Partly allowed

The Divisional Manager, Oicl, Club Road, v. Dattatreya Bagwan Goundi @ Nayak

Karnataka HC9 Oct 2019MFA/24730/2010

Case brief

AI extract

What is this about?

High Court allowed the claimant's appeal partially and rejected the insurer's appeal. The Court enhanced compensation from Rs.3,61,000 to Rs.5,29,000 considering correct income, multiplier, and future prospects, holding the insurer liable notwithstanding the driver's invalid licence.

What did the court decide?

Appeal of claimant allowed in part; compensation enhanced to Rs. 5,29,000 with interest at 6% p.a.; appeal of insurer rejected.

The Divisional Manager, Oicl, Club Road, Vs… — Motor Accident Claims | Karnataka HC (2019)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

¶3

DATED THIS THE 9^TH DAY OF OCTOBER, 2019

¶4

BEFORE

¶5

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

¶6

MFA No.24730/2010 (MV-D) C/w. MFA No.24074/2010

¶7

In MFA No.24730/2010:

¶8

Between:

¶9

The Senior Divisional Manager, OICL, Club Road, Belgaum, Now Rep. by the Regional Manager, OICL, Regional Manager, Sumangala Complex, Opp.: Corporation, Lamington Road, Hubli.

¶10

… Appellant

¶11

(By Shri K.L. Patil & Shri S.S. Beturmath, Advocate)

¶12

And:

¶13

Dattatreya Bagawan Goundi @ Nayak, R/o.: Sangli, Now at Ugar K.H., Tq.: Athani, Dist.: Belgaum.

¶14

M/s. Mallikarjun Lingappa Chougule, R/o.: Karwar Road, Krishna Nagar, Dt. Sangli, Maharastra, (Owner of the Tempo bearing Reg. No.MH-09/Q-3295)

¶15

M/s. Megha Freight Movers Ltd., R/o.: Suyog Market, Goden Chokri,

¶16

¶17

A/o.: Harni, Dist.: Vadodar-391001 Gujarat, (Owner of Truck bearing No. GJ-6/X-7887)

¶18

The Senior Divisional Manager, The New India Insurance Co. Ltd., Club Road, Belgaum, (Insurer of Truck No.GJ-6/X-7887)

¶19

… Respondents

¶20

(By Shri Jagadish Patil, Advocate for R1; Shri Shashank Hegde & Smt.Preeti Shashank, Advocate for R4; Notice to R2 & R3 held sufficient)

¶21

This MFA is filed under Section 173(1) of M.V. Act, against the judgment and award dated 30.04.2010, passed in MVC No.2492/2006 on the file of the III-Addl. District and Member Addl. MACT, Belgaum, awarding the compensation of Rs.3,61,000/- along with interest at 6% p.a. from the date of petition till the date of deposit.

¶22

In MFA No.24074/2010:

¶23

Between:

¶24

Dattatreya Bagawan Goundi @ Nayak, Age 49 years, OccL Now nil, R/o.: Sangli, Now at Ugar K.H., Tq.: Athani, Dist.: Belgaum.

¶25

… Appellant

¶26

(By Shri Jagadish Patil, Advocate)

¶27

And:

¶28

M/s. Megha Freight Movers Ltd., Vadodara Gujarat State.

¶29

The Senior Divisional Manager,

¶30

¶31

The New India Assurance Co. Ltd., Club Road, Belgaum.

¶32

M/s.Mallikarjun Lingappa Chougale, R/o: Karnal Road, Krishnan nagar, Dist.: Sangli, Maharastra State.

¶33

The Senior Divisional Manager, The Oriental Insurance Co. Ltd., Kirloskar Road, Belgaum.

¶34

… Respondents

¶35

(By Shri Shashank Hegde & Smt.Preeti Shashank, Advocate for R2; Appeal against R1 is rejected; Shri K.L. Patil & Shri S.S. Beturmath, Advocate for R4; Respondent No.3 – served)

¶36

This MFA is filed under Section 173(1) of M.V. Act, against the judgment and award dated 30.04.2010, passed in MVC no.2492/2006 on the file of the III-Addl. District Judge and Addl. MACT at Belgaum, partly allowing the claim petition for compensation and seeking enhancement of compensation.

¶37

These appeals coming on for admission, this day, the Court delivered the following:

¶38

JUDGMENT

¶39

MFA No.24730/2010 is filed by the appellant –

¶40

Insurance Company against the judgment and award dated 30.04.2010, passed in MVC No.2492/2006 by the III-Additional District Judge and Additional MACT, Belgaum (for short “the Tribunal”), whereby the Tribunal

¶41

¶42

awarded compensation in a sum of Rs.3,61,000/- with interest at the rate of 6% p.a. from the date of petition till the date of deposit and MFA No.24074/2010 is filed by the claimant.

¶43

The brief facts of the case are that on 11.06.2006 at about 4:30 a.m. the deceased Smt.Kamalavva aged about 42 years, who was doing business of vegetable vending was traveling in Tempo bearing registration No.MH-09/Q-3295 with her goods from Sangli to Belgaum. At that time, a truck bearing registration No.GJ-6/X-7887 came from opposite direction in a high speed with rash and negligent manner and dashed to the tempo. As a result of the impact, Smt.Kamalavva suffered fatal injuries and was taken to Civil Hospital, Belgaum and from there to KHI Hospital, Ghataprabha and then to Subhashanti Poly Clinic, Gokak, wherein she succumbed to the injuries while taking treatment. Hence, the husband of the deceased Smt.Kamalavva filed the claim petition before the

¶44

¶45

Tribunal in MVC No.2492/2006 claiming compensation of Rs.10,00,000/-.

¶46

In order to establish the case, petitioner examined herself as PW1 and has also examined one more witness as PW2 and got marked 25 documents. On the other hand, RW1 was examined and got marked 14 documents. On appreciation of the oral and documentary evidence on record, the Tribunal came to the conclusion and awarded a sum of Rs.3,61,000/- with interest at 6% per annum from the date of petition till the date of deposit. Being aggrieved by the same, these appeals are filed.

¶47

Learned counsel appearing for the claimant

¶48

submits that the Tribunal has erred in taking the monthly income of the deceased at Rs.3,000/- and at the time of accident, the deceased was aged about 42 years and was earning monthly income of Rs.10,000/- by doing business of vegetable vending. He further submits that the Tribunal erred in taking the multiplier of 13 for

¶49

¶50

awarding compensation towards loss of dependency and appropriate multiplier would be 14 as per the law laid down by the Hon’ble Apex Court in the case of Sarla Verma and others vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121. He further submits that the Tribunal erred in not adding future prospectus for awarding compensation towards loss of dependency and as per the law laid down by the Hon’ble Apex Court in the case of National Insurance Co. Ltd.,

¶51

vs. Pranay Seti and others reported in AIR 2017 SC 5157 , the claimants are entitled to the future prospectus and also entitled to compensation of Rs.70,000/- towards conventional heads i.e., Rs.15,000/- towards loss of estate, Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral expenses. Hence, the learned counsel for the appellants seeks for allowing the appeal.

¶52

Per contra, the learned counsel for the

¶53

Insurance Company submits that as on the date of

¶54

¶55

accident, the driver of the offending vehicle is not having valid driving licence to the drive the offending vehicle. Therefore, the tribunal has rightly fastened the liability on the owner of the vehicle and also directed the Insurance Company to pay the amount of compensation

¶56

and recover the same from the owner of the vehicle. Hence, he sought for allowing the appeal filed by the Insurance Company.

¶57

Heard the learned counsel for the parties and perused the records.

¶58

It is not in dispute that Smt.Kamalavva wife of

¶59

the appellant had died in the accident, which occurred on 11.06.2006 due to rash and negligent driving by the driver of the tempo bearing registration No.MH-09/Q3295. At the time of accident, she was doing business of vegetable vending and earning Rs.10,000/- per month, but the claimants have not produced any documents to establish the income of the deceased. Therefore, the Tribunal has rightly assessed the income of the deceased

¶60

¶61

at Rs.3,000/-. At the time of accident, the deceased was aged about 42 years, as per the law laid down by the Hon’ble Supreme Court in the case of Sarla Verma and others (Supra) the appropriate multiplier would be 14 instead of 13 adopted by the Tribunal. Further, the Tribunal erred in not adding future prospectus for awarding compensation towards loss of dependency and as per the law laid down by the Hon’ble Apex Court in the case of Pranay Seti and others (Supra) 25% future prospects would be added to the income of the deceased to calculate the loss of dependency by deducting 1/3^rd towards his personal expenses. Hence, the loss of dependency would be Rs.4,20,000/- (Rs.3,000/- + 25% x 12 x 14 x 2/3). The compensation awarded by the Tribunal under conventional heads is on the lower side and as per the judgment of the Hon’ble Supreme Court in the case of Pranay Seti and others (Supra) , the claimants are entitled to the compensation of Rs.70,000/- towards conventional heads i.e., Rs.15,000/towards loss of estate, Rs.40,000/- towards loss of

¶62

¶63

consortium and Rs.15,000/- towards funeral expenses. Further, the compensation of Rs.39,000/- awarded by the Tribunal towards medical expenses remain intact. Therefore, the compensation awarded by the Tribunal is

¶64

reassessed as under:

¶65

1. Towards loss of dependency	Rs.4,20,000/-
2. Towards conventional heads	Rs.70,000/-
3. Towardsmedicalexpenses	Rs.39,000/-
TOTAL	Rs.5,29,000/-

¶66

In the appeal filed by the Insurance Company in MFA No.24730/2010, the only contention raised by the learned counsel for the appellant is that as on the date of accident, the driver of the offending vehicle is not having valid driving licence to drive the vehicle, the tribunal has rightly given a finding that the accident has occurred on 11.06.2006, as on that day, the driver of the offending vehicle is not having valid driving licence, therefore, the tribunal has fastened the liability on the owner of the vehicle. The Hon’ble Apex Court in the case of Ram Chandra Singh vs. Rajaram and others Reported in

¶67

10 -

¶68

AIR 2018 SC 3789 , at paragraph No.11 it is held as under:

¶69

“11. Suffice it to observe that it is well established that if the owner was aware of the fact that the licence was fake and still permitted the driver to drive the vehicle, then the insurer would stand absolved. However, the mere fact that the driving licence is fake, per se, would not absolve the insurer. Indubitably, the High Court noted that the counsel for the appellant did not dispute that the driving licence was found to be fake, but that concession by itself was not sufficient to absolve the insurer.”

¶70

In view of the above, the tribunal has rightly fastened the liability on the owner of the vehicle. Therefore, it is held by directing the appellant – Insurance Company to pay the compensation awarded in this appeal and recover the same from the owner of the vehicle.

¶71

Accordingly, the appeal in MFA

¶72

No.24074/2010 filed by the appellant-claimant is hereby allowed in part and the appeal in MFA No.24730/2010 filed by the appellant-Insurance Company is hereby

¶73

11 -

¶74

rejected. The appellant-claimant is entitled to the enhanced compensation of Rs.5,29,000/- instead of Rs.3,61,000/- awarded by the Tribunal with interest at the rate of 6% p.a. from the date of petition till the date of realization. However, in so far as apportionment and deposit is concerned, the same shall remain unaltered.

¶75

The amount in deposit shall be transmitted to the Tribunal for disbursement forthwith.

¶76

SD/JUDGE

¶77

Vnp*

The Divisional Manager, Oicl, Club Road, v. Dattatreya Bagwan Goundi @ Nayak

Case brief

What is this about?

What did the court decide?

The Divisional Manager, Oicl, Club Road, v. Dattatreya Bagwan Goundi @ Nayak

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Janimiya S/O Allauddinsab and Ors. Vs the State of Karnataka and Ors.

Nagaraj S/O Vasant Shet Vs Satish S/O Shankar Kurdekar

Meenaxi Vs Satish

Joraram S/O. Hakmaji Prajapath Vs the Divisional Controller

The General Manager Ksrtc, Vs Veerendra S/O Fakirappa Totagi

Shri. Rajayogi Enterprises Vs the Mysore Minerals Limited