Sri Rama Huliyappa Harikantra Vs Smt Kausar

ADITHYA RAMA HARIKANTRA S/O RAMA HULIYAPPA HARIKANTRA @ RAMA H HARIKANTRA @ HULIYAPPA HARIKANTRA AGED ABOUT 17 YEARS, SINCE MINOR REPRESENTED BY HIS FATHER RAMA HULIYAPPA HARIKANTRA @ RAMA H HARIKANTRA @ HULIYAPPA HARIKANTRA ALL ARE RESIDENTS OF HOSKATTA SANIKATTA, KUMTA TALUK UTTARA KANNADA KARNATAKA PIN-581 326

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…APPELLANTS

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(BY SRI. JEEVAN K, ADVOCATE)

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AND:

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SMT KAUSAR W/O MOHAMMAD MUSTHAFA AGED ABOUT 29 YEARS, R/AT 4-176, MADINA MANZIL NEAR AYYANGAR BAKERY JOKATTE, MANGALURU TALUK D.K-574 173

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SHRIRAM GENERAL INSURANCE COMPANY E8, RICCO INDUSTRIAL AREA SITAPUR JAIPUR-302 022

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…RESPONDENTS

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(BY SRI. O MAHESH, ADVOCATE FOR R2 NOTICE TO R1 IS HELD SUFFICIENT V/O DTD 25.9.2024)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.04.2018 PASSED IN MVC NO.918/2015 ON THE FILE OF THE PRL DISTRICT JUDGE MACT, D.K. MANGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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3 -

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NC: 2025:KHC:27838 MFA No. 6260 of 2018

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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The present appeal is filed by the claimants calling in question the judgment and award dated 17.04.2018 passed in MVC No. 918/2015 by the Principal District Judge, MACT., D.K., Mangaluru¹ , whereunder the Tribunal has partly allowed the claim petition and awarded a total compensation of `18,87,900/- together with interest @ 6% per annum. However, the Tribunal noticing that the driver of the insured vehicle did not have a valid licence at the time of accident, has exonerated the insurer from payment of compensation and directed that the respondent No.1 – owner to pay the compensation together with accrued interest.

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Heard the submissions of learned counsel Sri K.Jeevan for the appellants-claimants and learned counsel Sri O.Mahesh for respondent –insurer. Respondent No.1 – owner of the vehicle is served and unrepresented.

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Learned counsel for the claimants assailing the findings of the Tribunal exonerating the insurer from the payment of

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1 Hereinafter referred to as the ‘Tribunal’

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HC-KAR

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compensation relying on the judgment of the Hon'ble Supreme Court in the case of Shamanna and another Vs. Divisional

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Manager, Oriental Insurance Company Limited and others² contends that the compensation awarded is required to be paid by the insurer with liberty to recover the same from the owner of the vehicle. It is also contended that the quantum of compensation awarded is on the lower side and seeks for enhancement of the same.

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Per contra, learned counsel for the insurer justifying the finding of the Tribunal on liability, relies on a Division Bench judgment of this Court in the case of Hemalatha @ Hema @ Hemavathi Vs. Bajaj Allianz General Insurance Company

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Ltd.,³ contends that the owner is liable to pay the compensation awarded. It is further contended that the quantum of compensation awarded by the Tribunal is just and proper. It is further contended that the owner of the vehicle has not challenged the finding of the Tribunal. Hence learned counsel seeks for dismissal of the above appeal.

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2 (2018) 9 SCC 650

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3 High Court of Karnataka, Bengaluru in MFA No.6154/2019 D.D. No.14.12.2023

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HC-KAR

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The submissions of the learned counsels have been considered and the material on record including the records of the Tribunal have been perused. The questions that arise for consideration are:

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(i) Whether the Tribunal was justified in exonerating the insurer from payment of compensation and fastening the liability on the owner of the vehicle?

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(ii) Whether the quantum of compensation awarded by the Tribunal is just and proper?

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Re. Question No.(i):

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The Tribunal, while considering the aspect of liability, has noticed that the charge sheet has been filed against the driver of the offending vehicle under Sections 134 (A) and (B) of the Motor Vehicles Act, 1988⁴ , and hence held that the driver of the offending vehicle is not having a driving licence at the time of the accident. Relying on various judgments, the Tribunal has recorded a finding that the insurer is not liable to pay the compensation awarded and fastened the liability to pay the compensation on the owner of the vehicle.

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4 Hereinafter referred to as ‘the Act’

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HC-KAR

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In the case of Shamanna² relied upon by the learned counsel for the appellants, the Hon'ble Supreme Court was considering a fact situation where the driver of the insured vehicle had no valid license to drive the vehicle at the time of the accident. In the said fact situation, it was held as follows:

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As per the decision in Swaran Singh Case (National Insurance Co.Ltd., V. Swaran Singh – (2004) 3 SCC 297), onus is always upon the insurance company to prove that the driver had no valid driving licence and that there was breach of policy conditions. Where the driver did not possess the valid driving licence and there are breach of policy conditions, “pay and recover” can be ordered in case of third-party risks.

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(emphasis supplied)

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A Division Bench of this Court in the case of The Divisional

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Manager Vs. Smt. Gayitri w/o. Halappa⁵ noticing the judgments of the Hon'ble Supreme Court in the case of Shamanna² as well as in the case of Parminder Singh Vs. New India Assurance Company Limited and Others⁶ held

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that the insurer is liable to pay the compensation amount

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5 High Court of Karnataka, Dharwad Bench in MFA No.103508/2024 – DD No.22.04.2025

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6 (2019) 7 SCC 217

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HC-KAR

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awarded with liberty to recover the same from the owner of the vehicle.

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Reliance placed by the learned counsel for the insurer on a Division Bench judgment of this Court in the case of Hemalatha³ will not aid the case of the insurer having regard to the settled proposition of law as held by the Hon'ble Supreme Court in the case of Shamanna² and Parminder Singh⁶ a s noticed above.

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In view of the aforementioned discussions, it is required to be held that the insurer is liable to pay the compensation awarded with liberty to recover the same from the owner of the vehicle. Accordingly, question No. (i) is answered as partly in the affirmative.

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Re question No. (ii):

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The deceased was aged 23 years as on the date of the accident i.e., on 02.03.2014. Hence, the appropriate multiplier to be awarded is ‘18’.

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It is averred in the claim petition that the deceased was a Security Guard employed with a security agency viz., Private

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HC-KAR

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Eye (P) Ltd., and earning ₹15,000 per month. The representative of the employer has been examined as PW.2 and the Application form (Ex.P15), Bio-data (Ex.P16), Appointment Letter (Ex.P17) and the Combined Muster Roll/Register of Wages (Ex.P18) have been produced in support of the avocation of the deceased. The Tribunal appreciating the said documents has assessed the monthly income of the deceased at `11,640/-, which is just and proper.

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Having regard to the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Ltd v. Pranay Sethi⁷ , 50% is required to be added towards future prospects. Since the deceased was a bachelor, 50% of his income is required to be deducted towards personal expenses. Hence, the compensation towards loss of dependency is reassessed as (11,643/- + 50% - 50% x 12 x 18) 18,85,680/as against 18,15,840/- awarded by the Tribunal.

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Loss of consortium is required to be awarded to the claimant Nos.1, 2 and 3 in terms of the judgment of the

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7 (2018) 18 SCC 130

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HC-KAR

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Hon’ble Supreme Court in the case of Magma General Insurance Co.Ltd., v. Nanu Ram⁸ as well as a Division Bench of this Court in the case of Sri B. Vishwanath Kiran and United India Insurance Co. Ltd .,⁹ at ₹40,000/- each with escalation at 20%. Accordingly, the loss of consortium is reassessed as (₹48,000/-x3) at ₹1,44,000/-.

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The compensation towards loss of estate and funeral expenses is also required to be awarded at ₹15,000/- each together with escalation at 20%. Accordingly, the compensation towards the same is re-assessed as ₹18,000/each.

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In view of the compensation awarded on conventional heads, the compensation awarded by the Tribunal towards funeral expenses, love and affection, loss of consortium, transportation of dead body awarded by the Tribunal stand suitably modified/set aside. Hence, question No.(ii) framed for consideration is answered in the negative.

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8 2018 ACJ 2782

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9 High Court of Karnataka, Bengaluru in MFA No.4690/2016 and connected matters – D.D.25.09.2020

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HC-KAR

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Accordingly, the quantum of compensation is re-assessed

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as follows:

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Sl.No	Compensation Head	Amount Awarded by the Tribunal(`)	Amount awarded bythis Court(`)
1	Loss of income/ dependency	18,15,840.00	18,85,680.00
2	Loss of Estate	15,000.00	18,000.00
3	Funeral expenses	15,000.00	18,000.00
4	Transportation of dead body	2,000.00	00
5	Love and affection	40,000.00	00
6	Loss of consortium	00	1,44,000.00
7	Total	18,87,900.00	20,65,680.00

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Accordingly, the claimants are entitled to enhanced compensation of 20,65,680/- - 18,87,900/- = `1,77,780/-

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Taking judicial notice of the interest payable towards fixed deposits, it is just and proper to award interest at the rate of 7% p.a., on the compensation as re-assessed by this Court.

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In view of the aforementioned, the following:

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ORDER

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i) The appeal is allowed in part;

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HC-KAR

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ii) The judgment and award dated 17.04.2018 passed in MVC No. 918/2015 by the Principal District Judge, MACT., D.K., Mangaluru is hereby modified to the extent of holding that the claimants are entitled for a further compensation of `1,77,780/- together with interest @ 7% per annum from the date of petition till the date of payment in addition to the compensation awarded by the Tribunal;

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iii) The compensation awarded by the Tribunal as also enhancement made by this Court shall be paid by the insurer (respondent No.2) with liberty to recover the same from the owner of the vehicle (respondent No.1);

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iv) The compensation awarded by the Tribunal together with accrued interest be disbursed/apportioned in terms of the award of the Tribunal. However, compensation enhanced by this Court together with accrued interest shall be disbursed in favour of claimant No.3;

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