Karnataka High Court
Shriiram General Insurance Co. Ltd, ... vs Sudheer Suresh Kini on 2 December, 2024
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
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NC: 2024:KHC-D:17573-DB
MFA No. 101956 of 2024
C/W MFA No. 102527 of 2023
MFA No. 102533 of 2023
AND 1 OTHER
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 2ND DAY OF DECEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
MISCELLANEOUS FIRST APPEAL NO. 101956 OF 2024 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 102527 OF 2023 (MV-I)
MISCELLANEOUS FIRST APPEAL NO. 102533 OF 2023 (MV-D)
MISCELLANEOUS FIRST APPEAL NO. 101954 OF 2024 (MV-I)
IN MFA NO.101956 OF 2024
BETWEEN
1. SHRI. SUDHEER S/O. SURESH KINI,
AGE 47 YEARS, OCC. GROCERY SHOP,
(NOW ALMOST NIL), R/O. ITAGI,
TQ. SIDDAPUR, DIST. UTTARA KANNADA-581322.
2. KUMARI POOJA D/O. SUDHEER KINI,
AGE 16 YEARS, OCC. STUDENT
R/O. ITAGI, TQ. SIDDAPUR,
Digitally signed DIST. UTTARA KANNADA 581322.
by JAGADISH T
R
Location: High 3. UPENDRA S/O. SUDHEER KINI,
Court of
Karnataka, AGE 10 YEARS, OCC. STUDENT,
Dharwad Bench
R/O. ITAGI, TQ. SIDDAPUR,
DIST. UTTARA KANNADA 581322.
SINCE APPELLANTS NO.2 AND 3 ARE MINOR REPTD.
BY NATURAL GUARDIAN THEIR FATHER APPELLANT
NO.1, HEREIN SHRI. SUDHEER S/O. SURESH KINI.
...APPELLANTS
(BY SRI. SANJAY S. KATAGERI, ADVOCATE)
AND
1. SHRI. PRAKASH S/O. BASAPPA KATTIMANI,
AGE 50 YEARS, OCC. BUSINESS,
-2-
NC: 2024:KHC-D:17573-DB
MFA No. 101956 of 2024
C/W MFA No. 102527 of 2023
MFA No. 102533 of 2023
AND 1 OTHER
R/O. #44, KYASANOR, CHIKAUNSHI HOSUR,
TQ. HANGAL, DIST. HAVERI-581104.
2. THE SHRI RAM GENERAL INSURANCE COMPANY LTD,
E-8, EPIP, SITAPURA INDUSTRIAL AREA,
JAIPUR, RAJASTAN-302622.
RESPONDENTS
(BY SRI. SUBHASH J. BADDI, ADV. FOR R2; NOTICE TO R1 SERVED)
THIS MFA IS FILED U/S.173(1) OF MV ACT, 1988, PRAYING TO
THE IMPUGNED JUDGMENT AND AWARD DATED 01.03.2023 PASSED
IN MVC NO.149/2017 BY SENIOR CIVIL JUDGE AND ADDL. MACT,
SIRSI, WHEREIN THE CLAIM PETITION FILED BY THE APPELLANTS IS
PARTLY ALLOWED BY AWARDING COMPENSATION OF RS.7,46,000/-
WITH 6% INTEREST PER ANNUM BE KINDLY MODIFYING BY
ENHANCING THE CLAIM COMPENSATION TO RS. 50,00,000/- WITH
INTEREST @ 8% PER ANNUM FROM THE DATE OF PETITION, TILL
THE DATE OF PAYMENT, BY HOLDING RESPONDENTS NO.1 & 2
HEREIN AS JOINTLY AND SEVERALLY LIABLE TO PAY THE SAID
COMPENSATION TO THE APPELLANTS HEREIN, BY ALLOWING THIS
APPEAL, WITH COSTS, IN THE INTEREST OF JUSTICE AND EQUITY.
IN MFA NO.102527 OF 2023
BETWEEN
SHRIRAM GENERAL INSURANCE CO. LTD,
E.8, EPIP, SITAPURA INDUSTRIAL AREA, JAIPUR,
RAJASTHAN-302622, NOW REPTD. BY
ITS AUTHORIZED SIGNATORY.
...APPELLANT
(BY SRI. SUBHASH J. BADDI, ADVOCATE)
AND
1. SUDHEER SURESH KINI,
AGE. 46 YEARS, R/O. ITAGI, SIDDAPUR (N.K)-581322.
2. PRAKASH BASAPPA KATTIMANI,
#44, KYASANOR, CHIKKAUNSHI HOSUR,
HANAGAL-581104.
RESPONDENTS
(BY SRI. SANJAY S. KATAGERI, ADV. FOR R1;
NOTICE TO R2 SERVED)
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NC: 2024:KHC-D:17573-DB
MFA No. 101956 of 2024
C/W MFA No. 102527 of 2023
MFA No. 102533 of 2023
AND 1 OTHER
THIS MFA IS FILED U/S.173(1) OF MV ACT, 1988, PRAYING TO
CALL THE RECORDS, HEAR THE PARTIES, AND ALLOW THE APPEAL
AS PRAYED FOR BY SETTING ASIDE THE JUDGMENT AND AWARD
DATED 01.03.2023 PASSED BY SENIOR CIVIL JUDGE AND ADDL.
M.A.C.T, SIRSI IN MVC NO.148/2017, WITH COST IN THE INTEREST
OF JUSTICE AND EQUITY.
IN MFA NO 102533 OF 2023
BETWEEN
SHRIRAM GENERAL INSURANCE CO. LTD,
E-8, EPIP, SITAPURA INDUSTRIAL AREA, JAIPUR,
RAJASTAN-302622. NOW REPRESENTED
BY ITS AUTHORISED SIGNATORY.
...APPELLANT
(BY SRI. SUBHASH J. BADDI, ADVOCATE)
AND
1. SUDHEER SURESH KINI,
AGE. 46 YEARS.
2. POOJA SUDHEER KINI,
AGE. 15 YEARS, OCC. STUDENT.
3. UPENDRA SUDHEER KINI,
AGE. 9 YEARS, RESPONDENT NO.2 & 3 ARE MINORS,
REP. BY NEXT FRIEND FATHER RESPONDENT NO.1,
ALL ARE R/O. ITAGI, SIDDAPUR (N.K)-581322.
4. PRAKASH BASAPPA KATTIMANI,
#44, KYASANOR, CHIKKAUNSHI HOSUR,
HANAGAL-581104.
RESPONDENTS
(BY SRI. SANJAY S. KATAGERI, ADV. FOR R1;
NOTICE TO R4 SERVED; R2 & R3 ARE MINORS REP. BY R1)
THIS MFA IS FILED U/S.173(1) OF MV ACT, 1988, PRAYING TO
CALL THE RECORDS, HEAR THE PARTIES, AND ALLOW THE APPEAL
AS PRAYED FOR BY SETTING ASIDE THE JUDGMENT AND AWARD
DATED 01.03.2023 PASSED BY THE SENIOR CIVIL JUDGE AND ADDL.
MACT, SIRSI IN MVC NO.149/2017, WITH COST IN THE INTEREST
OF JUSTICE AND EQUITY.
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NC: 2024:KHC-D:17573-DB
MFA No. 101956 of 2024
C/W MFA No. 102527 of 2023
MFA No. 102533 of 2023
AND 1 OTHER
IN MFA NO 101954 OF 2024
BETWEEN
SHRI. SUDHEER S/O. SURESH KINI,
AGE. 47 YEARS, OCC. GROCERY SHOP,
(NOW ALMOST NIL), R/O.ITAGI, TQ.SIDDAPUR,
DIST. UTTARA KANNADA, PIN CODE. 581322.
...APPELLANT
(BY SRI. SANJAY S. KATAGERI, ADVOCATE)
AND
1. SHRI PRAKASH S/O. BASAPPA KATTIMANI,
AGE. 50 YEARS, OCC. BUSINESS,
R/O. #44, KYASANOR, CHIKAUNSHI HOSUR,
TQ.HANGAL, DIST. HAVERI, PIN CODE-581104.
(OWNER OF THE BOLERO JEEP).
2. THE SHRIRAM GENERAL INSURANCE COMPANY LTD,
E-8, EPIP, SITAPUR INDUSTRIAL AREA, JAIPUR,
RAJASTAN-302622, (INSURER OF THE BOLERO JEEP).
RESPONDENTS
(BY SRI. SUBHASH J. BADDI, ADV. FOR R2;
NOTICE TO R1 SERVED)
THIS MFA IS FILED U/S. 173(1) OF MV ACT, 1988, PRAYING
TO THE JUDGMENT AND AWARD DATED 01.03.2023 PASSED IN MVC
NO.148/2017 BY THE LEARNED SENIOR CIVIL JUDGE AND ADDL.
MACT, SIRSI, WHEREIN THE CLAIM PETITION FILED BY THE
APPELLANT HEREIN IS PARTLY ALLOWED BY AWARDING
COMPENSATION OF RS.8,95,241/- WITH INTEREST 6% PER ANNUM
BE KINDLY MODIFYING BY ENHANCING TO RS.30,00,000/- WITH
INTEREST @ 8% PER ANNUM FROM THE DATE OF PETITION, TILL
THE DATE OF PAYMENT, BY HOLDING RESPONDENTS NO.1 & 2
HEREIN AS JOINTLY AND SEVERALLY LIABLE TO PAY THE SAID
COMPENSATION TO THE APPELLANTS HEREIN, BY ALLOWING THIS
APPEAL, WITH COSTS, IN THE INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 22.11.2024, COMING ON FOR PRONOUNCEMENT,
THIS DAY, VENKATESH NAIK T J., DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:17573-DB
MFA No. 101956 of 2024
C/W MFA No. 102527 of 2023
MFA No. 102533 of 2023
AND 1 OTHER
CORAM: THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE VENKATESH NAIK T) These appeals are arising out of common judgment and award dated 01.03.2023 passed by the learned Senior Civil Judge and Additional MACT, Sirsi1 in MVC Nos.148/2017 and 149/2017, whereby the Tribunal granted compensation of Rs.8,95,241/- in MVC No.148/2017 & Rs.7,46,000/- in MVC No.149/2017 with interest at the rate of 6% per annum from the date of petitions till the date of realization and saddled entire liability on the insurance company to pay compensation to the claimants.
2. MFA No.102527/2023 & MFA No.102533/2023 are filed by the Insurance Company of the offending vehicle challenging the quantum of compensation as well as saddling of entire liability on it. Whereas, MFA No.101954/2024 & MFA No.101956/2024 are filed by the claimants seeking enhancement of compensation awarded by the Tribunal. 1 'Tribunal', for short -6- NC: 2024:KHC-D:17573-DB MFA No. 101956 of 2024 C/W MFA No. 102527 of 2023 MFA No. 102533 of 2023 AND 1 OTHER
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 as under:
The claimants filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 before the Tribunal on the ground that the claimant in MVC No.148/2017 is the husband of deceased Sangeeta @ Sandhya Sudheer Kini and the claimants in MVC No.149/2017 are husband and children of the deceased seeking compensation on account of death of Sangeeta @ Sandhya Sudheer Kini and for the injuries sustained by Sudheer Kini, in a road traffic accident that occurred on 23.11.2016 at about 18.45 hours, when the claimant Sudheer Kini & deceased Sangeeta were proceeding on Luna bearing registration No.KA-31/X-6764. When they reached near Marikamba circle in Bilgi, at that time, one Mahindra Bolero Maxi Truck bearing registration No.KA-17-C-1092 driven by its driver, came from opposite direction from Kumta to Siddapur side in high speed, rash and negligent manner and dashed to the Luna and caused accident. As a result, the rider Sudheer -7- NC: 2024:KHC-D:17573-DB MFA No. 101956 of 2024 C/W MFA No. 102527 of 2023 MFA No. 102533 of 2023 AND 1 OTHER Kini sustained severe injuries and pillion rider Sangeeta succumbed to the injuries on the way to hospital.
5. The Tribunal considering the evidence on record at Exs.P1 to P26, Exs.R1 to R4 and oral evidence of PW1 to PW3 and RW1 to RW3, granted total compensation of Rs.8,95,241/- in MVC No.148/2017 & Rs.7,46,000/- in MVC No.149/2017 with interest at the rate of 6% per annum from the date of petitions till the date of realization and saddled entire liability on the insurance company to pay compensation to the claimants.
6. Learned counsel for the Insurance Company would submit that the Tribunal has not appreciated the oral and documentary evidence placed before it in a right prospective. The police have filed charge sheet against driver Aditya under Sections 3 and 181 of the MV Act, 1988 and Sections 279 and 338 and 304A of IPC. Thus, the driver of the offending vehicle was not possessing valid and effective driving license to drive the vehicle. It shows that the owner of the offending vehicle permitted the driver to drive the vehicle, who did not possess driving license, however, the Tribunal relying on the decision of the Hon'ble Apex Court in the case of National Insurance -8- NC: 2024:KHC-D:17573-DB MFA No. 101956 of 2024 C/W MFA No. 102527 of 2023 MFA No. 102533 of 2023 AND 1 OTHER Company Limited Vs Swaran Singh & Others2, saddled liability on the company to pay compensation.
7. Thirdly, it is contended that the author of Disability Certificate while assessing disability has exorbitantly given at 43.05%, which is on the higher side. PW3 has not at all referred gazette notification while issuing disability to the claimant/injured, therefore, disability assessed by PW3 is not in accordance with WHO or ALIMCO manual. The Tribunal without considering the nature of injuries considered 25% disability to the whole body of the claimant. The compensation awarded under other heads such as, pain and suffering, conveyance, food, nourishment, loss of income during laid-up period, loss of amenities are high and exorbitant one.
8. Fourthly, the counsel contended that the Tribunal has awarded Rs.1,00,000/- towards loss of love and affection and Rs.40,000/- towards loss of consortium to the legal representatives of the deceased Sangeeta, which is high and exorbitant one. Lastly, the counsel contended that the accident is of the year 2016, in the absence of proof of income of the 2 AIR 2004 SC 1531 -9- NC: 2024:KHC-D:17573-DB MFA No. 101956 of 2024 C/W MFA No. 102527 of 2023 MFA No. 102533 of 2023 AND 1 OTHER deceased, notional income would be assessed at Rs.8,750/- per month, but the Tribunal without material on record assessed the notional income of the deceased at Rs.9,000/- per month, which is on higher side and same has to be reduced to Rs.8,750/- per month. Learned counsel relied upon following decisions:
a) Balu Krishna Chavan Vs The Reliance General Insurance Company Limited & Others3;
b) Ashok S/o Ramu Koravi Vs. Yamanappa & Another4;
c) Shamanna Vs. Oriental Insurance Co. Ltd.5
d) Smt. Adilakshmamma & Others Vs. Sri. Raju & Another6;
e) M/s Shriram General Insurance Co. Ltd. Vs. Mrs. Sunita @ Nagaveni & Others7;
f) Pappu Vs. Vinod Kumar Lamba8 Hence, he prayed to allow the appeals filed by the Insurance Company and dismiss the appeals filed by the claimants.3 SLP (C) No.33638/2017 4
MFA No.102884/2018, dated 21.12.2020 5 (2018) 9 SCC 650 6 MFA No.3297/2019, dated 13.04.2023 7 MFA No.3288/2013 C/W MFA 3287/2013, dated 29.01.2024 8 (2018) 3 SCC 208
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NC: 2024:KHC-D:17573-DB MFA No. 101956 of 2024 C/W MFA No. 102527 of 2023 MFA No. 102533 of 2023 AND 1 OTHER
9. Learned counsel for the claimants contended that the claimant sustained grievous head injuries in the nature of comminuted displaced fracture of right frontal bone with large EDH with hemorrhagic contusion with herniated brain. The Tribunal ought to have considered permanent physical disability of the claimant to an extent of 45 to 50% to the whole body, however, it has considered at 25%, without considering or perusing the medical evidence on record. In this regard, PW3- doctor/Neurosurgeon examined the claimant/injured and assessed his disability at 43.05% to the whole body and 5% cosmic disability, but the Tribunal without appreciating the nature of injuries sustained and Disability Certificate vide Ex.P18 has assessed the functional disability at 25%, which is on the lower side.
10. Further the Tribunal considered monthly income of the injured at Rs.9,000/-, which is on the lower side. In fact, the injured was working as LIC agent, in addition to running grocery shop, which are evident as per Exs.P15 and P16 and was earning Rs.20,000/- to 25,000/- per month. The Tribunal has granted very meager compensation under the heads of
- 11 -
NC: 2024:KHC-D:17573-DB MFA No. 101956 of 2024 C/W MFA No. 102527 of 2023 MFA No. 102533 of 2023 AND 1 OTHER pain & suffering, loss of income during laid-up period, food, nourishment & attendant charges, loss of amenities etc.
11. The learned counsel contended that so far as death of deceased Sangeeta is concerned, the Tribunal assessed monthly notional income of the deceased at Rs.4,500/- in the absence of proof of income , which is on lower side. As per circular issued by the Karnataka State Legal Services Authority, for the accident of the year 2018, the notional income of the deceased would be assessed at Rs.8,750/- per month. Further, the Tribunal has not considered future prospects at 40% to the income assessed by the Tribunal. The Tribunal ought to have awarded compensation of Rs.40,000/-each to appellant Nos.1 to 3 towards loss of consortium, but the Tribunal has not granted fair and reasonable compensation under conventional heads. Hence, the counsel prayed to allow the appeals filed by the claimants and prayed to dismiss the appeals filed by the insurance company.
12. Having heard the learned counsel for the parties and perused the appeal papers including the original records of
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NC: 2024:KHC-D:17573-DB MFA No. 101956 of 2024 C/W MFA No. 102527 of 2023 MFA No. 102533 of 2023 AND 1 OTHER the Tribunal, the following points would arise for our consideration in these appeals:
a) Whether the Tribunal is justified in saddling entire liability on the insurance company to pay compensation to the claimants?
b) Whether the claimants have made out a case for enhancement in the facts and circumstances of the case?
13. There is no dispute with regard to the occurrence of the accident on 23.11.2016 at about 18.45 hours, due to rash and negligent driving of driver of Mahindra Bolero Maxi Truck bearing registration No.KA-17-C/1082, resulting in death of deceased Sangeeta and the injuries sustained by the claimant Sudheer Kini.
REG: LIABILITY
14. As on the date of accident, the offending vehicle bearing registration No.KA-17/C-1092 was insured with appellant/Insurance Company vide Ex.R1-Insurance Policy insured by respondent No.1/Prakash Basappa Kattimani.
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NC: 2024:KHC-D:17573-DB MFA No. 101956 of 2024 C/W MFA No. 102527 of 2023 MFA No. 102533 of 2023 AND 1 OTHER Section II(1)(i) of Ex.R1 shows that policy covers the risk of third party accident. The policy contains the condition that it covers the risk, provided, the person driving the vehicle holds an effective driving license at the time of the accident and is not disqualified from holding or obtaining such a license, it also contains condition that the insured will not be indemnified, if the vehicle used or driven otherwise than in accordance with the Schedule.
15. The charge sheet at Ex.R2 produced by the insurance company shows that on investigation, the police charge sheeted the driver of the offending Bolero vehicle in addition to offence under Sections 279, 338 and 304A of IPC, for the offences under Sections 3 read with Section 181 of MV Act. Section 3 of the MV Act, prohibits a person from driving a vehicle in any public place unless he holds an effective driving license. From the perusal of evidence of RW1 and RW2, it clearly establishes that as on the date of the accident, the driver of Bolero vehicle did not possess valid and effective driving license.
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NC: 2024:KHC-D:17573-DB MFA No. 101956 of 2024 C/W MFA No. 102527 of 2023 MFA No. 102533 of 2023 AND 1 OTHER
16. The Hon'ble Apex Court in Swaran Singh's, Pappu's and Shamanna's case referred to supra, held that even if there is no driving license, the insurer is liable to pay the compensation to the claimants and recover the same from the owner of the vehicle in question under the principle of 'Pay and Recovery', in case of breach of policy conditions. Whereas, in this case, insurance policy was in force as on the date of the accident and the driver of the offending vehicle who drove the vehicle was not possessing DL. To avoid liability, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the conditions of policy regarding use of vehicle by duly licensed driver or one was not disqualified to drive at the relevant time. In this case, the insurer has not proved that the owner of the offending vehicle has exercised reasonable care in fulfilling the conditions of the policy regarding use of the vehicle by duly licensed driver.
17. Hence, the principles enunciated in Swaran singh's, Pappu's case and Shamanna's case supra, would aptly applicable to the case on hand. In the aforesaid cases, the Hon'ble Apex Court has categorically held that even if there
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NC: 2024:KHC-D:17573-DB MFA No. 101956 of 2024 C/W MFA No. 102527 of 2023 MFA No. 102533 of 2023 AND 1 OTHER is no driving license, the insurer is liable to pay compensation to the claimants and then recover the same from the owner of the vehicle in question.
18. It would be apt and useful to refer the judgment of a co-ordinate Bench of this Court in the case of Priyanka @ Pramila Vs. Sanwar Khan & Others9, on the similar issue, wherein at paragraphs-28 to 34, the co-ordinate Bench has held as under:
"28. We have examined the controversy regarding liability of the insurer in the present case under the guidance of principles of law laid down by the Hon'ble Supreme Court in the above referred judgments and Full Bench decision of this Court in Yallavva case (supra).
29. The insurer has admitted that the policy is in force as on the date of the accident to the offending vehicle. However, has denied its liability to pay compensation and alleged that the driver of the offending vehicle had no valid license. The owner of the offending vehicle- respondent No.1, though served, remained absent and placed ex-parte. The police have investigated and filed charge sheet as per Ex.P3. As per Ex.P3, the driver of the canter i.e., offending vehicle was not possessing a 9 MFA No.201982/2019 c/w MFA 201685/2019, dated 25.04.2024
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NC: 2024:KHC-D:17573-DB MFA No. 101956 of 2024 C/W MFA No. 102527 of 2023 MFA No. 102533 of 2023 AND 1 OTHER valid and effective driving license. The charge sheet has not been contested.
30. The Hon'ble Supreme Court in the case of Swaran Singh (supra), has held that the breach of policy conditions eg: disqualifications of the driver or invalid driving license of the driver as contained in Section 149(2)(a)(ii) has tobe proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake and invalid driving license or disqualifications of the driver for driving at relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid such liability towards the insurer, the insurer has to prove that the insurer was guilty of the negligence and failed to exercise reasonable care in the matter of fulfilling the conditions of the policy regarding use of vehicle by duly licensed driver or one was not disqualified to drive at the relevant time.
31. The Hon'ble Supreme Court in the case of Pappu (supra), has held that the Insurance Company is entitled to take a defence that the offending vehicle was driven by an unauthorized person or the person driving the vehicle did not have a valid driving license. The onus would shift on the insurance company, only after the owner of the offending vehicle pleads and proves the basic fact within his knowledge that the driver of the offending vehicle was authorized by him to drive the vehicle and was having a valid driving license at the relevant time. It is further held that even if the insurer
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NC: 2024:KHC-D:17573-DB MFA No. 101956 of 2024 C/W MFA No. 102527 of 2023 MFA No. 102533 of 2023 AND 1 OTHER succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant and in turn recover the same from the owner of the vehicle.
32. In the present case, the insurer has specifically pleaded in its objection that the driver of the vehicle does not possess license to drive the offending vehicle. The owner of the offending vehicle-respondent No.1 is before the Court. Respondent No.1 has failed to participate in the proceedings and to prima facie establish that he has exercised reasonable care in fulfilling the conditions of the policy regarding use of the vehicle by duly licensed driver. On applying the principles of discharge of burden as held by the Hon'ble Supreme Court in the case of Pappu (supra), the onus would shift on the insurance company only after the owner of the offending vehicle pleads and proves within his knowledge regarding valid driving license of the driver at the relevant time.
33. The Hon'ble Supreme Court has further held that, if the vehicle is covered by the insurance policy, the insurer shall pay the claim amount to the claimant in the first instance, with liberty to recover the same from the owner of the vehicle in accordance with law.
34. In the present case, the insurer has specifically pleaded and alleged that the driver of the vehicle does not possess a valid and effective driving license, owner of the vehicle did not choose to participate in the proceedings though validly served. The charge sheet has
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NC: 2024:KHC-D:17573-DB MFA No. 101956 of 2024 C/W MFA No. 102527 of 2023 MFA No. 102533 of 2023 AND 1 OTHER been filed against the driver of the offending vehicle. In the circumstances, applying the principles of law as held in the judgments referred (supra) "pay and recover" is to be ordered. It is to be held that the owner of the offending vehicle is liable to pay the compensation. As the offending vehicle was duly covered by the policy issued by the insurer as on the date of the accident, the insurer shall satisfy the award to the claimant in the first instance and is at liberty to recover the same from the owner of the offending vehicle."
19. Therefore, keeping in mind the ratio laid down by the Hon'ble Apex Court in the aforesaid cases and also decision of a co-ordinate Bench of this Court referred to supra, we deem it appropriate to hold that the insurance company is liable to pay the compensation in the first instance to the claimants and then recover the same from the owner of the vehicle in question, by applying the principle of 'Pay & Recover'.
REG: QUANTUM OF COMPENSATION
20. In MFA No.101954/2024, the claimant/injured contended that at the time of the accident, he was working as LIC agent and running grocery shop and hence, his monthly income was Rs.20,000/- to Rs.25,000/- per month. In this regard, the claimant/injured examined himself on oath as PW1
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NC: 2024:KHC-D:17573-DB MFA No. 101956 of 2024 C/W MFA No. 102527 of 2023 MFA No. 102533 of 2023 AND 1 OTHER and relied upon Ex.P15-LIC Agent ID card and Ex.P16-LIC Commission report. But Ex.P15 and Ex.P16 do not indicate any particular income of the claimant/injured. In the absence of any proof of income, the income as assessed by the Karnataka State Legal Services Authority and High Court Legal Services Committee, Dharwad Bench would be taken into consideration. For the accident of the year 2016, the notional income would be assessed at Rs.8,750/- per month, whereas the Tribunal assessed income of the claimant/injured at Rs.9,000/- per month, considering the fact that he was LIC Agent and was earning more income during the relevant period and hence, the assessment of income made by the Tribunal is maintained.
21. So far as disability of the claimant is concerned, the claimant/injured has taken contention that the doctor assessed functional disability at 43.05%, but the Tribunal considered the disability of the claimant at 25% to the whole body. In this case, PW1-claimant sustained severe head injury i.e., comminuted displaced fracture of right frontal bone, which are vital functional bones of human body. The Tribunal considering oral evidence of PW1, PW3-doctor and nature of injuries sustained by the claimants, has rightly assessed disability of
- 20 -
NC: 2024:KHC-D:17573-DB MFA No. 101956 of 2024 C/W MFA No. 102527 of 2023 MFA No. 102533 of 2023 AND 1 OTHER the claimant to an extent of 25% to the whole body, which is fair and reasonable one. Hence, no interference is called for in that regard. The Tribunal awarded a sum of Rs.4,05,000/- under the head of loss of future income due to disability. At the time of accident, the age of the injured as 39 years and hence, multiplier applicable to his age group is '15'. Considering the nature of injuries sustained by the claimant, the Tribunal has awarded just and reasonable compensation under each heads, which in our view is just and proper and do not call for interference.
22. In MFA No.101956/2024, the Tribunal assessed the notional income of the deceased Sangeetha at Rs.4,500/- per month. The accident is of the year 2016. No documentary evidence is placed on record with regard to income of the deceased. Hence, in the absence of any proof in this regard, the monthly income of the deceased is to be taken at Rs.8,750/- instead of Rs.4,500/- as assessed by the Tribunal. As per Circular issued by the Karnataka State Legal Services Authority as well as High Court Legal Services Committee, Dharwad, we deem it appropriate to re-assess the notional income of the deceased at Rs.8,750/- per month.
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NC: 2024:KHC-D:17573-DB MFA No. 101956 of 2024 C/W MFA No. 102527 of 2023 MFA No. 102533 of 2023 AND 1 OTHER
23. The deceased was aged about 33 years at the time of the accident. The Insurance Company has not disputed this aspect. As per decision of the Hon'ble Apex Court in the case of Sarala Verma & Others Vs. Delhi Transport Corporation & Another10, multiplier applicable to the age of the deceased is '16'.
24. The deceased Sangeeta died leaving behind her husband and two children, therefore, appropriate deduction towards personal expenses of the deceased would be 1/3rd. In light of dictum of the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Others11, the claimants would be entitled to an addition of 40% of the assessed income towards future prospects, as the deceased was below the age of 40 years. Thus, loss of dependency is reckoned as under:
Rs.8,750 + 40% x 12 x 16 x 2/3 = Rs.15,68,000/-
25. 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 10 2009 ACJ 1298 11 (2017) 16 SCC 680
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NC: 2024:KHC-D:17573-DB MFA No. 101956 of 2024 C/W MFA No. 102527 of 2023 MFA No. 102533 of 2023 AND 1 OTHER Court in the case of Magma General Insurance Company Limited Vs Nanu Ram @ Churu Ram & Others12 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.15,68,000/-
Loss of consortium (Rs.40000x3) Rs. 1,20,000/-
Loss of estate Rs. 15,000/-
Funeral expenses Rs. 15,000/-
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Total Rs.17,18,000/-
------------------
26. Thus, the claimants in MVC No.149/2017 are entitled to total compensation of Rs.17,18,000/- as against Rs.7,46,000/- awarded by the Tribunal.
27. In the result, we pass the following:
ORDER
a) MFA No.102527/2023 & MFA No.102533/2023 filed by the Insurance Company are partly allowed.12
2018 (18) SCC 130
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NC: 2024:KHC-D:17573-DB
MFA No. 101956 of 2024
C/W MFA No. 102527 of 2023
MFA No. 102533 of 2023
AND 1 OTHER
b) MFA No.101954/2024 filed by the
claimant/injured is dismissed. The impugned judgment and award of the Tribunal in MVC No.148/2017 insofar as injured Sudheer Kini is concerned, is confirmed.
c) MFA No.101956/2024 filed by the claimants is allowed in part.
d) The impugned judgment and award of the Tribunal in MVC No.149/2017 is modified to an extent that the claimants are entitled to total compensation of Rs.17,18,000/- as against Rs.7,46,000/- awarded by the Tribunal.
e) The enhanced compensation amount shall carry interest at the rate of 6% per annum from the date of petition till realization.
f) The appellant/Insurance Company shall deposit the enhanced compensation amount with accrued interest before the Tribunal within six weeks from the date of receipt of copy of this judgment.
g) It is made clear that the appellant/Insurance Company in both cases shall pay the entire compensation with accrued interest, as stated above, and then recover the same from the owner of the offending vehicle.
h) The amount in deposit, if any, be transmitted to the Tribunal forthwith along with TCR.
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NC: 2024:KHC-D:17573-DB MFA No. 101956 of 2024 C/W MFA No. 102527 of 2023 MFA No. 102533 of 2023 AND 1 OTHER
i) It is made clear that the claimants in respective cases are not entitled to interest on the enhanced compensation amount for the delayed period in filing the appeals.
j) Draw modified award accordingly.
k) Registry is directed to send a copy of this judgment to the Tribunal forthwith.
l) No order as to costs.
Sd/-
(H.T.NARENDRA PRASAD) JUDGE Sd/-
(VENKATESH NAIK T) JUDGE JTR ct/an