Karnataka High Court
Smt Sunita W/O Late Santosh And Ors vs Basawaraj S/O Sambanna Since Deceased ... on 25 October, 2024
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NC: 2024:KHC-K:7884
MFA No. 200667 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
MISCL. FIRST APPEAL NO.200667 OF 2021 (MV-D)
BETWEEN:
1. SMT. SUNITA
W/O LATE SANTOSH,
AGE: 32 YEARS,
OCC: HOUSEHOLD.
2. SHIVASHARANAPPA
S/O LATE SANTOSH,
AGE: 15 YEARS,
OCC: STUDENT.
3. PRIYANKA
D/O LATE SANTOSH,
Digitally signed AGE: 13 YEARS,
by RENUKA OCC: STUDENT.
Location: HIGH
COURT OF 4. KARTIK
KARNATAKA
S/O. LATE SANTOSH,
AGE: 11 YEARS,
OCC: STUDENT.
5. HANAMANTH
S/O SHARANAPPA,
AGE: 62 YEARS,
OCC: NIL.
6. SMT. CHANDRAMMA
W/O HANAMANTH,
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MFA No. 200667 of 2021
AGE: 58 YEARS,
OCC: HOUSEHOLD,
APPELLANT NOS.2 TO 4 ARE MINORS,
U/G OF THEIR NATURAL MOTHER
APPELLANT NO.1 SMT. SUNITA
ALL ARE R/O SALAHALLI,
TQ: CHITTAPUR,
DIST: KALABURAGI,
NOW RESIDING AT
VENKATESH NAGAR, KALABURAGI.
...APPELLANTS
(BY SRI SANJEEV PATIL, ADVOCATE)
AND:
1. BASAWARAJ S/O SAMBANNA,
SINCE DECEASED BY HIS LRS
SAMBANNA S/O MALKAPPA,
AGE: MAJOR, OCC: BUSINESS,
R/O: KANDGUL, TQ: CHITTAPUR,
DIST: KALABURAGI-585211.
2. HDFC ERGO GENERAL INSURANCE CO. LTD.,
THROUGH ITS BRANCH MANAGER,
1ST FLOOR, VIRUPAKSHA KRUPA,
OPP. KIMS MAIN GATE,
VIDYA NAGAR, HUBLI-580021.
...RESPONDENTS
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R2;
V/O DTD: 26.08.2021, NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING TO
ALLOW THIS APPEAL AND AWARD COMPENSATION OF
RS.15,00,000/- (EXCLUDING THE AMOUNT AWARDED BY THE
TRIBUNAL) ALONG WITH INTEREST AT 12% P.A. BY
MODIFYING THE JUDGMENT AND AWARD PASSED BY LEARNED
II ADDL. SENIOR CIVIL JUDGE AND MACT, KALABURAGI
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MFA No. 200667 of 2021
DATED 03.12.2019 IN MVC NO.346/2018 BY FIXING THE
ENTIRE LIABILITY OF PAYING COMPENSATION ON
RESPONDENT NO.2, INSTEAD OF FIXING IT ON RESPONDENT
NO.1.
THIS APPEAL, 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)
This is the claimants' appeal challenging the liability
and quantum. The Tribunal has dismissed the claim
petition as against the Insurance Company/respondent
No.2 and has also fastened 50% negligence on the
deceased. The said judgment and award is under
challenge.
2. The claimants filed a claim petition for having
lost one Santosh in a road traffic accident dated
14.02.2018. The said Santosh is the husband of appellant
No.1 and father of appellant Nos.2 to 4 and son of
appellant Nos.5 and 6. The Tribunal on examining the
evidence led in by both the parties was of the view that
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the husband of appellant No.1 was also negligent and was
responsible for the accident. The negligence was fixed at
50% on the deceased. The Tribunal determined the
compensation at Rs.13,47,000/-. However, proceeded to
dismiss the claim petition against respondent
No.2/Insurance Company on the premises that the driver
of the offending vehicle had no effective driving licence.
The said judgment is under challenge.
Finding on Liability:
3. The Tribunal has placed liability on the owner
of the offending vehicle, asserting that the vehicle's driver
did not hold a valid and effective driving licence at the
time of the incident. However, this position is in clear
contradiction to the legal principles established by the
Hon'ble Supreme Court in Pappu and Others vs. Vinod
Kumar Lamba and Another1, as well as the Full Bench
of this Court in New India Assurance Company
(2018) 3 SCC 208
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Limited vs. Yallavva and Another2, which addressed
the scope of third-party rights under motor vehicle
insurance claims.
4. In the case of Pappu supra, the Supreme Court
specifically addressed the issue of liability in situations
where there is a breach of a policy condition, such as a
driver's lack of a valid licence, and clarified that such a
breach does not absolve the insurer from its duty to
indemnify the third party under Section 149 of the Motor
Vehicles Act, 1988. The Court emphasized that the policy
breach between the insurer and insured does not affect
the statutory rights of third parties under the Act.
Furthermore, the Supreme Court held that the insurer is
required to satisfy the award to the third party and may
then seek recovery of the amount from the insured owner
of the offending vehicle, preserving the rights of innocent
third parties while allowing recourse for insurers against
policy breaches by insured parties.
(2020) 3 KCCR 1469
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5. Similarly, in the case of Yallavva supra, the
Full Bench of this Court reaffirmed the Supreme Court's
view, holding that the insurance company remains
obligated to indemnify the claimant despite any licencing
deficiencies on the part of the driver, given the
overarching legislative intent to protect third-party
claimants. The Court held that a lack of an effective
driving licence by the driver does not relieve the insurer of
liability to the third party, but rather entitles the insurer to
a "pay and recover" order against the insured, where the
insurer first satisfies the claim and subsequently recovers
the amount from the vehicle's owner.
6. In light of these precedents, the Tribunal's
findings on liability and the dismissal of the claim petition
as against Insurance Company are legally unsustainable,
as they contradict the binding principles laid down by both
the Apex Court and the Full Bench of this Court.
Accordingly, the Tribunal's finding on liability must be set
aside. The insurance company is liable to indemnify the
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claimant and can recover the amount from the vehicle's
owner as per the law established in the cases of
Pappu and Yallavva.
7. Insofar as quantum is concerned, in absence of
income proof, this Court is inclined to assess the income of
the deceased notionally at Rs.11,750/- having regard to
the fact that the accident is of the year 2018. 40% has to
be added towards future prospectus. The income is
assessed at Rs.16,450/- and since there are six
dependents, 1/4th is liable to be deducted. After deducing
1/4th, the income is assessed at Rs.12,337.5/- and by
applying multiplier of 16, the compensation under the
head of loss of dependency is re-determined as
Rs.23,68,800/-.
8. Under the conventional heads, since there are
six dependents, a sum of Rs.2,70,000/- is awarded.
Applying escalation of 10% in terms of the judgment of
the Apex Court in the case of National Insurance Co.
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Ltd., Vs. Pranay Sethi3, an additional sum of
Rs.54,000/- is awarded. Total compensation re-
determined by this Court works out to Rs.26,92,800/- as
against Rs.13,47,000/-.
9. In the light of findings recorded supra, this
Court passes the following:
ORDER
i. The appeal is allowed in part.
ii. The claimants are entitled for enhanced
compensation of Rs.13,45,800/- with
interest at the rate of 6% per annum from
the date of petition till its realization.
iii. Respondent No.2/Insurance Company shall
satisfy the award and thereafter, recover
the same from the owner of the offending
vehicle.
iv. The contributory negligence of 50:50 is
hereby confirmed.
(2017) 16 SCC 680
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v. The enhanced amount shall be apportioned
in terms of the judgment rendered by the
Tribunal.
Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE
RSP
CT-SW
