Smt. Devamma W/O. Late Abalappa Vs S. Hazeepeera S/O. Rahiman

S. HAZEEPEERA S/O. RAHIMAN, AGE. 38 YEARS, OCC. DRIVER OF LORRY BEARING REGN. NO.AP-02/TA-7434, R/O. RAYALA CHERVU VILLAGE, YADIKI TALUK, ANANTHAPUR DISTRICT, A.P. STATE-510051.

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GADIGE RAGHUNATHA REDDY S/O. NARAYANA REDDY,

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AGE. 47 YEARS, OCC. OWNER OF LORRY BEARING REGN. NO.AP-02/TA-7434, R/O. DOOR NO.1/195-1, GANESH NAGAR, 1^ST WARD, TADAPATRI, ANANTHAPUR DISTRICT, A.P. STATE-510051.

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THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE COMPANY LIMITED, 6.5 UPSTAIR, NEAR KARNATAKA BANK CIRCLE, C.B. ROAD, TADAPATRI, BY NEAREST OFFICE: THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE COMPANY LIMITED, STATION ROAD, HOSPET-583201.

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HULUGAPPA S/O. YAMUNAPPA, AGE. 67 YEARS, (FATHER OF DECEASED) R/O. YANNI VADAGERI, SURPUR TALUK, YADAGIR DISTRICT-585223.

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SMT. JETTAMMA W/O. HULUGAPPA, AGE. 62 YEARS, (MOTHER OF DECEASED) R/O. YENNI VADAGERI, SURPUR TALUK, YADAGIRI DISTRICT-585223.

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…RESPONDENTS (BY SRI M.Y. KATAGI, ADVOCATE FOR R3; R1, R2, R4 & R5 – NOTICE SERVED.) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173 (1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 23.04.2015 PASSED IN MVC NO.623/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC-CUM-MEMBER, MACT-IV, HOSAPETE, BY ENHANCING THE COMPENSATION FROM RS.10,49,000/TO RS.24,00,000/- AND CONSEQUENTLY FIX THE LIABILITY ON RESPONDENT NO.3 I.E., INSURANCE COMPANY AND ETC.,.

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

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)

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This appeal is filed by the claimants/dependants of the deceased Abalappa challenging the judgment and award dated 23.04.2015, passed by the Principal Senior Civil Judge and JMFC cum Member, MACT-IV, Hospete, in MVC No.623/2014, seeking enhancement of compensation and to fasten liability on the Insurance Company to pay the compensation.

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Heard the arguments and perused the material placed before the Court.

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The occurrence of accident, death of the deceased Abalappa in a road traffic accident, are not in dispute in this case.

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In this case, the tribunal has awarded

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compensation under various heads as under:

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Sl.	Heads.	Amount in
No.		(Rs.)
1.	Towards loss of dependency.	8,64,000
2.	Towards loss of consortium.	1,00,000
3.	Towards loss of love and affection.	50,000

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4.	Funeral expenses.		25,000
5.	Loss of estate.		10,000
		Total:	10,49,000

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The tribunal awarded lesser amount of

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compensation contrary to the principles of law decided by the Hon’ble Supreme Court. Therefore, the same is required to be enhanced by modifying the judgment and award of the tribunal.

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The deceased was aged 38 years old as on the date of accident and was a driver by profession. The accident is of the year 2014. Hence, in the absence of proof of income, notional income is to be taken at Rs.7,500/- per month, 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, considering the age of the deceased, 40% of the income is to be added towards loss of future prospects in life. There are five dependents. Therefore, 1/4^th of the income is to be deducted towards his

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personal and living expenses. Considering the age of the deceased, the appropriate applicable multiplier is 15. Therefore loss of dependency is re-assessed and quantified at Rs.14,17,500/- (Rs.7,500 + 40% minus 1/4^th x 12 x 15).

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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. There are five dependents who are father and mother, wife and two sons. 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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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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9. Thus, the claimants would be entitled for total

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compensation under various heads as under:

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Sl.	Heads.	Amount in
No.		(Rs.)
1.	Towards loss of dependency	14,17,500
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
	Total:	16,70,500

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Therefore, the claimants are entitled for total compensation of Rs.16,70,500/- along with interest at the rate of 6% p.a. from the date of filing of the petition till realization, as against Rs.10,49,000/- awarded by the tribunal.

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The tribunal has fastened the liability to pay compensation on the owner of the offending vehicle on the reason that the driver of the lorry was not holding driving licence to drive heavy goods vehicle. It is submitted that the driver of the lorry was holding the driving licence to drive LMV and Medium Transport Vehicle. Therefore, there is

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infraction proved. Hence the Insurance Company is liable to be exonerated from liability to pay compensation. The owner is liable to pay compensation as rightly held by the tribunal.

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The insurance company is able to establish the defence as per sub-section (2) of section 149 of M.V.Act. However, the claimants are third party to the lorry. Hence as per sub-section (1), (5) and (7) of section 149 of the M.V.Act, and also 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 ANOTHER reported in (2018) 3 SCC 208; NATIONAL INSURANCE COMPANY LIMITED VS. SWARAN SINGH AND OTHERS reported in (2004) 3 SCC 297 ; and also as per the Full Bench decision of this Court in the case of NEW INDIA ASSURANCE COMPANY LIMITED VS. YELLAVVA AND ANOTHER reported in 2020 ACJ 2560 , the insurance company shall satisfy the claim at the first instance to the claimants and then recover it from the owner of the offending vehicle. However, the insurance company is at liberty to file execution petition before the

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jurisdictional executing Court as against the owner of the offending vehicle and may seek attachment of movables or immovable properties or both, till recovery is made and also the recovery process can be as per the decision of the Hon’ble Supreme Court in ORIENTAL INSURANCE CO.

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LTD., VS. NANJAPPAN AND OTHERS, reported in 2004 AIR SCW 952 .

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Therefore, 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 the first instance and then recover it from the owner of offending vehicle as discussed above.

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In the result, I proceed to pass the following:

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ORDER

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i) The appeal is allowed in part.

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ii) The judgment and award dated 23.04.2015, passed by the Principal Senior Civil

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Judge and JMFC cum Member, MACT-IV, Hospete, in MVC No.623/2014, stands modified.

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iii) The claimants are entitled for total compensation of Rs.16,70,500/along with interest at the rate of 6% p.a. from the date of petition till its realization, as against the compensation of Rs.10,49,000/- awarded by the tribunal.

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iv) The claimants are not entitled for interest for the delayed period of 1698 days in filing the appeal.

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v) The insurance company shall deposit

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the amount within a period of eight weeks from the date of receipt of a copy of this judgment.

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vi) The insurance company shall satisfy

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the claim at the first instance to the claimants and then recover it from the owner of the offending vehicle.

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vii) The insurance company is at liberty to

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file execution petition before the jurisdictional executing Court as against the owner of the offending vehicle and may seek attachment of movables or immovable properties or both, till recovery is made and also the recovery process can be as per the decision of the Hon’ble Supreme

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Court in Oriental Insurance Co. Ltd., vs. Nanjappan and others, reported in 2004 AIR SCW 952 .

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viii) Send back the trial Court records along with a copy of this judgment and award to the tribunal.

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ix) No order as to costs.

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x) Draw award accordingly.

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Sd/(HANCHATE SANJEEVKUMAR) JUDGE

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MRK CT: UMD. List No.: 2 Sl No.: 23

Smt. Devamma W/O. Late Abalappa v. S. Hazeepeera S/O. Rahiman

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Smt. Devamma W/O. Late Abalappa v. S. Hazeepeera S/O. Rahiman

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