Karnataka High Court
The New India Assurance Co Ltd vs Smt K B Saraswathamma on 26 June, 2013
Author: N.Kumar
Bench: N.Kumar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26th DAY OF JUNE 2013
PRESENT
THE HON'BLE MR. JUSTICE N.KUMAR
AND
THE HON'BLE MR. JUSTICE V. SURI APPA RAO
M.F.A. NO.7555/2006 (MV) c/w
M.F.A. NO.7912/2007 (MV)
In M.F.A. No.7555/2006
BETWEEN :
The New India Assurance Co. Ltd.
No.33/A, Priyadarshini Towers
II Floor, Indiranagar I Stage
Bangalore - 560 038
By its duly Constituted Attorney ...APPELLANT
(By Sri.C.R.Ravishankar, Adv.)
AND :
1. Smt.K.B.Saraswathamma
Aged about 33 years
W/o late B.Eshwara Reddy
2. Sri.E.Vinod
Aged about 13 years
S/o late B.Eshwara Reddy
Since minor represented by
Mother and natural guardian
Smt.K.B.Saraswathamma
3. Smt.Subbamma
Aged about 58 years
W/o late T.R.Doddabyra Reddy
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All are R/at Thulavanur
Village, T.Gollahalli Post
Chintamani Taluk
Kolar District
4. Sri.Brahmananda Reddy
Aged about 38 years
S/o Sri.Venkatarayappa
R/at No.75, Vijayapura
Dooravaninagar
Bangalore - 560 016 ...RESPONDENTS
(Sri.Shankarappa, Adv. for C/R1 to R3)
. . . .
This M.F.A. is filed under Section 173(1) of the
Motor Vehicle Act, 1988 against the Judgment and
Award dated 29.3.2006 passed in M.V.C.No.17/2003 on
the file of the Civil Judge (Sr. Dn.) and JMFC,
Chinthamani awarding a compensation of
Rs.5,84,325/- with interest @ 6% p.a. from the date of
petition till payment.
In M.F.A. No.7912/2007
BETWEEN :
1. Smt.K.B.Saraswathamma
Aged about 33 years
W/o late B.Eshwara Reddy
2. Sri.E.Vinod
Aged about 13 years
S/o late B.Eshwara Reddy
Since minor represented by
Mother and natural guardian
Smt.K.B.Saraswathamma
3. Smt.Subbamma
Aged about 58 years
W/o late T.R.Doddabyra Reddy
2
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All are R/at Thulavanur
Village, T.Gollahalli Post
Chintamani Taluk
Kolar District ...APPELLANTS
(By Sri.Shankarappa, Adv.)
AND :
1. The New India Assurance Co. Ltd.
No.33/A, Priyadarshini Towers
II Floor, Indiranagar I Stage
Bangalore - 560 038
By its duly Constituted Attorney
2. Sri.Brahmananda Reddy
Aged about 38 years
S/o Sri.Venkatarayappa
R/at No.75, Vijayapura
Dooravaninagar
Bangalore - 560 016 ...RESPONDENTS
(By Sri.C.R.Ravishankar, Adv. For R1)
. . . .
This M.F.A. is filed under Section 173(1) of the MV
Act against the Judgement and Award dated 29.3.2006
passed in MVC. No.17/2003 on the file of the Civil
Judge (Sr.Dn.) and JMFC and Addl. MACT, Chintamani,
partly allowing the claim petition for compensation and
seeking enhancement of compensation.
These M.F.As. coming on for admission, this day,
N.Kumar J., delivered the following:
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JUDGMENT
These two appeals are preferred against the common order passed by the MACT and therefore, they are taken into consideration together and disposed of by this common order.
2. For the purpose of convenience, the parties are referred to as they are referred to in the claim petition.
3. The deceased B.Eswarra Reddy was travelling along with the 2nd respondent Brahmananda Reddy in a scooter bearing No.KA03 J-2357 belonging to the 2nd respondent as pillion rider. The 2nd respondent drove the vehicle in a very rash and negligent manner and he suddenly applied brake to avoid collusion with a cow and fell down on the road. On account of the accident, he sustained grievous injuries. He was immediately shifted to Bangalore Hospital, Bangalore, where he was treated for three days and finally, he succumbed to the injuries on 19.05.1999. The 1st claimant is the widow, 4 -5- the 2nd claimant is his son and the 3rd claimant is the mother of the deceased.
4. The case of the claimants is that the deceased was working as Secretary at MPCS Thulavanur and getting salary of Rs.1,450/- per month. He was also doing agriculture. In all he was earning about Rs.8,000/- per month. He was the sole bread earner of the family. In fact a sum of Rs.50,000/- was spent towards medical and funeral expenses. Hence, they filed a claim petition claiming a sum of Rs.8,00,000/- as compensation for the death of the said B.Eswara Reddy.
5. After service of notice, the 2nd respondent entered appearance, filed his statement of objections contending that he was not driving the vehicle in a rash and negligent manner as alleged in the claim petition. It was also contended that the accident was not due to the driving of the vehicle by him. The Insurance Company, which has insured the vehicle, also filed statement of objections denying the claim. They did not dispute the accident and the insurance coverage but denied the 5 -6- liability and they sought for dismissal of the claim petition.
6. On the aforesaid pleadings, the Trial Court framed the following issues:
1. Whether the petitioners prove that they are the legal representatives of deceased B.Eswara Reddy?
2. Whether the petitioners prove that deceased B.Eswara Reddy died in road traffic accident occurred on 24.5.1999 at 8.00 a.m. at Thulavanur village, Chinthamani taluk due to rash and negligent driving of the scooter bearing No.KA-3 J 2357 by its driver - 2nd respondent?
3. Whether the 1st respondent proves that the petition is barred by limitation?
4. Are petitioners entitled for compensation?
If yes, from whom and how much?
5. What relief?
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7. The claimants in order to substantiate their claim examined the 1st claimant as P.W.1 and examined two witnesses as P.W.2 and P.W.3 and produced 38 documents at Ex.P1 to Ex.P38. On behalf of the respondents, no evidence was adduced. The Trial Court, on consideration of the aforesaid oral and documentary evidence on record held that the accident was on account of the rash and negligent driving by the driver of the scooter. The claimants are the legal representatives of the deceased Sri.B.Eswara Reddy. The 1st respondent failed to prove that the claim petition is barred by limitation. Thereafter, it took note of the evidence of P.Ws. 1 to 3 and the various documents produced to show the income of the deceased and held that the said documents do not establish that the claimant was earning a sum of Rs.8,000/- per month. However, the document produced shows that he was owning land and he was in the field of sericulture. The Trial Court was of the view that his income could be taken as Rs.2,400/- per month from agriculture and 7 -8- Rs.1,450/- per month as salary and thus it arrived at a sum of Rs.4,450/- being his monthly income. After deducting 1/3rd towards personal expenses, a sum of Rs.2,970/- per month was taken as loss of dependency and then it applied the multiplier of 15 and thus awarded a sum of Rs.5,34,600/- towards loss of dependency. Under the conventional heads, the Trial Court awarded Rs.10,000/- towards loss of consortium, Rs.10,000/- towards loss of estate, Rs.24,725/- towards medical expenses and Rs.5,000/- towards funeral expenses and transportation charges. In all a sum of Rs.5,84,325/- was awarded as compensation. Aggrieved by the said award, the Insurance Company has preferred the appeal M.F.A. No.7555/2006 challenging the quantum of compensation. The claimants have preferred M.F.A. No.7912/2012 seeking enhancement of compensation. That is how both the appeals are before this Court.
8. The learned counsel appearing for the Insurance Company assailing the impugned judgment and award contends that the person, who issued the 8 -9- certificate stating that a sum of Rs.1,450/- per month is paid as salary, is not examined. There is no other evidence to show that the claimant was earning a sum of Rs.4,450/-. The accident occurred in the year 1999. In the absence of any evidence, the income of the claimant could not have been taken at the rate of Rs.4,450/- per month but it ought to have been less than Rs.3,000/- per month. Thus, he submits that a case for reducing the compensation is made out.
9. Per contra, the learned counsel appearing for the claimant submits that though the claimants have produced the Salary Certificate and other documents to show that the deceased was carrying on sericulture business and that he was into agriculture and was carrying on agricultural activity, the Trial Court committed a serious error in holding the income only at Rs.4,450/- per month. Even the compensation under conventional heads is on the lower side. Therefore, seeks for enhancement.
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10. In view of the rival contentions, the point that arises for our consideration are:
Whether the parties have made out a case either for enhancement or for reduction of the compensation?
11. The facts are not in dispute. B.Eswara Reddy, who was aged about 35 years died in a motor vehicle accident leaving behind the claimants as his legal heirs. He was an agriculturist by profession. The evidence also shows that he was working as a Secretary in the Milk Union in the village. He was also into Sericulture. It is true that the Authors of the documents are not examined. The documents show that he was owning nearly about 15 acres of land. He has been issued a pass book from the Sericulture Department that shows that he was a progressive farmer. He was also working as a Secretary in the Milk Vending Union. It is on consideration of these materials, the Trial Court has believed the evidence of the claimants insofar as the employment as a Secretary is concerned and also has 10
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taken a sum of Rs.2,400/- as the agricultural income. It is a modest assessment of the income of the deceased. Therefore, no fault could be found from the finding recorded by the Trial Court. Similarly, in the absence of corroborative evidence, which would show the income of the deceased every month and what was the amount which he was earning, it is not possible to hold that he was having an income of Rs.8,000/- per month.
12. In that view of the matter, when the Trial Court on appreciation of oral and documentary evidence on record, has recorded a finding of fact that the deceased was having an income of Rs.4,450/- per month, we do not see any justification to interfere with the well considered order passed by the Trial Court. In our view, the amount paid under the conventional heads is also just and proper. Therefore, we do not see any merit in these appeals. Hence we pass the following order:
(a) Both the appeals are dismissed.
(b) The High Court Registry, is directed to transmit the amount deposited by the Insurance 11
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Company before this Court to the Tribunal for being paid to the claimants forthwith. Parties to bear their own cost.
Sd/-
JUDGE Sd/-
JUDGE SPS 12