Karnataka High Court
Shivashankar @ Shivasharana S/O ... vs Anand And Anr on 8 November, 2024
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NC: 2024:KHC-K:8242
MFA No. 200121 of 2022
C/W MFA.CROB No. 200036 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
MISCL. FIRST APPEAL NO.200121 OF 2022 (MV-D)
C/W
MFA CROB.NO.200036 OF 2023
IN MFA NO.200121/2022
BETWEEN:
ANAND S/O. ADIVEPPA BIRADAR
AGE: 44 YEARS, OCC: BUSINESS,
R/O. LOHGAV,
TQ. AND DIST. VIJAYAPURA-586104.
...APPELLANT
(BY SRI BAPUGOUDA SIDDAPPA, ADVOCATE)
Digitally signed by
AND:
RENUKA
Location: HIGH 1. SHIVASHANKAR @ SHIVASHARANA
COURT OF S/O. REVANSIDDAPPA CHANDANKERI,
KARNATAKA
AGE: 49 YEARS, OCC: COOLIE,
R/O. KANAMADI
TQ. AND DIST. VIJAYAPURA-586114.
2. LAXMIBAI @ LAXMIBAI
W/O. SHIVASHANKAR
@ SHIVASHARANA CHANDANKERI,
AGE: 46 YEARS, OCC: HOUSEWIFE,
R/O. KANAMADI
TQ. AND DIST. VIJAYAPURA-586114
3. THE MANAGER LEGAL
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NC: 2024:KHC-K:8242
MFA No. 200121 of 2022
C/W MFA.CROB No. 200036 of 2023
THE CHOLAMANDALAM MS
GENERAL INSURANCE CO.LTD,
UNIT, 9TH FLOOR, LEVEL-06,
GOLDEN HEIGHTS COMPLEX,
59TH C CROSS, INDUSTRIAL SUBRUB,
RAJAJI NAGAR,
4TH MAIN, BENGALURU-560010.
...RESPONDENTS
(BY SRI. VIRANAGOUDA M. BIRADAR, ADVOCATE FOR R1 & R2;
SRI MANJUNATH MALLAYYA SHETTI, ADVOCAT FOR R3)
THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING TO,
A) CALL FOR THE RECORDS. B) TO SET ASIDE THE JUDGMENT
AND AWARD DATED 10.11.2021 PASSED IN MVC NO.829/2017
ON THE FILE OF THE COURT OF THE PRL. SENIOR CIVIL JUDGE
AND MOTOR ACCIDENT CLAIM TRIBUNAL NO.V, VIJAYAPURA.
AND ALLOW THIS APPEAL FILED BY THE APPELLANT/OWNER
THE VEHICLE BEFORE THIS COURT.
IN MFA CROB.NO.200036 OF 2023
BETWEEN:
1. SHIVASHANKAR @ SHIVASHARANA,
S/O. REVANASIDDAPPA CHANDANKERI,
AGE: 50 YRS, OCC: COOLIE,
2. LAXMIBAI @ LAXMIBAI,
W/O. SHIVASHANKAR
@ SHIVASHARANA CHANDAKERI,
AGE: 47 YRS, OCC: HOUSEWIFE,
ALL ARE R/O. KANAMADI,
TQ. AND DIST VIJAYAPURA-586106.
...CROSS OBJECTORS
(BY SRI. VIRANAGOUDA M. BIRADAR, ADVOCATE)
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MFA No. 200121 of 2022
C/W MFA.CROB No. 200036 of 2023
AND:
1. ANAND S/O. AIDVEPPA BIRADAR,
AGE: 45 YEARS, OCC: BUSINESS
R/O. LOHGAV,
TQ. AND DIST. VIJAYAPUR-586104.
2. THE MANAGER LEGAL
CHALAMANDALAM MS
GENERAL INSURANCE CO. LTD;
UNIT, 9 FLOOR, LEVEL -06,
GOLDEN HEIGHTS, COMPLEX 59TH C CROSS,
INDUSTRIAL SUBURB, RAJAJI NAGAR,
4TH MAIN, BENGALURU 560010.
...RESPONDENTS
(BY SRI. BAPUGOUDA SIDDAPPA, ADVOCATE FOR R1;
SRI. MANJUNATH MALLAYYA SHETTI, ADVOCATE FOR R2)
THIS MFA CROB FILED U/O. 41 RULE 22 OF CPC,
PRAYING TO, ALLOW THIS CROSS OBJECTION/APPEAL BY
MODFYING THE AWARD OF JUDGMENT AND AWARD OF THE
PRL. SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS
TRIBUNAL NO.V, VIJAYAPUR, DATED 10.11.2021, IN MVC
NO.829/2017, AND CONSEQUENTIALLY ENHANCE THE
COMPENSATION AS PRAYED FOR.
THE APPEAL AND CROSS OBJECTION, COMING ON FOR
ADMISSION, 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)
The owner of the offending vehicle and the claimants
have filed appeal and cross objection respectively. Owner
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C/W MFA.CROB No. 200036 of 2023
has filed an appeal in MFA No.200121/2022 feeling
aggrieved by the liability fastened on him on the ground
that there is a breach of policy conditions. MFA Crob.
No.200036/2023 is filed by the claimants questioning the
liability fastened on the owner and also on quantum.
2. The claimants are parents of one Anand, who
died in a road traffic accident dated 16.04.2017. The
insurance company contested the proceedings by
specifically contending that driver of the offending tata
tipper did not possess valid and effective driving licence.
3. The Tribunal though determined the
compensation, however, claim petition was dismissed
against the insurance company. Therefore owner has filed
an appeal questioning the liability, while claimants have
filed a cross objection questioning the liability fastened on
the owner and also quantum.
4. The learned counsel appearing for insurance
company has vehemently argued and contended that the
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C/W MFA.CROB No. 200036 of 2023
owner of the offending vehicle, who has breached the
policy conditions has no locus to challenge the liability and
cannot insist for pay and recovery at the hands of
insurance company.
5. This issue may not survive for consideration in
the present case on hand as the claimants have already
filed a cross objection not only seeking enhancement of
compensation but have also questioned finding on liability.
Full Bench of this Court in the case of New India
Assurance Company Limited vs. Yallavva and
Another1 has clearly held that breach of policy conditions
will not absolve the primary liability of insurance company
in satisfying the award determined by the Tribunal in
motor vehicle accident cases. The third party rights
cannot be taken away on the premises that there is a
breach of policy conditions by the insured. In the light of
law laid down by this court in the judgment cited supra,
(2020) 3 KCCR 1469
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C/W MFA.CROB No. 200036 of 2023
the insurance company is primarily liable to satisfy and
then recover it from the owner of the offending vehicle.
6. The judgment cited by the insurance company
rendered by Apex court in the case of Beli Ram vs.
Rajinder Kumar and Another2 has no application to the
present case on hand as there is an appeal by the claimant
questioning the liability.
7. Regarding quantum, The Tribunal in the
absence of income proof has assessed the income
nationally at Rs.8,000/-. Having regard to the fact that
accident is of the year 2017, this Court is of the view that
income assessed by the Tribunal is on the lower side. In
absence of income proof, this Court is inclined to assess
the income nationally at Rs.10,250/- referring to the
income chart prepared by the Karnataka State Legal
Services Authority and by adding 40%, the income is
assessed at Rs.14,350/-. By deducting 50% of the income
AIR 2020 SC 4453
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C/W MFA.CROB No. 200036 of 2023
and by applying a multiplier of 18, compensation re-
determined under the head of loss of dependency works
out to Rs.15,49,800/- (Rs.7,175x12x18).
8. Since there are two dependents, a sum of
Rs.80,000/- is awarded under conventional heads and
Rs.30,000/- is awarded under the head of funeral
expenses and loss of estate. By extending the benefit of
escalation at the rate of 10% for every three years in the
light of principles laid down by the Apex Court in the case
of National Insurance Company Ltd. vs. Pranay
Sethi3, an additional sum of Rs.22,000/- is paid on the
conventional head at Rs.1,10,000/-. Accordingly,
claimants are entitled for enhanced compensation of
Rs.16,81,800/- as against Rs.9,34,000/- awarded by the
Tribunal.
9. For the reasons stated supra, this Court passes
the following:
(2017) 16 SCC 680
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C/W MFA.CROB No. 200036 of 2023
ORDER
a) Cross objection filed by the claimants is
allowed in part.
b) Claimants are entitled for enhanced
compensation of Rs.7,47,800/- with
interest at 6% per annum from the date of
claim petition till its realization.
c) The insurance company shall pay the
compensation determined by the Tribunal
as well as by this Court with liberty to
recover it from the owner of the offending
vehicle i.e., tipper lorry bearing registration
No.KA-28/C-7153.
d) Consequently, appeal filed by the owner is
dismissed.
e) Statutory amount in deposit shall be
remitted to the Tribunal to enable the
claimants to withdraw the same.
f) Insurance company shall pay the
compensation by deducting Rs.25,000/-.
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C/W MFA.CROB No. 200036 of 2023
g) Pending application, if any, stands disposed
of.
Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE
SRT
CT-SW
