Karnataka High Court
Arjunrao Shinde vs Krishnamurthy B R on 19 July, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2023:KHC:25233
MFA No. 504 of 2012
C/W MFA No. 8732 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 504 OF 2012 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 8732 OF 2011
IN MFA NO.504/2012
BETWEEN:
1. ARJUNRAO SHINDE,
S/O LATE KHANDERAO SHINDHE,
AGED ABOUT 60 YEARS,
PREVIOUSLY WORKING AS AGRICULTURIST,
PRESENTLY NO WORK,
Digitally signed 2. KASHIBAI
by W/O ARJUNRAO SHINDE,
VIJAYALAKSHMI
BN AGED ABOUT 58 YEARS,
Location: HIGH BOTH ARE R/O BOMMENAHALLI VILLAGE,
COURT OF KODAGANUR POST,
KARNATAKA
DAVANAGERE TALUK & DIST
...APPELLANTS
(BY SRI. MANJUNATHA PATTANASHETTY.,ADVOCATE)
AND:
1. KRISHNAMURTHY B.R.
S/O B.RAMAPPA,
AGED ABOUT 35 YEARS,
DRIVER OF THE TRACTOR
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NC: 2023:KHC:25233
MFA No. 504 of 2012
C/W MFA No. 8732 of 2011
AND TRAILOR BEARING REG
NO KA 17/TA-8309,
R/O KODAGANUR VILLAGE,
DAVANAGERE TALUK & DIST
2. MUSTAQ KHAN
SINCE DECEASED BY HIS LRS.
2(a). RASHIDA BANU,
W/O LATE MUSTAQ KHAN,
AGED ABOUT 57 YEARS,
HOUSE WIFE.
2(b). MUJAHID KHAN,
S/O LATE MUSTAQ KHAN,
AGED ABOUT 35 YEARS,
AGRICULTURIST.
2(c). MUSADDIQ KHAN,
S/O LATE MUSTAQ KHAN,
AGED ABOUT 34 YEARS,
ADVOCATE.
ALL ARE RESIDING AT,
NO. 961/31, 11TH CROSS,
BEHIND HARIHARA BASHA CLINIC,
BHAGATH SING NAGAR,
DAVANAGERE - 577 004.
3. THE MANAGER
NATIONAL INSURANCE COMPANY LIMITED,
DIVISIONAL OFFICE,
MELAGIRI PLAZA,
DENTAL COLLEGE ROAD,
DAVANAGERE.
4. THIPPESHI @THIPPESWAMY,
S/O DODDA THIPPAJJA,
AGED ABOUT 30 YEARS,
DRIVER OF THE TRACTOR AND TRAILER
REG NO KA 17/TA-8309 -8310,
R/O KODAGANUR VILLAGE
DAVANAGERE TALUK & DIST
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NC: 2023:KHC:25233
MFA No. 504 of 2012
C/W MFA No. 8732 of 2011
...RESPONDENTS
(BY SRI. SHIVARAJ PATIL ADVOCATE FOR R3;
SRI. S.R. KAMALACHARAN, ADVOCATE FOR R2 (A TO C);
V/O DATED 18/12/21, R1 & R4 IS DISPENSED WITH.)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 20.06.2011 PASSED IN MVC
NO.436/2009 ON THE FILE OF THE I ADDITIONAL SENIOR
CIVIL JUDGE, MACT-V, DAVANAGERE, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
IN MFA NO. 8732/2011
BETWEEN:
1. THE MANAGER
NATIONAL INSURANCE COMPANY LIMITED,
DIVISIONAL OFFICE,
BRANCH OFFICE, MELAGIRI PLAZA,
DENTAL COLLEGE ROAD,
M.C.C. 'B' BLOCK,
DAVANGERE.
REPRESENTED BY ITS REGIONAL MANAGER,
& THE ADMINISTRATIVE OFFICER,
144, SUBHARAM COMPLEX,
M.G. ROAD, BANGALORE - 560 001.
...APPELLANT
(BY SRI. SHIVARAJ PATIL,ADVOCATE)
AND:
1. ARJUNRAO SHINDE,
S/O LATE KHANDERAO SHINDHE,
AGED ABOUT 60 YEARS,
PREVIOUSLY WORKING AS AGRICULTURIST,
PRESENTLY NO WORK,
2. KASHIBAI
W/O ARJUNRAO SHINDE,
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NC: 2023:KHC:25233
MFA No. 504 of 2012
C/W MFA No. 8732 of 2011
AGED ABOUT 60 YEARS,
BOTH ARE R/O BOMMENAHALLI VILLAGE,
KODAGANUR POST,
DAVANAGERE TALUK & DISRICT.
3. KRISHNAMURTHY B.R.
S/O B. RAMAPPA,
AGED ABOUT 37 YEARS,
DRIVER OF THE TRACTOR
AND TRAILOR BEARING REG
NO KA 17/TA-8309/8310,
R/O KODAGANUR VILLAGE,
DAVANAGERE TALUK & DISTRICT
4 MUSTAQ KHAN
SINCE DECEASED BY HIS LRS.
4 (a). RASHIDA BANU,
W/O LATE MUSTAQ KHAN,
AGED ABOUT 57 YEARS,
HOUSE WIFE.
4 (b). MUJAHID KHAN,
S/O LATE MUSTAQ KHAN,
AGED ABOUT 35 YEARS,
AGRICULTURIST.
4 (c). MUSADDIQ KHAN,
S/O LATE MUSTAQ KHAN,
AGED ABOUT 34 YEARS,
ADVOCATE.
ALL ARE RESIDING AT,
NO. 961/31, 11TH CROSS,
BEHIND HARIHARA BASHA CLINIC,
BHAGATH SING NAGAR,
DAVANAGERE - 577 004.
5. THIPPESHI @THIPPESWAMY,
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NC: 2023:KHC:25233
MFA No. 504 of 2012
C/W MFA No. 8732 of 2011
S/O DODDA THIPPAJJA,
AGED ABOUT 30 YEARS,
DRIVER OF THE TRACTOR AND TRAILER
REG NO KA 17/TA-8309 -8310,
R/O KODAGANUR VILLAGE
DAVANAGERE TALUK & DIST
...RESPONDENTS
(BY SRI. K MANJUNATHA RAO BHONSLE., ADVOCATE FOR R1
AND R2;
SRI M.R. HIREMATHAD ADVOCATE FOR R3;
SRI. R. KOTHWAL ADVOCATE FOR R4
SRI. S.R. KAMALA CHARAN ADVOCATE FOR R4 A TO C
R5 IS SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED20.6.2011 PASSED IN MVC
NO.436/2009 ON THE FILE OF I ADDITIONAL SENIOR CIVIL
JUDGE & MACT-V, DAVANGERE, AWARDING A COMPENSATION
OF RS.2,02,000/- WITH INTEREST @ 6% P.A. FROM THE DATE
OF PETITION TILL REALISATION.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA.No.504/2012 is filed by the claimants challenging the judgment and award dated 20.06.2011 passed in MVC.No.436/2009 by I Addl. Senior Civil Judge & MACT-V, Davangere, for seeking enhancement of compensation.
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NC: 2023:KHC:25233 MFA No. 504 of 2012 C/W MFA No. 8732 of 2011 MFA.No.8732/2011 is filed by the Insurance Company challenging the order of pay and recovery made by the Tribunal.
2. The factum of accident is not in dispute.
3. Heard the arguments from both sides and perused the records.
4. Learned counsel for the Insurance Company submitted that, in the present case, there is no driving licence at all. Therefore, the Insurance Company is not liable to pay compensation and owner has to pay compensation and the order of pay and recovery made by the Tribunal is not correct. Therefore, prays for modification of the judgment and award passed by the Tribunal.
5. Learned counsel for the claimants justified the judgment and award passed by the Tribunal and also seeks for enhancement of compensation. -7-
NC: 2023:KHC:25233 MFA No. 504 of 2012 C/W MFA No. 8732 of 2011
6. The Tribunal in the present case while awarding compensation has held that the Insurance Company primarily is not liable to pay compensation as there was no driving licence. Hence, exonerated the Insurance Company from payment of compensation, but an order of pay and recovery was made.
7. The Tribunal has found that the driver of the tractor and trailer did not have the driving licence to drive the tractor and trailer upon considering the evidence on record. The driver has given statement during the course of examination that he was not driving the tractor and trailer, but respondent No.4 was driving the tractor and trailer. Therefore, the Tribunal is correct in holding that respondent No.4 was deliberately implicated as driver of tractor and trailer, since the real person who was driving the tractor and trailer did not have the driving licence. Therefore, the Tribunal has found that there is some manipulation in implicating respondent No.4 as the driver of tractor and trailer just to make claim against the -8- NC: 2023:KHC:25233 MFA No. 504 of 2012 C/W MFA No. 8732 of 2011 Insurance Company. The finding of fact given by the Tribunal in this regard is found to be correct, which requires no interference by this Court. Therefore, it is mentioned that as on the date of the accident, respondent No.4 was not driving the tractor and trailer, but other person was driving the tractor and trailer, but he did not have driving licence.
8. However, the Insurance Company is able to establish the defence successfully as per Sub-section (2) of Section 149 of Motor Vehicle Act, then as per Sub- sections (1), (5), (7) of Section 149 of Motor Vehicle Act, the Insurance Company as if the judgment debtor shall satisfy the claim to the claimant who is the third party at first instance and then recover the same from the owner of the offending vehicle by following the principle of law laid down by the Hon'ble Supreme Court in the cases of PAPPU AND OTHERS Vs. VINOD KUMAR LAMBA AND ANOTHER1; NATIONAL INSURANCE COMPANY 1 (2018) 3 SCC 208 -9- NC: 2023:KHC:25233 MFA No. 504 of 2012 C/W MFA No. 8732 of 2011 LIMITED VS. SWARAN SINGH AND OTHERS 2 and also as per the full bench decision of this Court in the case of NEW INDIA ASSURANCE COMPANY LIMITED VS. YELLAVVA AND ANOTHER3. Accordingly, an order of pay and recovery made by the Tribunal is correct and justified.
9. In the present case, the deceased was aged 34 years working as a coolie and is a bachelor. The accident was caused on 13.02.2009. Therefore, notional income of Rs.5,000/- per month is taken into consideration as per the Notional Income Chart recognized by the Karnataka State Legal Service Authority. As per the judgment of the Hon'ble Supreme Court in the case of National Insurance Co., Ltd., Vs. Pranay Sethi4, 40% of income is to be added towards future prospects in life. The deceased was a bachelor, hence, 50% of income is to be deducted towards his personal and living expenses. As the 2 (2004) 3 SCC 297 3 2020 ACJ 2560 4 (2017) 16 SCC 680
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NC: 2023:KHC:25233 MFA No. 504 of 2012 C/W MFA No. 8732 of 2011 deceased was aged 34 years, the appropriate multiplier applicable is "16". Therefore, compensation under the head loss of dependency is re-assessed and quantified as follows:
Rs.5,000/- +Rs.2,000/- (40% of Rs.5,000/-)=Rs.7,000/- Rs.7,000/- x 50% x 16 x 12=Rs.6,72,000/-
Accordingly, compensation of Rs.6,72,000/- is awarded under the head loss of dependency.
10. The claimants are father and mother of the deceased. The Tribunal has awarded compensation of Rs.10,000/- under the head loss of love and affection. The loss of consortium and loss of love and affection are having the same connotation. As per the judgment of the Hon'ble Supreme Court in the case of Magma General Insurance Co. Limited Vs. Nanu Ram & Others5, each claimants are entitled for Rs.40,000/-. Hence, in the 5 2018 ACJ 2782
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NC: 2023:KHC:25233 MFA No. 504 of 2012 C/W MFA No. 8732 of 2011 present case, there are two dependants. Therefore, compensation of Rs.80,000/- (Rs.40,000/- x 2 dependants) is awarded under the head loss of consortium including loss of love and affection.
11. The compensation of Rs.15,000/- is awarded under the head transportation of dead body and funeral expenses as against Rs.5,000/- awarded by the Tribunal.
12. The compensation of Rs.15,000/- is awarded under the head loss of estate as against Rs.25,000/- awarded by the Tribunal.
13. Thus, in all, the appellant/claimant is entitled to total compensation as follows:
1 Loss of dependency Rs. 6,72,000/- 2 Loss of consortium Rs.
80,000/-
including loss of love and affection 3 Loss of estate Rs. 15,000/-
4 Transportation of dead Rs. 15,000/-
body and funeral
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NC: 2023:KHC:25233
MFA No. 504 of 2012
C/W MFA No. 8732 of 2011
expenses
Total Rs. 7,82,000/-
14. The Tribunal has awarded compensation of Rs.2,02,000/-, but the appellant/claimant is entitled to total compensation of Rs.7,82,000/-. Hence, the appellant/claimant is entitled to enhanced compensation of Rs.5,80,000/- (Rs.7,82,000/- - Rs.2,02,000/-). Therefore, the appellant/claimant is entitled to enhanced compensation of Rs.5,80,000/- along with interest at the rate of 6% per annum from the date of petition till the date of realization.
15. Accordingly, I proceed to pass the following ORDER i. MFA.No.504/2012 filed by the claimants is allowed-in-part.
ii. MFA.No.8732/2011 filed by the Insurance Company is dismissed.
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NC: 2023:KHC:25233 MFA No. 504 of 2012 C/W MFA No. 8732 of 2011 iii. The impugned judgment and award dated 20.06.2011 passed in MVC.No.436/2009 by I Addl. Senior Civil Judge & MACT-V, Davanagere, is modified to the extent that the appellant/claimant is entitled to enhanced compensation of Rs.5,80,000/- along with interest at the rate of 6% per annum from the date of petition till the date of realization.
iv. No order as to costs.
v. The claimant is not entitled for interest for the
delay period of 101 days in filing the appeal. vi. The amount in deposit made by the Insurance Company shall be transmitted to the tribunal forthwith.
vii. Draw award accordingly.
Sd/-
JUDGE PB List No.: 1 Sl No.: 12