Karnataka High Court
Sri M Sundar vs Smt Nagamma @ Nagarathnamma on 12 November, 2024
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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NC: 2024:KHC:45843
MFA No. 1262 of 2015
C/W MFA No. 1671 of 2015
MFA No. 6226 of 2018
AND 1 OTHER
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
MISCELLANEOUS FIRST APPEAL NO. 1262 OF 2015
(MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 1671 OF 2015
(MV-I)
MISCELLANEOUS FIRST APPEAL NO. 6226 OF 2018
(MV-D)
MISCELLANEOUS FIRST APPEAL NO. 64 OF 2019 (MV-D)
IN MFA No. 1262/2015:
BETWEEN:
1. M.SUNDAR
Digitally S/O MARADA CHALAM
signed by
KIRAN MAJOR,
KUMAR R RC OWNER OF KA-16-B-4137
Location: R/O MASKAL MATTI VILLAGE
HIGH COURT
OF MASKAL POST, HIRIYUR TALUK
KARNATAKA
CHITRADURGA DISTRICT-572143
...APPELLANT
(BY SRI. SHASHIDHARA R., ADVOCATE)
AND:
1. LAKSHMANA
S/O LATE THIMMABHOVI @ THIMMANNA
AGED ABOUT 46 YEARS
OCCUPATION:AGRICULTURIST
R/O HOOVINAHOLE VILLAGE AT POST
-2-
NC: 2024:KHC:45843
MFA No. 1262 of 2015
C/W MFA No. 1671 of 2015
MFA No. 6226 of 2018
AND 1 OTHER
HIRIYUR TALUK
CHITRADURGA DISTRICT-572143.
2. THE MANAGER
RELIANCE GENERAL INSURANCE CO LTD
IST FLOOR, MAGANUR COMPLEX
B D ROAD, NEAR KSRTC BUS STAND
CHITRADURGA TOWN-577501
...RESPONDENTS
(BY SRI. N R RANGEGOWDA., ADVOCATE FOR R-1;
SRI.B.PRADEEP., ADVOCATE FOR R-2)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:06.12.2014
PASSED IN MVC NO.4/2013 ON THE FILE OF THE SENIOR
CIVIL JUDGE, ADDITIONAL MACT, HIRIYUR, AWARDING
COMPENSATION OF Rs.2,40,720/- WITH INTEREST @ 7.5%
P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN MFA NO. 1671/2015:
BETWEEN:
1. LAKSHMANA
S/O LATE THIMMABHOVI @ THIMMANNA,
NOW AGED ABOUT 46 YEARS,
R/AT HOOVINAHOLE VILLAGE,
HIRIYUR TQ, CHITRADURGA DISTRICT-577599.
...APPELLANT
(BY SRI. N.R.RANGEGOWDA., ADVOCATE)
AND:
1. M SUNDAR
S/O MARADA CHALAM, MAJOR,
R/O MASKAL MATTI VILLAGE,
MASKAL POST, HIRIYUR,
CHITRADURGA DISTRICT-577527.
2. THE BRANCH MANAGER
RELIANCE GIC LTD.,
-3-
NC: 2024:KHC:45843
MFA No. 1262 of 2015
C/W MFA No. 1671 of 2015
MFA No. 6226 of 2018
AND 1 OTHER
1ST FLOOR, MAGANNUR COMPLEX,
B.D.ROAD, NEAR KSRTC BUS STAND,
CHITRADURGA TOWN-577527.
...RESPONDENTS
(BY SRI. R.SHASHIDHARA., ADVOCATE FOR R-1;
SRI. B. PRADEEP, ADVOCATE FOR R-2)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:6.12.2014
PASSED IN MVC NO.4/2013 ON THE FILE OF THE SENIOR
CIVIL JUDGE, ADDITIONAL MACT, HIRIYUR, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO. 6226/2018:
BETWEEN:
1. SRI M SUNDAR
S/O MARADACHALAM
AGED ABOUT 49 YEARS,
R/O MARKANMATTI POST
HIRIYUR TALUK - 572 143
CHITRADURGA DISTRICT.
...APPELLANT
(BY SRI. V B SIDDARAMAIAH., ADVOCATE)
AND:
1. SMT NAGAMMA @ NAGARATHNAMMA
W/O LATE MASIYANNA
AGED ABOUT 33 YEARS,
2. MASTER CHETHANA
S/O LATE MASIYANNA
AGED ABOUT 12 YEARS,
3. MASTER SACHIN
S/O LATE MASIYANNA
AGED ABOUT 11 YEARS,
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MFA No. 1262 of 2015
C/W MFA No. 1671 of 2015
MFA No. 6226 of 2018
AND 1 OTHER
R-2 AND R-3 ARE MINORS.,
REPRESENTED BY MOTHER AND NATURAL GUARDIAN
SMT. NAGAMMA @ NAGARATHNAMMA
4. SMT. LAKSHMAKKA @ MAHALAKSHMAMMA
W/O THIMMANNA,
AGED ABOUT 69 YEARS,
R-1 RO 4 ARE R/O HOOVINAHOLE VILLAGE,
HIRIYUR TALUK - 572 143
CHITRADURGA DISTRICT.
5. THE RELIANCE GENERAL INSURANCE CO LTD.,
NO. 28/5, CENTENARY BUILDING
EAST WING M.G.ROAD,
BENGALURU - 560 001
REPRESENTED BY ITS MANAGER.
...RESPONDENTS
(BY SRI. SURESH.M.LATHUR., ADVOCATE FOR R-1 TO R-3;
(R-1 TO R-3 ARE LR's OF DECEASED R-4;
R-2 AND 3 ARE MINORS AND REPRESENTED BY R-1)
SRI. B.PRADEEP., ADVOCATE FOR R-5)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:14.06.2018
PASSED IN MVC NO.170/2014 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND ADDITIONAL MACT, AND JMFC, HIRIYUR,
AWARDING COMPENSATION OF RS.6,10,000/- WITH
INTEREST @ 7.5% P.A. FROM THE DATE OF PETITION TILL
REALIZATION.
IN MFA NO. 64/2019:
BETWEEN:
1. SMT NAGAMMA @ NAGARATHANAMMA
W/O SRI:LATE, MASIYANNA,
AGE:34 YEARS,
OCC:SHEEP & GOAT REARING
-5-
NC: 2024:KHC:45843
MFA No. 1262 of 2015
C/W MFA No. 1671 of 2015
MFA No. 6226 of 2018
AND 1 OTHER
2. MASTER CHETHANA
S/O SRI.LATE MASIYANNA,
AGE:13 YEARS, MINOR,
Occ: STUDENT
3. MASTER SACHIN
S/O SRI.LATE MASIYANNA,
AGE:12 YEARS,
MINOR, OCC:STUDENT
PETITIONER No.2 & 3 SINCE MINOR
REPRESENTED BY MOTHER AND
NATURAL GUARDIAN.,
SMT. NAGAMMA @ NAGARATHANAMMA.
ALL ARE R/AT HOOVINAHOLE VILLAGE,
HIRIYUR TALUK,
CHITRADURGA DISTRICT-572143.
4. SMT LAKSHMAKKA @ MAHALASKHMAMMA
W/O SRI THIMMANNA,
R/AT HOOVINAHOLE VILLAGE,
HIRIYUR TALUK,
CHITRADURGA DISTRICT-572143.
(SINCE DEAD AND APPELLANTS
ARE THE SOLE LR's)
...APPELLANTS
(BY SRI. SURESH M LATUR., ADVOCATE)
AND:
1. SRI M SUNDAR
S/O SRI MARADACHALAM,
MARKANMATTI POST,
HIRIYUR TALUK,
CHITRADURGA DISTRICT-572143.
2. THE MANAGER
RELIANCE GENERAL INSURANCE COMPANY LIMITED,
NO.28/5, CENTONARY BLAG,
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NC: 2024:KHC:45843
MFA No. 1262 of 2015
C/W MFA No. 1671 of 2015
MFA No. 6226 of 2018
AND 1 OTHER
EAST WING, M.G.ROAD,
BENGALURU-56001.
...RESPONDENTS
(BY SRI. V B SIDDARAMAIAH., ADVOCATE FOR R-1;
SRI. B.PRADEEP., ADVOCATE FOR R-2)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED. 14.06.2018
PASSED IN MVC NO.170/2014 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND J.M.F.C., ADDITIONAL MACT, HIRIYUR,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE N S SANJAY GOWDA
ORAL JUDGMENT
1. On 13.09.2012, an accident occurred between a two
wheeler and a Tata ACE vehicle, which resulted in the
death of the rider of the motorcycle Masiyanna and
caused grieveous injuries to the pillion rider
Lakshmana.
2. A claim petition was filed by the injured pillion rider -
Lakshmana on 22.10.2013 and thereafter, the legal
representatives of deceased rider of the motorcycle -
Masiyappa filed a claim petition on 16.06.2014.
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AND 1 OTHER
3. Both these cases were filed at Hiriyur, but were not
clubbed.
4. It was the case of the claimants that the accident
occurred as a result of rash and negligent driving of
the driver of the Tata ACE. However, they did not
choose to make the driver of said Tata ACE a party to
the proceedings.
5. The owner of Tata ACE, though served with notice,
chose to remain unrepresented.
6. The insurer entered appearance and as usual, denied
all the averments in the claim petitions.
7. In the claim petition filed by the injured pillion rider-
Lakshmana, the insurer took up the specific plea that
as per the FIR, one Babu-son of Mani, a resident of
Maskalmatti village was driving the vehicle and he
did not possess a valid driving licence as on the date
of the accident. It was alleged that the owner and the
claimants had colluded with each other and had
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AND 1 OTHER
changed the name of the driver as Babu @
Balasundar, son of Mani, resident of Maskal Village,
as he had the valid driving licence.
8. The Tribunal, on assessment of the evidence, has
concluded that the accident did occur. It has however
proceeded to record a finding that the injured
claimant had admitted that Mani had two sons
namely Balasundar (elder) and Babu (younger) and
Babu was the resident of Maskalmatti village and
Balasundar was the resident of Maskal village. On the
basis of this evidence, the Tribunal has come to the
conclusion that an attempt was being made to
substitute the driver of the Tata ACE and thereby
exonerated the liability of the insurer. The Tribunal
has accordingly proceeded to hold that the owner of
Tata ACE would be liable to satisfy the compensation.
9. Thereafter, the Tribunal has also proceeded to award
a sum of Rs.2,40,720/- as compensation for the
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AND 1 OTHER
injured pillion rider and Rs.6,10,000/- for the death
of the rider of the motorcycle Masiyanna.
10. The owner of Tata ACE filed MFA.1262/2015 as
against the award of the Tribunal to the injured -
pillion rider and filed MFA.6226/2018 as against the
award of the Tribunal to the legal representatives of
deceased Masiyanna.
11. The claimants have also filed appeals.
MFA.1671/2015 is filed by the injured pillion rider
seeking enhancement of compensation. MFA.64/2019
is filed by the legal representatives of deceased rider
of the motorcycle Masiyanna seeking enhancement of
compensation.
12. Learned counsel for the owner of Tata ACE contended
that the charge sheet correctly reflected the fact that
the driver of Tata ACE was one Babu @ Balasundar,
son of Mani and the Tribunal has unnecessarily came
to the conclusion that there were two sons of Mani
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AND 1 OTHER
namely Babu and Balasundar. It is contended that
admittedly, Babu @ Balasundar had possessed a
valid driving licence and therefore, fastening of
liability on the owner would be incorrect.
13. However, learned counsel for the insurer supports
the judgment of the Tribunal and contends that the
owner of the Tata ACE did not appear before the
Tribunal and he cannot be permitted to file an appeal
and contend that the Tata ACE he owned was driven
by one Babu @ Balasundar.
14. The result of the above pleas insofar as the claim
petitions are concerned would not make any material
difference and that is because if the vehicle was
driven by Babu @ Balasundar and if he did not
possess a valid driving licence that would tantamount
to a breach of policy conditions, in which case, the
insurer had to satisfy the compensation and
thereafter had to recover the same from the owner of
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AND 1 OTHER
the vehicle. Consequently, in my view, it would be
appropriate to decide the claims for enhancement
and remand the cases to the Tribunal only to record
a finding as to whether the vehicle was driven by
Babu @ Balasundar who possessed valid driving
licence or by one Babu who did not possess driving
licence.
15. As far as compensation is concerned, it is noticed
that the deceased Masiyanna was aged 38 years and
the Tribunal has assessed the notional income at
Rs.4,000/-, since there was no proof of actual
income. In such cases, it would be appropriate to
adopt the notional income determined by the
Karnataka State Legal Services Authority, which, for
the accident of the year 2012, would be Rs.7,000/-.
Since the age of the deceased was 38 years, 40%
future prospects requires to the added and since
number of dependents were 4, 1/4th has to be
deducted towards personal expenses from the
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AND 1 OTHER
notional income, which makes his income to be
Rs.7,350/- (Rs.7,000 + 40% - ¼). Thus, the
claimants would be entitled to Rs.13,23,000/-
(Rs.7,350/- X 12 X 15) towards loss of dependency.
16. The claimants, being mother, wife and children of
deceased, would be entitled to Rs.48,400/- each i.e.,
in all Rs.1,93,600/- towards loss of consortium.
They would also be entitled to Rs.36,300/- under
conventional heads.
17. Thus, in all, the claimants of the deceased Masiyanna
would be entitled to Rs.15,52,900/- along with
interest at 6% p.a. from the date of petition till its
realization.
18. Insofar as the claim of the injured Lakshmana is
concerned, the Tribunal has assessed the income at
Rs.4,500/- and disability at 12%. In my view, since
Lakshmana had suffered fracture of three bones of
his right leg, it would be appropriate to treat the
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AND 1 OTHER
disability at 15%. Since there was no actual proof of
income, it would be appropriate to adopt the notional
income determined by the Karnataka State Legal
Services Authority, which, for the accident of the
year 2012, would be Rs.7,000/-. Thus, the claimant
would be entitled to Rs.1,76,400/- (Rs.7,000/- X 12
X 14 X 15%) towards loss of earning capacity.
19. Since Lakshmana was hospitalized for nearly 14 days
and had suffered 15% disability to the whole body
and since no amount has been awarded towards loss
of amenities and loss of earning during the laid up
period, it would be appropriate to award a sum of
Rs.50,000/- as against Rs.35,000/- towards pain
and sufferings and Rs.30,000/- towards loss of
amenities and to treat the laid up period as four
months and consequently, a sum of Rs.28,000/-
(Rs.7,000/- X 4 months) is awarded towards loss of
earnings during the laid-up period and a sum of
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AND 1 OTHER
Rs.25,000/- is awarded as against Rs.15,000/-
towards attendant charges, traveling expenses.
20. A sum of Rs.75,000/- awarded towards medical
expenses and Rs.25,000/- awarded towards future
medical expenses, being based on documentary
evidence, are affirmed.
21. Consequently, the award of the Tribunal is modified
and the following sums are awarded as
compensation:
As As
awarded awarded
Sl. Compensation
by the by this
No. under different
Tribunal Court
Heads
(Rs.) (Rs.)
1. Pain and sufferings 35,000 50,000
Loss of future 90,720 1,76,400
2.
earnings
3. Medical expenses 75,000 75,000
Future medical 25,000 25,000
4.
expenses
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AND 1 OTHER
Loss of income Nil 28,000
5. during the laid up
period
Attendant charges, 15,000 25,000
6. and traveling
expenses
Loss of amenities Nil 30,000
7.
in life
Total 2,40,720 4,09,400/-
22. Accordingly, the claimant is held entitled for
compensation of Rs.4,09,400/- as against
Rs.2,40,720/- along with interest at the rate of 6%
p.a. from the date of petition till its realisation.
23. The Insurance Company is directed to deposit the
amount of compensation awarded in the above cases
within two months from the date of receipt of a
certified copy of this judgment.
24. The apportionment of the compensation in respect of
both the claim petitions shall remain undisturbed.
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AND 1 OTHER
25. The amount in deposit shall be transferred to the
Tribunal.
26. The amounts deposited by the owner shall be
invested by Tribunal in a fixed deposit in any
Nationalised Bank, till the question regarding the
person who was driving the offending vehicle is
determined by the Tribunal.
27. The matters are remanded to the Tribunal to record a
finding as to whether the vehicle was driven by Babu
@ Balasundar who possessed the valid driving licence
or by one Babu who did not possess the driving
licence. The Tribunal shall club both the claim
petitions and conduct a trial together.
28. The insurer, which has taken up the plea that the
Tata ACE was driven by one Babu, son of Mani,
resident of Maskal Village, who did not possess the
valid driving licence, would have to necessarily
establish the same and the owner of the Tata ACE,
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AND 1 OTHER
who has contended that Tata ACE was driven by
Babu @ Balasundar - son of Mani, resident of
Maskalmatti Village, who possessed the valid driving
licence, would also have to establish the same.
29. If the Tribunal on assessment of the evidence
adduced by the insurer and the owner comes to the
conclusion that the Tata ACE was driven by Babu @
Balasundar, who possessed a valid driving licence or
Babu, who did not have the driving licence, it shall
accordingly fasten the liability on the insurer or the
owner as the case may be.
30. Since the parties are represented by their respective
counsel before this Court, they are directed to appear
before the Tribunal on 16.12.2024.
31. The appeals are accordingly disposed of.
Sd/-
(N S SANJAY GOWDA)
JUDGE
