Karnataka High Court
The New India Assurance Co Ltd vs Smt Varalakshmi on 18 November, 2016
Author: P.S.Dinesh Kumar
Bench: P.S.Dinesh Kumar
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 12TH DAY OF FEBRUARY, 2016
BEFORE
THE HON'BLE MR.JUSTICE P.S.DINESH KUMAR
M.F.A. NO.21382/2009 A/W
M.F.A.Nos.21383/2009, 23907/2009 & 23906/2009 (MV)
IN MFA NO 21382 OF 2009
BETWEEN
THE NEW INDIA ASSURANCE CO. LTD.,
BELLARY,
BY ITS REGIONAL OFFICE,
2-B, UNITY BUILDING,
P KALINGA RAO ROAD(MISSION ROAD),
BANGALORE-27
R/B ITS REGIONAL MANAGER.
..... APPELLANT
(BY SRI VIJAYKUMAR HORATTI, ADV. FOR
SRI RAVI G SABHAHIT, ADV.)
AND
1. SMT VARALAKSHMI
W/O LATE A GADILINGA,
AGE: 27 YEARS, OCC: COOLIE, HOUSEWIFE,
2. SMT LAKSHMAMA
W/O SANNA HONNURAPPA,
AGE: 47 YEARS, OCC:NIL,
3. SANNA HONNURAPPA
S/O LATE MALLAIAH,
AGE: 52 YEARS, OCC:NIL,
ALL ARE R/O KAKKABEVINAHALLI VILLAGE,
BELLARY TALUK & DIST.
4. K PRASAD S/O KABHAGAVANTHAPPA,
AGE:MAJOR, DRIVER OF THE LORRY
:2:
BEARING NO.AP-21/T 1861,
R/O MILLERPET, NEAR KANEKAL BUS STAND,
BELLARY.
5. P SHASHAVALLI S/O P SUBHAN SAB,
AGE: MAJOR R.O W./NO.6,
BANGALORE ROAD, BANDIMOTE,
BELLARY.
..... RESPONDENTS
(R-1, R-2, R-3 & R-5 SERVED
NOTICE TO R-4 IS DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED: 17/12/2008 PASSED IN
M.V.C.NO.1306/2007 ON THE FILE OF THE MACT-III AT BELLARY,
AWARDING COMPENSATION OF RS.4,04,000/- ALONG WITH
INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL
DEPOSIT.
IN MFA NO 21383 OF 2009
BETWEEN
THE NEW INDIA ASSURANCE CO. LTD.,
BY ITS REGIONAL OFFICE, 2B, UNITY BUILDING
ANNEXE, P KALINGA RAO ROAD,
MISSION ROAD, BANGALORE
R/B ITS REGIONAL MANAGER.
..... APPELLANT
(BY SRI VIJAYKUMAR HORATTI, ADV. FOR
SRI RAVI G SABHAHIT, ADV.)
AND
1. SMT SANJEEVAMMA W/O AMBANNA,
AGE: 28 YEARS, OCC: NIL,
2. ASHOK S/O AMBANNA,
SINCE MINOR, R/B LAKSHAMAMMA @ ANJINAMMA
W/O AMBANNA,
3. SRENIVASA S/O AMBANNA,
MINOR R/BYNATURAL MOTHER AND
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GUARDIAN BY NAME LAKSHAMAMMA @ ANJINAMMA
W/O AMBANNA
4. LAKSHAMAMMA @ ANJINAMMA W/O. LINGAPPA,
AGE: 64 YEARS,
R/O KAKKABEVINAHALLI
BELLARY
5. K PRASAD S/O K BHAGAVANTHAPPA,
AGE MAJOR, DRIVER OF THE LORRY
R/O MILLERPET, NEAR ANEKAL BUS STAND,
BELLARY.
6. P SHASHAVALLI S/O P SUBHAN SAB,
AGE MAJOR, R/O W.NO.6, BANGALORE ROAD,
BANDIMOTE, BELLARY.
..... RESPONDENTS
(R-1, R-2, R-3 SERVED;
R-2 & R-3 MINOR REP. BY R-1;
NOTICE TO R-5 DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED: 17/12/2008 PASSED IN
M.V.C.NO.1307/2007 ON THE FILE OF THE III ADDITIONAL
MACT AT BELLARY, AWARDING A COMPENSATION OF
RS.4,04,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF
PETITION TILL DEPOSIT.
IN MFA NO 23907 OF 2009
BETWEEN
1. VARALAXMI W/O LATE A.GADILINGA
AGE 25 YEARS, OCC:COOLIE
AND HOUSEHOLD WORK,
2. LAKSHMAMMA W/O SANNA HONNURAPPA
AGE 45 YEARS,
3. SANNA HONNURAPA S/O LATE MALLAIAH
AGE 50 YEARS,
ALL ARE R/O KAKKABEVINAHALLI
VILLAGE, TQ & DIST:BELLARY
... APPELLANTS
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(BY SRI. RAMESH CHIGARI, ADVOCATE)
AND
1. K.PRASAD
S/O K.BHAGAVANTAPPA
AGE MAJOR, OCC:DRIVER, OF THE LORRY
BEARING NO. AP-21/T-1861,
R/O. MILLERPET, NEAR KANEKAL
BUS STAND, BELLARY
2. P.SHASHAVALI S/O P.SUBHANSAB
AGE MAJOR, OCC:OWNER OF LORRY
NO.AP-21/T-1851, R/O WARD NO.6,
BANGALORE ROAD, BANDIMOTE,
BELLARY
3. THE MANGER
NEW INDIA ASSURNCE COMPANY LTD,
BELLARY
(POLICY NO.160702/31/02/1530 VALID FROM
08022007 TO 24012008)
... RESPONDENTS
(BY SRI. VIJAY KUMAR HORATTI FOR
RAVI G. SABHAHIT, ADVOCATE FOR R3
R2 & R3 DISMISSED)
THIS MFA IS FILED U/S.173(1) OF THE M.V.ACT, AGAINST
THE JUDGEMENT AND AWARD DATED: 17-12-2008, PASSED IN
MVC NO.1306/2007, ON THE FILE OF THE MEMBER, MACT-III,
BELLARY, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA NO 23906 OF 2009
BETWEEN
1. SANJEEVAMMA
W/O LATE AMBANNA,
AGE 26 YEARS,
2. ASHOK S/O LATE AMBANNA,
AGE : 5 YEARS, A MINOR CHILD REP BY HIS
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NATURAL MOTHER AND GUARDIAN,
APPELLANT NO.1/SANJEEVAMMA
3. SREENIVASA S/O LATE AMBANNA,
AGE 3 YEARS, A MINOR CHILD REP BY HIS
NATURAL MOTHER AND GUARDIAN,
APPELLANT NO.1/SANJEEVAMMA
4. LAKSHMAMMA @ ANJINAMMA
W/O LATE LINGAPPA,
AGE 62 YEARS,
ALL ARE R/O KAKKABEVINAHALLI VILLGE,
TQ & DIST:BELLARY.
..... APPELLANTS
(BY SRI RAMESH CHIGARI, ADV. FOR SRI S S YADRAMI, ADV.)
AND
1. K.PRASAD S/O K.BHAGAVANTAPPA,
AGE MAJOR, OCC:DRIVER OF THE LORRY
BEARING NO.AP-21/T-1861,
R/O MILLERPET, NEAR KANEKAL BUS STAND,
BELLARY.
2. P.SHASHAVALI S/O P.SUBHANSAB,
AGE MAJOR. OCC:OWNER OF LORRY
NO. AP-21/T-1851,
AGE MAJOR, OCC: OWNER OF LORRY
NO.AP-21/T-1861, R/O WARD NO.6,
BANGALORE ROAD, BANDIMOTE
BELLARY.
3. THE MANGER,
NEW INDIA ASSURANCE COMPANY LTD,
BELLARY
(POLICY NO.160702/31/02/1530 VALID FROM
08022007 TO 24012008)
..... RESPONDENTS
(BY SRI VIJAY KUMAR HORATTI, ADV. FOR
SRI RAVI G SABHAHIT, ADV. FOR R-3
R-1 & R-2 DISMISSED)
:6:
THIS MFA IS FILED U/S.173(1) OF THE M.V.ACT, AGAINST
THE JUDGEMENT AND AWARD DATED: 17-12-2008, PASSED IN
MVC NO.1307/2007, ON THE FILE OF THE MEMBER, MACT-III,
BELLARY, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE APPEALS COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though these appeals are listed for admission, with the consent of the learned counsel for the parties, they are taken up for final disposal as they are of the year 2009.
2. Two appeals are filed by the insurer challenging the liability and two appeals by the claimants for enhancement of compensation.
3. Brief facts of the case are on 22.08.2007, at about 5.00 p.m., one Gadi Lingappa was riding the motorcycle bearing registration No.KA-34/K-4108 along with one Ambanna as pillion rider on N.H.No.53, near I.O.C. Petrol Pump, Guntakal, Ananthpura District. The same was dashed against by a lorry bearing registration No.AP-21/T-1581 coming from opposite direction in a rash and negligent manner. In the accident, both :7: the rider and pillion rider sustained grievous injuries. Rider died on the spot and the pillion rider succumbed to the injuries in the hospital. Legal representatives of the deceased filed separate claim petitions. Both claim petitions were adjudicated together. Petitions were resisted by the insurer by filing statements of objections. In all three witnesses were examined as PW-1 to 3 and 12 documents were marked. On behalf of respondents, one witness was examined and the insurance policy was marked as Ex.R-1. Based on the pleadings, after framing relevant issues and considering the material on record, Tribunal has come to the conclusion that the accident had occurred due to rash and negligent driving on the part of the driver of the offending lorry. A compensation of Rs.4,04,000/- with 6% interest was awarded to the claimants in both the cases. Insurer is aggrieved by the liability saddled and the claimants are aggrieved by the quantum of compensation. Hence, these appeals.
4. Heard Sri Vijaykumar Horatti, learned counsel for Sri Ravi G. Sabhahit, learned counsel for insurer and Sri Ramesh, learned counsel for S.S. Yadrami, learned counsel for claimants. :8:
5. Assailing the legality and correctness of the judgment and awards, learned counsel for the insurer strongly contended that the Tribunal erred to note a material document namely the complaint lodged by a close relative of the deceased which is marked as Ex.P-1. A careful perusal of the complaint discloses that the accident has occurred solely due to the negligence on the part of the rider of the motorcycle. Consequently, insurer could not have been held liable to satisfy the award. In the alternative he submitted that based on the complaint, Tribunal ought to have given a finding with regard to percentage of contributory negligence on the part of the rider of the motorcycle. Therefore, the direction given to the insurer to satisfy the award is unsustainable in law and prayed for allowing the appeals filed by the insurer and to dismiss the appeals filed by the claimants.
6. Per contra, learned counsel for the claimants supporting the judgment and awards of the Tribunal with regard to the aspect of liability submitted that there is no material on :9: record to demonstrate that there was any negligence on the part of the rider of the motorcycle. Therefore, the judgment of the Tribunal with regard to the liability aspect is just and proper and does not call for any interference. With regard to the quantum of compensation, he submitted that both the rider and pillion rider were in the age group of 20 and 30 years and they were agriculturists. Both were married and having children. Due to the accident, both the families have lost their breadwinner. Tribunal failed to assess the correct income of the deceased and therefore, quantum of compensation awarded under the head loss of dependency is inadequate. The quantum of compensation awarded under conventional heads such as loss of consortium, loss of love and affection and etc. is also inadequate. Tribunal has not awarded any compensation under the head loss of estate. With these submissions, he prayed for allowing the appeals filed by the claimants and to dismiss the appeals filed by the insurer.
7. I have carefully considered the rival submissions made on behalf of the insurer and the claimants and perused the records.
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8. Occurrence of accident and the coverage of insurance policy are not in dispute. Thus, the questions which fall for consideration of this Court are :
1) Whether there was any negligence on the part of the rider of the motorcycle and if so, what is the percentage?
2) Whether the quantum of compensation awarded is just and reasonable?
Point No.1:
9. Learned counsel for the insurer has strongly relied on the statement of one of the close relatives of the deceased who is examined as PW-1. A careful perusal of Ex.P-1 discloses that the complainant has stated therein that the deceased had gone to his house to extend an invitation for housewarming ceremony and left the house at 4.45 p.m. along with the pillion rider. While attempting to avoid an accident with the lorry, which was coming from the opposite side, rider of the motorcycle lost control, fell down and sustained grievous injuries and died on the spot. Pillion rider was not in a position to speak and therefore villagers called : 11 : for an ambulance and he was shifted to the hospital. Other than this narration, there is nothing to suggest that there was any negligence on the part of the rider of the motorcycle. On the other hand, if the contents of the complaint are read in its totality, it would suggest that the rider of the motorcycle lost control while trying to avoid the accident. At any rate, complainant is not an eyewitness and veracity of the statement will have to be limited to note only the occurrence of accident. Thus, except this document, there is no other material on record, which may suggest that the rider of the motorcycle was negligent in any manner. Therefore, the solitary ground pressed by the insurer with regard to the negligence fails and accordingly the appeals filed by the insurer deserve to be rejected. Point No.2:
10. The material on record disclose that the deceased Gadi Linga was aged 30 years at the time of accident. Though it is the claim that he was an agriculturist and earning Rs.7,000/- per month, no material is placed on record to prove the earnings of the deceased. Accident has occurred in the year 2007 and : 12 : therefore, it would be just and appropriate to construe the earning capacity of the deceased at Rs.4,000/- per month. 1/3rd of the income will have to be deducted towards his personal expenses and if the same is deducted, earnings of the deceased would come to Rs.2,667/-. The deceased was 30 years. Therefore, the correct applicable multiplier is 17. With these inputs, quantum of compensation under the head loss of dependency would workout to Rs.5,44,068/-. Perusal of the judgment shows that the quantum of compensation awarded under conventional heads is also inadequate. Therefore, the compensation is re-assessed as follows:
Sl.No. Heads Amount
1. Loss of dependency Rs.5,44,068/-
2. Loss of consortium Rs.50,000/-
3. Loss of love and affection Rs.50,000/-
4. Funeral expenses Rs.25,000/- * Corrected
vide court
5. Loss of estate Rs.10,000/- order
Total Rs.6,79,068/- dated
Less: Awarded by the Tribunal Rs.4,04,000/- 14.09.2016
Sd/-
Total enhanced compensation *Rs.2,75,068/- (PSDJ)
11. Deceased Ambanna was aged 29 years at the time of accident. Though even this case it is the claimed that the : 13 : deceased was an agriculturist and earning Rs.7,000/- per month, no material is placed on record to prove the earnings of the deceased. Accident has occurred in the year 2007 and therefore, it would be just and appropriate to construe the earning capacity of the deceased at Rs.4,000/- per month. Taking note of size of family, 1/4th of the income will have to be deducted towards his personal expenses and if the same is deducted, earnings of the deceased would come to Rs.3,000/-. The deceased was 29 years. Therefore, the correct applicable multiplier is 17. With these inputs, quantum of compensation under the head loss of dependency would come to Rs.6,12,000/-. Perusal of the judgment shows that the quantum of compensation awarded under conventional heads is also inadequate. Therefore, the compensation is re-assessed as follows:
Sl.No. Heads Amount
1. Loss of dependency Rs.6,12,000/-
2. Loss of consortium Rs.50,000/-
3. Loss of love and affection Rs.75,000/-
5. Loss of estate Rs.10,000/-
Total Rs.7,47,000/-
Less: Awarded by the Tribunal Rs.4,04,000/-
Total enhanced compensation Rs.3,43,000/-
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12. In the result, I pass the following:-
ORDER
i) Appeals filed by the insurance company in
M.F.A.Nos.21382/2009 & 21383/2009 stand dismissed; Corrected vide Court order
ii) Appeals filed by the claimants in Dated 18.11.2016 Sd/-
M.F.A.Nos.23907/2009 and 23906/2009 are (PSDJ) allowed in part by awarding an additional Corrected vide court order compensation of Rs.2,75,068/- and Rs.3,43,000/- Dated 14.09.2016 respectively with 6% interest per annum from Sd/-
(PSDJ) the date of petition till the date of deposit.
iii) Respondent-Insurer is directed to deposit the additional compensation with interest within a period of four weeks from the date of receipt of a copy of this order.
iv) Upon such deposit, Tribunal is directed to release the amount in the same proportion as directed by the Tribunal in its award.
v) Registry is directed to transfer the amount in deposit for disbursement in accordance with law. No costs.
Sd/-
JUDGE Naa