Dismissed

Reliance G.I.C Ltd. v. Kausar Begum W/O Late Abdul Raheem Kamthan and Ors.

Karnataka HC19 Jul 2023MFA/201446/2022

Case brief

AI extract

What is this about?

This order dismisses miscellaneous first appeals filed by an insurer and claimants challenging a motor accident compensation award. The High Court held the insurer could not disown liability without evidence regarding the driver's license. It upheld the trial court's compensation quantum and income assessment, confirming the impugned award.

What did the court decide?

Both appeals dismissed; impugned judgment and award confirmed; insurer deposit transmitted for disbursement.

Reliance G.I.C Ltd. Vs Kausar Begum W/O Late Abdul… — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC-K:5964-DB MFA No. 201446 of 2022 C/W MFA No. 201032 of 2022

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IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH

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DATED THIS THE 19^TH DAY OF JULY, 2023

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PRESENT

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THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD

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AND

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THE HON'BLE MR. JUSTICE UMESH M ADIGA

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MISCL. FIRST APPEAL NO. 201446 OF 2022 (MV) C/W

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MISCL. FIRST APPEAL NO. 201032 OF 2022 (MV)

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IN MFA No.201446/2022:

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BETWEEN:

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RELIANCE G.I.C LTD THROUGH ITS BRANCH MANAGER, 3RD FLOOR, ASIAN PLAZA, TIMMAPURI CIRCLE, MAIN ROAD, KALABURAGI-585104.

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(NOW REPRESENTED BY AUTHORISED SIGNATORY, DESHPANDE NAGAR, HUBLI).

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Digitally signed by SOMANATH PENTAPPA MITTE Location: HIGH COURT OF KARNATAKA

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(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)

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…APPELLANT

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AND:

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KAUSAR BEGUM

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W/O LATE ABDUL RAHEEM KAMTHAN AGE: 37 YEARS, OCC: HOUSEHOLD.

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MOHAMMAD HUSSAIN KAMTHAN S/O LATE ABDUL RAHEEM AGE: 15 YEARS, OCC: STUDENT.

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2 - NC: 2023:KHC-K:5964-DB MFA No. 201446 of 2022 C/W MFA No. 201032 of 2022

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ABDUL RAHMAN KAMTHAN S/O LATE ABDUL RAHEEM AGE:14 YEARS, MOHAMMAD HUSSAIN KAMTHAN. OCC: STUDENT.

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MOHAMMED MUZAMMIL KAMTHAN S/O LATE ABDUL RAHEEM AGE: 10 YEARS, OCC: STUDENT.

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MOHAMMED MUDASSIR KAMTHAN S/O LATE ABDUL RAHEEM AGE: 10 YEARS, OCC: NIL.

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ABDUL LATEEF KAMTHAN S/O LATE ABDUL RAHEEM AGE: 06 YEARS, OCC: NIL,

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RESP. NO. 2 TO 6 HEREIN ARE MINORS, U/G OF THEIR NATURAL MOTHER RESP. NO.1 HEREIN) ALL R/O. H.NO. 5-470/7/1K KCT ROAD, MADINA COLONY, ROZA KALABURAGI-585101.

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HIMMATLAL G CHAVAN S/O GENU CHAVAN AGE: MAJOR, OCC: OWNER OF THE VEHICLE NO. KA-33/A-2451, R/O. 2/900/47/59, SEDAM ROAD, NEAR GURUKUL SCHOOL, OM NAGAR, 1^ST KALABURAGI-585101.

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…RESPONDENTS

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(BY SRI. SANJEEV PATIL. ADVOCATE FOR R1 TO R6; NOTICE TO R7 IS DESPENSED WITH V/O DATE 03.07.2023)

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NC: 2023:KHC-K:5964-DB MFA No. 201446 of 2022 C/W MFA No. 201032 of 2022

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THIS MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION 173(1) OF MV ACT, ALLOW THE ABOVE APPEAL BY SETTING ASIDE THE IMPUGNED JUDGMENT AND AWARD DATED 17.11.2021 IN MVC NO. 835/2019 PASSED BY THE IST ADDL SENIOR CIVIL JUDGE AND MACT AT KALABURAGI,

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IN MFA NO. 201032 OF 2022:

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BETWEEN:

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KAUSAR BEGUM W/O LATE ABDUL RAHEEM KAMTHAN, AGE: 36 YEARS, OCC: HOUSEHOLD.

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MOHAMMED HUSSAIN KAMTHAN S/O LATE ABDUL RAHEEM KAMTHAN, AGE: 14 YEARS, OCC: STUDENT,

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ABDUL RAHMAN KAMTHAN S/O LATE ABDUL RAHEEM KAMTHAN, AGE: 13 YEARS, OCC: STUDENT.

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MOHAMMED MUZAMIL KAMTHAN S/O LATE ABDUL RAHEEM KAMTHAN, AGE: 09 YEARS, OCC: STUDENT.

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MOHAMMED MUDASSIR KAMTHAN S/O LATE ABDUL RAHEEM KAMTHAN, AGE: 09 YEARS, OCC: STUDENT.

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ABDUL LATEEF KAMTHAN S/O LATE ABDUL RAHEEM KAMTHAN, AGE: 05 YEARS, OCC: NIL.

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APPELLANTS NO.2 TO 6 ARE MINORS U/G OF THEIR NATURAL MOTHER APPELLANT NO.1 KAUSAR BEGUM

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W/O LATE ABDUL RAHEEM KAMTHAN ALL R/O H.NO.-5-470/7/1K, KCT ROAD, MADINA COLONY, ROZA, KALABURAGI.

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…APPELLANTS

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(BY SRI. SANJEEV PATIL, ADVOCATE)

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AND:

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HIMMATLAL G. CHAVAN S/O GENU CHAVAN, AGE: MAJOR, OCC: OWNER OF VEHICLE NO.KA-33/A-2451, R/O NO.1/90/47/59, SEDAM ROAD, NEAR GURUKUL SCHOOL, OM NAGAR, KALABURAGI-585102.

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THE RELIANCE GENERAL INSURANCE CO. LTD., THROUGH ITS BRANCH MANAGER, 3^RD FLOOR, ASIAN PLAZA, TIMMAPURI CIRCLE, MAIN ROAD, KALABURAGI-585104.

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…RESPONDENTS

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(BY SMT PREETI PATIL MELKUNDI, ADVOCATE FOR R2; NOTICE TO R1 DISPENSED WITH V/O DATED 12.12.2022)

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THIS MISCELLANEOUS FIRST APPEAL FILED UNDR SECTION 173(1) OF MV ACT, BY THE ADVOCATE FOR APPELLANT, PRAYING THAT THIS HONOURABLE COURT MAY BE PLEASED TO, A) EXERCISE ITS APPELLATE JURISDICTION, CALL FOR THE ENTIRE LOWER COURT RECORDS AND MODIFY THE JUDGMENT AND AWARD DATED 17.11.2021 PASSED BY THE LEARNED I ADDL SENIOR CIVIL JUDGE AND MACT AT KALABURAGI IN MVC NO. 835/2019 ENHANCING THE COMPENSATION AMOUNT AS PRAYED FOR,

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THESE MISCELLANEOUS FIRST APPEALS, COMING ON FOR ADMISSION THIS DAY, UMESH M. ADIGA. J., DELIVERED THE FOLLOWING:

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JUDGMENT

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M.F.A.No.201446 of 2022 is filed by the Insurer and

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M.F.A.No.201032 of 2022 is filed by the claimants, in challenging judgments and award passed in M.V.C.No.835 of 2019, on the file of the 1^st Additional Senior Civil Judge and M.A.C.T., Kalaburagi dated 17.11.2021. The claimants have filed this appeal for enhancement of compensation and the Insurer has challenged the impugned judgment both on the quantum as well as liability to pay the compensation.

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Both the matters are slated for hearing on

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admission and with the consent on both the sides, it is taken up for final disposal.

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It is the case of the claimants that on 26.03.2019 at about 4.30 p.m., the deceased Abdul Raheem Kamthan was going on a motor cycle bearing Reg.No.KA-32/EA-1258 on Humnabad Ring Road from Kapnoor to Gunj. On Humnabad Ring Road, he stopped his vehicle at traffic signal. At that time, driver of the tipper lorry bearing Reg.No.KA-33/A-2451 drove his vehicle in rash and negligent manner and dashed against the said motor cycle of

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the deceased, because of the impact, deceased sustained grievous injuries. He was shifted to Kamreddy Hospital, Kalaburagi wherein he was admitted as an inpatient for aobut 14 days. Thereafter, he was shifted to Narmada Hospital, Solhapur for higher treatment. Unfortunately, he succumbed to the injuries on 31.05.2019 while undergoing treatment. The claimants had spent more than Rs.15 Lakhs towards the treatment.

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It was the further case of the claimants that claimant No.1 is wife and claimant Nos.2 to 6 are children of the deceased. They were all depending upon the earning of the deceased. With these reasons, they prayed to award compensation of Rs.34,70,000/-.

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Respondent No.1 was the owner and Respondent No.2 was the Insurer of the offended tipper lorry. In the Written Statement, both of them have denied contents of the claim petition and they also submitted that the compensation claimed is exorbitant. The owner of the vehicle has submitted that the vehicle was insured with Respondent No.2 and Insurer is liable to pay the

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compensation. The Insurer has contended that owner of the vehicle had violated terms and conditions of the policy of the insurance. Therefore, it was not liable to pay the compensation. It has also contended that the driver of the tipper lorry has no valid and effective license to drive the vehicle. Hence, prayed to dismiss the claim petition against the Insurer.

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From the rival contentions of the parties, the Tribunal had framed necessary issues.

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The claimants examined PW-1 and got marked

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Exs.P1 to P28. Both the respondents have not lead evidence.

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The Tribunal on hearing both the sides and on appreciating pleadings and evidence on record, by the impugned judgment, awarded compensation of Rs.36,81,700/- as under:

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Sl.No.	Particulars	Amount (Rs.)
1.	Loss ofdependency	25,04,300
2.	Loss of consortium
	a. Spousal consortium	40,000

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NC: 2023:KHC-K:5964-DB MFA No. 201446 of 2022 C/W MFA No. 201032 of 2022

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	b. Parental consortium	to each	2,00,000
	children(Rs.40,000X5)
3.	Loss ofestateFuneralex	penses	30,000
4.	Medical expenses treatment period	during	9,07,400
	Total		36,81,700

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We have heard the arguments.

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The learned Advocate for the Insurer has

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submitted that income taken by the Tribunal is on the higher side. There is no legally acceptable evidence to prove the income. The driver of the tipper lorry had no valid and effective driving license to drive the vehicle. Even though contention was taken by the Insurer, the Tribunal has not assessed the same and fastened the liability on RespondentNo.2/Insurer. Therefore, prayed to set aside the said judgment.

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The learned advocate for claimants submit that

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the Tribunal has taken income on the lower side. The amount of compensation awarded on the other heads are much less. The Respondent/Insurer has not lead any evidence to prove its contention that the driver of the tipper lorry had no valid license to drive the vehicle. Moreover, the

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Investigating Officer had not charge-sheeted the driver of the tipper lorry for the said offence. The Respondent No.2 has not issued any notice to the owner of the vehicle requesting to provide copy of the driving license or issue a notice to the driver of the vehicle, to produce the driving license. Without any such evidence, it has disowned its liability to pay the compensation. Therefore, prayed to reject the appeal filed by the Insurer.

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The submission of the learned advocate for the claimants as stated above, is tenable. The Insurer though denied that driver of the tipper lorry had valid and effective driving license, but has not taken any steps to secure information from owner of the said vehicle or driver of the said vehicle. It has not examined any witnesses to prove the said contention. The burden is on Respondent No.2 to show that driver of the said tipper lorry had no license to drive the vehicle since it is an assertive contention of Respondent No.2. Without any evidence, it wants to disown its liability, which is not permissible.

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As rightly submitted by the learned advocate for

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the claimants, the driver of the lorry was not charge-sheeted for driving the vehicle without valid license. What is the basis for the Insurer to contend that the driver of the lorry had no license to drive the notice, is not disclosed in any part of the evidence or pleadings. Therefore, the said submission is not acceptable. Respondent/Insurer had utterly failed to prove that driver of the tipper lorry had no valid or effective valid driving license. Moreover, for any reason, the Insurer has found that driver of the tipper lorry had no valid license, then, it is the duty of the Insurer to pay the compensation to the claimants and recover the same from the owner of the vehicle in an appropriate proceeding, if it is able to establish its case. On that count, it cannot disown its liability.

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Both the claimants and Insurer have contended that amount of income taken by the Tribunal is not proper. The claimants have contended that the deceased was earning Rs.20,000/- per month as salary by working as a Manager in Lucky Motors. There are no records to prove the

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said contention. Therefore, the Tribunal has taken notional income of the deceased as Rs.13,250/-. The said finding of the Tribunal is proper and does not call for any interference. While settlement of the dispute in Lok-Adalath, in respect of the motor vehicle compensation case, as per the Guidelines prescribed by the Karnataka State Legal Services Authority, for an accident taken place during the year 2018, notional income of the victim of an accident is taken as Rs.13,250/-. The same is taken by the Tribunal. It does not call for any interference.

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The learned Advocate for the Insurer has also tried to contend that age of the deceased was 40 years. Therefore, adding 40% of income towards future prospects is not proper and it ought to be taken as 25%. The said submission is also not acceptable. The Tribunal has noted age of the deceased as 39 years on the basis of date of birth mentioned in the SSLC Marks-card as 05.09.1980. Therefore, as per the law laid down in the case of NATIONAL INSURANCE COMPANY LIMITED VS. PRANAY SETHI AND

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12 - NC: 2023:KHC-K:5964-DB MFA No. 201446 of 2022 C/W MFA No. 201032 of 2022

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OTHERS¹ , claimants are entitled for addition of 40% of income towards future prospects. There is no error in the said findings of the Tribunal. The Tribunal has awarded medical expenses on the basis of actual receipts produced by the claimants. In the cross-examination of PW-1, the insurer has not brought out anything to show that the said medical bills were created or concocted. Therefore, the said finding is also proper. The Tribunal has awarded just and reasonable amount of compensation on all other heads and it does not call for any interference by this Court.

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For the aforesaid reasons, we pass the following:

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ORDER

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Both the appeals, M.F.A.No.201446 of 2022 and M.F.A.No.201032 of 2022 are dismissed.

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The impugned judgment and award passed

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by the 1^st Additional Senior Civil Judge and MACT, Kalaburagi in M.V.C.No.835/2019 dated 17.11.2021 is confirmed.

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1 2017 ACJ 2700

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Whatever the amount deposited by the

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Insurer in M.F.A.No.201446 of 2022 shall be transmitted to the Tribunal for disbursement.

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Sd/JUDGE

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Sd/JUDGE

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Reliance G.I.C Ltd. v. Kausar Begum W/O Late Abdul Raheem Kamthan and Ors.

Case brief

What is this about?

What did the court decide?

Reliance G.I.C Ltd. v. Kausar Begum W/O Late Abdul Raheem Kamthan and Ors.

Case brief

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What did the court decide?

What the court decided

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