Karnataka High Court

The Divisional Manager vs Savita And Ors on 6 March, 2025

Author: K Natarajan

Bench: K Natarajan

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                                                 NC: 2025:KHC-K:1492-DB
                                               MFA No. 200848 of 2024
                                           C/W MFA No. 200872 of 2024



                         IN THE HIGH COURT OF KARNATAKA

                                KALABURAGI BENCH

                      DATED THIS THE 6TH DAY OF MARCH, 2025

                                      PRESENT
                      THE HON'BLE MR. JUSTICE K NATARAJAN
                                        AND
                   THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL


                   MISCL. FIRST APPEAL NO.200848 OF 2024 (MV-D)
                                        C/W
                   MISCL. FIRST APPEAL NO.200872 OF 2024(MV-D)


              IN MFA.NO.200848/2024:

              BETWEEN:

                 THE DIVISIONAL MANAGER,
                 THE UNITED INDIA INSURANCE COMPANY LIMITED,
                 2ND FLOOR, CENTURY COMPLEX,
                 OPP. SANGAM TALKIES,
Digitally signed
by NIJAMUDDIN SUPER MARKET, KALABURAGI-585101.
JAMKHANDI        NOW REPRESENTED BY ITS AUTHORISED
Location: HIGH   SIGNATORY.
COURT OF
KARNATAKA
                                                           ...APPELLANT
              (BY SRI. MOHD ABDUL QUAYUM, ADVOCATE)

              AND:

              1.   SAVITA
                   W/O LATE BHEEMASHANKAR SHILVANT,
                   AGE: 40 YEARS, OCC: HOUSEHOLD,

              2.   SHREYA
                   D/O LATE BHEEMASHANKAR SHILVANT,
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                                 MFA No. 200848 of 2024
                             C/W MFA No. 200872 of 2024



     AGE: 16 YEARS, OCC: STUDENT, MINOR U/G OF
     RESPONDENT NO. 1

3.   SHRADHA
     D/O LATE BHEEMASHANKAR SHILVANT,
     AGE: 14 YEARS, OCC: STUDENT,
     MINOR U/G OF RESPONDENT NO. 1
     ALL RESIDENCE OF VANE GALLI VAIRAG,
     TQ. BARSHI, DIST. SOLAPUR (MAHARASHTRA) -
     413402,
     NOW RESIDING AT H.NO. 43,
     NEAR JAGRAN HANUMAN TEMPLE,
     GAZIPURA, KALABURAGI-585101.

4.   SANJEEV KUMAR
     S/O SUBHASHCHANDRA DOSHETTY,
     AGE: MAJOR, OCC: BUSINESS,
     OWNER OF TANKER BEARING
     REGN. NO. KA-32/C-4546,
     RESIDENCE OF KAMALAPUR,
     TQ. AND DIST. KALABURAGI-585313.

5.   BHAGIRATHI
     W/O LATE MALLIKARJUN SHILVANT,
     AGE: 68 YEARS, OCC: HOUSEHOLD,
     RESIDENCE OF VANE GALLI VAIRAG,
     TQ. BARSHI, DIST. SOLAPUR (MAHARASHTRA) -
     413402,
     (MOTHER OF THE DECEASED)

                                         ...RESPONDENTS

(BY SRI. BAPUGOUDA SIDDAPPA, ADVOCATE FOR R1 TO R3;
    SRI. SHIVAKUMAR S. SEERI, ADVOCATE FOR R4;
    SRI. RAVI G. MADABHAVI, ADVOCATE FOR R5)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, PRAYING TO CALL FOR THE
RECORDS IN M.V.C.NO. 672/2018 BY THE III ADDL. SENIOR
CIVIL JUDGE AND MACT KALABURAGI. B) SET ASIDE THE
JUDGMENT AND AWARD DATED 13.10.2023 PASSED IN
M.V.C.NO. 672/2018 BY THE III ADDL. SENIOR CIVIL JUDGE
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                                 MFA No. 200848 of 2024
                             C/W MFA No. 200872 of 2024



AND MACT KALABURAGI EXONERATING THE APPELLANT OF ITS
LIABILITY.


IN M.FA.NO. 200872 OF 2024:

BETWEEN:

THE DIVISIONAL MANAGER,
THE UNITED INDIA INSURANCE COMPANY LIMITED,
2ND FLOOR, CENTURY COMPLEX, OPP. SANGAM
TALKIES,
SUPER MARKET, KALABURAGI-585101.
NOW REPRESENTED BY ITS AUTHORIZED
SIGNATORY.

                                            ...APPELLANT

(BY SRI. MOHD ABDUL QUAYUM, ADVOCATE)

AND:

1.   SAVITA
     W/O LATE BHEEMASHANKAR SHILVANT,
     AGE: 40 YEARS, OCC: HOUSEHOLD.

2.   SHREYA
     D/O LATE BHEEMASHANKAR SHILVANT,
     AGE: 16 YEARS OCC: STUDENT,
     MINOR U/G RESPONDENT NO. 1

3.   SHRADHA
     D/O LATE BHEEMASHANKAR SHILVANT,
     AGE: 14 YEARS, OCC: STUDENT,
     MINOR U/G RESPONDENT NO. 1
     ALL ARE RESIDENCE OF VANE GALLI VAIRAG,
     TQ. BARSHI DIST. SOLAPUR (MAHARASHTRA) -
     413402
     NOW RESIDING AT H. NO. 43,
     NEAR JAGRAN HANUMAN TEMPLE, GAZIPURA,
     KALABURAGI -585101.
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                                      MFA No. 200848 of 2024
                                  C/W MFA No. 200872 of 2024



4.    SANJEEV KUMAR
      S/O SUBHASHCHANDRA DOSHETTY,
      AGE: MAJOR OCC: BUSINESS,
      OWNER OF TANKER BEARING REGISTER
      NO. KA-32/C-4546, R/O KAMALAPUR,
      TALUK AND DIST. KALABURAGI-585313.

                                               ...RESPONDENTS

(BY SRI. BAPUGOUDA SIDDAPPA, ADVOCATE FOR R1 TO R3;
    SRI. SHIVAKUMAR S. SEERI, ADVOCATE FOR R4)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, PRAYING TO CALL FOR THE
RECORDS IN MVC NO. 673/2018 BY THE III ADDL. SENIOR
CIVIL JUDGE AND MACT KALABURAGI. B) SET ASIDE THE
JUDGMENT AND AWARD DATED 13.10.2023 PASSED N MVC
NO. 673/2018 BY THE III ADDL. SENIOR CIVIL JUDGE AND
MACT KALABURAGI EXONERATING THE APPELLANT OF ITS
LIABILITY


    THESE APPEALS, COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:     HON'BLE MR. JUSTICE K NATARAJAN
           AND
           HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL


                      ORAL JUDGMENT

(PER: HON'BLE MR. JUSTICE K NATARAJAN)

MFA No.200848/2024 is filed by the Insurance company

as against the judgment and award passed by III Addl.

Senior Civil Judge and MACT, Kalaburagi in MVC

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No.672/2018, awarding compensation to the respondent-

claimants on quantum and fixing liability on Insurance

Company. MFA No.200872/2024 is filed challenging the

judgment and award passed by the same Tribunal in MVC

No.673/2018, awarding compensation by fixing the liability

on the Insurance Company.

2. Heard the arguments of learned counsel for the

appellant and learned counsel for the respondents.

3. The appellant/Insurance Company in both cases

is respondent No.2 and respondent No.1 to 3 are

petitioner Nos.1 to 3, the owner of the offending vehicle is

respondent No.1 and the mother of the deceased is

respondent No.3 before the Tribunal.

4. The ranks of the parties before the Tribunal are

maintained in this appeal for convenience.

5. The case of the claimants before the Tribunal in

MVC No.672/2018 was that they had filed a claim petition

under Section 166 of the Indian Motor Vehicles Act, 1988,

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seeking compensation of Rs.99,00,000/- for the death of

petitioner No.1's husband, Bhimashankar, who died in a

road traffic accident on 21.11.2017. It is alleged that on

21.11.2017 at about 8:30 a.m., the deceased

Bhimashankar, along with his son Ujwal (deceased in MFA

No.200872/2024), was traveling from Vairag to

Revansiddeshwar Temple, Ratkal, in a cruiser jeep bearing

No.MH-45/N-7878. When the jeep was about 2 km from

Aurad-B to Humnabad Main Road, the driver of a tanker

bearing No.KA-32/C-4546, came from the Humnabad side

at high speed in a rash and negligent manner, dashed

against the jeep. As a result, Bhimashankar sustained

grievous injuries and succumbed on the spot. The

connected appeal also states that his son Ujwal died in the

same accident. Consequently, the claimants filed a claim

petition seeking compensation in respective cases. The

petitioners contended that the deceased Bhimashankar ran

a sole proprietorship business, Mahalaxmi Jewelers, at

Vairag and was also engaged in agriculture, earning about

Rs.10,00,000/- per annum. Due to his untimely death, the

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claimants lost their earning member. The accident

occurred due to the rash and negligent driving of the

tanker by its driver (the respondent No.1 is the owner of

the Tanker) and therefore, respondent No.2-Insurance

Company is liable to pay compensation. Hence, they filed

the claim petition.

6. MVC No.673/2018 was filed by the mother of

the deceased along with the siblings, seeking

compensation of Rs.25,00,000/- for the death of the minor

son Ujwal. They took the same contentions as in MVC

No.672/2018.

7. After service of notice, the Insurance Company

appeared and filed a statement of objections, denying the

rash and negligent driving of the tanker driver, as well as

the age, income and occupation of the deceased. They

specifically contended that the driver of the tanker bearing

No.KA-32/C-4546 did not have any valid and effective

driving license at the time of the accident. However, they

admitted issuing an insurance policy in favor of respondent

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No.1 and contended that if any liability is imposed, it

should be subject to the terms and conditions of the

policy. They further contended that the terms and

conditions of the policy were violated by the owner of the

offending vehicle. Hence, they prayed for the dismissal of

the claim petitions.

8. The Tribunal, based on the pleadings, framed

the following issues:

"In MVC No.672/2018:

(i) Whether petitioners prove that on 21.11.2017 at about 8-30 A.M. near Aurad-B village on Humnabad Kalaburagi road, Bhimashankar husband of the petitioner No.1 met with an accident and died due to the rash and negligent driving of the Tanker bearing No.KA-32/C-4546?

(ii) Whether the 2nd respondent proves that the driver of the Tanker bearing No.KA-32/C-4546 was not holding valid and effective D.L. as on the date of accident?

(iii) Whether the petitioners prove that they are entitled for compensation? If so, how much and from whom?

(iv) What order or award?

In MVC No.673/2018:

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(i) Whether petitioners prove that on 21.11.2017 at about 8-30 A.M. near. Aurad-B. village on Humnabad Kalaburagi road, Ujwal son of the petitioner No.1 met with an accident and died due to the rash and negligent driving of the Tanker bearing No.KA-32/C-

4546?

(ii) Whether the 2nd respondent proves that the driver of the Tanker bearing No.KA-32/C-4546 was not holding valid and effective D.L. as on the date of accident?

(iii) Whether the petitioners prove that they are entitled for compensation? If so, how much and from whom?

(iii) What order or award?"

9. To prove his case, claimant No.1 examined

herself as PW-1 and got marked 13 documents in MVC

No.672/2018. Similarly, the same petitioner was examined

as PW-1 in MVC No.673/2018 and marked 9 documents.

The Insurance Company examined RW-1 to RW-3 and got

marked 13 documents in both cases. After hearing

arguments, the Tribunal answered issue No.1 in the

affirmative, issue No.2 in the negative and issue No.3 in

part affirmative. It awarded compensation of

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Rs.53,40,800/- in MVC No.672/2018 for the death of

Bhimashankar and Rs.6,77,500/- in MVC No.673/2018 for

the death of minor Ujwal. In both cases, the Tribunal fixed

liability on the Insurance Company. Being aggrieved by

both liability and quantum, the Insurance Company has

filed these two appeals.

10. The learned counsel for the appellant-Insurance

Company vehemently contended that the Tribunal erred in

fixing liability on the Insurance Company. According to

Ex.R-4, an extract of the driving license, the driver of the

offending vehicle held only a regular driver's license

without an endorsement for driving hazardous goods

vehicles. The Tribunal, however, wrongly fixed liability on

the Insurance Company. The appellant further submitted

that Ex.R-3 and Ex.R-4, produced by the RTO, along with

the evidence of RW-1 and the charge sheet filed by RW-1,

were not properly appreciated by the Tribunal. The

appellant also argued that some claimants had previously

filed a claim petition before the Tribunal, which was

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NC: 2025:KHC-K:1492-DB

allowed and in a batch of appeals before a single judge of

this Court in MFA No.200594/2020 and connected cases,

the Insurance Company's appeal was partly allowed, fixing

liability on the owner of the vehicle, but directing the

Insurance Company to pay and recover the same from the

owner of the offending vehicle. Therefore, they contended

that liability should be fixed on the vehicle owner in these

appeals as well. Additionally, he argued that the Tribunal

incorrectly calculated Bhimashankar's income, as it

considered only one year's business earnings instead of

the average income over three years. He also contested

the age determination of the deceased, stating that no

birth certificate or documentary proof was provided.

11. Per contra, the learned counsel for claimants

Nos.1 to 3 supported the Tribunal's judgment and award.

The learned counsel for petitioners contended that the

Tribunal has correctly accepted the respondents'

arguments and RW-1's evidence, which stated that the

offending vehicle's driver had a valid hazardous vehicle

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license. They further argued that Ex.R-3, produced by the

Insurance Company was an insufficient document.

Instead, Ex.R11 and Ex.R-12, obtained from the RTO,

confirmed that the driver's endorsement was valid from

13.11.2017 to 18.02.2018. These documents were not

produced before the learned single judge in the earlier

batch of appeals and a review petition (Review Petition

No.200015/2024 and connected matters) is pending

consideration before this Court. Hence, they prayed for the

dismissal of the appeals.

12. The learned counsel for the claimants fairly

admitted that the deceased Bhimashankar's average

income over the last three years should have been

considered for calculation of compensation. However, both

counsels agreed that the compensation awarded for the

minor child's death is undisputed, except on the liability.

13. We have considered the submissions and

perused the records. The points that arise for our

consideration are:

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i) Whether the Tribunal was justified in fixing liability on

the Insurance Company while awarding compensation?

ii) Whether the compensation awarded by the Tribunal

in MVC No.672/2018 was excessive or exorbitant,

requiring reduction? If so, to what extent?

iii) Whether the liability and award passed by the

Tribunal requires interference?

14. On perusal of the records, it is not in dispute

that the accident dated 21.11.2017 occurred due to a

head-on collision between the cruiser jeep bearing No.

MH-45/N-7878 and the tanker bearing No. KA-32/C-4546

on the Aurad-B to Humnabad road, due to which some

persons died and some were injured. The Tribunal, after

considering the evidence on record, including the FIR,

charge sheet, death certificate and post-mortem report,

rightly concluded that the accident occurred due to the

rash and negligent driving of the tanker driver. Therefore,

the only question that arises for our consideration is

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whether the liability fixed on the insurance company is

tenable or not. The Tribunal, while considering the liability,

relied upon Ex.R-11, the RTO extract concerning the

driving license of the offending vehicle's driver. Though,

RW-3 produced Ex.R-4 obtained from the RTO and in

cross-examination of RW-3, he has stated that he was not

aware of the driver holding a hazardous vehicle license

from 13.11.2017 till 18.02.2018, but he confirmed that

the driver had a valid license for hazardous vehicles from

26.10.2018 till 26.07.2019 as per Ex.R-4.

15. Based on this evidence, the Insurance Company

contended that there was no valid driving license for the

driver of the tanker. RW-2, the investigating officer, filed

the charge sheet, which also stated that the driver did not

have a proper driving license. Hence, the charge sheet

included an offence punishable under Section 180 of the

Cr.P.C. RW-3, the insurance company officer, was also

examined and he affirmed that there was no proper

driving license of the driver and the tanker.

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16. We have carefully examined the license extract

produced by RW-3. Ex.R-4 does not reveal the driving

license held by Santosh, the driver, from 13.11.2017

onwards. However, the RTO extract indicates that the

driving license was valid from 26.10.2018, but there is no

reference available in the said extract regarding the period

between 2017 and 2018. Ex.R-5, produced and examined

before the Court, contains an extract of the DL, which

clearly reveals that the driver of the vehicle held a valid

license for driving hazardous petroleum products from

13.11.2017 till 18.02.2018. This document corroborates

with Ex.R-11. Additionally, learned counsel produced

another extract of the DL before this Court dated

19.01.2024. This document clearly states at Serial Nos.9

and 10 that the endorsement for the driver to operate

hazardous vehicles was valid from 13.11.2017 till

18.02.2018. The accident in question occurred on

21.11.2017. The documents produced by learned counsel

for respondent No.4 clearly corroborate with Ex.R-11 and

Ex.R-5, which show that an endorsement was issued by

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the RTO confirming that Santosh, the driver of the

offending vehicle, possessed a valid license to operate

hazardous product-carrying vehicles.

17. Therefore, considering the same, we are of the

opinion that the driver of the vehicle had a valid and

effective driving license. Consequently, respondent No.1,

the owner of the vehicle, is liable to pay compensation.

The Insurance Company has not disputed the issuance of

the insurance policy and there is no violation of its terms

and conditions. Hence, the Insurance Company is liable to

pay the compensation. The Tribunal, after considering the

evidence on record has rightly held that the Insurance

Company was liable to pay compensation and correctly

fixed the liability on the insurance company. Hence, we do

not find any error in the findings to interfere in the appeal.

18. As regards the judgment passed by the Single

Bench of this Court in MFA No.200594/2020 and six

connected appeals, the Single Judge of this Court fixed the

liability on the owner of the vehicle, but directed the

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Insurance Company to pay and recover the compensation.

However, the endorsement produced by learned counsel

for respondent No.4 shows that Ex.P-11 was not placed

before the Single Judge. Learned counsel for respondent

No.4 now submits that he has already filed a review

petition in RP No.200015/2024 and connected matters,

which is pending consideration. In such a case, the

judgment passed by the Single Judge cannot be

considered for allowing this appeal in favor of the

insurance company.

19. Therefore, the Trial Court is justified in fixing

the liability on the insurance company. Hence, issue No.1

is answered in favor of claimants and against the

insurance company.

20. Regarding the quantum of compensation

awarded by the Tribunal for the death of Bhimashankar in

MVC No.672/2018, the income considered by the Tribunal

was Rs.4,00,648/- and Rs.9,011/- was deducted towards

taxes. Learned counsel for the appellant contended that

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the previous three years' income had been produced and

therefore, the average income of three years should have

been taken into account for calculating his income.

However, upon perusal of paragraph No.18 of the

impugned judgment, it is evident that the Tribunal

considered only the income of the year of the accident of

the deceased, which is not correct. We are of the opinion

that the average income for the years 2015-16, 2016-17,

and 2017-18 should have been considered while

calculating the compensation. The deceased's income for

the year 2015-16 was Rs.3,06,744/-, as per Ex.P-9; for

2016-17, it was Rs.3,39,932/-, as per Ex.P-10; and for

2017-18, it was Rs.4,00,648/-, as per Ex.P-11. The total

of these amounts works out to Rs.10,47,324/-, and the

average comes to Rs.3,49,108/-.

21. The taxes paid over three years were calculated

as Rs.2,465/-, Rs.5,828/-, and Rs.9,011/-, totaling

Rs.17,304/- and the average works out to Rs.5,768/-.

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22. If Rs.5,768/- is deducted from Rs.3,49,188/-, it

comes to Rs.3,43,340/-. This would be the net income.

Since the deceased was aged between 40 and 50 years

and was an unsecured employee earning based on

personal skills, 25% needs to be added towards future

prospects, as per the judgment of the Hon'ble Apex Court

in the case of National Insurance Company Limited V.

Pranay Sethi and Others reported in AIR 2017

Supreme Court 5157. Hence, Rs.85,835/-, being 25%, is

added to Rs.3,43,340/-, resulting in Rs.4,29,175/-. If 1/4

of the income is deducted towards personal expenses, it

works out to Rs.3,21,881/-. When this amount is

multiplied by 14, it comes to Rs.45,06,337/-, which will be

the actual compensation under the head of dependency.

23. Regarding the consortium, an amount of

Rs.1,60,000/- (considering there were three claimants and

respondent No.5, the mother) and Rs.30,000/- towards

conventional heads are awarded, the total comes to

Rs.46,96,337/-.

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24. Hence, we propose to award Rs.46,96,337/- as

compensation, as against Rs.53,40,800/- awarded by the

Tribunal.

25. As regards MFA No.200872/2024, we have

already held that liability is fixed on the insurance

company and the quantum is not in dispute. Therefore,

the appeal deserves to be dismissed.

26. Accordingly, we pass the following order:

ORDER

i. MFA No.200872/2024 is dismissed.

ii. MFA No.20848/2024 is allowed in part, and the compensation is reduced to Rs.46,96,337/- from Rs.53,40,800/-, along with 6% interest per annum, from the date of petition, till realization of entire compensation.