Partly allowed

Sri. Venkatramana H Kodi v. Sri. Somashekar

Karnataka HC13 Nov 2020MFA/2107/2017

Case brief

AI extract

What is this about?

This judgment allowed motor accident compensation appeals. The Court held the insurer liable despite the driver violating license restrictions regarding vehicle type. Compensation quantum was enhanced for two awards based on reapportioned income, and the award was apportioned between the father and in-laws of the deceased based on a party settlement.

What did the court decide?

The insurer was held liable. Compensation in MVC No.829/2013 was enhanced to Rs.7,03,600. Compensation in MVC No.833/2013 and 852/2013 was enhanced to Rs.19,94,736 and apportioned between the father a

Sri. Venkatramana H Kodi Vs Sri. Somashekar — Motor Accident Claims | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF NOVEMBER, 2020

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PRESENT

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THE HON’BLE MRS.JUSTICE S.SUJATHA

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AND

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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M.F.A.No.2108/2017 c/w M.F.A.No.2107/2017, M.F.A.No.2109/2017 & M.F.A.No.5842/2017 (MV)

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IN M.F.A.No.2108/2017:

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BETWEEN :

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1 . SRI VENKATRAMANA H. KODI S/O. HANUMANTHA HOBLIDAR, AGED ABOUT 71 YEARS

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2 . SMT.RASHMI V. KODI D/O VENKATRAMANA HODI, AGED ABOUT 34 YEARS

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BOTH ARE R/AT KODI OF KUNDAPURA, KASABA VILLAGE, KUNDAPURA TALUK, UDUPI DISTRICT-576 201.

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...APPELLANTS

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(BY SRI NAGARAJA HEGDE, ADV.)

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AND :

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1 . SRI SOMASHEKAR S/O RAMAKRISHNAPPA, R/O KALLIPALYA, GUBBI TALUK, TUMKUR DISTRICT-572101.

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2 . THE ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE, REP. BY NEAREST DIVISIONAL MANAGER, THE ORIENTAL INSURANCE COMPANY LTD., VISHNU PRAKASH BUILDING, 2^ND AND 3^RD FLOOR, NEAR COURT ROAD, UDUPI TALUK & DISTRICT-576 101, REP. BY ITS BRANCH MANAGER. …RESPONDENTS

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(BY SRI GIRISH KODGI, ADV. FOR R-2;

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NOTICE TO R-1 IS SERVED & UNREPRESENTED VIDE COURT ORDER DATED 13.11.2020.)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 26.12.2016 PASSED IN MVC No.832/2013 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL MACT, UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN M.F.A.No.2107/2017:

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BETWEEN :

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1 . SRI VENKATRAMANA H. KODI S/O. HANUMANTHA HOBLIDAR, AGED ABOUT 71 YEARS

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2 . SMT.RASHMI V. KODI D/O VENKATRAMANA HODI, AGED ABOUT 34 YEARS

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BOTH ARE R/AT KODI OF KUNDAPURA, KASABA VILLAGE, KUNDAPURA TALUK, UDUPI DISTRICT-576 201. ...APPELLANTS

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(BY SRI NAGARAJA HEGDE, ADV.)

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AND :

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1 . SRI SOMASHEKAR

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S/O RAMAKRISHNAPPA, R/O KALLIPALYA, GUBBI TALUK, TUMKUR DISTRICT-572101.

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(BY SRI GIRISH KODGI, ADV. FOR R-2;

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NOTICE TO R-1 IS SERVED & UNREPRESENTED VIDE COURT ORDER DATED 13.11.2020.)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 26.12.2016 PASSED IN MVC No.833/2013 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL MACT, UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN M.F.A.No.2109/2017:

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BETWEEN :

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1 . SRI VENKATRAMANA H. KODI S/O. HANUMANTHA HOBLIDAR, AGED ABOUT 71 YEARS

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2 . SMT.RASHMI V. KODI D/O VENKATRAMANA HODI, AGED ABOUT 34 YEARS

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BOTH ARE R/AT KODI OF KUNDAPURA, KASABA VILLAGE, KUNDAPURA TALUK, UDUPI DISTRICT-576 201. ...APPELLANTS

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(BY SRI NAGARAJA HEGDE, ADV.)

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AND :

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1 . SRI SOMASHEKAR S/O RAMAKRISHNAPPA, R/O KALLIPALYA, GUBBI TALUK, TUMKUR DISTRICT-572101.

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(BY SRI GIRISH KODGI, ADV. FOR R-2;

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NOTICE TO R-1 IS SERVED & UNREPRESENTED VIDE COURT ORDER DATED 13.11.2020.)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 26.12.2016 PASSED IN MVC No.829/2013 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL MACT, UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN M.F.A.No.5842/2017:

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BETWEEN :

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1 . PREMA W/O Mr. BHASKAR SHERVEGAR, AGED ABOUT 60 YEARS

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2 . R.BHASKAR SHERVEGAR S/O LATE RAMAKRISHNA SHERVEGAR, AGED ABOUT 66 YEARS,

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BOTH ARE R/AT NEAR RAM MANDIR, DEVARA MANE, MALE GANGOLLI, POST:GANGOLI KUNDAPURA TALUK-576216 ...APPELLANTS

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(BY SRI K.SHASHIKANTH PRASAD, ADV.)

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AND :

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1 . Mr. SOMASHEKHARA S/O Mr. RAMAKRISHNA, AGED ABOUT 34 YEARS, KALLIPALYA, MAJARE VILLAGE, GUBBI, TUMKUR DISTRICT-572216

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2 . THE ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICER, TUMKUR, REP BY NEAREST DIVISIONAL MANAGER THE ORIENTAL INSURANCE CO. LTD., VISHNU PRAKASH BUILDING, 2^ND & 3^RD FLOOR, NEAR COURT ROAD, UDUPI-576329

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3 . Mr. VENKATARAMANA V. KODI S/O Mr. ANUMANTHA HOBLIDAR, AGED ABOUT 71 YEARS,

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4 . RASHMI V. KODI D/O Mr. VENKATARAMANA V. KODI, RESPONDENT No.3 & 4 ARE R/AT KODI OF KUNDAPURA, KASABA VILLAGE, KUNDAPURA-576201 …RESPONDENTS

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(BY SRI O.MAHESH, ADV. FOR R-2;

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SRI NAGARAJA HEGDE, ADV. FOR R-3 & R-4; NOTICE TO R-1 IS DISPENSED WITH VIDE COURT ORDER DATED 13.11.2020.)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 26.12.2016 PASSED IN MVC No.852/2013 ON THE FILE OF THE

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ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL MACT, UDUPI, DISMISSING THE CLAIM PETITION AS NOT MAINTAINABLE.

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THESE APPEALS COMING ON FOR ORDERS, THIS DAY, S. SUJATHA, J ., DELIVERED THE FOLLOWING:

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J U D G M E N T

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Since the common and akin issues are involved,

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as the matters arise out of the same accident, they are clubbed, heard together and disposed of by this common judgment.

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The claimants preferred their respective

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petitions under Section 166 of the Motor Vehicles Act ['Act' for short] claiming compensation for the death of Smt.Vijayalaxmi, Smt.Sudha V. Kodi, Smt.Shubha V. Kodi and Master Adeesh in the road traffic accident. It was averred in the claim petitions that on 15/16.2.2013 at about 12.45 a.m. while the deceased Smt.Vijayalaxmi, Smt.Sudha V. Kodi, Smt.Shubha V. Kodi and Master Adeesh were travelling in a car bearing Reg.No.KA-03-D-2256 (offending vehicle) from Tumkur towards Shimoga on NH-206 road, near Kerekodi Halli

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of Arasikere Taluk on Arasikere-Tipatur road, due to the rash and negligent driving, the driver of the said vehicle lost control over the vehicle and dashed to the road side tree on the right side of the road. Due to the said impact, all the inmates of the car suffered fatal injuries and succumbed to the injuries.

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MFA No.2107/2017 is filed by the father and

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sister of the deceased Smt.Shubha V. Kodi arising out of MVC No.833/2013; MFA No.2108/2017 is filed by the father and sister of the deceased Kum.Sudha V. Kodi arising out of MVC No.832/2013; MFA No.2109/2017 is filed by the husband and daughter of Smt.Vijayalaxmi arising out of MVC No.829/2013 and MFA No.5842/17 has been filed by the in-laws of Smt.Shubha V. Kodi arising out of MVC No.852/2013 against the judgment and award passed by the Tribunal.

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In MVC No.829/2013 the claimants-

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husband and daughter of the deceased Smt.Vijayalaxmi

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averred that Smt.Vijayalaxmi was working as a coolie and also doing part time tailoring work. She was earning Rs.12,000/- per month and used to contribute the entire earnings to her family. The claimants were dependent on the earnings of the deceased and due to the untimely death of the victim, they have suffered loss.

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In MVC No.832/2013 it was averred that the

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deceased Kum. Sudha V. Podi was working as an Officer in Muthoot Finance and was earning Rs.15,000/- per month.

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In MVC Nos.833/2013 and 852/2013, the claimants contended that the deceased Smt. Shubha V.

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Podi was working as a clerk in Karnataka Bank, Tumkur Branch and was earning Rs.28,000/- per month.

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The claimants in the aforesaid petitions

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claimed that due to the untimely death of the deceased they have suffered pecuniary and non pecuniary loss.

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It was specifically pleaded in all the cases that the offending vehicle was insured with the Oriental Insurance Company Limited and the policy was in force at the time of the accident. The husband of Smt.Shubha V. Kodi, the deceased victim in MVC Nos.833/2013 and 852/2013 was the driver of the offending vehicle.

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In response to the service of notice issued by the Tribunal, the insurer and also the insured have filed their respective written statement.

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The respondent No.1 denying the petition averments contended that the deceased Subramanya, driver of the offending vehicle had valid Driving Licence. He hired the car on rent. The vehicle was insured

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comprehensively with the insurer and the liability, if any, has to be indemnified by the insurer.

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The insurer denying the petition averments

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contended that the driver of the car was driving the vehicle steadily and slowly. When the car reached near Kerekodi Halli, a cow suddenly crossed the road. The driver of the car, in order to avoid the accident, dashed against the tree. The insurer is not liable to indemnify the owner since the driver was not holding valid Driving Licence.

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Based on the pleadings, issues were framed and answered in terms of the reasons recorded in the impugned common judgment.

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The petition filed by the claimants in MVC No.852/2013 was dismissed as not maintainable.

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The Tribunal has awarded the compensation

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with interest @ 6% per annum from the date of petition till the date of realization as under:

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MVC No.829/2013 - Rs.4,25,000/-

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MVC No.832/2013 - Rs.16,71,500/MVC No.833/2013 - Rs.9,31,388/MVC No.853/2013 - Rs.5,00,000/-

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However the liability was fastened on the owner of the offending vehicle. Being aggrieved, the claimants are in appeal.

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Learned counsel for the claimants would

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argue that the Tribunal exonerating the insurer from the liability, saddled the liability on the owner for the reason that the driver had the licence to drive the light motor vehicle whereas he was driving transport vehicle at the time of the accident. Placing reliance on the judgment of the Hon'ble Apex Court in Mukund Dewangan V/s. Oriental Insurance Company

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Limited reported in [2017] 14 SCC 663 , learned

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counsel submitted that no endorsement to drive the transport vehicle is required for the driver possessing the Driving Licence to drive light motor vehicle. As such, the liability has to be saddled on the Insurance Company to satisfy the award.

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Learned counsel for the insurer though made an attempt to justify the order of the Tribunal on this aspect of liability, but failed, in view of the settled legal position enunciated by the Hon'ble Apex Court in

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Mukund Dewangan , supra.

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In the light of the judgment of the Hon'ble

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Apex Court in Mukund Dewangan , supra, we have no hesitation to hold that the deceased driver not possessing the licence to drive a transport vehicle is not fatal since he had a valid and effective Driving Licence to drive the light motor vehicle. There being no breach of

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policy conditions, the insurer is liable to indemnify the owner.

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Reverting to the challenge made to the

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quantum of compensation, in MFA No.2109/2017

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arising out of MVC No.829/2013, the Tribunal has determined the monthly income of the deceased Vijayalaxmi at Rs.5,000/- and deducted 50% towards her personal expenses. The deceased was aged about 57

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years at the time of accident. Having regard to the date of the accident and in the absence of cogent and corroborative evidence to establish the factum of income, referring to the chart of the Karnataka Legal Services Authority, the monthly income of the deceased could be safely re-determined at Rs.8,000/-. 10% of the same requires to be added towards future prospects. Applying the multiplier of 9 deducting 1/3^rd of the income towards personal expenses of the deceased, loss of dependency would work out to Rs.6,33,599/-

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(Rs.8000 + 800 x 12 x 9 x 2/3). The claimants are entitled to compensation under the conventional heads at Rs.70,000/- in terms of the judgment of the Hon'ble Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others ((2017)16 SCC 680) .

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Thus, the claimants are entitled to compensation of Rs.7,03,599/- with interest at 6% p.a. from the date of the petition till its realization.

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In MFA No.2108/2017 arising out of MVC No.832/2013 the claimants have not addressed any arguments on the inadequacy of compensation awarded by the Tribunal. The challenge is restricted only to the liability aspect.

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Against the judgment and award in MVC Nos. 833/2013 and 852/2013, two rival claimants have preferred appeals. MFA No.2107/2017 is filed by the father and the sister of the deceased Smt.Shubha V. Kodi and MFA No.5842/2017 has been preferred by the

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in-laws of the deceased Smt.Shubha V. Podi. The deceased Smt.Shubha V. Podi was working as a Clerk in Karnataka Bank, Tumkur Branch at the time of accident. As per Ex.P10, the Salary Slip, she was drawing the salary of Rs.18,392/-. The Tribunal deducting the allowances has determined the income at Rs.16,986/-. Further deducting 75% from the same, 25% of the amount i.e., Rs.4,247/- has been considered as the multiplicand to reckon the loss of estate and applying the multiplier of 17, has computed the loss of estate at Rs.8,66,388/- (Rs.4,247 x 12 x 17). The Tribunal further added Rs.65,000/- under the conventional heads. Thus, in all, compensation of Rs.9,31,388/- is awarded. Having found that the father-in-law and mother-in-law are not class-I heirs, in the absence of class-I heirs, viz., husband and children, it has been held that father alone would be entitled to compensation. Accordingly, dismissed the petition filed by the in-laws of the deceased Smt.Shubha V. Podi in

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MVC No.852/2013, apportioning the compensation

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amount only in favour of the father of the deceased Smt. Shubha V. Podi.

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This reasoning of the Tribunal, in our considered view, is not appropriate. Even to compute the loss of estate, the monthly income of the deceased as per Ex.P4 is to be considered, deducting the allowances apart from the tax amount, is not justifiable. Deducting Rs.200/-towards professional tax, the monthly income would be Rs.18,192/- to which 50% requires to be added towards future prospects which comes to Rs.27,288/-. Applying the multiplier of 18, deducting 1/3^rd towards the personal expenses, loss of estate would be 1/3^rd of 27,288/- i.e.,Rs.9,096/-. In terms of the judgment of the Co-ordinate Bench in

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A.Manavalagan vs A. Krishnamurthy and Others reported in ILR 2004 KAR 3268, the income to be considered for computing the loss of estate would be

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1/3^rd of Rs.27,288/-. Thus loss to estate would be

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Rs.19,64,736/- (Rs.9096 x 12 x 18). The claimants are entitled to compensation under the conventional heads at Rs.30,000/- totalling to Rs.19,94,736/- in all.

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22. Learned counsel appearing for the claimants

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in both MFA Nos.2107/17 and 5842/17 have filed a joint memo agreeing to apportion the award amount in the ratio 40:60 respectively. Accordingly, we apportion the aforesaid compensation amount of Rs.19,94,736/with interest at 6% p.a., from the date of petition till its realization, apportioning 40% to Sri.Venkataramana H. Kodi, father of Smt.Shubha V. Podi, claimant in MVC No.833/2013 and 60% to the in-laws of the deceased Smt.Shubha V. Podi, the claimants in MVC

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No.852/2013 (30% to each claimant).

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It is made clear that we have not expressed any opinion on the legal entitlement of the apportionment regarding the parents and the in-laws of

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the deceased Smt.Shubha V. Kodi in view of the settlement memo filed by the parties regarding apportionment.

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Hence, the following:

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ORDER

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i] The appeals are allowed in part.

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ii] The liability is fastened on the insurer respondent No.2-Oriental Insurance Company Limited to satisfy the award in terms of the judgment of the Hon'ble Apex Court in Mukund Dewangan V/s. Oriental Insurance Company Limited reported in [2017] 14 SCC 663 . The quantum of compensation awarded by the Tribunal in MVC No.829/2013 is modified and enhanced to Rs.7,03,600/- with interest @ 6% p.a. from the date of petition till its realization.

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iii] The total compensation awarded by the Tribunal in MVC No.833/2013 is modified and enhanced to Rs.19,94,736/with interest @ 6% p.a. from the date of petition till its realization.

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iv] The apportionment and disbursement in MVC No.829/2013 shall be in terms of the judgment and award passed by the Tribunal.

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v] The apportionment and disbursement in MVC Nos.833/2013 and 852/2013 shall be in the ratio of 40:60 in respect of the claimants in MVC Nos.833/2013 and 852/2013 (father of Smt.Shubha V. Podi– 40% and in-laws of Smt.Shubha V. Podi60%) in terms of the memo filed by the learned counsel appearing for the claimants in their respective appeals.

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vi] Draw modified award accordingly.

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vii] All pending I.As stand disposed of.

Sd/-

JUDGE

Sd/-

JUDGE