Karnataka High Court
The Oriental Insurance Co.Ltd vs Smt.Rajeshwari And Ors on 11 September, 2018
Bench: S.Sujatha, Mohammad Nawaz
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF SEPTEMBER 2018
PRESENT
THE HON'BLE MRS. JUSTICE S. SUJATHA
AND
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
MISCELLANEOUS FIRST APPEAL NO.200821/2016
C/W
MISCELLANEOUS FIRST APPEAL NO.200579/2016 (MV)
IN MFA NO.200821/2016
BETWEEN:
THE ORIENTAL INSURANCE CO. LTD.
THROUGH ITS SENIOR DIVISIONAL MANAGER
N.G. COMPLEX, FIRST FLOOR
OPP: MINI VIDHANA SOUDHA
STATION ROAD, KALABURAGI - 585 102
... APPELLANT
(BY SRI MANVENDRA REDDY, ADVOCATE)
AND:
1. SMT. RAJESHWARI
W/O LATE MALLIKARJUN
AGE: 29 YEARS, OCC: HOUSEHOLD
2. BHAVANI D/O LATE MALLIKARJUN
AGE: 08 YEARS, SINCE MINOR
REPRESENTED BY HER NATURAL MOTHER
I.E., RESP.NO.1 SMT. RAJESHWARI
2
3. BHIMABAI W/O LATE BHIMAPPA
AGE: 51 YEARS, OCC: H.H. WORK
ALL ARE R/O SONABAI NAGAR, WADI (JN)
TQ. CHITTAPUR, DIST. KALABURAGI
4. MANJUNATH S/O CHANDU
AGE: MAJOR, OCC: OWNER OF
TVS SPORT MOTORCYCLE
BEARING NO.DF5LE1104309
R/O NEHRU COLONY, KALABURAGI
... RESPONDENTS
(SRI NAGARAJ PATIL, ADVOCATE FOR R1 TO R3;
V/O DTD. 10.08.2018, NOTICE TO R4 IS HELD SUFFICIENT)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO SET ASIDE THE
JUDGMENT AND AWARD DATED 18.01.2016 PASSED BY THE
SENIOR CIVIL JUDGE AND MACT, CHITTAPUR IN MVC
NO.789/2015, BY ALLOWING THE APPEAL AS PRAYED FOR.
IN MFA NO.200579/2016
BETWEEN:
1. SMT. RAJESHWARI
W/O LATE MALLIKARJUN
AGE: 29 YEARS, OCC: HOUSEHOLD
2. BHAVANI D/O LATE MALLIKARJUN
AGE: 08 YEARS, MINOR
OCC: STUDENT
3. BHIMABAI W/O LATE BHIMAPPA
AGE: 51 YEARS, OCC: HOUSEHOLD
APPELLANT NO.2 IS MINOR
U/G OF APPELLANT NO.1 SMT. RAJESHWARI
3
ALL ARE R/O SONABAI NAGAR, WADI (JN)
TQ. CHITTAPUR, DIST. KALABURAGI
... APPELLANTS
(BY SRI NAGARAJ PATIL, ADVOCATE)
AND:
1. SRI MANJUNATH S/O CHANDU
AGE: MAJOR, OCC: OWNER OF
TVS SPORT MOTORCYCLE
BEARING CHASIS NO.MD625MFSOEL33846
ENGINE NO.DF5LE1104309
R/O NEHARU COLONY
KALABURAGI - 585 102
2. THE ORIENTAL INSURANCE COMAPNY LIMITED
KALABUARGI, THROUGH ITS
DIVISIONAL MANAGER
N.G. COMPLEX, 1ST FLOOR
OPP: MINI VIDHANA SOUDHA
KALABURAGI - 585 102
... RESPONDENTS
(SRI MANVENDRA REDDY, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH V/O DTD. 31.05.2016)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO MODIFY THE
JUDGMENT AND AWARD DATED 18.01.2016 PASSED IN MVC
NO.789/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND MACT, CHITTAPUR AND ALLOW THE APPEAL BY
ENHANCING THE COMPENSATION AMOUNT OF
RS.12,14,000/- ONLY AS CLAIMED BY THE APPELLANTS
BEFORE THIS COURT AND ORDER FOR COSTS OF THIS
APPEAL.
THESE APPEALS COMING ON FOR ADMISSION, THIS
DAY, S. SUJATHA J., DELIVERED THE FOLLOWING:
4
JUDGMENT
With the consent of the learned counsel appearing for the parties, the matter is taken up for final disposal.
2. The insurer as well as the claimants have challenged the judgment and award passed by the Senior Civil Judge and MACT, Chittapur ('Tribunal' for short) in MVC No.789/2015 dated 18.01.2016, whereby compensation of Rs.15,86,000/- is awarded by the Tribunal with interest at the rate of 6% p.a. from the date of petition till realization.
3. Claimants being the legal representatives of the deceased Mallikurjun, who succumbed to the injuries sustained in a motor vehicle accident which occurred on 16.03.2015 at about 1.00 p.m., preferred a claim petition before the Tribunal seeking compensation, alleging actionable negligence on the rider of TVS Sport motorcycle duly insured with the insurer. It was contended that owing to the injuries sustained in the said motor vehicle 5 accident, the victim succumbed to the injuries on 17.03.2015 while taking treatment at Government General Hospital, Kalaburagi. On service of summons, respondent No.2-insurer appeared before the Tribunal and contested the claim. However, the owner of the offending vehicle remained absent, placed exparte.
4. On appreciation of evidence, Tribunal awarded total compensation of Rs.15,86,000/- with interest at the rate of 6% p.a. from the date of petition till realization. Being aggrieved by the same, the insurer is challenging the impugned judgment and award on the ground that the offending vehicle had no permanent registration as on the date of the accident, nor any application was made for extension of period of temporary registration. As such, using the vehicle on the public road without any registration is fundamental breach of terms and conditions of the policy. The quantum of compensation awarded is also challenged as excessive. 6
5. Claimants have challenged the impugned judgment and award of the Tribunal, as the compensation awarded is inadequate. Thus, seeks for enhancement of compensation.
6. Learned counsel Sri Manvendra Reddy appearing for the insurance company elaborating the arguments on the points aforesaid submitted that, the Tribunal grossly erred in fastening the liability on the insurance company, ignoring the fact that the offending vehicle had no registration at the time of the accident. Using the vehicle on the public road without any registration is not only an offence punishable under Section 192 of the Motor Vehicles Act, 1988, but also a fundamental breach of terms and conditions of the policy. The quantum of compensation awarded by the Tribunal determining the income of the deceased at Rs.12,000/- per month relying upon Ex.P6 -salary certificate is unsustainable. It is argued that the said salary certificate 7 is a created document with a sole object to claim compensation and no other substantial evidence is placed on record to support the same.
7. Learned counsel Sri Nagaraj Patil appearing for the claimants would submit that the deceased was aged about 32 years at the time of the accident and was doing Carpenter work under the employer Sri Devendrappa. Ex.P6 is the salary certificate issued by the employer and was duly examined to prove the same. No rebuttal evidence was let in by the respondents to dislodge the same or any positive material is elicited from the mouth of the witnesses to discard the evidence. In such circumstances, the claimants are entitled to the future prospects, which has been denied by the Tribunal. It is further contended that the compensation awarded under the different heads is meager and the same requires to be enhanced reasonably.
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8. Having heard the learned counsel appearing for the parties, we are of the considered opinion that the appeal filed by the insurance company deserves to be dismissed, as no evidence is let in by the insurer to rebut the evidence of the claimants.
9. Non-possessing of the registration certificate by the owner of the offending vehicle was not raised and the same is not addressed by the Tribunal. It is hardly required to be stated that any defence taken in the proceedings has to be substantiated by leading cogent evidence. The defence taken in the proceedings before the Tribunal are general in nature. The ground now raised by the insurance company for the first time in the appeal proceedings cannot be entertained. Hence, the liability fastened on the insurance company to satisfy the award cannot be held to be unjustifiable.
10. As regards the quantum of compensation determined by the Tribunal, it is noticed that the deceased 9 was working as a Carpenter and earning Rs.18,000/- per month. In order to prove the same, the employer of the deceased Carpenter was examined. However, the Tribunal determined the monthly income of the deceased at Rs.12,000/-, denying the future prospects, which appears to be on the lower side. Considering the young age of 32 years of the deceased, we deem it appropriate to re- determine the monthly income of the deceased at Rs.10,000/- and applying the principles of law enunciated by the Hon'ble Apex Court in the case of National Insurance Company Limited v. Pranay Sethi and others reported in AIR 2017 SC 5157, it would be reasonable to award an addition of 40% of the established income, since the deceased was below the age of 40 years, who was on a fixed salary, which would come to Rs.4,000/-. Hence, the loss of dependency and expectancy is computed considering the monthly income of the deceased at Rs.14,000/-, which would work out to Rs.17,92,000/- (Rs.14,000 less 1/3rd towards personal 10 expenses of the deceased x 12 x 16). The claimants are entitled to compensation of Rs.70,000/- under the different heads as held by the Hon'ble Apex Court in the case of Pranay Sethi, supra.
11. Thus, the total compensation awarded by the Tribunal is modified as under:
Loss of dependency and Rs.17,92,000/-
expectancy
Loss of estate Rs. 15,000/-
Loss of consortium Rs. 40,000/-
Funeral expenses Rs. 15,000/-
Total Rs.18,62,000/-
The total compensation awarded by the Tribunal is modified and enhanced to Rs.18,62,000/- as against Rs.15,86,000/-. Hence, the following:
ORDER i. Appeal filed by the insurance company i.e., MFA No.200821/2016 is dismissed and the 11 appeal filed by the claimants i.e., MFA No.200579/2016 is partly allowed.
ii. The total compensation awarded by the
Tribunal is modified and enhanced to
Rs.18,62,000/- as against Rs.15,86,000/-,
which shall carry interest at the rate of 6% p.a. from the date of petition till realization.
iii. The terms of the order of the Tribunal as regards apportionment, disbursement and liability remains unaltered.
iv. Draw modified award accordingly.
Sd/-
JUDGE Sd/-
JUDGE LG