Karnataka High Court
Laxman S/O Shivappa Khot vs Chandrawwa W/O Bhimappa Ambannagol on 22 August, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2023:KHC-D:9312
MFA.CROB No. 100065 of 2021
C/W MFA No. 23850 of 2012
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22ND DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MFA CROB NO.100065/2021(MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO.23850/2012
IN MFA CROB NO.100065/2021:
BETWEEN:
1. CHANDRAWWA
W/O. BHIMAPPA AMBANNAGOL,
AGE: 51 YEARS, OCC: HOUSEHOLD,
R/O: NIPANAL, TQ: RAIBAG,
DIST:BELAGAVI.
2. BASAPPA S/O. BHIMAPPA AMBANNAGOL,
AGE: 29 YEARS, OCC: STUDENT,
R/O: NIPANAL, TQ: RAIBAG,
DIST: BELAGAVI.
Digitally
3. RENUKA W/O. LAXMAN DADDIMANI,
signed by
SUJATA
AGE: 28 YEARS, OCC: HOUSEHOLD,
SUBHASH R/O: NIPANAL, TQ: RAIBAG,
PAMMAR
DIST: BELAGAVI.
4. SATTEPPA S/O. BHIMAPPA AMBANNAGOL,
AGE: 27 YEARS, OCC: STUDENT,
R/O: NIPANAL, TQ: RAIBAG,
DIST: BELAGAVI.
...CROSS OBJECTORS
(BY SRI YASH R. NADAKARNI, ADVOCATE FOR
SRI VITTHAL S. TELI, ADVOCATE)
AND:
1. LAXMAN SHIVAPPA KHOT,
AGE: 69 YEARS, OCC: AGRICULTURE,
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MFA.CROB No. 100065 of 2021
C/W MFA No. 23850 of 2012
R/O: NIPANAL, TQ: RAIBAG,
DIST: BELAGAVI.
2. THE DIVISIONAL MANAGAR,
NATIONAL INSURANCE CO. LTD.,
THROUGH ITS DIVISIONAL OFFICE,
RAMDEV GALLI, BELAGAVI.
...RESPONDENTS
(BY SRI K. ANANDKUMAR, ADVOCATE FOR R1;
SRI S.K.KAYAKAMATH, ADVOCATE FOR R2)
THIS CROSS OBJECTION IN MISCELLANEOUS FIRST APPEAL IS
FILED UNDER ORDER 41 RULE 22 OF CPC, PARYING TO MODIFY THE
JUDGMENT AND AWARD DATED 16.05.2012, IN MVC NO.680/2011,
PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND ADDITIONAL
MACT, BELAGAVI, BY ENHANCING THE COMPENSATION AS CLAIMED,
ETC.,.
IN MFA NO.23850/2012:
BETWEEN:
SRI LAXMAN S/O. SHIVAPPA KHOT,
AGED ABOUT 55 YEARS, OCC: AGRICULTURE,
R/O. AT POST NIPANAL, TQ: RAIBAG,
DIST: BELAGAVI.
...APPELLANT
(BY SRI K.ANANDKUMAR, ADVOCATE)
AND:
1. CHANDRAWWA
W/O. BHIMAPPA AMBANNAGOL,
AGE: 43 YEARS, OCC: HOUSEHOLD WORK,
R/O: NIPANAL, TQ: RAIBAG,
DIST: BELAGAVI.
2. BASAPPA S/O. BHIMAPPA AMBANNAGOL,
AGE: 20 YEARS, OCC: STUDENT,
R/O: NIPANAL, TQ: RAIBAG,
DIST: BELAGAVI.
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MFA.CROB No. 100065 of 2021
C/W MFA No. 23850 of 2012
3. RENUKA W/O. LAXMAN DADDIMANI,
AGE: 20 YEARS, OCC: HOUSEHOLD WORK,
R/O: NIPANAL, TQ: RAIBAG,
DIST: BELAGAVI.
4. SATTEPPA S/O. BHIMAPPA AMBANNAGOL,
AGED ABOUT 19 YEARS,
OCC: STUDENT,
R/O: NIPANAL, TQ: RAIBAG,
DIST: BELAGAVI.
5. THE DIVISIONAL MANAGAR,
NATIONAL INSURANCE CO. LTD.,
THROUGH THE DIVISIONAL OFFICE,
RAMDEV GALLI, BELAGAVI,
DIST: BELAGAVI.
...RESPONDENTS
(BY SRI YASH R. NADAKARNI, FOR SRI VITTHAL S. TELI, ADVOCATE
FOR R1 TO R4;
SRI S.K. KAYAKAMATH, ADVOCATE FOR R5.)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, PRAYING TO
SET ASIDE THE JUDGMENT AND AWARD DATED 16.05.2012, PASSED
BY THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE AND
ADDITIONAL MACT, BELAGAVI, IN M.V.C.NO.680/2011, TO THE
EXTENT IT MAKES THE APPELLANT LIABLE TO PAY THE
COMPENSATION, IN THE INTEREST OF JUSTICE AND EQUITY.
THESE MFA CROB AND MFA COMING ON FOR FURTHER
ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though these matters are listed for orders, with consent of both sides, taken up for final disposal. -4-
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2. The appeal in MFA No.23850/2012 is filed by the owner of tractor trailer challenging the judgment and award dated 16.05.2012, passed by the Prl. Senior Civil Judge and Addl. MACT, Belagavi, in MVC No.680/2011, questioning the liability fixed on him, whereas MFA CROB No.100065/2021 is filed by the claimants seeking enhancement of compensation.
3. Heard the arguments and perused the records.
4. The factum of accident and death of deceased in the accident are not in dispute.
5. In the present case the tribunal while awarding compensation has fixed liability on the owner of the tractor trailer on the ground that the driver of the tractor was not holding valid and effective driving licence to drive the tractor. In the complaint Ex.P.2 it is stated that one Kedari was driving the tractor and caused the accident. Accordingly crime is registered against the said Kedari. Ex.P.11 is the charge sheet in which the said Kedari is made as accused for the offence of accident and also the -5- NC: 2023:KHC-D:9312 MFA.CROB No. 100065 of 2021 C/W MFA No. 23850 of 2012 offence fastened is, driver was not holding driving licence. But the appellant owner has tried to give evidence by one Pandurang as RW.2 showing that he was driving the tractor. But the tribunal is correct in not believing the said witness since the charge sheeted accused was not holding driving licence. Therefore, the owner might have tried to depict that RW.2 was driving the tractor. But the complaint, FIR and charge sheet undisputedly proved that the said Kedari was driving the tractor and he was not holding the driving licence. Therefore it is amounting to violation of condition of insurance policy. Therefore, the tribunal is justified in exonerating the insurance company by fastening liability on the owner of tractor to pay compensation to the claimants.
6. Hence as per sub-section (1), (5) and (7) of section 149 of the M.V.Act, and also as per the principle of law laid down by the Hon'ble Supreme Court in the cases of PAPPU AND OTHERS Vs. VINOD KUMAR LAMBA AND ANOTHER reported in (2018) 3 SCC 208; -6-
NC: 2023:KHC-D:9312 MFA.CROB No. 100065 of 2021 C/W MFA No. 23850 of 2012 NATIONAL INSURANCE COMPANY LIMITED VS. SWARAN SINGH AND OTHERS reported in (2004) 3 SCC 297; and also as per the Full Bench decision of this Court in the case of NEW INDIA ASSURANCE COMPANY LIMITED VS. YELLAVVA AND ANOTHER reported in 2020 ACJ 2560, the insurance company shall satisfy the claim at the first instance to the claimants and then recover it from the owner of the tractor.
7. The deceased was an agriculturist and was aged 46 years old at the time of accident. The accident was caused in the year 2011. Therefore notional income would be taken as Rs.6,000/- per month in view of absence of proof of income, as recognized by the Karnataka State Legal Services Authority.
8. In view of the decision of the Hon'ble Apex Court in case of National Insurance Company Limited vs. Pranay Sethi and others, reported in (2017) 16 Supreme Court Cases 680, 40% of the income is to be -7- NC: 2023:KHC-D:9312 MFA.CROB No. 100065 of 2021 C/W MFA No. 23850 of 2012 added towards loss of future prospects in life. Considering the age of the deceased, the applicable appropriate multiplier is 13. The claimants are wife and three children of the deceased. Therefore, 1/4th of the income is to be deducted towards personal and living expenses of the deceased. Therefore, the loss of dependency is re-assessed and quantified as Rs.9,82,800/- (Rs.6,000 + 40% minus 1/4th x 12 x 13).
9. In view of the decision of the Hon'ble Supreme Court in the case of Magma General Insurance Co. Limited v. Nanu Ram & Others, reported in 2018 ACJ 2782 and in the case of Pranay Sethi supra, the claimants are entitled to Rs.40,000/- each under the head 'loss of consortium', along with 10% escalation. Accordingly, Rs.1,76,000/- (Rs.40,000 x 4 + 10%) is awarded under the head 'loss of consortium including loss of love and affection'.
10. Further, a compensation of Rs.15,000/- each is awarded under the head 'loss of estate' and 'funeral and -8- NC: 2023:KHC-D:9312 MFA.CROB No. 100065 of 2021 C/W MFA No. 23850 of 2012 transportation' respectively, along with 10% escalation. Therefore under these heads Rs.33,000/- (Rs.15,000 x 2 + 10%) is awarded.
11. Thus, the claimants would be entitled for compensation under various heads as under:
Sl. Heads. Amount in
No. (Rs.)
1. Towards loss of dependency 9,82,800
(Rs.6,000 + 40% minus 1/4th x
12 x 13)
2. Towards loss of consortium 1,76,000
(40,000 x 4 +10%)
3. Towards loss of estate and 33,000
transportation of dead body &
funeral expenses.
(15,000 x 2 + 10%)
Total: 11,91,800
12. Therefore, the claimants are entitled for compensation of Rs.11,91,800/-, along with interest at the rate of 6% p.a. from the date of filing of the petition till realization, as against Rs.5,68,500/- awarded by the tribunal.
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13. Since as observed above, in order to protect the interest of the claimants who are third parties, an order of pay and recovery is made. The appellant owner of tractor has deposited 50% of award amount before the tribunal and the claimants are entitled to withdraw the said amount and the said amount shall be released in favour of the claimants. The balance amount shall be deposited by the insurance company within eight weeks from the date of receipt of a copy of this judgment with a liberty to the insurance company to recover the same from the owner of the tractor trailer No.KA-23/T-5502 and KA-23/T-5504. The appellant owner of the tractor shall undertake before the tribunal and also shall furnish security enabling the insurance company for recovery of the compensation from the owner of the tractor trailer.
14. In the result, I proceed to pass the following:
ORDER
i) The appeal in MFA No.23850//2012 filed by the owner of tractor trailer is dismissed.
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NC: 2023:KHC-D:9312 MFA.CROB No. 100065 of 2021 C/W MFA No. 23850 of 2012
ii) The cross objection in MFA CROB No.100065/2021 filed by the claimants is allowed in part.
iii) The judgment and award dated 16.05.2012, passed by the Prl. Senior Civil Judge and Addl. MACT, Belagavi, in MVC No.680/2011 stands modified.
iv) The claimants are entitled for total compensation of Rs.11,91,800/- along with interest at the rate of 6% p.a. from the date of petition till its realization, as against Rs.5,68,500/- awarded by the tribunal.
v) The claimants are not entitled for interest for the delayed period of 2885 days in filing the cross objection.
vi) The said compensation amount shall be paid by the insurance company initially excluding the amount already deposited by the
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NC: 2023:KHC-D:9312 MFA.CROB No. 100065 of 2021 C/W MFA No. 23850 of 2012 owner of the tractor trailer, within eight weeks from the date of receipt of a certified copy of this judgment and then recover the same from the owner of the tractor trailer.
vii) The appellant owner of the tractor shall undertake before the tribunal and also shall furnish security enabling the insurance company for recovery of the compensation from the owner of the tractor trailer.
viii) Send back the trial Court records along with a copy of this judgment.
ix) The amount in deposit shall be
transmitted to the tribunal.
x) The claimants are at liberty to
withdraw the amount already deposited by the owner of tractor trailer.
xi) No order as to costs.
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MFA.CROB No. 100065 of 2021
C/W MFA No. 23850 of 2012
xii) Draw award accordingly.
SD/-
JUDGE
MRK
List No.: 2 Sl No.: 13
CT-ASC