Karnataka High Court
Smt.Mallamma W/O Late Gavisiddappa vs Yamanoorappa S/O Nagappa Nayaka on 28 November, 2024
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
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NC: 2024:KHC-D:17465-DB
MFA No. 102654 of 2019
C/W MFA No. 102659 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF NOVEMBER 2024
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
MISCELLANEOUS FIRST APPEAL NO. 102654 OF 2019
C/W MISCELLANEOUS FIRST APPEAL NO. 102659 OF 2019
IN MFA NO. 102654 OF 2019:
BETWEEN:
1. SMT. MALLAMMA
W/O. LATE GAVISIDDAPPA YATNATTI (CHALLUR),
AGE: 22 YEARS, OCC: HOUSEHOLD.
2. KUMAR HOOVAPPA
S/O. LATE GAVISIDDAPPA YATNATTI (CHALLUR),
AGE: 6 YEARS.
3. KUMAR VINAYA
S/O. LATE GAVISIDDAPPA YATNATTI (CHALLUR),
AGE: 5 YEARS.
Digitally signed 4. YAMANAPPA S/O. DURGAPPA YATNATTI,
by JAGADISH T R
Location: HIGH AGE: 54 YEARS, OCC: NIL.
COURT OF
KARNATAKA
DHARWAD
BENCH
5. SMT. DYAMAMMA W/O. YAMANAPPA,
AGE: 51 YEARS, OCC: HOUSEWIFE,
ALL ARE R/O. PANNAPUR VILLAGE,
TQ: GANGAVATHI, DIST:KOPPAL-583227.
NOTE: APPELLANTS NOS.2 TO 3 ARE MINORS
UNDER THE GUARDIANSHIP OF
THEIR NATURAL MOTHER AND
GUARDIAN APPELLANT NO.1 SMT. MALLAMMA
W/O. LATE GAVISIDDAPPA YATNATTI(CHALLUR).
...APPELLANTS
(BY SRI. NAGARAJ APPANNANAVAR, ADVOCATE)
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MFA No. 102654 of 2019
C/W MFA No. 102659 of 2019
AND:
1. YAMANOORAPPA S/O. NAGAPPA NAYAKA,
AGE: 37 YEARS, OCC: DRIVER OF THREE
WHEELER AUTO ITS REGN.NO.KA-37/A-0351,
R/O. HOSALLI, TQ: GANGAVATHI,
DIST: KOPPAL-583227.
2. RUDRESH S/O. NINGAPPA ELIGER,
AGE: 38 YEARS, OCC: OWNER OF THREE
WHEELER AUTO ITS REGN.NO.KA-37/A-0351,
R/O. ARHAL, TQ: GANGAVATHI,
DIST: KOPPAL-583227.
3. THE BRANCH MANAGER OF UNITED
INDIA INSURANCE COMPANY LIMITED,
BRANCH OFFICE: HOTEL SANMAN TOURIST
COMPLEX, CBS CIRCLE, KUSHTAGI ROAD,
ISLAMPUR, GANGAVATHI-583227.
...RESPONDENTS
(BY SRI. PREETI SHASHANK, ADVOCATE FOR R3;
NOTICE TO R1 IS DISPENSED WITH;
NOTICE TO R2 IS HELD SUFFICIENT)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED 25.03.2019 PASSED
IN MVC NO.414/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND MOTOR ACCIDENT CLAIMS TRIBUNAL, GANGAVATHI, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
IN MFA NO. 102659 OF 2019:
BETWEEN:
1. BETADAPPA @ BETTAPPA GURIKAR,
S/O. NINGAPPA GURIKAR,
AGE: 27 YEARS, OCC: AGRICULTURIST.
2. SHANKRAMMA W/O. BETADAPPA
@ BETTAPPA GURIKAR,
AGE: 30 YEARS, OCC: HOUSEHOLD.
3. LINGARAJ S/O. BETADAPPA
@ BETTAPPA GURIKAR,
AGE: 7 YEARS,
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MFA No. 102654 of 2019
C/W MFA No. 102659 of 2019
ABOVE ALL ARE R/O. SIRWAR VILALGE,
TQ: GANGAVATHI, DIST: KOPPAL-583227.
NOTE: APPELLANT NO.3 IS UNDER THE CARE
AND CUSTODY OF HIS NATURAL GUARDIAN
AND FATHER-APPELLANT NO.1
BETADAPPA @ BETTAPPA GURIKAR
S/O. NINGAPPA GURIKAR.
...APPELLANTS
(BY SRI. NAGARAJ APPANNANAVAR, ADVOCATE)
AND:
1. YAMANOORAPPA S/O. NAGAPPA NAYAKA,
AGE: 37 YEARS, OCC: DRIVER OF THREE
WHEELER AUTO ITS REGN.NO.KA-37/A-0351,
R/O. HOSALLI, TQ: GANGAVATHI,
DIST: KOPPAL-583227.
2. RUDRESH S/O. NINGAPPA ELIGER,
AGE: 38 YEARS, OCC: OWNER OF THREE
WHEELER AUTO NO.KA-37/A-0351,
R/O. ARHAL, TQ: GANGAVATHI,
DIST: KOPPAL-583227.
3. THE BRANCH MANAGER OF UNITED
INDIA INSURANCE COMPANY LIMITED,
BRANCH OFFICE: HOTEL SANMAN TOURIST
COMPLEX, CBS CIRCLE, KUSHTAGI ROAD,
ISLAMPUR, GANGAVATHI-583227.
...RESPONDENTS
(BY SRI. PREETI SHASHANK, ADVOCATE FOR R3;
NOTICE TO R1 IS DISPENSED WITH;
NOTICE TO R2 IS HELD SUFFICIENT)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED 13.03.2019 PASSED
IN MVC NO.413/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND MOTOR ACCIDENT CLAIMS TRIBUNAL, GANGAVATHI, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THESE APPEALS, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
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MFA No. 102654 of 2019
C/W MFA No. 102659 of 2019
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE VENKATESH NAIK T) Both the appeals are filed by the claimants challenging the judgment and award dated 13.03.2019 passed in MVC No.413/2016 on the file of the learned Senior Civil Judge and Motor Accident Claims Tribunal, Gangavathi, and the judgment and award dated 25.03.2019 passed in MVC No.414/2016 on the file of the learned Senior Civil Judge and Motor Accident Claims Tribunal, Gangavathi, passed in their respective appeal.
2. Since the claim petitions arise out of the same accident, both the appeals are considered together.
3. For the sake of convenience, the parties are referred to as per their rankings before the Tribunal.
4. Brief facts of the claimants' case before the Tribunal are that, on 01.05.2016 at about 6:00pm when Gavisiddappa Yatnatti (Challur), Vinaya and Kariyanna were traveling on a Hero Splendor Pro motorcycle bearing registration No.KA- 37/W-8607, they met with an accident near Kittur Channamma Circle situated on Kanakagiri-Hulihyder main road due to rash -5- NC: 2024:KHC-D:17465-DB MFA No. 102654 of 2019 C/W MFA No. 102659 of 2019 and negligent driving by the driver of three wheeler auto bearing registration No.KA-37/A-0351, which dashed against the motorcycle of Gavisiddappa Yatnatti. Due to the impact, Gavisiddappa sustained grievous injuries and died on the spot. The claimants in MVC No.414/2016 being the wife, children and parents of the deceased have contended that the deceased was working as an agriculturist and was earning Rs.12,000/- per month, due to his death, they have lost their dependency and the claimants in MVC No.413/2016 are the parents and sibling of deceased-Kariyanna. They contended that the deceased was aged 3 years at the time of the accident and hence, both the claimants preferred separate claim petitions under Section 166 of the Motor Vehicles Act, 1988 before the Tribunal seeking compensation.
5. After service of notice before the Tribunal, the driver, the owner and the insurer of the offending vehicle appeared through their counsel. Respondent Nos.2 and 3 being the owner and insurer filed their separate written statement denying the entire petition averments made in the claim petitions.
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6. The Tribunal in MVC No.414/2016 considering the evidence on record at Exs.P1 to P13, oral evidence of PW1 and RW1 and Exs.R1 to R4, awarded total compensation of Rs.17,19,500/- with interest at 6% per annum from the date of petition till its realization.
7. The Tribunal in MVC No.413/2016 considering the evidence on record at Exs.P1 to P13, oral evidence of PW.1, PW.2 and RW1 and Exs.R1 to R4, awarded total compensation of Rs.3,30,000/- with interest at 6% per annum from the date of petition till its realization.
8. Learned counsel for the appellants/claimants in MVC No.414/2016 contended that, at the time of the accident, the deceased was aged about 24 years and was doing agricultural work and thereby earning Rs.12,000/- per month. However, the Tribunal has taken the notional income of the deceased at Rs.7,500/- per month and added 30% future prospects. As per the decision laid down by the Hon'ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Others1, future prospects has to be considered at 40%. Further, the Tribunal has not granted 1 (2017) 16 SCC 680 -7- NC: 2024:KHC-D:17465-DB MFA No. 102654 of 2019 C/W MFA No. 102659 of 2019 fair and reasonable compensation under conventional heads. Thus, he prays for allowing the appeal by enhancing the compensation reasonably.
9. Per contra, learned counsel for respondent No.3/insurer vehemently argued and contended that since the owner of the offending vehicle has violated the policy conditions i.e., though permit was obtained to ply the vehicle within the limits of Gangavathi taluk but the offending vehicle was plying beyond the limits of Gangavathi taluk. Hence, the insurance company is not liable to pay any compensation. On the other hand, the owner of the offending vehicle is liable to pay the compensation. Secondly, she contended that the Tribunal considering the oral and documentary evidence on record, has awarded just and reasonable compensation under each head, which does not call for interference at the hands of this Court. Thus, she prays for dismissal of the appeal.
10. Having heard the learned counsel for the parties and on perusal of the appeal papers including original records of the Tribunal, the points that arise for our consideration in both the appeals are:
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NC: 2024:KHC-D:17465-DB MFA No. 102654 of 2019 C/W MFA No. 102659 of 2019 "(i). Whether the compensation awarded by the Tribunal is just and reasonable or does it call for enhancement? and
(ii). Whether the liability saddled on the owner of the offending vehicle is in accordance with law?"IN MVC No.414/2016
11. Point No.(i): After hearing the learned counsel for the parties and on perusal of the impugned judgment and award, we are of the view that the compensation awarded by the Tribunal is not just and reasonable and it requires enhancement.
12. There is no dispute with regard to the occurrence of the accident on 01.05.2016 due to rash and negligent driving of driver of three wheeler auto bearing registration No.KA- 37/A-0351 resulting in death of Gavisiddappa Yatnatti(Challur) and Kariyappa and the liability of the insurer of the offending vehicle.
13. The claimants have established the fact that the offending vehicle dashed against the motorcycle of the deceased. As a result, the deceased sustained injuries and died on the spot. The claimants have stated that, at the time of the -9- NC: 2024:KHC-D:17465-DB MFA No. 102654 of 2019 C/W MFA No. 102659 of 2019 accident, the deceased was working as an agriculturist and was earning Rs.12,000/- per month. The claimants have not furnished any document to prove that the deceased was earning Rs.12,000/- per month. The accident is of the year 2016. Hence, in the absence of any proof of income, taking note of the Circular issued by the Karnataka State Legal Services Authority as well as High Court Legal Services Committee, we deem it appropriate to re-assess the notional income of the deceased at Rs.8,750/- per month. The Tribunal has considered the future prospects of the deceased at 30%. As on the date of the accident, the deceased was aged about 24 years. As per the dictum of the Hon'ble Apex Court in Pranay Sethi's case (supra), 40% of income has to be added towards future prospects of the deceased which comes to Rs.12,250/- (Rs.8,750+Rs.3,500). The claimants are the wife, two children and parents of the deceased. Therefore, 1/4th of the income should be deducted towards personal expenses of the deceased and 3/4th has to be added towards family contribution and it works out to Rs.9,188/- and the appropriate multiplier applicable to the age of the deceased is '18'. Thus, loss of dependency is reckoned as under:
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NC: 2024:KHC-D:17465-DB MFA No. 102654 of 2019 C/W MFA No. 102659 of 2019 Rs.12,250 x12x18 x3/4=22,14,500/-
14. The Tribunal has committed an error in not awarding fair compensation under the head of loss of consortium. As per the judgment rendered by the Hon'ble Apex Court in the case of Magma General Insurance Company Limited Vs Nanu Ram @ Churu Ram & Others2 and Pranay Sethi supra, the claimants are entitled to Rs.40,000/- each towards loss of consortium, Rs.15,000/-
towards loss of estate and Rs.15,000/- towards funeral expenses. Thus, in all, the claimants are entitled to modified compensation as under:
Loss of dependency Rs.19,84,500/-
Loss of consortium (Rs.40000x5) Rs. 2,00,000/-
Loss of estate Rs. 15,000/-
Funeral expenses Rs. 15,000/-
------------------
Total Rs.22,14,500/-
------------------
15. Thus, the claimants are entitled to total
compensation of Rs.22,14,500/- as against Rs.17,19,500/- awarded by the Tribunal.
16. Accordingly, we answer point No.(i) and point No.(ii) partly in the affirmative.
22018 (18) SCC 130
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17. Point No.(ii): So far as the liability is concerned, since the respondent/owner of the offending vehicle had violated the permit, the Tribunal has saddled the entire responsibility on the owner of the vehicle to pay the entire compensations amount. The Hon'ble Apex Court in similar circumstances, in the case of Rani and others v. National Insurance Company3 has ordered for pay and recovery. Therefore, in the instant case also, by applying the same principle, the respondent/insurance company is directed to pay the entire compensation amount to the claimant and then recover the same from the owner of the offending vehicle.
18. In MFA No.102659/2019 (MVC No.413/2016), the appellants have taken contention that the Tribunal has granted a meager compensation, which is contrary to the decision of the Hon'ble Apex Court in Kishan Gopal Vs. Lala & Others4. Secondly, the Tribunal has not granted compensation under conventional heads in view of ratio laid down in the case of Magma General Insurance Company Limited Vs. Nanu 3 2018 ACJ 2430 4 AIR 2013 SC 5037 (DB)
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NC: 2024:KHC-D:17465-DB MFA No. 102654 of 2019 C/W MFA No. 102659 of 2019 Ram Chuhru & Others5. Thirdly, the Tribunal has committed an error in awarding rate of interest at 6% per annum and it has to be enhanced to 9% per annum in view of ratio laid down by the Hon'ble Apex Court in the case of Puttamma & Othes Vs. K.L. Nayarana Raddy & Another6.
19. Perused the material available on record. Considering oral and documentary evidence on record and also ratio laid down by the Hon'ble Apex Court in the aforesaid cases, the Tribunal has rightly granted a sum of Rs.2,70,000/- towards loss of dependency, Rs.15,000/- towards loss of estate, Rs.15,000/- towards funeral expenses and Rs.30,000/- towards loss of love and affection, which in our view is just and fair compensation and no interference is called for in that regard.
20. In the result, we proceed to pass the following:
ORDER
a) Both appeals are disposed off to above extent.
b) The impugned judgment and award of the Tribunal in MVC No.413/2016 insofar as quantum of compensation is concerned, is confirmed.5
2018 (18) SCC 130 6 2014 ACJ 526 (SC)
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c) The impugned judgment and award of the Tribunal in MVC No.414/2016 is modified holding that the claimants are entitled to total compensation of Rs.22,14,500/- as against Rs.17,19,500/- awarded by the Tribunal.
d) The enhanced compensation shall carry interest at the rate of 6% per annum from the date of petition till realization.
e) The respondent/insurer shall deposit the entire compensation amount in both cases within six weeks from the date of receipt of certified copy of this judgment before the Tribunal, with liberty to recover the same from the owner of the offending vehicle.
f) Draw modified award accordingly.
g) The registry is directed to send a copy of this judgment to the Tribunal along with TCR forthwith.
h) No order as to costs.
Sd/-
(H.T.NARENDRA PRASAD) JUDGE Sd/-
(VENKATESH NAIK T) JUDGE KMV upto para 17 JTR para 18 to end List No.: 1 Sl No.: 32