Karnataka High Court
Mr. Veerappa Bangera vs Icici Lombard Insurance Co. Ltd., on 14 August, 2020
Bench: Alok Aradhe, H T Narendra Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF AUGUST 2020
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE H.T. NARENDRA PRASAD
M.F.A. NO.6294/2016 (MV)
BETWEEN:
MR. VEERAPPA BANGERA
S/O LATE ITHU KUKYAN
AGED ABOUT 63 YEARS
RESIDING AT 2-53
CHELAYARU POST, HALEYANGADI
MANGALORE TALUK-574146.
... APPELLANT
(BY SRI. GURUPRASAD B.R. ADV.,)
AND:
1. ICICI LOMBARD INSURANCE CO. LTD.,
MAXIMUS BUILDING, III FLOOR
NALAPPAD RESIDENCY, LIGHT HOUSE HILL ROAD
MANGALORE 575001
REPRESENTED BY ITS MANAGER.
2. MRS. ANITHA J SOMAN
AGED MAJOR
NO.4062, BIMA COMPLEX
KALAMBOLI, TAL PANVEL
PANVEL CITY, RAIGARH
MAHARASTRA-410206.
3. MR. ESHWARANATH EPARKER
AGED 50 YEARS
R/AT TIMES KAMALA MILLS
2
KAMALA MILLS COMPOUND
LOWER PAREL, MUMBAI-400013.
... RESPONDENTS
(BY SRI. B. PRADEEP, ADV., FOR R1
V/O DTD:13/3/2020 NOTICE TO R2 & R3 ARE DISPENSED WITH)
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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 30.10.2015 PASSED
IN MVC NO.252/2011 ON THE FILE OF THE III ADDITIONAL
DISTRICT JUDGE, MEMBER, MACT-4, D.K. MANGALURU, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act' for short) has been filed by the claimant No.1 being aggrieved by the judgment dated 30.10.2015 passed by the Motor Accident Claims Tribunal, seeking enhancement of the amount of compensation.
2. Facts leading to filing of this appeal briefly stated are that on 04.10.2010, the deceased Thejpal along with his uncle Padmanabha Poojary was proceeding towards Surathkal on a motorcycle bearing Registration No.KA-19Y-8784. When they reached in 3 front of NITK guest house at about 9.15 a.m., a container tanker lorry bearing Registration No.MH-06AQ- 442 which was being driven in a rash and negligent manner by its driver, tried to overtake the motor cycle in which the deceased was traveling. The aforesaid lorry dashed the motor cycle, due to which, the deceased as well as the pillion rider were thrown out on the road and the lorry ran over them. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries on the spot.
3. Thereupon, the parents of the deceased filed a petition under Section 166(1) of the Act, in which inter alia it was pleaded that the deceased was aged about 32 years and was working as a Senior Site Engineer getting salary of `18,800/- p.m. It was further pleaded that the family members were dependant on the income of the deceased for their livelihood. It was also pleaded that the accident took place on account of rash and negligent 4 driving of the lorry by its driver. The respondent Nos.1 and 2 did not appear and were placed ex parte. Respondent No.2 filed its written statement in which inter alia the factum of accident was denied. It was further pleaded that the deceased had no driving license at the time of accident and he took a wrong side and contributed to the causing of the accident. Therefore, the instant case is a case of contributory negligence. It was also pleaded that the driver of the lorry was not having a effective and valid driving license at the time of accident and the lorry was being plied in violation of the terms and conditions of the policy. The age, avocation and income of the deceased was also denied and it was pleaded that the claim of the claimants is exorbitant and excessive.
4. The Claims Tribunal, on the basis of the pleadings of the parties, framed issues and recorded the evidence. In order to prove their case, claimants 5 examined 4 witnesses namely Veerappa Bangera as PW1, Rathnavathi as PW2, Sudhakar Shetty as PW3 and Anjan A.N. as PW4 and got exhibited 53 documents viz., Ex.P1 to Ex.P53. However, no witnesses were examined on behalf of the respondents and they produced only the copy of insurance. The Claims Tribunal, on the basis of the evidence adduced by the parties, held that the accident took place on 04.10.2010 at about 9.15 a.m. on account of rash and negligent driving of the driver of the lorry. It was further held that the Insurance Company has failed to prove that the driver of the lorry did not have any valid and effective driving license. The Claims Tribunal further held that the claimants were entitled to the compensation to the tune of `10,45,000/- along with interest. Being aggrieved, this appeal has been filed seeking enhancement of the amount of compensation.
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5. Learned counsel for the appellants submitted that the Tribunal grossly erred in treating the monthly income of the deceased at `10,000/- only. It is further submitted that on perusal of Ex.P49, it was evident that the deceased had drawn a monthly salary of `18,800/- in the month of September 2010. Therefore, the monthly salary of the deceased ought to have been taken at `18,800/- and on the basis of the aforesaid salary, the dependency of the claimants ought to have been ascertained. On the other hand, learned counsel for the Insurance Company has supported the judgment passed by the Claims Tribunal and has submitted that the amount of compensation awarded by the Claims Tribunal is just and proper.
6. We have considered the submissions made by the learned counsel for the parties and have perused the record. The only question which arises for consideration in this appeal is with regard to the quantum of 7 compensation. It is pertinent to mention here that the claimants, in order to prove the salary of the deceased, have examined Mr.Anjan A.N., employer of the deceased as PW-4 who has stated that the deceased was employed as Senior Site Engineer. The aforesaid witness has accepted the salary slip of the deceased produced at Ex.P49. From the perusal of the salary slip, it was seen that the monthly salary of the deceased was `19,000/- and after deduction of `200/- towards professional tax, he was paid a salary of `18,800/- which is taken into consideration. To the aforesaid amount, 40% has to be added on account of future prospects in view of the law laid down by the Constitution Bench of the Supreme Court in 'NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS' AIR 2017 SC 5157. Thus, the monthly income comes to `26,320/-. Since the deceased was a bachelor at the time of accident, therefore, 50% has to be deducted towards personal expenses and therefore, 8 the monthly dependency comes to `13,160/-. Taking into account the age of the deceased which was 32 years at the time of accident, multiplier of 16 has to be applied. The claimants are entitled to `25,26,720/- on account of loss of dependency. In view of the law laid down by the Supreme Court in 'MAGMA GENERAL INSURANCE CO. LTD. Vs. NANU RAM' 2018 ACJ 2782, which has been subsequently clarified by the Supreme Court in 'UNITED INDIA INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS.' IN CIVIL APPEAL NO.2705/2020 DECIDED ON 30.06.2020, the appellant is entitled to `40,000/- on account of parental consortium and loss of love and affection. In addition, the appellant is entitled to `30,000/- on account of loss of estate and funeral expenses. Thus, in all, the appellant is entitled to total compensation of `25,96,720/-. Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 6% p.a. from the date of petition till payment is 9 made. To the aforesaid extent, the judgment of the Claims Tribunal is modified.
Accordingly, the appeal is disposed of.
Sd/-
JUDGE Sd/-
JUDGE RV