Karnataka High Court
M/S United India Insurance Company ... vs Smt. Rathnamma @ Rathna on 11 December, 2020
Author: S.Sujatha
Bench: S.Sujatha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF DECEMBER, 2020
PRESENT
THE HON'BLE MRS. JUSTICE S.SUJATHA
AND
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
MFA.NO.5147 OF 2016(MV-D)
BETWEEN:
M/S UNITED INDIA INSURANCE COMPANY LIMITED
NO. 266, 1ST FLOOR
GANGADHARAPPA COMPLEX
SUNKADAKATTE, MAGADI MAIN ROAD
VISHWANEEDAM
BENGALURU - 560 091
NOW REP. BY ITS REGIONAL OFFICE
6TH FLOOR, KRISHI BHAVAN
NRUPATHUNGA ROAD
BENGALURU - 560 001
REP. BY ITS MANAGER
....APPELLANT
(BY SRI. B.C. SHIVANNEGOWDA, ADVOCATE FOR
SRI. A.M. VENKATESH, ADVOCATE)
2
AND:
1 . SMT. RATHNAMMA @ RATHNA
W/O LATE H. GANGANNA
AGED ABOUT 50 YEARS
2 . YESHWANTH .G
W/O LATE H. GANGANNA
AGED ABOUT 9 YEARS
SINCE RESPONDENT NO.2 IS MINOR
REP. BY HIS MOTHER AND NATURAL GUARDIAN
i.e., RESPONDENT NO.1 HEREIN
BOTH ARE R/AT NO. 15/9
9TH CROSS, SHIVANAGAR
8TH MAIN ROAD
BENGALURU 560 010
3 . MAGMA HDI GENERAL
INSURANCE CO LTD.
NO. 40, 2ND LANE
CKC GARDEN, 4TH FLOOR
MISSION ROAD, NEAR LALBAH
BENGALURU - 560 027
(INSURER OF THE LORRY
BEARING REG NO. KA-17/B-2779)
4 . SIDDARAJU .K
S/O KEMPA HANUMAIAH .P
NO. 24/2, PARAMANNA LAYOUT
NELAMANGALA
BENGALURU RURAL DISTRICT - 562 123
(R.C. OWNER OF THE LORRY
BEARING REG NO KA-17/B-2779)
3
5 . MANOHAR .K
S/O LATE KARIGOWDA
NO. 8/9, LAKSHMI NILAYA
4TH MAIN, PIPE LANE
SOLLAPURADAMMA EXTENSION
SUNKADAKATTE
BENGALURU - 560 091
(R.C.OWNER OF THE TEMPO
TRAVELLER BEARING REG NO. KA-04/B-9273)
....RESPONDENTS
(BY SRI. VISHWANATH SABARAD, ADVOCATE
FOR R1 AND R2, SRI. O. MAHESH, ADVOCATE FOR R3
SRI. R. CHANDRA KUMAR, ADVOCATE FOR R4
NOTICE TO R5 IS SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED:
23.03.2016 PASSED IN MVC NO.3342/2013 ON THE FILE
OF THE XXII ADDITIONAL SMALL CAUSES JUDGE AND XX
ACMM, MEMBER, MACT, BENGALURU, AWARDING
COMPENSATION OF RS.19,35,605/- WITH INTEREST @
6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 14.10.2020, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, SACHIN
SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:
4
JUDGMENT
The captioned appeal is directed against the impugned common judgment and award dated 23.03.2016 passed in MVC.No.3166/2013 and 3342/2013 by the XXII Additional Small Causes Judge and XX ACMM and Member, MACT at Bengaluru. The Insurer of the tempo-traveler has preferred this (MVC.No.3342/2013) questioning the negligence attributed to the driver of the tempo traveler and also quantum of compensation awarded.
2. For the sake of convenience, the parties are referred to as per their rank before the Tribunal.
3. The brief facts of the case are as under:
The claimants filed the claim petition contending that on 29.3.2010 at about 1.30 a.m., the deceased H. Ganganna and others were traveling in a tempo 5 traveler bearing Regn.No.KA-04-B-9273 from Bengaluru towards Ranebennur side. When the said tempo-traveler reached Haraganhalli village, Harihara Taluk on NH-4 road, the driver of the offending lorry bearing Regn.No.KA-17-B-2779 came from opposite direction i.e. from Ranebennur side towards Bengaluru, on one way road and dashed against the tempo-traveler. Due to the impact, the deceased H. Ganganna sustained grievous injuries and died on the spot. The claimants further contended that the deceased was hale and healthy and was working as a Winder in KAVIKA, Mysore Road, Bengaluru and was drawing monthly salary of Rs.39,290/-. Due to his untimely death, they have lost their earning member. The accident in question occurred due to the rash and negligent driving of the driver of the lorry bearing Regn.No.KA-17-B-2779 and the jurisdictional Harihara Rural Police have registered a case in Crime 6 No.56/2013 and the charge sheet is filed against the said driver. Hence, claimed compensation of Rs.50,00,000/-.
On service of notice, respondents 2 and 3 remained absent and were placed exparte.
The insurer of the lorry which was arrayed as first respondent contested the proceedings and stoutly denied the entire averments made in the claim petition. It was specifically contended in the written statement that the driver of the offending lorry did not possess valid and effective driving licence. The liability, if any, is subject to the terms and conditions of the issuance of insurance policy. Further, denied the rash and negligence on the part of the driver of the lorry in question and contended that the accident occurred due to the negligence on the part of the driver of the maxi cab. Further, the insurance company denied the age, income and occupation of 7 the deceased. It was also contended that the claim made is exorbitant. On these set of grounds, the first respondent-Insurance company sought for dismissal of the claim petition against them.
The fourth respondent-insurer of the tempo- traveler who is appellant in this appeal filed written statement admitting the issuance of insurance policy in respect of the aforesaid vehicle in favour of third respondent. The liability, if any, is subject to the terms and conditions of the issuance of insurance policy and also denied the relationship of the claimants with the deceased. The compensation claimed by the claimants is highly exaggerated. Further, contended that as per the police records, the alleged accident was caused by the driver of the offending lorry and the police have rightly filed charge sheet against the lorry driver. The Insurance Company further contended that the drivers of both 8 the lorry and the maxi cab had no valid and effective driving licence to drive the class of vehicle at the time of accident. The petition is bad for mis-joinder of parties. On these set of grounds, sought for dismissal of the claim petition against the said Insurance company.
Based on pleadings, the Tribunal has formulated the following issues:
"1. Whether the petitioners prove that, they are the legal representatives of the deceased Sri. H. Ganganna?
2. Whether the petitioners prove that the Ganganna had died due to the injuries sustained in the road traffic accident that occurred on 29.03.2013 at about 1.30 a.m. while he was proceeding on a tempo traveller bearing Reg.No.KA-04-B-9273 at Haraganahalli Village, Harihara Taluk on NH-4 Road, due to the rash and negligent driving of the Lorry bearing Reg.No.KA-17-B-2779 by its driver as alleged?9
3. Whether the petitioners are entitled for the compensation as claimed? If so, to what amount and from whom?
4. What order or award?
Additional Issue No.1
1. Whether the respondent No.1 proves that, the accident took place due to negligence on the part of the driver of the Tempo-Traveller bearing Reg.No.KA-04-B-9273?"
In support of their contentions, the claimants examined the first claimant in MVC.No.3342/2013 as P.W.2 and two independent witnesses as P.Ws.3 and
4. The second claimant in got examined as P.W.1. In support of ocular evidence, the appellants-claimants produced documentary evidence vide Exs.P1 to 41. To rebut the evidence of the claimants, the first respondent-Insurer of the lorry in question examined one witness as R.W.1 and got marked as Exs.R1 and R2. The fourth respondent-Insurer of the tempo- 10 traveler in question examined one witness as R.W.2 and got the documents marked as Exs.R2 and R4.
The Tribunal on examination of the oral and documentary evidence on record has answered Issue No.2 in the negative and additional issue No.1 in the affirmative holding that it is the driver of the tempo traveler who was solely responsible for accident and has proceeded to award total compensation of Rs.19,35,605/- to the claimants with interest at the rate of 6% per annum from the date of claim petition till its realisation. Being aggrieved by the same, the insurer of the tempo-traveler has preferred this appeal.
4. The learned counsel appearing for the appellant-Insurance company, insofar as negligenceis concerned, contends that the Tribunal without considering the evidence of the parties more particularly the evidence of the Investigating Officer 11 and the driver of the tempo-traveler, contents of FIR, charge sheet and mahazar and only relying on the rough sketch prepared by the police has proceeded to hold that the accident occurred due to the rash and negligent driving of the driver of the tempo traveller. The sketch drawn is contrary to what is stated in mahazar and other documents like FIR and complaint and as such the Tribunal ought to have ignored the contents of sketch. Hence, learned counsel for the Insurance Company submits that the finding recorded on Issue No.2 and additional Issue No.1 suffers from serious infirmities and hence, the same requires to be re-examined by this Court.
5. On quantum, the learned counsel would vehemently argue and contend before this Court that the quantum determined by the Tribunal is erroneous and contrary to the evidence on record. The learned counsel for the Insurance Company would submit that 12 the deceased was 56 years and was working a Windor at KAVIKA, Mysuru Road, Bengaluru, and as such the Tribunal ought to have applied split multiplier while determining the loss of dependency.
6. Per contra, learned counsel appearing for the claimants would contend that the compensation determined by the Tribunal is fair and just and would not warrant any interference by this Court.
On negligence, the learned counsel would support the arguments advanced by the counsel for the appellant-insurer of the tempo traveler.
7. Per contra, learned counsel appearing for the first respondent-insurer of the offending lorry would submit that the finding arrived at by the Tribunal on Issue No.2 and Additional Issue No.1 is in accordance with law and does not suffer from any illegality.
13
8. Heard the learned counsel for the respective parties. Perused the pleadings of the parties and reassessed the entire oral and documentary evidence on record.
9. Regarding Negligence:
This Court while examining the negligence in MFA.1884/2016 arising out of the same accident has held that it is the driver of the offending lorry who was responsible for the accident and accordingly, the entire negligence is fixed on the driver of the offending lorry. In that view of the matter, the finding recorded by the Tribunal on Issue No.2 and additional Issue No.1 is modified and negligence is fixed on the driver of the offending lorry.
10. Regarding quantum:
From the records, it is borne out that the deceased was aged about 56 years and was working 14 as a Windor at KAVIKA. The claimants have examined the Accounts Officer as P.W.4 who has stated that the deceased was drawing salary of Rs.39,200/- per month. The said official has also produced the employment certificate as per Ex.P34. Relying on Ex.P22 the Tribunal has assessed the income of the deceased at Rs.4,43,968/- per annum. The Tribunal has deducted Rs.2,400/- towards tax and by relying on Ex.P22 has deducted 25,878/- towards income tax. After deductions the income is assessed at Rs.4,15,690/-.
We have re-examined the material documents and we are of the view that the income assessed by the Tribunal at Rs.4,15,690/- is in accordance with law. However, the Tribunal has erred in not adding future prospects. The deceased had a permanent job and was aged 56 years. As per the guidelines laid down by the Apex Court in Pranay Sethi's 15 case[2017 ACJ 2700] 15% needs to be added towards future prospects. Since the deceased was aged 56 years and had a permanent job, we find force in the submission made by the learned counsel for the Insurance Company in regard to split multiplier. The Tribunal erred in not applying the split multiplier and as well as in not adding 15% towards future prospects. The income of the deceased assessed is at Rs.4,15,690/-. Adding 15% towards future prospects, the income is assessed at Rs.4,15,690 x 15/100= Rs.4,78,043/-. 50% deductions made by the Tribunal towards personal expenses does not warrant any interference. Hence, if 50% is deducted towards personal expenses of the deceased, the income of the deceased works out to Rs.2,39,021/- The multiplier applicable in the present case on hand is 9. The deceased was aged 56 years and he had remaining four years of service. Hence, applying the split 16 multiplier of 4 to the entire income, the compensation would work out Rs.2,39,021x4=Rs.9,56,087/-. For the remaining part, the multiplier of 5 requires to be applied. If 50% of the income is taken as pension, it works out to Rs.2,39,021 x 50/100= Rs.1,19,510/- and applying the multiplier of 5, the same works out to Rs.5,97,550/-. Hence, the total compensation payable under the head of loss of dependency comes to Rs.9,56,087 + Rs.5,97,550 = Rs.15,53,637/-. The Tribunal has held that second claimant is not the adopted son. Hence, it is only the widow of the deceased who is entitled for spousal consortium of Rs.40,000/- and Rs.30,000/- towards loss of estate and funeral expenses. Thus, the total compensation re-determined by this Court works out to Rs.16,23,637/-.17
11. Hence, the following:
ORDER
1. The appeal filed by the appellant-
Insurance company is allowed.
2. The impugned judgment and award is modified fixing the negligence on the driver of the offending lorry in question.
3. The total compensation awarded by the Tribunal is modified and reduced to Rs.16,23,637/- as against Rs.19,35,605/- awarded by the Tribunal with interest at the rate of 6% per annum from the date of petition till its realisation, which the insurer of the lorry and the owner namely respondents 1 and 2 are jointly and severally held liable to pay
4. The second respondent-insurer of the lorry shall deposit the amount determined as 18 aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order.
5. The portion of the order of the Tribunal inasmuch as apportionment and disbursement remains intact.
6. The modified compensation amount shall be apportioned and disbursed in terms of the order of the Tribunal.
7. Draw modified award accordingly.
8. The Registry shall refund the amount in deposit, if any, to the appellant-insurer of the tempo-traveler.
Sd/-
JUDGE Sd/-
JUDGE *alb/-.