Partly allowed

Shri.Lagamanna v. Shri.Prakash @ Paresh

Karnataka HC22 Oct 2019MFA/103184/2016

Case brief

AI extract

What is this about?

The Karnataka High Court enhanced compensation from Rs. 6,61,000 to Rs. 12,25,200 in a motor accident case. The court held the insurer liable as the owner failed to prove the driver was authorized, and recalculated dependency and conventional heads per Supreme Court precedents.

What did the court decide?

Compensation enhanced to Rs. 12,25,200 with interest at 6% p.a. excluding delayed period; insurer directed to deposit amount with liberty to recover from owner.

Shri.Lagamanna Vs Shri.Prakash @ Paresh — Motor Accident Claims | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 22^nd DAY OF OCTOBER, 2019

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BEFORE

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THE HON’BLE MR. JUSTICE H.T.NARENDRA PRASAD

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MFA NO.103184 OF 2016 (MV/D)

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BETWEEN

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SHRI.LAGAMANNA S/O KEMPANNA JURALI, AGE: 44 YEARS,OCC: COOLIE, R/O: MADIHALLI,NOW AT RAXI-591309, TALUKA: HUKKERI,DISTRICT: BELAGAVI.

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KUMARI KANCHANA D/O LAGAMANNA JURALI, AGE: 18 YEARS,OCC: STUDENT, R/O: MADIHALLI,NOW AT RAXI-591309, TALUKA: HUKKERI,DISTRICT: BELAGAVI.

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KUMAR GANESH S/O LAGAMANNA JURALI, AGE: 16 YEARS,OCC: STUDENT, SINCE MINOR REPRESENTED BY HIS NEXT FRIEND NATURAL FATHER SHRI.LAGAMANNA S/O KEMPANNA JURALI, AGE 44 YEARS,OCC: COOLIE, R/O: MADIHALLI,NOW AT RAXI-591309, TALUKA: HUKKERI,DISTRICT: BELAGAVI.

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... APPELLANTS

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(BY SMT SUNANDA P PATIL, ADV.)

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AND

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SHRI.PRAKASH @ PARESH BASAVANNI SANADI, AGE: 37 YEARS,OCC: AGRICULTURE,

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R/O: INGALI-591242,POST HIDKAL DAM, TALUKA: HUKKERI,DIST: BELAGAVI, (OWNER OF MOTORCYCLE NO. KA-49/J-6517)

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THE DIVISIONAL MANAGER, THE NATIONAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE,RAM DEV GALLI, BELAGAVI-590001.

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... RESPONDENTS

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(BY SRI. R B MOSHI, ADV. FOR R1; SMT.PREETHI SHASHANK, ADV. FOR R2)

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THIS MFA FILED UNDER SECTION 173(1) OF MOTOR VEHICLE ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED 25.04.2013 PASSED IN MVC.NO.1402/2012 ON THE FILE OF THE MEMBER ADDL. MACT, HUKKER, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the claimants challenging the

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judgment and award dated 25.04.2013 passed by the Addl. MACT, Hukkeri in MVC.No.1402/2012, whereby the tribunal has granted compensation of Rs.6,61,000/- with interest at 6% p.a. from the date of petition till the date of realization.

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Brief facts of the case are that on 10.04.2012

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at about 16.00 hours Mahadevi and two others were standing by the side of the road on Ghataprabha-Hukkeri near Kyaragudda after offering pooja to Goddess Karevva, in order to go to Hukkeri, at that time a motor cycle bearing registration No. KA-49/J-6517 came from Hukkeri being driven by its rider in a rash and negligent manner without following traffic rules so as to endanger human life, as a result of which, he lost control over his vehicle and dashed to Mahadevi and also Kumari Rakshita. Due to which, the deceased fell down and sustained injuries to leg, hands and other vital parts of the body resulting in death of Mahadevi on the spot and Kumari Rakshita sustaining grievous injuries. Hence, the claimants have filed a claim petition in

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MVC.No.1402/2012.

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To establish their claim, the claimant No.1 has got examined as PW.1 and got marked 7 documents as Exs.P.1 to P.7. On the other hand, the respondent

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insurance company has examined one witness as RW.1. and marked two documents as Ex.Rs.1 and 2.

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On appreciation of oral and documentary evidence, the tribunal has granted compensation of Rs.6,61,000/- with interest at 6% p.a. and fastened the liability on the owner of the offending vehicle. Being aggrieved by the same, the claimants have filed this appeal for enhancement of compensation.

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Learned counsel appearing for the appellants contended that the driver of the offending vehicle was not having valid driving licence to drive the said motor cycle. Secondly contended that the Hon’ble Apex Court in the case of Pappu and Others V/s. Vinod Kumar Lamba and another reported in 2018 ACJ 690 has held that the insurance company has to pay the compensation amount with liberty to recover the same from the owner of the vehicle. Thirdly contended that at the time of the accident, the deceased was earning Rs.6,000/- per month. The tribunal while calculating the

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income of the deceased has taken only Rs.4,500/- per month, which is on the lower side. Further, he has contended that the Hon’ble Apex Court in the case of

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National Insurance Co. Ltd. v. Pranay Sethi and others , reported in 2017 ACJ 2700 has held that under the conventional heads the claimants are entitle for Rs.70,000/-. Hence, she sought for enhancement of compensation by allowing the appeal.

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P er contra Smt.Preethi Shashank, learned

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counsel appearing for the insurance company contended that as on the date of the accident, the driver of the offending vehicle was not having valid driving licence to drive the vehicle and therefore, there is a violation of policy conditions. Therefore, the tribunal has rightly fastened the liability on the owner of the vehicle. Further, she contended that even though the claimants have claimed that deceased was earning Rs.6,000/- per month, but they have not produced any document to

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establish their claim. Therefore, she sought for dismissal of the appeal.

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Heard the learned counsel for the parties and perused the entire material on record.

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It is not in dispute that Mahadevi died due to

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accident occurred on 10.04.2012 due to rash and negligent driving by the driver of motor cycle bearing registration No. KA-49/J-6517. The tribunal has given a finding that driver of the offending vehicle was not having valid driving licence. The Hon’ble Apex Court in the case of Pappu ( supra) at para 11 has held as under:

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11. The question is: whether the fact that the offending vehicle bearing No.DIL-5955 was duly insured by respondent No.2 Insurance Company would per se make the Insurance Company liable? This Court in the case of National Insurance Co. Ltd. (supra), has noticed the defences available to the Insurance Company under Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988. The Insurance Company is entitled to take a defence that the offending vehicle was driven by an unauthorised person or the person driving the

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vehicle did not have a valid driving licence. The onus would shift on the Insurance Company only after the owner of the offending vehicle pleads and proves the basic facts within his knowledge that the driver of the offending vehicle was authorised by him to drive the vehicle and was having a valid driving licence at the relevant time. In the present case, the respondent No.1 owner of the offending vehicle merely raised a vague plea in the Written Statement that the offending vehicle DIL-5955 was being driven by a person having valid driving licence. He did not disclose the name of the driver and his other details. Besides, the respondent No.1 did not enter the witness box or examine any witness in support of this plea. The respondent No.2 Insurance Company in the Written Statement has plainly refuted that plea and also asserted that the offending vehicle was not driven by an authorised person and having valid driving licence. The respondent No.1 owner of the offending vehicle did not produce any evidence except a driving licence of one Joginder Singh, without any specific stand taken in the pleadings or in the evidence that the same Joginder Singh was, in fact, authorised to drive the vehicle in question at the relevant time. Only then would onus shift, requiring the respondent No.2 Insurance

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Company to rebut such evidence and to produce other evidence to substantiate its defence. Merely producing a valid insurance certificate in respect of the offending Truck was not enough for the respondent No.1 to make the Insurance Company liable to discharge his liability arising from rash and negligent driving by the driver of his vehicle. The Insurance Company can be fastened with the liability on the basis of a valid insurance policy only after the basic facts are pleaded and established by the owner of the offending vehicle - that the vehicle was not only duly insured but also that it was driven by an authorised person having a valid driving licence. Without disclosing the name of the driver in the Written Statement or producing any evidence to substantiate the fact that the copy of the driving licence produced in support was of a person who, in fact, was authorised to drive the offending vehicle at the relevant time, the owner of the vehicle cannot be said to have extricated himself from his liability. The Insurance Company would become liable only after such foundational facts are pleaded and proved by the owner of the offending vehicle.

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In view of the above, the tribunal was justified in

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fastening the liability on the owner of the vehicle. The insurance company has to pay the compensation amount

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awarded by the tribunal with liberty to recover the same

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from the owner of the offending vehicle.

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It is the specific contention of the claimants

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that, at the time of the accident, the deceased was earning Rs.6,000/- per month, but they have not produced any document to establish the claim. Under this circumstance, the tribunal was left with no other option but to assess the income of the deceased notionally. While assessing the notional income, the tribunal has taken income of the deceased as Rs.4,500/per month, which is on the lower side. This court in catena of decisions, while calculating the notional income has considered, the chart prepared by the Lok Adalath. As per the chart, for the accident occurred in the year 2012, the notional income has been fixed as Rs.6,500/per month. In the case on hand, the specific pleading of the claimants is that the deceased was earning only Rs.6,000/- per month. Accordingly, notional income of the deceased has been taken as Rs.6,000/- per month.

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The Hon’ble Apex Court in the case of Pranay Sethi (supra) has held that if the deceased was self employed or was on a fixed salary, an addition of 40% of the established income should be taken, if the deceased was aged about 40 years. Therefore, 40% of the income has to be added towards future prospects of the deceased 40% of Rs.6,000/- comes to Rs.2,400/-. Therefore, total income of the deceased comes to Rs.6,000/-+Rs.2,400/=Rs.8,400/-. There are three dependents. Hence 1/3^rd is to be deducted towards personal and living expenses of the deceased and the Tribunal has adopted appropriate multiplier of 16 to calculate the loss of dependency. Hence, loss of dependency would be recalculated as Rs.8,400/- x 12 x 16 x 2/3 = Rs.10,75,200/-. Hence, Rs.10,75,200/- has to be awarded towards loss of dependency.

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The Hon’ble Apex Court in the case of Pranay Sethi (supra) has held that under conventional heads like loss of consortium, loss of estate and funeral

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expenses should be awarded Rs.40,000/-, Rs.15,000/-, Rs.15,000/- respectively. Accordingly, compensation of Rs.40,000/has to be awarded towards loss of consortium and Rs.15,000/- has to be awarded towards funeral expenses and Rs.15,000/- towards loss of estate.

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The Hon’ble Apex Court in the case of Magma General insurance Co. Ltd. V/S. Nanu Ram and another , reported in 2018 ACJ 2782 , if children lost their mother at young age, they are entitled for Rs.40,000/- each under the head of love and affection.

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Accordingly, the appeal is allowed in part, the judgment and award passed by the tribunal is modified as under:

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1	Loss of dependency	Rs.10,75,200/-
2	Love and affection	Rs.80,000/-
3	Loss of consortium	Rs.40,000/-
4	Funeral Expenses	Rs.15,000/-
5	Loss of estate	Rs.15,000/-
	Total	Rs.12,25,200/-

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Therefore, the claimants are entitled for total compensation of Rs.12,25,200/- with interest at 6% p.a. This court vide order dated 13.02.2019 has allowed the application for condonation of delay subject to condition that the claimants will not be entitled for the interest for the delayed period i.e. for 1162 days. Accordingly, the claimants are not entitled for interest for delayed period of 1162 days.

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The insurance company is directed to deposit the entire compensation amount within a period of six weeks from the date of receipt of copy of this order with liberty to recover the same from the owner of the offending vehicle.

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15. Apportionment, deposit and disbursement of

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the compensation amount shall be made in terms of the judgment and award of the Tribunal.

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Sd/JUDGE

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Shri.Lagamanna v. Shri.Prakash @ Paresh

Case brief

What is this about?

What did the court decide?

Shri.Lagamanna v. Shri.Prakash @ Paresh

Case brief

What is this about?

What did the court decide?

What the court decided

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