Karnataka High Court
The Divisional Manager vs Ishwari on 15 November, 2024
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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NC: 2024:KHC-K:8510-DB
MFA No. 202260 of 2023
C/W MFA No. 201381 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 15TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
M.F.A NO. 202260 OF 2023 (MV-D)
C/W
M.F.A NO. 201381 OF 2023
IN M.F.A NO.202260 OF 2023
BETWEEN:
1. ISHWARI
W/O LATE RAJASHEKHAR @ RAJAPPA
AGE:38 YEARS
OCC. HOUSEHOLD
R/O ANAWAR VILLAGE
TQ:CHINCHOLI
DIST: KALABURAGI-585 301
2. CHANDRAMMA
Digitally signed by W/O SUGAPPA
SHAKAMBARI
AGE:68 YEARS
Location: HIGH
COURT OF OCC. HOUSEHOLD
KARNATAKA R/O ANAWAR VILLAGE
TQ:CHINCHOLI
DIST: KALABURAGI-585 301
...APPELLANTS
(BY SRI. HARSHAVARDHAN R. MALIPATIL, ADVOCATE)
AND:
1. SHIVASHARANAPPA
S/O SUGAPPA
AGE:58 YEARS
OCC: OWNER OF THE HERO MOTOR CYCLE
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MFA No. 202260 of 2023
C/W MFA No. 201381 of 2023
PASSION PRO
R/O ANAWAR VILLAGE
TQ:CHINCHOLI
DIST: KALABURAGI-585 301
2. THE DIVISION MANAGER
NATIONAL INSURANCE COMPANY LTD.,
BILGUNDI COMPLEX
OPPOSITE TO VIDHANA SOUDHA
MAIN ROAD
KALABURAGI-585 102
...RESPONDENTS
(BY SRI. S.A. KUMAR, ADVOCATE FOR R2;
VIDE ORDER DATED 13.08.2024 NOTICE TO R-2 IS
DISPENSED WITH)
THIS MFA IS FILED U/S 173 (1) OF MV ACT, PRYAING TO
ALLOW THIS APPEAL AND ENHANCE THE COMPENSATION TO
RS.27,05,560/- (EXCLUDING THE AMOUNT AWARDED BY THE
TRIBUNAL) ALONG WITH INTEREST BY MODIFYING THE
JUDGMENT AND AWARD OF THE SENIOR CIVIL JUDGE AND
MACT CHINCHOLI DATED 25.11.2022 IN MVC NO.858/2017 IN
THE INTEREST OF JUSTICE AND EQUITY.
IN M.F.A No.201381 OF 2023
BETWEEN:
THE DIVISIONAL MANAGER
NATIONAL INSURANCE COMPANY LTD.,
1ST FLOOR, BILGUNDI COMPLEX
OPP. MINI VIDHAN SOUDHA
MAIN ROAD
KALABURAGI-585 102
...APPELLANT
(BY SRI. S.A. KUMAR, ADVOCATE)
AND:
1. ISHWARI
W/O LATE RAJASHEKHAR @ RAJAPPA
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NC: 2024:KHC-K:8510-DB
MFA No. 202260 of 2023
C/W MFA No. 201381 of 2023
AGE:38 YEARS
OCC. HOUSEHOLD
R/O ANWAR VILLAGE
CHINCHOLI TALUKA AND
DIST: KALABURAGI-585 305
2. CHANDRAMMA
W/O SUGAPPA
AGE:72 YEARS
OCC. HOUSEHOLD
R/O ANWAR VILLAGE
CHINCHOLI TALUKA AND
DIST: KALABURAGI-585 305
3. SHIVASHARANAPPA
S/O SUGAPPA
AGE:57 YEARS
OCC: OWNER OF THE MOTOR CYCLE
BEARING REG.NO.KA-32/EN-7890
R/O ANWAR VILLAGE
CHINCHOLI TALUKA AND
DIST: KALABURAGI-585 305
...RESPONDENTS
(BY SRI. HARSHAVARDHAN R. MALIPATIL, ADVOCATE FOR R1
AND R2;
NOTICE TO R-3 SERVED)
THIS MFA IS FILED U/S 173 (1) OF MV ACT, PRYAING TO
MODIFY THE ORDER OF THE TRIBUNAL AND CALL FOR THE
TRIAL COURT RECORDS AND HEAR THE PARTIES AND SET
ASIDE THE JUDGMENT DATED 25.11.2022 AND AWARD DATED
07.12.2022 IN MVC NO.858/2017 IN THE COURT OF SENIOR
CIVIL JUDGE AND MACT AT CHINCHOLI, IN THE INTEREST OF
JUSTICE AND EQUITY.
THESE MFAs HAVING BEEN RESERVED FOR JUDGMENT
COMING ON FOR PRONOUNCEMENT OF THIS DAY,
RAMACHANDRA D. HUDDAR J., DELIVERED/PRONOUNCED
THE FOLLOWING:
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MFA No. 202260 of 2023
C/W MFA No. 201381 of 2023
CORAM: HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR)
These two appeals are directed against the judgment
and award passed by the Senior Civil Judge and M.A.C.T at
Chincholi in MVC No.858/2017 dated 25.11.2022 by the
2nd respondent and the claimants respectively in the said
Motor vehicle case.
2. For the sake of convenience, the parties are
addressed herein with reference to their rank before the
Tribunal.
The brief facts leading to the filing of the claim
petition is as under:-
3. This is a fatal case. The petitioner No.1 is the
wife and petitioner No.2 is the mother of deceased
Rajashekara who died in an accident. It is alleged that, on
11.04.2017 one Siddayya son of Shivarudrayya Matapathi
along with deceased Rajashekar alias Rajappa were
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returning to Anwar Village, Chincholi Taluk on Hero Honda
motorcycle bearing registration No.KA-32-EN-7890.
Siddayya was riding the motorcycle and deceased
Rajashekar @ Rajappa was the pillion rider. At about 4.30
p.m., when they reached near Madargi to Muttangi Road
near Gurupadeshwara temple, the rider of the motor bike
was riding the motorcycle in a rash and negligent manner
and lost control of the vehicle. Because of this, pillion
rider-Rajashekar fell down and sustained grievous injuries
on his head and other parts of the body. He was
immediately shifted to Manekhanahalli Government
Hospital and from there for further treatment he was
shifted to Bidar Government Hospital. Thereafter, he was
referred to Hyderabad KIMS Hospital for further
treatment. Even he was also admitted to Basaveshwara
Hospital, Kalaburagi. While returning to Chincholi at 5.00
p.m. on 13.4.2017 Rajashekara succumbed to the injuries.
It is stated that the claimants have spent more than
Rs.2,50,000/- towards his medical expenses.
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4. It is further stated in the petition that,
deceased was aged 40 years at the time of accident and
he was hale and healthy. He was an agriculturist by
profession. He was earning Rs.2,50,000/- per annum. He
was the only earning member in the family. Because of
this accident, the claimants have been put to great
hardship and loss as they were depending upon the
deceased. Thus, the claimants claimed compensation in
all, of Rs.43,20,000/- under all the relevant heads. The
claimants filed the claim petition seeking compensation.
5. The 1st respondent is the owner of the two
wheeler bearing Reg.No.KA-32-EN-7890 and the 2nd
respondent is the Insurance Company with which the
vehicle was insured. The 2nd respondent resisted the
petition by filing detailed counter refuting each and every
allegations set forth in the claim petition. It was pleaded
in the said counter that, the 1st respondent had obtained
the policy for two wheeler involved in the accident.
According to respondent No.2 there is a violation of the
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policy conditions by the respondent No.1. It is contended
by denying all the assertions; that, the claimants are not
entitled for compensation. The claim of the claimants is
exorbitant. Except denial nothing is stated by the
respondent No.2 in the counter. It is contended that rider
of motor bike was not holding effective driving licence at
the time of accident. It was prayed by the respondent
No.2 to dismiss the petition.
6. Despite service of notice on the respondent
No.1, the owner of the bike who is none else than the
brother of deceased, remained absent before the Tribunal,
therefore, he was placed ex-parte.
7. The learned Tribunal based upon the rival
pleadings of the both the parties framed in all 3 issues.
8. To prove the case of the claimants, claimant
No.1 entered the witness box as PW.1 and produced 8
documents marked as Exs.P1 to P8. On behalf of
respondent No.2, the Administrative Officer of Insurance
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Company was examined as RW.1 and got marked Exs.R1
to R13 and closed respondent No.2's evidence.
9. On hearing the arguments and based on oral
and documentary evidence adduced by the both the
parties, the learned Tribunal concluded that, the said
accident took place due to rash and negligent driving of
the two wheeler and proceeded to award Rs.16,14,440/-
under all the relevant heads, fastening liability to deposit
the compensation on respondent no.2.
10. Now, both the Insurance Company as well as
claimants have come up in these appeals. So far as
Insurance Company is concerned, it has challenged award
of compensation awarded to the claimants by denying its
liability to pay the compensation. Whereas, the claimants
have questioned the quantum of compensation so
awarded and according to the claimants, it is very meagre.
11. The learned counsel for respondent No.2-
Insurance Company with all vehemence submits that, the
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learned Tribunal has not considered the important aspects
with regard to the liability. It has committed error in
passing the judgment and award without considering the
actual facts. It is contended that respondent No.1 being
the owner of the motor bike remained ex-parte. The
appellant had filed the objections denying the liability and
also the accident. PW.1 was examined and cross-
examined by the claimants. The respondent No.1 is none
else than the brother of the deceased. Without
permission, the said vehicle was taken by the rider of the
motor cycle. It is further contended that, the witnesses so
examined before the Magistrate where the criminal case
was conducted have turned hostile and the accused was
acquitted of the charges levelled against him. Therefore,
it is collusive claim petition filed by the claimants. Though
the Tribunal has observed that, the appellant has not
challenged the charge sheet, etc., but such observation is
not justifiable. It is further contended that, the claimants
are not entitled for compensation as claimed. Therefore, it
is submitted by the learned counsel for the appellant-
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Insurance company to allow its appeal and set aside the
impugned judgment and award.
12. Per contra, the learned counsel for the claimant
submits that deceased was aged about 40 years at the
time of accident. He was earning Rs.2,50,000/- per
annum. But the Tribunal has taken the notional income at
Rs.10,250/- per month, which is very meagre. From all
sources, the deceased used to earn Rs.20,000/- per
month. He was a mason by profession as well as an
agriculturist. The learned Tribunal has awarded lower
compensation towards loss of estate so also towards
transportation of dead body and funeral expenses. The
medical bills have not been considered though produced
before the Court below. Thus, it is prayed by the learned
counsel for the claimants to allow the appeal and enhance
the compensation so awarded.
13. We have given our anxious consideration to the
arguments on both the side and perused the records.
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14. On perusal of the impugned award so passed in
this case, the learned Tribunal has passed the award
granting compensation under the following heads and
fastened the liability on the Insurance Company:
Sl. No. Heads Amount in Rs.
1. Loss of dependency 15,37,440-00
2. Funeral Expenses and 16,500-00
Transportation charges
3. Loss of Estate 16,500-00
4. Loss of Consortium 44,000-00
TOTAL 16,14,440-00
15. So far as accident is concerned, PW.1 being the
claimant has come before the Tribunal and spoken in line
with the contents of the FIR and other documents. In
support of claimant's case, he relied upon Ex.P1 to P7.
Amongst them, certified copy of the FIR, complaint Ex.P3
charge sheet show that because of the rash and negligent
riding of the motor bike by its rider owned by respondent
no.1, the said accident has taken place. In the said
accident, the husband of the claimant no.1 by name
Rajashekar @ Rajappa succumbed to the injuries even
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best efforts were made by the claimants to give treatment
which is not denied by respondent no.2.
16. It is also not the case of the Insurance
Company that the said accident has taken place due to
mechanical defect as stated in Ex.P.5 IMV report. Ex.P.7
are the bunch of three medical bills to show that, the
claimants have spent substantial money towards the
medical expenses to give best treatment to the deceased
but, he did not survive. Ex.P.4 and 6 are the post mortem
report and inquest report which are not disputed by the
defence i.e., Insurance Company. On scrupulous reading
of all these documentary evidence as per the say of the
claimants, accident is proved and in the said accident
deceased succumbed to the injuries.
17. Whereas in this case, a specific defence has
been put-forth by the defence-Insurance Company that
most of the witnesses so examined in the shape of
Chandayya, Ishwari, Tukaram Sunil and even
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Revansiddappa before the Criminal Court whose
depositions are produced at Ex.P.5 to P.12 show that, they
have turned hostile. Therefore, it is contended that
accident is not proved in accordance with law. Even the
Insurance Company relies upon the contents of statement
of Rajappa Ishwari at Ex.R.3 and 4. So far issuance of the
policy at Ex.R2 is concerned, Ex.R.1 is authorized letter.
Ex.R.13 is the certified copy of the judgment passed in CC
No.691/2017.
18. According to counsel for the Insurance
Company, as most of the witnesses have turned hostile in
the said criminal case, accident is not proved. But, the
Tribunal has come to the conclusion that charge sheet so
filed against the accused is not challenged by the
respondent No.2 before the appropriate forum. Though
several contentions have been taken up by the Insurance
Company before the Tribunal but, it is not the case of the
Insurance Company that, no accident has taken place. The
Tribunal has come to the conclusion that from the
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documentary evidence produced by the claimants, it is
duly established that the accident is duly proved in
accordance with law. Merely because the charge sheeting
witnesses have turned hostile, that does not mean that
the whole case so filed against the rider of the motor bike
is false. Till date charge sheet has not been challenged by
the Insurance Company before any forum. Therefore, in
the considered view of this Court as rightly observed by
the Tribunal, in view of the documentary evidence
produced by the claimants it is duly proved that the said
accident has taken place because of rash and negligent
driving of rider of offending motor bike, and in that
accident Rajashekhar @ Rajappa succumbed to the
injuries. We do not find any factual or legal error
committed by the Tribunal in coming to such conclusion.
Therefore, we find issue no.1 answered by the Tribunal is
based upon the facts brought on record by the claimant
before the Tribunal.
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19. So far as award of compensation is concerned,
the Tribunal has come to the conclusion that, as the
claimants have been able to prove the rash and negligent
driving by its driver owned by respondent no.1, it relied
upon the Hon'ble Apex Court judgment in National
Insurance Co. Ltd. v. Pranay Sethi, reported in (2017)
16 SCC 680, wherein, it is held that reasonable amounts
under the conventional heads are to be awarded to the
claimants. So also relying upon the said judgment, the
Tribunal has considered the age of the claimant as 40
years as per the PM Report Ex.P6. It was the only
document produced by the claimant/s to show the age of
the deceased. Contents of Ex.P6 is not denied by the
respondent-Insurance Company. As the age of the
deceased was taken as 40 years and as there is no
document produced by the claimants to show the actual
income of the deceased during his lifetime, considering the
guidelines issued by the Karnataka State Legal Services
Authority as the accident has taken place during 2017, the
Tribunal has taken into consideration the notional income
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of the deceased at Rs.10,250/- which according to us is
just and proper. The learned Tribunal has applied the ratio
laid down in Pranay Sethi Supra and has considered loss
of dependency so also loss of future prospects. It has
come to the conclusion that as the deceased was aged 40
years, the loss of future prospects is to be calculated at
25% of his total income. It comes to Rs.2,562/- thus, total
income of the deceased is at Rs.12,812/-. As the deceased
is having two dependents, 1/3rd of it has to be deducted
towards his personal expenses. Thus, the Tribunal has
come to the conclusion that the claimants are entitled for
total compensation of Rs.1,53,744/-. As deceased was
aged 40 years, proper multiplier is `15'. Thus, loss of
dependency is calculated at Rs.15,37,440/- (by
multiplying Rs.1,53,740 X 15). In our opinion, the
compensation awarded towards loss of dependency is just
and proper.
20. So far as loss of estate is concerned, as per the
judgment in Pranay Sethi supra, the Tribunal ought to
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have awarded loss of estate Rs.15,000 and funeral
expenses at Rs.15,000/-. So also towards transportation
of dead body etc. But, the award so passed in that respect
is on lower side. Therefore, the claimants are held entitled
for compensation of Rs.15,000/- towards loss of estate.
Rs.15,000/- with 10% increase towards funeral expenses
Rs.15,000/- with 10% increase for transportation of dead
body totaling Rs.33,000/-. Though the claimants have
produced medical bills for having taken the deceased to
the hospital when he was alive to give a better treatment
not only at Chincholi but also at Kalaburagi and
Hyderabad. They must have spent money towards same.
In the absence cogent evidence if Rs.30,000/- is awarded,
it would meet the ends of justice.
21. So far as claimant no.1 is concerned she is wife
and claimant no.2 is mother. As there is loss of consortium
to the claimant no.1, in view of Pranay Sethi supra she
is entitled for Rs.40,000/- towards consortium with
increase of 10% on the sum which comes to Rs.44,000/-
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Claimant No.2 has lost her son at the evening of her life,
therefore, towards loss of consortium to claimant no.2, if
Rs.40,000/- is awarded it would meet the ends of justice.
In view of Pranay Sethi supra 10% has to be increased,
that comes to Rs.44,000/-. Thus the claimants are entitled
to a total compensation of Rs.16,88,440/- together at the
6% p.a. from the date of petition till its realization as per
the table below:
Sl.No. Heads Amount in Rs.
1. Loss of dependency 15,37,440-00
2. Funeral Expenses and 16,500-00
Transportation charges
3. Loss of Estate 16,500-00
4. Loss of Consortium 88,000-00
(Rs.44,000 + Rs.44,000)
5. Medical Expenses 30,000-00
TOTAL 16,88,440-00
22. So far as liability is concerned as rightly
observed by the Tribunal except the interested testimony
RW.1, no documents are produced to show that there is
violation of policy conditions. Even type of the policy is
also not stated in the objection statement. There is denial
of said accident itself. In the absence of acceptable
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evidence from R2 Insurance Company, it can be held, the
Insurance Company is liable to pay the compensation
under law of indemnity as primary liability is on R1 the
owner of offending vehicle. Therefore, Insurance Company
is held liable to deposit the compensation.
23. In view of all these factual features, the appeal
filed by the Insurance Company is to be dismissed and
claimants appeal is to be allowed in part.
24. Accordingly, we pass the following:
ORDER
(i) Appeal filed by the claimants in MFA
202260/2023 is allowed in-part.
(ii) Claimants are held entitled for enhanced
compensation of Rs.16,88,440/- as
against Rs.16,14,440/- together with
interest @ 6% from the date of petition
till realization. The compensation
enhanced in this appeal would be
Rs.74,000/-
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(iii) Appeal filed by the Insurance Company in
MFA No.201381/2023 is dismissed.
(iv) There shall be modified award in the
above terms. Registry to transmit the
statutory deposit to the Tribunal forthwith.
(v) Send back the records to the Tribunal
along with copy of this judgment and
award forthwith.
Under the circumstance, there shall be no order
as to costs.
Sd/-
(S.SUNIL DUTT YADAV)
JUDGE
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
SK
