Partly allowed

Smt Minati Majhi v. Smt Kamalkeshwari

Karnataka HC6 Aug 2021MFA.CROB/67/2015

Case brief

AI extract

What is this about?

The High Court of Karnataka partially allowed appeals filed by an insurance company and a motor accidents claim petitioner. While holding the insurer liable despite the driver's lack of a valid license, the court enhanced the compensation awarded to the deceased's family from Rs.6,27,000 to Rs.11,37,200.

What did the court decide?

Compensation enhanced to Rs.11,37,200 with 6% interest from claim date; liability confirmed on insurer with right to recover from vehicle owner.

Smt Minati Majhi Vs Smt Kamalkeshwari — Insurance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6^TH DAY OF AUGUST, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE M.I.ARUN

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MFA NO.11405 OF 2011 (MV) C/W MFA CROB. NO.67 OF 2015

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IN MFA NO.11405 OF 2011

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BETWEEN :

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ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED, NO.89, SVR COMPLEX HOSUR ROAD, MADIWALA BANGALORE – 560 068

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… APPELLANT

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(BY SRI. D. MANJUNATH, ADV.)

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AND :

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SMT. MINATI MAJHI W/O LATE SURESH MAJHI AGED ABOUT 30 YEARS

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PINTO MAJHI

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S/O LATE SURESH MAJHI AGED ABOUT 15 YEARS

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SUMI MAJHI D/O LATE SURESH MAJHI AGED ABOUT 13 YEARS

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RINTUI

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S/O LATE SURESH MAJHI AGED ABOUT 11 YEARS

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SMT. BANQBIHARI MAJHI W.O SANYASI MAJHI AGED ABOUT 77 YEARS

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ALL ARE R/O KATISAHI VILLAGE BAUNSADIHA TOWN, BHOGRAI POLICE STATION, BALASORE DISTRICT, ORISSA STATE

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SINCE RESPONDENT NOS. 2, 3 AND 4 ARE MINORS REP. BY THEIR MOTHER NATURAL GUARDIAN SMT. MINATI MAHJI

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SMT. KAMALKESHWARI W/O RADHAKRISHNAN ASHIRWAD, NEAR KSHD MANAKKATTUPARAMBII MEDICAL COLLEGE POST CALICUT, KERALA STATE … RESPONDENTS

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(BY SRI. C.PUTTASWAMY, ADV. FOR R1 TO R5; VIDE ORDER DATED 03.09.2015 APPEAL AGAINST R6 STANDS DISMISSED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 21.12.2010 PASSED IN MVC 7937/2009 ON THE FILE OF XVI ADDITIONAL, JUDGE, COURT OF SMALL CAUSES, MACT, BANGALORE, AWARDING A COMPENSATION OF RS.6,27,000/- WITH INTEREST @ 6%P.A., FROM THE DATE OF PETITION TILL REALISATION.

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IN MFA CROB. NO.67 OF 2015

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BETWEEN :

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SMT. MINATI MAJHI W/O LATE SURESH MAJHI AGED ABOUT 34 YEARS

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2. MAS. PINTO MAJHI S/O LATE SURESH MAJHI AGED ABOUT 18 YEARS
3. KUM. SUMI MAJHI D/O LATE SURESH MAJHI AGED ABOUT 17 YEARS
4. MAS. RINTU S/O LATE SURESH MAJHI AGED ABOUT 15 YEARS
5. SMT. BANQBIHARIMAJHI W/O LATE SANYASI MAJHI AGED ABOUT 81 YEARS
SINCE 2, 3 & 4 OBJECTORS ARE MINORS REP. BY THEIR MOTHER NATURAL GUARDIAN SMT. MINATI MAJHI
ALL ARE R/O KATISAHI VILLAGE BAUNSADIHA TOWN, BHOGRAJ POLICE STATION, BALSORE DISTRICT, ORISSA STATE … CROSS OBJECTORS
(BY SRI.PUTTASWAMY C., ADVOCATE) AND :

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SMT. KAMALKESHWARI W/O RADHAKRISHNAN ASHIRWAD, NEAR KSHD MANAKKATTUPARAMBIL MEDICAL COLLEGE POST CALICUT, KERALA STATE

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ICICI LOMBARD GENERAL INSURANCE CO., LTD., LEGAL OFFICE, NO.89,

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SVR COMPLEX, HOSUR ROAD MADIWALA, BANGALORE – 560 055 REP. BY ITS MANAGER

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… RESPONDENTS

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(BY SRI.D. MANJUNATH, ADV. FOR R2)

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THIS MFA CROB IS FILED UNDER ORDER 41, RULE 22 OF CPC., AGAINST THE JUDGMENT AND AWARD DATED 21.12.2010 PASSED IN MVC NO.7937/2009 ON THE FILE OF THE 16^TH ADDITIONAL JUDGE, MACT, BENGALURU CITY, PARTLY ALLOWING THE CLAIM PETITION FOR COMPESNATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MFA AND MFA CROB. COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Aggrieved by the judgment and award dated 21.12.2010 passed in M.V.C.No.7937/2009 by the XVI Additional Judge, MACT, Bengaluru, (for short ‘the Tribunal’), the 2^nd respondent – Insurance Company therein has preferred M.F.A.No.11405/2011 and the petitioners therein have preferred M.F.A.Crob.No.67/2015

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For the sake of convenience, the parties are

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referred to herein as per their status before the Tribunal.

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The brief facts of the case are that on 03.02.2008

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at about 1.00 p.m., the deceased Suresh Mahji was walking on the side of B.M.Road, near Omkar Dabha, Kaniminke village, Bidadi Hobli, Bengaluru. At that time, a Scorpio Car bearing Reg.No.KL-11-V-9021 being driven in a rash and negligent manner dashed against the said Suresh Mahji and consequently, he expired. The petitioner No.1 is the wife of the deceased, petitioner Nos.2, 3 and 4 are the minor children of the deceased and petitioner No.5 is the mother of the deceased. Respondent No.1 is the owner of the offending vehicle. Respondent No.2 is the Insurance Company with whom the offending vehicle was duly insured. Hence petitioners preferred MVC No.7937/2009 and claimed a compensation of Rs.10,00,000/-.

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Upon service of notice, the respondent No.1 has not appeared and she was placed exparte. Respondent No.2 – Insurance Company has appeared through its counsel and has filed written statement and has contested the case.

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In order to prove their case, petitioners examined

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PW-1 and PW-2 and got marked Ex.P.1 to P.12. Respondent No.2 – Insurance Company has examined three witnesses and got marked Ex.R.1 to R.7.

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The Tribunal based on the pleadings and evidence let in, has awarded a compensation of Rs.6,27,000/- with interest at the rate of 6% per annum from the date of petition till realization and has made the respondent Nos.1 and 2 jointly and severally liable to pay compensation with costs and interest.

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The Insurance Company on the ground that

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though the offending Car was duly insured with it, it was being driven by one Joseph, who did not posses valid and effective driving licence at the time of the accident and has contended that it is not liable to pay the compensation and hence, being aggrieved by the judgment and award of the Tribunal, it has preferred M.F.A.No.11405/2011 and the petitioners not satisfied by the quantum of compensation, have preferred M.F.A.Crob.No.67/2015.

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The questions that arises for consideration in these appeals are whether the Insurance Company has been able to establish that the offending vehicle was not driven by a person having valid driving licence at the time of the accident and if yes, can they be absolved from paying the compensation and whether the compensation awarded by the Tribunal is adequate?

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The Insurance Company has relied upon the deposition of RW-1 – Legal Manager of the Insurance Company, who has stated that the person who has caused the accident is one Joseph and not Y.Ramesh as contended by the petitioners. Further, they have also relied upon the evidence of RW-3, who was the Circle Inspector of Ramanagar police station under whose jurisdiction the accident took place. He has stated that one Joseph was driving the Scorpio at the time of the accident and there was no driving license for him. He has further stated that in this regard, criminal case has been filed and that respondent No.2 has falsely projected one Y.Ramesh to be the driver of the offending vehicle.

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Based on the said submission, it is contended by

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the Insurance Company that respondent No.1, who is the owner of the vehicle has tried to screen the actual driver and depicted one Y.Ramesh as the driver of the offending vehicle as the said Y.Ramesh had valid and effective driving licence and the person who caused the accident did not have a valid driving licence.

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Petitioners also have not been able to prove as to who was driving the vehicle at the time of the accident except the fact that the offending vehicle caused the accident and it belong to respondent No.1.

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Respondent No.1 remained absent before the Tribunal as well as before this Court. Thus, based upon the evidence adduced by the respondent No.2 – Insurance Company on balance of probabilities, it has to be concluded that the vehicle involved in the accident was being driven by one Joseph, who did not have valid driving licence. However, that does not absolve the liability on the Insurance Company. As per the decision of Hon’ble

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Supreme Court in the case of Pappu and others vs. Vinod Kumar Lamba and another reported in AIR

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2018 SC 592 , once the vehicle is duly insured and it is involved in an accident even though driven by a person without valid driving licence, Insurance Company becomes liable. However, they can recover the amounts from the owner of the vehicle.

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The learned counsel appearing for Insurance Company fairly submits that pay and recovery may be ordered as against Insurance Company in this case.

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His submission is placed on record.

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Regarding quantum of compensation, the

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accident happened in the year 2008. The income of the deceased is established at Rs.4,500/- per month. Based upon the evidence adduced by the petitioners, the deceased was aged about 34 years at the time of the accident. As per the decision laid down by the Hon’ble Apex Court in National Insurance Co.Ltd. v. Pranay Sethi (2017) 16 SCC 680, 40% of the income needs to

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be added towards future prospects. Given the age of the deceased, as per the law laid down by the Hon’ble Supreme Court in Sarla Verma vs. D.T.C [2009(6) SCC 121] , a multiplier of 16 is applicable. Further, the deceased has five dependants and hence, 1/4^th of the income has to be deducted towards his personal expenses. Thus, on the count of loss of dependency, the petitioners are together entitled to a sum of Rs.9,07,200/- (4,500 +40% x 12 x 16 x ¾).

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Further, the petitioners being the wife, children and mother of the deceased, as per the law laid down by the Hon’ble Supreme Court in New India Assurance Co.Ltd. v. Somwati [(2020)9 SCC 644] , they are entitled to a sum of Rs.40,000/- each towards loss of consortium. Thus, they are totally entitled to a sum of Rs.2,00,000/- towards loss of consortium. The petitioners are also entitled to a sum of Rs.30,000/- towards loss of estate and funeral expenses. Thus, in total, the petitioners are entitled to a sum of Rs.11,37,200/- as against Rs.6,27,000/- awarded by the Tribunal. The enhanced compensation shall carry

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interest @ 6% p.a. from the date of petition till its realization. The respondent No.2 – Insurance Company is liable to compensate the petitioners and it is entitled to recover the same from the respondent No.1 – owner of the offending vehicle. Hence, the following:-

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ORDER

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i) M.F.A.No.11405/2011 and M.F.A.

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Crob.No.67/2015 are partly allowed.

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ii) The petitioners are awarded a sum of Rs.11,37,200/as compensation as against Rs.6,27,000/- awarded by the Tribunal.

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iii) The enhanced compensation shall carry interest at

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the rate of 6% per annum from the date of claim petition till realization.

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iv)The enhanced compensation along with due interest shall be disbursed as per the terms stipulated by the Tribunal.

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v) Deposit of amount if any, before this Court shall be transmitted to the Tribunal.

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vi)Trial Court records should be sent back forthwith.

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vii) No order to costs.

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Sd/JUDGE

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MH/-

Smt Minati Majhi v. Smt Kamalkeshwari

Case brief

What is this about?

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Smt Minati Majhi v. Smt Kamalkeshwari

Case brief

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