Karnataka High Court
Jaramma vs Swamy And Anr on 6 November, 2024
-1-
NC: 2024:KHC-K:8157
MFA No. 201536 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
MISCL. FIRST APPEAL NO. 201536 OF 2019 (MV-D)
BETWEEN:
1. JARAMMA
W/O. LATE LAXUMAN,
AGED: ABOUT 52 YRS,
OCC: HOUSEHOLD,
R/O. SEDOLA VILLAGE,
TQ:HUMANBAD, DIST: BIDAR.
...APPELLANT
(BY SRI. SANJEEVKUMAR C. PATIL, ADVOCATE)
AND:
1. SWAMY S/O. MALLAPPA,
AGE:MAJOR, OCC: BUSINESS,
Digitally signed by R/O. H.NO. 27, UTMS AREADE,
RENUKA
YELLUKUNTE VILLAGE,
Location: HIGH
COURT OF HOSUR MAIN RAOD,
KARNATAKA BANGALORE-560001.
2. THE BRANCH MANAGER IFFCO
TOKIO GEN. INSURANCE CO. LTD.,
BRINDAWAN BUILDING, GROUND FLOOR,
P-6 (A) FIRST MAIN, FIRST STAGE,
PEENYA INDUSTRIAL AREA,
BANGALORE-560001.
...RESPONDENTS
(BY SRI. SUDARSHAN M, ADVOCATE FOR R2; V/O. DTD:
22.10.2024 NOTICE TO R1 IS DISPENSED WITH)
-2-
NC: 2024:KHC-K:8157
MFA No. 201536 of 2019
THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING TO,
MODIFY THE JUDGMENT AND AWARD DATED 20.06.2019
PASSED BY THE SENIOR CIVIL JUDGE AND MACT HUMNABAD,
IN MVC NO.545/2017 AND FIXED THE LIABILITY ON THE
RESPONDENT NO.2 INSURANCE COMPANY TO PAY THE
COMPENSAITON BY ENHANCING THE COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISION , THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM)
Captioned appeal is filed by the claimant questioning
the judgment and award of the Tribunal in dismissing the
claim petition against the insurance company, on the
premises that the driver of the offending bike did not
possess driving license and has also questioned the
quantum.
2. Facts leading to the case are as under:
The present claimant, who is the mother of one
Ramesh filed a claim petition for having lost her son in a
road traffic accident dated 22.05.2016. Tribunal referring
to the material on record, was of the view that rider of
NC: 2024:KHC-K:8157
offending bike did not possess driving license and
therefore, proceeded to hold that there is violation of
policy condition and held that insurance company is not
liable to pay compensation. The Tribunal also made
observation that rider of motorbike was charge sheeted for
the offense punishable under Section 181 of MV Act. While
determining compensation, the Tribunal however
determined compensation at Rs.7,49,000/-.
3. Heard learned counsel for the appellant and
learned counsel for the respondent No.2/insurance
company.
4. The liability fastened on the owner on the
ground on the ground that the driver of the offending bike
did not possess driving license, is squarely covered by the
law declared by the Hon'ble Apex Court in the case of
PAPPU AND OTHERS Vs. VINOD KUMAR LAMBA AND
ANOTHER reported in (2018) 3 SCC 208 and the Full
Bench judgment rendered by this court in the case of
NEW INDIA ASSURANCE CO. LTD., BIJAPUR vs.
NC: 2024:KHC-K:8157
YALLAVVA AND ANOTHER, 2020 (2) KCCR 1405
(FB). Hon'ble Apex Court and the Full Bench of this Court
have clearly held that breach of policy conditions by the
insured will not absolve the primary liability of insurance
company in indemnifying and paying the compensation to
the third party. In the light of law laid down by Hon'ble
Apex Court and the Full Bench of this Court in the
judgment cited supra, the finding of the Tribunal on
liability is perverse and contrary to law laid down in the
said judgment. Accordingly, the said finding is set aside
and the second respondent/insurance company is primarily
liable to pay compensation. Insurance company may
recover it from the owner of the offending bike.
5. Now, coming to the quantum, though claimant
has failed to substantiate the actual income of the
diseased, this Court is of the view that Tribunal grossly
erred in assessing the income of the diseased at
Rs.7,000/-. In absence of income proof, this Court is
compelled to rely on the income chart prepared by
NC: 2024:KHC-K:8157
Karnataka State Legal Services Authority. The accident is
of the year 2016 and therefore, income of the disease is
notionally assessed at Rs.8,750/- and by adding 40% the
income is assessed at Rs.12,250/-. Deceased was
admittedly a bachelor and therefore, 50% is liable to be
deducted. Accordingly, income is assessed at Rs.6,125/-
and by applying a multiplier of 17 compensation payable
under the head of loss of dependency works out to
Rs.12,49,500/-.
6. Under conventional head, appellant is entitled
for a sum of Rs.70,000/-. Appellant is further entitled for a
sum of Rs.14,000/-, by adding 10% escalation, as per the
principles laid down by Hon'ble Apex Court in the case of
National Insurance Co. Ltd., Vs. Pranay Sethi
reported in (2017) 16 SCC 680. Hence, total
compensation re-determined works as under:
Sl. Heads Amount
No.
1. Loss of dependency Rs.12,49,500/-
2. Conventional heads Rs.70,000/-
3. Escalation Rs.14,000/-
Total Rs.13,33,500/-
NC: 2024:KHC-K:8157
7. For the reasons stated supra, this Court passes
the following order:
ORDER
i. Appeal is allowed in part.
ii. Claimant is entitled for a compensation of
Rs.13,33,500/- with interest at the rate
of 6% from the date of petition, till
realization of entire compensation amount.
iii. Second respondent/insurance company
shall satisfy the award, with the liberty to
recover it from the owner of the bike.
iv. The apportionment of compensation shall
be in terms of judgment of the Tribunal.
Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE
NJ
CT-SW
