Karnataka High Court
Kasturi S/O Nagappa Pulare vs Yashavantha Kumar U S/O Ugrappa on 22 August, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2023:KHC-D:9334
MFA No. 101427 of 2021
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22ND DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.101427/2021(MV-D)
BETWEEN:
1. SMT. KASTURI
W/O. NAGAPPA PULARE,
AGE: 49 YEARS,
OCC: HOUSEHOLD WORK,
R/O: NAGANUR, TALUKA: GOKAK,
DIST:BELAGAVI,
NOW AT DAR QUATERS,
POLICE HEAD QUATERS,
BELAGAVI-593107.
2. SHRI ANAND
S/O. NAGAPPA PULARE,
AGE:49 YEARS,
OCC:HOUSEHOLD WORK,
Digitally R/O: NAGANUR, TALUKA:GOKAK,
signed by
SUJATA DIST:BELAGAVI,
SUBHASH NOW AT DAR QUATERS,
PAMMAR
POLICE HEAD QUARTERS,
BELAGAVI-593107.
...APPELLANTS
(BY SRI SANTOSH S. HATTIKATAGI, ADVOCATE)
AND:
1. SHRI YASHAVANTHA KUMAR U
S/O. UGRAPPA,
AGE: MAJOR,
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MFA No. 101427 of 2021
OCCU:BUSINESS,
R/O:MAHAKALI ROAD,
NEAR MANJUNATH MESS,
CHICKBALLAPUR,
TQ AND DIST: CHIKKABALLAPUR-562 101.
2. FUTURE GENERAL INDIA INSURANCE CO.LTD.,
REGISTERED OFFICE,
12TH AND 15TH FLOOR
TOWER -1,
INDIA BULLS FINANCE CENTRE,
SENAPATI BAPAT MARG,
ELPHINSTANCE ROAD,
MUMBAI - 400 013,
BY ITS BRANCH MANAGER,
BRANCH OFFICE,
DR. AMBEDKAR ROAD,
OPP: DISTRICT HOSPITAL,
BELAGAVI-593 107.
...RESPONDENTS
(BY SRI RAJASHEKHAR S. ARANI, ADVOCATE FOR R2;
R1 - NOTICE SERVED.)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO
MODIFY THE JUDGMENT AND AWARD PASSED BY THE LEARNED V
ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MACT-VI,
BELAGAVI, IN MVCNO.542/2014 DATED 20.09.2016, BY ENHANCING
COMPENSATION AS PRAYED FOR IN THE CLAIM PETITION AND FIX
THE LIABILITY ON THE INSRUANCE COMPANY, BY ALLOWING THIS
APPEAL, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
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MFA No. 101427 of 2021
JUDGMENT
This appeal is filed by the claimants challenging the judgment and award dated 20.09.2016, passed by the tribunal in MVC No.542/2014, seeking enhancement of compensation.
2. Heard the arguments and perused the material placed before the Court.
3. The factum of accident is not in dispute in this appeal.
4. In the present case the deceased was traveling on a motorcycle, hit by tractor resulting into death of the deceased. Therefore the deceased is a third party to the tractor. From the evidence on record it is proved that the driver of the tractor was not holding driving licence to drive the tractor. Accordingly the tribunal has fastened liability on the owner of the tractor. Ex.P.2 is the charge sheet in which it is mentioned that the driver of the tractor was not holding driving licence. Therefore the insurance company has successfully established the defence as per -4- NC: 2023:KHC-D:9334 MFA No. 101427 of 2021 sub-section (2) of section 149 of the M.V.Act. Therefore, the tribunal is correct in exonerating the insurance company to indemnify the owner and to pay compensation. Therefore primary liability is on respondent No.1 owner of the tractor to pay compensation.
5. Learned counsel for claimants submitted that the deceased is a third party. Therefore benefit of order of pay and recovery can be given to protect the rights of claimants who are third party to the accident. But this is opposed by the learned counsel for insurance company by placing reliance on the judgment of the Hon'be Supreme Court in the case of Balu Krishna Chavan vs. The Reliance General Insurance Company Limited and others in Civil Appeal No. ............... of 2022 (arising out of SLP (C) No.33638/2017) (Civil Appeal number is not mentioned in the judgment furnished to the Court) and also placed reliance on a judgment of this Court (Bengaluru Bench) in MFA No.3297/2019 (MV-D) dated 13.04.2023 in the case of Smt.Adilakshmammama and -5- NC: 2023:KHC-D:9334 MFA No. 101427 of 2021 others vs. Sri Raju B. and another. Therefore, submitted that an order of pay and recovery cannot be made.
6. In Balu Krishna Chavan case (supra) there is no law laid down whether pay and recovery can be ordered or not and under what circumstances the said order can be made. The said judgment is observations only on the facts and circumstances involved in the case. Upon the peculiar facts and circumstances involved in the case it is ordered for pay and recovery and observed that not to take the order as a precedent.
7. In Smt. Adilakshmammama case (supra), the facts are that the deceased was pillion rider of the motorcycle and rider drove the motorcycle with high speed and in rash and negligent manner and caused accident due to that the deceased being pillion rider fell on the road and sustained injuries and died in the accident. In that context, it was ordered pay and recovery cannot be made. The deceased was pillion rider. Therefore, he is not categorized -6- NC: 2023:KHC-D:9334 MFA No. 101427 of 2021 as third party. The benefit of order of pay and recovery can be made only so far as third party is concerned as per Sub-Section (1) of Section 149 of the M.V. Act. Therefore, due to differential factual matrix in the present case and in the above stated case, the said judgment and decisions are not applicable to the present case.
8. In the present case, the deceased proceeding on his motorcycle dashed by a Tractor and the deceased died. Therefore, the deceased is third party to the Tractor. The driver of the Tractor was not holding driving license to drive the Tractor as it is proved from the evidence and it is rightly held by the Tribunal. Therefore, as per Sub-Section (2) of Section 149 of M.V. Act, the Insurance Company is able to establish the defence successfully to avoid liability. But as per Sub-Section (1) (5) (7) of Section 149 of the M.V. Act even though insurer is to avoid its liability as if the judgment debtor shall satisfy the claim to the persons who are compulsorily covered as per Sub-Section (3) of Section 147 that means who are third parties in favour of -7- NC: 2023:KHC-D:9334 MFA No. 101427 of 2021 them shall satisfy the claim then recover it from the owner of the offending vehicle. Therefore, the Insurance Company shall satisfy the claim at first instance then recover it from the owner of the Tractor bearing registration No.KA-40-M-3278. This view is also fortified by the judgment of Hon'ble Supreme Court in the case of PAPPU YADAV AND OTHERS -V- VINOD KUMAR LAMBA AND ANOTHER1; NATIONAL INSURANCE CO. LTD. V. SWARAN SINGH AND OTHERS2 and also as per the full bench decision of this Court in the case of New India Assurance Company Limited vs. Yellavva and another3. Thus, an order of pay and recovery is made.
9. It is hereby directed to the owner of Tractor shall furnish security to the Tribunal, enabling the Insurance Company to recover from the owner of the Tractor. Therefore, in order to protect interest of the appellants/claimants who are third party, an order of pay and recovery is made as observed above. 1 (2018) 3 SCC 208 2 2004 ACJ 1 3 2020 ACJ 2560 -8- NC: 2023:KHC-D:9334 MFA No. 101427 of 2021
10. Upon considering the quantum of compensation awarded the Tribunal has held all the parameters correctly and justified the quantum of compensation except the calculation for making monthly salary.
11. The deceased was forest guard and was drawing the salary at Rs.11,290/- per month. Rs.150/- is deduced towards professional tax. Therefore, if Rs.1,800/- is deducted from the Rs.11,290/- then the monthly salary would be Rs.9,490/-.
12. Since claimant was aged 26 years old and forest guard and if he had alive he would have been entitled future prospects in life. Hence, according to the age of the deceased 50% of the income is to be added towards loss of future prospects in life as per the judgment of the Hon'bel Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED vs. PRANAY SETHI & OTHERS4 (Rs.9,490 + 4,745 (50% of Rs.9,490). Therefore, the monthly income of the deceased is taken at 4 (2017) 16 SCC 680 -9- NC: 2023:KHC-D:9334 MFA No. 101427 of 2021 Rs.14,235/-. Since the deceased was a bachelor, 50% of his income is deducted towards his personal and living expenses. The appropriate multiplier as per the judgment of the Hon'ble Supreme Court, in the case of Smt.Sarla Verma & Others vs. Delhi Transport Corpn and Another5 is '17'. Therefore, the compensation under the head 'Loss of Dependency along with loss of future prospects in life' is reassessed and quantified as follows:
Rs.9,490 + Rs.4,745 (50% of Rs.9,490) x 50/100 x 17 x 12 = 14,51,970/-.
13. There are totally two dependants of the deceased, hence, as per the judgment of the Hon'ble Apex Court in the case of Magma General Insurance Co. Limited v. Nanu Ram & Others6, the claimants are entitled to Rs.40,000/- each with 10% escalation under the head 'Loss of Consortium'. Accordingly, Rs.88,000/- is awarded under the head 'Loss of Consortium including Loss of love and affection'. 5 AIR 2009 SCC 3104 6 2018 ACJ 2782
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14. Further compensation of Rs.15,000/- with 10% escalation i.e. Rs.16,500/- is awarded under the head of 'Transportation of dead body and funeral expenses'.
15. The compensation of Rs.15,000/- with 10% escalation i.e., Rs.16,500/- is awarded towards 'Loss of Estate'.
16. Further compensation of Rs.15,000/- is awarded towards 'medical expenses' as per the actual bills and receipts produced by the claimants.
17. Hence, the claimants are entitled for a total enhanced compensation, under various heads as follows:
Loss of Dependency along
1. with loss of future prospects Rs.14,51,970/-
in life.
Loss of Consortium including
2. Rs.88,000/-
Loss of love and affection.
Transportation of dead body
3. Rs.16,500/-
and funeral expenses.
4. Loss of Estate. Rs.16,500/-
5. medical expenses. Rs.15,000/-
Total Rs.15,87,970/-
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MFA No. 101427 of 2021
18. Therefore, the claimants are awarded a total compensation of Rs.15,87,970/- along with interest at 6% per annum from the date of filing of the petition till realization.
ORDER
i) The appeal is allowed in part.
ii) The impugned judgment and award dated 20.09.2016 passed in M.V.C. No.542/2014 by the learned V Additional District and Sessions Judge and Motor Accident Claims Tribunal is modified to the extent that the claimants are entitled for an enhance compensation of Rs.15,87,970/- along with interest at 6% per annum from the date of filing of the petition till realization. However, the claimants are not entitled for interest for the period of 1212 days delay in filing the appeal.
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iii) The owner of the Tractor bearing registration No.KA-40-M-3278 shall furnish security before the Tribunal. The Insurance Company shall satisfy the claim amount to the claimants and then recovery it from the owner of the Tractor bearing registration No.KA-40-M-3278.
iv) The amount in deposit shall be transferred to the Tribunal forthwith.
v) Registry is directed to return the Trial Court records to the Tribunal, along with certified copy of the order passed by this Court.
vi) No order as to costs.
vii) Draw award accordingly.
SD/-
JUDGE
MRK: Para 1 to 5
SSP: Para 6 to up to end
List No.: 2 Sl No.: 14
CT-ASC