Partly allowed

Shri Gireppa S/O Pundalikappa Kolekar v. Smt. Laxmi @ Laxmavva

Karnataka HC10 Oct 2023MFA/100665/2018

Case brief

AI extract

What is this about?

The High Court modified a motor accident claim award. It held that the insurance company must pay compensation first due to the driver's licenselessness, then recover from the owner. The court enhanced the compensation from 12.72 lakhs to 21.27 lakhs based on Supreme Court precedents.

What did the court decide?

Total compensation enhanced to Rs. 21,27,250 with 6% interest. Insurance company to pay first and recover from owner. Appeal and cross-objection disposed with relief.

Shri Gireppa S/O Pundalikappa Kolekar Vs Smt. Laxmi @ Laxmavva — Insurance | Karnataka HC (2023)

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NC: 2023:KHC-D:12405 MFA No. 100665 of 2018 C/W MFA.CROB No. 100053 of 2022

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 10^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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MISCELLANEOUS FIRST APPEAL NO.100665/2018(MV) C/W MFA CROSS OBJ NO. 100053 OF 2022(MV)

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IN MFA.NO.100665/2018:

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BETWEEN:

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SHRI GIREPPA S/O. PUNDALIKAPPA KOLEKAR, AGE: 54 YEARS, OCC: COOLIE, R/O: MURAGOD, TAL: SOUNDATTI AND DIST: BELAGAVI – 591 119. (OWNER OF HERO HONDA MOTORCYCLE NO.KA-24/S5719).

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…APPELLANT

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(BY SRI VISHWANATH BADIGER, ADVOCATE)

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AND:

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Digitally signed by BHARATHI H M

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SMT. LAXMI @ LAXMAVVA W/O. MANJAPPA KALGUDI, AGE: MAJOR, OCC: HOUSEHOLD.

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KUMAR PRAVEEN S/O MANJUNATH @ MANJAPPA KALAGUDI, AGE: 11 YEARS, OCC: STUDENT.

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KUMARI PAVITRA D/O. MANJUANTH @ MANJAPPA KALAGUDI, AGE: 9 YEARS, OCC: STUDENT.

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KUMAR PRAJWAL, S/O. MANJUNATH @ MANJAPPA KALAGUDI, AGE:06 YEARS, OCC:NILL, [ALL ARE RESIDENCE OF SUBBAPUR VILLAGE TAL:SOUNDATTI AND DIST:BELAGAVI] – 591 129,

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NC: 2023:KHC-D:12405 MFA No. 100665 of 2018 C/W MFA.CROB No. 100053 of 2022

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(SINCE THE RESPONDENTS NO.2 TO 4 ARE BEING MINORS REPRESENTED BY THEIR NATURAL MOTHER AND MINOR GUARDIAN RESPONDENT NO.1).

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SMT. SHANTAWWA W/O. MUDAKAPPA KALAGUDI, AGE:52 YEARS, OCC:HOUSEHOLD WORK, R/O:SUBBAPUR VILLAGE,

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TAL:SOUNDATTI AND DIST:BELAGAVI – 591 129.

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THE DIVISIONAL MANAGER, NATIONAL INSURANCE CO. LTD., OFFICE AT MARUTI GALLI, BELAGAVI – 590 016, (INSURER OF HERO HONDA MOTORCYCLE NO.KA-24/S-5719).

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SHRI PARUSHRAM K. TOLI, AGE:32 YEARS, OCC:AGRICULTURE, R/O:MUTAWAD VILLAGE, TAL:SAUNDATTI AND DIST:BELAGAVI - 591 129, (OWNER OF MOTORCYCLE NO.KA-24/U-6078).

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THE DIVISIONAL MANAGER, THE ORIENTAL INSURANCE CO., LTD, OFFICE AT RAMDEV GALLI, BELAGAVI- 590 016, (INSURER OF MOTORCYCLE NO.KA-24/U-6078).

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…RESPONDENTS

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(BY SRI I.Y.PATIL, ADVOCATE FOR C/R1-R5; SRI A.G.JADHAV, ADVOCATE FOR R6; SRI RAJASHEKHAR S. ARANI, ADVOCATE FOR R8; R7 IS SERVED)

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THIS MFA IS FILED UNDER SECTION 173(1) MOTOR VEHICLES ACT, 1988, PRAYING TO ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT AND AWARD DATED 08.12.2017 IN M.V.C.NO.1088/2016 PASSED BY THE IX ADDL. DISTRICT AND SESSIONS JUDGE, AND ADDL. MACT, BELAGAVI, IN AWARDING THE COMPENSATION OF RS.12,72,500/-AND SADDLE THE ENIRE LIABILITY ON RESPONDENTS IN THE INTEREST OF JUSTICE AND EQUITY.

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IN MFA.CROB.NO.100053/2022:

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BETWEEN:

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SMT. LAXMI @ LAXMAVVA W/O. MANJUNATH @ MANJAPPA KALAGUDI, AGE: 30 YEARS,

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NC: 2023:KHC-D:12405 MFA No. 100665 of 2018 C/W MFA.CROB No. 100053 of 2022

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OCC: HOUSEHOLD WORK, R/O: SUBBAPUR VILLAGE, TQ: SAUNDATTI, DIST: BELAGAVI.

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KUMAR PRAVEEN S/O MANJUNATH @ MANJAPPA KALAGUDI, AGE: 14 YEARS, OCC: STUDENT, R/O: SUBBAPUR VILLAGE, TQ: SAUNDATTI, DIST: BELAGAVI.

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KUMARI PAVITRA D/O. MANJUANTH @ MANJAPPA KALAGUDI, AGE: 12 YEARS, OCC: STUDENT, R/O: SUBBAPUR VILLAGE, TQ: SAUNDATTI, DIST: BELAGAVI.

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KUMAR PRAJWAL S/O. MANJUNATH @ MANJAPPA KALAGUDI, AGE: 09 YEARS, OCC: STUDENT, R/O: SUBBAPUR VILLAGE, TQ:SOUNDATTI AND DIST:BELAGAVI.

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(SINCE THE RESPONDENTS NO.2 TO 4 ARE BEING MINORS REPRESENTED BY THEIR NATURAL MOTHER AND MINOR GUARDIAN RESPONDENT NO.1).

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SMT. SHANTAWWA W/O. MUDAKAPPA KALAGUDI, AGE:55 YEARS, OCC:HOUSEHOLD WORK, R/O:SUBBAPUR VILLAGE, TAL:SAUNDATTI AND DIST:BELAGAVI.

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…CROSS OBJECTORS

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(BY SRI I.Y.PATIL, ADVOCATE)

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AND:

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GIREPPA S/O PUNDALIKAPPA KOLEKAR, AGE: 55 YEARS, OCC: BUSINESS, R/O: MURGOD, TAL: SAUNDATTI, DIST: BELAGAVI. (OWNER OF HERO HONDA MOTOR CYCLE NO.KA24/S5719).

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NC: 2023:KHC-D:12405 MFA No. 100665 of 2018 C/W MFA.CROB No. 100053 of 2022

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THE DIVISIONAL MANAGER, NATIONAL INSURANCE CO. LTD., OFFICE AT MARUTI GALLI, BELAGAVI, (INSURER OF HERO HONDA MOTORCYCLE NO.KA-24/S-5719).

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PARUSHRAM K. TOLI, AGE:35 YEARS, OCC:AGRICULTURE, R/O:MUTAWAD, TAL:SAUNDATTI, DIST: BELAGAVI. (OWNER OF MOTORCYCLE NO. KA-24/U-6078).

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THE DIVISIONAL MANAGER, THE ORIENTAL INSURANCE CO., LTD, OFFICE AT RAMDEO GALLI, BELAGAVI- 590 016, (INSURER OF MOTORCYCLE NO.KA-24/U-6078).

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…RESPONDENTS

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(BY SRI VISHWANATH BADIGER, ADVOCATE FOR R1; SRI A.J.JADHAV, ADVOCATE FOR R2 AND R4; NOTICE TO R3 IS DISPENSED WITH)

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THIS MFA CROB IS FILED UNDER ORDER 41 OF RULE 22 OF C.P.C., PRAYING TO DISMISS THE MFA NO.100665/2018, WHICH IS FILED AGAINST THE JUDGMENT AND AWARD DATED 08.12.2017 PASSED BY THE IX ADDITIONAL DISTRICT AND SESSIONS JUDGE AND ADDITIONAL MACT., BELAGAVI IN MVC NO.1088/2016 AND ENHANCE THE COMPENSATION AS PRAYED BY ALLOWING THIS CROSS OBJECTION, IN THE INTEREST OF JUSTICE AND EQUITY.

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THESE APPEAL AND CROB, COMING ON FOR ADMISSION, THIS

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DAY, THE COURT DELIVERED THE FOLLOWING:

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NC: 2023:KHC-D:12405 MFA No. 100665 of 2018 C/W MFA.CROB No. 100053 of 2022

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JUDGMENT

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MFA No.100665/2018 is filed by the owner of the Hero Honda motor cycle bearing No.KA-24/S-5719.

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MFA cross objection is filed by the claimant seeking for enhancement of compensation.

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Factum of accident and death of deceased are not disputed. The disputed fact is whether the insurance company is liable to pay the compensation or not.

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

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In the present case, the tribunal while determining the compensation has fastened the liability on the owner of the offending motorcycle bearing No.KA-24/S-5719 for the reason that rider of motorcycle was not holding driving license.

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The tribunal is correct in exonerating the insurance company and fastened the liability on the owner of the motorcycle to pay compensation.

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NC: 2023:KHC-D:12405 MFA No. 100665 of 2018 C/W MFA.CROB No. 100053 of 2022

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However, as per Sub-section (2) of Section 149 of

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Motor Vehicle Act, when the Insurance Company established the fact that driver was not holding driving license, then as per Sub-sections (1), (5), (7) of Section 149 of Motor Vehicle Act, the Insurance Company as if the judgment debtor shall satisfy the claim in respect of third parties and then recover the same from owner of the offending vehicle. Accordingly, order of pay and recovery is made as per the principle of law laid down by the Hon’ble Supreme Court in the cases of Pappu and others vs. Vinod Kumar Lamba and another¹ and also as per the full bench decision of this Court in the case of New India Assurance Co. Ltd., Bijapur vs. Yallavva w/o. Yamanappa Dharanakeri²

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1 (2018) 3 SCC 208

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2 2020 (2) AKR 484.

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NC: 2023:KHC-D:12405 MFA No. 100665 of 2018 C/W MFA.CROB No. 100053 of 2022

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Thus, an order of pay and recovery is made. To this extent, the judgment and award passed by the Tribunal is modified.

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In the present case, the tribunal has awarded compensation of Rs.12,72,500/- under various heads as follows:

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Sl.No.	Heads.	Amount in (Rs.)
1.	Loss of dependency	11,47,500-00
2.	Loss of love and affection	50,000-00
3.	Loss of consortium	25,000-00
4.	Loss of estate	25,000-00
5	Towards funeral and transportion expenses	25,000-00
	Total:	12,72,500-00

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The tribunal awarded lesser amount of compensation contrary to the principles of law decided by the Hon’ble Supreme Court. Therefore, the same is required to be modified.

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The deceased was aged 29 years as on the date of accident and was agriculturist by profession. The accident is of the year 2016 that is on 08.02.2016. Hence notional

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income is to be taken at Rs.8,750/- as recognized by the Karnataka State Legal Services Authority. In view of the decision of the Hon’ble Apex Court in case of National Insurance Company Limited vs. Pranay Sethi and others, reported in (2017) 16 Supreme Court Cases 680, 40 % of the income is to be added towards loss of future prospects in life. There are totally 5 legal heirs. Therefore 1/4 of the income is to be deducted towards personal and living expenses. Considering the age of the deceased, the appropriate applicable multiplier is 17. Therefore loss of dependency is re-assessed and quantified at RsRs.8750/-+3500/-(40% of Rs.8750/-)X3/4X17X12= 18,74,250-00.

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In view of the decision of the Hon’ble Supreme Court in the case of Magma General Insurance Co. Limited v. Nanu Ram & Others, reported in 2018 ACJ 2782 and in the case of Pranay Sethi supra , the claimants are entitled to Rs.40,000/- each under the head ‘loss of consortium’, along with 10% escalation. Accordingly,

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NC: 2023:KHC-D:12405 MFA No. 100665 of 2018 C/W MFA.CROB No. 100053 of 2022

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Rs.2,20,000/- (Rs.40,000 x 5 + 10%) is awarded under

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the head ‘loss of consortium including loss of love and affection’.

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Further, a compensation of Rs.15,000/- each is awarded under the head ‘loss of estate’ and ‘funeral and transportation’ respectively, along with 10% escalation. Therefore under these heads Rs.33,000/- (Rs.15,000 x 2 + 10%) is awarded.

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Thus, the claimants would be entitled for

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compensation under various heads as under:

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Sl. No.	Heads.	Amount in (Rs.)
1.	Towards loss of dependency	18,74,250-00
2.	Towards loss of consortium (40,000 x _____+10%)	2,20,000-00
3.	Towards loss of estate and transportation of dead body & funeral expenses. (15,000 x 2+10%)	33,000-00
	Total:	21,27,250-00

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Therefore, the claimants are entitled for compensation of Rs.21,27,250-00 along with interest at

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the rate of 6% p.a. from the date of filing of the petition till realization, as against Rs.12,72,500-00 awarded by the tribunal. The insurance company is directed to deposit the compensation within eight weeks from the date of receipt of a certified copy of this judgment at first instance and recover the same from the owner of the offending vehicle.

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15. In the result, I proceed to pass the following:

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ORDER

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i) MFA No.100665/2018 filed by the

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owner of the offending motorcycle bearing No.KA-24/S-5719 is dismissed.

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ii) MFA Crob. No.100053/2022 filed by

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the claimant is allowed in part.

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iii) The judgment and award dated 08.12.2017, passed by the IX Addl. District and Sessions Judge and AMACT, Belavagi in MVC No.1088/2016 stands modified to the extent that the insurance company shall pay the

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compensation at first instance and recover the

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same from the owner of the offending vehicle.

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iv) The insurance company is at liberty to file execution petition before the jurisdictional executing Court as against the owner of offending vehicle and may seek attachment of movables or immovable properties or both, till recovery is made.

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v) The claimants are entitled for total compensation of Rs. 21,27,250-00 along with interest at the rate of 6% p.a. from the date of petition till its realization.

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vi) The claimants are not entitled for interest for the delayed period of 839 days in filing the appeal.

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vii) The insurance company shall deposit the amount within a period of eight weeks from the date of receipt of a copy of this judgment

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