Karnataka High Court
The New India Assurance Co Ltd vs Smt S H Yashoda on 10 July, 2013
Bench: N.K.Patil, B.Manohar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10TH DAY OF JULY 2013
PRESENT
THE HON'BLE MR.JUSTICE N.K.PATIL
AND
THE HON'BLE MR.JUSTICE B.MANOHAR
MFA.NO.9929/2007 (MV)
BETWEEN:
The New India Assurance Co., Ltd.,
Shimoga DO,
Through its Regional Office,
Unity Building Annexe,
Mission Road,
Bangalore - 560 027.
Rep by its Assistant Manager,
Sri.C.R.Subramanya. .....Appellant
(By Sri.B.C.Seetharama Rao, Advocate)
AND:
1. Smt.S.H.Yashoda,
D/o.Hanumanthappa,
Aged about 33 years,
Residing at M.K.Road,
Sagar,
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2. Smt.S.H.Malini,
W/o.Ganapathi Algirikar,
Aged about 31 years,
Residing at Kolgi Bees, Sirsi.
3. Smt.S.H.Champaka,
W/o.Sri.Bharath T.Pavaskar,
Aged about 29 years,
Residing at Bapujinagar,
Sirsi.
4. S.H.Bhagyalaxmi,
D/o.Hanumanthappa,
Aged about 28 years,
Residing at M.K.Road,
Sagar,
5. Smt.S.H.Bhatrathi,
W/o.Rajesh Pavaskar,
Aged about 26 years,
Residing at Ambagiri,
Sirsi.
6. Sri.S.Mohana Murthy,
Major,
S/o.Narayana Rao,
Residing at Indiranagar,
Sagar.
(Owner of the Toyata Qualis
No.KA.35/A.3333). ...Respondents
(By Sri.Pruthvi Wodeyar, Advocate for R1 to R5,
Smt.Suguna R.Reddy, Advocate for R6)
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This MFA is filed U/S.173(1) of MV Act against the
Judgment and award dated 7/4/2007 passed in
MVC.No.1/2006 (Old MVC.No.979/2005) on the file of
the Civil Judge (Sr.Dn) and Member, Addl. MACT,
Sagar, awarding a compensation of Rs.10,25,000/- with
interest @ 6% p.a. from the date of petition till
realization.
This MFA coming on for hearing this day,
N.K.PATIL, J., delivered the following:
JUDGMENT
This appeal by the Insurer is directed against the impugned judgment and award dated 7th April, 2007 passed in MVC No.1/2006(old MVC.No.979/2005) on the file of the Civil Judge (Sr.Dn) and Member, Additional Motor Accident Claims Tribunal, Sagar (herein after referred to as 'the Tribunal'). The Insurer has contended that the compensation awarded by the Tribunal is disproportionate to the source of income of the deceased and that the Insurance Company is not liable to indemnify the award as the driver of the vehicle 4 did not possess an effective and valid driving license as on the date of the accident.
2. The Tribunal by its impugned judgment and award has awarded a sum of Rs.10,25,000/- with interest at 6% p.a. from the date of petition till realization on account of death of the deceased late Sri.Muralidhar in the road traffic accident.
3. The facts of the case in brief are:
The claimants 1 to 5 are none other than the sisters of the deceased late Muralidhar. The first sister is married and other sisters are unmarried. They were all depending upon the income of the deceased and he was the only earning member of the family. It is their case that the deceased was aged about 26 years, working as Village Accountant, drawing gross salary of Rs.5,668/- p.m. He was hale and healthy prior to the accident. On the ill-fated day i.e. on 11-11-2005, the deceased along with his friends had been to 5 Murudeshwar in Toyota Qualis bearing registration No.KA-35/A-3333 and on 12-11-2005, he and his friends went to Idugunji. On the way, they met with an accident due to the rash and negligent driving by the driver of the said vehicle. Due to the impact, the deceased sustained grievous injuries and died on the way to Hospital at Honnavar. On account of untimely death of the deceased, the claimants have lost their earning member in the family. The claimants 2 to 5 who are the unmarried sisters have lost love and affection, guidance, security on account of death of the deceased. They have lost their brother who would have moulded their career. Being women folk without any financial security, it is difficult for them to lead the life. Taking all these factors, they have filed the claim petition seeking compensation of Rs.30,40,000/- against the owner and Insurer of the offending vehicle. 6
4. The said claim petition had come up for consideration before the Tribunal. The Tribunal, in turn, after assessing the oral and documentary evidence and other materials available on file, and by assigning valid reasons has allowed the claim petition in part, awarding the compensation of Rs.10,25,000/- with interest at the rate of 6% p.a. from the date of filing of the claim petition till the date of realization.
5. Being aggrieved by the said judgment and award, the Insurer has filed this appeal contending that the compensation awarded by the Tribunal is on higher side and requires to be reduced.
6. We have heard the learned counsel appearing for the Insurance Company and the learned counsel appearing for the claimants for considerable length of time.
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7. It is the submission of the learned counsel Sri.B.C.Seetharama Rao appearing for the Insurer, that the Tribunal has erred in awarding exorbitant compensation of Rs.10,25,000/- towards loss of dependency and conventional heads, which is disproportionate to the source of income of the deceased and is contrary to the material available on record. Therefore, he submitted that the impugned judgment and award is liable to be modified by reducing the compensation awarded by the Tribunal. Further, he placed reliance on Section 3 of the Motor Vehicles Act to contend that the driver had possessed the driving license to drive LMV vehicle, but the vehicle involved in the accident is a commercial goods vehicle and without obtaining authorization from the jurisdictional RTO, he cannot drive the said vehicle. Therefore, the Insurer is not liable to indemnify the award amount and the liability should be fastened on the owner of the vehicle. Therefore he submitted that the impugned judgment 8 and award passed by the Tribunal is liable to be modified and the liability to be fastened on the owner of the offending vehicle.
8. As against this, the learned counsel appearing for the respondents/claimants and owner of the vehicle involved in the accident inter alia contended that after due consideration of the oral and documentary evidence available on record and also taking into consideration the age, avocation and year of the accident, the Tribunal has awarded compensation. The dependants are none other than the sisters of the deceased. After critical evaluation of the oral evidence of P.W.1 and R.W.1 coupled with the evidence at Ex.P4 and also the Driving License issued on 29-1-1998, the submission of the learned counsel for the Insurer cannot be made applicable to the facts and circumstances of the case since the amendment was brought in the year 2001. In the judgment of the Apex Court in the case of 9 NATIONAL INSURANCE COMPANY v/s ANNAPPA IRAPPA NESARIA reported in 2008 ACJ 72, the Apex Court has held that the driver who had valid driving license to drive the LMV is authorized to drive the light goods vehicle as well provided the unladen weight of the vehicle is less than 7500 Kgs. In the instant case, the vehicle involved in the accident is Toyota Qualis and its weight is less than 7500 Kgs. Therefore, the Tribunal is justified in recording the finding in paragraph 16 of the judgment that R.W.1 has stated in his evidence that the deceased was not having a badge to drive a commercial light motor vehicle, but in the objection statement, the same is not forthcoming. Therefore, the Tribunal is justified in directing the Insurance Company to indemnify the award and interference by this court is not called for. Further, they submitted that the driver of the vehicle also expired in the road traffic accident that occurred on 11-11-2005. The legal representatives of the deceased driver had filed a claim petition before 10 the Commissioner for Workmen Compensation, Karwar in Proceedings No.WCA/SR-74/2007 and a judgment and award has been passed on 26-9-2012 awarding compensation and the said award was satisfied by the Insurer. Therefore, when once the Insurer has admitted the liability in another case arising out of the same accident and satisfied the award, it is not open for the Insurer to take a contention that they are not liable to indemnify the award and the same is not sustainable. Therefore, the contention of the Insurer is liable to be rejected.
9. In the light of the submissions made by the learned counsel for both the parties, as stated supra and after careful perusal of the impugned judgment and award passed by the Tribunal, it emerges that, the occurrence of the accident on 11-11-2005 and the resultant death of the deceased are not in dispute. It is also not disputed that the deceased was working as a 11 Village Accountant drawing monthly salary of Rs.5,668/-. The claimants are none other than the sisters of the deceased and among them the first sister was married and others are unmarried as on the date of accident and he was the only earning member of the family and they were all dependent upon his earnings. The women folk have lost love and affection, guidance and inspiration from their brother on account of his untimely death. As rightly pointed out by the claimants, in the light of the judgment of the Apex Court in the case of RAJESH AND OTHERS v/s RAJBIR SINGH AND OTHERS reported in 2013 ACJ 1403 which is rendered after referring to the judgments of the Apex Court in SARLA VERMA v/s DELHI CORPORATION LTD., reported in 2009 ACJ 1298 and also in the case of SANTHOSH DEVI v/s NATIONAL INSURANCE CO. LTD. AND OTHERS reported in (2012) 6 SCC 421, that 50% of net income should be added towards future prospects. The net income of the 12 deceased was Rs.5,668/- p.m., and 50% of the net income comes to Rs.2,834/- p.m. and the total comes to Rs.8,502/- p.m., out of which, 50% has to be deducted towards personal expenses, since the deceased was unmarried at the time of the accident. Then, the remaining income of the deceased comes to Rs.4,251/- p.m. and from the said income, Rs.60/- has to be deducted towards professional tax. The net income comes to Rs.4,191/- and the appropriate multiplier to be adopted is 17 for his age. Accordingly, we re- determine the loss of dependency at Rs.8,54,964/-. (Rs.4,191/-X 12 X '17')
10. Having regard to the facts and circumstances of the case, we deem it fit to award Rs.45,000/- towards other conventional heads such as loss of love and affection, transportation and funeral expenses, loss of estate, etc. Therefore, the total compensation comes to 13 Rs.8,99,964/- as against Rs.10,25,000/- awarded by the Tribunal. There will be reduction of Rs.1,25,036/-.
11. So far as the submission of the learned counsel for the appellant/Insurer that the driver of the vehicle involved in the accident did not possess the authorization from the jurisdictional RTO for driving the commercial goods vehicle is concerned, he placed reliance on the relevant provisions of the Motor Vehicles Act and submitted that fastening the liability on the Insurer cannot be sustained in view of the judgment of the Apex Court. The said contention is not acceptable as rightly pointed out by the learned counsel for the claimants and owner of the offending vehicle. The Tribunal after due consideration of the oral and documentary evidence and also taking into consideration the terms and conditions of the Policy at Ex.P4 has rightly held that the Insurance Company is liable to indemnify the award amount. It is significant 14 to note, as rightly submitted by the learned counsel appearing for the owner of the vehicle, the driver of the Toyota Qualis also died in the same accident and his legal representatives had filed a claim petition before the Commissioner for Workmen Compensation, Karwar in Proceedings No.WCA/SR-74/2007 and the judgment and award dated 26-9-2012 passed by the Commissioner has been satisfied by the Insurer. Now it is not open for the Insurer to take such a ground contrary to law that too going against the judgment and award arising out of the same accident. The claimants are the legal representatives of the deceased. In the instant case, the driving license was issued w.e.f. 29-1-1998 which was issued prior to the amendment. Taking all these factors into consideration, the Tribunal is justified in directing the Insurer to indemnify the award amount. Therefore, interference by this court is not called for.
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12. In the facts and circumstances of the case as stated above, the appeal filed by the Insurer is allowed in part. The impugned judgment and award 7-4-2007 in MVC No.1/2007 (Old MVC.No.979/2005) on the filed of the Civil Judge (Sr.Dn) and Additional Motor Accidents Claims Tribunal at Sagar is hereby modified by reducing the compensation amount by Rs.1,25,036/-.
The appellant-Insurer is directed to deposit the remaining compensation amount with interest, excluding the amount if any, already deposited by it, within three weeks from the date of receipt of a copy of this judgment.
The apportionment and manner of disbursement ordered by the Tribunal gets proportionately reduced to the extent of reduction made by this court. 16
The amount in deposit by the Insurer shall be transmitted to the jurisdictional Tribunal immediately.
Office is directed to draw the award, accordingly.
Sd/-
JUDGE Sd/-
JUDGE mpk/-*