Karnataka High Court
Choudappa S/O.Basavva vs Arivalagan on 10 July, 2018
Bench: L.Narayana Swamy, B.M.Shyam Prasad
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 10TH DAY OF JULY, 2018
PRESENT
THE HON'BLE MR.JUSTICE L. NARAYANA SWAMY
AND
THE HON'BLE MR.JUSTICE B. M. SHYAM PRASAD
M.F.A.NO.21592/2013 (MV)
C/W
M.F.A.NO.23474/2012 (MV)
IN M.F.A.NO.21592/2013 (MV)
BETWEEN:
1. CHOUDAPPA S/O BASAVVA
61 YEARS,
2. SMT.YALLAMMA W/O CHOUDAPPA,
56 YEARS,
3. KOTRAMMA W/O LATE KOTRESHI,
26 YEARS,
4. RATHISHA S/O LATE KOTRESHI,
11 YEARS,
5. SUCHITRA D/O LATE KOTRESHI,
8 YEARS,
6. BASAMMA D/O LATE KOTRESHI,
7 YEARS.
ALL ARE AGRICULTURIST,
R/O AMMANAKERI,
VILLAGE, KUDLIGI (TQ),
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BELLARY (DIST) APPELLANT NO.4 TO 6
ARE MINOR REPRESENTED BY
APPELLANT NO.3.
APPELLANTS
(BY SRI T.BASAVANGOUD, ADVOCATE)
AND:
1. ARIVALAGAN S.S/O SREE RANGAN
24 YEARS, DRIVER OF THE LORRY BEARING
REG.NO.KA.01/AC 1567,
R/O 1/246 STREET,
KONAERIPATTI ANGIYAM (POST),
THURAIYUR (TQ), TAMILNADU (STATE)
2. P.SUBRAMANIAN
S/O R.V.PALANISWAMY,
OWNER OF THE LORRY BEARING
REG.NO.01/AC-1567/07,
R.C.COMPLEX, 206-261,
S.G.MUTT ROAD, CHAMARAJ PET,
BANGALORE-18.
3. THE DIVISIONAL MANAGER,
RELIANCE GENERAL INSURANCE COMPANY LTD.,
BRANCH BELLARY BY ITS
POLICY NO.1207792334004.
...RESPONDENTS
(BY SRI NAGARAJ C.KOLLOORI, ADVOCATE FOR R.3.)
(NOTICE TO R.1 : DISPENSED WITH V/O DATED 23.06.2014)
(NOTICE TO R.2 : HELD SUFFICIENT V/O DATED 03.07.2018)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO
MODIFY THE JUDGMENT AND AWARD PASSED BY THE SENIOR
CIVIL JUDGE CUM MEMBER-VI, MACT, AT KUDLIGI IN
M.V.C.NO.257/2011, DATED 22.03.2012, BY ENHANCING THE
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COMPENSATION AMOUNT TO RS.25,00,000/- IN THE INTEREST OF
JUSTICE AND EQUITY.
IN M.F.A.NO.23474/2012 (MV)
THE DIVISIONAL MANAGER,
RELIANCE GENERAL INSURANCE COMPANY LTD.,
BRANCH : BELLARY BY ITS POLICY,
NO.12077923344004602,
COVER NOTE NO: 109000692175,
VALID FROM 30.09.09 TO 29.9.10,
NOW REPRESENTED BY ITS DEPUTY MANAGER,
LEGAL, V.A.KALBURGI, SQUARE, DESAI CROSS,
DESHPANDE NAGAR, HUBLI,
DIST: DHARWAD.
APPELLANT
(BY SRI NAGARAJ C.KOLLOORI, ADVOCATE)
AND:
1. CHOWDAPPA S/O BASAVVA,
AGE : 60 YEARS, OCC: AGRICULTURE,
R/O ANAKERE, TQ: KUDLIGI,
DIST: BELLARY.
2. SMT.YALLAMMA W/O CHOWDAPPA,
AGE : 55 YEARS, OCC: AGRICULTURE,
R/O ANAKERE, TQ: KUDLIGI,
DIST: BELLARY.
3. KOTRAMMA W/O LATE KOTRESHI,
AGE : 25 YEARS, OCC: AGRICULTURE,
R/O : ANAKERE, TQ: KUDLIGI,
DIST: BELLARY.
4. RATHISHA D/O LATE KOTRESHI,
AGE : 10 YEARS, OCC: MINOR,
R/O : ANAKERE, TQ: KUDLIGI,
DIST: BELLARY.
5. SUCHITRA D/O LATE KOTRESHI,
AGE : 7 YEARS, OCC: MINOR,
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R/O : ANAKERE, TQ: KUDLIGI,
DIST: BELLARY.
6. BASAMMA D/O LATE KOTRESHI,
AGE : 6 YEARS, OCC: MINOR,
R/O ANAKERE, TQ: KUDLIGI,
DIST: BELLARY.
(RESPONDENT NO.4-6 ARE MINORS.
REP BY RESPONDENT NO.3)
7. ARIVALAGAN S S/O SREE RANGAN,
AGE : 23 YEARS, OCC: DRIVER OF LORRY,
BEARING REG.NO.KA.01/AC 1567,
R/O : 1/246 REDDIYAR STREET,
KONAERIPATTI ANGIYAM POST,
THURAIYUR TQ, THINCHI DIST,
T.N.STATE.
8. P.SUBRAMANAIN S/O R.V.PALANISWAMY,
OWNER OF THE LORRY BEARING REG.
NO.KA.01/AC -1567, R/O : 7,
R.C.COMPLEX, 206-261,
S.G.MUTT ROAD, CHAMRAJPET,
BANGALORE-18.
RESPONDENTS
(BY SRI T.BASAVANGOUDA, ADVOCATE FOR R.1 TO 3)
(R-4 TO R.6 MINORS REPRESENTED BY R.3)
(NOTICE TO R.7 : DISPENSED WITH)
(NOTICE TO R.8 : HELD SUFFICIENT)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO SET
ASIDE THE JUDGMENT AND AWARD DATED 22ND MARCH 2012
PASSED BY THE SENIOR CIVIL JUDGE CUM MEMBER-VI M.A.C.T.,
KUDLIGI IN M.V.C.NO.257/2011 AND TO PASS SUCH OTHER
ORDER OR ORDERS AS THIS HON'BLE COURT DEEMS FIT UNDER
THE FACTS AND CIRCUMSTANCES OF THE CASE.
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THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR
ADMISSION THIS DAY, B.M.SHYAM PRASAD J., DELIVERED THE
FOLLOWING:
JUDGMENT
Though these appeals are listed for admission, they are taken up for final disposal with the consent of the learned counsel for the parties.
These appeals are filed impugning the judgment and award dated 22.03.2012 in M.V.C.No.257/2011 on the file of the Senior Civil Judge cum M.A.C.T, Kudligi (for short, Tribunal). The appeal in M.F.A No.23474/2012 is filed by the Insurance Company challenging the quantum of compensation and the appeal in MFA No.21592/2013 is filed by the claimants seeking enhancement of the compensation. The Tribunal has awarded a sum of Rs.6,00,000/- (with interest at the rate of 8% per annum) as compensation to the claimants who are the parents, wife and children of the deceased.
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The Insurance Company is in appeal questioning the liability being fastened on it on the grounds that the driver of the offending vehicle, who caused the accident was not holding an effective driving license and therefore the Insurance Company is not liable, and as regards the quantum of compensation, the Insurance Company, rebuffing the Claimants' case for enhancement re-considering the income which is notionally taken by the Tribunal, is impugning the multiplier adopted by the Tribunal.
The claimants, on the other hand, contend that the Tribunal could not have taken the income of the deceased at a meager sum of Rs.3,000/- per month on the ground that the deceased was an agriculturist, he was cultivating the lands that stood in the name of his father and their combined income could only have been Rs.6000/- per month; and that the Tribunal should have taken a higher income of the deceased as per the evidence on record and also allowed future prospects.
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In view of the rival contentions, the questions that arise for consideration in these appeals are whether the tribunal is justified in fastening the liability to pay compensation on the Insurance Company, whether there should be enhancement in the compensation awarded by the Tribunal; and if there should be any enhancement in the compensation awarded by the tribunal, what should be the enhancement?
As regards the ground urged by the Insurance company that the driver of the offending vehicle was not holding an effective driving license, it is undisputed that the Insurance Company, except taking a defense in that regard, has not been able to examine any witness or produce any document which would establish that indeed the driver of the offending vehicle, a Lorry, was driving the vehicle without a valid driving license, and when an Insurance Company seeks to avoid its liability on such ground, it is obliged in law to discharge the burden by establishing such defense and if it has failed in discharging such burden, the Insurance 8 Company cannot avoid its liability. Therefore, the Insurance Company cannot succeed on the ground that the driver of the offending Vehicle was not holding a driving license.
The claimants, in support of their case that the deceased was engaged in an agriculture and growing flowers, have examined PW.3 who has deposed that the deceased was regularly supplying flower and that PW.3 would make weekly payment to the deceased in a sum of Rs.1,800/- to Rs.2,100/-. The Tribunal has accepted this evidence and concluded that the deceased was an agriculturist, but taking note of the fact that the revenue records for the lands stood in the name of the father of the deceased and concluding that the deceased was only assisting his father in agriculture operations, has allowed, towards the deceased's income, only 50% of the income notionally taken at Rs.6,000/- for both the deceased and his father. However, given the year of accident, the evidence of PW.3, and the number of dependents, including three minor children, and the evidence which 9 establishes that deceased indeed was engaged in agriculture and also supplied flowers (which should also qualify him to be called self-employed), it would be just and appropriate to take the income of the deceased, including the accretion towards future prospects, in a sum of Rs.8,000/- per month.
Insofar as the personal expenses, given the strength of the family, 1/5th in the income is deductible towards personal expenses. The deceased undisputedly was aged about 35 years, and it is also beyond dispute that the appropriate multiplier would be 16. If the compensation is capitalized with the multiplicand and multiplier derived on the basis of the aforementioned, the claimants will be entitled for a total compensation of Rs.12,28,800/- (8,000 - 1/5th = 6400 X 16 X 12 = 12,28,800) towards loss of dependency as against a sum of Rs.5,22,000/- i.e., awarded by the Tribunal. In addition, the claimant will also be entitled for compensation under conventional heads in a total in sum of Rs.70,000/-. Thus the claimants will be entitled a total sum of 10 Rs.12,98,800/- as against sum of Rs.6,00,000/- i.e., awarded by the Tribunal.
As such the claimants will be entitled for enhanced compensation of Rs.6,98,000/-. Accordingly, the following order.
ORDER
1. The M.F.A.No.23474/2012 filed by the Insurance Company is dismissed.
2. The M.F.A.No.21592/2013 is allowed in part awarding enhanced compensation in a sum of Rs.6,98,800/- with interest at the rate of 6% per annum.
3. The insurance company is directed to deposit the enhanced compensation of Rs.6,98,000/- with interest with the Tribunal within eight weeks from the date of the receipt of certified copy of this judgment.
4. Apportionment and disbursement of the enhanced amount shall be in terms of the judgment and award of the Tribunal.
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5. Amount in deposit if any in the appeal filed by the insurance company shall stand transmitted to the Tribunal for further course of action.
Sd/-
JUDGE Sd/-
JUDGE Em/-