Karnataka High Court

Smt.Saraswati And Ors vs Benjamin And Ors on 11 February, 2025

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                                                            NC: 2025:KHC-K:971
                                                       MFA No. 201887 of 2018
                                                   C/W MFA No. 201590 of 2019



                                 IN THE HIGH COURT OF KARNATAKA,

                                        KALABURAGI BENCH

                            DATED THIS THE 11TH DAY OF FEBRUARY, 2025

                                              BEFORE
                                 THE HON'BLE MR. JUSTICE C M JOSHI

                            MISC. FIRST APPEAL NO.201887 OF 2018 (MV-D)
                                                C/W
                            MISC. FIRST APPEAL NO.201590 OF 2019 (MV-D)
                       IN MFA NO.201887/2018:

                       BETWEEN:

                       1.   SMT. BHAGYAMMA W/O LATE BHIMARAYA @ BHIMU,
                            AGE: 34 YEARS, OCC: HOUSEHOLD,
                       2.   KUMAR BASAVARAJA S/O LATE BHIMARAYA @
                            BHIMU,
                            AGE: 09 YEARS, OCC: STUDENT,
                       3.   KUMAR AMBU S/O LATE BHIMARAYA @ BHIMU,
                            AGE: 07 YEARS, OCC: STUDENT,
                       4.   KUMAR NAGARAJ S/O LATE BHIMARAYA @ BHIMU,
                            AGE: 05 YEARS, OCC: STUDENT,
          Digitally
          signed by
                            APPELLANTS NO.2 TO 4 ARE MINORS
          LUCYGRACE
LUCYGRACE Date:             U/G OF APPELLANT NO.1.
          2025.02.13
          10:52:12 -
          0800
                       5.   SRI. SHARANAPPA S/O SIDDAPPA,
                            AGE: 60 YEARS, OCC:NIL,
                            (DIED ON 08-10-2017),
                       6.   SMT. MAHADEVI W/O SHARANAPPA,
                            AGE: 58 YEARS, OCC: COOLIE,
                            (DIED ON 24-12-2016),
                            ALL ARE R/O: ANKALAGA VILLAGE,
                            TQ. JEWARGI, DIST. KALABURAGI.

                                                                 ...APPELLANTS

                       (BY SRI. NAGARAJ PATIL, ADVOCATE)
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                                  MFA No. 201887 of 2018
                              C/W MFA No. 201590 of 2019



AND:

1.   MALLAPPA S/O ANNARAO,
     AGE: 36 YEARS, OCC: DRIVER,
     R/O: MALAGATTI VILLAGE, TQ. CHITTAPUR,
     DIST. KALABURAGI-585 211.

2.   SRI. BENJAMIN S/O RANGAPPA,
     AGE: MAJOR, OCC: OWNER OF THE VEHICLE,
     R/O: HOUSE NO.E/95, MALAGATTI VILLAGE,
     TQ. CHITTAPUR, DIST. KALABURAGI-585 211.

3.   CHOLAMANDALAM MS GENERAL INSURANCE CO.
     LTD.,
     ASIAN PLAZA, 2ND FLOOR, STATION ROAD,
     NEAR S.V.PATEL CHOWK, KALABURAGI-585 102,
     THROUGH ITS OFFICER.

4.   SRI ABDUL RAHAMAN S/O ABDUL RASHEED,
     AGE: MAJOR,
     R/O: PATHAN GALLI, SHAHABAD,
     TQ. CHITTAPUR, DIST. KALABURAGI-585 228.
                                          ...RESPONDENTS
(BY SRI. SUBHASH MALLAPUR, ADV. FOR R3;
NOTICE TO R1 IS DISPENSED WITH VIDE ORDER DATED
23.09.2022;
NOTICE TO R2 AND R4-SERVED, BUT UN-REPRESENTED)

       THIS MFA IS FILED UNDER SECTION 173 (1) OF THE

MOTOR VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT

AND AWARD DATED 12.07.2018 PASSED IN MVC.NO.836/2016

ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC AT JEWARGI

AND ALLOW THIS APPEAL BY ENHANCING THE COMPENSATION

AMOUNT     Rs.14,99,999/-   ONLY   AS   CLAIMED   BY   THE

APPELLANTS BEFORE THIS HON'BLE COURT AND ETC.,
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                                 MFA No. 201887 of 2018
                             C/W MFA No. 201590 of 2019



IN MFA NO.201590/2019:

BETWEEN:

1.   SMT. SARASWATI W/O RAYAPPA,
     AGE: 37 YEARS, OCC: HOUSEHOLD,

2.   MAHADEVI D/O RAYAPPA,
     AGE: 20 YEARS, OCC: STUDENT,

3.   NAGAMMA D/O RAYAPPA,
     AGE: 19 YEARS, OCC: STUDENT,

4.   SIDDAPPA @ SIDDU S/O RAYAPPA,
     AGE: 16 YEARS, OCC: STUDENT, MINOR,

5.   LAXMI D/O RAYAPPA,
     AGE: 10 YEARS, OCC: STUDENT, MINOR,
     APPELLANTS NO.4 & 5 ARE MINOR,
     U/G OF APPELLANT NO.1 SARASWATI.

6.   MARLINGAPPA S/O RAYAPPA,
     AGE: 63 YEARS, OCC: NIL,

     ALL ARE R/O: VILLAGE MALGATTI,
     TQ. CHITTAPUR, DIST. KALABURAGI,
     NOW RESIDING AT H.NO.231/2,
     GANGA NAGAR, BRAHMPUR,
     KALABURAGI.

                                             ...APPELLANTS

(BY SRI. NAGARAJ PATIL, ADVOCATE)

AND:

1.   BENJAMIN S/O RANGAPPA,
     AGE: MAJOR, OCC: BUSINESS,
     OWNER OF TRUCK BEARING REG.
     NO.KA-39/4328 (AS PER RC BOOK),
     R/O: H.NO.E/95, VILLAGE MALGATTI,
     TQ. CHITTAPUR, DIST. KALABURAGI-585 211.
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                                    MFA No. 201887 of 2018
                                C/W MFA No. 201590 of 2019



2.   SRI ABDUL RAHAMAN S/O ABDUL RASHEED,
     AGE: MAJOR,
     R/O: PATHAN GALLI, SHAHABAD,
     TQ. CHITTAPUR, DIST. KALABURAGI-585 228.


3.   THE LEGAL MANAGER,
     CHOLAMANDALAM MS GENERAL INSURANCE
     COMPANY LIMITED,
     DIVISIONAL OFFICE, ASIAN PLAZA,
     NEAR TIMMAPURI CIRCLE,
     KALABURAGI-585 102.


                                            ...RESPONDENTS


(BY SRI. SUBHASH MALLAPUR, ADV. FOR R3;
NOTICE TO R1 AND R2-SERVED, BUT UN-REPRESENTED)


      THIS MFA IS FILED UNDER SECTION 173 (1) OF THE

MOTOR VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT

AND AWARD DATED 17.10.2018 PASSED IN MVC.NO.601/2016

ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND MACT AT

KALABURAGI AND ALLOW THIS APPEAL BY ENHANCING THE

COMPENSATION     AMOUNT    OF    Rs.14,99,999/-   ONLY   AS

CLAIMED BY THE APPELLANTS BEFORE THIS HON'BLE COURT

AND ETC.,



      THESE APPEALS COMING ON FOR FINAL HEARING, THIS

DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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                                    MFA No. 201887 of 2018
                                C/W MFA No. 201590 of 2019



CORAM:     HON'BLE MR. JUSTICE C M JOSHI


                     ORAL JUDGMENT

(PER: HON'BLE MR. JUSTICE C M JOSHI)

Heard the learned counsel for the appellants and the

respondents.

02. Being aggrieved by the judgments in

MVC.No.836/2016 by the learned Senior Civil Judge and

JMFC, Jewargi and MVC.No.601/2016 by the Principal

Senior Civil Judge and MACT, Kalaburgi, the petitioners

have approached this Court in MFA.No.201887/2018 and

MFA.No.201590/2019 respectively.

03. The respondents in both these appeals are one

and the same.

04. The factual matrix of the case is that an

accident took place on 10.03.2016, wherein two persons

by name by Bhimu @ Bhimaraya and Rayappa died in the

accident and the petitioners are the dependents of the

deceased. On 10.03.2016 the deceased - Bhimaraya and

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Rayappa were traveling in the Lorry bearing Reg.No.KA-

39-4323 owned by the respondent No.2 - Sri. Benjamin

and they were transporting the Shahabad stones. The

driver of the said vehicle drove the same in a negligent

manner and about 2:00 p.m. while overtaking another

vehicle, drove on the extreme right side and dash to the

roadside bridge, resulting in the said Lorry turning turtle

and fell into a ditch. Due to the said accident, the said

Bhimu and Rayappa, who were in the said Lorry sustained

fatal injuries and died while on the way to the hospital.

The respective petitioners contended that Bhimu was aged

35 years, working as a coolie, earning Rs.12,000/- per

month and the family has lost it's bread earner. As such,

they are entitled for compensation. The dependents of

Rayappa contended that the deceased was a getting a

salary of Rs.12,000/- per month and Rs.200/- per day as

Bhatta and they have lost their bread earner. As such,

they are entitled for adequate compensation.

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05. On being served with the notice, the

respondents appeared and the respondent - insurance

company contended that the driver of the Lorry was not

having a valid driving license and there were violations of

the terms and conditions of the policy. It has contended

that the compensation claimed is highly exorbitant and

imaginary. It also disputed the age, income and

occupation of the deceased.

06. The Tribunal framed appropriate issues in both

these petitions and evidence was led. In

MVC.No.836/2016, the petitioner No.1 was examined as

PW.1 and 7 documents were marked as Ex.P.1 to Ex.P.7.

The official of the respondent - insurance company was

examined as RW.1 and Ex.R.1 to 4. In MVC.No.601/2016

the petitioner No.1 was examined as PW.1 and Ex.P.1 to

Ex.P.11 were marked. The official of the insurance

company was examined as RW.1 and Ex.R.1 to 4 were

marked in the evidence.

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07. After hearing both the sides both the Tribunals

held that the insurance company is to be absolved from

paying any compensation on account of the vehicle being

a heavy goods vehicle and the laden weight of it was

16,200 kgs. As such, the driver should have had a license

to drive a transport vehicle. The driver having only a

license to drive LMV. There is violation of the terms and

conditions of the policy. Therefore, the liability to pay the

compensation was a saddled upon the owner of the

vehicle.

08. In MVC.No.836/2016 a compensation of

Rs.9,34,000/- was awarded and in MVC.601/2016, a sum

of Rs.13,35,760/- was awarded to the petitioners under

the following heads:-

IN MVC.NO.836/2016 :-

  Sl.                  Heads                 Compensation
  No.                                          Awarded
  1.     Loss of dependency                 Rs.8,64,000/-

(Rs.54,000/- x 16 (multiplier) = Rs.08,64,000/-

2. Loss of Estate Rs.15,000/-

3. Loss of love and affection Rs.40,000/-

4. Funeral expenses Rs.15,000/-

         Total                              Rs.8,34,000/-

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IN MVC.NO.601/2016 :-

  Sl.                 Heads                   Compensation
  No.                                           Awarded
  1.     Loss of dependency for              Rs.12,65,760/-
         petitioners
  2.     On Traditional heads
         A. Loss of Estate                   Rs.15,000/-
         B. Towards funeral expenses         Rs.15,000/-
         C. Loss of consortium               Rs.40,000/-
         Total                               Rs.13,35,760/-

09. Being aggrieved by the said judgments, the

petitioners have approached this Court in the appeal.

10. The learned counsel appearing for the

appellants submits that the Tribunals should have

considered the un-laden weight of the vehicle as depicted

from the 'B' extract of the registration certificate, which is

at Ex.R1 and 4. It is submitted that un-laden weight of the

vehicle was 6040 kgs. Therefore, the Tribunals failed to

note that it is the un-laden weight, which has to be

considered, but not the laden weight. Further, he submits

that the compensation awarded by the Tribunals is on the

lower side. The notional income of the deceased persons

has not been considered in a proper way.

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11. A perusal of Ex.R.1 and 4, 'B' extracts of the

registration certificates shows that the permitted laden

weight is 16,200 kgs and the un-laden weight of the

vehicle is 6040 kgs.

12. The Apex Court in the case of Mukund

Dewangan v. Oriental Insurance Company Limited1,

has held as below:-

"60. Thus, we answer the questions which are referred to us thus:

60.1. "Light motor vehicle" as defined in Section 2(21) of the Act would include a transport vehicle as per the weight prescribed in Section 2(21) read with Sections 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act 54 of 1994.

60.2. A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg would be a light motor vehicle and also

(2017) 14 SCC 664

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motor car or tractor or a roadroller, "unladen weight" of which does not exceed 7500 kg and holder of a driving licence to drive class of "light motor vehicle" as provided in Section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg or a motor car or tractor or roadroller, the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under Section 10(2)(d) continues to be valid after Amendment Act 54 of 1994 and 28-3-2001 in the form."

13. It is also pertinent to note that the above

judgment of the Apex Court has been reiterated by a

Constitution Bench of the Court in the case of Bajaj

Alliance General Insurance Company Limited vs.

Ramba Devi and others2, in Civil Appeal

No.841/2018.

(2024) 1 SCC 818

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14. Therefore, there cannot be any doubt that it is

the un-laden weight which has to be considered. A feeble

argument by the learned counsel for the respondent -

insurance company is advanced saying that it is applicable

to the transport vehicles, but not the heavy goods

vehicles. Obviously, the Apex Court has noticed that the

class of heavy goods vehicle has been removed in view of

the 1994 amendment. Therefore, there is no such class of

heavy goods vehicle for the purpose of issuing a license.

Therefore, it is crystal clear that both the Tribunals have

erred in holding that there is violation of terms and

conditions of the policy, since the driver did not have a

license to drive a transport vehicle. A license to drive LMV

is sufficient. Therefore, the impugned judgments to that

extent are to be set aside.

15. There is no acceptable evidence to show the

income of the deceased. Therefore, notional income has to

be considered. The guidelines issued by the KSLSA for

settlement of disputes before Lok-Adalath prescribe a

notional income of Rs.8,750/- per month for the year

2016. In umpteen number of judgments, this Court has

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held that the guidelines issued by the KSLSA are in

general conformity with the wages fixed under the

Minimum Wages Act. Therefore, they are acceptable.

Hence, the notional income of the deceased is considered

at Rs.8,750/-.

16. Coming to the quantum of the compensation, in

MVC.No.836/2016, the deceased Bhimu was aged 35

years and was a coolie. Therefore, adding 40% towards

the future prospects, which amounts to Rs.3,500/-, the

effective multiplicand would be Rs.12,250/-. Hence, the

compensation is calculated as Rs.12,250/- x 12 x 16 x 3/4

= Rs.17,64,000/- towards the loss of dependency by

holding multiplier of 16 and personal expenses at 1/4th.

17. In addition to it, the petitioners are also entitled

for a sum of Rs.52,000/- under head of loss of consortium.

A sum of Rs.19,500/- towards funeral expenses. A sum of

Rs.19,500/- towards the loss of a Estate, after escalating

10% per every 03 years in the light of the dictum of Apex

Court in the case of National Insurance Company

Limited vs. Pranay Sethi3.

(2017) 16 SCC 680

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18. Thus, the petitioners in MVC.No.836/20116

entitled for a sum of Rs.9,21,000/- under the following

heads:-

  Sl.   Heads                      Compensation Awarded
  No.                              by this Court
  1.    Loss of dependency         Rs.17,64,000/-
  2.    Loss of consortium         Rs.52,000/-
  3.    Funeral expenses           Rs.19,500/-
  4.    Loss of Estate             Rs.19,500/-
        Total                      Rs.18,55,000/-
        Less: Awarded by the       Rs.9,34,000/-
        Tribunal
        Total enhancement          Rs.9,21,000/-

19. Insofar as the petitioners in MVC.No.601/2016

is concerned, it is stated that he was aged 40 years and

was a coolie. Adding 25% i.e., Rs.2,187/- towards the

future prospects for the notional income of Rs.8,750/-, the

effective multiplicand would be Rs.10,937/-. Hence, the

loss of dependency is calculated as Rs.10,937/- x 12 x 15

x 3/4 = Rs.14,76,495/- by adding multiplier of 15 and

personal expenses at 1/4th.

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20. In addition to it, the petitioners are also entitled

for a sum of Rs.52,000/- under head of loss of consortium.

A sum of Rs.19,500/- towards funeral expenses. A sum of

Rs.19,500/- towards the loss of a Estate.

21. Thus, the petitioners in MVC.No.601/20116

entitled for a sum of Rs.2,31,735/- under the following

heads:-

  Sl.    Heads                       Compensation     Awarded

  No.                                by this Court

  1.     Loss of dependency          Rs.14,76,495/-
  2.     Loss of consortium          Rs.52,000/-
  3.     Funeral expenses            Rs.19,500/-
  4.     Loss of Estate              Rs.19,500/-
         Total                       Rs.15,67,495/-
         Less: Awarded by the        Rs.13,35,760/-
         Tribunal
         Total enhancement           Rs.2,31,735/-

22. Hence, appeals deserve to be allowed in part.

Therefore, the following;

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ORDER I. The appeals are allowed in part.

II. The appellants in MFA.No.201887/2018 are entitled

for a sum of Rs.9,21,000/- in addition to what has

been awarded by the Tribunal along with interest at

the rate of 6% p.a. from date of petition till the date

of deposit.

III. The appellants in MFA.No.201590/2019 are entitled

for a sum of Rs.2,31,735/- in addition to what has