Karnataka High Court
Sri. Devaraj A.G vs Smt. Nagendramma on 28 February, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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MFA No.520/2017
C/W MFA No.7880/2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2023
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
MISCELLANEOUS FIRST APPEAL NO.520/2017 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO.7880/2016 (MV-D)
M.F.A. NO.520/2017
BETWEEN:
1. SMT.NAGENDRAMMA
W/O JAYAPPA
AGED ABOUT 57 YEARS
2. SRI OBALESHAPPA
S/O LATE JAYAPPA
SINCE DEAD BY LRS.
A. RENUKAMMA
W/O LATE OBALESHAPPA
AGED 41 YEARS
B. SOMASHEKHAR
Digitally
signed by D S/O LATE OBALESHAPPA
K BHASKAR AGED 22 YEARS
Location:
High Court C. MANUKUMAR
of Karnataka S/O LATE OBALESHAPPA
AGED 17 YEARS
D. MONIKA
D/O LATE OBALESHAPPA
AGED 14 YEARS
2 (C) & (D) ARE MINORS
REPRESENTED BY THEIR NATURAL GUARDIAN
MOTHER 2 (A)
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MFA No.520/2017
C/W MFA No.7880/2016
3. DEVENDRAPPA
S/O LATE JAYAPPA
AGED 39 YEARS
ALL ARE R/OF CHIKKAPPANAHALLY
CHITRADURGA TALUK AND DIST.- 577 501
4. DURGAMMA
W/O ONKARAPPA
D/O LATE JAYAPPA
AGE:MAJOR
R/AT KURUBARAHALLY
CHITRADURGA TALUK AND DIST-577 501
...APPELLANTS
(BY SMT.VIJAYALAKSHMI K, ADVOCATE FOR
SRI.SHANKAR GOUD G, ADVOCATE)
AND:
1. SRI.DEVARAJ A G
S/O GURUSHANTHAPPA
AGE:MAJOR
OWNER OF TATA ACE
BEARING REG.NO.KA-17-B-6152
R/AT DEVIKERE
JAGALUR TALUK
DAVANAGERE DISTRICT-577 528
SINCE DEAD BY LRS:
(A) SUVARNA
W/ O LATE DEVARAJ A.G.
AGED ABOUT 37 YEARS
(B) BHAVANI D
D/O LATE DEVARAJ A.G.
AGED ABOUT 17 YEARS
(C) BHAVYA D
D/O LATE DEVARAJ A.G.
AGED ABOUT 16 YEARS
(D) NAGAVENI D
D/O LATE DEVARAJ A.G.
AGED ABOUT 14 YEARS
R1 (B), (C) AND (D) ARE MINORS
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MFA No.520/2017
C/W MFA No.7880/2016
REPRESENTED BY R1(A) MOTHER
AS NATURAL GUARDIAN OF HER MINOR CHILDREN
ALL RESPONDENTS NO.1 (A) TO 1(D) ARE
R/O DEVIKERE
JAGALUR TALUK
DAVANAGERE DISTRICT
2. THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.
DIVISIONAL OFFICE
MMK COMPLEX
P J EXTENSION
DAVANAGERE - 577 001 ... RESPONDENTS
(BY SRI.RAVISH BENNI, ADVOCATE FOR R2;
SRI.NARAYAN MAYYAR, ADVOCATE FOR
SRI.S.R.HEGDE HUDLAMANE, ADVOCATE FOR
LR'S OF DECEASED R1- R1 (A TO D);
R1 (B TO D) ARE MINORS)
THIS MFA IS FILED U/S 173(1) OF MV ACT PRAYING TO
MODIFY THE JUDGMENT AND AWARD DATED 25.06.2016 PASSED
IN MVC NO.714/2015 ON THE FILE OF THE PRL. SENIOR CIVIL
JUDGE AND III MACT, CHITRADURGA, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
M.F.A.NO.7880/2016
BETWEEN:
1. SRI.DEVARAJ A G
S/O GURUSHANTHAPPA
SINCE DECEASED BY HIS LRS:
(A) SUVARNA
W/ O LATE DEVARAJ A.G.
AGED ABOUT 37 YEARS
(B) BHAVANI D
D/O LATE DEVARAJ A.G.
AGED ABOUT 17 YEARS
(C) BHAVYA D
D/O LATE DEVARAJ A.G.
AGED ABOUT 16 YEARS
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MFA No.520/2017
C/W MFA No.7880/2016
(D) NAGAVENI D
D/O LATE DEVARAJ A.G.
AGED ABOUT 14 YEARS
A1 (B), (C) AND (D) ARE MINORS
REPRESENTED BY THEIR NATURAL MOTHER 1.A
AS THEIR GUARDIAN
ALL ARE R/O DEVIKERE
JAGALUR TALUK
DAVANAGERE DISTRICT ... APPELLANTS
(BY SRI.NARAYAN MAYYAR, ADVOCATE FOR
SRI.S.R.HEGDE HUDLAMANE, ADVOCATE)
AND:
1. SMT.NAGENDRAMMA
W/O P O JAYAPPA
AGED ABOUT 56 YEARS
HOUSEHOLD WORK
2. SRI OBALESHAPPA
S/O LATE P.O. JAYAPPA
SINCE DEAD BY LRS.
A. RENUKAMMA @ RENUKAMMA
W/O LATE OBALESHAPPA
AGED ABOUT 40 YEARS
B. SOMASHEKHAR
S/O LATE OBALESHAPPA
AGED ABOUT 20 YEARS
STUDENT
C. MANUKUMAR
S/O LATE OBALESHAPPA
AGED ABOUT 16 YEARS
D. MONIKA
D/O LATE OBALESHAPPA
AGED ABOUT 13 YEARS
STUDENT
R2 (C) & (D) ARE MINORS
REPRESENTED BY THEIR NATURAL MOTHER 2 (A)
AS THEIR GUARDIAN
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MFA No.520/2017
C/W MFA No.7880/2016
3. DEVENDRAPPA
S/O LATE P.O.JAYAPPA
AGED ABOUT 38 YEARS
ALL ARE R/OF CHIKKAPPANAHALLY
CHITRADURGA TALUK AND DIST.- 577 501
4. DURGAMMA
W/O ONKARAPPA
D/O LATE P.O.JAYAPPA
HOUSE HOLD WORK
R/AT KURUBARAHALLY
CHITRADURGA TALUK
5. THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.
DIVISIONAL OFFICE
MMK COMPLEX
P J EXTENSION
DAVANAGERE - 577 001 ... RESPONDENTS
(BY SMT.VIJAYALAKSHMI K, ADVOCATE FOR
SRI.SHANKAR GOUD G, ADVOCATE FOR R1,
R2(A& B), R3 & R4;
R2(C& D) MINORS REPRESENTED BY R2 (A)
SRI.RAVISH BENNI, ADVOCATE FOR R5)
THIS MFA IS FILED U/S 173(1) OF MV ACT PRAYING TO SET
ASIDE THE JUDGMENT AND AWARD DATED 25.06.2016 PASSED IN
MVC NO.714/2015 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE
AND III MACT, CHITRADURGA, AWARDING COMPENSATION OF
RS.10,53,000/- WITH INTEREST @ 8% P.A. FROM THE DATE OF
PETITION TILL THE DATE OF DEPOSIT.
THESE APPEALS COMING ON FOR FINAL HEARING, THIS
DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
JUDGMENT
Challenging the award in MVC No.714/2015 passed by the Sr.Civil Judge & III Addl.MACT, Chitradurga, the claimants have preferred MFA No.520/2017 and the registered owner of the offending vehicle has preferred MFA No.7880/2016. -6- MFA No.520/2017 C/W MFA No.7880/2016
2. For the purpose of convenience, the parties will be referred to according to their ranks before the Tribunal.
3. Claimant No.1 is the wife, claimant Nos.2 and 3 are the major sons and claimant No.4 is the married daughter of deceased P.O.Jayappa. During the pendency of the proceedings before the Tribunal the second claimant Obaleshappa died and his widow and children were brought on record as his legal representatives.
4. On 04.01.2015 at 3.30 a.m. When P.O.Jayappa was travelling in Tata Ace bearing No.KA-17 B 6152 along with one Lokesh, near Burujanaroppa gate on NH 4 within the limits of Imangala Police Station, the said Tata Ace hit a lorry which was proceeding ahead of the said vehicle. Due to the injuries suffered in the accident, Jayappa died at the spot and Lokesh suffered injuries. Lokesh filed complaint before Imangala Police as per Ex.P1 claiming that the accident occurred due to rash and negligent driving of Tata Ace bearing No.KA 17 B 6152. On the basis of such complaint the said Police registered FIR as per Ex.P2 in Crime No.2/2015 against the driver of Tata Ace bearing No.KA 17 B 6152 for the offences punishable under Sections 279, 337 and 304(A) of -7- MFA No.520/2017 C/W MFA No.7880/2016 IPC. At the relevant time, respondent Nos.1 and 2 were the registered owner and insurer of the Tata Ace vehicle bearing No.KA. 17 B 6152.
5. The claimants filed MVC No.714/2015 against the respondents claiming that the accident occurred due to actionable negligence on the part of the driver of Tata Ace vehicle. They claimed that they were depending on the income of the deceased Jayappa and due to his death they have suffered damages and claimed compensation of Rs.30,00,000/-.
6. Respondent Nos.1 and 2 contested the petition denying the actionable negligence on the part of the driver of Tata Ace vehicle, age, occupation and income of the deceased and their liability to pay compensation. Respondent No.2/Insurer further claimed that at the time of the accident, the deceased was travelling in the offending vehicle/insured vehicle as unauthorized and gratuitous passenger, therefore, it is not liable to indemnify the risk of the Insured.
7. On behalf of the claimants, claimant No.1 was examined as PW.1 and Exs.P1 to 13 were marked. Respondent No.1 did not lead any evidence. Respondent No.2 -8- MFA No.520/2017 C/W MFA No.7880/2016 examined its senior assistant as RW.1 and got marked policy at Ex.R.1.
8. The Tribunal on hearing the parties by the impugned award held that the accident occurred due to actionable negligence of driver of Tata Ace vehicle bearing No.KA-17 B 6152. The Tribunal assessed the income of the deceased at Rs.6,500/-, based on Ex.P6 postmortem report considered his age as 65 years, deducted one-third towards personal expenses, applied 11 multiplier and awarded compensation of Rs.10,53,000/- on different heads as follows:
Sl. Particulars Compensation
No. awarded in Rs.
1. Loss of Dependency 8,58,000/-
2. Funeral & obsequies 10,000/-
3. Transportation of dead body 10,000/-
4. Loss of consortium 1,00,000/-
5. Loss of love and affection to 75,000/-
sons and daughter
TOTAL 10,53,000/-
9. The Tribunal relying on Ex.R1 and the other records held that the policy did not cover the risk of luggage owner or the luggage. Therefore, the Insurer is not liable to indemnify the damages to the Insured.
-9-MFA No.520/2017 C/W MFA No.7880/2016
10. Challenging the quantum of compensation and exoneration of the Insurer, the claimants have filed MFA No.520/2017 and the Insured has filed MFA No.7880/2016. Submissions of Smt.Vijayalakshmi, learned counsel for the claimants:
11. The notional income assessed by the Tribunal is on the lower side and contrary to the evidence on record. The compensation awarded on all heads is on the lower side. Even if the deceased was gratuitous passenger or the owner travelling along with the goods, the Insurer has to pay the compensation and recover it from the Insured.
In support of her submissions, she relies on the following judgments:
i) National Insurance Co.Ltd. vs. Baljit Kaur & ors1
ii) National Insurance Co.Ltd. vs.Birender and ors2 Submissions of Ravish Benni, learned counsel for the Insurer:
12. Ex.R.1 the policy shows that the Insurer did not receive any premium to cover the risk of the hirer or owner of the goods or his representative. Therefore, the judgments relied on by the counsel for the appellant are not applicable. The Tribunal rightly held that the Insurer was not liable to pay 1 (2004)2 SCC 1 2 AIR 2020 SC 434
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MFA No.520/2017C/W MFA No.7880/2016 the compensation. The Insured has not led any evidence to show that the policy covered the risk of hirer of the goods or gratuitous passenger. As per the Registration Certificate, the make of the vehicle was only to carry the driver and not any other inmates. Therefore the Insurer is not liable to pay the compensation.
Submissions of Sri Narayan Mayyar, learned counsel for the Insured:
13. Claimant Nos.2 to 4, the major sons and married daughter were not entitled to any compensation. Though RTC was produced, that itself is not the proof of the income of the deceased. The notional income assessed by the Tribunal is correct. Since claimants No.2 to 4 were not depending on the deceased, the Tribunal ought to have deducted half of his income for his personal expenses. The compensation awarded on all the heads is on the higher side.
14. Having regard to the submissions of both side and on examination of the records, the points that arise for determination of the Court are:
i) Whether the Tribunal was justified in exonerating the Insurer ?
ii) Whether the compensation awarded is just one?
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MFA No.520/2017C/W MFA No.7880/2016 Analysis Reg: Liability of insurer:
15. There is no dispute regarding the occurrence of the accident and death of Jayappa in the accident. The records show that on the complaint of Lokesh another inmate of Tata Ace vehicle, the FIR was registered against the driver of insured vehicle only. According to him, the driver of Tata Ace vehicle was the tort feaser. After investigation, the charge sheet was filed against him. Under the circumstances, the trial Court rightly rejected the contention of the first respondent that the owner and insurer of the lorry against which Tata Ace bearing No.KA 17 B 6152 hit were the necessary parties.
16. So far as the exoneration of the Insurer, according to the claimants themselves, the deceased was travelling in the vehicle as hirer of the vehicle for transportation of his goods. They did not produce any document to show that the deceased had hired the vehicle for transportation of his goods/tiles by paying any amount. Apart from that, Ex.R.1 clearly shows that the premium was received only to cover the risk of third party, personal accident of the owner and driver under IMT No.28. IMT 28 deals with coverage and risk
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MFA No.520/2017C/W MFA No.7880/2016 of the owner/driver alone and not the hirer of the goods or the gratuitous passenger. Since no premium was collected to cover the risk of hirer of the goods or gratuitous passenger, there was no contract to cover their risk.
17. In para 20 of the judgment in Balajit Kaur's case relied on by the learned counsel for the claimants themselves, it was held as follows:
"20. It is, therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative remains the same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor was any premium paid to the extent of the benefit of insurance to such category of people."
(Emphasis supplied)
18. The reading of the above paragraph goes to show that the Insurer is liable to cover the risk of the hirer or owner of the goods only if the insured pays premium to cover their risk. In that case, the Hon'ble Supreme Court exercising
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MFA No.520/2017C/W MFA No.7880/2016 powers under Article 142 of the Constitution passed the order to pay and recover. Therefore, the said judgment cannot be pressed into service for the proposition that the gratuitous passenger or hirer of the goods shall be indemnified even without recovery of the premium. Therefore, the finding of the trial Court does not warrant interference. Reg.Quantum
19. Though the claimants contended that the deceased was aged 55 years, PW.1 herself in her deposition admitted that she was aged 55 years and her husband was 10 to 12 years older to her. As per Ex.P11 Voter ID card of claimant No.1 produced by herself her age as on 01.01.1995 was 38 years. At that rate, she will be aged 59 years as on the date of filing of the claim petition. Learned counsel for the claimants contends that since claimants are illiterate, the authorities themselves enter the age in such records.
20. The Hon'ble Supreme Court in Oriental Insurance Company Ltd vs. Premlata Shukla and others3 held that once the claimants produce and rely on a document, they cannot claim that the part of the document 3 (2007) 13 SCC 476
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MFA No.520/2017C/W MFA No.7880/2016 which is favourable to them shall be accepted and the other part shall be rejected. Therefore, the Tribunal committed error in ignoring Ex.P11 and relying on Ex.P6 post-mortem report to hold that the deceased was aged 55 years. Even assuming that the deceased was 5 years elder to her, then his age will be 60 years.
21. Though the claimants contended that the deceased was earning Rs.15,000/-per month, there was no proof of actual income. Relying on Ex.P10, the RTC extract, it was contended that the deceased was having agricultural income. PW.1 in her cross examination admitted that the said land was being cultivated by her sons and they were independent. Ex.P10 shows that was dry land and maize was cultivated during 2015-16. The said document was issued in 2019, that is after filing of the claim petition. Even as per that document, the deceased had borrowed Rs.75,000/- mortgaging that land to State Bank of India, Chitradurga. Therefore, there is no merit in the contention that the deceased had income of Rs.15,000/- per month.
22. Having regard to the cost of living, wage rates prevailing during the said period, the Tribunal should have
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MFA No.520/2017C/W MFA No.7880/2016 assessed the notional income at Rs.9,000/- per month. As per the claim petition itself, claimant Nos.2 and 3 were aged 39 years and 37 years. As already noticed, PW.1 has admitted that the sons were cultivating the lands. Claimant No.4 - daughter was married and her age was not mentioned in the petition. The claim petition itself shows that the daughter was residing separately in her husband's house at Kurubarahalli and she was not residing with her father. Claimant Nos.2 to 4 did not enter the witness box to prove that they were dependent on the income of the deceased. Therefore, the Tribunal was justified in holding that claimant No.1 alone was the dependent of the deceased. In such event as per the judgment of the Hon'ble Supreme Court in Sarla Varma v. Delhi Transport Corporation4 half of the income has to be deducted towards living expenses of the deceased. The Tribunal committed error in deducting one third towards his living expenses. On such deduction his monthly income comes to Rs.4,500/- (50% of Rs.9000/-).
23. Reading of the judgment in Birender Singh's case shows that in that case the deceased mother was a 4 AIR 2009 SC 3104
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MFA No.520/2017C/W MFA No.7880/2016 Government employee and she was drawing the pension of her husband also. Whereas the claimants were agricultural coolies. Therefore, the said judgment is not applicable to the facts of the present case.
24. Having regard to the age of the deceased and that he was self employed, as per the judgment in National Insurance Company Limited vs. Pranay Sethi5 10% has to be super added to his income towards future prospects. Therefore, his income comes to Rs.4950/- (4500+450). The applicable multiplier is 9. Therefore, the compensation payable on the head of loss of dependency comes to Rs.5,34,600/- (4950 X 12 X 9).
25. As per the judgment in Pranay Sethi's case, each claimant is entitled to compensation of Rs.44,000/- on the head of loss of consortium which comes to Rs.1,76,000/- (44000 X 4). On the head of transportation and funeral expenses, they are entitled to compensation of Rs.15,000/- with escalation of 10%. On the head of loss of estate they are entitled to compensation of Rs.15,000/- with escalation of 10%. The Tribunal has awarded interest at 8% p.a. without 5 AIR 2017 SC 5157
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MFA No.520/2017C/W MFA No.7880/2016 assigning any reasons. Having regard to Section 34 of CPC, the Tribunal should have awarded interest at 6% p.a. Therefore, just compensation payable is as follows:
Rs.5,34,600/-
Sl. Particulars Compensation
No. awarded in Rs.
1. Loss of Dependency 5,34,600/-
2. Funeral & Transportation 16,500/-
3. Loss of estate 16,500/-
4. Loss of consortium 1,76,000/-
TOTAL 7,43,600/-
26. In the light of the above said facts and
circumstances, the claimants' appeal is liable to be dismissed and the appeal of the Insured deserves to be allowed in part.
Hence the following:
ORDER
i) MFA No.520/2017 is here by dismissed.
ii) MFA No.7880/2016 is partly allowed. The impugned award is modified as follows:
a) The claimants are entitled to compensation of Rs.7,43,600/- with interest thereon at 6% p.a. from the date of petition till its realization.
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MFA No.520/2017C/W MFA No.7880/2016
b) The claim petition against respondent No.2 is dismissed.
c) Respondent No.1 shall deposit the said amount before the Tribunal within four weeks from the date of receipt of copy of this award.
d) The Tribunal shall disburse to claimant Nos.2 to 4 only the compensation awarded on the head of consortium.
e) The Tribunal shall release rest of the amount to claimant No.1.
f) Registry shall transmit the amount in deposit, if any and the TCR to the Tribunal forthwith.
Sd/-
JUDGE Sd/-
JUDGE AKC List No.: 1 Sl No.: 22