Karnataka High Court
Hashimbi W/O Mohammed Sarawar Hakeem vs Sri. Raju And Anr on 5 April, 2023
-1-
MFA No. 200621 of 2020
C/W MFA No. 200618 of 2020
MFA No. 200619 of 2020
MFA No. 200620 of 2020
MFA No. 200622 of 2020
MFA No. 200623 of 2020
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCL. FIRST APPEAL NO.200621/2020 (MV-I)
C/W
MISCL. FIRST APPEAL NO.200618/2020 (MV-D),
MISCL. FIRST APPEAL NO.200619/2020(MV-D),
MISCL. FIRST APPEAL NO.200620/2020 (MV-D),
MISCL. FIRST APPEAL NO.200622/2020 (MV-D),
MISCL. FIRST APPEAL NO.200623/2020 (MV-I)
MFA NO.200621/2020:
BETWEEN:
SULTANBI @ SATTARBI
W/O ABDULRAZAK HAKEEM
AGED ABOUT: 69 YEARS
OCC: CLOTH BUSINESS R/O PAILWAN GALLI
NEAR HAKEEN CHOUK
VIJAYAPUR-586101
Digitally signed ...APPELLANT
by RAMESH
MATHAPATI (BY SRI SANGANAGOUDA V. BIRADAR, ADVOCATE)
Location: High
Court of AND:
Karnataka
1. SRI. RAJU
S/O AMASIDDA KAMBLE
AGED ABOUT: 45 YEARS
OCC: BUSINESS, R/O TORAVI
TQ. & DIST. VIJAYAPUR-586101
2. THE DIVISIONAL MANAGER
THE UNITED INDIA INSURANCE CO. LTD.,
SANGAM BUILDING S.S. FRONT ROAD,
VIJAYAPUR-586101
...RESPONDENTS
-2-
MFA No. 200621 of 2020
C/W MFA No. 200618 of 2020
MFA No. 200619 of 2020
MFA No. 200620 of 2020
MFA No. 200622 of 2020
MFA No. 200623 of 2020
(BY SRI SUDARSHAN M., ADVOCATE FOR R2;
R1-SERVED)
THIS MFA IS FILED U/S. 173(1) OF MV ACT PRAYING TO
TO, ENHANCE THE COMPENSATION AMOUNT AND FURTHER
HOLD THE 2ND RESPONDENT INSURANCE COMPANY LIABLE TO
SATISFY THE AWARD AMOUNT BY SUITABLY MODIFYING THE
JUDGMENT AND AWARD DATED 06.08.2019 PASSED BY THE
HON'BLE III ADDL. SENIOR CIVIL JUDGE AND MACT-XII,
VIJAYAPUR IN MVC NO.1828/2016.
MFA NO.200618/2020:
BETWEEN:
1. USMANKHAN
S/O SHIRAJKHAN HAKEEM,
AGED ABOUT 52 YEARS,
OCC: BUSINESS,
2. BATULBAI
W/O SHABBIRKHAN HAKEEM
AGED ABOUT 43 YEARS,
OCC: HOUSE HOLD,
3. RIZWAN
W/O CHITTAWALI HAKEEM
AGED ABOUT 41 YEARS,
OCC: HOUSE HOLD,
APPELLANTS ARE ALL R/O: NEAR
HAKEEM CHOUK, VIJAYAPUR-586101.
...APPELLANTS
(BY SRI SANGANAGOUDA V. BIRADAR, ADVOCATE)
AND:
1. SRI. RAJU
S/O AMASIDDA KAMBLE,
AGED ABOUT 45 YEARS,
OCC: BUSINESS, R/O: TORAVI,
TQ. AND DIST. VIJAYAPUR-586101.
-3-
MFA No. 200621 of 2020
C/W MFA No. 200618 of 2020
MFA No. 200619 of 2020
MFA No. 200620 of 2020
MFA No. 200622 of 2020
MFA No. 200623 of 2020
2. THE DIVISIONAL MANAGER
THE UNITED INDIA INSURANCE CO. LTD.,
SANGAM BUILDING, S.S. FRONT ROAD,
VIJAYAPURA-586101.
...RESPONDENTS
(BY SRI SUDARSHAN M., ADVOCATE FOR R2;
R1-SERVED)
THIS MFA IS FILED U/S 173 (1) OF M.V. ACT PRAYING TO
ENHANCE THE COMPENSATION AMOUNT AND FURTHER HOLD
THE 2ND RESPONDENT INSURANCE COMPANY LIABLE TO
SATISFY THE AWARD AMOUNT BY SUITABLY MODIFYING THE
JUDGMENT AND AWARD DATED 06.08.2019 PASSED BY THE
HON'BLE III ADDL. SENIOR CIVIL JUDGE AND MACT-XII,
VIJAYAPUR IN MVC NO.1822/2016.
MFA NO.200619/2020:
BETWEEN:
SHAHIDA
W/O RASHIDKHIN HAKEEM
AGED ABOUT 54 YEARS, OCC: COOLIE,
R/O PAILWAN GALLI, NEAR HAKEEN CHOUK,
VIJAYAPURA-586101.
...APPELLANT
(BY SRI SANGANAGOUDA V. BIRADAR, ADVOCATE)
AND:
1. SRI. RAJU
S/O AMASIDDA KAMBLE,
AGED ABOUT 45 YEARS,
OCC: BUSINESS,
R/O TORAVI, TQ. & DIST.
VIJAYAPURA-586101.
2. THE DIVISIONAL MANAGER
THE UNITED INDIA INSURANCE CO. LTD.,
-4-
MFA No. 200621 of 2020
C/W MFA No. 200618 of 2020
MFA No. 200619 of 2020
MFA No. 200620 of 2020
MFA No. 200622 of 2020
MFA No. 200623 of 2020
SANGAM BUILDING, S.S. FRONT ROAD,
VIJAYAPURA-586101.
...RESPONDENTS
(BY SRI SUDARSHAN M., ADVOCATE FOR R2;
R1-SERVED)
THIS MFA IS FILED U/S. 173(1) OF MV ACT PRAYING TO
ENHANCE THE COMPENSATION AMOUNT AND FURTHER HOLD
THE 2ND RESPONDENT INSURANCE COMPANY LIABLE TO
SATISFY THE AWARD AMOUNT BY SUITABLY MODIFYING THE
JUDGMENT AND AWARD DATED 06.08.2019 PASSED BY THE
HON'BLE III ADDL. SENIOR CIVIL JUDGE AND MACT -XII,
VIJAYPUR IN MVC NO. 1823/2016.
MFA NO.200620/2020
BETWEEN:
1. MOHAMMED SARWAR
S/O ABDUL RAHEMAN HAKEEM
AGED ABOUT 62 YEARS
OCC: TAILORING WORK
R/O PAILWAN GALLI NEAR
HAKEEN CHOUK
VIJAYAPUR-586101
2. MOHAMMED HUSIN
S/O ABDUL RAHEMAN HAKEEM
AGED ABOUT 43 YEARS
OCC: BUSINESS R/O PAILWAN
GALLI NEAR HAKEEN CHOUK
VIJAYAPUR-586101
3. MURTUZA HUSAIN
S/O ABDUL RAHEMAN HAKEEM
AGED ABOUT 41 YEARS
OCC: BUSINESS R/O PAILWAN
GALLI NEAR HAKEEN CHOUK
VIJAYAPUR-586101
-5-
MFA No. 200621 of 2020
C/W MFA No. 200618 of 2020
MFA No. 200619 of 2020
MFA No. 200620 of 2020
MFA No. 200622 of 2020
MFA No. 200623 of 2020
4. SHAMEEMNNISA
W/O MOHAMMED RAFIQ HAKEEM
AGED ABOUT 39 YEARS
OCC: HOUSEHOLD
R/O KUDACHI TQ.RAIBAG
DIST.BELGAVI
...APPELLANTS
(BY SRI SANGANAGOUDA V. BIRADAR, ADVOCATE)
AND:
1. SRI. RAJU
S/O AMASIDDA KAMBLE
AGED ABOUT 45 YEARS
OCC: BUSINESS R/O TORAVI
TQ. & DIST. VIJAYAPUR-586101
2. THE DIVISIONAL MANAGER
THE UNITED INDIA INSURANCE CO. LTD.,
SANGAM BUILDING S.S. FRONT ROAD,
VIJAYAPUR-586101
RESPONDENTS
(BY SRI SUDARSHAN M., ADVOCATE FOR R2;
R1-SERVED)
THIS MFA IS FILED U/S. 173(1) OF MV ACT PRAYING TO
ENHANCE THE COMPENSATION AMOUNT AND FURTHER HOLD
THE 2ND RESPONDENT INSURANCE COMPANY LIABLE TO
SATISFY THE AWARD AMOUNT BY SUITABLY MODIFYING THE
JUDGMENT AND AWARD DATED 06.08.2019 PASSED BY THE
HON'BLE III ADDL. SENIOR CIVIL JUDGE AND MACT -XII,
VIJAYPUR IN MVC NO. 1825/2016.
MFA NO.200622/2020:
BETWEEN:
1. MD. AKRAM MUSASAB DKHANI
AGED ABOUT: 44 YEARS,
OCC: BUSINESS,
-6-
MFA No. 200621 of 2020
C/W MFA No. 200618 of 2020
MFA No. 200619 of 2020
MFA No. 200620 of 2020
MFA No. 200622 of 2020
MFA No. 200623 of 2020
2. RUKHIYA BANU
W/O AKRAM DAKHANI
AGED ABOUT: 39 YEARS,
OCC: HOUSE HOLD,
BOTH ARE R/O SURPUR,
DIST. YADGIR.
...APPELLANTS
(BY SRI SANGANAGOUDA V. BIRADAR, ADVOCATE)
AND:
1. SRI. RAJU
S/O AMASIDDA KAMBLE,
AGED ABOUT 45 YEARS,
OCC: BUSINESS, R/O TORAVI,
TQ. & DIST. VIJAYAPURA-586101.
2. THE DIVISIONAL MANAGER
THE UNITED INDIA INSURANCE CO. LTD.,
SANGAM BUILDING, S.S. FRONT ROAD,
VIJAYAPURA-586101.
...RESPONDENTS
(BY SRI SUDARSHAN M., ADVOCATE FOR R2;
R1-SERVED)
THIS MFA IS FILED U/S. 173(1) OF MV ACT PRAYING TO
ENHANCE THE COMPENSATION AMOUNT AND FURTHER HOLD
THE 2ND RESPONDENT INSURANCE COMPANY LIABLE TO
SATISFY THE AWARD AMOUNT BY SUITABLY MODIFYING THE
JUDGMENT AND AWARD DATED 06.08.2019 PASSED BY THE
HONOURABLE III ADDL. SENIOR CIVIL JUDGE AND MACT-XII,
VIJAYAPUR IN MVC NO.1829/2016.
MFA NO.200623/2020:
BETWEEN:
HASHIMBI
W/O MOHAMMED SARAWAR HAKEEM
-7-
MFA No. 200621 of 2020
C/W MFA No. 200618 of 2020
MFA No. 200619 of 2020
MFA No. 200620 of 2020
MFA No. 200622 of 2020
MFA No. 200623 of 2020
AGED ABOUT 54 YEARS,
OCC: TAILORING WORK,
R/O PAILWAN GALLI, NEAR HAKEEN CHOUK,
VIJAYAPURA-586101.
...APPELLANT
(BY SRI SANGANAGOUDA V. BIRADAR, ADVOCATE)
AND:
1. SRI. RAJU
S/O AMASIDDA KAMBLE,
AGED ABOUT 45 YEARS,
OCC: BUSINESS, R/O. TORAVI,
TQ. AND DIST. VIJAYAPURA-586101.
2. THE DIVISIONAL MANAGER
THE UNITED INDIA INSURANCE CO. LTD.,
SANGAM BUILDING, S.S. FRONT ROAD,
VIJAYAPURA-586101.
...RESPONDENTS
(BY SRI SUDARSHAN M., ADVOCATE FOR R2;
R1-SERVED)
THIS MFA IS FILED U/S. 173(1) OF MV ACT PRAYING TO
ENHANCE THE COMPENSATION AMOUNT AND FURTHER HOLD
THE 2ND RESPONDENT INSURANCE COMPANY LIABLE TO
SATISFY THE AWARD AMOUNT BY SUITABLY MODIFYING THE
JUDGMENT AND AWARD DATED 06.08.2019 PASSED BY THE
HON'BLE III ADDL. SENIOR CIVIL JUDGE AND MACT-XII,
VIJAYPUR IN MVC NO.1831/2016.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
-8-
MFA No. 200621 of 2020
C/W MFA No. 200618 of 2020
MFA No. 200619 of 2020
MFA No. 200620 of 2020
MFA No. 200622 of 2020
MFA No. 200623 of 2020
JUDGMENT
In all the 6 cases the appellants/claimants have filed these appeals for enhancement of compensation and also to fix the liability on the insurance company.
2. Though matters are listed for admission, with the consent of learned counsel for both parties, they are taken up for final disposal.
3. Learned counsel for the appellants has submitted his arguments that in all these cases the Tribunal has not passed the judgment and award in accordance with law. Same is not just and proper and sought for enhancement of compensation.
4. With regard to the liability of the insurance company is concerned, it is submitted that the Tribunal has dismissed the case against the insurance company on the ground that owner of the offending vehicle has violated the terms and conditions of the policy. If this -9- MFA No. 200621 of 2020 C/W MFA No. 200618 of 2020 MFA No. 200619 of 2020 MFA No. 200620 of 2020 MFA No. 200622 of 2020 MFA No. 200623 of 2020 Court were to come to the conclusion that there is a violation of terms and conditions of the policy, it can pass an order directing the insurance company to pay the amount with liberty to recover the same from the owner of the offending vehicle. To substantiate his arguments he relied upon the decision of Full Bench of this Court in the case of NEW INDIA ASSURANCE CO. LTD., BIJAPUR v. YALLAVVA AND ANOTHER reported in (2020) 2 KCCR 1405.
5. As against this, learned counsel for the respondent-insurance company in all the cases has submitted that the judgment passed by the Tribunal is in accordance with law. That there are no grounds to interfere with the impugned judgment and award passed by the Tribunal. On all these grounds sought for dismissal of this appeal.
- 10 -
MFA No. 200621 of 2020C/W MFA No. 200618 of 2020 MFA No. 200619 of 2020 MFA No. 200620 of 2020 MFA No. 200622 of 2020 MFA No. 200623 of 2020
6. Having regard to the facts and circumstances of the case, the following points would arise for my consideration:
(1) Whether the appellants in MFA
Nos.200621/2020, 200618/2020,
200619/2020, 200620/2020 and 200623/2020 are entitled for enhancement of compensation as sought for?
(2) Whether the appellants in MFA No.200622/2020 are entitled for enhancement of compensation as sought for?
(3) Whether the respondent-insurance company is liable to pay the compensation in view of decision of Full Bench of this Court (referred supra)?
(4) What order/award?
7. My answer to the above points are:
(1) Partly affirmative
- 11 -
MFA No. 200621 of 2020
C/W MFA No. 200618 of 2020
MFA No. 200619 of 2020
MFA No. 200620 of 2020
MFA No. 200622 of 2020
MFA No. 200623 of 2020
(2) Negative
(3) Affirmative
(4) As per final order
RE. POINT NO.1:
(1) MFA NO.200621/2020:
8. This appeal is arising out of MVC No.1828/2016. In para 31 of the impugned judgment the Tribunal has observed as under:
"31. According to petitioner, who examined as PW5, testified that, she was doing cloth business thereby earning Rs.15,000/-. Further testified that, due to accident, she sustained injury to chin, head and sternum and other injuries all over body and as such admitted to District Hospital Vijaypur and private Hospital for treatment and took treatment. She has became permanently disabled and unable to do any work as earlier. She spent more than Rs.50,000/- towards medical and other expenses. The petitioner has produced Wound Certificate at Ex.P16, wherein it is shown CLW over chin, contusion with haematams, tenderness over stenum and the doctor opined that, the said injuries are simple in nature. On perusal of this document, the age of petitioner is shown as 70 years. In order to corroborate the oral testimony of P.W.5 and also assess the disability suffered by the petitioner, no registered medical practitioner has been examined and no such disability certificate has been produced. The petitioner contends that, she has taken treatment at Govt. Hospital Vijaypur and other private hospital and just produced Inpatient bill at Ex.P-17 amounting to Rs.6,000/- and date of admission is mentioned
- 12 -MFA No. 200621 of 2020 C/W MFA No. 200618 of 2020 MFA No. 200619 of 2020 MFA No. 200620 of 2020 MFA No. 200622 of 2020 MFA No. 200623 of 2020
as 30-05-2016 and discharged on 04-06-2016 i.e., 4 days she was inpatient. Though the petitioner has contended that she has sustained permanent disability and that she became permanently disabled. To substantiate this contention the petitioner neither has led the evidence of any doctor nor produced any disability certificate. In the absence of such evidence, looking to the nature of injuries and period of treatment taken in hospital for more than 4 days, I feel it proper and necessary to award global compensation of Rs.20,000/- including medical bills."
9. Considering the nature of injuries, pain and agony, period of treatment taken in hospital for 4 days as inpatient and inpatient bills as per Ex.P-17, it is just and proper to award global compensation of Rs.40,000/- as against Rs.20,000/- awarded by the Tribunal. Accordingly, appellant/claimant is entitled for global compensation of Rs.40,000/-. Accordingly, I answer Point No.1 in partly affirmative.
(2) MFA No.200618/2020:
10. This appeal is arising out of MVC No.1822/2016. In para 14 of the impugned judgment the Tribunal has given a finding for awarding amount of Rs.1,75,000/-.
- 13 -
MFA No. 200621 of 2020C/W MFA No. 200618 of 2020 MFA No. 200619 of 2020 MFA No. 200620 of 2020 MFA No. 200622 of 2020 MFA No. 200623 of 2020
11. Learned counsel for the appellant has submitted his arguments that Tribunal has not awarded any compensation towards loss of dependency, which is contrary to the judgment of Hon'ble Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. BIRENDER AND ORS. in Civil Appeal No.244/2020 (SLP (CIVIL) No.978/2020)).
12. The Tribunal has determined the notional income of the deceased at Rs.7,000/- per month, which is contrary to the guidelines issued by the KSLSA. Considering the occupation of the deceased it is just and proper to assess the income of the deceased at Rs.8,750/- per month as per the guidelines issued by the Karnataka State Legal Services Authority. Keeping in mind the above said decision and the decisions of Hon'ble Supreme Court in the case of NATIONAL INSURANCE CO., LTD., VS. PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157 and MAGMA GENERAL INSURANCE COMPANY
- 14 -
MFA No. 200621 of 2020C/W MFA No. 200618 of 2020 MFA No. 200619 of 2020 MFA No. 200620 of 2020 MFA No. 200622 of 2020 MFA No. 200623 of 2020 LIMITED VS. NANU RAM ALIAS CHUHRU RAM & OTHERS reported in 2018 ACJ 2782, the notional income of the deceased is taken at Rs.8,750/- per month. The decease was aged 70 years at the time of accident, as such the appropriate multiplier is '5'.
13. Admittedly, the deceased has left behind a son and 2 daughters, hence in view of decision in SARLA VERMA (SMT) & OTHERS VS. DELHI TRANSPORT CORPORATION & ANOTHER, reported in (2009) 6 SCC 121, 1/3rd has to be deducted from his income, which would come to Rs.8,750/- - 1/3rd (Rs.2,917/-) = Rs.5,833/-. Thus, the claimants are entitled to a sum of Rs.3,49,980/- [Rs.5,833/- x 12 x 5], which is rounded off to Rs.3,50,000/- towards loss of dependency.
14. Keeping in mind the aforestated decisions, it is just and proper to assess the compensation as under:
Sl.
Particulars Amount in Rs.
No.
1 Loss of dependency 3,50,000/-
- 15 -
MFA No. 200621 of 2020
C/W MFA No. 200618 of 2020
MFA No. 200619 of 2020
MFA No. 200620 of 2020
MFA No. 200622 of 2020
MFA No. 200623 of 2020
2 Loss of consortium 1,20,000/-
(Rs.40,000/- x 3)
3 Loss of estate 15,000/-
4 Funeral expenses 15,000/-
Total 4,99,980/-
(rounded off to)
5,00,000/-
15. Thus, the claimants are entitled to a total compensation of Rs.5,00,000/- as against Rs.1,75,000/-
awarded by the Tribunal. Hence, the claimants are entitled for enhanced compensation of Rs.3,25,000/- along with interest @ 6% p.a. from the date of petition till realisation. Accordingly, I answer Point No.1 in partly affirmative. (3) MFA No.200619/2020:
16. This appeal is arising out of MVC No.1823/2016.
In para 30 of the impugned judgment the Tribunal has given a finding for awarding a global compensation of Rs.20,000/-.
17. Considering the nature of injuries, fracture of ribs, injury to back chest and other injuries, pain and
- 16 -
MFA No. 200621 of 2020C/W MFA No. 200618 of 2020 MFA No. 200619 of 2020 MFA No. 200620 of 2020 MFA No. 200622 of 2020 MFA No. 200623 of 2020 agony, period of treatment taken in hospital for 4 days as inpatient, attendant charges, loss of amenities, etc., it is just and proper to award global compensation of Rs.50,000/- as against Rs.20,000/- awarded by the Tribunal. Accordingly, claimant is entitled for global compensation of Rs.50,000/-. Accordingly, I answer Point No.1 in partly affirmative.
(4) MFA No.200620/2020:
18. This case is arising out of MVC No.1825/2016. In para 20 to 25 of the impugned judgment the Tribunal has observed as under:
"20. Petitioner No.1/Mohammed Sarwar being son of deceased Maqboolbi Hakeem has filed his affidavit evidence and has re-iterated the averments of the petition stating that his deceased mother was aged about 60 years, hale and healthy prior to the accident. He further stated that his Rs.15,000/- p.m. To prove the exact age and deceased mother was running bangles shop and getting income of the deceased, the petitioners have not placed on record any iota of documentary evidence. Hence, in the absence of such lapse, I proposed to rely on Ex.P-6 the P.M.report wherein age of the deceased is mentioned as 70 years. This age is taken for computing the compensation.
- 17 -MFA No. 200621 of 2020 C/W MFA No. 200618 of 2020 MFA No. 200619 of 2020 MFA No. 200620 of 2020 MFA No. 200622 of 2020 MFA No. 200623 of 2020
21. Further, the adversary attacked insofar as dependency of the petitioners. In the cause title of the petition, it is shown four dependents. They are sons and daughter of the deceased. On perusal of the same, evidently appears that they are major children and their occupation is shown as business and house hold and same is admitted in his cross-examination. Further admitted that, the petitioner No.4 given in marriage, and she is residing in her husband's house and further admitted that after death of their father, they all looking after their deceased mother. Hence, I am of the plank opinion that, all the petitioners are not to be considered as dependants of the deceased. However they are entitled for compensation in other heads. As per decision of, Division Bench of Hon'ble Court of Karnataka, reported in 2013 SCC online Kar. 9258 (DB) Yogesh Vs. Major/Captain Officer Commending Military training wing, Bangalore, the petitioners are entitled for compensation under the head of loss of estate and in other conventional heads.
22. Though the petitioners have not produced any iota of documentary evidences to prove that deceased was earning Rs. 15,000/- p.m out of her avocation. In the absence of the same, the notional income of deceased is taken at Rs.7000/- p.m. When the petitioners are all major, considering the applicability of multiplier and age of the deceased is immaterial. However, under following heads, the petitioners are entitled for compensation.
23. Towards loss of love and affection:-
Petitioner No. 1 to 3 being sons and petitioner No.4 is daughter of the deceased each are entitled for Rs.25,000/-
(Rs.25,000x4=Rs.1,00,000/-) under the head of loss of love and affection.
- 18 -MFA No. 200621 of 2020 C/W MFA No. 200618 of 2020 MFA No. 200619 of 2020 MFA No. 200620 of 2020 MFA No. 200622 of 2020 MFA No. 200623 of 2020
24. Towards loss of estate:-Considering the age of the deceased, and expectancy of future life, it is just and proper to award Rs.25,000/-
to each petitioner (Rs.25,000/- x4=Rs.1,00,000/-) under the head of loss of estate.
25. Towards transportation and funeral expenses:- Considering the factum of accident, material placed on record, the petitioners might have spent amount toward, transportation, attendant, etc., Hence, I award compensation towards funeral expenses at Rs.25,000/-."
19. Learned counsel for the appellant has submitted his arguments that Tribunal has not awarded any compensation towards loss of dependency, which is contrary to the judgment of Hon'ble Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. BIRENDER AND ORS. in Civil Appeal No.244/2020 (SLP (CIVIL) No.978/2020)).
20. The Tribunal has determined the notional income of the deceased at Rs.7,000/- per month, which is contrary to the guidelines issued by the KSLSA. Considering the occupation of the deceased, it is just and
- 19 -
MFA No. 200621 of 2020C/W MFA No. 200618 of 2020 MFA No. 200619 of 2020 MFA No. 200620 of 2020 MFA No. 200622 of 2020 MFA No. 200623 of 2020 proper to assess the income of the deceased at Rs.8,750/- per month as per the guidelines issued by the Karnataka State Legal Services Authority. Keeping in mind the above said decision and the decisions of Hon'ble Supreme Court in the case of NATIONAL INSURANCE CO., LTD., VS. PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157 and MAGMA GENERAL INSURANCE COMPANY LIMITED VS. NANU RAM ALIAS CHUHRU RAM & OTHERS reported in 2018 ACJ 2782, the notional income of the deceased is taken at Rs.8,750/- per month. The decease was aged 70 years at the time of accident, as such the appropriate multiplier is '5'.
21. Admittedly, the deceased has left behind 2 sons and 2 daughters, hence in view of decision in SARLA VERMA (SMT) & OTHERS VS. DELHI TRANSPORT CORPORATION & ANOTHER, reported in (2009) 6 SCC 121, 1/4th has to be deducted from his income, which would come to Rs.8,750/- - 1/4th (Rs.2,187.5) =
- 20 -
MFA No. 200621 of 2020C/W MFA No. 200618 of 2020 MFA No. 200619 of 2020 MFA No. 200620 of 2020 MFA No. 200622 of 2020 MFA No. 200623 of 2020 Rs.6,562.5/-, which is rounded off to 6,562/-. Thus, the claimants are entitled to a sum of Rs.3,93,750/- [Rs.6,562/- x 12 x 5], which is rounded off to Rs.3,94,000/- towards loss of dependency.
22. Keeping in mind the aforestated decisions, it is just and proper to assess the compensation as under:
Sl.
Particulars Amount in Rs.
No.
1 Loss of dependency 3,94,000/-
2 Loss of consortium 1,60,000/-
(Rs.40,000/- x 4)
3 Loss of estate 15,000/-
4 Funeral expenses 15,000/-
Total 5,84,000/-
23. Thus, the claimants are entitled to a total compensation of Rs.5,84,000/- as against Rs.2,25,000/-
awarded by the Tribunal. Hence, the claimants are entitled for enhanced compensation of Rs.3,59,000/- along with interest @ 6% p.a. from the date of petition till realisation. Accordingly, I answer Point No.1 in partly affirmative.
- 21 -
MFA No. 200621 of 2020C/W MFA No. 200618 of 2020 MFA No. 200619 of 2020 MFA No. 200620 of 2020 MFA No. 200622 of 2020 MFA No. 200623 of 2020 RE. POINT NO.2:
(5) MFA No.200622/2020:
24. This appeal is arising out of MVC No.1829/2016.
In para 26 to 29 at page 19 of the impugned judgment the Tribunal has observed as under:
"26. In this case, the petitioner No.1/father of deceased Taisin examined as P.W.2, who testified that, his daughter was aged about 6 years at the time of accident. The petitioners No.1 and are parents of minor deceased. The deceased being minor, question of considering her income does not arise. She is non earning member. The petitioners have not produced any material document to substantiate the age of minor daughter and that too school records to ascertain the deceased was studying.
As per the PM report marked at Ex.P.9, age of the deceased is shown as 6 years. The Hon'ble Apex Court in its judgment in the case of Kishan Gopal v. Lala, (2014) 1 SCC 244 held that the notional income of the minor should be taken as Rs.30,000/per annum and the age of the youngest parent should be considered. The observations of the said decision are as under, "In our considered view, the aforesaid legal principle laid down in Lata Wadhwa case (Lata Wadhwa v. State of Bihar (2001) 8 SCC 197) with all fours is applicable to the facts and circumstances of the case in hand having regard to the fact that-the deceased was 10 years old, who was assisting the appellants in their agricultural occupation which is an undisputed fact. We have also considered the fact that the rupee value has come down drastically from the year 1994. when the notional income of the non-earning member prior to the date of accident was fixed at Rs 15,000. Further, the deceased boy, had he
- 22 -MFA No. 200621 of 2020 C/W MFA No. 200618 of 2020 MFA No. 200619 of 2020 MFA No. 200620 of 2020 MFA No. 200622 of 2020 MFA No. 200623 of 2020
been alive would have certainly contributed substantially to the family of the appellants by working hard."
28. In view of the aforesaid reasons, it would be just and reasonable for us to take his notional income at Rs.30,000 and further taking the young age of the parents, namely, the mother who was about 35 years old, at the time of accident, by applying the legal principles laid down in Sarla Verma v. DTC [(2009) 6 SCC 121: (2009) 2 SCC (Civil) 770: (2009) 2 SCC (Cri) 1002), the multiplier of 16 can be applied to the multiplicand. Thus, Rs.30,000×16 = Rs.4,80,000 and Rs.50,000 under conventional heads towards loss of love and affection. funeral expenses, last rites as held in Kerala SRTC v. Susamma Thomas [(1994) 2 SCC 176: 1994 SCC (Cri) 335], which is referred to in Lata Wadhwa case [Lata Wadhwa v. State of Bihar, (2001) 8 SCC 197] and the said amount under the conventional heads is awarded even in relation to the death of children. In this case also we award Rs.50,000 under conventional heads. In our view, for the aforesaid reasons the said amount would be fair, just and reasonable compensation to be awarded in favour of the appellants.
29. In this case the age of the mother i.e. petitioner No.2 is shown as 35 years and hence the multiplier applicable is '16'. Therefore, in view of the above decision, the petitioners are entitled for a compensation of Rs.4,80,000/ under the head of loss of dependency Rs.30,000/-X16) and a sum of Rs.50,000/- under conventional heads. The petitioners are entitled for a sum of Rs.5,30,000/-."
25. On appreciation of evidence on record, it is crystal clear that Tribunal has passed just and proper compensation relying on the decision of the Hon'ble Apex Court. That there are no grounds to interfere with the
- 23 -
MFA No. 200621 of 2020C/W MFA No. 200618 of 2020 MFA No. 200619 of 2020 MFA No. 200620 of 2020 MFA No. 200622 of 2020 MFA No. 200623 of 2020 impugned judgment and award passed by the Tribunal. Accordingly, it is held that appellant is not entitled for any enhancement of compensation in this case. Accordingly, I answer Point No.2 in this appeal in the negative. (6) MFA No.200623/2020:
26. This case is arising out of MVC No.1831/2016. In para 32 of the impugned judgment the Tribunal has observed as under:
"32. According to petitioner/Hashimbi Hakeem, who examined as PW5, testified that, she was doing tailoring work thereby earning Rs. 15,000/- p.m. Further testified that, due to accident, she sustained injury to head, injury to right shoulder and other injuries all over body and as such admitted to District Hospital Vijaypur and private Hospital for treatment and took treatment. She has became permanently disabled and unable to do any work as earlier. She spent more than Rs.50,000/- towards medical and other expenses. The petitioner has produced Wound Certificate at Ex.P14, wherein it is shown CLW wound over right frontal region, tenderness over right shoulder and also shown no fracture is seen. On perusal of this document, the age of petitioner is shown as 60 years. In order to corroborate the oral testimony of P.W.5 and also assess the disability suffered by the petitioner, no registered medical practitioner hast been examined and no such disability certificate has been produced. The petitioner contends that, she has taken treatment at Govt Hospital Vijaypur and other private hospital and just produced Inpatient bill at Ex.P-15 amounting
- 24 -MFA No. 200621 of 2020 C/W MFA No. 200618 of 2020 MFA No. 200619 of 2020 MFA No. 200620 of 2020 MFA No. 200622 of 2020 MFA No. 200623 of 2020
to Rs.65000/- and date of admission is mentioned as 30-05-2016 and discharged on 03-06-2016 i.e., 3 days she was inpatient. Though the petitioner has contended that she has sustained permanent disability and that she became permanently disabled. To substantiate this contention the petitioner neither has led the evidence of any doctor nor produced any disability certificate. In the absence of such evidence, looking to the nature of injuries and period of treatment taken in hospital for more than 4 days, I feel it proper and necessary to award global compensation of Rs.20,000/- including medical bills."
27. Taking into consideration the age and occupation, nature of injures shown in Ex.P-14, pain and agony, period of taking treatment as inpatient for 3 days and medical expenses, it is just and proper to award the global compensation of Rs.40,000/- as against Rs.20,000/- awarded by the Tribunal. RE. POINT NO.2:
28. With regard to liability of the insurance company is concerned, in para 12 of the judgment the Tribunal has observed as under:
"12. Common Issue No.2 in all cases: The respondent No.2 insurance company taken a specific defense that he is not liable to pay compensation in view of violations of terms and conditions of
- 25 -MFA No. 200621 of 2020 C/W MFA No. 200618 of 2020 MFA No. 200619 of 2020 MFA No. 200620 of 2020 MFA No. 200622 of 2020 MFA No. 200623 of 2020
insurance policy. It is specific contentions of the respondent No.2 that, their policy was issued to the offending vehicle only as a private carrier, but the said vehicle has been used for hire and reward. Therefore, there is violation of policy conditions. Though in support of its contention no oral evidence is adduced, but during cross-examination of P.Ws. 1 to 6, it is elicited that, neither the owner of the Jeep nor its driver are their relatives. It is further admitted that, the deceased persons and injured were travelling after attending marriage of Jahagirdar family and that there is no relationship between Jahagirdar family and driver as well as owner of the Cruiser Jeep. Even on perusal of the policy produced at Ex.R-1 it clearly depicts that, it is a private Car package policy and that there is a condition that the said Cruiser Jeep shall not be used for hire or reward. Further more in all petitions nowhere it is pleaded that the deceased and injured petitioners are the relatives of ACO petitioners have produced photo copies of respondent No 1. So also no such evidence from the mouth of P.Ws.1 to 6 is forthcoming in this regard. No doubt the petitioners have produced photo copies of R.C. of offending vehicle and D.L.of driver, but failed to establish the statutory obligations of insurance policy. On the other hand, the respondent No.2 raised a specific plea in the written statement at para-5 on this aspect. Hence, the defense taken by the respondent No.2 is acceptable one. Therefore, the respondent No.2 has proved this issue and it is absolved from its liability, thereby I Affirmative."
29. By giving the above finding, the Tribunal has dismissed the case of the respondent No.2-insurance company.
- 26 -
MFA No. 200621 of 2020C/W MFA No. 200618 of 2020 MFA No. 200619 of 2020 MFA No. 200620 of 2020 MFA No. 200622 of 2020 MFA No. 200623 of 2020
30. A perusal of the judgment relied on by the Full Bench of this Court in the case of NEW INDIA ASSURANCE CO. LTD., BIJAPUR v. YALLAVVA AND ANOTHER reported in (2020) 2 KCCR 1405 the Full Bench has observed as under:
"ORDER OF THE COURT Questions referred:-
I) If it is shown the insurance policy is not 'Act' policy in terms of Sections 145 and 147 of the Motor Vehicles Act, but a contractual policy issued collecting extra premium indicating insurance company has enlarged its liability, will not the insurance company be liable to pay and recover even if there is any breach by the insurer?
II) In such cases, is not the rule to 'pay and recover' applicable in view of the mandate in Section 149, M.V.Act that upon issuance of policy, the insurer is bound to discharge the award as if it were a judgment debtor?
Answers:
i) Having regard to Section 149(1) r/w Section 149(7) whenever a case falls under Section 149(2)(a) and the same is successfully established or proved by the Insurance Company, as per the twin tests laid by the Hon'ble Supreme Court in Swaran Singh, nevertheless, the insurer or Insurance Company is liable to satisfy the award vis-à-vis a third party and is entitled to recover from the insured. This is irrespective of, the policy being an Act. policy in terms of Section 147 pertaining to compulsory coverage of risks of third parties and other classes of persons stated therein
- 27 -MFA No. 200621 of 2020 C/W MFA No. 200618 of 2020 MFA No. 200619 of 2020 MFA No. 200620 of 2020 MFA No. 200622 of 2020 MFA No. 200623 of 2020
or a policy covering other risks by specific contract being entered into in that regard and where additional premium is paid by the insured i.e., a contractual policy.
ii) The Insurer is liable to pay the third party and recover from the insured even if there is breach of any condition recognized under Section 149 (2), even if it is a fundamental breach (that is breach of condition which is the cause for the accident) and the insurer proves the said breach in view of the mandate under Section 149(1) of the Act. But, no such order can be passed against the insurer, if, on the facts and circumstances of a case, a finding is given by the court that the third party (injured or deceased) had played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss to the insurer.
iii) The Court can also fasten the absolute liability on the insurer, if there is any breach of condition which is enumerated under Section 149(2) of the Act or any other condition of the policy if the Insurance Company has waived breach of any such condition or has taken the special responsibility to pay by collecting extra premium by covering any type of risk depending upon facts of each case.
iv) Thus, the rule of pay and recover is applicable in view of the mandate in Section 149(4) of the Act and even if there is a breach of the terms of the insurance policy, the insurer is bound to satisfy the judgment and award as if it were a judgment debtor, even if it satisfies the twin tests enunciated by the Hon'ble Supreme Court under Section 149(4)(a) of the Act.
v) Before passing any order on the Insurance Company to pay and recover, the Court has to examine the facts and circumstances of each case and if it finds that the victim, injured or the deceased, in a particular case, was solely or jointly
- 28 -
MFA No. 200621 of 2020C/W MFA No. 200618 of 2020 MFA No. 200619 of 2020 MFA No. 200620 of 2020 MFA No. 200622 of 2020 MFA No. 200623 of 2020 responsible for breach of such fundamental condition by playing fraud or in collusion with the insured, the Court may exercise its discretion not to fasten the liability or the insurer.
vi) However, the court should not adopt the above guideline as a general rule in all cases, but only under peculiar facts and circumstances of each case and on giving appropriate reasons.
vii) If the Insurance Company makes out a case under Section 149(2)(b) of the Act, then also the Insurance Company has to satisfy the award so far as third party is concerned, as it is the duty of the Insurance Company to indemnify the insured on the basis of the policy of the insurance and even when the contract of insurance itself is void, nevertheless the liability to indemnify the insured would arise and insurer is entitled to recover from the insured.
viii) Thus, in a case where Section 149(2)(b) applies and the Insurance Company successfully establishes that the policy is void, in such a case also, the insurer is not absolved of its liability to satisfy the judgment or award as rights or obligations would flow even from a policy which is void vis-à-vis third party. In such a case, the insurer is not completely absolved of its liability, the insured would have to satisfy the award vis-à- vis the third party and recover from the insured the amount paid to the third party and may also have a right to seek damages from the insured.
ix) The judgment of the Division Bench of this Court in Subramanyam, holding that a pay and recovery order cannot be made as there is no liability to pay or satisfy the award or decree in respect of a case falling under Section 149(2) is not correct. Hence, that portion of the judgment in Subramanyam, which states that if the case falls within the scope of Section 149(2) of the Act and the insurer is successful in establishing any of the defences as stated therein, it would be completely
- 29 -
MFA No. 200621 of 2020C/W MFA No. 200618 of 2020 MFA No. 200619 of 2020 MFA No. 200620 of 2020 MFA No. 200622 of 2020 MFA No. 200623 of 2020 absolved of its liability to satisfy the award is also not correct and to that extent, it is held to be bad in law.
x) Article 142 of the Constitution of India being a power granted under the Constitution only to the Supreme Court can be exercised in appropriate cases only by the Apex Court. Exercise of power under Article 142 by the Hon'ble Supreme Court in a particular case cannot be a precedent for other Courts and Tribunals to exercise such a power unless the same is indicated to be a precedent by the Apex Court.
In the instant case, the appellant - Insurance Company was directed to discharge its liability, subject to the result of this reference. The vehicle involved in the instant case is a goods vehicle and the injured claimant was travelling in a goods carriage. The Tribunal awarded compensation of Rs.1,000/- with interest at 6% p.a. from the date of petition till deposit and to recover the same from the insured - respondent No.2 herein. If the appellant insurer has deposited the amount, it is entitled to recover the said amount from the first respondent insured, as this is a case which falls under Section 149(2)(a) of the Act as the insured claimant was permitted to travel as a passenger in a goods vehicle namely, tempo.
In the circumstances, the appeal is liable to be dismissed and is dismissed.
Parties to bear their respective costs."
31. In view of the aforesaid decision, insurance company is liable to pay the compensation to the claimants/appellants with liberty to recover the same from
- 30 -
MFA No. 200621 of 2020C/W MFA No. 200618 of 2020 MFA No. 200619 of 2020 MFA No. 200620 of 2020 MFA No. 200622 of 2020 MFA No. 200623 of 2020 the owner of the offending vehicle. Accordingly, I answer Point No.3 in the affirmative.
RE. POINT NO.3:
32. For the aforesaid reasons and discussion, I proceed to pass the following:
ORDER (1) MFA Nos.200621/2020, 200618/2020, 200619/2020, 200620/2020, 200623/2020 are allowed in part.
(2) MFA No.200622/2020 is dismissed. The judgment and award dated 06.08.2019 passed by the III Addl. Senior Civil Judge and MACT - XII, Vijaypur, is modified as under:
(3) Claimants are entitled for enhancement of compensation respectively as shown below:
Sl.
MFA Nos. Amount in Rs.
No.
1 MFA No.200621/2020 40,000/-
2 MFA No.200618/2020 5,00,000/-
3 MFA No.200619/2020 50,000/-
4 MFA No.200620/2020 5,84,000/-
5 MFA No.200623/2020 40,000/-
- 31 -
MFA No. 200621 of 2020
C/W MFA No. 200618 of 2020
MFA No. 200619 of 2020
MFA No. 200620 of 2020
MFA No. 200622 of 2020
MFA No. 200623 of 2020
(4) Respondent Nos.1 and 2 are jointly and severally liable to pay the compensation. (5) Respondent No.2 - insurance company is directed to deposit the compensation amount within one (1) month from the date of receipt of certified copy of this judgment and recover the same from the owner of the offending vehicle.
(6) Amount in deposit, if any, shall be
transferred to the Tribunal for
disbursement to the claimants in terms of the award of the Tribunal.
(7) The apportionment of the compensation shall be in terms of the award of the Tribunal.
(8) Pending IA's, if any, shall stand disposed of.
(9) All other terms and conditions stipulated by the Tribunal shall stand intact.
Sd/-
JUDGE DR LIST NO.: 1 SL NO.: 89