Karnataka High Court
Manager National Insurance Company ... vs Smt.Laxmibai W/O Salman And Ors on 7 November, 2017
Author: Rathnakala
Bench: Rathnakala
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF NOVEMBER, 2017
BEFORE
THE HON'BLE MRS. JUSTICE RATHNAKALA
MFA No.200801/2016 (MV)
C/W
MFA CROB.200063/2016,
MFA No.200802/2016
& MFA CROB.200064/2016
IN MFA NO.200801/2016
Between:
Manager,
National Insurance Company Limited,
Near Stadium Road, at Bidar,
now represented by its
Authorized Signatory,
Divisional Office,
Main Road, Kalaburagi-02.
... Appellant
(By Smt. Sangeeta Bhadrashetty, Advocate)
And:
1. Smt. Laxmibai W/o Salman,
Aged 52 years, Occ: Housewife,
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2. Kum. Bharathi D/o Salman,
Age: 21 years, Occ: Nil,
3. Salman S/o Aatmappa,
Age: 62 years, Occ: Coolie,
4. Sri. Mallikarjun S/o Bandeppa Kote,
Age: Major, Occ: Business,
All respondents 1 - 4 herein are
Gadi Kushinoor, Tq. Aurad,
Dist: Bidar-585421.
... Respondents
(By Sri.Ravi B.Patil, Advocate for R1 to R3;
Notice to R4 served but un-represented)
This Miscellaneous First Appeal is filed Under
Section 173(1) of the Motor Vehicle Act, 1988, praying to allow
the appeals by setting aside the impugned common Judgement
and Award passed in M.V.C.No.530/2014, dated 10.12.2015,
passed by the Principal Motor Accident Claims Tribunal &
Principal District and Sessions Court at Bidar.
IN MFA CROB NO.200063/2016
Between:
1. Smt. Laxmibai W/o Salman,
Aged about 52 years,
Occ: Household.
2. Kum. Bharathi D/o Salman,
Aged about 21 years,
Occ: Nil.
3. Salman S/o Aatmappa,
Aged about 62 years,
Occ: Coolie.
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All are resident of Gadi Kusnoor village,
Tq. Aurad & Dist. Bidar-585401.
... Cross Objectors
(By Sri. Ravi B Patil, Advocate)
And:
1. Sri. Mallikarjun S/o Bandeppa Kote,
Aged Major, Occ: Business,
R/o Gadi Kushinoor village,
Tq. Aurad & Dist. Bidar-585401
(Owner of Passion Pro Bearing
Reg.No.KA-38-Q-6774)
2. Manager,
National Insurance Company Ltd.,
Near Stadium Road,
Bidar,
Rep. by its Authorised Signatory,
Divisional Office, Main Road,
Kalaburagi-02.
... Respondents
(By Smt. Sangeeta Bhadrashetty, Advocate for R2;
Notice to R1 dispensed with v/o dated 26.10.2017)
This MFA Crob. is filed under Order 41 Rule 22 of CPC
praying to set aside the judgment and award dated 10.12.2015
passed by the Prl. Motor Accident Claims Tribunal & Prl. District
& Sessions Judge, Bidar, and consequently allow the present
appeal, thereby enhance the compensation from Rs.7,74,000/-
to Rs.16,80,000/- as claimed in the present appeal.
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IN MFA NO.200802/2016
Between:
Manager,
National Insurance Company Limited,
Near Stadium Road,
at Bidar,
Now represented by its
Authorized signatory,
Divisional Office,
Main Road, Kalaburagi-02.
... Appellant
(By Smt. Sangeeta Bhadrashetty, Advocate)
And:
1. Sri. Dawood @ Rajkumar S/o Dhanraj,
Aged 23 years, Occ: Labour,
R/o Gadikushinoor, Tq: Aurad,
Dist: Bidar,
Now residing at
Rajnal - 585421.
2. Sri. Mallikarjun S/o Bandeppa Kote,
Age: Major, Occ: Business,
R/o Gadikushinoor, Tq: Aurad,
Dist: Bidar - 585421.
... Respondents
(By Sri.Ravi B.Patil, Advocate for R1;
Notice to R2 served but un-represented)
This Miscellaneous First Appeal is filed under
Section 173(1) of the Motor Vehicle Act, 1988, praying to allow
this appeal by setting aside the impugned common Judgment
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and Award passed in M.V.C.No.531/2014, dated 10.12.2015,
passed by the Principal Motor Accident Claims Tribunal &
Principal District and Sessions Court, At Bidar.
IN MFA CROB NO.200064/2016
Between:
Sri. Dawood @ Rajkumar S/o Dhanraj,
Aged about 23 years, Occ: Labour,
R/o Gadikushinoor,
Tq. Aurad, Dist. Bidar,
Now residing at Rajnal village.
... Cross Objector
(By Sri. Ravi B.Patil, Advocate)
And:
1. Sri. Mallikarjun S/o Bandeppa Kote,
Aged Major, Occ: Business,
R/o Gadi Kushinoor village,
Tq. Aurad & Dist. Bidar-585401.
(Owner of Passion Pro Bearing
Reg.No.KA-38-Q-6774)
2. Manager,
National Insurance Company Ltd.,
Near Stadium Road,
Bidar,
Rep. by its Authorized Signatory,
Divisional Office, Main Road,
Kalaburagi-02.
... Respondents
(By Smt. Sangeeta Bhadrashetty, Advocate for R2;
Notice to R1 dispensed with v/o dated 26.10.2017)
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This MFA Crob. is filed under Order 41 Rule 22 of CPC
praying to set aside the judgment and award dated 10.12.2015
passed by the Prl. Motor Accident Claims Tribunal & Prl. District
& Sessions Judge, Bidar, and consequently allow the present
appeal thereby enhance the compensation from Rs.1,14,700/- to
Rs.10,00,000/- as claimed in the present appeal.
These appeals and cross objections coming on for
Admission, this day, the Court delivered the following:
JUDGMENT
These appeals and cross objections assail the common Judgment and Award passed by the Principal Motor Accident Claims Tribunal and Principal District & Sessions Court at Bidar (for short 'the Tribunal') on its file in MVC Nos.530/2014 & 531/2014, hence taken together for consideration.
2. Though these cases are listed for admission, heard both sides for final adjudication.
3. The facts not in dispute between the parties is, on 29.03.2014, there was a vehicular accident involving the motorcycle bearing Registration No.KA-38-Q-6774 and KA- 7 38/L-8667 ridden by Dawood @ Rajkumar. Consequent upon the accident, the rider suffered grievous injuries and the pillion rider Salman succumbed to the fatal injuries sustained by him at the spot. The claim petition was filed before the Tribunal against the owner of Passion Pro motorcycle bearing Regn.No.KA-38-Q-6774 and its insurer.
4. MVC No.531/2014 was filed by the injured - rider and MVC No.530/2014 was filed by the parents and sister of the deceased. It was the case of the claimants that the rider of the motorcycle was riding the same cautiously. But the offending vehicle bearing Reg.No.KA-38-Q-6774 came from behind in a rash and negligent manner and hit the motorcycle bearing registration No.KA-38/L-8667 from behind.
5. The Insurer contested both claim petitions, primarily on the ground that the rider of the motorcycle did not have driving licence to ride the motorcycle, secondly, the owner and the insurer of the offending vehicle bearing 8 No. KA-38-L-8667, since not arrayed as respondents, it being an accident involving two vehicles, the claim petitions are not maintainable.
6. Joint enquiry was held and the learned Tribunal allowed both the petitions by awarding compensation of Rs.1,14,700/- to the injured (MVC No.531/2014) appellant in MFA No.200802/2016 and Rs.7,74,000/- to the deceased of MVC No.530/2014 appellants in MFA No.200801/2016.
7. Smt. Sangeeta Bhadrashetty, learned counsel for the Insurer submits that the rider of the vehicle bearing registration No.KA-38/L-8667 did not hold driving licence to drive the motor cycle and thus was responsible for the accident. The Tribunal erroneously fastened the liability to comply the award on the owner and insurer of vehicle bearing Reg.No.KA-38-Q-6774. The amount awarded by the Tribunal in both the cases is on a higher side and the common judgment and award needs to be modified by 9 assessing the contributory negligence as against the rider of motorcycle bearing No.KA-38-L-8667 and absolving the insurer of its liability to that extent. The claim petitions are vitiated for not arraying the owner and insurer of motorcycle bearing No.KA-38-L-8667.
8. Sri Ravi B. Patil, learned counsel for the claimants in reply submits that the cross objections are filed seeking enhancement of compensation awarded by the Tribunal in favour of Dawood @ Rajkumar in MFA CROB.No.200064/2016 (MVC No.531/2014), the Tribunal has assessed the income of the injured at Rs.5,000/- per month as against his evidence that he was earning Rs.9,000/- per month by his milk vending business. He had suffered fracture of right hand radius middle and ulna, fracture of clavicle lateral 1/3rd and also head injury. He was inpatient for two weeks and implant was fixed at the fracture situ.
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The Tribunal has awarded Rs.30,000/- towards pain and suffering, Rs.13,900/- towards medical expenses, Rs.6,000/- towards incidental charges. An amount of Rs.64,800/- towards loss of future earning is computed by assuming his monthly income at Rs.5,000/-, that has drastically reduced the compensation amount. That apart, the Tribunal has not awarded any compensation towards attendant charges and loss of amenity.
9. As regards liability question raised by the insurer is concerned, the submission of the learned counsel is, criminal case was registered against rider of the offending motorcycle bearing No.KA-38/Q-6774. The rider of motorcycle bearing No.KA38/L-8667 in no way was responsible for the accident since it was the offending vehicle which came from behind, in a rash and negligent manner and hit the motorcycle from behind. In that view of the matter, the question of contributory negligence would not arise at all. The rider of motorcycle bearing 11 No.KA38/L-8667 even if had no valid driving licence, the liability of the accident cannot be fastened against him since the accident occurred for no fault of him. It is not the accident occurring on the composite negligence of two riders. The rider of motorcycle bearing No.KA-38/Q-6774 is solely responsible for the accident. Hence, the Tribunal has rightly fastened the liability against the owner and insurer of motorcycle bearing No.KA-38/Q-6774.
10. As against this, the submission in respect of claims arising on the death of Suryakant (MFA Crob. No.200063/2016 - MVC No.530/2014) is, claimants have examined PW.1 - the mother of the deceased and PW.2 who is the employer of the deceased. PW.2 deposes before the Court that he was paying salary of Rs.12,000/- per month to the deceased. That apart, his income tax returns for the year 2013-14 and 2014-15 (Exs.P7 and P8) corroborated the above evidence of PW.2. The Tribunal has overlooked the above piece of evidence and assumed the monthly 12 income of the deceased at Rs.7,000/- per month and no compensation is awarded towards future prospects of the deceased which computing loss of dependency.
11. Learned counsel further submits that as per judgment of the Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and Ors. in Special Leave Petition (Civil) No.25590/2014 and connected matters where the deceased was below 40 years, the future prospects shall be assessed at 40% of income at the time of death. If that is accepted, Rs.20,000/- towards loss of estate and Rs.20,000/- towards loss of love and affection awarded by the Tribunal is too minimal. Appeal M.F.A.No.200801/2016 filed by the insurer may dismissed and compensation may be reassessed, consequently impugned judgment and award of the Tribunal is modified by enhancing the compensation amount reasonably.
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12. With the above rival submissions and on perusal of judgment and award passed by the Tribunal, it emanates that the accident dated 29.03.2014 is not in dispute wherein the rider of motorcycle bearing No.KA- 38/L-8667 has suffered injuries and the pillion rider died at the spot. A criminal case came to be registered by the jurisdictional police against the rider of the offending vehicle bearing No.KA-38/Q-6774.
13. There is no contradictory material produced by the insurer to appreciate that the rider of motorcycle bearing No.KA-38/L-8667 had contributed for the accident. The Tribunal rightly brushed aside the contention of the insurer that the rider of motorcycle bearing No.KA-38/Q- 6774 was responsible for the said accident warranting the owner and insurer to be arrayed as respondents in the claim petition.
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14. Coming to the question of claim of the injured - rider of the motorcycle, the Tribunal computed the compensation as under :-
1. Towards injury pain and Rs. 30,000/-
sufferings
2. Towards medical expenses and Rs. 13,900/-
hospitalization charges
3. Towards incidental and Rs. 6,000/-
miscellaneous expenses
4. Towards loss of earning capacity Rs. 64,800/-
due to disability Total Rs. 1,14,700/-
Considering the age of the rider/injured i.e., 21 years and date of accident, it may be safely presumed that he was earning not less than Rs.7,500/- per month from his milk vending business. He was hospitalized twice, totally for 21 days. The doctor who issued the disability certificate has not stated anything about need for future medical expenses. Since the physical disability suffered by him is not shown to have any bearing on the business of the injured. Compensation of Rs.1,14,700/- awarded by Tribunal will compassionate the medical and miscellaneous 15 expenses met and inconvenience suffered by the injured. There need not be any interfere in respect quantum of compensation.
15. Coming to the claim of claimants in MVC No.530/2014 (MFA CROB. No.200063/2016), the Tribunal has computed the compensation as under :-
1. Towards loss of dependency Rs. 7,14,000/-
2. Towards loss of love and affection Rs. 20,000/-
3. Towards loss of estate Rs. 20,000/-
4. Towards funeral, obsequies and Rs. 20,000/-
transportation of dead body etc. Total Rs. 7,74,000/-
Despite evidence was adduced by the employer that he was paying Rs.12,000/- per month towards salary of the deceased the Tribunal has assessed his income at Rs.7,000/- per month without assigning its reason for brushing aside his evidence. The deceased was aged 26 years and proper multiplier applicable to his age as per the judgment of Apex Court reported in (2009) 6 Supreme Court Cases 121 between Sarla Verma (Smt) and others 16 vs. Delhi Transport Corporation and another, is 17. The deceased being a bachelor, 40% of his income shall be added towards future prospects (as per Pranay Sethi case supra) and Rs.200/- be deducted towards professional tax on the monthly salary of the deceased, which comes to Rs.11,800/-and 40% added it comes to Rs.16,520/-. Thus his yearly income comes to Rs.1,98,240/- and 50% of the same deducted towards his personal expenditure, comes to Rs.99,120/- and the same is multiplied by 17, the compensation towards loss of dependency comes to Rs.16,85,040/- and by awarding Rs.50,000/- under conventional heads. Thus, total compensation will work out of Rs.17,35,040/-, that is the amount the claimants of MFA.CROB No.200063/2016 are entitled for as against Rs.7,74,000/- awarded by the Tribunal.
16. Accordingly, the appeals filed by the insurer in MFA Nos.200801/2016, 200802/2016 and the cross objections filed by the claimant in MFA CROB. 17 No.200064/2016 are dismissed. The cross objections filed by the claimants in MFA CROB. No.200063/2016 is allowed in part. The claimants in MFA CROB.No.200063/2016 are entitled for additional compensation of Rs.9,61,040/- over and above compensation of Rs.7,74,000/- awarded by the Tribunal with interest at 6% per annum from the date of claim petition.
17. The respondent - insurer in MFA CROB. No.200063/2016 is directed to deposit the entire compensation amount along with enhanced compensation with proportionate interest before the Tribunal within four weeks from the date of receipt of certified copy of this judgment.
On such deposit, 30% of the enhanced compensation amount with proportionate interest be disbursed in favour of the mother of the deceased Smt.Laxmibai and remaining amount shall be invested in any nationalized 18 bank/scheduled bank of her choice for a period of five years. She is at liberty to withdraw the interest on the deposit, periodically.
Registry is directed to transmit the statutory amount deposited by the insurer in MFA Nos.200801/2016 and 200802/2016 to the concerned Tribunal.
Sd/-
JUDGE Ct: SMP SN/Srt