Karnataka High Court
Smt Vasanthi J Melanta vs Mr Sunil Pinto on 16 February, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC:6701
MFA No. 3615 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.3615 OF 2019(MV-D)
BETWEEN:
1. SMT. VASANTHI J MELANTA,
W/O LATE JAYANANDA MELANTA,
AGED ABOUT 57 YEARS.
2. MR. DEEPAK MELANTA,
AGED ABOUT 38 YEARS,
S/O LATE JAYANANDA MELANTA.
BOTH ARE R/AT
VEERANAGAR, KANNUR POST,
PADIL, MANGALURU - 575 007.
...APPELLANTS
(BY SRI. CHANDRANATH ARIGA K., ADVOCATE)
AND:
1. MR. SUNIL PINTO,
Digitally signed by
S/O SALVADOR PINTO,
JAI JYOTHI J NOOCHILA HOUSE, NADA VILLAGE,
Location: HIGH
COURT OF BELTHANGADY TALUK,
KARNATAKA
D.K.
2. NATIONAL INSURANCE COMPANY LTD.,
BRANCH OFFICE, 1ST FLOOR,
NITHYANANDA COMPLEX,
MOODABIDRI - 574 227
3. SMT. SUNITHA SEQUEIRA,
W/O JACOB SEQUEIRA,
R/O 'MORNING STAR,
VEERANAGAR, PADIL POST,
MANGALUR, D.K.
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NC: 2024:KHC:6701
MFA No. 3615 of 2019
4. ICICI LOMBARD GENERAL INSURANCE,
COMPANY LTD.,
MAXIMUS COMMERCIAL COMPLEX,
LIGHT HOUSE HILL ROAD,
MANGALURU - 575 001.
...RESPONDENTS
(BY SRI. B.C. SHIVANNEGOWDA, ADVOCATE FOR R2;
R1 AND R3 NOTICE SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED: 27.07.2017 PASSED IN MVC
NO.486/2014 ON THE FILE OF THE M.A.C.T. AND III
ADDITIONAL SENIOR CIVIL JUDGE, MANGALURU, DAKSHINA
KANNADA, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL, COMING ON FOR FURTHER ORDERS, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the claimants seeking enhancement of compensation.
2. The factum of accident and death of deceased are not in dispute. The question is whether Insurance Company is liable to indemnify the owner is to be considered.
3. Heard the arguments of both the sides and perused the material placed on record. -3-
NC: 2024:KHC:6701 MFA No. 3615 of 2019
4. In the present case, the deceased was aged 64 years old working as Manager in local firm and died in the accident. The accident occurred on 13.10.2013 and the deceased was serving as Manager in a firm and was drawing salary of Rs.15,000/- p.m. and it is proved by producing Ex.P-10. Therefore, in absence of contra evidence that the deceased was not a Manager, Ex.P-10 is believable. The employer of the deceased has deposed that the deceased was working under him as Manager and was drawing salary of Rs.15,000/- p.m. Therefore, income of Rs.15,000/- is taken into consideration.
5. The tribunal has awarded compensation under various heads as follows:
Sl. Heads Amount in
No. (Rs.)
1. Towards loss of dependency 5,60,000
2. Towards transportation of 25,000
dead body and performance
of obsequies ceremony
3. Towards loss of love and 40,000
affection
4. Towards loss of consortium 25,000
5. Towards loss of estate 20,000
Total: Rs.6,70,000
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MFA No. 3615 of 2019
6. The tribunal has awarded lesser amount of compensation contrary to the principles of law laid down by the Hon'ble Supreme Court. Therefore, the same is required to be modified.
7. The appropriate multiplier is '7'. There are two dependants who are wife and son of the deceased. Therefore, 1/3rd of income is to be deducted towards personal and living expenses. Then the compensation towards 'loss of dependency' would be Rs.8,40,000/- (Rs.15,000/- X 2/3rd X 7 X12) and it is awarded.
8. In view of the decision of the Hon'ble Supreme Court in the case of Magma General Insurance Co. Limited v. Nanu Ram & Others, reported in 2018 ACJ 2782 and in the case of Pranay Sethi supra, the claimants are entitled to Rs.40,000/- each under the head 'loss of consortium', along with 10% escalation. Accordingly, Rs.88,000/- (Rs.40,000 x 2 + 10%) is awarded under the head 'loss of consortium including loss of love and affection'.
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NC: 2024:KHC:6701 MFA No. 3615 of 2019
9. The compensation of Rs.16,500/- (15,000/- + 10% escalation) is awarded under the head of 'loss of estate' as against Rs.20,000/-awarded by the Tribunal.
10. Further the compensation of Rs.16,500/- (15,000/- + 10% escalation) is awarded under the head 'funeral expenses'.
11. Thus, the claimants would be entitled for compensation under various heads as under:
Sl. Heads. Amount
No. in (Rs.)
1. Towards loss of dependency 8,40,000
(Rs.15,000/- X 2/3rd X 7 X12)
2. Towards loss of consortium 88,000
(40,000 x 2 +10%)
3. Towards loss of estate 16,500
(15,000 + 10%)
4. Towards funeral expenses 16,500
(15,000 + 10%)
Total: 9,61,000
12. In the present case, the driver of the lorry was holding driving license of light motor vehicle, but the vehicle involved in the accident is a lorry which is a heavy goods vehicle. Therefore, the Insurance Company has -6- NC: 2024:KHC:6701 MFA No. 3615 of 2019 successfully proved that the driver of the lorry was not holding valid driving license to drive heavy goods vehicle. Therefore, the Tribunal is correct in exonerating the Insurance Company from paying compensation to the claimants. The Insurance Company is able to establish the defense as per sub-section (1) of section 149 of M.V.Act. Hence as per sub-section (1), (5) and (7) of section 149 of the M.V.Act, and also as per the principle of law laid down by the Hon'ble Supreme Court in the cases of PAPPU AND OTHERS Vs. VINOD KUMAR LAMBA AND ANOTHER reported in (2018) 3 SCC 208; NATIONAL INSURANCE COMPANY LIMITED VS. SWARAN SINGH AND OTHERS reported in (2004) 3 SCC 297; and also as per the Full Bench decision of this Court in the case of NEW INDIA ASSURANCE COMPANY LIMITED VS. YELLAVVA AND ANOTHER reported in 2020 ACJ 2560, the Insurance Company shall satisfy the claim at the first instance to the claimants and then recover it from the owner of the offending vehicle. Accordingly, the order of pay and recovery is made. -7-
NC: 2024:KHC:6701 MFA No. 3615 of 2019 However, the Insurance Company is at liberty to file execution petition before the jurisdictional executing Court as against the owner of the offending vehicle and may seek attachment of movables or immovable properties or both, till recovery is made and also the recovery process can be as per the decision of the Hon'ble Supreme Court in the case of Oriental Insurance Co. Ltd., vs. Nanjappan and others, reported in 2004 AIR SCW 952.
13. Therefore, the claimants are entitled for total compensation of Rs.9,61,000/-, along with interest at the rate of 6% p.a. from the date of filing of the petition till realization, as against Rs.6,70,000/- awarded by the tribunal.
14. In the result, I proceed to pass the following:
ORDER
i) The appeal filed by the claimants is allowed in part. -8-
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ii) The judgment and award dated 27.07.2017, passed in MVC No.486/2014 on the file of III Additional Senior Civil Judge, Mangaluru, D.K., stands modified.
iii) The claimants are entitled for total compensation of Rs.9,61,000/- along with interest at the rate of 6% p.a. from the date of filing of the petition till realization, as against Rs.6,70,000/- awarded by the tribunal.
iv) The claimants are not entitled for interest for the delayed period of 518 days in filing the appeal.
v) The said compensation amount shall be paid by the Insurance Company initially, within eight weeks from the date of receipt of a certified copy of this judgment and -9- NC: 2024:KHC:6701 MFA No. 3615 of 2019 then recover the same from the owner of the lorry.
vi) The amount in deposit shall be transmitted to the tribunal.
vii) No order as to costs.
viii) Draw award accordingly.
Sd/-
JUDGE SRA List No.: 1 Sl No.: 11 CT:SNN