Partly allowed

Smt.Shantawwa v. Shri.Laxman Y. Kademani

Karnataka HC3 Aug 2023MFA/100712/2016

Case brief

AI extract

What is this about?

This High Court modified a Motor Accident Claims Tribunal award, enhancing compensation to a family of an agriculturist who died in an accident due to the driver's lack of a license, directing the insurance company to deposit the difference and recover it from the vehicle owner, while denying interest for the appeal delay period.

What did the court decide?

Increased compensation to Rs. 13,99,600/- and ordered direct deposit of the difference of Rs. 10,06,100/- by the insurance company within six weeks, followed by recovery from the owner; interest denie

Smt.Shantawwa Vs Shri.Laxman Y. Kademani — Motor Accident Claims | Karnataka HC (2023)

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1 - NC: 2023:KHC-D:8239 MFA No. 100712 of 2016

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 3^RD DAY OF AUGUST, 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.100712/2016(MV-D)

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BETWEEN:

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SMT.SHANTAWWA W/O. SURESH TALAWAR, AGE: 31 YEARS, OCC: HOUSEHOLD WORK, R/O: MARIKATTI, TAL: BAILHONGAL, DIST: BELAGAVI.

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KUMAR SHIVARAJ S/O. SURESH TALAWAR, AGE: 16 YEARS, OCC: STUDENT, R/O: MARIKATTI, TAL: BAILHONGAL, DIST: BELAGAVI.

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KUMAR NAGARAJ S/O. SURESH TALAWAR, AGE:12 YEARS, OCC:STUDENT, R/O: MARIKATTI, TAL: BAILHONGAL, DIST: BELAGAVI.

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Digitally signed by SUJATA SUBHASH PAMMAR

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SINCE APPELLANTS NO.2 AND 3 ARE MINORS R/BY THEIR NATURAL MOTHER APPELLANT NO.1.

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SMT. SHANTAWWA W/O SURESH TALAWAR, AGE: 31 YEARS, OCC: HOUSEHOLD WORK, R/O: MARIKATTI, TAL: BAILHONGAL, DIST: BELAGAVI.

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SMT.SAVAKKA W/O. SHIVARAJ TALAWAR, AGE: 61 YEARS, OCC: HOUSEHOLD WORK, R/O: MARIKATTI, TAL: BAILHONGAL, DIST: BELAGAVI.

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…APPELLANTS (BY SRI HANAMANT R. LATUR, ADVOCATE)

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2 - NC: 2023:KHC-D:8239 MFA No. 100712 of 2016

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AND:

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SHRI LAXMAN Y. KADEMANI, AGE: 35 YEARS, OCC: AGRIL AND BUSINESS, R/O: 880/6, SHIDDESHWAR NAGAR, AT POST: KANABARGI, TQ AND DIST: BELAGAVI.

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THE DIVISIONAL MANAGER, ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE, BELAGAVI, DIST: BELAGAVI.

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…RESPONDENTS

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(BY SRI S.V. YAJI, ADVOCATE FOR R2; R1 IS SERVED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO ENHANCE THE COMPENSATION BY MODIFYING THE JUDGMENT AND AWARD PASSED BY SENIOR CIVIL JUDGE AND MEMBER ADDL. M.A.C.T, BAILHONGAL, IN MVC NO.1925/2011 DATED 20.05.2013 AND FIXED THE LIABLITY ON RESPONDENT NO.2 INSURANCE CO. IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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NC: 2023:KHC-D:8239 MFA No. 100712 of 2016

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JUDGMENT

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The claimants have preferred the present appeal under Section 173(1) of the Motor Vehicles Act, challenging the judgment and award dated 20.05.2013, passed in M.V.C. No.1925/2011, by the learned Senior Civil Judge & Additional Motor Accident Claims Tribunal, at Bailhongal, (for short ‘the Tribunal’), seeking enhancement of compensation, as the Tribunal has awarded inadequate compensation.

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Brief factual matrix leading to the case are as

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follows:

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2.1. That on 13.05.2011 at about 4.30 p.m. when the husband of appellant No.1 namely Shivaji Talawar was proceeding as pillion rider on motorcycle bearing registration No.KA-22/EC-1640 and when he came near Marakatti Village at that time the rider of the motorcycle drove the same in rash and negligent manner and made it to fell on the road and caused the accident. Due to the said accident Shivaji got grievous injuries and died during treatment. Prior to the accident the deceased was aged 35

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4 - NC: 2023:KHC-D:8239 MFA No. 100712 of 2016

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years and he was doing agriculture work and earning Rs.6,000/-. Due to the death of Shivaji, the appellants have lost their bread earner. Therefore the appellants/claimants have filed the claim petition before the Tribunal claiming the compensation against the respondents, but the Court below has awarded inadequate compensation. Aggrieved by the same, the appellants are before this Court.

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Heard the arguments advanced by the learned counsels for the parties on both sides. Perused the records.

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In the present case, the Tribunal has put liability on owner of the Motorcycle on the ground that the driver of the Motorcycle did not have driving license. Therefore, fastened the liability on the owner of the Motorcycle.

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The Investigating Officer had filed charge sheet for having committed offenses punishable under Sections 279, 338, 304-A of IPC and Section 134 R/w Section 187, 3 R/w Section 181 and Section 5 R/w Section 180 of the

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5 - NC: 2023:KHC-D:8239 MFA No. 100712 of 2016

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Motor Vehicle Act, which proves that driver of the Motorcycle did not have driving license to drive the Motorcycle and hence, charge sheet is filed against the driver and also the offences foisted against the owner of the Motorcycle that he has authorized the person to drive the Motorcycle who was not holding driving license. Hence, both driver and the owner of the Motorcycle are charge sheeted which proves that the driver was not holding driving license to drive Motorcycle. Therefore, the Insurance Company is liable to be exonerated to pay compensation. However, the Insurance Company is able to establish its defence as per Sub-Section (2) of Section 149 of the 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 Bajaj Tempo Cruiser bearing No.KA-35/3930. Accordingly, order of pay and recovery is made as per the

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6 - NC: 2023:KHC-D:8239 MFA No. 100712 of 2016

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principle of law laid down by the Hon’ble Supreme Court in

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the cases of PAPPU AND OTHERS Vs. VINOD KUMAR

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LAMBA AND ANOTHER¹ ; NATIONAL INSURANCE COMPANY LIMITED VS. SWARAN SINGH AND OTHERS² and also as per the full bench decision of this Court in the case of NEW INDIA ASSURANCE

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COMPANY LIMITED VS. YELLAVVA AND ANOTHER.

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Thus, an order of pay and recovery is made.

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The learned counsel for the Insurance Company

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placed reliance on a decision of the Division Bench of this Court in MFA No.102884/2018 dated 21.12.2020 in the

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case of Shri Ashok S/o Ramu Koravi @ Mane vs, Shri

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Yamanappa S/o Shivanappa Chigaraddi and another.

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in the said case, there is only single line observation that since there is no driving license, hence, pay and recovery order cannot be accepted. Except this there is no reasons why pay and recovery order cannot be made but as per the Hon’ble Supreme Court decision some of which cited

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1 (2018) 3 SCC 208

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2 (2004) 3 SCC 297

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7 - NC: 2023:KHC-D:8239 MFA No. 100712 of 2016

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above and also the full bench of this Court in the case of

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New India Assurance Company Limited vs. Yellavva

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and another³ while interpreting Section 149 of the Motor Vehicles Act, have discussed and laid down the law and the pay and recovery order can be passed. Therefore, by following the judgment of the Hon’ble Apex Court supra in this case, an order of pay and recovery is made.

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In the present case, the deceased was aged 35 years and he was an agriculturist died in an accident on 13.05.2011. The notional income Rs.6,000/- per month is to be taken for consideration as per the chart of t he Karnataka State Legal Services Authority and 40% income is added towards loss of future prospects in life. The claimants are the wife, two minor children and mother, therefore, ¼ amount is deducted towards loss of personal and living expenses. The appropriate multiplier is 16. Therefore, the loss of dependency including loss of future prospects in life is reassessed and quantified as follows:

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3 (2020) ACJ 2560

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- 8 - NC: 2023:KHC-D:8239 MFA No. 100712 of 2016

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Rs.6,000 + Rs.2,400 (40% x Rs.6,000) x ¾ x 16 x12

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= Rs.12,09,600/-.

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Further claimants are entitled for a

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compensation of Rs.40,000/- each under the loss of consortium. Accordingly, the compensation of Rs.1,60,000/- is awarded towards the loss of consortium

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as per the judgment of Hon’ble Apex Court in the case of

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Magma General Insurance Co. Limited vs. Nanu Ram

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& others⁴ . The compensation of Rs.15,000/- under the loss of transportation and funeral is awarded and the compensation of Rs.15,000/- is awarded towards the loss of estate is awarded.

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Thus in all, the appellant is entitled for

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compensation under various heads as follows:

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1.	Loss of future prospects	Rs.12,09,600/-
2.	Loss of Consortium	Rs.1,60,000/-
3.	Loss of Transportation and Funeral	Rs.15,000/-
4.	Loss of estate	Rs.15,000/-
	Total	Rs.13,99,600/-

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4 (2018) ACJ 2782

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9 - NC: 2023:KHC-D:8239 MFA No. 100712 of 2016

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Thereby, the appellants are entitled for a total sum of Rs.13,99,600/-. After deducting a sum of Rs.3,93,500/- as already awarded by the Tribunal, the appellants are entitled to an additional sum of Rs.10,06,100/- (Rs.13,99,600 – Rs.3,93,500/-), along with interest at 6% p.a. from the date of petition till realization. In view of the aforesaid discussion, I pass the following:

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ORDER

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i) The appeal is allowed in part. ii) The impugned judgment and award dated 20.05.2013, passed in M.V.C. No.1925/2011, by the learned Senior Civil Judge & Additional Motor Accident Claims Tribunal, at Bailhongal, is hereby modified.

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iii) The appellants are entitled for an additional sum of Rs.10,06,100/- along with interest at 6% p.a. from the date of petition till realization, in addition to what has been awarded by the Tribunal.

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iv) Respondent No.2 – Insurance Company is directed to deposit the said amount within

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10 - NC: 2023:KHC-D:8239 MFA No. 100712 of 2016

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a period of six weeks from the date of receipt of a certified copy of this judgment, then recover the said amount from owner of the offending motorcycle. However, the claimants are not entitled for interest for the period of 933 days delay in filing the appeal.

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v) No order as to costs.

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vi) The amount in deposit shall be transferred to the Tribunal along with records and a certified copy of this order.

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vii) Draw decree accordingly.

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SD/JUDGE

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SSP List No.: 2 Sl No.: 22 CT-ASC

Smt.Shantawwa v. Shri.Laxman Y. Kademani

Case brief

What is this about?

What did the court decide?

Smt.Shantawwa v. Shri.Laxman Y. Kademani

Case brief

What is this about?

What did the court decide?

What the court decided

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