Karnataka High Court
Shankramma W/O Chidanandappa And Anr vs Mahesh S/O Tayappa & Ors on 6 February, 2020
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF FEBRUARY 2020
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
MFA NO.31149/2013 (MV)
BETWEEN:
1. Shankramma W/o Chidanandappa
Age: 58 years, Occ: Household
2. Chandrasekar S/o Chidanandappa
Age: 35 years, Occ: Agriculture
3. Rajashekhar S/o Chidanandappa
Age: 29 years, Occ: Agriculture
All are R/o Seekal village, Tq. Manvi
Dist. Raichur - 584 101
... Appellants
(By Sri Babu H. Metagudda, Advocate)
AND:
1. Mahesh S/o Tayappa
Age: 36 years, Occ: Driver of Auto
No.KA-36/9033, R/o Rahamath Nagar
Manvi, Dist. Raichur - 584 101
2. Suresh S/o Bhoja Naik
Age: Major, Occ: owner of Auto
No.KA-36/9033, R/o Muranpur Tanda
Tq. Manvi, Dist. Raichur - 584 101
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3. The Manager, Bajaj Allianz General
Insurance Co. Ltd., G.E. Plaza
Airport Road, Yerwada, Pune
State: Maharastra
... Respondents
(Sri Sudarshan M., Advocate for R3;
V/O Dtd. 09.09.2014, notice to R1 is dispensed with;
R2 is served)
This Miscellaneous First Appeal is filed under Section
173 (1) of the Motor Vehicles Act, praying to allow the
appeal and modify the judgment and award dated
08.01.2013 passed in M.V.C.No.774/2010 by the Addl.
District Judge and M.A.C.T. at Raichur and enhancing the
compensation from Rs.1,14,000/- with 6% interest to
Rs.11,00,000/- with 12% interest.
This appeal coming on for admission this day, the
Court delivered the following:
JUDGMENT
This appeal by the claimants is directed against the impugned judgment and award dated 08.01.2013 passed by the Additional District Judge and M.A.C.T., Raichur (for short 'the Tribunal'), whereby the Tribunal partly allowed the claim petition filed by claimant No.1, thereby awarding compensation of Rs.1,14,000/- with interest at 6% p.a. from the date of petition till realisation and dismissed the claim petition filed by claimant Nos.2 and 3. However, the 3 Tribunal absolved the insurance company of its liability to pay compensation and directed the owner-respondent No.2 (Suresh) to pay compensation on the ground that the deceased Chidanandappa was an unauthorized passenger in a goods vehicle and consequently since there was breach of terms and conditions of the policy, the insurance company was not liable to pay compensation.
2. I have heard the learned counsel for the appellants and the learned counsel for respondent No.3- insurance company.
3. Learned counsel for the appellants-claimants submits that the Tribunal committed an error in coming to the conclusion that the deceased Chidanandappa was an unauthorized/gratuitous passenger travelling in a goods vehicle. It is contended that that the Tribunal committed an error in taking the notional income as Rs.3000/- per month instead of Rs.5,500/- per month as per the Lok Adalat guidelines. It is also contended that the Tribunal committed an error in not adding 10% of future prospects 4 to the notional income without considering or appreciating the law laid down by the Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and others (2017) 16 SCC 680. It is further contended by him that the Tribunal has failed to consider the law laid down by the Apex Court in the case of Magma General Insurance Company Limited vs. Nanu Ram & Others (2018) 18 SCC 130 and reiterated by the Division Bench of this Court in M.F.A.No.1100/2019 & connected matter disposed of on 12.06.2019 in awarding compensation towards 'loss of consortium'. He therefore requests this Court to enhance the compensation by modifying the impugned judgment and award passed by the Tribunal.
4. Per contra, learned counsel for respondent No.3-insurance company would support the impugned judgment and award passed by the Tribunal.
5. I have given my anxious consideration to the rival submissions and perused the material on record. 5
6. While dealing with the issue regarding liability of the insurance company to pay compensation in view of the specific defence put forth by it that the deceased Chidanandappa was gratuitous/unauthorized passenger in a goods vehicle is concerned, the Tribunal at paragraph 9 of the impugned judgment has held as under:
"9. The R-3 got its legal officer as R-1 and got marked documents Exs.R-1 to R-3. RW-1 states in his evidence that the deceased Chidnanandappa was proceeding in goods auto wherein the extra passenger is not covered under the policy and further R-1 the driver of the vehicle not possessed the proper valid DL, therefore R-3 is not liable to indemnify R-2 for violation of policy conditions. Ex.R-1 reveals that the policy has been issued citing it as Commercial vehicle - package policy. Petitioner even though is not an eye witness to the incident has stated that her husband was moving in an goods auto to bring vegetables for his business. Further charge sheet Ex.P6 reveals that the deceased was moving in a goods auto. Therefore, I am of the opinion that in view of violation of policy conditions by the 6 owner of the goods auto involved in the accident, R3 the insurance company is not liable to indemnify the owner of the goods auto. Hence it is only R-1 and R-2 the driver and owner of the offending auto are liable to pay the compensation to the petitioners. But in view of the vicarious liability the owner has to indemnify the liability of his driver."
7. A perusal of the said finding recorded by the Tribunal would indicate that the Tribunal has correctly and properly appreciated the material on record and has come to the correct conclusion that the deceased Chidanandappa was an unauthorized/gratuitous passenger in a goods vehicle. Under these circumstances, the said finding recorded by the Tribunal is hereby affirmed.
8. Insofar as the quantum of compensation is concerned, as rightly contended by the learned counsel for the appellants, the Tribunal committed an error in failing to appreciate the Lok Adalat guidelines which stipulate that in respect of an accident that took place in the year 2010, the notional income should be taken as Rs.5,500/- per 7 month and in view of the law laid down by the Apex Court in Pranay Sethi's case, the Tribunal ought to have added 10% of future prospects to the notional income of Rs.5,500/- per month. Hence, the compensation under the head 'loss of dependency' is reworked as hereunder:-
Rs.5,5000 + 10% i.e., Rs.550 = Rs.6,050 x 12 x 7 x 2/3 = Rs.3,38,800/-
Thus, the appellant No.1 is entitled to the total compensation of Rs.3,38,800/- under the head 'loss of dependency'.
9. Considering the principles laid down by the Apex Court in Magma's case and the Division Bench of this Court (supra), appellant No.1 is entitled to a sum of Rs.1,00,000/- towards 'loss of consortium'. So also, appellant No.1 is entitled to a sums of Rs.15,000/- towards 'loss of estate' and Rs.15,000/- towards 'funeral expenses and transportation of dead body'.
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10. Thus, the total compensation would have to be reworked as hereunder:-
1 Loss of dependency Rs.3,38,800/- 2 Loss of consortium Rs.1,00,000/- 3 Loss of estate Rs.15,000/-
4 Funeral expenses and Rs.15,000/-
transportation of dead body Total Rs.4,68,800/-
11. Since the Tribunal has awarded a compensation of Rs.1,14,000/-, appellant No.1 - claimant No.1 would be entitled to an additional enhanced compensation of Rs.3,54,800/- (Rs.4,68,800/- less Rs.1,14,000/-) with interest at 6% p.a.
12. In view of the above discussion, I pass the following:
ORDER
(i) The appeal is partly allowed.
(ii) The impugned judgment and award dated 08.01.2013 passed by the Tribunal is hereby modified to the extent of quantum of compensation only.9
(iii) The finding of Tribunal, allowing the claim petition only in respect of claimant No.1 and dismissing the claim petition in respect of claimant Nos.2 and 3 is hereby affirmed.
(iv) Appellant No.1-claimant No.1 is entitled to additional enhanced compensation of Rs.3,54,800/- which shall carry interest at 6% p.a. from the date of claim petition till realization.
(v) It is made clear that respondent No.2-Suresh (owner of the goods auto bearing Reg. No.KA-36/9033) is liable to pay the compensation in favour of claimant No.1.
(vi) It is also made clear that respondent No.3- insurance company is not liable to pay compensation.
Sd/-
JUDGE LG