Karnataka High Court
Smt. Devamma W/O. Late Abalappa vs S. Hazeepeera S/O. Rahiman on 16 January, 2025
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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MFA No. 101051 of 2022
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.101051 OF 2022 (MV-D)
BETWEEN:
1. SMT. DEVAMMA W/O. LATE ABALAPPA,
AGE. 31 YEARS, OCC. HOUSE WIFE,
R/O. YENNI VIDAGERI, SURPUR TALUK,
YADAGIRI DISTRICT-585223.
2. PRASHANTH S/O. LATE ABALAPPA,
AGE. 15 YEARS OLD,
MINOR, BY GUARDIAN AND NATURAL
MOTHER SMT. DEVAMMA, I.E., APPELLANT NO.1.
3. ARJUNA S/O. LATE ABALAPPA,
AGE. 12 YEARS,
MINOR BY GUARDIAN AND NATURAL
MOTHER SMT. DEVAMMA I.E., APPELLANT NO.1.
ALL ARE RESIDENTS OF YENNI VIDAGERI,
Digitally signed by SURPUR TALUK,
MALLIKARJUN YADAGIRI DISTRICT-585223.
RUDRAYYA KALMATH
Location: HIGH ...APPELLANTS
COURT OF (BY SRI R.H.ANGADI, ADVOCATE)
KARNATAKA
AND:
1. S. HAZEEPEERA S/O. RAHIMAN,
AGE. 38 YEARS, OCC. DRIVER OF LORRY
BEARING REGN. NO.AP-02/TA-7434,
R/O. RAYALA CHERVU VILLAGE,
YADIKI TALUK, ANANTHAPUR DISTRICT,
A.P. STATE-510051.
2. GADIGE RAGHUNATHA REDDY
S/O. NARAYANA REDDY,
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MFA No. 101051 of 2022
AGE. 47 YEARS, OCC. OWNER OF LORRY
BEARING REGN. NO.AP-02/TA-7434,
R/O. DOOR NO.1/195-1, GANESH NAGAR,
1ST WARD, TADAPATRI, ANANTHAPUR DISTRICT,
A.P. STATE-510051.
3. THE DIVISIONAL MANAGER,
THE NEW INDIA ASSURANCE COMPANY LIMITED,
6.5 UPSTAIR, NEAR KARNATAKA BANK CIRCLE,
C.B. ROAD, TADAPATRI,
BY NEAREST OFFICE:
THE DIVISIONAL MANAGER,
THE NEW INDIA ASSURANCE COMPANY LIMITED,
STATION ROAD, HOSPET-583201.
4. HULUGAPPA S/O. YAMUNAPPA,
AGE. 67 YEARS,
(FATHER OF DECEASED)
R/O. YANNI VADAGERI,
SURPUR TALUK,
YADAGIR DISTRICT-585223.
5. SMT. JETTAMMA W/O. HULUGAPPA,
AGE. 62 YEARS,
(MOTHER OF DECEASED)
R/O. YENNI VADAGERI,
SURPUR TALUK,
YADAGIRI DISTRICT-585223.
...RESPONDENTS
(BY SRI M.Y. KATAGI, ADVOCATE FOR R3;
R1, R2, R4 & R5 - NOTICE SERVED.)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173 (1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO
MODIFY THE JUDGMENT AND AWARD DATED 23.04.2015 PASSED IN
MVC NO.623/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND JMFC-CUM-MEMBER, MACT-IV, HOSAPETE, BY
ENHANCING THE COMPENSATION FROM RS.10,49,000/- TO
RS.24,00,000/- AND CONSEQUENTLY FIX THE LIABILITY ON
RESPONDENT NO.3 I.E., INSURANCE COMPANY AND ETC.,.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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MFA No. 101051 of 2022
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)
This appeal is filed by the claimants/dependants of the
deceased Abalappa challenging the judgment and award
dated 23.04.2015, passed by the Principal Senior Civil Judge
and JMFC cum Member, MACT-IV, Hospete, in MVC
No.623/2014, seeking enhancement of compensation and to
fasten liability on the Insurance Company to pay the
compensation.
2. Heard the arguments and perused the material
placed before the Court.
3. The occurrence of accident, death of the deceased
Abalappa in a road traffic accident, are not in dispute in this
case.
4. In this case, the tribunal has awarded
compensation under various heads as under:
Sl. Heads. Amount in
No. (Rs.)
1. Towards loss of dependency. 8,64,000
2. Towards loss of consortium. 1,00,000
3. Towards loss of love and affection. 50,000
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4. Funeral expenses. 25,000
5. Loss of estate. 10,000
Total: 10,49,000
5. The tribunal awarded lesser amount of
compensation contrary to the principles of law decided by
the Hon'ble Supreme Court. Therefore, the same is required
to be enhanced by modifying the judgment and award of the
tribunal.
6. The deceased was aged 38 years old as on the
date of accident and was a driver by profession. The accident
is of the year 2014. Hence, in the absence of proof of
income, notional income is to be taken at Rs.7,500/- per
month, as recognized by the Karnataka State Legal Services
Authority. In view of the decision of the Hon'ble Apex Court
in case of National Insurance Company Limited vs.
Pranay Sethi and others, reported in (2017) 16
Supreme Court Cases 680, considering the age of the
deceased, 40% of the income is to be added towards loss of
future prospects in life. There are five dependents.
Therefore, 1/4th of the income is to be deducted towards his
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personal and living expenses. Considering the age of the
deceased, the appropriate applicable multiplier is 15.
Therefore loss of dependency is re-assessed and quantified
at Rs.14,17,500/- (Rs.7,500 + 40% minus 1/4th x 12 x 15).
7. In view of the decision of the Hon'ble Supreme
Court in the case of MAGMA GENERAL INSURANCE CO.
LIMITED V. NANU RAM & OTHERS, reported in 2018 ACJ
2782 and in the case of PRANAY SETHI (SUPRA), the
claimants are entitled to Rs.40,000/- each under the head
'loss of consortium', along with 10% escalation. There are
five dependents who are father and mother, wife and two
sons. Accordingly, Rs.2,20,000/- (Rs.40,000 x 5 + 10%) is
awarded under the head 'loss of consortium including loss of
love and affection'.
8. Further, a compensation of Rs.15,000/- each is
awarded under the head 'loss of estate' and 'funeral and
transportation' respectively, along with 10% escalation.
Therefore under these heads Rs.33,000/- (Rs.15,000 x 2 +
10%) is awarded.
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9. Thus, the claimants would be entitled for total
compensation under various heads as under:
Sl. Heads. Amount in
No. (Rs.)
1. Towards loss of dependency 14,17,500
2. Towards loss of consortium 2,20,000
(40,000 x 5 +10%)
3. Towards loss of estate and 33,000
transportation of dead body &
funeral expenses.
(15,000 x 2 + 10%)
Total: 16,70,500
10. Therefore, the claimants are entitled for total
compensation of Rs.16,70,500/- along with interest at the
rate of 6% p.a. from the date of filing of the petition till
realization, as against Rs.10,49,000/- awarded by the
tribunal.
11. The tribunal has fastened the liability to pay
compensation on the owner of the offending vehicle on the
reason that the driver of the lorry was not holding driving
licence to drive heavy goods vehicle. It is submitted that the
driver of the lorry was holding the driving licence to drive
LMV and Medium Transport Vehicle. Therefore, there is
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infraction proved. Hence the Insurance Company is liable to
be exonerated from liability to pay compensation. The owner
is liable to pay compensation as rightly held by the tribunal.
12. The insurance company is able to establish the
defence as per sub-section (2) of section 149 of M.V.Act.
However, the claimants are third party to the lorry. Hence as
per sub-section (1), (5) and (7) of section 149 of the
M.V.Act, and also as per the principle of law laid down by the
Hon'ble Supreme Court in the cases of PAPPU AND
OTHERS Vs. VINOD KUMAR LAMBA AND ANOTHER
reported in (2018) 3 SCC 208; NATIONAL
INSURANCE COMPANY LIMITED VS. SWARAN
SINGH AND OTHERS reported in (2004) 3 SCC
297; and also as per the Full Bench decision of this Court in
the case of NEW INDIA ASSURANCE COMPANY LIMITED
VS. YELLAVVA AND ANOTHER reported in 2020 ACJ
2560, the insurance company shall satisfy the claim at the
first instance to the claimants and then recover it from the
owner of the offending vehicle. However, the insurance
company is at liberty to file execution petition before the
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jurisdictional executing Court as against the owner of the
offending vehicle and may seek attachment of movables or
immovable properties or both, till recovery is made and also
the recovery process can be as per the decision of the
Hon'ble Supreme Court in ORIENTAL INSURANCE CO.
LTD., VS. NANJAPPAN AND OTHERS, reported in 2004
AIR SCW 952.
13. Therefore, the insurance company is directed to
deposit the compensation within eight weeks from the date
of receipt of a certified copy of this judgment at the first
instance and then recover it from the owner of offending
vehicle as discussed above.
14. In the result, I proceed to pass the following:
ORDER
i) The appeal is allowed in part.
ii) The judgment and award dated
23.04.2015, passed by the Principal Senior Civil
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Judge and JMFC cum Member, MACT-IV, Hospete,
in MVC No.623/2014, stands modified.
iii) The claimants are entitled for total
compensation of Rs.16,70,500/- along with
interest at the rate of 6% p.a. from the date of
petition till its realization, as against the
compensation of Rs.10,49,000/- awarded by the
tribunal.
iv) The claimants are not entitled for
interest for the delayed period of 1698 days in
filing the appeal.
v) The insurance company shall deposit
the amount within a period of eight weeks from
the date of receipt of a copy of this judgment.
vi) The insurance company shall satisfy
the claim at the first instance to the claimants and
then recover it from the owner of the offending
vehicle.
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vii) The insurance company is at liberty to
file execution petition before the jurisdictional
executing Court as against the owner of the
offending vehicle and may seek attachment of
movables or immovable properties or both, till
recovery is made and also the recovery process
can be as per the decision of the Hon'ble Supreme
Court in Oriental Insurance Co. Ltd., vs.
Nanjappan and others, reported in 2004 AIR
SCW 952.
viii) Send back the trial Court records along
with a copy of this judgment and award to the
tribunal.
ix) No order as to costs.
x) Draw award accordingly.
Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE
MRK
CT: UMD.
