Karnataka High Court
Nagamma W/O Malakappa Bomanalli vs Mr Jayawant on 6 September, 2013
Author: B.S.Indrakala
Bench: B.S.Indrakala
1
IN THE HIGH COURT OF KARNATAKA
GULBARGA BENCH
DATED THIS THE 06TH DAY OF SEPTEMBER 2013
BEFORE
THE HON'BLE MRS.JUSTICE B.S.INDRAKALA
MFA No.12700/2007
C/W
MFA No.14067/2007 (MV)
IN MFA No.12700/2007
BETWEEN:
United India Insurance Co. Ltd.
Divisional Office, P.B.No.60
"Sangama Building"
S.S.Front Road, Bijapur-586 101
Represented by its
Divisional Manager
.. Appellant
(By Sri Manvendra Reddy, Advocate)
AND:
1. Smt. Nagamma
W/o Sri Malakappa Bomanahalli
Aged about 27 years
Occ: Household work
R/o Harnal, Muddebihal Taluk
2. Master Hanamantharaya
S/o Sri Malakappa Bomanahalli
Aged about 7 years, Occ: Nil
2
Represented by minor guardian his
Mother petitioner No.1
3. Sri Sabanna
S/o Sri Bhimappa Bomanalli
Aged about 60 years
Occ: Agriculturist
4. Smt. Shantawwa
W/o Sri Sabanna Bomanalli
Aged Major
All are R/o Haranal
Muddebihal Taluk
All are now R/a Bijapur
5. Mr. Jayawant
S/o Sri Ankush Satardekar
Aged Major
R/at Building No.27
P.No.16, Street No.6
Airdi, Belapur Road
Thane (M.H.) Thane
.. Respondents
(Sri. Harshavardhan R. Malipatil, Adv. for R1 to R4;
Notice to R5 held sufficient V/O Dtd. 29.06.2012)
This MFA is filed under Section 173(1) of MV Act, against
the judgment and award dated 25.08.2007 passed in MVC
No.124/2001 on the file of Civil Judge (Sr.Dn.) & Member,
MACT, Muddebihal, awarding a compensation of Rs.4,57,000/-
with interest at the rate of 6% P.A. from the date of petition till
realisation.
3
IN MFA No.14067/2007
BETWEEN:
1. Nagamma
W/o Malakappa Bomanalli
Aged 28 years, Occ: Household work
R/o Harnal, Tq. Muddebihal
Dist. Bijapur
2. Hanamantharaya S/o Malakappa
Aged 8 years, Occ: Nil
(Represented by Minor Guardian his
Mother Appellant No.1)
3. Sabanna S/o Bhimappa Bomanalli
Aged 55 years, Occ: Agriculture
4. Shantawwa W/o Sabanna Bomanalli
Aged 50 years, Occ: Nil
(All are R/o Haranal, Tq. Muddebihal
Dist. Bijapur. All are now at Bijapur)
.. Appellants
(By Sri Harshavardhan R. Malipatil, Adv.)
AND:
1. Mr. Jayawant
S/o Ankush Satardekar
Aged Major, Occ: Business
At Building No.27
P.No.16, Street No.6
Airdi, Belappar Road
Thane (M.H.) Thane
2. The United India Insurance Co. Ltd.
Notice to be served on
The Branch Manager
4
The United India Insurance Co. Ltd.
Branch Office, Bijapur
Dist. Bijapur
.. Respondents
(Sri Manvendra Reddy, Adv. for R2;
Notice to R1 dispensed with)
This MFA is filed under Section 173(1) of MV Act, against
the judgment and award dated 25.08.2007 passed in MVC
No.124/2001 on the file of the Civil Judge (Sr.Dn.), Member
MACT, Muddebihal, partly allowing the claim petition for
compensation and seeking enhancement of compensation.
These appeals coming on for further hearing this day, the
Court delivered the following:
JUDGMENT
The above appeals are filed challenging the judgment and award dated 25.08.2007 passed in MVC No.124/2001 on the file of the Motor Accident Claims Tribunal, Muddebihal.
2. The said MVC No.124/2001 was filed by the legal representatives of one Malakappa Bomanalli alleging that on 27.03.1997 when the said Malakappa was crossing the road near Lingadal, the driver of one Swaraj-Mazda bearing Reg. No.MH-04/C-3903 drove the same in rash manner, dashed 5 against the said Malakappa and caused the accident. In the said accident, said Malakappa suffered fatal injuries and died at the spot. In the circumstances, the claimants claiming themselves as wife, son and parents of the deceased have preferred the above claim petition against the owner of the vehicle and also the Insurance Company/respondent Nos.1 and 2 respectively before the Tribunal seeking compensation on account of such accidental untimely death of said Malakappa. The owner of the vehicle namely, respondent No.1 therein remained absent as such he was placed exparte, while respondent No.2-Insruance Company entered appearance through its counsel and also chose to file objections totally denying issuance of any policy to the said vehicle during the relevant period.
3. The claimants to establish their case, apart from claimant No.1 getting herself examined as PW.1, chose to examine another witness as PW.2 and got marked Exs.P1 to P7, while on behalf of the respondents, an official of respondent No.2 was examined as RW.1 and Exs.R1 to R3 are got marked. 6
4. On appreciation of the evidence so placed on record, the Tribunal deemed it fit to allow the claim petition awarding a sum of Rs.4,57,000/- with interest @ 6% p.a. from the date of petition till realisation against both the respondents making liable the second respondent- Insurance Company therein to indemnify the owner of the vehicle. Aggrieved by the said order, respondent No.2- Insurance Company has preferred MFA No.12700/2007, while the claimants have preferred MFA No.14067/2007.
5. The appellant-Insurance Company in MFA No.12700/2007 contended amongst other contentions that the vehicle in question was not at all insured with the said Insurance Company; the Tribunal erred in fastening the liability on the Insurance Company without there being any insurance policy, while the appellants in MFA No.14067/2007 contended that the amount awarded by the Tribunal in the facts and circumstances of the case is inadequate and the same needs to be enhanced and 7 further contended that the fastening of the liability on the Insurance Company is proper.
6. Learned counsel appearing for the appellant- Insurance Company in MFA No.12700/2007 submitted that though the claimants have got marked the endorsement addressed by the Regional Transport Office, Thane, dated 11.01.2000 as Ex.P7 contending that the same discloses the details of the policy, on perusal of the same it is seen that before writing the name of the Insurance Company as United India Insurance Company, an endorsement is made against the column - details of the Insurance Policy - as not available and further he submitted that the policy number is also not furnished correctly, besides, which Branch of United India Insurance Company had issued the said policy is also not stated. Further he submitted that in the cause title to the claim petition as the appellant-Insurance Company is described as the Insurance Company said to be situated at Bijapur, 8 the details from Thane Office of United India Insurance Company was called for to which reply as per Ex.R1 with enclosures Exs.R2 and R3 were received. Hence, as no such policy was issued by the Thane Office of United India Insurance Company, they are unable to place on record any details with regard to issuance of policy for the relevant period. Further, he submitted that it is for the owner to establish the coverage of valid policy and the claimants ought to have taken notice to the owner calling upon him to produce such policy.
7. Per contra, learned counsel appearing for the respondents/claimants submitted that the details furnished by the R.T.O. in Ex.P7 itself is sufficient to hold that the vehicle was insured with the appellant-Insurance Company and as such it cannot be said that the vehicle was not covered with any valid insurance as on the date of accident. Further, the counsel submitted that inspite of the insurer adducing evidence, it has not denied in 9 specific terms the serial number of the policy as furnished by the R.T.O. at Thane in Ex.P7, inasmuch as, the entire evidence adduced by the insurer is silent with regard to the policy number furnished by the R.T.O.
8. With regard to the other appeal in MFA No.14067/2007, the counsel for the appellants/claimants submitted that the deceased was aged 25 years and he was having an income of Rs.3,500/- per month and in the circumstances, the amount of compensation awarded by the Tribunal is too meager and the evidence let in by the claimants is not appreciated in proper perspective and sought enhancement of the same, while the counsel appearing for respondent No.2-Insurer submitted that there is no liability cast upon the Insurance Company to indemnify the owner of the vehicle which was involved in the accident. Without prejudice to such contentions, it is submitted that the impugned award of the Tribunal in the 10 facts and circumstances of the case is just and proper and the same does not call for any interference in that regard.
9. In view of the submissions made, the points that arise for consideration are:
(1) Whether the appellants/claimants prove that the vehicle in question was insured with respondent No.2-Insurance Company as on the date of accident?
(2) Whether the impugned judgment and award dated 25.08.2007 passed in MVC No.124/2001 on the file of the MACT, Muddebihal are liable to be modified?
(3) What Order?
10. On perusal of the cause title to the claim petition it is seen that the 2nd respondent-Insurance Company is described to be having Branch Office at Bijapur and Ex.P7 no doubt is issued by the R.T.O. at Thane but, the same does not specifically state with regard to which office of Insurance Company had issued 11 such policy. In any event the claimants have not shown any reason for choosing the Branch Office at Bijapur as the 2nd respondent-Insurance Company in this case. Besides, as the owner of the vehicle remained absent and placed exparte, the claimants ought to have taken notice to the owner of the vehicle to adduce evidence or for furnishing the number and other details of the policy taken by him to the said vehicle, which the claimants have not discharged.
11. Further it is seen that respondent No.2- Insurance Company has also not denied the serial number of the policy mentioned in Ex.P7, inasmuch as, RW.1 who is an official of the Insurance Company has only spoken to about the correspondence between the respondent- Insurance Company and that of Regional Transport Officer at Thane. Nothing is stated about the number of the policy as furnished by the R.T.O. in Ex.P7. In the said circumstances, with regard to coverage of the policy, the 12 evidence let in by both the parties i.e., claimants as well as the respondent-Insurance Company by itself, is not sufficient or conclusive with regard to either the existence of the policy or otherwise. Thus, by providing further opportunity to both the claimants as well as the 2nd respondent-Insurance Company to adduce further evidence of either taking steps to the owner for causing production of the policy if any or the number therein of the policy by the claimants or by providing an opportunity to the Insurance Company to speak about the number of the policy as furnished at Ex.P7, no prejudice will be caused to either of the parties if the matter is remanded.
12. With regard to the quantum of compensation awarded it is seen that the Tribunal by considering the income of the deceased at Rs.3,000/- per month, by applying the multiplier of 18 and by deducting 1/3rd of the same, has deemed it fit to award a sum of Rs.4,32,000/- towards loss of dependency. Likewise, it has also awarded 13 compensation under other heads like transportation of dead body, funeral expenses, loss of consortium to claimant No.1 and loss of love and affection to claimant Nos.2 to 4 etc. at Rs.15,000/- which in the circumstances of the case is proper. Thus, point Nos.1 and 2 are answered holding that the judgment and award so far as it relates to awarding of compensation to an extent of Rs.4,47,000/- with interest @ 6% p.a. from the date of petition till realisation does not call for any interference and with regard to fastening of liability on the respondent- Insurance Company, the matter needs to be remanded for providing further opportunity to both the claimants as well as the respondent-Insurance Company to adduce further evidence as discussed supra. Hence, the following:
ORDER MFA No.12700/2007 is partly allowed setting aside the impugned judgment and award dated 25.08.2007 passed in MVC No.124/2001 on the file of the Motor 14 Accident Claims Tribunal, Muddebihal, to an extent of fastening of the liability on the appellant-Insurer to indemnify the owner of the vehicle namely, the 1st respondent therein and the matter is remanded to the Tribunal to consider such aspect afresh by providing further opportunity to both the claimants as well as the respondent-Insurance Company.
As both the claimants as well as the respondent- Insurance Company are duly represented, they are directed to appear before the jurisdictional Tribunal on 28.09.2013 and no fresh notice need be given to both parties. As the owner of the vehicle has remained exparte, no further notice need be given to him also.
MFA No.14067/2007 filed by the claimants is dismissed confirming the order with regard to the quantum of compensation awarded by the Tribunal. 15
The amount in deposit is ordered to be refunded to the Insurance Company - appellant in MFA No.12700/2007.
Sd/-
JUDGE LG