Karnataka High Court
Kumari Nagarathna vs Mr Sagar R on 29 October, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC:43881
MFA No. 786 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.786 OF 2017 (MV-D)
BETWEEN:
1. KUMARI NAGARATHNA
D/O LATE VENKATARAMANAPPA
AGED 20 YEARS
2. MANJUNATH
S/O LATE VENKATARAMANAPPA
AGED ABOUT 18 YEARS
BOTH ARE RESIDING AT
NO.21, DASANAYAKANAHALLI,
CHIKKANAHALLI,
BANGALORE - 562 157.
...APPELLANTS
Digitally signed (BY SMT.RADHA Y., ADVOCATE)
by RAMYA D
Location: HIGH
COURT OF
KARNATAKA AND:
1. MR.SAGAR R.,
S/O RAVINDRA
NO 44, 3RD MAIN,
KOTHNUR MAIN ROAD,
SANTRUPTHI NAGAR,
J.P. NAGAR 7TH PHASE,
BANGALORE - 78
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NC: 2024:KHC:43881
MFA No. 786 of 2017
2. UNITED INDIA INSURANCE CO., LTD.,
KRUSHI BHAVANA
NEW CORPORATION STAFF
DRAKESHI MELA
BANGALORE-560 062
...RESPONDENTS
(BY SRI.LAKSHMI NARASAPPA, ADVOCATE FOR
SRI.A.M.VENKATESH, ADVOCATE FOR R2
R1- SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 15.02.2016 PASSED IN MVC
NO.4960/2014 ON THE FILE OF THE V ADDITIONAL SMALL CAUSES
JUDGE, AND XXIV A.C.M.M, MEMBER M.A.C.T, BENGALURU, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
ORAL JUDGMENT
The present appeal is filed by the appellants/claimants challenging the judgment and award dated 15.02.2016 in MVC.No.4960/2014 passed by the MACT & V Addl. Judge, Court of Small Causes, Mayohall Unit, Bengaluru (SCCH-20), for seeking enhancement of -3- NC: 2024:KHC:43881 MFA No. 786 of 2017 compensation and also for modification of liability fixed on the owner of the motor cycle.
2. The factum of accident and death of the deceased are not in dispute. The disputed question is whether the Insurance Company is liable to indemnify the owner and pay compensation.
3. The Tribunal has awarded compensation of Rs.4,68,072/- with interest at 9% p.a., from the date of petition till the date of its realization by fixing liability on the owner of the motor cycle.
4. The Tribunal has assigned the reason that the rider of the motor cycle was not having driving licence. Therefore, the owner is liable to pay compensation.
5. Ex.P.7 is the charge sheet laid down against the rider of the motor cycle and one of the offences is that the rider of the motor cycle was not having driving licence. But -4- NC: 2024:KHC:43881 MFA No. 786 of 2017 the owner of the motor cycle has not led any evidence proving that the rider was having driving licence. Therefore, it is proved that the rider of the motor cycle was not having driving licence. Therefore, the Tribunal is correct in exonerating the Insurance Company to pay compensation by fixing the liability on the owner of the motor cycle.
6. However, the deceased was third party to the motor cycle as he was hit by motor cycle. Therefore, to protect the interest of third party, an order of pay and recovery is necessarily to be made. Hence, as per Sub- section (2) of Section 149 of Motor Vehicle Act, when the Insurance Company established the fact that the driver was not holding driving licence, then as per Sub-sections (1), (4), (7) of Section 149 of Motor Vehicle Act, the Insurance Company as if the judgment debtor shall satisfy the claim in respect of third parties and then recover the same from the owner of the motor cycle. Accordingly, the -5- NC: 2024:KHC:43881 MFA No. 786 of 2017 order of pay and recovery is made 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 ANOTHER1; NATIONAL INSURANCE COMPANY 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. Hence, it is directed to the Insurance Company to pay compensation at the first instance and then recover it from the owner of the motor cycle. Liberty is reserved to the Insurance Company to file execution petition against the owner of the motor cycle and may seek for attachment of movable and immovable property of the owner of motor cycle for recovery of amount from the owner of motor cycle.
1 (2018) 3 SCC 208 2 (2004) 3 SCC 297 3 2020 ACJ 2560 -6- NC: 2024:KHC:43881 MFA No. 786 of 2017
7. The Tribunal has apportioned negligence at the ratio of 90:10 that the rider of the motor cycle was rash and negligent at 90% and the deceased had contributed negligence at 10%. The accident has occurred on the State Highway. The deceased was in the process of crossing the road where there was no zebra crossing. Ex.P.3 is the spot mahazar and Ex.P.3(a) is the spot sketch, which proves that at nearly on the edge of the road, the accident has caused. It is proved that the deceased was crossing the road where there was no zebra crossing and it is the observation of the Tribunal that the rider of the motor cycle has contributed 90% of negligence and deceased has contributed 10% of negligence. Therefore, the apportionment of rash and negligent at the ratio of 90:10 respectively made by the Tribunal is hereby affirmed.
8. The Tribunal has not considered the parameters correctly while determining the compensation. The -7- NC: 2024:KHC:43881 MFA No. 786 of 2017 accident was caused on 26.04.2014. The deceased was aged 59 years old as on the date of the accident. In the absence of proof of income, notional income of Rs.8,500/- p.m., is to be taken into consideration. 10% of income is to be added towards loss of future prospects in life. The appropriate multiplier applicable is "9". The claimants are major children, hence, 1/3rd of income is to be deducted towards personal and living expenses of the deceased. Therefore, the compensation under the head loss of dependency is hereby re-assessed and quantified as follows:
Rs.8,500/- + Rs.850/- (10% of Rs.8,500/-) x 2/3 x 9 x 12 =Rs.6,73,199/-
Accordingly, compensation of Rs.6,73,199/- is awarded under the head loss of dependency as against Rs.4,00,080/- awarded by the Tribunal.
9. The Tribunal has awarded compensation of Rs.1,00,000/- towards loss of love and affection. The loss -8- NC: 2024:KHC:43881 MFA No. 786 of 2017 of love and affection and loss of consortium are having the same connotation. As per the judgment of the Hon'ble Supreme Court in the case of Magma General Insurance Co. Limited v. Nanu Ram & Others4, each claimants are entitled for Rs.40,000/- with 10% escalation. Hence, in the present case, there are two dependants. Therefore, compensation of Rs.88,000/- (Rs.40,000/- x 2 dependants + 10% escalation) is awarded under the head loss of consortium including loss of love and affection.
10. The compensation of Rs.16,500/- (Rs.15,000/-
+ 10% escalation) is awarded under the head loss of estate.
11. The compensation of Rs.16,500/- (Rs.15,000/- + 10% escalation) is awarded under the 4 2018 ACJ 2782 -9- NC: 2024:KHC:43881 MFA No. 786 of 2017 head transportation of dead body and funeral expenses as against Rs.20,000/- awarded by the Tribunal.
12. Thus, in all, the appellants/claimants are entitled to the compensation as follows:
1. Loss of dependency Rs. 6,73,199/-
2. Loss of consortium including 88,000/-
Rs.
loss of love and affection
3. Loss of estate Rs. 16,500/-
4. Transportation of dead body 16,500/-
Rs.
and funeral expenses
Total Rs. 7,94,199/-
The Tribunal has awarded interest at the rate of 9% p.a., and the same is reduced to 6% p.a.
13. Therefore, the appellants/claimants are entitled to total compensation of Rs.7,94,199/-. As the deceased has attributed 10% of contributory negligence, the appellants/claimants are entitled to 90% of above determined compensation amount. Therefore, the appellants/claimants are entitled to compensation of
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NC: 2024:KHC:43881 MFA No. 786 of 2017 Rs.7,14,779/- (90% of Rs.7,94,199/- = Rs.7,14,779/-) along with interest at the rate of 6% per annum from the date of petition till the date of realization as against the compensation amount awarded by the Tribunal.
14. Accordingly, I proceed to pass the following ORDER i. The appeal is allowed-in-part.
ii. The impugned judgment and award dated 15.02.2016 in MVC.No.4960/2014 passed by the MACT & V Addl. Judge, Court of Small Causes, Mayohall Unit, Bengaluru (SCCH-20), is hereby modified to the extent that the appellants/claimants are entitled to compensation of Rs.7,14,779/- (90% of Rs.7,94,199/- = Rs.7,14,779/-) along with interest at the rate of 6% per annum from the date of petition till the date of realization as against the compensation amount awarded by the Tribunal.
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NC: 2024:KHC:43881 MFA No. 786 of 2017 iii. The appellants/claimants are not entitled for interest for the delay period of 250 days in filing the appeal.
iv. The Insurance Company is directed to pay compensation at the first instance and then recover it from the owner of the motor cycle. v. Liberty is reserved to the Insurance Company to file execution petition against the owner of the motor cycle and may seek for attachment of movable and immovable property of the owner of motor cycle for recovery of amount from the owner of motor cycle.
vi. No order as to costs.
vii. Registry is directed to transmit the TCR along with copy of this order to the Tribunal forthwith. viii. Draw award accordingly.
SD/-
(HANCHATE SANJEEVKUMAR) JUDGE PB List No.: 1 Sl No.: 57