Partly allowed

Gangamma v. Areef

Karnataka HC8 Dec 2022MFA/8992/2019

Case brief

AI extract

What is this about?

Appellants challenged compensation quantum and insurer liability where a tribunal exonerated the insurance company due to the rider's invalid driving license. The High Court reversed the total exoneration under Pappu v. Vinod Kumar, directing the insurer to pay enhanced compensation at first instance with liberty to recover from the owner.

What did the court decide?

Appeal allowed in part; compensation enhanced to Rs. 15,51,052/-; insurer directed to deposit amount with interest and liberty to recover from owner.

Gangamma Vs Areef — Motor Accident Claims | Karnataka HC (2022)

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1 - MFA No. 8992 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF DECEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD MISCELLANEOUS FIRST APPEAL NO.8992 OF 2019(MV-D)

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BETWEEN:

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GANGAMMA W/O LATE NAGARAJU AGED ABOUT 36 YEARS

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YOGESH @ YOGANANDA D/O LATE NAGARAJU AGED ABVOUT 14 YEARS MINOR REP BY THEIR NATURAL GUARDIAN AND MOTHER GANGAMMA BOTH R/A BHAGYANAGARA TUMAKURU TOWN TUMAKURU TALUK.

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…APPELLANTS

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(BY SRI. RAGHU R., ADVOCATE)

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AND:

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Digitally signed by C 1. AREEF MALATHI S/O FAKRUDDIN Location: AGED ABOUT 47 YEARS R/A 1ST CROSS, PAKEER PALYA High Court TUMAKURU CORPORATION of Karnataka TUMAKURU TALUK.

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THE MANAGER M/S UNITED INDIA INSURANCE CO. LTD OPP TO GOVT BUS STAND GUBBI

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MFA No. 8992 of 2019

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SERVICE ADDRESS THE UNITED INDIA INSURANCE CO LTD 1ST FLOOR, JAYADEVA COMPLEX B H ROAD, TUMAKURU

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…RESPONDENTS

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(BY SRI.K.SURESH., ADVOCATE FOR R2: NOTICE TO R1 IS SERVED BUT UNREPRESENTED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:07.06.2019 PASSED IN MVC NO.652/2017 ON THE FILE OF THE II ADDITIONAL DISTRICT JUDGE AND MACT, TUMAKURU, 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 under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short) has been filed by the claimants being aggrieved by the judgment dated 07.06.2019 passed by the Motor Accident Claims Tribunal, Tumakuru in MVC No.652/2017.

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Facts giving rise to the filing of the appeal

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briefly stated are that on 30.03.2017 at about 09.45 p.m.

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MFA No. 8992 of 2019

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on Belagumba-Hanumanthpura road, Bhagyanagara, Tumakuru Town, the deceased - Nagaraju was proceeding as a pedestrian on the left side of the road. At that time, the rider of the motorbike bearing Registration No.KA06/EF-8260 rode the same in a rash and negligent manner with high speed came from Belagumba towards Hanumanthapura side and dashed against the deceased. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries.

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The claimants filed a petition under Section 166 of the Act seeking compensation for the death of the deceased along with interest.

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On service of summons, the respondent Nos.1 and 2 have appeared through counsel and filed written statement in which the averments made in the petition were denied. It was pleaded that the petition itself is false and frivolous in the eye of law. The age, occupation and income of the deceased are denied. It was further pleaded

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MFA No. 8992 of 2019

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that the quantum of compensation claimed by the claimants is exorbitant. Hence, they sought for dismissal of the petition.

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On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants, in order to prove their case, examined claimant No.1 as PW-1 and another witness as PW-2 and got exhibited documents namely Ex.P1 to Ex.P9. On behalf of respondents, one witness was examined as RW-1 and got exhibited documents namely Ex.R1 to Ex.R5. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the deceased sustained injuries and succumbed to the injuries. The Tribunal further held that the claimants are entitled to a compensation of Rs.14,05,000/- along with interest at the rate of 6% p.a. and directed the owner to deposit the

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MFA No. 8992 of 2019

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compensation amount along with interest. Being aggrieved, this appeal has been filed.

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The learned counsel for the claimants has

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raised the following contentions:

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Firstly, the claimants claim that the deceased was aged about 46 years at the time of the accident and he was earning Rs.20,000/- per month by working as doing carpentry work. But the Tribunal is not justified in taking the monthly income of the deceased as merely as Rs.9,500/-.

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Secondly, as per the judgment of the Hon’ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LTD. –V- NANU RAM [2018 ACJ 2782], each of the claimants are entitled for compensation of Rs.44,000/- under the head of ‘loss of love and affection and consortium’.

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Thirdly, the compensation awarded by the Tribunal under the conventional heads is on the lower side.

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MFA No. 8992 of 2019

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Fourthly, the Tribunal has held that the rider of the offending vehicle was not having valid and effective driving license. Since the insured has violated the policy condition, the Tribunal has rightly fastened the liability on the owner of the offending vehicle and exonerated the Insurance Company from the liability. He further contended that since the claimant is the third party and the offending vehicle was covered with valid insurance policy, the Insurance Company has to pay the compensation to the third party at first instance with liberty to recover the same from the owner of the offending vehicle.

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In support of his contention, he has relied upon the judgment of the Hon’ble Apex Court in the case of PAPPU AND ORS. V. VINOD KUMAR LAMBA AND ANR. reported in AIR 2018 SC 592, NATIONAL INSURANCE CO. LTD. VS. SWARAN SINGH reported in (2004) 3 SCC 297 and Full Bench judgment of this Court in ‘NEW INDIA ASSURANCE

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CO. LTD. BIJAPUR vs. YALLAVVA AND ANOTHER’ ILR

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2020 Kar.2239. Hence, he prays for allowing the appeal.

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MFA No. 8992 of 2019

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On the other hand, the learned counsel for the Insurance Company has raised the following countercontentions:

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Firstly, even though the claimants claim that the deceased was earning Rs.20,000/- per month, the same is not established by the claimants by producing documents. Therefore, the Tribunal has rightly assessed the income of the deceased notionally.

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Secondly, as per Audhar Card produced by the claimants, the age of the deceased was about 46 years. The Tribunal has erred in holding that the age of the deceased as 43 years.

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Thirdly, on appreciation of oral and documentary evidence and considering the age and avocation of the deceased, the overall compensation awarded by the Tribunal is just and reasonable.

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MFA No. 8992 of 2019

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Lastly, as on the date of the accident, the rider of the offending vehicle was not holding valid and effective driving license. Since the insured has violated the policy condition, the Tribunal has rightly exonerated the Insurance Company from the liability. Hence, he prays for dismissal of the appeal.

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

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It is not in dispute that Nagaraju died in the

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road traffic accident occurred due to rash and negligent riding of the offending vehicle by its rider.

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RE:QUANTUM:

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The claimants claim that deceased was earning Rs.20,000/- per month. But they have not produced any documents to prove the income of the deceased. In the absence of proof of income, the notional income has to be assessed. As per the guidelines issued by the Karnataka

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MFA No. 8992 of 2019

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State Legal Services Authority, for the accident taken place in the year 2017, the notional income of the deceased has to be taken at Rs.11,000/- p.m.

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In view of the law laid down by the Constitution Bench of the Supreme Court in NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS [AIR 2017 SC 5157], the Tribunal has rightly added 25% of the income of the deceased towards future prospects. Therefore, to the aforesaid income, 25% has to be added on account of future prospects. Thus, the monthly income comes to Rs.13,750/-. The Tribunal has also rightly deducted 1/3^rd of the income of the deceased towards personal expenses. Thus, the monthly income of the deceased comes to Rs.9,167/-. The deceased was aged about 46 years at the time of the accident and multiplier applicable to his age group is ‘13’. Thus, the claimants are entitled to compensation of Rs.14,30,052/- (Rs.9,1671213) on account of ‘loss of dependency’.

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MFA No. 8992 of 2019

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In addition, the claimants are entitled to

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compensation of Rs.16,500/- on account of ‘loss of estate’ and compensation of Rs.16,500/- on account of ‘funeral expenses’.

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In view of the law laid down by the Supreme Court in the case of ‘MAGMA GENERAL INSURANCE’ (supra), claimant No.1, wife of the deceased is entitled for compensation of Rs.44,000/- under the head of 'loss of spousal consortium', claimant No.2, son of the deceased is entitled for compensation of Rs.44,000/- under the head of ‘loss of parental consortium’.

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Thus, the claimants are entitled to the following compensation:

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Compensation under different Heads	Amount in (Rs.)
Loss of dependency	14,30,052
Funeral expenses	16,500
Loss of estate	16,500

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MFA No. 8992 of 2019

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Loss of spousal	44,000
consortium
Loss of Parental	44,000
consortium
Total	15,51,052

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RE:LIABILITY:

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The Tribunal after considering the evidence of the parties and material available on record, has given a clear finding that as on the date of the accident, the driver of the offending vehicle was not holding valid and effective driving license. Since the insured has violated the policy condition, the Tribunal has exonerated the Insurance Company from the liability. Therefore, the Tribunal is justified in exonerating the Insurance Company from the liability. However, in view of the judgment of the Apex Court in the case of ‘ PAPPU AND OTHERS’ following the judgment of the Apex Court in the case of ‘SWARAN SINGH’ and full bench judgment of this Court in ‘YALLAVVA, (supra), since the offending vehicle was

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MFA No. 8992 of 2019

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covered with valid insurance policy, in respect of third party is concerned, the Insurance Company is liable to pay the compensation at the first instance with liberty to recover the same from the owner of the offending vehicle. Therefore, the Insurance Company has to pay the compensation to the claimants with liberty to recover the same from the owner of the offending vehicle.

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In the result, the appeal is allowed in part .

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The judgment of the Claims Tribunal is modified.

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The claimants are entitled to a total compensation of Rs.15,51,052/- as against Rs.14,05,000/- awarded by the Tribunal.

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The Insurance Company is directed to deposit enhanced compensation amount along with interest at 6% p.a. from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of

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MFA No. 8992 of 2019

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receipt of copy of this judgment with liberty to recover the same from the owner of the offending vehicle.

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Sd/JUDGE

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HA List No.: 2 Sl No.: 43

Gangamma v. Areef

Case brief

What is this about?

What did the court decide?

Gangamma v. Areef

Case brief

What is this about?

What did the court decide?

What the court decided

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