Karnataka High Court
Smt Sujatha W/O Late Bhoja Poojary vs Sri Jayavarma S/O Sri Nagaraj Shetty on 28 July, 2022
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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MFA No. 10160 of 2010
C/W MFA No. 10744 of 2010
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
MISC. FIRST APPEAL NO. 10160 OF 2010 (MV-)
C/W
MISC. FIRST APPEAL NO. 10744 OF 2010
IN MFA No.10160/2010
BETWEEN:
1. SMT SUJATHA W/O LATE BHOJA POOJARY
AGED 39 YEARS R/AT C/O NARAYANA K
JEPPINAMOGARU THANDHOLIGE, BAJAL POST
MANGALORE TALUK D.K
2. SMT VIJITHA D/O LATE BHOJA POOJARY
AGED 21 YEARS R/AT C/O NARAYANA K
JEPPINAMOGARU THANDHOLIGE, BAJAL POST,
MANGALORE TALUK D.K
3. SRI VARUN S/O LATE BHOJA POOJARY
AGED 18 YEARS R/AT C/O NARAYANA K
JEPPINAMOGARU THANDHOLIGE, BAJAL POST,
MANGALORE TALUK D.K
...APPELLANTS
Digitally signed (BY SRI. PUNDIKAI ISHWARA BHAT.,ADVOCATE)
by KIRAN
KUMAR R
Location: High
Court of
Karnataka
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MFA No. 10160 of 2010
C/W MFA No. 10744 of 2010
AND:
1. SRI JAYAVARMA S/O SRI NAGARAJ SHETTY
R/O DHAREGUDDE VILLAGE AND POST, DHAREGUDDE,
MANGALORE TALUK D.K
2. NATIONAL INSURANCE CO LTD.,
B.O MAIN ROAD, MOODABIDRI MANGALORE TALUK D.K
REP BY ITS MANAGER
3. THE DIVISIONAL CONTROLLER,
NORTH WEST KARNATAKA ROAD TRANSPORT
DIVISION, BAGALKOT
...RESPONDENTS
(BY SRI. A M VENKATESH FOR R2.,ADVOCATE)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DATED 28.07.2010
PASSED IN MVC NO.1633/2005 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER, MACT,
MANGALORE, D.K., PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND ENHANCEMENT OF
COMPENSATION.
IN MFA No.10744/2010
BETWEEN:
THE DIVISIONAL CONTROLLER/
NORTH WEST KARNATAKA ROAD
TRANSPORT CORPORATION,
BAGALKOTE DIVISION, BAGALKOT.
NOW THROUGH
CHIEF LAW OFFICER,
NWKRTC, CENTRAL OFFICE,
GOKUL ROAD, HUBLI.
...APPELLANT
(BY SRI.K.NAGARAJA, ADVOCATE)
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MFA No. 10160 of 2010
C/W MFA No. 10744 of 2010
AND:
1. SMT. SUJATHA,
W/O LATE BHOJA POOJARY,
AGED ABOUT 39 YEARS,
2. KUM. VIJITHA,
D/O LATE BHOJA POOJARY,
AGED ABOUT 21 YEARS,
3. KUMAR. VARUN,
S/O LATE BHOJA POOJARY,
AGED ABOUT 18 YEARS,
ALL ARE R/AT C/O NARAYANA K.
JEPPINAMOGARU, THANDHOLIGE,
BAJAL POST, MANGALORE TALUK, D.K.
4. SRI.JAYAVARMA,
S/O NAGARAJA SHETTY,
AGED MAJOR,
R/AT DHAREGUDDE VILLAGE & POST,
DHAREGUDDE, MANGALORE TALUK, D.K.
5. NATIONAL INSURANCE CO. LTD.,
P.O. MAIN ROAD, MOODABIDRI,
MANGALORE TQ, D.K. BY ITS
MANAGER.
...RESPONDENTS
(BY SRI.PUNDIKAI ISHWARA BHAT, ADVOCATE FOR
R1 TO R3;
SRI.LAKSHMINARASAPPA, ADVOCATE FOR
SRI.A.M.VENKATESH, ADVOCATE FOR R5;
V/O/DT 06.08.2021 NOTICE TO R4 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DATED 28.07.2010
PASSED IN MVC NO.1633/2005 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER, MACT,
MANGALORE, D.K., AWARDING COMPENSATION OF
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MFA No. 10160 of 2010
C/W MFA No. 10744 of 2010
RS.3,80,500/- WITH INTEREST @ 6% P.A. FROM THE DATE OF
PETITION TILL REALIZATION.
THESE MFAs COMING ON FOR FINAL HEARING THIS
DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.10744/2010 is filed by the KSRTC challenging the liability fastened on it.
2. It is not in dispute that in MFA No.181/2011 which was in respect of the same accident, this Court has already held that the KSRTC was not liable for the compensation and absolved it of all liability and it is also held that the insurer is liable.
3. In view of this undisputed position, the appeal filed by the KSRTC would have to be allowed and it is accordingly allowed. The liability fastened on the KSRTC is set aside. The amount deposited by the KSRTC shall be refunded to the KSRTC.
4. MFA No.10160/2010 is filed by the claimants seeking for enhancement in respect of an accident which -5- MFA No. 10160 of 2010 C/W MFA No. 10744 of 2010 occurred on 23.08.2005, and in which Bhoja Poojary, (husband of the first claimant and father of claimant Nos.2 and 3) suffered grievous injuries and ultimately succumbed to the said injuries. The claimants therefore sought for compensation as against the owner of the bus, the insurer of the bus and also against KSRTC.
5. The Tribunal by the impugned award has come to the conclusion that the claimants are entitled to the following sums:
"1. Loss of dependency.. Rs. 3,12,000-00
2. Medical charges.. Rs. 23,500-00
3. Love and affection.. Rs. 25,000-00
4. Funeral & Obsequies. Rs. 10,000-00
5. Loss of Consortium.. Rs. 10,000-00
--------------
Rs. 3,80,500-00
--------------"
6. The Tribunal has fastened the liability on KSRTC. However, in MFA 181/2011 which arose out of the same accident, this Court has already taken the view that KSRTC would not be liable for the accident. -6- MFA No. 10160 of 2010 C/W MFA No. 10744 of 2010
7. This court also held that it is open for the insurer and the owner to argue in this appeal as to who would be liable to pay the compensation. In fact, the appeal filed by KSRTC has been allowed by a separate order today.
8. It is not in dispute that the driver of the bus did not possess a valid and effective driving licence, inasmuch as the licence that he possessed was valid only till 17.02.2004, whereas, the accident occurred on 23.08.2005. In other words, the argument of the insurer is basically that there has been a breach of the policy conditions and therefore, it would not be liable.
9. However, having regard to the decision of the Full Bench in New India Insurance Co. Ltd., Vs. Yallavva W/o Yamanappa's case, in cases where violation of policy conditions are alleged, the only remedy for insurer is to pay the compensation and thereafter -7- MFA No. 10160 of 2010 C/W MFA No. 10744 of 2010 proceed to recover the same from the owner of the offending vehicle.
10. In that view of the above, it is hereby held that the insurer would be liable to pay the compensation that is to be awarded first and thereafter proceed to recover the same from Jayavarma, respondent No.1 herein.
11. So far as enhancement of compensation is concerned, it is not in dispute that deceased was aged 45 years and the accident occurred in 2005. The Tribunal has taken the notional income of the deceased as Rs.3,000/- p.m. since the evidence produced regarding his monthly salary was not credible. The Tribunal has however applied the multiplier of 13 which could be incorrect. In the light of the judgment of the Hon'ble Apex Court Sarla Verma (Smt) and Others Vs. Delhi Transport Corporation and Another reported in (2009) 6 SCC 121, the multiplier applicable would be 14, since deceased was aged 45 years.
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12. The notional income determined by the Tribunal cannot be found fault with since even according to chart prepared by KSLSA, the monthly income for accidents of the year 2007 was Rs.3,000/-. Thus the finding regarding monthly income as assessed by the Tribunal is maintained. To this monthly income of Rs.3,000/-, 25% would be added as future prospects and this would result in the monthly income to a sum of Rs.3,750/-.
13. Out of the said sum, 1/3rd would have to be deducted towards personal expenditure of the deceased and this would result in the income of Rs.2,500/-. After applying the multiplier of 14, the claimants would be entitled to a sum of Rs.2,500 X 12 X 14 = Rs.4,20,000/-.
14. The Tribunal has noticed that the claimants had spent a sum of Rs.23,232/- towards medical expenses and it is accordingly awarded a sum of Rs.23,500/-. The said -9- MFA No. 10160 of 2010 C/W MFA No. 10744 of 2010 award being based on documentary evidence is maintained.
15. In addition to the above, the claimants being wife and children each would be entitled to a sum of Rs.44,000/- towards loss of consortium and Rs.33,000/- under the conventional heads.
16. Thus in all the claimants would entitled to the following sums:
1 Towards Loss of dependency : Rs. 4,20,000/- ( Rs.2500 x 12 x 14) 2 Towards of conventional heads : Rs. 33,000/-
3 Towards Consortium : Rs. 1,32,000/- (Rs.44,000 x3= 1,32,000/-) 4 Towards Medical Expenses : Rs. 23,500/-
TOTAL : Rs. 6,08,500/-
17. The claimants are entitled to enhanced
compensation of Rs.6,08,500/- along with interest at 6% p.a. from the date of petition till the date of realization.
The insurer is directed to deposit the above sum within a
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MFA No. 10160 of 2010 C/W MFA No. 10744 of 2010 period of eight weeks and thereafter would be at liberty to recover the same from the owner of the offending vehicle.
On such deposit being made, the first claimant would be entitled to 50% of the compensation and claimant Nos.2 and 3 would be entitled to remaining 50%. Out of the money payable to the first claimant, 25% of the compensation amount shall be invested in Fixed Deposit for a period of five years in any nationalized bank.
SD/-
JUDGE PGG