Karnataka High Court
The Divisional Manager vs Smt Basawwa Venkappa Rogi on 4 September, 2012
Author: Ashok B.Hinchigeri
Bench: Ashok B. Hinchigeri
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 04th DAY OF SEPTEMBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
M.F.A.No.24209 OF 2009 (MV)
C/w.
M.F.A.CROB NO.845/2010 IN M.F.A.NO.24209/2009,
M.F.A.NO.24210/2009, M.F.A.CROB NO.816/2010 IN
M.F.A.NO.24210/2009, M.F.A.NO.24211/2009 & M.F.A.CROB
NO.790/2010 IN M.F.A.NO.24211/2009
M.F.A.NO.24209/2009:
BETWEEN:
The Divisional Manager,
The National Insurance Company Ltd.,
Divisional Office, Ramdev Galli,
Belgaum, represented by the
Divisional Manager,
The National Insurance Company Ltd.,
Sujata Complex, P.B.Road,
Hubli. ... Appellant
(By Sri S.K.Kayakamath, Advocate)
AND:
1. Smt.Kashawwa Laxmappa Rogi,
Age: 39 years,
Occ: Household Work,
R/o.Inapur,
Tq: Saundatti,
Dist: Belgaum.
2
2. Kumari Renuka,
D/o.Laxmappa Rogi,
Age: 19 years,
Occ: Student,
R/o.Inapur,
Tq: Saundatti,
Dist: Belgaum.
3. Kumari Annapurna,
D/o.Laxmappa Rogi,
Age: 17 years,
Occ: Student.
4. Kumar Vittal,
S/o.Laxmappa Rogi,
Age: 15 years,
Occ: Student.
5. Kumar Vinod
S/o. Laxmappa Rogi,
Age: 13 years,
Occ: Student.
Respondent Nos. 3 to 5
Are minors represented by
Their natural mother guardian
Smt.Kashawwa Laxmappa Rogi.
6. Sri Siddappa Tammanna Sunagad,
Age: Major,
Occ: Business,
R/o.At & Post: Salapur,
Tq.Ramdurg,
Dist: Belgaum. ... Respondents
(By Sri Santosh S.Hathikatagi,Advocate for SriSanthosh
B.Rawoot, Advocate for R1:
R2 served: R3 to R5 are minors represented by R1:
Sri Shriharsh A.Neelopant, Advocate for R6)
3
This MFA is filed under Section 173(1) of MV Act, against
the judgment and award dated.18.08.2009, passed in MVC
No.3413/2006 on the file of the Civil Judge (Sr.Dn.) and
Member, Addl. Ramdurg, awarding the compensation of
Rs.3,76,000/- with interest at the rate of 6% p.a. from the date
of petition till realisation, etc.,
M.F.A.CROB NO.845/2010:
BETWEEN:
1. Smt.Kashawwa Laxmappa Rogi,
Age: 39 years,
Occ: Household Work,
R/o.Inapur, Tq: Saundatti,
Dist: Belgaum.
2. Kumari Renuka,
D/o.Laxmappa Rogi,
Age: 19 years,
Occ: Student,
R/o.Inapur, Tq: Saundatti,
Dist: Belgaum.
3. Kumari Annapurna,
D/o.Laxmappa Rogi,
Age: 14 years,
Occ: Student.
R/o.Inapur,
Tq: Saundatti,
Dist: Belgaum.
4. Kumar Vittal,
S/o.Laxmappa Rogi,
Age: 12 years,
Occ: Student.
R/o.Inapur,
Tq: Saundatti,
Dist: Belgaum.
4
5. Kumar Vinod
S/o. Laxmappa Rogi,
Age: 10 years,
Occ: Student.
R/o.Inapur, Tq: Saundatti,
Dist: Belgaum.
Cross Objector Nos. 3 to 5
Are minors represented by
Their natural mother
Cross Objector No.1. ... Cross Objectors
(By Sri Santosh S.Hathikatagi,Advocate for Sri Santhosh
B.Rawoot, Advocate)
AND:
1. Sri Siddappa
S/o.Tammanna Sunagad,
Age: Major, Occ: Business,
R/o.At & Post: Salapur,
Tq.Ramdurg, Dist: Belgaum.
2. The Divisional Manager,
The National Insurance Company Ltd.,
Divisional Office, Ramdev Galli,
Belgaum, represented by the
Divisional Manager,
The National Insurance Company Ltd.,
Sujata Complex, P.B.Road,
Hubli. ... Respondents
(By Sri S.K.Kayakamath, Advocate for R2)
This MFA Crob is filed under Order 41 Rule 22 of CPC
against the judgment and award dated.18.08.2009, passed in
MVC No.3413/2006 on the file of the Civil Judge (Sr.Dn.) and
Member, Addl. Ramdurg, partly allowing the claim petition for
compensation and seeking enhancement of compensation, etc.,
5
M.F.A.NO.24210/2009:
BETWEEN:
The Divisional Manager,
The National Insurance Company Ltd.,
Divisional Office, Ramdev Galli,
Belgaum, represented by the
Divisional Manager,
The National Insurance Company Ltd.,
Sujata Complex, P.B.Road,
Hubli. ... Appellant
(By Sri S.K.Kayakamath, Advocate)
AND:
1. Sri Basappa Venkappa Rogi,
Age: 39 years,
Occ: Agriculture,
R/o.Inapur,
Tq: Saundatti,
Dist: Belgaum.
2. Sri Siddappa Tammanna Sunagad,
Age: Major, Occ: Business,
R/o.At & Post: Salapur,
Tq.Ramdurg, Dist: Belgaum. ... Respondents
(By Sri Santosh S.Hathikatagi,Advocate for Sri Santhosh
B.Rawoot, Advocate for R1:
Sri Shriharsh A.Neelopant, Advocate for R2)
This MFA is filed under Section 173(1) of MV Act, against
the judgment and award dated.18.08.2009, passed in MVC
No.3414/2006 on the file of the Civil Judge (Sr.Dn.) and
Member, Addl. Ramdurg, awarding the compensation of
Rs.25,000/- with interest at the rate of 6% p.a. from the date of
petition till realisation, etc.,
6
M.F.A.CROB NO.816/2010:
BETWEEN:
1. Sri Basappa Venkappa Rogi,
Age: 39 years,
Occ: Agriculture,
R/o.Inapur, Tq: Saundatti,
Dist: Belgaum. ... Cross Objector
(By Sri Santosh S.Hathikatagi,Advocate for Sri Santhosh
B.Rawoot, Advocate)
AND:
1. The Divisional Manager,
The National Insurance Company Ltd.,
Divisional Office, Ramdev Galli,
Belgaum, represented by the
Divisional Manager,
The National Insurance Company Ltd.,
Sujata Complex, P.B.Road,
Hubli.
2. Sri Siddappa
S/o.Tammanna Sunagad,
Age: Major, Occ: Business,
R/o.At & Post: Salapur,
Tq.Ramdurg, Dist: Belgaum. ... Respondents
(By Sri S.K.Kayakamath, Advocate for R1: Sri Shriharsh
A.Neelopant, Advocate for R2)
This MFA Crob is filed under Order 41 Rule 22 of CPC
against the judgment and award dated.18.08.2009, passed in
MVC No.3414/2006 on the file of the Civil Judge (Sr.Dn.) and
Member, Addl. Ramdurg, partly allowing the claim petition for
compensation and seeking enhancement of compensation, etc.,
7
M.F.A.NO.24211/2009:
BETWEEN:
The Divisional Manager,
The National Insurance Company Ltd.,
Divisional Office, Ramdev Galli,
Belgaum, represented by the
Divisional Manager,
The National Insurance Company Ltd.,
Sujata Complex, P.B.Road,
Hubli. ... Appellant
(By Sri S.K.Kayakamath, Advocate)
AND:
1. Smt.Basawwa Venkappa Rogi,
Age: 60 years,
Occ: Household Work,
R/o.Inapur, Tq: Saundatti,
Dist: Belgaum.
2. Smt.Thimmawwa,
D/o.Venkappa Rogi,
Age: 43 years,
Occ: Household Work,
R/o.Inapur,Tq: Saundatti,
Dist: Belgaum.
3. Sri Siddappa Tammanna Sunagad,
Age: Major, Occ: Business,
R/o.At & Post: Salapur,
Tq.Ramdurg,
Dist: Belgaum. ... Respondents
(By Sri Santosh S.Hathikatagi,Advocate for SriSanthosh
B.Rawoot, Advocate for R1 & R2:
Sri Shriharsh A.Neelopant, Advocate for R3)
8
This MFA is filed under Section 173(1) of MV Act, against
the judgment and award dated.18.08.2009, passed in MVC
No.3415/2006 on the file of the Civil Judge (Sr.Dn.) and
Member, Addl. Ramdurg, awarding the compensation of
Rs.2,80,000/- with interest at the rate of 6% p.a. from the date
of petition till realisation, etc.,
M.F.A.CROB NO.790/2010:
BETWEEN:
1. Smt.Basawwa Venkappa Rogi,
Age: 60 years,
Occ: Household Work,
R/o.Inapur, Tq: Saundatti,
Dist: Belgaum.
2. Smt.Thimmawwa,
D/o.Venkappa Rogi,
Age: 43 years,
Occ: Household Work,
R/o.Inapur, Tq: Saundatti,
Dist: Belgaum. ... Cross Objectors
(By Sri Santosh S.Hathikatagi,Advocate for Sri Santhosh
B.Rawoot, Advocate)
AND:
1. Sri Siddappa
S/o.Tammanna Sunagad,
Age: Major, Occ: Business,
R/o.At & Post: Salapur,
Tq.Ramdurg, Dist: Belgaum.
2. The Divisional Manager,
The National Insurance Company Ltd.,
Divisional Office, Ramdev Galli,
Belgaum, represented by the
Divisional Manager,
9
The National Insurance Company Ltd.,
Sujata Complex, P.B.Road,
Hubli. ... Respondents
(By Sri S.K.Kayakamath, Advocate for R1: Sri Shriharsh
A.Neelopant, Advocate for R2)
This MFA Crob is filed under Order 41 Rule 22 of CPC
against the judgment and award dated.18.08.2009, passed in
MVC No.3415/2006 on the file of the Civil Judge (Sr.Dn.) and
Member, Addl. Ramdurg, partly allowing the claim petition for
compensation and seeking enhancement of compensation, etc.,
These MFAs and MFA Crobs. coming on for orders, this
day, the Court delivered the following:
JUDGMENT
These three appeals and the cross objections have arisen from the common judgment, dated 18.08.2009 passed by the Court of the Civil Judge (Sr.Dn.) and Addl. M.A.C.T., Ramdurg, in M.V.C.Nos.3413/2006, 3414/2006 and 3415/2006.
2. The facts of the case in brief are that when Laxmappa Venkappa Rogi and Venkappa Laxmappa Rogi were returning in the bullock-cart from the agricultural land to their house, a truck came in a negligent and overspeeding manner and hit the bullock-cart. This accident took place on 05.11.2005 on Belgaum-Bagalkot road. Venkappa Rogi died on the spot. 10 Laxmappa Rogi died when he was being rushed to the hospital. One bullock died on the spot and another was severely injured. The bullock-cart was also badly damaged. The legal representatives of the Laxmappa Rogi filed M.V.C.No.3413/2006; the legal representatives of Venkappa Rogi filed M.V.C.No.3415/2006 and the other case namely M.V.C.No.3414/2006 was filed by Basappa Rogi for claiming the compensation for the death of the bullocks and for the damage to the bullock cart.
3. The Tribunal awarded compensation of `3,76,000/- to the claimants/petitioners in M.V.C.No.3413/2006. Its break-up is as follows:
(Amount `)
1. Towards loss of dependency 3,36,000
2. Towards loss of estate 10,000
3. Towards funeral expenses 10,000
4. Towards loss of love and 10,000 affection
5. Towards loss of consortium 10,000 Total 3,76,000
4. In M.V.C.No.3415/2006 the Tribunal awarded compensation of `2,80,000/-, the breakup of which is as follows:
11
(Amount `)
1. Towards loss of dependency 2,40,000
2. Towards loss of consortium 10,000
3. Towards loss of love and 10,000 affection
4. Towards funeral expenses 10,000
5. Towards loss of estate 10,000 Total 2,80,000
5. The Tribunal has awarded a global compensation of `25,000/- in M.V.C.No.3414/2006 for the death of bullocks and damage to the bullock cart.
6. Sri S.K.Kayakamath, the learned counsel for the appellant Insurance Company submits that the complaint at Ex.P2 clearly states that the brother of the owner one Sunagud was driving the vehicle at the time of the accident. He submits that the owner of the vehicle, the claimants and the appellant have colluded, as if another person, namely, Naragatti was driving the vehicle. As the primary document itself shows that the vehicle was being driven by Sunagud, who did not have the driving licence, the Insurance Company is not liable to pay the compensation. The claims of the parties, if any, are to be satisfied only by the owner of the vehicle. He has relied on the following decisions:
12
(1) National Insurance Co. Ltd., vs. Rattani and others reported in 2009 (1) T.A.C.420 and (2) Oriental Insurance Company Ltd., vs. Premlata Shukla and others reported in 2007 (3) T.A.C. 11.
7. He submits that the concerned officer of the Insurance Company has entered the witness box and has spoken about the vehicle being driven by the said Sunagud. He submits that the appellant has also cross-examined PWs. 1 to 4.
8. Sri Santhosh Hattikatagi, the learned counsel appearing for Sri Santhosh B.Rawooth for the cross-objectors submits that in the absence of pleading no amount of evidence can come to the rescue of a party. He submits that new plea is being raised in the appeal for the first time. He submits that the appeals are not tenable at all.
9. He submits that in Cross Objection No.845/2010 in M.F.A.No.24209/2009 arising from M.V.C.No.3413/2006, the Tribunal ought to have deducted only ¼ towards the personal expenses of the deceased. The Tribunal is not justified in deducting 1/3 towards the personal expenses of the deceased. 13 He also submits that as it is not in dispute that the deceased Laxmappa was aged 40 years, the relevant multiplier is 15 and not 14, as chosen by the appellant insurance company. He also complains of the inadequacy of the amounts awarded under the conventional heads.
10. The learned counsel submits that in Cross Objection No.790/2010 in MFA No.24211/2009 arising from M.V.C.No.3415/2006 the amounts awarded under the conventional heads are insufficient.
11. The learned counsel in Cross Objection No.816/2010 in M.F.A.No.24210/2009 arising from M.V.C.No.3414/2006 submits that the Tribunal ought to have granted the compensation of `1.00 lakh for the death of two bullocks and damage of bullock cart.
12. I have browsed through the L.C.Rs.
13. The appellant has not made any averment in the statement of objections filed in the proceedings before the Tribunal that the vehicle was being driven by the one Sunagud. 14 There being no foundation in the pleading, the appellant cannot raise the edifice based on the evidence. Further, it is Naragatti, who is chargesheeted, as is evident from the charge-sheet at Ex.P7. The appellant has not challenged the charge sheet. It is profitable to refer to the decision of the Division Bench in the case of BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., vs. SMT.LAKSHMAMMA AND OTHERS reported in 2008 Kant.M.A.C. 145. The relevant paragraph is extracted hereinbelow:
"6. Then, coming to the question of involvement of the vehicle, admittedly charge-sheet is filed against the driver of the vehicle, the owner has not denied the accident. FIR is registered in Crime No.10/05 by the Malur Police. If really the vehicle was not involved, if a false case has been lodged and if the owner has colluded with the claimants, it was for the Insurance Company to challenge the same to quash the charge-sheet and to direct the police to investigate properly and file an appropriate case for having lodged a false case where there was no accident and vehicle in question had not been involved. The learned counsel for the appellant submits that after case was filed, the matter was entrusted to a private agency for investigation and according to the report of the investigation of a private agency, the vehicle in 15 question had not been involved in the accident. But, we cannot place reliance on a report submitted by a private agency when a charge-sheet is filed by the police after a detailed investigation and when the driver and owner of the vehicle have not disputed about the involvement of the vehicle in question. Therefore, this point is also answered against the appellant."
14. The authorities relied upon by Sri Kayakamath do not come to the rescue of the appellant in any way, as the facts of the said cases and the facts of the case on hand are entirely different.
15. Not finding any merit in the appeals filed by the Insurance Company, they are dismissed.
16. Now I am left with the examination of the cross objectors' grievances.
17. In MFA Crob. No.845/2010, the Tribunal's order taking the deceased's income as Rs.100/- a day is unassailable in the absence of any proof in support of the higher income. The Apex Court in the case of SARLA VERMA V. DELHI TRANSPORT CORPORATION reported in 2009 ACJ 1298 has taken the 16 considered view that the deduction towards personal living cannot be a fixed one-third in all the cases. The percentage of reduction on account of the personal expenditure can certainly vary with reference to the number of dependent members in the family. As it is not in dispute that the number of dependents of the deceased in the present case is 5, it is desirable that the deduction towards his personal expenditure be effected at 1/4th of his income and not at 1/3rd, as has been done by the Tribunal.
18. Similarly, it is not in dispute that he was aged 40 years. The relevant applicable multiplier would be 15 for the age group between 36-40, as per the Apex Court's judgment in the case of SARLA VERMA (supra). I therefore employ the multiplier 15. Now the amounts towards the loss of dependency are to be worked out as follows:
¼ of `36,000/- is `9,000/-. If the said amount is deducted from `36,000/-, the amount left for the loss of dependency per year would come to 27,000/-. If this amount is multiplied by 15, it aggregates to `4,05,000/-. The awarding of `10,000/-
compositely towards the loss of love and affection for all the 17 claimants is also grossly inadequate. The Tribunal's awarding of `10,000/- towards the loss of consortium is also required to be enhanced. I deem it just to award a sum of `15,000/- to the first claimant (respondent No.1 Kashawwa) and `10,000/- to each of the claimant Nos. 2 to 5. Now the modified award stands as follows:
(Amount `)
1. Towards loss of dependency 4,05,000
2. Towards loss of estate 10,000
3. Towards funeral expenses 10,000
4. Towards loss of love and 40,000 affection (`10,000/- to each of the claimant Nos.2 to 5)
5. Towards loss of consortium 15,000 Total 4,80,000
19. In Cross Objection No.816/2010 in M.F.A.No. 24210/2010 arising out of M.V.C.No3414/2006, I notice with concern that for the death of two bullocks and the extensive damage of the bullock cart only a sum of `25,000/- is awarded. The value of the bullocks depends on their age and health.
20. The evidence of Basappa Venkappa Rogi (PW2) is that the bullocks are very young and energetic. On this aspect of the matter, there is no effective cross-examination by the appellant's 18 side. In the cross-examination, PW3 has deposed that the bullocks were purchased recently. This evidence is indicative of the pair of bullocks being atleast average. The Court takes judicious notice of the price of a pair of bullocks these days. It is any way around `60,000/-. The accident took place in 2005. The value of the pair of bullocks would not have been less than `30,000/- in 2005. For the death of two bullocks, I award `30,000/-. The records show that the accident was of devastating nature killing two persons sitting on the bullock cart and further killing two bullocks. These circumstances probabalise that the bullock cart was also badly damaged. Yet another aspect of the matter which should not have been ignored by the Tribunal is that on account of the sudden and premature killing of the bullocks, the claimants in MVC No.3414/2006 must have suffered not only the difficulty in doing the agricultural operations but also the loss of income.
21. Considering these aspects of the matter, I deem it necessary to award a modest sum of `7,500/- towards the 19 damage to the bullock cart. Thus the global compensation awarded by the Tribunal is raised from `25,000/- to `37,500/-.
22. In Cross Objection No.790/2010 in MFA No.24211/2009 arising from MVC No.3415/2006 the awarding of the amounts towards loss of dependency, loss of estate, funeral expenses are fair and proper. These amounts awarded under the said heads do not call for any upwards revision.
23. The only revision that is required is that the deceased's wife is to be given `15,000/- towards the loss of consortium. The Tribunal's award stands marginally modified as follows:
(Amount `)
1. Towards loss of dependency 2,40,000
2. Towards loss of consortium 15,000
3. Towards funeral expenses 10,000
4. Towards loss of love and 10,000 affection
5. Towards loss of estate 10,000 Total 2,85,000
24. It is made clear that the enhancements granted herein shall also carry interest at the rate of 6% from the date of the institution of the claim petition till the date of payment.
25. The office is directed to draw up the modified awards. 20
26. In the result, M.F.A.Nos.24209/2009, 24210/2009 and 24211/2009 are dismissed. M.F.A.Cross Objection Nos.845/2010, 816/2010 and 790/2010 are allowed in part.
27. No order as to costs.
28. The amounts deposited by the Insurance Company in these appeals are ordered to be transferred to the Tribunal for being disbursed to the claimants in accordance with law.
29. Now that the main matter itself is disposed of, nothing survives for any consideration of Misc.Civil No.109865/2009 for stay in MFA No.24209/2009 and I.A.No.2/2009 for stay in MFA No.24211/2009. They are dismissed as having become unnecessary.
Sd/-
JUDGE Cm/-