Smt Jayamma Vs M/S Kps Trans Solution Pvt. Ltd.

THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 31.05.2023 PASSED IN MVC NO.602/2017 ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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NC: 2025:KHC:30978 MFA No. 8080 of 2023

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HC-KAR

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CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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ORAL JUDGMENT

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Aggrieved by the award passed in MVC.No.602/2017 dated 31.05.2023 by the learned III Additional District and Sessions Judge, Ramaganagara, the appellants/claimants are before this Court questioning the liability fixed on the owner of the vehicle and also seeking enhancement of the compensation.

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The facts of the case is that on 11.12.2017 at about 05:00 a.m., when the deceased Sri. Shivakumar.M.P was traveling in goods vehicle, by loading the vegetables, when the said vehicle reached near Eaden Golf Club, Mayaganahalli Village, Kasaba Hobli, a Lorry was parked without following traffic rules and without any light, the goods vehicle dashed to the said Lorry and as a result the deceased sustained grevious injuries and died on spot.

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The claimants have filed the petition seeking compensation of an amount of Rs.1,00,00,000/- (Rupees One Crore) for the death of the deceased which came to be allowed in-part and the Tribunal had granted an amount of Rs.14,33,120/- with interest at 9% per annum. When it

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come to the liability, the Tribunal had fixed the liability on respondent No.1/owner of the vehicle on the ground that towards premium amount, a cheque was given on 03.10.2017 and the same was returned as 'insufficient funds' on 06.10.2017. Immediately, on 07.10.2017, the same was communicated to the owner of the vehicle and it was received and the acknowledgment is marked as Ex.R6. Basing on this, the Tribunal had held that the Insurance Company is not liable to pay the compensation. The Tribunal had granted compensation of an amount of Rs.14,33,120/- as per the table given below:

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SL. No.	Heads		C	ompensation Awarded
1.	Loss of Financial Dependency	:	Rs.	13,38,120/-
2.	Loss of Consortium	:	Rs.	40,000/-
3.	Funeral Expenses	:	Rs.	15,000/-
4.	Loss of Love and Affection	:	Rs.	20,000/-
5.	Lost to Estate	:	Rs.	10,000/-
6.	Medicines and Medical Expenses	:	-	00/-
7.	Transportation of Dead Body	:	Rs.	10,000/-
8.	Pain and Suffering	:	-	00/-
	TOTAL	:	Rs.	14,33,120/-

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Learned counsel appearing for appellants/claimants

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has relied on the judgment of the Hon'ble Apex Court in case of Daddappa and Others vs. Branch Manager, National Insurance Co. Ltd¹ ., at paragraph No.28, which reads as follows:

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"However, as the appellant hails from the lowest strata of society, we are of the opinion that in a case of this nature, we should, in exercise of our extraordinary jurisdiction under Article 142 of the Constitution of India, direct the respondent No.1 to pay the amount of claim to the appellants herein and recover the same from the owner of the vehicle, viz., respondent No.2, particularly in view of the fact that no appeal was preferred by him. We direct accordingly."

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Learned counsel has also relied on the judgment of

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the Madras High Court in the case of Prema and Others Vs. Sampathkumar and Others² , at paragraph No.12, which reads as follows:

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"In view of the foregoing discussions, the judgment passed by the Tribunal for pay and recover is liable to be confirmed and accordingly it is confirmed and the insurance company is directed to pay the compensation to the claimants and thereafter the same from the owner of the vehicle, in accordance with law."

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1 2008 ACJ 581

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2 2020 ACJ 2283

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Relying on the judgment of Daddappa's case referred supra, learned counsel submits that in similar facts and circumstances, the Hon'ble Apex Court had observed that as the claimant hails from the lowest strata of society, they are of the opinion that in a case of this nature, in exercise of the extraordinary jurisdiction under Article 142 of the Constitution of India directed the Insurance Company to pay the amount and recover the same from the owner of the offending vehicle. Relying on the judgment of Prema's case referred supra , learned counsel submits that in this case also, the pay and recover has to be applied and the Insurance Company shall pay the amount and recover the same from the owner of the vehicle as he is a third party.

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Learned counsel appearing for respondents submits that, when there is no policy, the question of fixing liability on the Insurance Company to pay the compensation will not arise. Pay and recover will apply as per the judgment of the Hon'ble Apex Court and other judgments where there are certain violations of the terms and conditions of the policy. But, here it is a case where there is no policy at all. As such, the Tribunal

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had rightly held that the Insurance Company is not liable to pay the compensation.

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The appellants as per the order passed by this Court, had taken notice to respondent No.1/owner of the offending vehicle by way of substituted service and this Court by order dated 11.08.2025 held that the notice to respondent No.1 is held sufficient.

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Having heard the learned counsel on either side, perused the entire material on record. In this case, admittedly, the accident had occurred on 11.12.2017 and towards the policy premium, a cheque was issued on 03.10.2017 and the same was returned on 06.10.2017. It was informed to the owner of the vehicle on 07.10.2017, the acknowledgement is also marked before the Court, these are all the undisputed facts. The accident took place on 11.12.2017, much after the Insurance policy was cancelled. In those circumstances, the question of the liability of the Insurance Company will not arise. The Insurance policy is a contract between the insurer and insured. The Motor Vehicles Act, 1988 (for short 'Act of 1988') is a beneficial legislation considering certain aspects with

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regard to the permits and driving license. On these aspects, the law is laid down with regard to "pay and recover", but the Court considering the plight of the claimants, cannot impose an order on the Insurance Company to pay the amount and recover the same from the owner of the vehicle, when there is no contract between the insurer and insured. The judgment of the Hon'ble Apex Court relied on by the learned counsel for appellants/claimants invoking Article 142 of the Constitution of India cannot be considered as a precedent and this Court contrary to the settled law cannot direct the Insurance Company to pay an amount and recover the same from the owner of the vehicle.

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As far as enhancement of compensation is concerned, learned counsel appearing for the appellants/claimants submits that the deceased was working as watchman and earning an amount of Rs.7,965/- per month and also doing agriculture. Every day, he was selling vegetables and from both, he was earning an amount of Rs.30,000/- per month. The Tribunal has taken the income of the deceased as only an amount of Rs.7,965/- per month, but, the Tribunal failed to take the income at an amount of Rs.30,000/- per

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month. Learned counsel submits that if the Tribunal has not considered the income at an amount of Rs.30,000/- per month, as this accident had occurred in the year 2017, the Court ought to have taken the income at an amount of Rs.11,000/- per month as per the table. No doubt, there is nothing to prove that the deceased was getting income out of agriculture and getting an income of an amount of Rs.30,000/- per month, but it ought to have taken the notional income at an amount of Rs.11,000/- per month. Hence, this Court is taking the income of the deceased at an amount of Rs.11,000/- per month. It is also submitted that the father died during the pendency of the trial. The Court had deducted 1/3^rd of the income towards personal expenses in view of death of father of the deceased during trial. It is submitted that on the date of the accident, the father of the deceased was alive and hence there were 4 dependants. Therefore, the Tribunal ought to have deducted 1/4^th towards personal expenses. In that view of the matter, the Court ought to have deducted 1/4^th but not 1/3^rd .

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The income of the deceased is taken as Rs.11,000/per month, 40% future prospects is to be added, which comes to an amount of Rs.4,400/-. Out of which 1/4^th should be

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deducted towards personal expenses i.e., Rs.11,000+4400 (40% future prospects) = Rs.15,400/- - Rs.3,850/- (1/4^th towards personal expenses of the deceased) = Rs.11,550/-. As on the date of the accident, the deceased was aged about 36 years. The appropriate multiplier applicable is '15'. Hence, this Court is granting an amount of Rs.20,79,000/- (Rs.11,550 x 12 x 15) towards loss of dependency .

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Towards loss of consortium , the claimants are entitled for an amount of Rs.44,000/- each i.e., (44,000 x 4) Rs.1,76,000 /-. Towards funeral expenses this Court is granting an amount of Rs.36,000/- and in the light of the law laid down by the Hon'ble Supreme Court in the case of V.Mekala Vs. M. Malathi And Another³ , the claimant is entitled for an amount of Rs.10,000/- towards Legal Expenses .

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The appellants/claimants are therefore, entitled to the compensation under the following heads:

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3 (2014) 11 SCC 178

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SL. No.	Heads		Co A	mpensation warded by Tribunal	Compensation Awarded by this Court
1.	Loss of Financial Dependency	:	Rs.	13,38,120/-	20,79,000/-
2.	Loss of Consortium	:	Rs.	40,000/-	1,76,000/-
3.	Funeral Expenses	:	Rs.	15,000/-	36,000/-
4.	Loss of Love and Affection	:	Rs.	20,000/-	00/-
5.	Lost to Estate	:	Rs.	10,000/-	00/-
6.	Medicines and Medical Expenses	:	-	00/-	00/-
7.	Transportation of Dead Body	:	Rs.	10,000/-	00/-
8.	Legal expenses	:	-	00/-	10,000/-
	TOTAL	:	Rs.	14,33,120/-	23,01,000/-
	Enhancement	:	Rs.	8,67	,880/-

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Altogether, the claimants are entitled for

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compensation of an amount of Rs.23,01,000/- .

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Accordingly, the appeal filed by the claimants is partly allowed by enhancing the compensation from an amount of Rs.14,33,120/- to Rs.23,01,000/- .

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i) The enhanced amount shall carry interest at 6% per annum from the date of petition till the date of realization.

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ii) The apportionment of the amount shall be as per the order passed by the Tribunal.

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iii) Respondent No.2/Insurance Company is not liable to pay the compensation and the owner alone is liable to pay the compensation.

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iv) The respondent No.1/owner of the vehicle shall pay the compensation and deposit the amount within a period of eight weeks from the date of receipt of copy of the judgment. On such deposit, the claimant is entitled to withdraw the entire amount.

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v) No costs.

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vi) Pending miscellaneous petitions, if any, shall stand closed.

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SD/(LALITHA KANNEGANTI) JUDGE

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PHM

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List No.: 1 Sl No.: 7

Smt Jayamma v. M/S Kps Trans Solution Pvt. Ltd.

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Smt Jayamma v. M/S Kps Trans Solution Pvt. Ltd.

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