Full Judgment
-1- IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 11TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE C M JOSHI MISC. FIRST APPEAL NO.201887 OF 2018 (MV-D) C/W MISC. FIRST APPEAL NO.201590 OF 2019 (MV-D) IN MFA NO.201887/2018: BETWEEN:
1. SMT. BHAGYAMMA W/O LATE BHIMARAYA @ BHIMU, AGE: 34 YEARS, OCC: HOUSEHOLD,
2. KUMAR BASAVARAJA S/O LATE BHIMARAYA @ BHIMU, AGE: 09 YEARS, OCC: STUDENT,
3. KUMAR AMBU S/O LATE BHIMARAYA @ BHIMU, AGE: 07 YEARS, OCC: STUDENT,
4. KUMAR NAGARAJ S/O LATE BHIMARAYA @ BHIMU, AGE: 05 YEARS, OCC: STUDENT, Digitally signed by APPELLANTS NO.2 TO 4 ARE MINORS LUCYGRACE LUCYGRACE Date: U/G OF APPELLANT NO.1. 2025.02.13 10:52:12 -
5. SRI. SHARANAPPA S/O SIDDAPPA, AGE: 60 YEARS, OCC:NIL, (DIED ON 08-10-2017),
6. SMT. MAHADEVI W/O SHARANAPPA,
AGE: 58 YEARS, OCC: COOLIE, (DIED ON 24-12-2016), ALL ARE R/O: ANKALAGA VILLAGE, TQ. JEWARGI, DIST. KALABURAGI. …APPELLANTS (BY SRI. NAGARAJ PATIL, ADVOCATE) -2- AND:
1. MALLAPPA S/O ANNARAO, AGE: 36 YEARS, OCC: DRIVER, R/O: MALAGATTI VILLAGE, TQ. CHITTAPUR, DIST. KALABURAGI-585 211.
2. SRI. BENJAMIN S/O RANGAPPA, AGE: MAJOR, OCC: OWNER OF THE VEHICLE, R/O: HOUSE NO.E/95, MALAGATTI VILLAGE, TQ. CHITTAPUR, DIST. KALABURAGI-585 211.
3. CHOLAMANDALAM MS GENERAL INSURANCE CO. LTD., ASIAN PLAZA, 2ND FLOOR, STATION ROAD, NEAR S.V.PATEL CHOWK, KALABURAGI-585 102, THROUGH ITS OFFICER.
4. SRI ABDUL RAHAMAN S/O ABDUL RASHEED, AGE: MAJOR, R/O: PATHAN GALLI, SHAHABAD, TQ. CHITTAPUR, DIST. KALABURAGI-585 228. …RESPONDENTS (BY SRI. SUBHASH MALLAPUR, ADV. FOR R3; NOTICE TO R1 IS DISPENSED WITH VIDE ORDER DATED 23.09.2022; NOTICE TO R2 AND R4-SERVED, BUT UN-REPRESENTED) THIS MFA IS FILED UNDER SECTION 173 (1) OF THE
MOTOR VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT
AND AWARD DATED 12.07.2018 PASSED IN MVC.NO.836/2016 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC AT JEWARGI AND ALLOW THIS APPEAL BY ENHANCING THE COMPENSATION AMOUNT Rs.14,99,999/- ONLY AS CLAIMED BY THE APPELLANTS BEFORE THIS HON’BLE COURT AND ETC., -3- IN MFA NO.201590/2019: BETWEEN:
1. SMT. SARASWATI W/O RAYAPPA, AGE: 37 YEARS, OCC: HOUSEHOLD,
2. MAHADEVI D/O RAYAPPA, AGE: 20 YEARS, OCC: STUDENT,
3. NAGAMMA D/O RAYAPPA, AGE: 19 YEARS, OCC: STUDENT,
4. SIDDAPPA @ SIDDU S/O RAYAPPA, AGE: 16 YEARS, OCC: STUDENT, MINOR,
5. LAXMI D/O RAYAPPA, AGE: 10 YEARS, OCC: STUDENT, MINOR, APPELLANTS NO.4 & 5 ARE MINOR, U/G OF APPELLANT NO.1 SARASWATI.
6. MARLINGAPPA S/O RAYAPPA,
AGE: 63 YEARS, OCC: NIL, ALL ARE R/O: VILLAGE MALGATTI, TQ. CHITTAPUR, DIST. KALABURAGI, NOW RESIDING AT H.NO.231/2, GANGA NAGAR, BRAHMPUR, KALABURAGI. …APPELLANTS (BY SRI. NAGARAJ PATIL, ADVOCATE) AND:
1. BENJAMIN S/O RANGAPPA,
AGE: MAJOR, OCC: BUSINESS, OWNER OF TRUCK BEARING REG. NO.KA-39/4328 (AS PER RC BOOK), R/O: H.NO.E/95, VILLAGE MALGATTI, TQ. CHITTAPUR, DIST. KALABURAGI-585 211. -4-
2. SRI ABDUL RAHAMAN S/O ABDUL RASHEED, AGE: MAJOR, R/O: PATHAN GALLI, SHAHABAD, TQ. CHITTAPUR, DIST. KALABURAGI-585 228.
3. THE LEGAL MANAGER, CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, ASIAN PLAZA, NEAR TIMMAPURI CIRCLE, KALABURAGI-585 102. …RESPONDENTS (BY SRI. SUBHASH MALLAPUR, ADV. FOR R3; NOTICE TO R1 AND R2-SERVED, BUT UN-REPRESENTED) THIS MFA IS FILED UNDER SECTION 173 (1) OF THE
MOTOR VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT
AND AWARD DATED 17.10.2018 PASSED IN MVC.NO.601/2016 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND MACT AT KALABURAGI AND ALLOW THIS APPEAL BY ENHANCING THE COMPENSATION AMOUNT OF Rs.14,99,999/- ONLY AS CLAIMED BY THE APPELLANTS BEFORE THIS HON’BLE COURT AND ETC., THESE APPEALS COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: -5- CORAM: HON'BLE MR. JUSTICE C M JOSHI
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE C M JOSHI) Heard the learned counsel for the appellants and the respondents.
02. Being aggrieved by the judgments in
MVC.No.836/2016 by the learned Senior Civil Judge and JMFC, Jewargi and MVC.No.601/2016 by the Principal Senior Civil Judge and MACT, Kalaburgi, the petitioners have approached this Court in MFA.No.201887/2018 and MFA.No.201590/2019 respectively.
03. The respondents in both these appeals are one and the same.
04. The factual matrix of the case is that an
accident took place on 10.03.2016, wherein two persons by name by Bhimu @ Bhimaraya and Rayappa died in the accident and the petitioners are the dependents of the deceased. On 10.03.2016 the deceased - Bhimaraya and -6-
Rayappa were traveling in the Lorry bearing Reg.No.KA- 39-4323 owned by the respondent No.2 - Sri. Benjamin and they were transporting the Shahabad stones. The driver of the said vehicle drove the same in a negligent manner and about 2:00 p.m. while overtaking another vehicle, drove on the extreme right side and dash to the roadside bridge, resulting in the said Lorry turning turtle and fell into a ditch. Due to the said accident, the said Bhimu and Rayappa, who were in the said Lorry sustained fatal injuries and died while on the way to the hospital. The respective petitioners contended that Bhimu was aged 35 years, working as a coolie, earning Rs.12,000/- per month and the family has lost it's bread earner. As such, they are entitled for compensation. The dependents of Rayappa contended that the deceased was a getting a salary of Rs.12,000/- per month and Rs.200/- per day as Bhatta and they have lost their bread earner. As such, they are entitled for adequate compensation.
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05. On being served with the notice, the
respondents appeared and the respondent - insurance company contended that the driver of the Lorry was not having a valid driving license and there were violations of the terms and conditions of the policy. It has contended that the compensation claimed is highly exorbitant and imaginary. It also disputed the age, income and occupation of the deceased.
06. The Tribunal framed appropriate issues in both
these petitions and evidence was led. In MVC.No.836/2016, the petitioner No.1 was examined as PW.1 and 7 documents were marked as Ex.P.1 to Ex.P.7. The official of the respondent - insurance company was examined as RW.1 and Ex.R.1 to 4. In MVC.No.601/2016 the petitioner No.1 was examined as PW.1 and Ex.P.1 to Ex.P.11 were marked. The official of the insurance company was examined as RW.1 and Ex.R.1 to 4 were marked in the evidence. -8-
07. After hearing both the sides both the Tribunals
held that the insurance company is to be absolved from
paying any compensation on account of the vehicle being a heavy goods vehicle and the laden weight of it was 16,200 kgs. As such, the driver should have had a license to drive a transport vehicle. The driver having only a license to drive LMV. There is violation of the terms and conditions of the policy. Therefore, the liability to pay the compensation was a saddled upon the owner of the vehicle.
08. In MVC.No.836/2016 a compensation of Rs.9,34,000/- was awarded and in MVC.601/2016, a sum of Rs.13,35,760/- was awarded to the petitioners under the following heads:- IN MVC.NO.836/2016 :-
Sl. Heads Compensation No. Awarded 1. Loss of dependency Rs.8,64,000/-
(Rs.54,000/- x 16 (multiplier) = Rs.08,64,000/-
2. Loss of Estate Rs.15,000/-
3. Loss of love and affection Rs.40,000/-
4. Funeral expenses Rs.15,000/- Total Rs.8,34,000/- -9- IN MVC.NO.601/2016 :-
Sl. Heads Compensation No. Awarded 1. Loss of dependency for Rs.12,65,760/-
petitioners
2. On Traditional heads A. Loss of Estate Rs.15,000/- B. Towards funeral expenses Rs.15,000/- C. Loss of consortium Rs.40,000/- Total Rs.13,35,760/-
09. Being aggrieved by the said judgments, the petitioners have approached this Court in the appeal.
10. The learned counsel appearing for the
appellants submits that the Tribunals should have considered the un-laden weight of the vehicle as depicted from the ‘B’ extract of the registration certificate, which is at Ex.R1 and 4. It is submitted that un-laden weight of the vehicle was 6040 kgs. Therefore, the Tribunals failed to note that it is the un-laden weight, which has to be considered, but not the laden weight. Further, he submits that the compensation awarded by the Tribunals is on the lower side. The notional income of the deceased persons has not been considered in a proper way.
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11. A perusal of Ex.R.1 and 4, ‘B’ extracts of the registration certificates shows that the permitted laden weight is 16,200 kgs and the un-laden weight of the vehicle is 6040 kgs.
12. The Apex Court in the case of Mukund Dewangan v. Oriental Insurance Company Limited1, has held as below:- “60. Thus, we answer the questions which are referred to us thus:
60.1. “Light motor vehicle” as defined in Section 2(21) of the Act would include a transport vehicle as per the weight prescribed in Section 2(21) read with Sections 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act 54 of 1994. 60.2. A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg would be a light motor vehicle and also
(2017) 14 SCC 664 - 11 -
motor car or tractor or a roadroller, “unladen weight” of which does not exceed 7500 kg and holder of a driving licence to drive class of “light motor vehicle” as provided in Section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg or a motor car or tractor or roadroller, the “unladen weight” of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under Section 10(2)(d) continues to be valid after Amendment Act 54 of 1994 and 28-3-2001 in the form.”
13. It is also pertinent to note that the above
judgment of the Apex Court has been reiterated by a
Constitution Bench of the Court in the case of Bajaj Alliance General Insurance Company Limited vs. Ramba Devi and others2, in Civil Appeal No.841/2018.
(2024) 1 SCC 818 - 12 -
14. Therefore, there cannot be any doubt that it is
the un-laden weight which has to be considered. A feeble argument by the learned counsel for the respondent - insurance company is advanced saying that it is applicable to the transport vehicles, but not the heavy goods vehicles. Obviously, the Apex Court has noticed that the class of heavy goods vehicle has been removed in view of the 1994 amendment. Therefore, there is no such class of heavy goods vehicle for the purpose of issuing a license. Therefore, it is crystal clear that both the Tribunals have erred in holding that there is violation of terms and conditions of the policy, since the driver did not have a license to drive a transport vehicle. A license to drive LMV is sufficient. Therefore, the impugned judgments to that extent are to be set aside.
15. There is no acceptable evidence to show the
income of the deceased. Therefore, notional income has to be considered. The guidelines issued by the KSLSA for settlement of disputes before Lok-Adalath prescribe a notional income of Rs.8,750/- per month for the year
2016. In umpteen number of judgments, this Court has - 13 -
held that the guidelines issued by the KSLSA are in
general conformity with the wages fixed under the Minimum Wages Act. Therefore, they are acceptable. Hence, the notional income of the deceased is considered at Rs.8,750/-.
16. Coming to the quantum of the compensation, in
MVC.No.836/2016, the deceased Bhimu was aged 35 years and was a coolie. Therefore, adding 40% towards the future prospects, which amounts to Rs.3,500/-, the effective multiplicand would be Rs.12,250/-. Hence, the compensation is calculated as Rs.12,250/- x 12 x 16 x 3/4 = Rs.17,64,000/- towards the loss of dependency by holding multiplier of 16 and personal expenses at 1/4th.
17. In addition to it, the petitioners are also entitled
for a sum of Rs.52,000/- under head of loss of consortium. A sum of Rs.19,500/- towards funeral expenses. A sum of Rs.19,500/- towards the loss of a Estate, after escalating 10% per every 03 years in the light of the dictum of Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi3.
(2017) 16 SCC 680 - 14 -
18. Thus, the petitioners in MVC.No.836/20116 entitled for a sum of Rs.9,21,000/- under the following heads:-
Sl. Heads Compensation Awarded
No. by this Court
1. Loss of dependency Rs.17,64,000/-
2. Loss of consortium Rs.52,000/-
3. Funeral expenses Rs.19,500/-
4. Loss of Estate Rs.19,500/-
Total Rs.18,55,000/-
Less: Awarded by the Rs.9,34,000/-Tribunal Total enhancement Rs.9,21,000/-
19. Insofar as the petitioners in MVC.No.601/2016
is concerned, it is stated that he was aged 40 years and was a coolie. Adding 25% i.e., Rs.2,187/- towards the future prospects for the notional income of Rs.8,750/-, the effective multiplicand would be Rs.10,937/-. Hence, the loss of dependency is calculated as Rs.10,937/- x 12 x 15 x 3/4 = Rs.14,76,495/- by adding multiplier of 15 and personal expenses at 1/4th.
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20. In addition to it, the petitioners are also entitled for a sum of Rs.52,000/- under head of loss of consortium. A sum of Rs.19,500/- towards funeral expenses. A sum of Rs.19,500/- towards the loss of a Estate.
21. Thus, the petitioners in MVC.No.601/20116 entitled for a sum of Rs.2,31,735/- under the following heads:-
Sl. Heads Compensation Awarded
No. by this Court
1. Loss of dependency Rs.14,76,495/-
2. Loss of consortium Rs.52,000/-
3. Funeral expenses Rs.19,500/-
4. Loss of Estate Rs.19,500/-
Total Rs.15,67,495/-
Less: Awarded by the Rs.13,35,760/-Tribunal Total enhancement Rs.2,31,735/-
22. Hence, appeals deserve to be allowed in part. Therefore, the following; - 16 -
ORDER
I. The appeals are allowed in part. II. The appellants in MFA.No.201887/2018 are entitled
for a sum of Rs.9,21,000/- in addition to what has been awarded by the Tribunal along with interest at the rate of 6% p.a. from date of petition till the date of deposit. III. The appellants in MFA.No.201590/2019 are entitled for a sum of Rs.2,31,735/- in addition to what has been awarded by the Tribunal along with interest at the rate of 6% p.a. from date of petition till the date of deposit. IV. The respondent - insurance company is directed to deposit the entire compensation amount as ordered by the Tribunal as well as by this Court before the respective Tribunals within a period of 6 weeks. V. Rest of the order passed by the Tribunals regarding apportionment, deposit etc., remain unaltered.
Sd/- (C M JOSHI) JUDGE KJJ List No.: 1 Sl No.: 76 CT: AK