Karnataka High Court
S M Malathesha vs Thanuja on 27 July, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2023:KHC:27814
MFA No. 6484 of 2012
C/W MFA.CROB No. 24 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 6484 OF 2012 (MV)
C/W
MFA CROSS OBJECTION NO. 24 OF 2017 (MV-D)
IN MFA NO. 6484/2012
BETWEEN:
S.M. MALATHESHA,
S/O S.N. RAMARAO,
AGED ABOUT 53 YEARS,
OCC: AGRICULTURE,
R/O SANDA VILLAGE,
SHIKARIPURA TALUK,
SHIMOGA DISTRICT - 577 447.
...APPELLANT
(BY SRI. S.V. PRAKASH, ADVOCATE)
Digitally signed by
VIJAYALAKSHMI B N AND:
Location: HIGH
COURT OF
KARNATAKA 1. THANUJA,
W/O CHANNABASAPPAGOWDA,
AGED ABOUT 32 YEARS.
2. VIJETH,
S/O CHANNABASAPPAGOWDA,
AGED ABOUT 10 YEARS.
3. KUM. CHAMPA,
S/O CHANNABASAPPAGOWDA,
AGED ABOUT 8 YEARS,
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NC: 2023:KHC:27814
MFA No. 6484 of 2012
C/W MFA.CROB No. 24 of 2017
RESPONDENTS NO.2 & 3
ARE MINORS,
REPRESENTED BY THEIR MOTHER
NATURAL GUARDIAN MOTHER,
W/O CHANNABASAPPAGOWDA,
AGED ABOUT 32 YEARS,
ALL ARE RESIDENTS OF
KOPPA VILLAGE,
NEECHADI POST,
SAGAR TALUK,
SHIMOGA DISTRICT - 577 431.
4. THIPPAKAR RAMAPPA,
S/O HANUMANTHAPPA,
MAJOR IN AGE (EXACT AGE NOT
KNOWN TO THE APPELLANT)
R/O SANDA VILLAGE,
SHIKARIPUR TALUK,
SHIMOGA DISTRICT - 577 447.
5. M/S NATIONAL INSURANCE
COMPANY LIMITED,
S.S. COMPLEX,
B.H. ROAD,
SHIMOGA CITY - 577 201.
REPRESENTED BY
ITS BRANCH MANAGER.
...RESPONDENTS
(BY SRI. M.S. HARISH KUMAR, ADVOCATE FOR R1;
R-2 AND R-3 ARE MINORS REPRESENTED BY R1;
R-4 NOTICE DISPENSED WITH VIDE ORDER
DATED: 03-09-2015;
SMT. A.R. RENUKA, ADVOCATE FOR R5)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:10.02.2011
PASSED IN MVC NO.231/2007 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT, MEMBER, ADDITIONAL MACT-8,
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NC: 2023:KHC:27814
MFA No. 6484 of 2012
C/W MFA.CROB No. 24 of 2017
SAGAR, AWARDING A COMPENSATION OF RS.4,29,200/- WITH
INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL
REALIZATION AND ETC.,
IN MFA CROB NO. 24/2017
BETWEEN:
1. SMT. THANUJA,
W/O LATE CHANNABASAPPA GOWDA,
AGED ABOUT 36 YEARS.
2. MR. VIJETH,
S/O LATE CHANNABASAPPA GOWDA,
AGED ABOUT 14 YEARS.
3. KUM. CHAMPA,
D/O CHANNABASAPPA GOWDA,
AGED ABOUT 12 YEARS,
THE CROSS OBJECTOR NO. 2 AND 3
ARE MINORS, REPRESENTED BY THEIR
NATURAL GUARDIAN MOTHER,
SMT. THANUJA,
ALL ARE RESIDENTS OF
KOPPA VILLAGE, NEECHADI POST,
SAGAR TALUK,
SHIMOGA DISTRICT - 577 431.
...CROB OBJECTORS
(BY SRI. HARISH KUMAR M.S., ADVOCATE)
AND:
1. S.M. MALATESHA,
S/O S.N. RAMARAO,
AGED ABOUT 57 YEARS,
R/O SANDA VILLAGE,
SHIKARIPURA TALUK,
SHIMOGA DISTRICT - 577 427.
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NC: 2023:KHC:27814
MFA No. 6484 of 2012
C/W MFA.CROB No. 24 of 2017
2. THIPPAKKAR RAMAPPA,
S/O HANUMANTHAPPA,
MAJOR IN AGE,
SINCE AGE NOT KNOWN,
R/O SANDA VILLAGE,
SHIKARIPURA TALUK,
SHIMOGA DISTRICT - 577 427.
3. NATIONAL INSURANCE COMPANY LIMITED,
SS COMPLEX, B.H. ROAD,
SHIMOGA TOWN - 577 201,
REPRESENTED BY
ITS BRANCH MANAGER.
...RESPONDENTS
(BY SRI. S.V. PRAKASH, ADVOCATE FOR R1;
R-2 DECEASED;
SMT. H.R. RENUKA, ADVOCATE FOR R3)
THIS MFA. CROB IN MFA NO. 6484/2012 FILED UNDER
ORDER XLI RULE 22 OF THE CPC AGAINST THE JUDGMENT
AND AWARD DATED 10.02.2011 PASSED IN MVC NO.
231/2007 ON THE FILE OF THE PRESIDING OFFICER, FAST
TRACK COURT AND ADDITIONAL MOTOR ACCIDNTS CLAIMS
TRIBUNAL-8, SAGAR, ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION RESPONDENT NO.2 ALONE AND ETC.,
THIS APPEAL AND MFA CROB, COMING ON FOR
HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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NC: 2023:KHC:27814
MFA No. 6484 of 2012
C/W MFA.CROB No. 24 of 2017
JUDGMENT
These appeals are filed by the owner of the offending vehicle and the claimants respectively under Section 173(1) of Motor Vehicles Act, 1988 (hereinafter referred to as 'MV Act' for short), challenging the judgment and award passed in MVC No.231/2007 dated 10.02.2011 by the Fast Track Court and Additional MACT-8 at Sagar. MFA No.6484/2012 is filed by the owner of the offending vehicle questioning the liability.
MFA Crob.24/2017 is filed by the claimants for seeking enhancement of compensation.
2. The brief facts of the case are that on 31.07.2007 at about 7.30 p.m., the deceased was proceeding by walk on tank bund road in between Chaknalli and Sanda village, at that time the driver of the Tractor bearing Reg.No.KA- 15/T-2964 came from opposite direction in a rash and negligent manner and dashed against the deceased, due to which, the deceased sustained grievous injuries. He was shifted to Government Hospital at Shikaripura for first -6- NC: 2023:KHC:27814 MFA No. 6484 of 2012 C/W MFA.CROB No. 24 of 2017 aid and later was shifted to Nanjappa Hospital, Shivamogga for better treatment and when he was on the way to Manipal Hospital, he succumbed to the injuries sustained. Therefore, the claimants have filed claim petition under Section 166 of the Motor Vehicles Act, seeking compensation.
3. Heard the arguments on both sides and perused the records.
4. Learned counsel for the appellant/owner submitted that when the Insurance Company has taken contention that the driver did not possess valid and effective driving license, then, the burden lies on the Insurance Company to prove that the driver was not holding valid and effective driving licence. But, that has not been discharged. Therefore, the Tribunal has erroneously saddled burden on the owner of the offending vehicle. Hence, prays to modify the judgment and award -7- NC: 2023:KHC:27814 MFA No. 6484 of 2012 C/W MFA.CROB No. 24 of 2017 passed by the Tribunal by fastening the liability on the Insurance Company.
5. On the other hand, learned counsel for the cross- objectors/claimants submitted that pay and recovery may be made in order to protect the right of the claimants for getting compensation as per principle of law laid down by the Hon'ble Supreme Court in a catena of decisions and further prays to enhance quantum of compensation.
6. In the present case, the Tribunal by determining the compensation, has saddled the burden on the owner of the tractor-trailer on the ground that the driver of the tractor-trailer was not having any driving licence to drive the same. The driver was made as a party before the Tribunal and he was placed exparte. The owner was Respondent No.2 before the Tribunal, has appeared through his counsel. It is burden on the owner and driver to produce driving licence before the Tribunal. When the Insurance Company has taken contention that the driver did not have driving licence, it cannot be expected to lead -8- NC: 2023:KHC:27814 MFA No. 6484 of 2012 C/W MFA.CROB No. 24 of 2017 negative evidence from the Insurance Company. It is always a burden on the owner and driver to prove that the driver of the offending vehicle was holding driving licence as on the date of the accident. Ex.R2 is the charge sheet produced by the Insurance Company in which the offence is foisted against the driver and owner of the tractor- trailer, as not holding a valid driving licence. Therefore, the driver was charged for non-holding of driving licence and the owner is charged authorizing the person who was not having driving licence. When these being the facts, the Insurance Company has discharged its burden in proving that the driver did not have driving licence to drive the offending vehicle. Then, the owner and driver had to prove the ownership of the vehicle as on the date of the accident and that the driver was holding driving licence, but the owner and driver have not lead evidence to prove that the driver was having licence. Therefore, in this regard, the Tribunal is correct in exonerating the Insurance Company as there is a breach of condition of the Insurance policy. Therefore, the Insurance Company -9- NC: 2023:KHC:27814 MFA No. 6484 of 2012 C/W MFA.CROB No. 24 of 2017 was rightly exonerated from liability. However, the Insurance Company has established defence successfully as per sub-section (2) of Section 149 of the Motor Vehicles Act, then as per sub-sections (1),(5) and (7) of Section 149 of the Motor Vehicles Act, the statutory protection of pay and recovery is given to the claimants since the claimant is a third party. Therefore, the Insurance Company as if Judgment Debtor shall satisfy the claim to the claimants, then recover it from the owner of the tractor-trailer. This is also laid down by the Hon'ble Supreme Court in the case of PAPPU AND OTHERS v. VINOD KUMAR LAMBA AND ANOTHER reported in AIR 2018 SC 592; in the case of NATIONAL INSURANCE COMPANY v. SWARAN SINGH AND OTHERS reported in (2004)3 SCC 297; and the decision of Full Bench of this Court in the case of NEW INDIA ASSURANCE COMPANY LIMITED, BIJAPUR v. YALLAVVA AND ANOTHER reported in ILR 2020 KAR 2239. Accordingly, even though the owner has preferred appeal, but the claimants have statutory right as above stated. Therefore,
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NC: 2023:KHC:27814 MFA No. 6484 of 2012 C/W MFA.CROB No. 24 of 2017 an order of pay and recovery is made issuing direction to the Insurance Company to first pay the compensation to the claimants, then recover it from the owner of the tractor-trailer No.KA-15/T-2964
7. In the present case, the Tribunal has granted compensation under various heads as follows:
1) For loss of dependency Rs. 4,03,200-00
2) Towards loss of consortium Rs. 10,000-00 to the petitioner No.1
3) Towards loss of love and Rs. 10,000-00 affection to the petitioner nos2 & 3
4) For conveyance Rs. 3,000-00
5) For funeral and obsequy Rs. 3,000-00 ceremony Total Rs. 4,29,200-00
8. The deceased was an Agriculturist owning 14 acres of land and he was personally cultivating the land. But the claimants have not produced any documentary evidence to prove that the deceased was an Agriculturist
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NC: 2023:KHC:27814 MFA No. 6484 of 2012 C/W MFA.CROB No. 24 of 2017 and also, there is no evidence to prove the income. Therefore, considering the accident occurred on 31.07.2007, the monthly income of Rs.4,000/- is considered as recognized by the KSLSA. As the deceased was aged 38 years, appropriate multiplier applicable would be 15. 40% of income has to be added for calculating loss of future prospects. The claimants are wife, two children and mother. Even though mother died during the pendency of the claim petition before the Tribunal, but the deduction of personal expenses is based on the size of family and while considering the deduction of income towards personal expenses, if the deceased was alive, then what would have been spent towards his personal expenses, would be deducted towards personal expenses. Just because the mother died during the pendency of the claim petition, but a dead person also has rights. Moreover, the mother was alive when the deceased died in the accident. Therefore, deduction of personal expenses can be based upon the size of the family when the deceased was alive. Therefore, considering the size of the
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NC: 2023:KHC:27814 MFA No. 6484 of 2012 C/W MFA.CROB No. 24 of 2017 family as four members, 1/4th of the income has to be deducted towards personal and living expenses. Therefore, loss of dependency is hereby re-assessed and quantified as under:
Rs.4,000/- + Rs.1,600 = Rs.5,600/- x ¾ x 15 x 12 = Rs.7,56,000/-.
9. There are four legal heirs and each are entitled for a sum of Rs.40,000/- towards loss of consortium.
Accordingly, a sum of Rs.1,76,000/- (Rs.1,60,000/- + 10% escalation) is awarded towards loss of consortium. Further, a sum of Rs.15,000/- is awarded towards loss of estate with escalation of 10%, amounting to Rs.16,500/-. A sum of Rs.16,500/- (Rs.15,000/- + 10% escalation) is awarded towards transportation of dead body and funeral expenses.
10. Therefore, the claimants are entitled for compensation as under:
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NC: 2023:KHC:27814
MFA No. 6484 of 2012
C/W MFA.CROB No. 24 of 2017
1) Loss of Dependency Rs. 7,56,000-00
2) Loss of consortium Rs. 1,76,000-00
3) Loss of Estate Rs. 16,500-00
4) Transportation of dead Rs. 16,500-00
body and funeral expenses
Total Rs. 9,65,000-00
11. Accordingly, I proceed to pass the following:
ORDER
1. Cross Objection in MFA CROB No.24/2017 filed by the claimants-cross objectors is allowed-in-part.
2. Appeal in MFA No.6484/2012 filed by the owner is dismissed. The Insurance Company shall satisfy the claim of the claimants-cross objectors and then recover from the owner of the offending vehicle.
3. The Judgment and Award passed in MVC No.231/2007 dated 10.02.2011 by the Fast Track Court and Additional MACT-8 at Sagar, is modified to the extent that the claimants-cross objectors are entitled for a total compensation of Rs.9,65,000-00
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NC: 2023:KHC:27814 MFA No. 6484 of 2012 C/W MFA.CROB No. 24 of 2017 along with interest at 6% per annum from the date of the petition till realization.
4. The claimants-cross objectors are not entitled to interest for the delayed period of 1569 days in filing the cross objection.
5. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of this Judgment.
6. Draw award accordingly.
7. The amount in deposit shall be transmitted to the Tribunal.
Sd/-
JUDGE MH/bnv CT: ABS