Smt H K Bhagyamma Vs B M Thippeswamy

THE BRANCH MANAGER THE ORIENTAL INSURANCE CO LTD., BRAMNCH OFFICE, 1ST FLOOR, SHARADA COMPLEX, OPP. KSRTC BUS STAND, B.D.ROAD, CHITRADURGA TOWN-577501.

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…RESPONDENTS

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(BY SRI. RAVISHANKAR A., ADVOCATE FOR R2 R1 - SERVED)

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THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE

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JUDGMENT AND AWARD DT.26.08.2019 PASSED IN MVC NO.393/2018 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, MACT-IV, CHITRADURGA, 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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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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HC-KAR

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ORAL JUDGMENT

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This appeal is filed by the claimants seeking enhancement of compensation being aggrieved by the judgment and award dated 26.08.2019 passed in M.V.C. No.393/2018 by the Court of I Addl. Senior Civil Judge & Addl. M.A.C.T. No.IV at Chitradurga (for short, ‘Tribunal’).

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Though this appeal is listed for orders, with the consent of learned counsel for the parties, it is taken up for final disposal.

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Sri.B.Pramod, learned counsel appearing for the appellants-claimants submits that the Tribunal has committed a grave error in dismissing the claim petition against the Insurance Company without considering the settled position of law. It is submitted that the rejection of the claim petition by the Tribunal against the Insurance Company is solely based on the fact that the rider of the motorcycle was not having a valid and effective driving licence as on the date of the accident. In such cases, the Tribunal ought to have directed the Insurance Company to

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HC-KAR

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pay the compensation and recover the said amount from

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the owner of the vehicle. It is further submitted that insofar as quantum of compensation is concerned, the Tribunal has erred in assessing the income of the deceased and also awarded meager compensation on the other heads. In support of his contention, he places reliance on the decision of the Hon'ble Supreme Court in the case of K. Nagendra vs. New India Insurance Co. Ltd. and others¹ . Hence, he seeks to allow the appeal.

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Sri. Ravishankar A., learned counsel appearing for respondent No.2 - Insurance Company supports the judgment and award of the Tribunal and submits that the Tribunal has recorded a detailed finding as to why the Insurance Company's liability has been exonerated. It is submitted that the case of the Insurance Company was that one Sri.Venkatesh Prasad was the rider of the motorcycle and he was not having a driving licence. Hence, a false complaint has been registered stating that

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1 2025 SCC OnLine SC 2297

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HC-KAR

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Sri. G.T.Ashok Kumar was the rider of the motorcycle and in the said accident, one Manoj Kumar M.S. sustained fatal injuries and died. It is submitted that the Tribunal at paragraphs 14 and 16 has recorded a clear finding that the said Venkatesh Prasad who claims that he was a pedestrian, whom the motorcycle hit from the back side did not sustain any injuries, creates suspicion with regard to the fact that who was the rider of the motorcycle and proceeded to dismiss the claim petition against the Insurance Company, which does not call for any interference. He adds that the award of compensation by the Tribunal is just and fair which does not call for any modification. Hence, he seeks to dismiss the appeal.

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There is no representation for respondent No. 1, though served.

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I have heard the arguments of learned counsel for the appellants-claimants, learned counsel for respondent No.2 and meticulously perused the material available on record.

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HC-KAR

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It is to be noticed that the parents and sister of the deceased - Manoj Kumar M. S. filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking for compensation of Rs.50,00,000/-. In support of the claim, claimant No.1 examined herself as PW.1 and got marked Exhibits - P1 to P12. The respondent No.2 examined himself as RW.1 and got marked insurance policy as Ex.R1. The Tribunal considering the oral and documentary evidence on record, recorded the finding that the rider of the motorcycle was not having a driving license and there is a doubt with regard to who was riding the motorcycle and proceeded to dismiss the claim petition against respondent No.2-Insurance Company and awarded compensation of Rs.13,90,800/- along with interest at the rate of 7% p.a., from the date of petition till the date of deposit and respondent No.1-owner of the vehicle was ordered to pay the compensation.

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It is to be noticed that insofar as the finding of

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the Tribunal with regard to non-possession of the driving

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HC-KAR

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licence by the rider of the motorcycle is concerned, the Tribunal at paragraph 20 has clearly recorded the finding that despite sufficient opportunity, the owner of the vehicle has failed to produce the driving licence.

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Be that as it may, the Tribunal has also recorded the finding with regard to the fact as to who was riding the motorcycle on the date of accident in paragraphs 14 and 16. It is to be noticed that the police complaint was registered by Sri. Venkatesh Prasad, who has clearly stated before the police that Ashok Kumar G.T. was riding the motorcycle and deceased Manoj Kumar was a pillion rider. The motorcycle hit Sri.Venkatesh Prasad from back side. The said complaint is produced as ExhibitP2 and based on such a complaint, FIR was registered which is marked as Exhibit-P1. The jurisdictional police after completion of the investigation, filed a charge sheet which is marked at Exhibit-P7 against the rider of the motorcycle i.e. Ashok Kumar G.T. The said aspect is unchallenged by the Insurance Company in any of the

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HC-KAR

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proceedings. The contentions of the Insurance Company is that there is a suspicion with regard to the fact that who was riding the motorcycle cannot be looked into at this stage. It is a trite law that in cases where there is a fake driving licence or no driving licence, the Insurance Company is liable to pay the compensation and recover the same from the owner of the vehicle. The Hon'ble Supreme Court in K.Nagendra's case referred supra at paragraph Nos.7.3 and 10 held as under:

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"7.3. In Parminder Singh v. New India Assurance Co. Ltd., this Court approved the application of this principle in cases where the driver of the offending vehicle does not possess a valid driving license.

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10. At the same time though, when an Insurance Company takes on a policy and accepts payments of premium in pursuance thereto, it agrees to do so within certain bounds. The contract lays down the four corners within which such an insurance policy would operate. If that is the case, to expect the insurer to pay compensation to a third party, which is clearly outside the bounds of the said agreement would be unfair. Balancing the need for payment of compensation to the victim vis-àvis the interests of the insurer, the order of the High Court applying the pay and recover principle, in our

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considered view, is entirely justified and requires no interference."

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(Emphasis supplied)

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Keeping in mind the enunciation of law laid

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down by the Hon'ble Supreme Court referred supra, I am of the considered view that the Tribunal has committed a grave error in dismissing the claim petition against the Insurance Company. The Tribunal ought to have directed the Insurance Company to pay the compensation amount and recover the same from the owner of the vehicle for violation of the conditions of the policy.

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Insofar as the quantum of compensation is concerned, it is averred that the deceased was second year diploma student, crossed 18 years and also doing agricultural activity. However, no evidence to the said effect is produced. In the absence of proof of income, this Court normally places reliance on the notional income chart prepared by the Karnataka State Legal Services Authority and assesses the income. It is to be noticed that

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HC-KAR

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the accident is of the year 2017. Hence, the notional income as per the chart is Rs.11,000/-.

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Having assessed the income at Rs.11,000/- and considering the age of the deceased as '18', the appropriate multiplier would be 18 the claimants are also entitled to addition of 40% to the assessed income under

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the head of 'loss of future prospects'. Admittedly, the deceased was a bachelor. Hence, appropriate deduction would be 50% from the assessed income towards personal living expenses. Hence, 'loss of dependency' is hereby re-assessed as under:

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Rs.11,000+40%-50% = Rs.7,700/-

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Rs.7,700 x 12 x 18 = Rs.16,63,200/-

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The claimants are the parents and sister of the

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deceased. All of them are entitled to compensation under the head of 'loss of consortium' at the rate of Rs.40,000/with 10% escalation each (Rs.40,000 + 10% = Rs.44,000). Hence, the 'loss of consortium' comes to Rs.1,32,000/- (Rs.44,000x3). The claimants are entitled

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HC-KAR

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for the compensation under the head of 'loss of estate' at Rs.16,500/- which includes 10% escalation. Further, a sum of Rs.16,500/- is granted towards the 'transportation of dead body and funeral expenses' . The Tribunal has erred in not considering Exhibits - P11 & P12 which are medical bills produced by the claimants and those amount is being admitted. Hence, the claimants are entitled for re-imbursement of the same for a sum of Rs.85,000/- . Thus, the appellants-claimants would be entitled to modified compensation as under:

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HEADS	AMOUNT (in Rs.)
Loss of dependency	16,63,200/-
Loss of consortium	1,32,000/-
Transportation of dead body & funeral	16,500/-
expenses
Loss of estate	16,500/-
Medical expenses	85,000/-
Total	19,13,200/-

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HC-KAR

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Thus, the appellants-claimants shall be entitled

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to a total compensation of Rs.19,13,200/- as against Rs.13,90,800/- awarded by the Tribunal.

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In the result, this Court proceeds to pass the

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following:

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ORDER

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i) Appeal is allowed in part .

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ii) The impugned judgment and award dated 26.08.2019 passed by the Tribunal is modified to an extent that the appellantsclaimants would be entitled to total compensation of Rs.19,13,200/- as against Rs.13,90,800/- awarded by the Tribunal.

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iii) The enhanced compensation shall carry interest at the rate of 6% p.a. from the date of petition till its realisation.

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iv) The respondent No.2 - Insurance Company is directed to deposit the compensation amount before the Tribunal within a period of 6 weeks from the date of receipt of certified copy of this judgment and liberty is reserved

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