Saraswathi W/O Late Hanumanthappa Huvakkanavar Vs the United India Insurance Co.Ltd

THE UNITED INDIA INSURANCE CO. LTD DIVISIONAL OFFICER, YALAMANCHALI COMPLEX, 1^ST FLOOR, STATION ROAD, HOSPET, DIST. BALLARI, THROUGH BRANCH MANAGER, MICRO OFFICER, DR. K.G. KULKARNI BUILDING, KOPPAL.

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…APPELLANTS

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SRI. SURESH S/O BASAPPA DOLLIN AGED ABOUT 38 YEARS, R/O. BETAGERI TQ & DIST. KOPPAL.

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NC: 2025:KHC-D:11863 MFA No. 20310 of 2013 C/W MFA.CROB No. 100164 of 2015

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HC-KAR

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SRI. VEERABHADRAPPA S/O MODIBASAPPA BELLOLLI, AGED 35 YEARS, R/O. HOUSE NO.1-3-240, NEAR SIRASAPPAIAHNAMATH, DIST. KOPPAL.

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…RESPONDENTS

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(BY SRI. S. S. JOSHI, ADV FOR R1, SRI. HAREESH S. NAIK, ADV FOR R3, NOTICE TO R2 IS SERVED)

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THIS MFA IS FILED U/SEC.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DTD:26-07-2012 PASSED IN MVC. NO.182/2011 ON THE FILE OF THE MEMBER, MACT AND DISTRICT AND SESSIONS JUDGE, KOPPAL, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA CROSS OBJ NO. 100164 OF 2015

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BETWEEN:

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SRI. VEERABHADRAPPA S/O MUDIBASAPPA BELLOLLI, AGE: 36 YEARS, OCC: AGRI & OWNER OF VEHICLE NO.KA-35/T-0391. R/O: H.NO.1-3-240, NEAR SIRASAPPAIAHNAMATH, TQ & DIST: KOPPAL-583231.

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…CROSS OBJECTOR

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(BY SRI. HAREESHA S. NAYAK, ADV)

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AND:

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THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE COMPANY LTD, DIVISIONAL OFICE, YALAMANCHALI COMPLEX, 1^ST FLOOR, STATION ROAD, HOSPET 583201. DIST: BALLARI. THROUGH BRANCH MANAGER, MICRO OFFICE, UNITED INDIA INSURANCE CO. LTD., KULKARNI BUILDING, KOPPAL.

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SURESH S/O BASAPPA DOLLIN AGE:40 YEARS, OCC:DRIVER OF TRACTOR NO.KA-35/T-0391, R/O: BETAGERI TQ & DIST: KOPPAL.

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HC-KAR

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SMT. SARASWATHI W/O LATE HANUMAPPA HUVAKKANAVAR, AGE:24 YEARS OCC: HOUSEHOLD WORK, R/O: MORNAL TQ & DIST: KOPPAL.

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KUMAR MADDANISWAMI S/O LATE. HANUMAPPA HUVAKKANAVAR, AGE: 7 YEARS, OCC:STUDENT MINOR GUARDIAN NATURAL MOTHER SMT.SARASWATHI W/O LATE.HANUMAPPA HUVAKKANAVAR, RESPONDENT NO.3 AGE:24 YEARS, OCC: HOUSEHOLD WORK R/O: MORNAL, TQ & DIST: KOPPAL.

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SRI. SHIVARAYAPPA S/O SANGAPPA HUVAKKANNAVAR, AGE:64 YEARS OCC: AGRICULTURE, R/O: MORNAL TQ & DIST: KOPPAL.

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SMT. TIPPAMMA W/O SHIVARAYAPPA HUVAKKANAVAR, AGE:58 YEARS OCC:HOUSEHOLD WORK R/O:MORNAL, TQ & DIST: KOPPAL.

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…RESPONDENTS

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(BY SRI. S.S. JOSHI, ADV FOR R1, SRI. ABHISHEK BARIGIDAD, ADV FOR SRI. M.T. BANGI, ADV FOR R2 TO R6)

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THIS MFA CROB IN MFA NO.20310/2013 IS FILED U/O.41 RULE 22 OF CPC, AGAINST THE JUDGMENT AND AWARD DATED 26.07.2012 PASSED IN MVC NO.182/2011 ON THE FILE OF THE MEMBER, ADDL. MACT AND DISTRICT & SESSIONS COURT, KOPPAL, AWARDING THE COMPENSATION OF RS.8,20,600/- WITH INTEREST AT THE RATE OF 6% P.A. FROM THE DATED OF PETITION TILL ITS REALISATION.

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THIS APPEAL & CROSS OBJECTION, COMING ON FOR HEARING, THIS DAY, THE JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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NC: 2025:KHC-D:11863 MFA No. 20310 of 2013 C/W MFA.CROB No. 100164 of 2015

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HC-KAR

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CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)

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This Appeal and the cross objection arise out of

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the judgment and award dated 26.07.2012 passed in MVC No.182/2011 by the learned MACT, Presiding Officer, and the District and Sessions Judge, Koppal, (for short ‘the Tribunal ’).

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Brief facts, leading rise to the filing of this appeal and the cross objection are as follows:

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It is the case of the petitioners that, the deceased Hanumappa met with an accident on 10.02.2011, and the accident occurred due to the rash and negligent driving of the driver of the Tractor bearing Reg.No.KA-35/T-0391 and trolley No.MYR-1602. The accident occurred due to the rash and negligent driving of the driver of the offending vehicle. The petitioners, being his legal representatives, filed a claim petition under Section 166 of the Motor Vehicles Act, 1988,

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HC-KAR

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seeking compensation for the death of Hanumappa in a road traffic accident. Hence, prays to allow the claim petition.

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The driver and the owner of the offending tractor appeared before the Tribunal, and the owner has filed a statement of objections, which is adopted by the driver of the offending tractor.

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The owner of the offending vehicle filed a statement of objections, denying the averments made in the claim petition, and contended that the policy was valid from 07.09.2010 to 06.09.2011. It is contended that the driver of the offending vehicle had a valid and effective driving license as of the date of the accident and that it was insured with the insurance company as of the date of the accident. There is no breach of policy conditions. Hence, prays to dismiss the claim petition against the owner of the offending vehicle.

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HC-KAR

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The Insurance Company filed its statement of objections denying the averments made in the claim petition and contended that the driver of the offending vehicle did not possess a valid and effective driving license as of the date of the accident and there is a breach of policy conditions. Therefore, the Insurance Company is not liable to pay the compensation amount as claimed by the petitioners. The petition is bad for non joinder of the necessary parties. Hence, prays to dismiss the claim petition against the Insurance Company.

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The petitioners, to substantiate their claim, petitioner No.1 was examined as PW-1, one witness was examined as P.W.2, and marked 7 documents as Ex.P1 to P7. In rebuttal, the officer of the Insurance Company was examined as R.W.1, and produced five documents marked as Ex.R1 to R-5.

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The Tribunal, after assessing the verbal and documentary evidence, allowed the claim petition in part

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NC: 2025:KHC-D:11863 MFA No. 20310 of 2013 C/W MFA.CROB No. 100164 of 2015

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HC-KAR

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with costs vide judgment dated 26.07.2012, and awarded a compensation of Rs.8,20,600/- with interest at the rate of 6% per annum from the date of the petition till its realsiation. It is held that the owner and driver of the offending vehicle are jointly and severally liable to pay the compensation. The petition against respondent No.3 before the tribunal -the Insurance Company was dismissed.

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The petitioners, being dissatisfied with the quantum of compensation, filed the appeal in MFA No. 20310/2013, and the owner, being aggrieved by the liability fastened on him, preferred the cross-objection in MFA CROB NO100164/2015.

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Heard the arguments of the learned counsel for the petitioners, learned counsel for the owner, and the learned counsel for the Insurance Company.

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Learned counsel for the petitioners submits that the compensation awarded by the Tribunal is on the lower side. He submits that the Tribunal should have fastened the

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HC-KAR

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liability jointly and severally on the respondents therein i.e., before the tribunal. He also submits that, if there is any breach of the policy conditions, the Tribunal should have directed the Insurance Company to pay the compensation amount in the first instance, and recover the same from the owner of the offending vehicle. Hence, on these grounds, he prays to allow the appeal filed by the petitioners.

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Learned counsel for the owner of the vehicle submits that there is no breach of the policy conditions, and as of the date of the accident, the offending vehicle was insured with the Insurance Company. He also submits that the driver of the offending vehicle possessed a valid and effective driving license as of the date of the accident. Therefore, the Insurance Company is liable to pay the compensation amount awarded by the Tribunal. Hence, on these grounds, he prays to allow the cross objection.

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Learned counsel for the Insurance Company submits that there is no fitness certificate issued by the

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HC-KAR

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concerned authority. He submits that there is a breach of the policy conditions, and the Tribunal was justified in dismissing the claim petition against the Insurance Company. Hence, on these grounds, he prays to dismiss the appeal and the cross objection.

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Perused the records, and considered the submissions of the learned counsel for the parties.

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The point that would arise for consideration is regarding the liability and the quantum of compensation.

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There is no dispute regarding the occurrence of the accident and the death of Hanumappa in the road traffic accident. The accident occurred due to the rash and negligent driving of the driver of the offending vehicle. The petitioners produced the FIR at EX.P1 and the Post Mortem report at EX. P3 to prove that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle and due to the same the deceased succumbed to the injuries. The Tribunal was justified in answering issue

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HC-KAR

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No.1 in the affirmative. I concur with the findings recorded by the Tribunal on issue No.1.

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Reg. Liability:

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The Insurance Company has taken a specific defense in the statement of objections that the owner of the offending vehicle has not produced the fitness certificate. There is a breach of the policy conditions. Admittedly, the offending vehicle was insured with the Insurance Company. In view of the proposition laid down by the Full Bench of this court in the case of NEW INDIA ASSURANCE COMPANY LTD BIJAPUR, BY ITS DIVISIONAL MANAGER VS. YALLAVVA AND ANOTHER reported in 2020 (2) AKR 484 , wherein it is held that, having regard to Section 149(1) r/w Section 149(7) whenever a case falls under Section 149(2)(a) and the same is successfully established or proved by the Insurance Company, it is the duty of the Insurance Company to satisfy the judgment and award against the person insured regarding third party risks. Hence, the

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HC-KAR

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Insurance Company shall pay the compensation amount with accrued interest in the first instance and recover the same from the owner of the offending vehicle. In view of the same, the point regarding liability is answered accordingly.

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Reg. Quantum of compensation:

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It is the case of the petitioners that the deceased Hanumappa was an agriculturist, and earning Rs. 10,000/p.m. The petitioners have not produced any documents to prove the income of the deceased. In the absence of proof of income, the notional income has to be assessed as per the guidelines issued by the Karnataka State Legal Services Authority. The accident occurred in 2011. Hence, the notional income is taken at Rs.6,000/-. The deceased was aged 28 years old, as of the date of the accident. As per the proposition laid down by the Hon’ble Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED VS PRANAY SETHI

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AND OTHERS reported in (2017) 16 SCC 680, 40% future prospects is to be added to his notional income, i.e.,

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HC-KAR

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Rs.6,000+ Rs.2,400 = Rs.8,400/-, and 1/4^th of his income

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has to be deducted towards his personal expenses,

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wherein, his income comes to Rs.6,300/-. The multiplier applicable to the age group is ‘17’. Thus, the petitioners are entitled to a compensation of Rs.12,85,200/- (Rs. 6,300/-x 12 x 17) under the head loss of dependency. The petitioners are also entitled to a compensation of Rs.1,92,000/(Rs.48,000/- x 4) under the head loss of consortium, Rs.36,000/- under the head funeral expenses, and the loss of estate.

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Thus, the petitioners are entitled to a total

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compensation, which is as follows:

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Particulars	Compensation amount in (Rs.)
Loss of dependency (Rs.6,300/-x 12x 17)	12,85,200/-
Loss of consortium( 48000x4)	1,92,000/-
Funeral expenses and loss of Estate	36,000/-
Total	15,13,200/-
Compensation awarded by the Tribunal	8,20,600/-
Enhanced compensation	6,92,600/-

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HC-KAR

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The petitioners are entitled to a total compensation

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of Rs. 15,13,200/- as against Rs. 8,20,600/- i.e., to an enhanced compensation of Rs. 6,92,600/-. In view of the same, the point regarding the quantum is answered accordingly.

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Accordingly, I proceed to pass the following:

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ORDER

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(i) The Cross objection in MFA CROB No. 100164/2015 filed by the owner of the offending vehicle is dismissed.

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(ii) The Appeal filed by the petitioners in MFA NO. 20310/2013 is allowed in part.

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(iii) The impugned judgment and award dated 26.07.2012, passed in MVC No.182/2011 by the learned MACT, Presiding Officer, and the District and Sessions Judge, Koppal, is hereby modified.

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(iv) The petitioners are entitled to a total compensation of Rs.15,13,200/- as against Rs.8,20,600/- awarded by the Tribunal. The

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petitioners are entitled to an enhanced compensation is Rs.6,92,600/- with interest at 6% per annum from the date of the petition till realization of the amount.

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(v) The Insurance Company is directed to deposit the entire compensation amount with accrued interest within 8 weeks from the date of receipt of a copy of this judgment, and recover the same from the owner of the offending vehicle, in accordance with law.

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(vi) The Tribunal records, and the amount in deposit, if any, shall be transmitted to the Tribunal concerned, forthwith.

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Sd/(ASHOK S. KINAGI) JUDGE

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MBS CT: BSB List No.: 1 Sl No.: 3

Saraswathi W/O Late Hanumanthappa Huvakkanavar v. the United India Insurance Co.Ltd

Case brief

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Saraswathi W/O Late Hanumanthappa Huvakkanavar v. the United India Insurance Co.Ltd

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