Karnataka High Court
Rehmat Bee W/O Late Maqbul vs Liyaqat Ali S/O Wahabuddin on 20 August, 2014
Author: Ravi Malimath
Bench: Ravi Malimath
1
IN THE HIGH COURT OF KARNATAKA
GULBARGA BENCH
ON THE 20TH DAY OF AUGUST, 2014
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
M.F.A. NO. 30274/2010 (MV)
BETWEEN
1. REHMAT BEE W/O LATE MAQBUL
MIYAN AGE : 42 YEARS,
OCC: HOUSE HOLD
2. BABUMIYAN S/O LATE MAQBUL
MIYAN AGE : 18 YEARS,
OCC: STUDENT
3. SAIMODDIN S/O LATE MAQBUL
MIYAN AGE : 16 YEARS,
OCC: STUDENT
4. SYED ALI S/O LATE MAQBUL
MIYAN AGE : 14 YEARS,
OCC: STUDENT
5. RESHMA D/O LATE MAQBUL
MIYAN AGE : 10 YEARS,
APPLLENTS NO.3 TO 5 ARE
MINORS & U/G OF THEIR REAL
MOTHER APPLTS.NO.1
ALL ARE R/O VILLAGE YAKHATPUR
TQ & DIST: BIDAR ... APPELLANTS
(BY SRI. SANTOSH BIRADAR, ADV)
2
AND
1. LIYAQAT ALI S/O WAHABUDDIN
AGE : 26 YEARS, OCC : BUSINESS
R/O YAKHATPUR
TQ:DIST: BIDAR
2. THE BRANCH MANAGER
NATIONAL INSURANCE CO., LTD.,
ANUPAM COMPLEX,
BASAWESHWAR CHOWK,
GANDHI GUNJ ROAD,
BIDAR. ... RESPONDENTS
(BY SRI. ANILKUMAR NAVADAGI, ADV FOR R1
SMT. PREETI PATIL, ADV FOR R2)
THIS MFA FILED U/S 173(1)OF MVC ACT AGAINST THE
JUDGMENT AND AWARD DATED: 16.11.09 PASSED IN MVC NO.
184/07 ON THE FILE OF THE PRESIDING OFFICER FAST TRACK
COURT II & ADDL.MACT AT BIDAR, PARTLY ALLOWING THE
CLAIM PETITION AND SEEKING ENHANCEMNET OF
COMPENSATION.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
It is the case of the claimants that on 18.11.2006 the deceased was proceeding to his land by walk between 9.00 p.m. to 10.00 p.m. near Bhomagundeshwar temple 3 at Ekthapur on Bidar Manhalli road. The driver of the auto bearing No. KA-38/3032 came and dashed against him. The deceased died on the spot. Criminal case was filed against the driver of the auto in Cr.No.169/2006 for the offences punishable udner section 279, 304-A of Indian Penal Code R/w S. 187 of M.V. Act. The wife and minor children of the deceased filed a claim petition under section 166 of the M.V. Act. By the impugned award, a compensation of Rs.3,49,000/- along with interest was awarded. The claim petition against the insurer was dismissed and the owner was liable to satisfy the award. Aggrieved by the same, the claimants have filed the present appeal questioning the liability foisted on the owner and also seeking enhancement.
2. Learned counsel for the appellants contends that impugned order is bad in law and liable to be set aside.
4
3. The Tribunal while considering the plea of liability came to the view that there is a violation of terms and conditions of the policy since the permission granted was to ply within the Bidar city in terms of Ex.R-1. That the evidence of the insurer would show that he did not know the limits of Bidar city and is not sure where the accident took place. He places reliance on the judgment of Division Bench of this Court reported in ILR 2000 KAR 1302 in the case of United India Insurance Co. Ltd and others .vs. Chandamma and others. Therein the Division Bench held when there is violation of permit condition, the insurer cannot absolve its liability to satisfy the award. Such a defence is not permitted under section 2
(a)(i)(a) of Section 149. Hence he pleads that the appeal be allowed.
4. On the other hand Smt Preeti Patil, learned counsel for the insurer defends the impugned order. She has placed reliance on the decision of yet another 5 Division Bench reported in 2013(1) AKR 266 in the case of B.T. Venkatesh v. Jagadeesh Kumar and Ors. there in the Division Bench held that the on violation of policy conditions, the insurer is not liable to pay the compensation. Hence, she pleads the appeal be dismissed.
5. On hearing learned counsels', I' am of the considered view that the plea of the appellant is to be accepted. In the case of Chandamma and others was passed after taken into consideration the previous judgment of the Division Bench of this Court in the case of K.V.Thimmedowda vs. Kamalamma reported in ILR 1991 KAR 4127. In so holding the Division Bench held that the plea of violation of permit conditions is not permissible to be taken by the insurer under sub section 2 of Section 149 of the Act. Therefore, in law the insurer is not exempted to pay the compensation. However, the subsequent judgment relied by the insurer in the case of 6 B.T.Venkatesh vs. Jagadeesh Kumar and Ors, a contrary view has been taken. The earlier judgment of this Court in Chandamma's case as well as K.V.Thimmegowda's case has not been referred to in the judgment. The judgment in B.T.Venkatesh case has been passed on the facts and circumstances of that case. On law being declared in a judgment the same becomes precedent to be followed. However, in a given case where law has already been declared by coordinate bench or superior court, the same would act as a precedent to be applied to the existing case. Where the existing judgment does not refer to the earlier judgement on the question of law, the subsequent judgment cannot be considered as a precedent or as law binding. Such a judgment has to be considered as a judgment delivered in the facts and circumstances of the case. A judgment passed without reference to the earlier judgments on a question of law would be considered as "per incuriam". In view of the fact that the earlier law laid down in the aforesaid two 7 judgments of this Court have not been referred to in the subsequent judgment, the subsequent judgment relied on by the insurer cannot be considered as laying down the correct law. Under these circumstances applying Chandamma's case it has to be held that the finding of the Tribunal so far as fastening liability on the owner is concerned is misplaced. The same is reversed. The insurer is liable to satisfy the claim in terms of the aforesaid judgement.
7. So far as enhancement is concerned, the deceased was said to be an agriculturist and earing Rs.6,000/- per month. The Tribunal held his income at Rs.3,000/- per month. The accident took place on 18.11.2006. Following the Judgment of the Supreme Court in the case of RAMACHANDRAPPA vs. ROYAL SUNDARAM ALIANCE INSURANCE COMPANY LIMITED., reported in AIR 2011 SC 2951, it is appropriate to hold his income at Rs.5,500/- per month. The deceased was 8 aged 40 years as on the date of the accident. Hence appropriate multiplier would be 14 and not 13 as held by the Tribunal. Hence, the loss of dependency works out as follows;
1/4th of Rs.5,000/- x 12 x 14 = Rs.6,30,000/- Following the judgment of Hon'ble Supreme Court reported in 2013 ACJ 1403 in the case of Rajesh and Ors. vs. Rajbir Singh & Ors. a sum of Rs.1,00,000/- is awarded towards loss of consortium. Rs.25,000/- is awarded towards funeral expenses. The amount of Rs.15,000/- awarded towards loss of estate is deleted as the same cannot be granted. A sum of Rs.15,000/- to each of the claimant Nos. 2, 3, 4 and 5 is awarded towards loss of love and affection. The Hon'ble Supreme Court awarded Rs.25,000/- towards litigation expenses in the aforesaid judgment. Hence, it would be just and appropriate to award Rs.15,000/- towards litigation 9 expenses. Hence, the claimants are entitled to the following compensation.
(1) Loss of dependency Rs. 6,30,000/-
(2) Loss of consortium Rs. 1,00,000/-
(3) Funeral Expenses Rs. 25,000/-
(4) Loss of love and affection Rs. 60,000/-
(5) Litigation expenses Rs. 15,000/-
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Total Rs.8,30,000/-
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Consequently, the compensation is enhanced by a sum of Rs.4,81,000/-(Rs. 8,30,000/- less Rs.3,49,000/-) which shall carry interest at the rate of 9% per annum from the date of the petition till the date of settlement. The Respondent No.2 the insurer to settle the claim within the period of 12 weeks from the date of receipt of copy of this order.
Sd/-
JUDGE *MK