Partly allowed

Annappa Prabhu Kamate v. the Manager

Karnataka HC14 Dec 2023MFA/21617/2012

Case brief

AI extract

What is this about?

The High Court allowed the appeal in part, modifying the Motor Accident Claims Tribunal's award. The court held the Insurance Company not liable under a Motor Trade Transit Policy, holding the tempo owner liable instead. Compensation was enhanced from Rs. 2.72 lakhs to Rs. 9.30 lakhs based on Supreme Court precedents.

What did the court decide?

Compensation enhanced to Rs. 9,30,600 along with 6% p.a. interest payable by Respondent No. 1 within eight weeks; 523 days' interest denied.

Annappa Prabhu Kamate Vs the Manager — Insurance | Karnataka HC (2023)

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NC: 2023:KHC-D:14675 MFA No. 21617 of 2012

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 14^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.21617/2012 (MV)

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BETWEEN:

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SRI ANNAPPA PRABHU KAMATE, AGE: 50 YEARS, OCC: COOLIE.

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KUMARI RANI D/O. ANNAPPA KAMATE, AGE: 30 YEARS, OCC: STUDENT.

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KUMARI RAJAKKA D/O. ANNAPPA KAMATE, AGE: 29 YEARS, OCC: STUDENT.

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KUMAR SACHIN S/O. ANNAPPA KAMATE, AGE: 27 YEARS, OCC: STUDENT.

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KUMAR SANTOSH S/O. ANNAPPA KAMATE, AGE : 24 YEARS, OCC : STUDENT,

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Digitally signed by SUJATA SUBHASH PAMMAR

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ALL ARE R/O: NAVALIHAL, TQ: CHIKODI, DIST: BELAGAVI.

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(BY SRI H.M.DHARIGOND, ADVOCATE)

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…APPELLANTS

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AND:

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THE MANAGER, REGIONAL SALES OFFICE, TELCO B.R. COMPLEX, VIDYA NAGAR, HUBBALLI.

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THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE COMPANY LTD., D.O. CLUB ROAD, BELAGAVI.

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…RESPONDENTS

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(BY SRI M. K. SOUDAGAR, ADVOCATE FOR R2; R1 – SERVICE OF NOTICE DISPENSED WITH.)

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NC: 2023:KHC-D:14675 MFA No. 21617 of 2012

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 05.08.2010, PASSED IN MVC NO.2112/1997 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI AND TO AWARD JUST AND REASONABLE COMPENSATION, ETC.,.

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

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JUDGMENT

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This appeal is filed by the claimants challenging the judgment and award dated 05.08.2010, passed in MVC No.2112/1997, by the I Addl. Senior Civil Judge and MACT, Belagavi, seeking enhancement of compensation as well as seeking modification of liability to pay compensation.

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The factum of accident and death of the deceased in the accident are not in dispute in this case. The only disputed fact is whether the insurance company is liable to indemnify the owner of tempo and pay the compensation.

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Heard the arguments and perused the records.

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In the present case the tribunal while

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determining the compensation has fastened liability on respondent No.1 owner of the tempo on the reason that the tempo was being transported and its body was not built; in the said tempo in the cabin the deceased was travelling and died in the accident. Ex.R.1 is the insurance policy which is Motor Trade Transit Policy. Admittedly the body of tempo was not built. It was being transported for building its body. In the cabin the deceased was travelling. Admittedly the policy is not issued under section 147 of the M.V.Act, but Ex.R.1 insurance policy is Motor Trade Transit Policy (MTTP). As per this MTTP policy only driver alone is covered. This nature of policy is a purely contractual in nature between respondents No.1 and 2 so as to cover the risk of the driver alone. The nature and character of Ex.R.1 insurance policy is perused and is not issued as per section 147 of the M.V.Act so as to compulsorily cover the persons enumerated under section 147 of the M.V.Act. Therefore under these type of pure contractual policy as Motor Trade Transit Policy, except the

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driver, no other persons risk is covered. The deceased was not driver, but occupant in the cabin, which is not permissible as per law and also as per Ex.R.1 MTTP policy. Therefore, the tribunal has rightly exonerated the insurance company to indemnify the owner and to pay compensation. Therefore, respondent No.1 owner alone is responsible for payment of compensation on account of death of deceased.

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The learned counsel for appellant submitted an order of pay and recovery can be made. An order of pay and recovery can be made as per sub-section (1) of section 147 of the M.V.Act only where the insurance policy is issued as per section 147 of the M.V.Act. Where the insurance policy is statutory policy compulsorily coverable all the persons enumerated in the said section and if there is any violation of conditions of policy, then an order of pay and recovery can be made. But in the present case the policy issued is not a statutory policy compulsorily to be issued as per section 147 of the M.V.Act. Ex.R.1 policy

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NC: 2023:KHC-D:14675 MFA No. 21617 of 2012

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is a purely contractual policy between the owner and insurer nomenclatured as Motor Trade Transit Policy covering the risk of driver alone but not to others. Therefore the order of pay and recovery cannot be made.

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In the present case, the tribunal awarded

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compensation under various heads as under:

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Sl.No.	Heads.	Amount in (Rs.)
1.	Loss of dependency.	2,04,000
2.	Medical expenses.	35,000
3.	Loss of love and affection.	20,000
4.	Loss of consortium.	5,000
5.	Loss of estate.	3,000
6.	Funeral obsequies and transportation.	5,000
	Total:	2,72,000

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The deceased was aged 28 years old at the time of accident. The accident caused on 11.11.1996. Therefore, in the absence of proof of income, the notional income would be Rs.3,000/- per month as recognized by the Karnataka State Legal Service Authority. The claimants are husband and four children. Therefore 1/4^th of the income is to be deducted towards personal and living

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expenses. Considering the age of the claimant, the appropriate applicable multiplier is 17.

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Considering the age of the deceased at the time of accident, 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

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Supreme Court Cases 680, 40% of the income is to be added towards loss of future prospects in life. Therefore, the loss of dependency is re-assessed and quantified as Rs.6,42,600/- (Rs.3,000 + 40% minus 1/4^th x 12 x 17).

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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, Rs.2,20,000/- (Rs.40,000 x 5 + 10%) is awarded under the head ‘loss of consortium including loss of love and affection’.

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NC: 2023:KHC-D:14675 MFA No. 21617 of 2012

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Further, a compensation of Rs.15,000/- each is

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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

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10%) is awarded.

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Further, the claimants have spent Rs.35,000/-

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towards medical expenses. The same is awarded towards medical expenses.

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Thus, the claimants would be entitled for total

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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. (Rs.3,000 + 40% minus 1/4^thx 12 x 17).	6,42,600
2.	Towards loss of consortium. (40,000 x 5 +10%)	2,20,000
3.	Towards loss of estate and transportation of dead body & funeral expenses. (15,000 x 2+10%)	33,000
4.	Medical expenses.	35,000
	Total:	9,30,600

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Therefore, the claimants are entitled for total compensation of Rs.9,30,600/-, along with interest at the rate of 6% p.a. from the date of filing of the petition till realization, as against Rs.2,72,000/- awarded by the tribunal. Respondent No.1 owner of tempo shall pay compensation with interest at the rate of 6% p.a. from the date of petition till realization within eight weeks from the date of receipt of a certified copy of this judgment.

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