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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 2ND DAY OF DECEMBER, 2024 PRESENT THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD AND THE HON'BLE MR. JUSTICE VENKATESH NAIK T MISCELLANEOUS FIRST APPEAL NO. 101563 OF 2021 (MV-D)
C/W MISCELLANEOUS FIRST APPEAL NO. 101170 OF 2021 (MV-D)
IN MFA NO.101563 OF 2021:
BETWEEN:
M/S NATIONAL INSURANCE COMPANY LIMITED BY ITS DIVISIONAL MANAGER, 2ND FLOOR, GSR TOWERS OPP PETROL BUNK, MAIN ROAD PARVATI NAGAR, BALLARI-583103, REPRESENTED BY ITS ADMINISTRATIVE OFFICER, AUTHORIZED SIGNATORY.
…APPELLANT Digitally signed by JAGADISH T R (BY SRI. G.N.RAICHUR, ADVOCATE)
Location: HIGH COURT OF KARNATAKA AND:
DHARWAD BENCH
1. SMT. MAREKKA W/O. LATE RUDRA @ RUDRAPPA AGE: 32 YEAR, OCC: NOT. MENTIONED, R/O. MALAPURA VILLAGE, ANTHAPURA POST SANDUR-583119.
2. MINOR HANUMANTHA R S/O. LATE RUDRA @ RUDRAPPA, AGE: 12 YEARS, OCC: STUDENT, R/O. MALAPURA VILLAGE, ANTHAPURA POST SANDUR-583119.
3. MINOR VAMSHI R.
S/O. LATE RUDRA @ RUDRAPPA, AGE: 10 YEARS, OCC: STUDENT, R/O. MALAPURA VILLAGE, ANTHAPURA POST SANDUR-583119.
4. MINOR SANJANA D/O. LATE RUDRA @ RUDRAPPA AGE: 8 YEARS, OCC: STUDENT, R/O. MALAPURA VILLAGE, ANTHAPURA POST SANDUR-583119.
5. TALWAR DURGAPPA S/O. LATE HONNURAPPA @ GIDDAPPA, AGE: 70 YEARS, OCC: NOT MENTIONED, R/O. MALAPURA VILLAGE, ANTHAPURA POST, SANDUR-583119.
6. SMT. LAKKAMMA W/O. TALWAR DURGAPPA AGE: 65 YEARS, OCC: HOUSE WIFE, R/O. MALAPURA VILLAGE, ANTHAPURA POST SANDUR-583119.
(THE RESPONDENTS NO.2 TO 4 ARE MINORS REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN RESPONDENT NO.1 SMT. MAREKKA W/O LATE RUDRA @ RUDRAPPA). 7. GANGADHARA S/O. TAYAPPA AGE: 41 YEARS, OCC: DRIVER, R/O. SOUTH WEST MINING LTD., VIDHYA NAGAR, THORANAGALLU SANDUR, TALUKA BALLARI, DISTRICT-583119.
8. M/S SOUTH WEST MINING LIMITED BY ITS MANAGER OWNER OF THE HYWA TIPPER LORRY REG.NO.KA-35/B-6754, VIDHYA NAGAR, THORANAGALLU, SANDUR TALUKA, BALLARI DISTRICT-583119.
…RESPONDENTS (BY SRI. VIJAYKUMAR K.KOTIN, ADVOCATE FOR R1 TO R6;
R2, R3 AND R4 ARE MINORS REP. BY R1;
NOTICE TO R7 IS DISPENSED WITH;
NOTICE TO R8 IS SERVED)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED 02.07.2021 PASSED IN MVC NO.743/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL-VI, KUDLIGI, AWARDING COMPENSATION OF Rs.17,79,400/- WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE OF PETITION TILL ITS REALISATION.
IN MFA NO.101170 OF 2021:
BETWEEN:
1. SMT. MAREKKA W/O. LATE RUDRA @ RUDRAPPA AGE: 32 YEARS.
2. MINOR HANUMANTHA R S/O. LATE RUDRA @ RUDRAPPA, AGE: 12 YEARS, OCC: STUDENT.
3. MINOR VAMSHI R S/O. LATE RUDRA @ RUDRAPPA, AGE: 10 YEARS, OCC: STUDENT.
4. MINOR SANJANA D/O. LATE RUDRA @ RUDRAPPA AGE: 8 YEARS, OCC: STUDENT, R/O. MALAPURA VILLAGE.
5. TALWAR DURGAPPA S/O. LATE HONNURAPPA @ GIDDAPPA, AGE: 70 YEARS.
6. SMT. LAKKAMMA W/O. TALWAR DURGAPPA AGE: 65 YEARS, OCC: HOUSE WIFE. (THE RESPONDENTS NO.2 TO 4 ARE MINORS REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN SMT. MAREKKA W/O LATE RUDRA @ RUDRAPPA).
ALL ARE R/O. MALAPURA VILLAGE, D.ANTHAPURA, SANDUR-583115, BALLARY DISTRICT.
…RESPONDENTS (BY SRI. VIJAYKUMAR K. KOTIN, ADVOCATE)
AND:
1. SRI. GANGADHARA S/O. TAYAPPA AGE: 41 YEARS, OCC: DRIVER, R/O. SOUTH WEST MINING LTD., VIDHYA NAGAR, THORANGALLU, TQ: SANDUR, DISTRICT: BALLARI-583119.
2. M/S SOUTH WEST MINING LIMITED BY ITS MANAGER OWNER OF THE HYWA TIPPER LORRY REG.NO.KA-35/B-6754, VIDHYA NAGAR, THORANAGALLU, SANDUR TALUK, BALLARI DISTRICT-583123.
3. M/S NATIONAL INSURANCE COMPANY LTD.
BY ITS DIVISIONAL MANAGER, 2ND FLOOR, GSR TOWERS, OPPOSITE PETROL BUNK, MAIN ROAD, PARVATHI NAGAR, BALLARI-583103. …RESPONDENTS (BY SRI. S.N.BANAKAR, ADVOCATE FOR R2;
SRI. G.N.RAICHUR ADVOCATE FOR R3;
NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED U/S.173 (1) OF MOTOR VEHICLES ACT,1988, AGAINST THE JUDGMENT AND AWARD DATED 02.07.2021 PASSED IN MVC NO.743/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE -CUM MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL-VI, KUDLGI, SITTING AT SANDUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD AND THE HON'BLE MR. JUSTICE VENKATESH NAIK T
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE VENKATESH NAIK T)
As these appeals are arising out of a common judgment and award dated 02.07.2021 passed by the learned Senior Civil Judge and MACT VI, Kudligi sitting at Sandur, in M.V.C. No.743/2016 [for short, ‘the Tribunal’], they are heard together and disposed off by this Court by common judgment.
2. M.F.A. No.101563/2021 is filed by the insurer of the offending vehicle seeking reduction of the compensation on the ground of liability and quantum, whereas, M.F.A. No.101170/2021 is filed by the claimants seeking enhancement of compensation awarded by the Tribunal.
3. For the sake of convenience, the parties in the present appeals are referred to as they are referred to in the claim petition.
4. Brief facts of the claimants’ case before the Tribunal are as under:
On 03.04.2016, one Sri.Rudra @ Rudrappa S/o. Talawar Durugappa [the deceased], as cleaner and one Ningappa, as driver left in a tipper lorry bearing registration No.KA-35/A- 2968 to the loading point of Sri.Kumaraswamy Mines near NMDC near Deogiri for the purpose of loading iron ore and the driver had stopped the said vehicle at ‘C’ block to load the iron ore and went to weighbridge to bring trip sheet and at that time, deceased was standing near the said lorry observing loading of iron ore. At about 07:00 p.m., Hywa Tipper lorry bearing registration No.KA-35/B-6754 driven by respondent No.1 in rash and negligent manner dashed to the deceased. As a result, he sustained head injury and other injuries all over the body. He was shifted to NMDC Hospital, where he was declared brought dead.
5. The claimants being the wife, children and parents of the deceased, filed claim petition under Section 166 of the Motor Vehicles Act and the Tribunal considering the oral and documentary evidence on record, awarded a sum of Rs.17,79,400/-. Aggrieved by the same, the insurer of the offending vehicle as well as the claimants have filed these appeals.
6. Heard the learned counsel for the parties in both the appeals.
7. Learned counsel for the claimants contended that the Tribunal considered the notional income of the deceased at Rs.7,000/-, in fact, in the year 2016, as per the Circular issued by the Karnataka State Legal Services Authority as well as the High Court Legal Services Committee, Dharwad, the notional income is to be assessed at Rs.8,750/- per month. On these grounds, the learned counsel for the claimants prayed to allow the appeal filed by him.
8. Learned counsel for the insurance company contended that the Tribunal awarded compensation which is contrary to the evidence and documents furnished by the claimants. The Tribunal has failed to appreciate the fact that the insured vehicle do not possess valid permit as on the date of the accident. Hence, the policy condition was violated by the insured of the offending vehicle. Hence, the insurer is not liable to pay any compensation. Further, the driver has been implicated in the case, in fact, in FIR there was no name of the accused and subsequently, the driver’s name Sri.Gangadhar Tayappa has been inserted. Further, the Tribunal has awarded exorbitant compensation on all heads. Hence, he prayed to dismiss the appeal filed by the claimants and allow the appeal filed by the insurance company.
9. In view of the contentions urged by the parties, the following points that would arise for our consideration in both the appeals are:
“i. Whether the insurance company has made out sufficient grounds that at the time of the accident, the offending vehicle was not holding valid permit to ply and hence, there was breach of policy condition.
ii. Whether the quantum of compensation awarded by the Tribunal is just and reasonable or does it call for any enhancement or reduction?”
10. In order to establish the contention that there was no valid permit to the offending vehicle, the insurance company got examined three witnesses as RWs.1 to 3 and relied upon the documents at Exs.R1 to R4, which clearly establish
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