Karnataka High Court
The Iffco Tokio General Insurance ... vs Jayasingarao S/Lo Vittalrao Kadam on 25 April, 2025
-1-
NC: 2025:KHC-D:7074
MFA No. 100044 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF APRIL, 2025
BEFORE
THE HON'BLE MR. JUSTICE UMESH M ADIGA
M.F.A. NO. 100044 OF 2017 (MV-D)
BETWEEN
THE IFFCO TOKIO GENERAL INSURANCE COMPANY LIMITED,
SUDEV PLAZA, 3RD FLOOR, OPP: LAXMI TEMPLE,
DAJIBANPET, HUBBALLI, DIST. DHARWAD.
NOW REPRESENTED BY ITS AUTHORIZED SIGNATORY,
IFFCO-TOKIO GENERAL INSURANCE COMPANY,
CUSTOMER SERVICE CENTER, SHRI. SHANTI TOWERS,
5TH FLOOR, 3RD MAIN, 141, EAST OF N.G.E.F. LAYOUT,
KASTURINAGAR, BENGALURU-560043.
...APPELLANT
(BY SRI. S. K. KAYAKAMATH, ADVOCATE)
AND
1. JAYASINGARAO S/O. VITTALRAO KADAM,
AGE 55 YEARS, OCC: AGRICULTURE,
R/O. MIRJI, TALUK: MUDHOL, NOW RESIDING
AT: GODACHI, TALUK: RAMDURG, DIST. BELAGAVI.
Digitally signed
by VISHAL 2. ANIL S/O. NARAYANATAV INDULAKAR,
NINGAPPA
PATTIHAL AGE MAJOR, OCC: BUSINESS,
Location: High
Court of R/O. MIRJI, TALUK: MUDHOL, DIST. BAGALKOT.
Karnataka,
Dharwad Bench. (OWNER OF PIAGGIO APE PASSENGER RICKSHAW).
...RESPONDENTS
(BY SRI. GURURAJ R. TURAMARI, ADVOCATE FOR R1;
NOTICE TO R2 SERVED THROUGH PAPER PUBLICATION 07.10.2021)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF
M.V. ACT, PRAYING TO SETTING ASIDE THE JUDGMENT AND AWARD
DATED 07.10.2016 PASSED BY THE SENIOR CIVIL JUDGE AND ADDL.
M.A.C.T, RAMDURG SITTING AT SAUNDATTI, IN MVC NO.926/2014
WITH COST IN THE INTEREST OF JUSTICE AND EQUITY.
THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN HEARD
AND RESERVED ON 19.03.2025 FOR JUDGMENT AND COMING ON
FOR PRONOUNCEMENT, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
-2-
NC: 2025:KHC-D:7074
MFA No. 100044 of 2017
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) This appeal is filed by the respondent No.2-insurer against the judgment and award dated 07.10.2016 passed by the learned Senior Civil Judge & Addl. M.A.C.T., Ramadurg sitting at Saundatti (for short, the 'Tribunal') in M.V.C. No. 926/2014.
Parties are referred to as per their ranking before the Tribunal.
2. It is the case of the claimant that deceased Pramilabai Abasab Ingale was the elder sister of claimant; she met with an accident on 19.06.2013 while she was going in a PIAGGIO Ape Passenger Rickshaw bearing Reg. No. KA-48-5287 (for short, the 'offending vehicle') due to rash and negligent driving of the said vehicle by its driver on Yadawad-Mudhol road, near Roogi cross; she sustained fatal injuries; on the way to the hospital she succumbed to the injuries. It is further contended that claimant is her own brother and both of them were residing together. -3-
NC: 2025:KHC-D:7074 MFA No. 100044 of 2017 She had no legal heri of Class-1 and she was an agriculturist earning Rs. 12 lakhs per annum. She was contributing her income to the family. With these reasons claimant prayed for awarding compensation.
3. Though respondent No.1 appeared before the Tribunal but did not file objections.
4. Respondent No.2-insurer filed its objections denying the averments in the claim petition and it has further contended that its liability is restricted to terms and conditions of policy of insurance. It has further contended that owner of vehicle has violated the terms and conditions of the policy of insurance and hence it is not liable to indemnify the owner. With these reasons prayed to dismiss the claim petition.
5. The Tribunal has framed necessary issues and recorded the evidence of both sides. Claimant examined one witness as PW1 and got marked 11 documents as Exs.P.1 to P.11. Respondent No.2 examined one witness -4- NC: 2025:KHC-D:7074 MFA No. 100044 of 2017 as RW1 and marked two documents as Exs.R.1 and R.2. The Tribunal after hearing arguments of both sides and appreciating the pleadings and evidence on record, held that accident occurred due to negligence of driver of the auto rickshaw and awarded total compensation of Rs.13,38,000/- under the following heads.
1. Towards loss of dependency and 11,88,000.00 expectancy
2. Towards loss of estate, love and 1,50,000.00 affection, transportation of dead body and funeral expenses Total 13,38,000.00
6. Respondent No.2 challenged the said judgment and award on the grounds that claimant was not dependent upon earnings of the deceased and he is a Class-2 heir as well as he has independent source of income. Therefore he was not entitled to claim compensation. Second ground is that the said vehicle was plying without permit at the spot of the accident and the driver of the offending vehicle had no valid and effective driving licence to drive the said class of vehicle. In addition to that there were 9- 10 passengers in the said auto rickshaw, exceeding its -5- NC: 2025:KHC-D:7074 MFA No. 100044 of 2017 permitted limit. On the basis of these grounds the respondent No.2 prayed to allow the appeal by setting aside the impugned judgment.
7. I have heard arguments of both sides.
8. The fact of accident and the manner in which the accident had taken place, are not in dispute. It is also not in dispute that deceased Smt. Pramilabai who was the elder sister of claimant, sustained grievous injuries in the vehicle accident and died due to the said injuries. Therefore there is no need to re-consider the said findings of the Tribunal.
9. The main ground urged by the learned counsel for the appellant/respondent No.2 is that claimant was not at all dependent upon the earnings of the deceased. Therefore he is not entitled for claiming compensation. The learned counsel for the claimant vehemently contends that claimant as well as the deceased were residing in the same house and whatever she was earning used to -6- NC: 2025:KHC-D:7074 MFA No. 100044 of 2017 contribute to the maintenance of the family; she had agricultural lands as well as house property; she has gifted said property in favour of the claimant. These facts are not disputed and registered gift deed has been placed on record by the claimant. It shows that they were residing together and she had love and affection towards the claimant. Under these circumstances, he is the legal heir and entitled to claim compensation on all the heads. In support of his contention he has relied on the judgment of the Apex Court in the case of Smt. Manjuri Bera Vs. The Oriental Insurance Company Ltd. And Anr. Reported in (2007) 10 SCC 643 wherein it is held that under Section 140 of the M.V. Act a married daughter who was not dependent upon the income of her father, is also entitled to claim compensation.
The learned counsel for the insurer in his reply submits that even if it is considered that claimant is legal heir and dependent, in that event, how the compensation is to be assessed, is held in the case of A.Manavalagan -7- NC: 2025:KHC-D:7074 MFA No. 100044 of 2017 Vs. A. Krishnamurthy and Ors. reported in ILR 2004 KAR 3268 and submits that the amount of compensation awarded by the Tribunal is not in accordance with the above said law. Therefore prays to interfere with the said findings.
10. I have anxiously considered the contentions of both the parties as well as the materials placed on record. Undisputedly, deceased was the elder sister of claimant and both were residing together in Roogi village, Mudhol Taluk. Claimant was the complainant to the Police and in the said complaint also he has mentioned that deceased was residing with him. Claimant has also produced original gift deed before the Tribunal to show that deceased had executed registered gift deed during her lifetime and donated all her properties in favour of claimant. Though the original gift deed is not marked but its true copy is marked as Ex.P.8. He has also produced true copy of election card at Ex.P.9 and APL ration card at Ex.P.11.
-8-
NC: 2025:KHC-D:7074 MFA No. 100044 of 2017
11. In Exs.P.10 and P.11, i.e., copy of the election identity card, address of both the claimant as well as the deceased is one and the same and even in the ration card name of deceased as well as claimant is mentioned as residing together. In addition to that, PW1 in his evidence has stated all these facts. They are sufficient to believe and accept the case of the claimant that deceased was residing with the claimant and they were inter dependent. In the thorough cross examination of PW1 nothing was brought to believe or discard the said evidence. Therefore the Tribunal rightly held that deceased was a dependent and both deceased as well as claimant were inter dependent. It is quite natural that one of the member of the family who is earning income, would contribute for expenses of the family and there is nothing wrong in accepting the claimant as dependent on the deceased. He may not be completely dependent upon the earnings of the deceased but whatever she used to earn, she was -9- NC: 2025:KHC-D:7074 MFA No. 100044 of 2017 contributing to the family. The said finding does not call for interference.
12. In the case of Smt. Manjuri Bera (stated supra) referred by the learned counsel for the claimant, is aptly applicable to the facts of the present case. In that case also a married daughter residing with her father filed claim petition for the death of her father. Insurer disputed the said fact and it had contended that she was not dependent upon earning of the deceased. Therefore she is not entitled to claim compensation. The said contention of the insurer was rejected by the Court and held that insurer is liable to pay compensation. The Court further held that though she is a married daughter residing with her husband but she is to be considered as a dependent. The principle of law laid down in the said judgment is applicable to the facts of the present case.
13. The judgment relied by the learned counsel for the insurer in the case of A.Manavalagan (stated supra) cannot be considered in this case for assessment of the
- 10 -
NC: 2025:KHC-D:7074 MFA No. 100044 of 2017 compensation. In that case, claimants were not completely dependent upon the earning of the deceased, but in this case both the claimant as well as the deceased were inter dependent and residing together. These facts are proved by producing documents including the ration card. Therefore he is to be considered as dependent on the earning of the deceased. Hence he is entitled for compensation and is to be calculated in accordance with the Rules.
14. It is the contention of the learned counsel for the insurer that the amount of compensation awarded is on the higher side. The Tribunal has taken the income of the deceased as Rs.18,000/- per month, which is exorbitant. Therefore it is necessary to re-assess the income and award reasonable amount of compensation. There is some weightage in the submission of the learned counsel for the appellant. The Tribunal on the basis of the lands standing in the name of deceased, held that she was earning Rs.600/- per day as income and assessed monthly income
- 11 -
NC: 2025:KHC-D:7074 MFA No. 100044 of 2017 at the rate of Rs.18,000/-. The said reasons are incorrect. According to the claimant, she had executed the gift deed during her lifetime, i.e., about an year prior to the accident, on 06.11.2012 and handed over possession of property and hence as on the date of her death she was not the owner of said properties and income of said properties cannot be taken into account to assess the income of deceased.
15. The deceased as on the date of accident was stated to be hale and healthy, aged about 55 years and doing agriculture as well as household work. Considering these facts, notional income of the deceased has to be assessed. Karnataka State Legal Services Authority has prepared a chart of notional income. As per the said chart notional income of is Rs.7,000/- per month and same could be applied to the facts of the present case. 10% of the said income has to be added towards future prospects and undisputedly the multiplier applicable in this case is '11'.
- 12 -
NC: 2025:KHC-D:7074 MFA No. 100044 of 2017
16. Deceased had no Class-1 legal heir she had only one Class-2 heir, i.e., her brother. Therefore the Tribunal rightly deducted 50% of her income towards personal expenses. On the basis of the said figures, the compensation under the head loss of dependency has to be determined.
17. As per the law laid down in the case of National Insurance Co. Ltd. Vs. Pranay Sethi & Others reported in (2017) 16 SCC 680 and Magma General Insurance Company Limited Vs. Nanu Ram alias Chuhru Ram and others reported in (2019) 18 SCC 130, compensation under the conventional heads has to be awarded. Accordingly, following amount of compensation is awarded.
1. Loss of dependency 5,08,200.00 (7,000/- + 10% x 11 x 12 x ½)
2. Loss of consortium 40,000.00
3. Loss of estate 15,000.00
4. Funeral expenses 15,000.00 Total 5,78,200.00 Rounded of to 5,78,000.00
- 13 -
NC: 2025:KHC-D:7074 MFA No. 100044 of 2017
18. The appellant further contends that the auto rickshaw traveled beyond the permitted limit and permission was given to it to drive the said vehicle within Mudhol town but the accident had taken place about 25 kms away from the permitted limit. Therefore, respondent insurer is not liable to pay compensation. It is further contended that driver of the auto rickshaw had no valid and effective driving licence and he was chargesheeted for violation of the Motor vehicles Act, i.e., Rule 3 r/w Sec. 181 of M.V. Act. He was also carrying about 8-9 passengers in the said auto rickshaw thereby it violated the permit conditions. For the said reasons it is not liable to pay compensation.
19. Respondent-insurer produced endorsement given by the RTO, Jamakhandi. It shows that permit was given to the auto rickshaw bearing No. KA-48-5287 to ply the vehicle within the radius of 10 kms of TMC, Mudhol and the said permit was valid from 28.11.2012 to 27.11.2017. As per Ex.P.7 accident had taken place within the
- 14 -
NC: 2025:KHC-D:7074 MFA No. 100044 of 2017 jurisdiction of Lokapur Police Station at Roogi Cross. It indicates that the said auto rickshaw traveled beyond the permitted limit.
20. Ex.P.7 also discloses that he was driving the vehicle without having valid and effective driving licence. Therefore he was chargesheeted for the offence punishable u/S 3 r/w Rule 181 of M.V. Act. Though respondent No.1 appeared, did not produce his driving licence to show that he had valid and effective driving licence to drive the said class of vehicle at the time of accident. RW1 gave evidence and produced documents in this regard, thereby it is proved that the said vehicle traveled beyond the permitted limit as well as the driver of the auto rickshaw had no valid and effective driving licence at the time of accident.
21. It is contended that respondent No.2-insurer that about 8-10 persons were traveling in the said auto rickshaw at the time of accident which is beyond the permitted limit. Respondent-insurer has produced copy of
- 15 -
NC: 2025:KHC-D:7074 MFA No. 100044 of 2017 the register extract of RC of vehicle No. KA-48-5287 which is standing in the name of respondent No.1. It shows that vehicle capacity was '4', i.e., '3+1'. Policy of insurance, i.e., Ex.R.2, also shows that seating capacity of the said vehicle is '3 + driver'.
22. In Ex.P.7 there is reference about the injuries to four persons but it does not reveal that there were 7-8 persons traveling in the said auto rickshaw. Insurer did not examine any of the passengers in the said auto rickshaw to show that at the time of accident there were 7-8 passengers in the said auto rickshaw. Therefore there is no reliable evidence to show that about 7-8 persons were traveling in the said auto rickshaw at the time of accident and the said contention is not proved.
23. However, owner of the said vehicle violated the terms and conditions of the policy of insurance, i.e., travelled beyond the permitted limit as well as the vehicle was driven by a person, who had no valid licence to drive the said class of vehicle. Admittedly said vehicle was
- 16 -
NC: 2025:KHC-D:7074 MFA No. 100044 of 2017 insured with respondent No.2 and it was in force and hence for the payment of compensation to third party, the concerned insurer is liable to pay compensation. However, it is at liberty to recover the same from the owner of the vehicle in an appropriate proceeding, wherein it could prove that the said vehicle was driven by a driver who had no valid and effective driving licence so also it traveled beyond the permitted limit.
24. Full Bench of this Court in the case of New India Assurance Co. Ltd. Vs. Yallavva and another reported in AIR ONLINE 2020 KAR 986 held that in such event the insurer is liable to pay compensation and it is at liberty to recover it from the owner of the vehicle. The Tribunal did not consider these facts and erroneously held that insurer shall pay compensation. Therefore, said finding of liability held by the Tribunal needs interference.
For the aforesaid reasons I pass the following order.
ORDER
(i) Appeal is allowed in part;
- 17 -
NC: 2025:KHC-D:7074
MFA No. 100044 of 2017
(ii) Judgment and award dated 07.10.2016
passed by the learned Senior Civil Judge & Addl. M.A.C.T., Ramadurg sitting at Saundatti in M.V.C. No. 926/2014 is modified.
(iii) Claimant is entitled for total compensation of Rs.5,78,000/- as against Rs.13,38,000/- awarded by the Tribunal, with interest at the rate of 9% p.a. from the date of claim petition till its realization.
(iv) Respondent No.2-insurer shall pay the said amount within a period of six weeks from the date of award and it is at liberty to recover the said amount from the owner of the offending vehicle, i.e., respondent No.1, in an appropriate proceedings.
- 18 -
NC: 2025:KHC-D:7074 MFA No. 100044 of 2017 Remaining portion of the judgment and award, i.e., as regards release and deposit of the compensation amount, is not disturbed.
Send back the trial Court records with a copy of judgment.
Sd/-
(UMESH M ADIGA) JUDGE bvv /ct-an List No.: 2 Sl No.: 2