Karnataka High Court
Smt Kamalakshi W/O Lokeshappa vs A C Kurian M/S S.K.Trading Co on 30 May, 2024
Author: S G Pandit
Bench: S G Pandit
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MFA No. 100722 of 2021
C/W MFA No. 100429 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 30TH DAY OF MAY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO.100722 OF 2021 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO.100429 OF 2022
IN MFA NO.100722 OF 2021
BETWEEN:
THE MANAGER LEGAL CLAIMS
ROYAL SUNDARAM GENERAL INSURANCE COMPANY LTD.,
1ST FLOOR, CENTER POINT NEW COTTON MARKET
HUBBALLI-580023,
(INSURER OF VEHICLE BEARING REG NO.KA-19/AB-7321,
POLICY NO.VGC 0528936000100 VALID FROM
30-09-2018 TO 29-09-2019
REPRESENTED BY ITS AUTHORIZED SIGNATORY.
...APPELLANT
(BY SRI G.N. RAICHUR, ADVOCATE)
Digitally signed by
SAROJA
HANGARAKI AND:
Location: HIGH
COURT OF
KARNATAKA 1. SMT. KAMALAKSHI W/O. LOKESHAPPA,
AGE. 37 YEARS, OCC. OCC. NIL,
R/O. 4TH CROSS, N.T. ROAD,
SHIVAMOGGA, DIST. SHIVAMOGGA-577203,
NOW AT KAMALA NAGAR,
RANEBENNUR-581115, DIST. HAVERI.
2. KUMAR KARTHIK S/O. LOKESHAPPA,
AGE. 19 YEARS, OCC. STUDENT,
R/O. 4TH CROSS, N.T. ROAD,
SHIVAMOGGA, DIST. SHIVAMOGGA-577203,
NOW AT KAMALA NAGAR,
RANEBENNUR-581115, DIST. HAVERI.
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MFA No. 100722 of 2021
C/W MFA No. 100429 of 2022
3. KUM. KEERTHI S/O. LOKESHAPPA,
AGE. 17 YEARS, OCC. STUDENT,
R/O. 4TH CROSS, N.T. ROAD,
SHIVAMOGGA, DIST. SHIVAMOGGA-577203,
NOW AT KAMALA NAGAR,
RANEBENNUR-581115, DIST. HAVERI,
4. KUM. YASHWANTH S/O. LOKESHAPPA,
AGE. 17 YEARS, OCC. STUDENT,
R/O. 4TH CROSS, N.T. ROAD,
SHIVAMOGGA, DIST. SHIVAMOGGA-577203,
NOW AT KAMALA NAGAR,
RANEBENNUR-581115, DIST. HAVERI.
(RESPONDENT NO.3 IS MINOR REPRESENTED BY THEIR
NATURAL MOTHER AND GUARDIAN I.E.RESPONDENT
NO.1)
5. SMT. HUCHAMMA W/O. SANAPPA,
AGE. 69 YEARS, OCC. NIL,
R/O. 4TH CROSS, N.T. ROAD, SHIVAMOGGA,
DIST. SHIVAMOGGA-577203,
NOW AT KAMALA NAGAR,
RANEBENNUR-581115, DIST. HAVERI.
6. A.C KURIAN M/S. S.K TRADING CO.
AR DSOUZA ROAD, AMBER BUILDING
BENDOORWELL KANKANADY,
MANGALURU-575002,
(OWNER OF THE VEHICLE BEARING
REG. NO.KA-19/AB-7321.)
...RESPONDENTS
(BY SRI GIRISH S.HULMANI, ADVOCATE FOR R1 TO R5;
NOTICE TO R6 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, AGAINST THE
JUDGMENT AND AWARD DATED 12.02.2021 PASSED IN MVC
NO.694/2019 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL
JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,
RANEBENNUR, AWARDING COMPENSATION OF Rs.28,01,104/- WITH
INTEREST AT 9 PERCENT P.A. FROM THE DATE OF PETITION TILL ITS
REALISATION.
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MFA No. 100722 of 2021
C/W MFA No. 100429 of 2022
IN MFA NO.100429 OF 2022
BETWEEN:
1. SMT. KAMALAKSHI W/O. LOKESHAPPA,
AGE. 37 YEARS, OCC. OCC. NIL,
2. KUM .KARTHIK L. S/O. LOKESHAPPA,
AGE. 19 YEARS, OCC. STUDENT,
3. KUM. KEERTHI L. S/O. LOKESHAPPA,
AGE. 17 YEARS, OCC. STUDENT,
4. KUM. YASHWANTH L. S/O. LOKESHAPPA,
AGE. 15 YEARS, OCC. STUDENT,
5. SMT. HUCHAMMA W/O. SANAPPA,
AGE. 70 YEARS, OCC. NIL,
APPELLANTS ARE R/O. 4TH CROSS, N.T. ROAD,
SHIVAMOGGA, NOW AT KAMALA NAGAR,
RANEBENNUR, DIST. HAVERI-581115.
(SINCE THE APPELLANT NO. 3 AND 4 ARE MINORS, THEY
REPRESENTED BY THEIR NATURAL MOTHER AND M/G
APPELLANT NO.1)
...APPELLANTS
(BY SRI GIRISH S.HULMANI, ADVOCATE)
AND:
1. A.C. KURIAN M/S. S.K. TRADING CO.
AR DSOUZA ROAD, AMBER BUILDING,
BENDOORWELL, KANKANADY, MANGALURU.
2. THE MANAGER LEGAL CLAIMS,
ROYAL SUNDARAM ALLANZ GENERAL INS. CO. LTD.,
1ST FLOOR, CENTER POINT NEW COTTON MARKET,
HUBLI-580031, (INSURER OF VEHICLE BEARING REG
NO.KA-19/AB-7321, POLICY NO.VGC 0528936000100
VALID FROM 30-09-2018 TO 29-09-2019
REPRESENTED BY ITS AUTHORIZED SIGNATORY.
...RESPONDENTS
(BY SRI G.N.RAICHUR, ADVOCATE FOR R2;
NOTICE TO R1 DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, AGAINST THE
JUDGMENT AND AWARD DATED 12.02.2021 PASSED IN MVC
NO.694/2019 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL
JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,
RANEBENNUR, ALLOWING THE PETITION FILED UNDER SECTION 166
OF MOTOR VEHICLES ACT, 1988.
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MFA No. 100722 of 2021
C/W MFA No. 100429 of 2022
THESE MISCELLANEOUS FIRST APPEALS, COMING ON FOR
ADMISSION, THIS DAY, G BASAVARAJA, J., DELIVERED THE
FOLLOWING:
JUDGMENT
Though these appeals are listed for admission, they are
taken up for final disposal with the consent of learned counsel
for both the parties.
2. The claimants as well as the insurance company are
in appeals against judgment and award dated 12.02.2021
passed in MVC No.694/2019 on the file of learned II Additional
Senior Civil Judge & Additional MACT., Ranebennur (for short,
'Tribunal').
3. MFA No.100429/2022 is filed by the claimants
praying for enhancement of compensation, not being satisfied
with quantum of compensation granted by the Tribunal;
whereas MFA No.100722/2021 is filed by the insurance
company challenging the liability as well as the quantum of
compensation.
4. The parties are referred to as per their ranking
before the Tribunal, for the sake of convenience.
5. The brief relevant facts leading to filing of these
appeals are that, the claimants, who are the wife, children and
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mother of the deceased Lokeshappa, filed a claim petition
under Section 166 of the Motor Vehicles Act, 1988 seeking
compensation for the accidental death of Lokeshappa that took
place on 23.03.2019 involving Tata HGV bearing registration
No.KA-12/A-3065 and lorry bearing registration No.KA-19/AB-
7321. It is further stated that as on the date of accident,
deceased was aged about 35 years and earning Rs.40,000/-
per month and sought for just compensation.
6. In response to notice issued by the Tribunal,
respondents No.1 and 2 appeared through their counsel before
the Tribunal and filed their statement of objections denying the
entire claim petition averments. Further, respondent
No.1/owner of the offending lorry contended that the alleged
accident took place due to rash and negligent act on the part of
the deceased and there is no negligence on the part of the lorry
bearing registration No.KA-19/AB-7321 which was duly insured
with respondent No.2-Insurance Company, the policy was in
force and the driver of the lorry was possessing valid and
effective driving licence to drive the same, hence, if in case any
liability arises, then the respondent No.2-Insurance Company is
liable to pay the compensation and sought for dismissal of the
petition against him.
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7. Respondent No.2-Insurance Company contended
that the driver of the offending vehicle was not possessing valid
and effective driving licence as on the date of accident, thus,
respondent No.2-owner has breached the policy conditions,
hence, the Insurance Company is not liable to pay the
compensation and sought for dismissal of the claim petition.
8. Based on the pleadings, the Tribunal framed
appropriate issues. To prove the case of the petitioners,
petitioner No.1-wife of the deceased examined herself as PW1
and got marked 14 documents as Exs.P1 to P14; whereas on
respondents' side the representative of respondent No.2-
Insurance Company examined as RW1 and got marked 3
documents as Exs.R1 and R3. Having heard the arguments of
both the parties and based on the material placed on record,
the Tribunal allowed the claim petition and awarded a total
compensation of Rs.28,01,104/- with interest at the rate of 9%
per annum from the date of petition till realization. Being
aggrieved by the same, the claimants and the insurance
company are before this Court in these appeals.
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9. Heard the learned counsel Sri.Girish S.Hulmani for
the appellants/claimants, learned counsel Sri.G.N.Raichur for
respondent No.2-Insurance Company and perused the appeal
papers along with original records.
10. Sri.G.N.Raichur, learned counsel appearing for
respondent No.2-Insurance Company would submit that the
Tribunal committed an error in coming to a conclusion that the
accident was solely due to the negligence on the part of the
driver of the lorry bearing registration No.KA-19/AB-7321 only
on the basis of Police papers. The panchanama and MV Report
reveal that the accident occurred by head on collusion and
there is equal contribution of negligence on the part of the
deceased also and same is not considered by the Tribunal.
Thus, the Tribunal has not properly appreciated the evidence
on record in accordance with law and facts. Further, he submits
that the Tribunal committed error in assessing the income of
the deceased at Rs.18,550/- per month including future
prospects and the Tribunal has also committed grave error in
awarding interest at the rate of 9% per annum. On all these
grounds, sought for modification of the award passed by the
Tribunal and sought for dismissal of the appeal filed by the
claimants.
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11. Sri.Girish S.Hulmani, learned counsel appearing for
the claimants would submit that the impugned judgment and
award passed by the Tribunal as to the fastening of liability on
the Insurance Company is proper and in accordance with law.
Further he submits that the Tribunal ought to have considered
that the deceased was doing agricultural work and working as a
driver thereby earning more than Rs.40,000/- per month and
without considering the same, the Tribunal has taken
Rs.13,250/- per month as income of the deceased and same is
on the lower side. Learned counsel would submit that the
Tribunal has not considered Ex.P14-RTC extract while awarding
the compensation and the Tribunal has not awarded the
compensation in accordance with law and as per the decisions
of the Hon'ble Apex Court. Thus, he prays for allowing the
appeal filed by the claimants.
12. Having heard the learned counsel for the parties
and on perusal of the appeal papers along with original records,
the following points would arise for consideration:
a) Whether the Insurance Company has made
out any grounds to interfere with the
impugned judgment and award passed by the
Tribunal, as to the liability and quantum of
compensation?
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b) Whether the claimants are entitled for
enhanced compensation?
c) Whether the Tribunal is justified in awarding
interest at the rate of 9% per annum from
the date of filing the claim petition till its
realization?
Point No.(a) is answered in the negative, Point No.(b) is
answered partly in the affirmative and Point No.(c) is answered
in the negative for the following reasons:
13. We have carefully examined the material placed on
record. It is the case of the claimants that the accident
occurred due to rash and negligent act on the part of the driver
of the lorry bearing registration No.KA-19/AB-7321 belonging
to respondent No.1 which was insured with respondent No.2-
Insurance Company and to prove the same, the claimants got
marked 14 documents as Exs.P1 to P14. On perusal of the
material, it is crystal clear that on the basis of the complaint
filed by one Umesha, Sagar Rural Police have registered the
case in Crime No.116/2019 against an unknown driver of lorry
bearing registration No.KA-19/AB-7321 for the commission of
offences punishable under Sections 279, 337 and 304A of IPC
and submitted the FIR to the Court. Thereafter, the Police
rushed to the spot and conduced spot panchanama, inquest
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panchanama in the presence of panchas and also obtained PM
Report, MV Report and recorded the statements of witnesses
and on thorough investigation, the IO has submitted
chargesheet against the driver of the lorry for the commission
of offences punishable under Sections 279, 338 and 304A of
IPC. Apart from above said documentary evidence, PW1 has
adduced her oral evidence.
14. During the course of cross-examination of RW1, he
has clearly admitted that he has deposed the evidence on the
basis of the Police papers. Further, he has clearly admitted that
IO has submitted the chargesheet against the driver of the
lorry which belongs to respondent No.1. Respondent No.2 has
taken defence in its statement of objection that the accident
occurred due to contributory negligence of the deceased and to
substantiate the same, has not adduced any evidence before
the Court. The driver of the offending vehicle is also not
examined before the Tribunal. The respondents have not
explained anything as to the non-examination of the material
witness and the driver of the vehicle before the Tribunal. Thus,
respondents have not placed any legal evidence to disprove the
oral and documentary evidence placed by the claimants. Apart
from this, soon after the accident, the driver of the offending
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vehicle has not intimated the same to the concerned Police as
required under the provisions of MV Act, 1988. If really the
accident occurred due to the contributory negligence of the
deceased as contended by the Insurance Company, the driver
of the offending vehicle could have filed the complaint to the
Police. Even the driver of the offending vehicle is not examined
by the respondents before the Tribunal to substantiate the
defence of the respondents. Considering the evidence placed
before the Tribunal, the Tribunal has held that the claimants
have proved that Lokeshappa died in the accident due to rash
and negligent act on the part of the driver of the offending lorry
bearing registration No.KA-19/AB-7321. There is no dispute
between the parties that the policy was in force at the time of
the accident, hence, the respondent No.2-Insurance Company
is liable to pay the compensation.
15. With regard to the quantum of compensation is
concerned, the Tribunal has considered the notional income of
the deceased at Rs.13,250/- per month, adopted multiplier of
16 and added 40% of the assessed income towards future
prospects. The age of the deceased as per Ex.P5-PM Report is
35 years as on the date of the accident. Hence, the Tribunal
has rightly adopted the multiplier of 16.
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16. PW1-wife of the deceased has not whispered
anything as to the income of the deceased, but she has
produced Ex.P14-RTC extract which is not in the name of the
deceased Lokeshappa. Considering the material placed by the
claimants, the Tribunal has properly assessed the notional
income of the deceased at Rs.13,250/- per month as per the
chart prepared by the Karnataka State Legal Services Authority
and relying on the decision of the Hon'ble Apex Court in the
case of National Insurance Company Limited Vs. Pranay
Sethi & Others1 the Tribunal has properly added 40% of the
assessed income of the deceased towards future prospects and
deduction of 1/4th by the Tribunal is also just and correct which
needs no interference. Thus, the claimants would be entitled for
modified compensation on the head of loss of dependency as
under:
Rs.13,250 (income) + 40%(i.e.Rs.5,300 future prospects) x 12
(months) X 16(multiplier) x 3/4 (deduction) = Rs.26,71,200/-
17. With regard to the award of compensation by the
Tribunal under the head of loss of consortium is concerned, the
Tribunal has awarded Rs.1,00,000/- which is on the lower side.
2017 (16) SCC 680
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In view of the decision of the Hon'ble Apex Court in the case of
Magma General Insurance Company Ltd., Vs. Nanu Ram
and Others2 referred to supra, each of the claimants are
entitled to Rs.40,000/- under the head of loss of consortium
besides Rs.15,000/- towards loss of estate and Rs.15,000/-
towards funeral expenses.
18. Thus, the claimants would be entitled for modified
compensation on the following heads:
Sl. Particulars Amount
No. (In Rupees)
1. Loss of dependency 26,71,200/-
2. Loss of estate & Funeral 30,000/-
expenses
3. Loss of consortium (Rs.40000x5) 2,00,000/-
Total Rs.29,01,200/-
19. Thus, the claimants would be entitled to total
compensation of Rs.29,01,200/- as against Rs.28,01,104/-
awarded by the Tribunal. Accordingly, we answer above point
No.(a) in the negative and point No.(b) partly in the
affirmative.
20. The Tribunal has awarded interest at the rate of 9%
per annum from the date of claim petition till realization of
award amount, which is on the higher side. Keeping in mind the
2018 ACJ 2782
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interest rates on fixed deposits in nationalized banks as on the
date of filing the claim petition, it is just and proper to award
interest at the rate of 6% per annum from the date of filing the
claim petition till realization of the award amount.
21. For the aforesaid reasons and discussions, we
proceed to pass the following:
ORDER
a) Both the appeals are allowed in part.
b) The impugned judgment & award of
Tribunal is modified holding that the
claimants are entitled to total
compensation of Rs.29,01,200/- as
against Rs.28,01,104/- awarded by the
Tribunal along with interest at the rate of
6% p.a. from the date of claim petition till
realization.
c) The appellant-Insurer shall deposit the
enhanced compensation amount with
accrued interest before the Tribunal within
a period of six weeks from the date of
receipt of certified copy of this judgment.
d) Apportionment, deposit & disbursement
shall be made as per award of Tribunal.
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e) The amount in deposit, if any, be
transmitted to the concerned Tribunal
forthwith along with original records.
f) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
RH
