Karnataka High Court

Oriental Insurance Co. Ltd vs Mohammed Yusuf Mohaddinsab Mulla on 26 March, 2025

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                                                          NC: 2025:KHC-D:5628
                                                      MFA No. 100206 of 2017




                              IN THE HIGH COURT OF KARNATAKA,
                                      DHARWAD BENCH

                          DATED THIS THE 26TH DAY OF MARCH, 2025

                                             BEFORE
                          THE HON'BLE MR. JUSTICE UMESH M ADIGA

                   MISCELLANEOUS FIRST APPEAL NO. 100206 OF 2017 (MV-D)


                   BETWEEN:


                   ORIENTAL INSURANCE CO. LTD,
                   ISSUE OFFICE EXTN.
                   COUNTER AMBEJOGAI,
                   GAL NO.63, AND 69,
                   NAGAR PAISHAD COMPLEX, PARLI ROAD,
                   OPP: S.T. STAND AMBAJOGAI,
                   DIST: BEED MAHARASHTRA,
                   REPRESENTED THROUGH ITS
                   REGIONAL OFFICE,
                   SUMANGALA COMPLEX, II FLOOR,
                   LAMINGTON ROAD, HUBBALLI,
Digitally signed
by VISHAL          REPRESENTED BY
NINGAPPA
PATTIHAL           ITS DEPUTY MANAGER,
Location: High
Court of           PIN CODE: 580020.
Karnataka,
Dharwad Bench

                                                                 ...APPELLANT
                   (BY SMT. PREETI SHASHANK, ADVOCATE)


                   AND:


                   1.   MOHAMMED YUSUF MOHADDINSAB MULLA,
                        AGE 49 YEARS, OCC: DRIVER,
                        R/O. H.NO.1071/3,
                        8TH CROSS, ADILSHA GALLI,
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                                         NC: 2025:KHC-D:5628
                                     MFA No. 100206 of 2017




     NEW GANDHI NAGAR,
     DIST: BELAGAVI,
     PIN CODE: 290016.


2.   SMT. MUMTAZ MOHAMMED YUSUF MULLA,
     AGE 47 YEARS, OCC: HOUSEHOLD,
     R/O. H.NO.1071/3,
     8TH CROSS, ADILSHA GALLI,
     NEW GANDHI NAGAR,
     DIST: BELAGAVI,
     PIN CODE: 290016.


3.   MR.SUDHAKAR BHANUDAS TOPNDE,
     AGE MAJOR, OCC: BUSINESS,
     R/O. AT SONIMOHA,
     POST: CHOUNDI,
     TQ: DHARUR, DIST: BEED,
     MAHARASHTRA STATE,
     PIN CODE: 431708.
                                                ...RESPONDENTS
(BY SRI. G. N. NARASAMMANAVAR, ADV.FOR
     SRI. LOKESH MALAVALLI, ADV. FOR R1 & R2;
     NOTICE TO R3 IS SERVED)


      THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1)
OF MOTOR VEHICLES ACT, 1988, PRAYING TO CALL FOR THE
RECORDS CONNECTED WITH MVC.2862/2013 ON THE FILE OF
THE V ADDL. DISTRICT AND SESSIONS JUDGE AND MACT VI,
BELAGAVI, EXAMINE THE SAME AND SET ASIDE THE AWARD
DATED 20.10.2016 IN THE INTEREST OF JUSTICE.


      THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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                                                   NC: 2025:KHC-D:5628
                                             MFA No. 100206 of 2017




                      ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA)

1. This appeal is by the appellant-insurer

challenging the judgment and award dated 20.10.2016

passed in MVC No.2862 of 2013 on the file of the learned

V Addl.District and Sessions Judge and MACT-VI, Belagavi

(for short, 'the Tribunal').

2. Parties are referred to as per their ranking

before the Tribunal.

3. Brief facts of the case are that on 17.01.2013 at

about 10:20 a.m., the deceased Nasarullah s/o

Mohammad Yusuf Mulla, who is the son of claimants met

with an accident near Hira Auto Consultant Garage, Uzwal

nagar, Belagavi due to rash and negligent driving of lorry

bearing registration No.MH-23/1233 by its driver. Due to

the accident he sustained grievous injuries and succumbed

to the injuries at the spot. Deceased was aged about 18

years and he was working as a mechanic to repair fridges

and earning Rs.300/- per day. He was contributing his

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earning to the maintenance of the family. Due to his death

claimants have been suffering. With these reasons prayed

to award compensation. s

4. Respondent No.2 filed written statement

denying the contention of the claimants. It is further

stated that the owner of the lorry had violated the terms

and conditions of policy of insurance and plying the vehicle

beyond permitted limit. The driver of the offending vehicle

had no driving licence at the time of accident, therefore

respondent No.2 is not liable to pay the compensation.

5. From the rival contentions of the parties the

Tribunal framed necessary issues.

6. Claimants to prove their case examined one

witness as PW1 and marked 13 documents as per Exs.P1

to P13. Respondent examined one witness as RW1 and

marked 3 documents as Exs.R1 to R3.

7. After hearing both the parties the Tribunal held

that accident occurred due to rash and negligent driving of

lorry by its driver resulting in death of Nasarullah. The

Tribunal assessed the age of deceased as 18 years,

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applied multiplier as 18 and assessed income of the

deceased at Rs.6,000/- added 50% of the income towards

future prospects and deducted 50% of the income towards

personal and living expenses and awarded compensation

under the head of loss of dependency. The Tribunal has

awarded following amount of compensation:

i. Loss of dependency :Rs.9,72,000.00 ii. Loss of love & affection :Rs.1,00,000.00 iii. Transportation of body :Rs. 25,000.00 iv. Loss of estate :Rs.1,00,000.00 Total :Rs.11,97,000.00

8. The Tribunal held that owner and insurer are

jointly and severely responsible to pay the compensation.

Being aggrieved by the said judgment and award, insurer

challenged the same in the present appeal on the ground

of its liability to pay compensation as well as quantum of

compensation.

9. Heard the arguments of both the sides.

10. Fact of accident is not in dispute. Death of

Nasarulla is also not in dispute. Therefore there is no need

to re-consider the same.

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11. Learned counsel for the appellant contends that

the Tribunal has added 50% of the income towards future

prospects and it is not permissible according to settled

law. Since the deceased had no fixed salary therefore at

the most 40% of the income could be added towards

future prospects and on that basis compensation can be

re-calculated.

12. Learned counsel for the appellant further

submitted that the amount of compensation awarded

under the conventional head is also on higher side. And

further submits that as per the law laid down in the case

of National Insurance Company Limited Vs.Pranay

Sethi and others reported in (2017) 16 SCC 680 as

well as in the case of Magma General Insurance Co.

Ltd., Vs. Nanu Ram and others reported in (2018) 18

SCC 130, the compensation may be awarded under the

conventional heads.

13. Learned counsel for the claimants vehemently

contends that Tribunal has awarded just and reasonable

amount of compensation and it does not call for any

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interference by this Court. Claimants have lost their young

son, aged about 18 years who was looking after them.

Considering the said fact the amount of compensation

awarded by the Tribunal is on lower side, therefore prayed

for dismissal of the appeal.

14. The Tribunal has taken income of the deceased

as Rs.6,000/- per month. As held in the case of Pranay

Sethi referred supra in the case of death of person on

vehicle accident aged below 40 years, 40% of his income

shall be added towards future prospects. Same could be

applied to the present case instead of 50%. Undisputedly

the multiplier applicable is 18 years. He was unmarried

therefore 50% of his income has to be deducted towards

personal and living expenses. On that basis compensation

is to be re-calculated under the head loss of dependency.

15. As rightly submitted by the learned counsel for

the appellant amount of compensation awarded under the

conventional head also is on higher side and not in

accordance with the ratio of law laid down in the case of

Pranay Sethi referred supra. Therefore compensation has

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to be re-calculated and awarded under the conventional

head. Accordingly the following amount of compensation is

awarded:

i. Loss of dependency :Rs.9,07,200.00 ii. Medical expenses :Rs.1,13,000.00 iii. Loss of consortium :Rs. 80,000.00 iv. Loss of estate :Rs. 15,000.00 v. Funeral expenses :Rs. 15,000.00 Total :Rs.11,30,200.00

16. The claimants are entitled for Rs.11,30,200 as

against Rs.11,97,000/- awarded by the Tribunal.

17. The claimants are also entitled for interest on

the said amount of compensation as awarded by the

Tribunal.

18. The main contention of the appellant is that

driver of the offending vehicle has no valid and effective

licence to drive the said class of vehicle. In spite of denial

of the said fact owner of the vehicle did not produce the

licence of the driver therefore adverse inference has to be

drawn. Similarly the said vehicle had permit to ply within

the State of Maharashtra and the place of accident is at

Belagavi. Therefore without proper permit driver of the

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said vehicle travelled beyond the permitted limit. On both

counts owner of the offending vehicle committed breach of

conditions of policy and hence respondent No.2-insurer is

not liable to pay the compensation.

19. Learned counsel for the claimants vehemently

contends that it is the duty of the insurer to prove that

driver of the offending vehicle had no valid and effective

driving licence and it was travelling beyond permit limit.

Except the evidence of RW1, there are no other materials

to prove that driver of the offending vehicle had no licence

to drive the said class of vehicle and the said vehicle had

traveled beyond the permitted limit. Therefore the said

contention needs to be rejected. He further submits that

even if the said contention is accepted then it is not in

dispute that the said vehicle was insured with respondent

No.2 and policy was in force as on the date of accident.

Therefore the insurer be directed to pay the compensation

and it may be at liberty to recover the same from the

owner of the vehicle.

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NC: 2025:KHC-D:5628

20. RW1 in his evidence has stated that driver of

the lorry has no valid licence. He denied suggestion of

claimants that driver of the said lorry had valid and

effective driving licence. Claimants have also not produced

the driving licence. RW1 has also stated that he has not

enquired regarding the permit of the said vehicle.

Claimants have produced the permit. The said permit

shows that it was permitted to ply within the State of

Maharashtra. Admittedly accident occurred within State of

Karnataka. It proves that owner of the vehicle violated

permit limit. The Tribunal in the impugned judgment held

that since the said vehicle had permit and hence it can ply

in Karnataka also. The said reason assigned by the

Tribunal is not correct.

21. It is not in dispute that the driver of the

offending vehicle had no valid driving licence to drive said

class of vehicle at the time of accident. Both these facts

are violation of condition of policy of insurance. However it

is not in dispute that policy of insurance was in force as on

the date of the accident. As held in the case of Rani &

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Others Vs. National Insurance Company Limited &

Others reported in 2018 ACJ 2430, the Hon'ble Apex

Court has held that insurer shall pay the compensation

and it can recover it from the owner of the vehicle.

22. For the aforesaid reasons, this Court proceed to

pass the following:

ORDER

i. Appeal is allowed in part.

ii. The impugned judgment and award dated

20.10.2016 passed in MVC No.2862 of 2013

on the file of the learned V Addl.District and

Sessions Judge and MACT-VI, Belagavi is

modified.

iii. The claimants are entitled for compensation

of Rs.11,30,200/- as against Rs.11,97,000/-

awarded by the Tribunal with interest at the

rate of 6% per annum from the date of

petition till its realization.

iv. Respondent No.2 shall deposit the said

amount within 6 weeks from the date of

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passing of the award and it is at liberty to

recover the same from the owner of the

vehicle in an appropriate proceedings.