Karnataka High Court
Yamanamma W/O Late Nagappa ... vs Basawaraj S/O Sharanappa Hugar, on 14 August, 2020
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14th DAY OF AUGUST 2020
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
MFA No.24054/2012 (MV) C/W
MFA No.20051/2012
IN MFA No.24054/2012
BETWEEN:
1. SMT.YAMANAMMA W/O LATE NAGAPPA KYATAPANNAVAR,
AGE: 52 YEARS,
2. HEMMANNA @ HEMAPPA S/O LATE NAGAPPA KYATAPANNAVAR,
AGE: 26 YEARS,
3. CHANNABASAPPA S/O LATE NAGAPPA KYATAPANAVAR,
AGE: 24 YEARS,
4. HIREKKA @ HIRIYAVVA D/O NAGAPPA KYATAPANAVAR,
AGE: 21 YEARS,
5. MARIYAWWA D/O LATE NAGAPPA KYATAPANAVAR,
AGE: 17 YEARS,
6. PARAWATHI D/O LATE NAGAPPA KYATAPANAVAR,
AGE: 16 YEARS,
ALL R/AT: HOSA GONDABAL,
TQ/DIST: KOPPAL.
(APPELLANTS 5 AND 6 BEING MINOR REPTD., BY NATURAL
GUARDIANSMT.YAMANAMMA W/O NAGAPPA KYATAPANAVAR
APPELLANT NO. 1)
.. APPELLANTS
(BY SRI.SIDDAPPA SAJJAN, ADV. FOR
SRI.MRUTYUNJAY TATA BANGI, ADV.)
2
AND:
1. SRI.BASAWARAJ S/O SHARANAPPA HUGAR,
AGE: 24 YEARS, R/AT: HOSAGONDABAL VILLAGE,
TQ & DIST: KOPPAL.
2. LEGAL MANAGER,
SHRIRAM GENERAL INSURANCE CO., LTD.,
E/8, EPIP RICO INDUSTRIAL AREA,
SITAPUR, JAIPUR, RAJASTHAN - 302022.
3. BASAMMA D/O LATE NAGAPPA KYATAPANAVAR,
AGE: 19 YEARS, R/AT: HOSA GONDABAL,
TQ & DIST: KOPPAL.
.. RESPONDENTS
(BY SRI.SURESH S.GUNDI, ADV. ADV. FOR R2,
R1 & R3 DISPSENSED WITH)
THIS APPEAL IS FILED UNDER U/SEC.173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DTD 20-08-2011 PASSED IN
MVC.NO.594/2010 ON THE FILE OF THE MEMBER, ADDL. MACT AND
PRESIDING OFFICER, FAST TRACK COURT-I, KOPPAL, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
MFA No.20051/2012
BETWEEN:
LEGAL MANAGER, SRIRAM GENERAL INSURANCE CO.LTD.,
E/8EPIP, RICO, INDUSTRIAL AREA,SITAPURA,
JAIPUR (RAJASTHAN) 302022 REPTD. BY ITS
LEAGAL OFFICER, S-5, 3RD FLOOR, MONARCH
CHAMBER, INFANTRY ROAD, SHIVAJI NAGAR,
BANGALORE-560 001.
....APPELLANT
(BY SRI.SURESH S.GUNDI, ADV.)
AND:
1. YAMANAMMA W/O. LATE NAGAPPA KYATAPANAVAR
AGE : 51 YRS, OCC: AGRIL.,
R/O. HOSA GONDABAL, TQ & DIST : KOPPAL
3
2. HEMMANNA S/O. LATE. NAGAPPA KYATAPANAVAR
AGE : 25 YRS, OCC : AGRIL.,
R/O. HOSA GONDABAL, TQ & DIST : KOPPAL
3. CHANNABASSAPPA S/O. LATE NAGAPPA KYATAPANAVAR
AGE :23 YRS, OCC : AGRIL.,
R/O. HOSA GONDABAL, TQ & DIST : KOPPAL.
4. HIREAKKA D/O. LATE NAGAPPA KYATAPANAVAR
AGE : 20 YRS, OCC : AGRIL.,
R/O. HOSA GONDABAL, TQ & DIST : KOPPAL
5. BASAMMA D/O. LATE NAGAPPA KYATAPANAVAR
AGE: 18 YRS, OCC: AGRIL.
R/O. HOSA GONDABAL, TQ & DIST : KOPPAL
6. MARIYAWWA D/O. LATE NAGAPPA KYATAPANAVAR
AGE : 17 YRS, OCC: AGRIL. R/O. HOSA GOND
TQ L& DIST : KOPPAL.
7. PAWAWATHI D/O. LATE NAGAPPA KYATAPANAVAR
AGE : 16 YRS, OCC : AGIL.,
R/O. HOSA GONDABAL, TQ & DIST : KOPPAL
R6 AND R7 ARE MINORS AND THEY ARE REP.BY
N/G R1 YAMANAMMA N.KYATAPPANAVAR.
8. BASAVARAJ S/O. SHARANAPP HUGAR
AGE: 23 YRS, OCC : DRIVER / OWNER
OF APE VEHICLE BEING ITS REGD NO.
KA 37/7911, R/O. HOSAGONDABAL VILLAGE,
TQ & DIST : KOPPAL
.. RESPONDENTS
(BY SRI.SIDDAPPA SAJJAN, ADV. FOR
SRI.MRUTYUNJAY TATA BANGI, ADV.)
THIS APPEAL IS FILED UNDER U/SEC. 173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DTD:20-08-2011 PASSED IN
MVC NO.594/2010 ON THE FILE OF THE MEMBER, ADDL. MACT AND
PRESIDING OFFICER, FAST TRACK COURT-I AT KOPPAL, AWARDING
THE COMPENSATION OF RS.1,59,000/- WITH INTEREST AT THE RATE
OF 6% P.A., FROM THE DATE OF PETITION TILL ITS DEPOSIT.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
4
JUDGMENT
These appeals, though listed for admission, are taken up for final disposal with the consent of the learned counsel appearing for the parties.
2. These appeals under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) have been filed by the claimants and Insurance Company being aggrieved by the judgment dated 20.08.2011 passed by the Additional MACT & Fast Track Court-I, Koppal, in M.V.C.No.594/2010.
3. MFA No.24054//2012 is filed by the claimants being aggrieved by the quantum of compensation and MFA No.20051/2012 is filed by the Insurance Company aggrieved by the liability being fastened upon the Insurance Company.
4. Parties will be referred to as per their ranking before the Claims Tribunal.
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5. Facts giving rise to the filing of the appeals briefly stated are that, on 17.05.2010 at about 11.30 a.m., the deceased Nagappa along with his wife to sell the groundnuts that they had grown were traveling in a goods vehicle bearing Reg.No.KA-37/7911 owned by respondent No.1. When they came near Chukankal village at the curve, respondent No.1-owner driving it in a rash and negligent manner to the sudden turn rendering the vehicle turning upside down. Due to which, the deceased sustained grievous injuries to the head and the wife sustained injuries to other parts of the body. Immediately, the deceased was shifted to Government Hospital, Koppal where he succumbed to his injuries.
6. The claimants filed a petition before the Tribunal under Section 166 of the Act on the ground that the death of the deceased namely, Nagappa has put the family into penury as he was only earning member of the family which has seven members. He used to earn Rs.6,000/- p.m. out 6 of the agricultural work and accordingly claimed a compensation to the tune of Rs.8,00,000/- along with interest.
7. On service of notice, respondent No.1-owner of the vehicle remain absent and respondent No.2-Insurance Company appeared and filed its objections denying the averments made in the petition. It was admitted that the goods vehicle bearing Reg.No.KA-37/7911 which was involved in the accident was covered under insurance, but Insurance Company denied that the driver of the vehicle was driving it in a rash and negligent manner and also contended that the driver of the goods vehicle did not have a valid and effective driving licence at the time of the accident. Hence, there was violation of policy conditions. It is further contended that the deceased and claimant No.1- wife of the deceased were traveling in the goods vehicle as unauthorized passengers, hence, the Insurance Company 7 was not liable to pay any compensation as there was violation of the policy conditions.
8. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence.
9. The claimants, in order to prove their case, examined wife of the deceased namely, claimant No.1 as P.W.1 and got exhibited 14 documents namely Exs.P1 to Ex.P14. Respondent-Insurance Company examined two witnesses as R.Ws.1 and 2 and marked about 5 documents as Exs.R1 to R5.
10. The Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the driver of the vehicle, as a result of which, the deceased sustained grievous injuries and succumbed to the same. The Tribunal further held that the claimants are entitled to a compensation of Rs.1,59,000/- along with interest at the rate of 6% per 8 annum and held that the Insurance Company was liable to pay the entire amount of compensation. Being aggrieved by the quantum of compensation awarded by the Tribunal, the claimants have preferred MFA No.24054/2012 seeking enhancement of compensation and challenging the liability fastened upon them, the Insurance Company has preferred MFA No.20051/2012.
11. I have heard Sri.Siddappa Sajjan, for Sri.Mrutyunjaya Tata Bangi, learned counsel for the claimants and Sri.Suresh S.Gundi, learned counsel for the Insurance Company.
12. Learned counsel for the claimants in MFA No.24054/2012 would contend that the Tribunal has awarded compensation which is so meager and completely contrary to law, as the Tribunal has declined to take the income of the deceased at Rs.6,000/- p.m. as claimed by them and taken the income at Rs.3,000/- p.m. erroneously. It is also contended that the Tribunal has not 9 awarded any amount on loss of consortium and other conventional heads and awarded meager sums. Insofar as appeal concerning quantum of compensation is concerned, learned counsel for the Insurance Company would contend that insofar as quantum of compensation is concerned, it does not warrant any interference as the family of the deceased having adequately compensated, which is just and proper.
13. On the other hand, learned counsel for the respondent-Insurance Company in MFA No.20051/2012 would contend that the compensation so awarded by the Tribunal could not have been fastened upon the Insurance Company. Admittedly, there was breach of the policy conditions inasmuch as the deceased and his wife were traveling as unauthorized passengers in the goods vehicle and there was clear evidence to show that they were unauthorized passengers and notwithstanding that the Insurance Company could not have fastened liability 10 saddled upon the Insurance Company. Hence, he seeks to set aside the order of the Tribunal awarding compensation and fastening liability upon the Insurance Company.
14. I have given anxious consideration to the submissions made by the learned counsel for the parties and perused the records.
15. MFA No.24054/2012 is filed by the claimants seeking enhancement of compensation. Admittedly, the claimants have not produced any evidence to show the income of the deceased was at Rs.6,000/- p.m. as on the date of the accident. Therefore, the notional income has to be fixed as per the guidelines issued by the Karnataka High Court Legal Services Committee. Since the accident had taken place in the year 2010, the notional income as per the Chart would be Rs.5,500/- per month. Sine the deceased was about 70 years at the time of the accident, no future prospects can be added to the income of the deceased. Thus, the monthly income of the deceased would 11 be Rs.5,500/- x 12 x 5 = Rs.3,30,000/-. Out of which, I deem it appropriate to deduct 1/5th towards personal expenses as the claimants are more than five. Thus, the claimants are entitled to Rs.2,64,000/- towards loss of dependency. In view of the law laid down by the Hon'ble Supreme Court in Magma General Insurance Co. Ltd. Vs. Nanu Ram 2018 ACJ 2782, which is again reiterated and followed by the Three Judges Bench of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd., Vs. Satinder Kaur and others reported in 2020 SCC Online SC 410, the claimants are entitled to Rs.40,000/- each towards loss of spousal consortium and loss of parental consortium respectively. Thus, the total amount of compensation under this head is assessed at Rs.2,80,000/-. In addition, the claimants are entitled to Rs.30,000/- on account of loss of estate and funeral expenses. Hence, the claimants are entitled to total compensation of Rs.5,74,000/-.
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16. Now the issue remains that who has to satisfy the aforesaid award of compensation. The Insurance Company who is in appeal against the award fastening liability upon them on the ground that the vehicle in which the deceased and his wife were traveling was admittedly a goods vehicle and it is also in evidence that they were traveling as unauthorized passengers and were not authorized representatives of the owner of the vehicle and contrary to the evidence, the Tribunal has held that the deceased and wife were traveling as unauthorized passengers. Hence, the liability being fastened upon the Insurance Company to make good the compensation awarded is erroneous and contrary to the evidence.
17. I am fortified by the judgment of the Full Bench of this Court in the case of New India Assurance Co.Ltd., Bijapur Vs. Yallavva and Another reported in 2020(2) KCCR 1405 (FB) to hold that the Insurance Company to satisfy the award of compensation and recover 13 the same from the owner of the vehicle. Hence, the liability fastened upon the Insurance Company to pay compensation is set aside. Setting aside of the finding of the Tribunal that the Insurance Company is not liable to make good the compensation determined by the Tribunal or by this Court would not mean that the claimants would not be entitled any compensation or the Insurance Company can be absolved of its liability to pay compensation. The Insurance Company shall make good the compensation so determined hereinabove to the claimants and recover the same from respondent No.1- owner of the vehicle. Hence, the following:
ORDER
i) MFA No.24054/2012 is allowed in part.
ii) The claimants are entitled to compensation of Rs.5,74,000/- as against Rs.1,59,000/- awarded by the Tribunal. Needless to state the aforesaid amount of compensation shall carry interest at 14 the rate of 6% p.a. from the date of petition till its satisfaction by the Insurance Company.
iii) MFA No.20051/2012 is allowed in part.
iv) Insurance Company shall make good the compensation so determined hereinabove to the claimants and recover the same from respondent No.1-owner of the vehicle.
v) The amount in deposit, if any, in MFA
No.20051/2012 shall be transferred to the
Tribunal forthwith along with the trial Court records.
Sd/-
JUDGE MBS/-