Karnataka High Court
The National Insurance Company Ltd vs Smt. Rangamma on 3 August, 2022
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
-1-
MFA No. 1074 of 2016
C/W MFA No. 4958 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
MISCELLANEOUS FIRST APPEAL NO. 1074 OF 2016
(MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 4958 OF 2015
(MV-D)
IN MISCELLANEOUS FIRST APPEAL NO. 1074 OF 2016:
BETWEEN:
1. SMT RANGAMMA
W/O LATE MALLAIAH
NOW AGED ABOUT 44 YEARS,
2. MANJUNATHA
S/O LATE MALLAIAH
NOW AGED ABOUT 28 YEARS,
Digitally signed by 3. KARIYANNA
KIRAN KUMAR R
S/O LATE MALLAIAH
Location: HIGH
COURT OF NOW AGED ABOUT 26 YEARS,
KARNATAKA
4. ERAMMA
D/O LATE MALLAIAH
NOW AGED ABOUT 24 YEARS,
5. MANJAMMA
D/O LATE MALLAIAH
NOW AGED ABOUT 23 YEARS,
ALL ARE R/O KENCHAMMANAHALLI,
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MFA No. 1074 of 2016
C/W MFA No. 4958 of 2015
VILLAGE, PAVAGADA TALUK,
TUMKUR DISTRICT - 572 101
...APPELLANTS
(BY SRI. RANGEGOWDA N R., ADVOCATE)
AND:
1. MR KIRAN
S/O H K GOPALA,
R/O OPP MATHASHREE HOSPITAL
VISHWESHWARAIAH
EXTENSION,
HASSAN TOWN AND DISTRICT - 573 201
2. THE BRANCH MANAGER
NATIONAL INSURANCE CO. LTD
BRANCH OFFICE, B H ROAD,
TUMKUR - 572 101
...RESPONDENTS
(BY SRI. CHETHAN B., ADVOCATE FOR R1;
SRI. SRISHAILA, ADVOCATE FOR R2)
THIS MFA IS FILED U/S 173(1) OF MV ACT PRAYING TO
MODIFY THE JUDGMENT AND AWARD PASSED BY THE COURT
OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL AT HIRIYUR, IN MVC NO.83/2012
DATED 07.04.2015 AND TO ENHANCE THE COMPENSATION
FROM Rs.6,50,000/- TO Rs.15,00,000/- BY ALLOWING THIS
APPEAL, IN THE INTEREST OF JUSTICE AND EQUITY.
IN MISCELLANEOUS FIRST APPEAL NO. 4958 OF 2015:
BETWEEN:
THE NATIONAL INSURANCE
COMPANY LTD, BRANCH OFFICE,
B H ROAD, TUMKUR
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MFA No. 1074 of 2016
C/W MFA No. 4958 of 2015
REPRESENTED BY
AUTHORISED SIGNATORY
AT REGIONAL OFFICE, 144
SHUBHARAM COMPLEX, M G ROAD
BANGALORE 560 001
...APPELLANT
(BY SRI. SRISHAILA S .,ADVOCATE)
AND:
1. SMT. RANGAMMA
W/O LATE MALLIAH
AGED ABOUT 43 YRS
2. MANJUNATH
S/O LATE MALLIAH
AGED ABOUT 27 YRS
3. KARIYANNA
S/O LATE MALLIAH
AGED ABOUT 25 YRS
4. ERAMMA
D/O LATE MALLIAH
AGED ABOUT 23 YRS
5. MANJAMMA
D/O LATE MALLIAH
AGED ABOUT 22 YRS
ALL R/AT KENCHAMMANAHALLI VILLAGE
PAVAGADA TALUK, TUMKUR DIST - 561 202
6. KIRAN
S/O H K GOPALA
MAJOR, R/O OPP MATHASHREE
HOSPITAL
VISHWESHWARIAH EXTENSION
HASSAN TOWN & DISTRICT PIN - 573 201
...RESPONDENTS
(BY SRI. CHETHAN B, ADVOCATE FOR R6; R1 TO R5 SERVED)
-4-
MFA No. 1074 of 2016
C/W MFA No. 4958 of 2015
THIS MFA IS FILED UNDER SECTION 173(1) OF THE MV
ACT PRAYING TO CALL FOR RECORDS IN THE CASE MVC
NO.83/2012, ON THE FILE OF THE SENIOR CIVIL JUDGE AND
ADDL. MOTOR ACCIDENTS CLAIMS TRIBUNAL, HIRIYUR
EXAMINE THE SAME AND ON BEING SATISFIED OF THE
ILLEGALITY AND UNJUSTNESS OF THE IMPUGNED JUDGMENT
AND AWAD DATED 7.4.2015 PASSED THEREIN, THE SAME BE
SET ASIDE AND THE ABOVE APPEAL BE ALLOWED, AND COSTS
AND SUCH OTHER AND FURTHER RELIEFS AS IS DEEMED FIT
AND PROPER TO BE GRANTED UNDER THE CIRCUMSTANCES
OF THE CASE.
THESE MFAs COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. MFA No.1074/2016 is by the claimants challenging the award of the Tribunal on the ground that the quantum of compensation awarded is inadequate while MFA No.4958/2015 is by the Insurer challenging the liability foisted on it.
2. The fact that the accident occurred on 10.02.2012 between the Petrol Tanker and two wheeler is not in dispute. The fact that as a result of the accident, Mallaiah, the pillion rider was killed is also not in dispute. -5- MFA No. 1074 of 2016 C/W MFA No. 4958 of 2015
3. The petrol tanker was insured with respondent No.2 in MFA No.1074/2016. The principal contention advanced by the Insurer is that the driver of the petrol tanker did not possess the requisite endorsement enabling him to drive the petrol tanker and therefore, it ought not to be made liable to pay the compensation.
4. It is also contended that the rider of the two wheeler had also contributed to the accident and therefore, an element of contributory negligence ought to have been attributed on the said rider of the two wheeler. It is submitted that the award of interest at 7.5% is on the higher side and cannot be sustained in the event this Court were to apply the principle of 'pay and recovery'.
5. It is to be stated here that the Division Bench of this Court in MFA No.2482/2015 disposed of on 16.06.2020 has held that in case where the insurer pleads that the driver of the petrol tanker does not possess the requisite endorsement to drive the petrol tanker, the insurer is -6- MFA No. 1074 of 2016 C/W MFA No. 4958 of 2015 bound to pay the compensation and thereafter proceed to recover the same from the owner of the offending vehicle. In that view of the matter, the appeal by the Insurance Company will have to be disposed of by affirming the award of the Tribunal insofar as permitting the Insurance Company to pay the compensation however, with a modification that the Insurer shall be entitled to recover the compensation from the owner after it has paid the compensation to the claimants.
6. The Tribunal on assessment of the evidence has recorded that the driver of the Tanker was responsible for the accident. The reasoning of the Tribunal to arrive at the said conclusion is just and proper and does not call for interference.
7. As far as the compensation is concerned, the Tribunal has awarded compensation in a sum of Rs.6,50,000/- after determining notional income of Rs.5,000/- as detailed below:
-7-MFA No. 1074 of 2016 C/W MFA No. 4958 of 2015
Sl.No. Particulars Amount in
(Rs.)
1. Loss of Dependency/estate 5,40,000
2. Loss of Love and affection 45,000
3. Loss of consortium 30,000
4. Transportation of dead body 10,000
5. Funeral and obsequies ceremony 25,000
expenses
Total 6,50,000
8. Since there is no documentary evidence to ascertain the income of the deceased, it would be appropriate to adopt the notional monthly income determined by the Karnataka State Legal Services Authority, which for the year 2012 would be Rs.7,000/- per month.
9. To the said sum of Rs.7,000/-, 25% will have to be added towards future prospects since the deceased was aged 48 years, which would result in the monthly income of the deceased at Rs.8,750/-. Out of the said sum, 1/4th is required to be deducted towards his personal expenses. Thus, the income of the deceased will have to be taken at Rs.6,563/- (Rs.8,750/- - 1/4th) for the purpose of calculating 'loss of dependency'. As the deceased was aged -8- MFA No. 1074 of 2016 C/W MFA No. 4958 of 2015 about 48 years, the multiplier would be 12. Consequently, the claimants would be entitled to a sum of Rs.6,563x12x12 = Rs.9,45,072/- under the head 'loss of dependency'.
10. In addition, the claimants being the wife and children of the deceased, each of them are entitled to Rs.44,000/- ie., (Rs.44,000 x 5) = Rs.2,20,000/- towards 'loss of consortium' and also a sum of Rs.33,000/- under 'conventional heads'.
11. Consequently the award of the Tribunal is modified and the claimants would be entitled to the following compensation:
Sl.No. Particulars Amount in
(Rs.)
1. Loss of Dependency/estate 9,45,072
2. Loss of consortium 2,20,000
3. Conventional heads 33,000
Total 11,98,072
12. Thus, the appeal filed by the Insurance Company is disposed of with modification of the impugned award and -9- MFA No. 1074 of 2016 C/W MFA No. 4958 of 2015 the appeal filed by the claimants is allowed in part. The claimants are entitled to an enhanced compensation of (Rs.11,98,072/- - Rs.6,50,000/-) = Rs.5,48,072/-.
13. The enhanced amount shall carry interest at the rate of 6% per annum from the date of petition till its realization.
14. The Insurance Company is directed to deposit the enhanced compensation within two months from the date of receipt of a copy of this order.
15. The amount in deposit shall be transferred to MACT for disbursal in terms of the impugned award.
16. However, the appellants/claimants shall not be entitled to the interest for the delayed period of 197 days.
Sd/-
JUDGE MDS