Karnataka High Court
Shri. Gurusangappa S/O Channabasappa ... vs Basavaraj S/O Mallappa Biradar on 17 June, 2022
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 17TH DAY OF JUNE 2022
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
MFA No.201983/2014 (MV)
BETWEEN:
1. Shri Gurusangappa
S/o Channabasappa Metri,
Age: 53 years, Occ: Agriculture,
2. Smt. Shivamma @ Shridevi
W/o Revanasiddappa Masali,
Age: 23 years, Occ: Household work,
3. Shri Chandrakanth
S/o Channabasappa Metri,
Age: 21 years, Occ: Agriculture,
All are R/o Benakanahalli,
Tq. Dist. Bijapur-586 101.
... Appellants
(By Sri. Basavaraj R. Math, Advocate)
AND:
1. Basavaraj S/o Mallappa Biradar,
Age: 41 years, Occ: Business,
R/o Benakanahalli,
Tq. & Dist. Bijapur,
Dist. Bijapur-586 101.
2. The Branch Manager,
The New India Insurance Co. Ltd.,
Gurukul Road, Bijapur-586 101.
2
3. Kumar Channabasappa
S/o Channabasappa Metri,
Age: 18 years, Occ: Agriculture,
R/o Benakanahalli,
Tq. & Dist. Bijapur-586 101.
... Respondents
(Sri. S.S. Aspalli, Advocate for R2;
R1 & R3 - served)
This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, praying to modify the
impugned judgment and award dated 11.07.2014 passed by
the MACT No.VI, Bijapur in MVC No.1051/2013.
This appeal coming on for final hearing this day, the
Court delivered the following:-
JUDGMENT
This appeal is filed by the claimants under Section 173(1) of the Motor Vehicles Act, challenging the judgment and award dated 11.07.2014 passed in MVC No.1051/2013 by the MACT-VI, Bijapur (hereinafter referred to as 'the Tribunal' for short), seeking enhancement of compensation and also for fastening the liability on respondent No.2-insurance company.
2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the Tribunal.
3
3. The brief factual matrix leading to the case are that, on 19.11.2012 at about 4.15 p.m., deceased Bhagamma Metri was waiting with her fertilizers and seeds for transporting the same to her land. At that time, a vehicle bearing Reg. No.KA-28/A-0625 came there and she has hired the entire vehicle to transport the goods to her garden land. She sat in the cabin of the vehicle and the driver drove it in a high speed and rash and negligent manner. When the vehicle came near her garden land, he stopped the vehicle and when the deceased was alighting from the vehicle, the driver drove it in a rash and negligent manner, as a result, rear body of the vehicle came in contact with the head of the deceased and she fell down and sustained grievous injuries on the head and face. She was shifted to Sanjeevini Super-specialty Hospital and subsequently on 20.11.2012 she succumbed because of the injuries. The claimants have incurred more than Rs.70,000/- towards medical expenses. The deceased was aged about 40 years and was earning Rs.250/- per day by doing agricultural coolie work. Hence, the claimants assert that the accident is because of actionable negligence on the 4 part of the driver of the offending vehicle and the claimants being the husband and children of the deceased, filed a claim petition under Section 166 of the M.V. Act, claiming compensation of Rs.22,96,200/-.
4. Respondent Nos.1 and 2 appeared. Respondent No.1-owner filed objections. The involvement of the vehicle in the accident came to be admitted and the owner has also admitted that the deceased has hired the entire vehicle for transporting her goods i.e., the fertilizers and seeds. It is also contended by respondent No.1 that the vehicle was duly insured with respondent No.2 and the driver was possessing valid and effective driving licence. Hence, respondent No.1 has sought for dismissal of the claim petition as against him.
5. Respondent No.2 also filed objections denying the allegations and assertions made in the claim petition. Even respondent No.2 has gone to the extent of denying the coverage of insurance of the vehicle and it is denied that the deceased was transporting manure in the vehicle. They have disputed the age, occupation and income of the deceased and 5 further contended that the driver was not possessing valid and effective driving licence. It is also asserted that there is no nexus between the accident and the alleged death and further contended that the deceased was unauthorized passenger travelling in a goods vehicle and she being gratuitous passenger is not covered under the policy. Hence, they prayed for dismissal of the claim petition.
6. The Tribunal, after assessing the oral and documentary evidence has come to a conclusion that the claimants are entitled for a sum of Rs.3,74,000/- as compensation. However, it has fastened the liability on respondent No.1-owner by exonerating respondent No.2- insurance company on the ground that there is breach of policy conditions.
7. Being aggrieved by this judgment and award passed by the Tribunal, the claimants have filed this appeal.
8. Heard the arguments advanced by the learned counsel for the appellants and the learned counsel for respondent No.2-insurance company and perused the records. 6
9. The learned counsel for the appellants would contend that Ex.R1-insurance policy would establish that it is a commercial package policy and hence, the Tribunal has erred in exonerating the insurance company. He would also contend that the deceased was travelling along with her goods and as such, he would seek for fastening the liability on respondent No.2-insurance company. He would also assert that the compensation awarded by the Tribunal is on the lower side, as the income and other aspects were taken on lower side. Hence, he has sought for enhancement of the compensation.
10. Per contra, learned counsel for respondent No.2- insurance company has supported the judgment and award passed by the Tribunal and contended that the deceased being a gratuitous passenger is not covered under the policy and sought for dismissal of the appeal.
11. Having heard the arguments and after perusing the oral and documentary evidence, it is evident that there is no dispute of the fact that the offending vehicle was insured with respondent No.2-insurance company. Further, it is also 7 evident from Ex.R1 that the policy is commercial package policy. The Tribunal has come to a conclusion that the deceased was a gratuitous passenger. According to the claimants, the deceased was travelling in the vehicle along with her goods. In this context, learned counsel for respondent No.2-insurer has invited the attention of the Court towards recitals of FIR and complaint, which are silent regarding the deceased travelling along with goods and hence, he would contend that the deceased was a gratuitous passenger. However, this issue has been dealt in the decision of the Hon'ble Apex Court reported in AIR 2017 SC 1204 (Manuara Khatun v. Rajesh Kr. Singh), wherein the Hon'ble Apex Court has held that even if the deceased is travelling as a gratuitous passenger, then the insurance company is liable to pay the compensation and recover the same from the owner.
12. In this context, the learned counsel for respondent No.2 has placed reliance on a decision of the Division Bench of this Court in MFA No.101633/2014 (Kariyamma W/o Ugrani Chandrappa and others vs. Kumar S/o Marappa and another) 8 and the decision of the Hon'ble Apex Court reported in (2017) 4 SCC 803 (National Insurance Company vs. Roshan Lal and another). But, the facts and circumstances are entirely different. In the decision reported in (2017) 4 SCC 803 (Supra), the Hon'ble Apex Court has clearly held that there shall be an order of pay and recovery. Further, in the other decision relied on by the learned counsel for respondent No.2, it is in respect of an Act policy. But, in the instant case, the policy is a commercial package policy and hence, the liability of the insurance company is covered. Even in the decision reported in AIR 2019 SC 3934 (Anu Bhanvara Etc. v. IFFCO Tokio General Insurance Company Limited and others), the Hon'ble Apex Court has clearly held that the insurance company is liable to pay the compensation and recover the same from the owner, if there is breach of policy conditions.
13. Apart from that, it is also important to note here the nature of accident. The vehicle did not met with the accident while moving on the road along with the deceased, but the vehicle has halted and when the deceased was getting 9 down it moved, which has resulted in the accident. Under these circumstances, considering the peculiar facts and circumstances, the deceased cannot be termed as a gratuitous passenger so as to deny the benefit of claiming the compensation from the insurance company. Under these circumstances, it is the respondent No.2-insurance company, which is required to pay the compensation and is at liberty to recover the same from the owner.
14. Now the other issue is regarding enhancement. Admittedly, the deceased was survived by the claimants, who are husband and two children. The deceased was aged about 56 years. Though it is asserted that the deceased was earning Rs.250/- per day and though it is claimed that considering the service rendered by her in the house at Rs.100/- per day she was earning Rs.10,500/- per month, no material evidence was placed. In the absence of any other material evidence, the Tribunal has taken the income of the deceased at Rs.4,500/- per month. The accident has occurred in the year 2012. This Court is consistently taking the notional income at Rs.6,500/- per month in respect of accidents occurred in the year 2012. 10 Hence, the income taken by the Tribunal is on the lower side. Further, the deceased was aged about 56 years, which is evident from the P.M. report. Though it is asserted as 40 years in the judgment, that is not proper, as the medical evidence establish that she is aged about 56 years. Hence, as per the decision of the Hon'ble Apex Court reported in (2017) 16 SCC 680 in the case of National Insurance Company Limited V. Pranay Sethi and others, 10% is required to be added towards loss of future prospects. Hence, the total income of the deceased would be Rs.7,150/- per month. Considering the age of the deceased, multiplier '9' is applicable. Since there are 4 dependents, 1/4th is required to be deducted. Hence, the total loss of dependency would work out to Rs.5,79,150/- (Rs.7150 x 12 x 9 x 3/4).
15. Since there are four claimants being the husband and three children of the deceased, they are entitled for Rs.40,000/- each, amounting to Rs.1,60,000/- under the head of loss of consortium as per the decision of the Hon'ble Apex Court in Satinder Kaur @ Satwinder Kaur & Ors. v. United India Insurance Co. Ltd. reported in AIR 2020 SC 3076 11 and in Magma General Insurance Company Limited vs. Nanu Ram Alias Chuhru Ram and others reported in (2018) 18 SCC 130.
16. Further, the claimants are entitled for Rs.15,000/- under the head of funeral expenses and Rs.15,000/- under the head of loss of estate.
17. As such, the claimants are entitled for total compensation under various heads as under:
Sl.No. Heads Amount
1. Loss of dependency Rs.5,79,150/-
2. Loss of consortium Rs.1,60,000/-
3. Loss of estate Rs.15,000/-
4. Funeral expenses Rs.15,000/-
Total Rs.7,69,150/-
Hence, the claimants are entitled for total compensation of Rs.7,69,150/- with interest at 6% p.a. as against Rs.3,74,000/- awarded by the Tribunal.
12
18. Considering these facts and circumstances, the appeal needs to be allowed in respect of quantum as well as liability. Accordingly, I proceed to pass the following:
ORDER i. The appeal is allowed.
ii. The judgment and award dated 11.07.2014 passed by the Tribunal in MVC No.1051/2013 are hereby modified.
iii. The claimants are held entitle for total compensation of Rs.7,69,150/- as against Rs.3,74,000/- awarded by the Tribunal.
iv. The enhanced compensation shall carry interest at the rate of 6% p.a. from the date of petition till realization.
v. Respondent Nos.1 and 2 are jointly and severally liable to pay the compensation and the primary liability to pay the compensation is fixed on respondent No.2-insurance company.
vi. Respondent No.2-insurance company is directed to deposit the entire compensation with interest accrued thereon within six weeks from the date of this judgment and is at liberty to recover the same 13 from respondent No.1-owner for breach of policy conditions.
vii. The apportionment, disbursement and deposit shall be as per the award of the Tribunal.
Sd/-
JUDGE LG