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MFA No.202241/2017
c/w MFA Crob No.200077/2018
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF FEBRUARY, 2023
BEFORE
THE HON’BLE MS. JUSTICE J.M.KHAZI
MFA No.202241/2017 (MV)
c/w
MFA Crob No.200077/2018
IN MFA NO.202241 OF 2017:
BETWEEN
THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
SANGAM BUILDING,
SS FRONT ROAD, VIJAYAPURA.
...APPELLANT
(BY SRI. S. S. ASPALLI, ADVOCATE)
AND
1 . BASAVARAJ S/O NAGAPPA KODEKALLA,
AGE 22 YRS, OCC:STUDENT,
2 . SHIVAPPA S/O NAGAPPA KODEKALLA
AGE:21 YRS, OCC:COOLIE,
3 . DYAMAWWA D/O NAGAPPA KODEKALLA
AGE 20 YRS, OCC:HOUSEHOLD WORK,
4 . NAGAPPA S/O YELLAPPA KODEKALL
AGE 42 YRS, OCC:COOLIE,
MFA No.202241/2017
c/w MFA Crob No.200077/2018
2
ALL R/O SHIVAPUR, TQ.MUDDEBIHAL,
VIJAYAPURA NOW AT GANESH NAGAR,
VIJAYAPURA.
5 . DUNDAPPA S/O JUMMANNA MAKALE
AGE MAJOR, OCC:BUSINESS,
R/O SHIVAPUR, TQ.MUDDEBIHAL,
VIJAYAPURA.
…RESPONDENTS
(BY SRI. HARSHAVARDHAN R.
MALIPATIL, ADV. FOR R1 TO R4;
SRI. G.B.YADAV, ADV. FOR R5)
THIS MFA FILED U/S 173(1) OF MV ACT, PRAYING TO SET
ASIDE THE JUDGMENT AND AWARD DATED-30.08.2017 IN MVC
NO.1679/2015 PASSED BY THE III ADDL. SENIOR CIVIL JUDGE
AND MACT-XII VIJAYAPURA BY ALLOWING THE ABOVE APPEAL.
IN MFA.CROB NO.200077 OF 2018:
BETWEEN
1 . BASAVARAJ
S/O NAGAPPA KODEKALLA,
AGE 22 YRS, OCC:STUDENT,
2. SHIVAPPA
S/O NAGAPPA KODEKALLA
AGE:21 YRS, OCC:COOLIE,
3. DYAMAWWA
D/O NAGAPPA KODEKALLA
AGE 20 YRS, OCC:HOUSEHOLD WORK,
4. NAGAPPA
S/O YELLAPPA KODEKALL
AGE 42 YRS, OCC:COOLIE,
MFA No.202241/2017
c/w MFA Crob No.200077/2018
3
ALL R/O SHIVAPUR, TQ.MUDDEBIHAL,
VIJAYAPURA NOW AT GANESH NAGAR,
VIJAYAPURA.
...CROSS OBJECTORS
(BY SRI. HARSHAVARDHAN R. MALIPATIL, ADVOCATE)
AND
1 . THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
SANGAM BUILDING, S S FRONT ROAD,
VIJAYAPURA.
2 . DUNDAPPA S/O JUMMANNA MAKALE
AGE MAJOR, OCC:BUSINESS,
R/O SHIVAPUR, TQ.MUDDEBIHAL,
VIJAYAPURA.
…RESPONDENTS
(BY SRI.S.S.ASPALI, ADV. FOR R1;
SRI.G.B.YADAV, ADV. FOR R2)
THIS MFA CROB. IS FILED U/S. 41 RULE 22 OF CPC,
PRAYING THAT THIS HON'BLE COURT TO KINDLY BE PLEASED
TO GRANT COMPENSATION IN A SUM OF RS.13,92,000/-
(EXCLUDING THE AMOUNT AWARDED BY THE TRIBUNAL)
ALONG WITH INTEREST @ 12 P.A. BY SETTING ASIDE THE
JUDGMENT AND AWARD OF THE III ADDL. SENIOR CIVIL JUDGE
AND MACT-XII, VIJAYAPURA DATED 30.08.2017 IN MVC
NO.1679/2015.
THIS APPEAL AND CROSS OBJECTION HAVING BEEN
HEARD AND RESERVED ON 10.01.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
MFA No.202241/2017
c/w MFA Crob No.200077/2018
4
The appeal and Cross objection are arising out of
judgment
and
award
dated
30.08.2017
in
MVC.No.1679/2015 on the file of III Addl. Sr. Civil Judge &
MACT-12, Vijayapura.
2.
While MFA.No.202241/2017 is filed by the
Insurance Company seeking dismissal of the claim petition
on the ground that deceased was a gratuitous passenger
traveling in a transport vehicle and the driver of the
offending vehicle was not holding a valid driving license,
MFA.Crob.No.200077/2018 is filed by the petitioners
seeking enhancement of the compensation.
3.
For the sake of convenience the parties are
referred to by their rank before the Tribunal.
4.
FACTS: It is the case of the petitioners that they
are the children and husband of deceased-Hanamawwa. On
21.08.2015, at about 5.00 p.m, after coolie work, deceased
5
Hanamawwa came to Mukihal Cross. In order to go to her
village, she stopped a Bolero Jeep bearing registration
No.KA-28/A-5198 (for short ‘offending vehicle’), which was
going to Shivapur. Before she could step into the vehicle
i.e., while she was trying to board the offending vehicle, the
driver of the offending vehicle, took the vehicle in reverse
negligently, as a result of which deceased fell down on the
road and the offending vehicle passed over her body. She
died at the spot. At the time of accident, she was aged 35
years earning Rs.10,000/- p.m. As the children and
husband
of
deceased,
petitioners
are
entitled
for
compensation. As the owner and insurer respondent Nos.1
and 2 are jointly and severally liable to pay the
compensation.
5.
Respondent Nos.1 and 2 have filed separate
written statement disputing the age and income of the
deceased and that the accident occurred due to the rash or
negligent driving by the driver of the offending vehicle.
Respondent No.2 has specifically contended that driver of
6
the offending vehicle never allowed any passengers to
travel in the said vehicle.
6.
On the other hand, respondent No.2 has further
pleaded that since deceased was a gratuitous passenger
and the driver of the offending vehicle was not holding a
valid driving license, respondent No.2 is not liable to
indemnify respondent No.1 and has sought for dismissal of
the petition.
7.
Based on these pleadings, the Tribunal has
framed necessary issues.
8.
In support of their case, petitioner No.1 is
examined as PW-1 and Ex.P1 to 8 are marked.
9.
On behalf of respondent No.2, RW-1 and 2 are
examined and Ex.R1 to 3 are marked.
10.
Vide
impugned
judgment
and
award,
the
Tribunal
has
partly
allowed
the
petition
granting
compensation in a sum of Rs.11,08,000/- with interest at
7
9% p.a and directed respondent No.2 to pay the same with
interest as detailed below:
Sl.No.
Heads
Amount
awarded
1.
Loss of dependency
Rs.10,08,000/-
2.
Towards love and
affection
Rs.25,000/-
3.
Loss of estate
Rs.20,000/-
4.
Loss of consortium
Rs.30,000/-
5.
Towards funeral and
transportation expenses
Rs.25,000/-
Total
Rs.11,08,000/-
11.
During the course of argument, learned counsel
for respondent No.2/Insurance Company submitted that the
Tribunal has failed to appreciate the fact that at the time of
accident, deceased was traveling as gratuitous passenger
and since the driver of the offending vehicle was not
holding a valid driving license, respondent No.2 is not liable
to pay the compensation. He would further submit that
since petitioner No.4 is the husband of the deceased, he
cannot be considered as dependent and therefore 1/3rd
income is required to be deducted towards personal and
living expenses of the deceased. The interest granted
8
at 9% p.a. is on the higher side and sought for dismissal of
the
petition
or
in
the
alternative
to
reduce
the
compensation.
12.
On the other hand, petitioners have filed cross
objection contending that the notional income is on the
lower side and consequently the compensation granted is
on the lower side. The compensation granted for loss of
consortium requires enhancement and prays to enhance the
compensation
13.
Heard arguments and perused
