor cycle
to the minor boy. Hence, in this regard, owner of the
vehicle namely, Mohammad Mustapa alone shall pay the
compensation to the claimants and not the Insurance
Company. Hence, judgment and award of the Tribunal
fixing the liability on the Insurance Company is set aside.
11. Coming to the question of quantum of
compensation awarded by the Tribunal, it is seen from the
records that the deceased was aged 61 years at the time
of accident. In the absence any proof of income, the
Tribunal has taken the notional income at
Rs.5,000/- p.m. The claimants are wife and two children.
Therefore, 1/3rd of the amount will have to be deducted
towards personal expenses. The appropriate multiplier is
'7'. If the amount is calculated towards loss of
dependency, it works out to Rs.2,79,972/-
(Rs.5,000x2/3rdx7x12).
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12. If the loss of consortium is taken at Rs.44,000/-
for each dependent (Rs.40,000/-+ 10% escalation), the
amount would work out to (Rs.44,000x3) Rs.1,32,000/-.
13. The amount towards loss of estate can be
awarded at Rs.16,500/- (Rs.15,000/- + 10% escalation).
14. The amount towards funeral expenses can be
awarded at Rs.16,500/- (Rs.15,000 + 10% escalation).
Hence, the total compensation is worked out as under:
Sl.No. Particulars Amount
01. Loss of dependency Rs.2,79,972-00
02. Loss of consortium Rs.1,32,000-00
03. Loss of estate Rs. 16,500-00
04. Funeral expenses Rs. 16,500-00
Total Rs.4,44,972-00
15. In view of the aforesaid observations,
the judgment and award passed by the Tribunal is liable to
be set aside. Hence, I proceed to pass the following:
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ORDER
(i) MFA No.7683/2014 is allowed;
(ii) The judgment and award dated 11.08.2014 in
MVC No.269/2009 passed by the Additional District
& Sessions Judge and Additional Motor Accidents
Claims Tribunal, Udupi (sitting at Kundapura),
Kundapura, is hereby set aside;
(iii) The Insurance Company is exonerated of the
liability to pay compensation to the claimants;
(iv) MFA.CROB.54/2020 is allowed in part;
(v) The compensation awarded by the Tribunal is
enhanced to Rs.4,44,972/- as against Rs.2,56,000/-
awarded by the Tribunal with interest at the rate of
6% p.a from the date of petition till the date of
realization;
(vi) The owner of the motor cycle namely,
Mohammad Mustapa(respondent No.4 in the appeal)
is alone liable to pay compensation to the claimants.
(vii) The claimants are not entitled to get interest
for the delayed period of 665 days in presenting the
MFA.Crob.
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(viii) The amount deposited by the Insurance
Company shall be transmitted to the Tribunal for the
purpose of refunding the same to the Insurance
Company.
(ix) Registry shall return the records to the Tribunal
along with a copy of this order.
Sd/-
JUDGE
Yn.
