Karnataka High Court
Smt. Minaxi W/O Sadananda Belamkar vs Ashrafkhan S/O A Khan Kittur on 27 March, 2025
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MFA No. 103132 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE UMESH M ADIGA
MISCELLANEOUS FIRST APPEAL NO. 103132 OF 2018 (MV-D)
BETWEEN:
1. SMT. MINAXI W/O. SADANANDA BELAMKAR,
AGE 48 YEARS, OCC: HOUSEHOLD.
2. RAGAVENDRA S/O. SADANAND BELAMKAR,
AGE 30 YEARS, OCC: BANK EMPLOY.
3. SUMAN D/O. SADANAND BELAMKAR,
AGE 28 YEARS, OCC: HOUSEHOLD.
4. VINAYAK S/O. SADANAND BELAMKAR,
AGE 25 YEARS, OCC: STUDENT,
ALL ARE R/O. DHARWAD,
NOW AT HANGAL-581104.
TQ: HANGAL, DIST: HAVERI.
- APPELLANTS
(BY SRI. HARISH S. MAIGUR, ADVOCATE)
Digitally signed by
VISHAL NINGAPPA
PATTIHAL
Location: High AND:
Court of Karnataka,
Dharwad Bench
1. ASHRAFKHAN S/O. A. KHAN KITTUR,
AGE: MAJOR, OCC: BUSINESS,
R/O. JEENAGAR GALLI, MAGALWARPET,
AT: TQ: DHARWAD, DIST: DHARWAD-580001.
2. THE DIVISIONAL MANAGER,
THE NEW INDIA INSURANCE CO. LTD,
SRINATH COMPLEX, 2ND FLOOR,
NEW COTTON MARKET, HUBBALLI-580029.
- RESPONDENTS
(BY SRI. N. R. KUPPELUR, ADVOCATE FOR R2;
NOTICE TO R1 IS SERVED)
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MFA No. 103132 of 2018
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1)
OF MOTOR VEHICLES ACT, 1988, PRAYING TO MODIFY THE
JUDGMENT AND AWARD PASSED IN M.V.C NO.24/2015 BY THE
SENIOR CIVIL JUDGE AND AMACT, HANGAL, DATED
02.01.2018 BY ALLOWING THIS APPEAL WITH COSTS, IN THE
INTEREST OF JUSTICE AND EQUITY & ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA)
This appeal is by the claimants against the judgment
and award dated 02.01.2018 passed by the learned Sr.
Civil Judge & AMACT, Hangal in M.V.C. No. 24/2015
praying for enhancement of compensation as well as
directing the respondent No.2-insurer to pay compensation
with liberty to recover it from the owner of the offending
vehicle.
Parties are referred to as per their ranking before the
Tribunal.
2. Brief facts of the case are that on 05.07.2014 around
11.45 A.M., one Sadanand (deceased), husband of
claimant No.1 and father of claimants No.2 to 4, was going
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by walk by the side of Tadakod Oni in Dharwad. He met
with an accident due to rash and negligent riding of the
motorcycle bearing No. KA-31-J-8500 by its rider as a
result of which he sustained grievous injuries and while
undergoing treatment, on the same day he succumbed to
the injuries. It is further contention of the claimants that
deceased was aged 52 years, earning Rs.12,000/- per
month by working as a Pigmi Agent and maintaining the
family. Due to his sudden death, the family has been
suffering. With these reasons, they prayed to award
compensation of Rs.18 lakhs.
3. Respondent No.1-owner of the offending motorcycle
denied the content of the claim petition and prayed for
dismissing the claim petition. Respondent No.2-insurer
also denied the entire averments made in the petition. It
is further stated that its liability is restricted to terms and
conditions of the policy and insurance and holding of valid
and effective driving licence by the rider. With these
reasons prayed to dismiss the claim petition.
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4. From the rival contentions of the parties the Tribunal
framed necessary issues. Claimants to prove their case
examined one witness as PW1 and marked Exs.P.1 to
P.13. The respondents examined two witnesses as RW1
and 2 and marked one document as Ex.R.1.
5. The Tribunal after hearing both the parties and
appreciating the materials available on record held that
accident had taken place due to rash and negligent riding
of the motorcycle by its rider. It further held that age of
the deceased was 52 years, assessed his income at
Rs.5,000/- per month, deducted 1/4th of the same towards
personal expenses, applied multiplier of 11 and awarded
compensation towards loss of dependency. It also
awarded compensation under other heads. Total
compensation of Rs.6,29,200/- was awarded. The
Tribunal further held that rider of the motorcycle was a
minor and had no valid and effective driving licence.
Therefore absolved the liability of respondent No.2 from
paying the compensation and held that the owner of the
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motorcycle to pay compensation with interest at 7% p.a.
The claimants have filed this appeal contending
inadequacy of quantum of compensation so also fastening
liability on the respondent No.2 to pay compensation with
liberty to recover it from the owner.
6. Heard arguments of learned Advocate for claimants-
appellants as well as learned counsel for respondent No.2.
7. On perusal of the records it would emerge that the
Tribunal has held that Sadanand died due to the accident
in question. It is not in dispute since the respondents
have not challenged the said finding. The Tribunal
assessed income of the claimant at Rs.5,000/- per month,
in the absence of any proof of income. It appears to be on
lower side. As per the chart prepared by the Karnataka
State Legal Services Authority, the notional income of a
victim of an accident of the year 2014 could be assessed
as Rs.7,500/- per month. Accordingly income of deceased
is taken as Rs.7,500/- per month. In view of the ratio
of the Apex Court in National Insurance Co. Ltd. Vs.
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Pranay Sethi & Others reported in (2017) 16 SCC 680,
10% future prospects is added to the notional income of
the deceased, since the age of the deceased was 52 years.
8. The learned counsel for respondent No.2 vehemently
contended that the claimant No.2 is serving in the Bank
and he was not dependent upon the earnings of the
deceased. Therefore he cannot be considered as a
dependent. Claimants No. 1, 3 and 4 may be considered
as dependents and 1/3 of his income may be deducted
towards personal expenses instead of ¼ as taken by the
Tribunal. In that event, the deduction shall not be 1/4 but
it shall be 1/3.
9. Learned counsel for the appellants submits that in
the case of National Insurance Company Ltd. Vs.
Birender and others reported in (2020) 11 SCC 356,
the Hon'ble Supreme Court held that even if the claimants
are majors and having their own source of income they
are entitled for compensation under the head of loss of
dependency. He further submits that the Hon'ble
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Supreme Court in Civil Appeal No. 2323/2025 in the
case of Seema Rani & Ors. Vs. The Oriental Insurance
Co. Ltd. & Ors., following the judgment in Birender
(stated supra), held that major sons and daughters are
also entitled for compensation towards loss of
dependency. In view of the law laid down in the aforesaid
judgments the claimant No.2 can be considered as a
dependent on the earnings of the deceased.
10. It is pertinent to note that all the claimants are
residing together. If the deceased was also contributing
his earnings for the maintenance of the family, then the
family would be utilizing the earnings of the deceased.
Dependency does not mean that they should be
completely dependent on the income of the deceased.
Even if the deceased contributes for the expenses of the
entire family, that could also be considered, as held in the
aforesaid judgments. In view of the same, contention of
the learned counsel for respondent No.2 is not tenable.
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11. There are four dependents. Therefore the deduction
shall be taken at 1/4 as adopted by the Tribunal. It is not
in dispute that multiplier applicable would be 11. Thus the
compensation for which claimants are entitled towards loss
of dependency would be Rs.8,16,750/- i.e., (Rs.7,500/- +
Rs.750/- x 12 x 11 x ¼).
12. In view of the ratio laid down by the Apex Court in
the case of Magma General Insurance Co. Ltd. Vs.
Nanu Ram alias Chuhru Ram and Others reported in
(2018) 18 SCC 130, the claimants are entitled for
Rs.40,000/- each towards loss of consortium.
13. In addition to the above, the claimants are also
entitled for compensation towards medical expenses which
is already awarded by the Tribunal. Thus the claimants
are entitled for following compensation:
1. Loss of dependency 8,16,750.00
2. Loss of consortium 1,60,000.00
3. Loss of estate 15,000.00
4. Funeral expenses 15,000.00
5. Medical expenses 54,400.00
Total 10,61,150.00
Award of Tribunal 6,29,400.00
Enhancement 4,31,750.00
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14. Learned counsel for respondent No.2 submits that
interest on the compensation shall be awarded at the rate
of 6% p.a. The Tribunal awarded interest at the rate of
7% p.a. exercising its discretion. Therefore there is no
need to interfere in the said finding. However, on the
enhanced amount of compensation the claimants are
entitled for interest at the rate of 6% p.a. from the date of
petition till its realization.
15. Learned counsel for the appellants submits that rider
of the motorcycle was a minor and had no valid and
effective driving licence. Therefore as held by the Full
Bench of this Court in the case of New India Assurance
Co. Ltd. Vs. Yallavva and another reported in AIR
ONLINE 2020 KAR 986, the insurer is liable to pay
compensation and recover it from the owner of the
vehicle.
16. Learned counsel for respondent No.2 would submit
that admittedly the rider of the motorcycle at the time of
accident was a minor aged about 17½ years and was not
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entitled for obtaining licence until he completes age of 18
years. Therefore, there is fundamental breach of
conditions of the policy and hence the Insurance Company
cannot be directed to pay compensation and recover it
from the owner. He relied on the judgment of the Co-
ordinate Bench of this Court in the case of The New India
Assurance Co. Ltd. Vs. Bibi Nafisa in M.F.A. No.
7683/2014 c/w M.F.A. Cross Objection No. 54/2020.
The Co-ordinate Bench though referred the decision of the
Full Bench of this Court in the case of Yallavva stated
supra, but distinguished the facts in both cases. It is held
that minor is legally not entitled for a licence and hence no
chance of obtaining licence. But in case of major person,
who is eligible to obtain licence failed to obtain the same.
Hence both form different class. Hence, if minor was
riding/ driving the vehicle, then insurance company cannot
be made liable to pay the compensation and recover the
same from owner of the vehicle. With due respect to the
said view, the Full Bench of this Court has not made any
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such classifications but in Yallavva's case referred supra
other contingencies were also considered.
17. In the present case, the rider of the motorcycle was
aged more than 17 years but less than 18 years. Whether
he was a minor or a major but the status of both are one
and the same that they do not have driving licence and
were driving the vehicle without valid driving licence. That
amounts to violation of terms and conditions of policy by
the owner of the vehicle. Hence owner is liable to pay
compensation. The vehicle is covered by the policy of
insurance. Then the insurer is liable to pay the amount to
third parties and recover it from the owner of the vehicle.
Driving of a vehicle without valid licence either by major or
minor person is violation of law and wrong doer is liable
for punishment. In case of minor, some time his
guardian/ owner of the vehicle may be liable for
punishment for giving vehicle to a minor to drive. But for
contractual liability between insurer and insured the
liability of insured is the same in both the case. Moreover
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in a similar circumstance, Full Bench of this Court in the
case of Yallavva held that insurer is liable to pay
compensation and it may recover it from owner of the
vehicle and it is binding precedent. Hence the said law is
followed in this case and hold that insurer is liable to pay
compensation to the claimants and it is at liberty to
recover the same from the owner of the vehicle for
committing breach of the conditions of the policy.
18. For the aforesaid discussions, the following orders
are passed.
ORDER
(1) Appeal is allowed in part.
(2) Judgment and award dated 02.01.2018 passed
by the learned Sr. Civil Judge & AMACT, Hangal in
M.V.C. No. 24/2015 is modified.
(3) The claimants are entitled for enhanced
compensation of Rs. 4,31,750/- with interest at 6%
p.a. from the date of petition till realization, in
addition to amount awarded by the Tribunal.
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Respondent No.2-insurer shall deposit the entire
compensation amount before the Tribunal within six weeks
from the date of award. It is at liberty to recover the
entire compensation amount from the owner-respondent
No.1 in an appropriate proceedings.
Apportionment, deposit and release of the enhanced
amount shall be in terms of the award of the Tribunal.
However, the appellants are at liberty to apply to the
Tribunal for modification of the same since the matter is
pending for the last ten years.
Send a copy of this judgment to the trial Court.
Sd/-
(UMESH M ADIGA)
JUDGE
BVV /CT-AN
