Karnataka High Court
The Divisional Manager, United India vs Basavaraj And Ors on 22 February, 2023
1 MFA No.202241/2017
c/w MFA Crob No.200077/2018
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MS. JUSTICE J.M.KHAZI
MFA No.202241/2017 (MV)
c/w
MFA Crob No.200077/2018
IN MFA NO.202241 OF 2017:
BETWEEN
THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
SANGAM BUILDING,
SS FRONT ROAD, VIJAYAPURA.
...APPELLANT
(BY SRI. S. S. ASPALLI, ADVOCATE)
AND
1 . BASAVARAJ S/O NAGAPPA KODEKALLA,
AGE 22 YRS, OCC:STUDENT,
2 . SHIVAPPA S/O NAGAPPA KODEKALLA
AGE:21 YRS, OCC:COOLIE,
3 . DYAMAWWA D/O NAGAPPA KODEKALLA
AGE 20 YRS, OCC:HOUSEHOLD WORK,
4 . NAGAPPA S/O YELLAPPA KODEKALL
AGE 42 YRS, OCC:COOLIE,
2 MFA No.202241/2017
c/w MFA Crob No.200077/2018
ALL R/O SHIVAPUR, TQ.MUDDEBIHAL,
VIJAYAPURA NOW AT GANESH NAGAR,
VIJAYAPURA.
5 . DUNDAPPA S/O JUMMANNA MAKALE
AGE MAJOR, OCC:BUSINESS,
R/O SHIVAPUR, TQ.MUDDEBIHAL,
VIJAYAPURA.
...RESPONDENTS
(BY SRI. HARSHAVARDHAN R.
MALIPATIL, ADV. FOR R1 TO R4;
SRI. G.B.YADAV, ADV. FOR R5)
THIS MFA FILED U/S 173(1) OF MV ACT, PRAYING TO SET
ASIDE THE JUDGMENT AND AWARD DATED-30.08.2017 IN MVC
NO.1679/2015 PASSED BY THE III ADDL. SENIOR CIVIL JUDGE
AND MACT-XII VIJAYAPURA BY ALLOWING THE ABOVE APPEAL.
IN MFA.CROB NO.200077 OF 2018:
BETWEEN
1 . BASAVARAJ
S/O NAGAPPA KODEKALLA,
AGE 22 YRS, OCC:STUDENT,
2. SHIVAPPA
S/O NAGAPPA KODEKALLA
AGE:21 YRS, OCC:COOLIE,
3. DYAMAWWA
D/O NAGAPPA KODEKALLA
AGE 20 YRS, OCC:HOUSEHOLD WORK,
4. NAGAPPA
S/O YELLAPPA KODEKALL
AGE 42 YRS, OCC:COOLIE,
3 MFA No.202241/2017
c/w MFA Crob No.200077/2018
ALL R/O SHIVAPUR, TQ.MUDDEBIHAL,
VIJAYAPURA NOW AT GANESH NAGAR,
VIJAYAPURA.
...CROSS OBJECTORS
(BY SRI. HARSHAVARDHAN R. MALIPATIL, ADVOCATE)
AND
1 . THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
SANGAM BUILDING, S S FRONT ROAD,
VIJAYAPURA.
2 . DUNDAPPA S/O JUMMANNA MAKALE
AGE MAJOR, OCC:BUSINESS,
R/O SHIVAPUR, TQ.MUDDEBIHAL,
VIJAYAPURA.
...RESPONDENTS
(BY SRI.S.S.ASPALI, ADV. FOR R1;
SRI.G.B.YADAV, ADV. FOR R2)
THIS MFA CROB. IS FILED U/S. 41 RULE 22 OF CPC,
PRAYING THAT THIS HON'BLE COURT TO KINDLY BE PLEASED
TO GRANT COMPENSATION IN A SUM OF RS.13,92,000/-
(EXCLUDING THE AMOUNT AWARDED BY THE TRIBUNAL)
ALONG WITH INTEREST @ 12 P.A. BY SETTING ASIDE THE
JUDGMENT AND AWARD OF THE III ADDL. SENIOR CIVIL JUDGE
AND MACT-XII, VIJAYAPURA DATED 30.08.2017 IN MVC
NO.1679/2015.
THIS APPEAL AND CROSS OBJECTION HAVING BEEN
HEARD AND RESERVED ON 10.01.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
4 MFA No.202241/2017
c/w MFA Crob No.200077/2018
JUDGMENT
The appeal and Cross objection are arising out of judgment and award dated 30.08.2017 in MVC.No.1679/2015 on the file of III Addl. Sr. Civil Judge & MACT-12, Vijayapura.
2. While MFA.No.202241/2017 is filed by the Insurance Company seeking dismissal of the claim petition on the ground that deceased was a gratuitous passenger traveling in a transport vehicle and the driver of the offending vehicle was not holding a valid driving license, MFA.Crob.No.200077/2018 is filed by the petitioners seeking enhancement of the compensation.
3. For the sake of convenience the parties are referred to by their rank before the Tribunal.
4. FACTS: It is the case of the petitioners that they are the children and husband of deceased-Hanamawwa. On 21.08.2015, at about 5.00 p.m, after coolie work, deceased 5 MFA No.202241/2017 c/w MFA Crob No.200077/2018 Hanamawwa came to Mukihal Cross. In order to go to her village, she stopped a Bolero Jeep bearing registration No.KA-28/A-5198 (for short 'offending vehicle'), which was going to Shivapur. Before she could step into the vehicle i.e., while she was trying to board the offending vehicle, the driver of the offending vehicle, took the vehicle in reverse negligently, as a result of which deceased fell down on the road and the offending vehicle passed over her body. She died at the spot. At the time of accident, she was aged 35 years earning Rs.10,000/- p.m. As the children and husband of deceased, petitioners are entitled for compensation. As the owner and insurer respondent Nos.1 and 2 are jointly and severally liable to pay the compensation.
5. Respondent Nos.1 and 2 have filed separate written statement disputing the age and income of the deceased and that the accident occurred due to the rash or negligent driving by the driver of the offending vehicle. Respondent No.2 has specifically contended that driver of 6 MFA No.202241/2017 c/w MFA Crob No.200077/2018 the offending vehicle never allowed any passengers to travel in the said vehicle.
6. On the other hand, respondent No.2 has further pleaded that since deceased was a gratuitous passenger and the driver of the offending vehicle was not holding a valid driving license, respondent No.2 is not liable to indemnify respondent No.1 and has sought for dismissal of the petition.
7. Based on these pleadings, the Tribunal has framed necessary issues.
8. In support of their case, petitioner No.1 is examined as PW-1 and Ex.P1 to 8 are marked.
9. On behalf of respondent No.2, RW-1 and 2 are examined and Ex.R1 to 3 are marked.
10. Vide impugned judgment and award, the Tribunal has partly allowed the petition granting compensation in a sum of Rs.11,08,000/- with interest at 7 MFA No.202241/2017 c/w MFA Crob No.200077/2018 9% p.a and directed respondent No.2 to pay the same with interest as detailed below:
Sl.No. Heads Amount
awarded
1. Loss of dependency Rs.10,08,000/-
2. Towards love and Rs.25,000/-
affection
3. Loss of estate Rs.20,000/-
4. Loss of consortium Rs.30,000/-
5. Towards funeral and Rs.25,000/-
transportation expenses
Total Rs.11,08,000/-
11. During the course of argument, learned counsel for respondent No.2/Insurance Company submitted that the Tribunal has failed to appreciate the fact that at the time of accident, deceased was traveling as gratuitous passenger and since the driver of the offending vehicle was not holding a valid driving license, respondent No.2 is not liable to pay the compensation. He would further submit that since petitioner No.4 is the husband of the deceased, he cannot be considered as dependent and therefore 1/3rd income is required to be deducted towards personal and living expenses of the deceased. The interest granted 8 MFA No.202241/2017 c/w MFA Crob No.200077/2018 at 9% p.a. is on the higher side and sought for dismissal of the petition or in the alternative to reduce the compensation.
12. On the other hand, petitioners have filed cross objection contending that the notional income is on the lower side and consequently the compensation granted is on the lower side. The compensation granted for loss of consortium requires enhancement and prays to enhance the compensation
13. Heard arguments and perused the record.
14. It is an undisputed fact that the offending vehicle is a Bolero pick up van i.e., a transport vehicle. The incident took place on 21.08.2015 at 5.00 p.m. The complaint is filed on the same day. As observed by the Tribunal, there is no inordinate delay in filing the complaint. Though respondent No.2 has specifically pleaded that at the time of accident, deceased was traveling in the offending vehicle as gratuitous passenger, it has not led any evidence of the eye 9 MFA No.202241/2017 c/w MFA Crob No.200077/2018 witnesses. Though PW-1 is not an eye witness to the incident, respondent No.2 has failed to elicit and bring on record any admissions to show that at the time of accident, deceased was traveling in the offending vehicle.
15. On the other hand appreciating the pleadings, oral testimony of PW-1 and in the light of the documents placed on record, the Tribunal has come to the correct conclusion that accident occurred even before the deceased stepped into the offending vehicle. While she was in the process of boarding the offending vehicle, the driver suddenly took the vehicle in the reverse, as a result of which she fell down and the vehicle passed over her, resulting in her death. In the circumstances, I hold that the Tribunal is justified in coming to the conclusion that the accident occurred due to the rash or negligent driving by the driver of the offending vehicle and negating the defence of respondent No.2 that deceased was a gratuitous passenger traveling in the offending vehicle. 10 MFA No.202241/2017 c/w MFA Crob No.200077/2018
16. So far as the decision relied upon by the respondent No.2 in the case of Kariyamma vs. Kumar s/o Marappa and another in MFA.No.101633/2014 dated 30.03.2021 of the Division Bench of this Court, it was a case where the deceased was a gratuitous passenger traveling in the transport vehicle and therefore, the Division Bench absolved the Insurance Company from paying the compensation. Therefore, the above decision is not applicable to the case on hand.
17. So far as defence of respondent No.2 that at the time of accident, the driver of the offending vehicle was not holding a valid driving license is concerned, undisputedly, the vehicle is a light motor vehicle (Transport) whereas as per Ex.R2 the driver was holding a driving license to drive LMV - light motor vehicle (Non-transport). Respondent No.2 has examined RW-2 to prove this aspect and through him the documents in question are marked. However, as per the 11 MFA No.202241/2017 c/w MFA Crob No.200077/2018 decision of the Hon'ble Supreme Court in Mukund Dewangan vs. Oriental Insurance Company Limited and Others1 (Mukund Dewangan's case), as evident from the testimony of PW-2 the weight of the offending vehicle is within 7500 Kg. A person holding a license to drive LMV (Non-transport) is entitled to drive a LMV (Transport) within the prescribed weight and there is no need for separate endorsement. In the light of these, the Tribunal is justified in holding that at the time of accident, the driver of the offending vehicle was holding a valid driving license and as such respondent No.2 is liable to pay the compensation.
18. However, the Tribunal is not justified in directing respondent No.2 to pay the interest at 9% and the same is liable to be reduced to 6%. To this extent, appeal filed by respondent No.2 deserves to be allowed in part.
19. Now coming to the cross objection filed by the petitioners seeking enhancement. Based on the PM report, the Tribunal has accepted the age of deceased as 35 years 1 (2016) 4 SCC 298 12 MFA No.202241/2017 c/w MFA Crob No.200077/2018 and therefore the multiplier 16 selected by the Tribunal is correct. As the petitioners have failed to prove that deceased was earning Rs.10,000/- p.m, the Tribunal has taken the income on notional basis at Rs.7,000/-p.m. Since the accident is of the year 2015, based on minimum wages, the income ought to have been taken at Rs.8,000/-. The Tribunal has not added any amount towards the loss of future prospects. Since the deceased was aged 35 years i.e., below 40 years, as per the decision of Hon'ble Supreme Court in Magma's case, 40% of the income is required to be added towards loss of future prospects. 40% of Rs.8,000/- is Rs.3,200/-. Therefore, income is required to be taken at Rs.11,200/-. As per Sarla Verma (Smt) & Others vs. Delhi Transport Corporation & Another2 (Sarla Verma's case), when there are 4-6 dependents 1/4th is required to be deducted towards personal and living expenses of the deceased. Therefore, the Tribunal is justified in deducting 1/4th and considered 3/4th to calculate 2 (2009) 6 SCC 121 13 MFA No.202241/2017 c/w MFA Crob No.200077/2018 the loss of dependency. With these components the loss of dependency is Rs.11,200 x 12 x 16 x ¾ = Rs.16,12,800 as against Rs.11,08,000/- granted by the Tribunal.
20. The Tribunal has granted compensation in a sum of Rs.25,000/- under the head loss of love and affection and Rs.30,000/- towards loss of consortium. As per Magma and Pranay Sethi's cases, as the sons and husband of the deceased, petitioners are entitled for compensation in a sum of Rs.40,000/- each towards loss of consortium and therefore Rs.1,60,000/- is granted as against Rs.30,000/- by the Tribunal. Separate compensation granted in a sum of Rs.25,000/- under the head loss of love and affection is disallowed.
21. When substantial compensation is granted under the head loss of dependency, as per Magma's and Pranay Sethi's cases, under the conventional head loss to estate and funeral expenses (which includes transportation charges), Rs.15,000/- each is required to be granted. Therefore, the compensation granted under the head loss to 14 MFA No.202241/2017 c/w MFA Crob No.200077/2018 estate and funeral expenses is reduced to Rs.15,000/- each.
22. Thus, in all petitioners are entitled for compensation in a sum of Rs.18,02,800/- with interest at 6% p.a. as against Rs.11,08,000/- granted by the Tribunal. The details of the compensation granted is as detailed below:
Sl. Heads Amount awarded Amount
No by the Tribunal awarded by this
Court
1. Loss of dependency Rs.10,08,000/- Rs.16,12,800/-
2. Towards love and Rs.25,000/-
affection Rs.1,60,000/-
3. Loss of consortium Rs.30,000/-
4. Loss of estate Rs.20,000/- Rs.15,000/-
5. Towards funeral Rs.25,000/-
and transportation
Rs.15,000/-
expenses
Total Rs.11,08,000/- Rs.18,02,800/-
23. Since without any basis, the Tribunal has
granted interest at 9% p.a. and in the light of the decision in MFA No.103557/2016 dated 20.03.2018, the same is reduced to 6% p.a. and accordingly, I proceed to pass the following:
15 MFA No.202241/2017c/w MFA Crob No.200077/2018
ORDER
(i) MFA.No.202241/2017 and MFA. Crob.
No.200077/2018 are allowed in part.
(ii) The petitioners are entitled for compensation in a sum of Rs.18,02,800/- together with interest at 6% p.a. as against Rs.11,08,000/- granted by the Tribunal from the date of petition till realization.
(iii) Respondent No.2/insurance company is directed to pay the compensation with interest at 6% p.a. within a period of six weeks from the date of petition till realization (minus the amount already paid/deposited).
(iv) Vide order dated 23.07.2019, the petitioners are not entitled to interest for delay of 279 days on the enhanced compensation.
16 MFA No.202241/2017c/w MFA Crob No.200077/2018
(v) The registry is directed to transmit the amount in deposit (if any), along with a copy of this judgment to the Tribunal forthwith.
Sd/-
JUDGE RR