Karnataka High Court
New India Assurance Co. Ltd vs Smt. Bombay Padma W/O B.Srinivasulu on 25 March, 2022
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
MFA NO.200800/2014 (MV)
C/W
MFA NO.30143/2012
In MFA No.200800/2014
Between:
1. Smt. Bombay Padma W/o B. Srinivasulu,
Age: 36 years, Occ: Household,
2. Kum. B.Venkateshwaramma D/o B.Srinivasulu,
Age: 21 years, Occ: Student,
3. Kum. B.Bujji D/o B.Srinivasulu,
Age: 19 years, Occ: Student,
All are R/o Atmakur Village & Mandal,
Balanagar Mandal, Mahaboobnagar,
Dist. Mehaboobnagar,
Now at Makthalpet, Raichur.
... Appellants
(By Sri.Veeranagouda, Advocate)
2
And:
1. T. Rameshwar Rao S/o Narayan Rao,
Age: Major, Occ: Owner of Bus
Bearing No.AP-22/W-2558,
R/o Opp: Co-Operative Central Bank,
Gopalpet, Village & Mandal,
Mehaboobnagar District-509 003.
2. The New India Assurance Co. Ltd.,
Near Gunj Circle, Raichur-584 102.
Through its Branch Manager.
3. APSRTC represented by its
Regional Manager, APSRTC New Bus stand,
Mehaboobnagar-509 001.
... Respondents
(Notice to R1 & R3 are served;
By Sri.S.S.Aspalli, Advocate for R2)
This Miscellaneous First Appeal is filed under Section
173(1) of the M.V.Act, praying to allow the appeal, the
judgment and award dated 07.07.2011 passed in MVC
No.202/2010 by the Prl. District Judge MACT-I, Raichur,
may kindly be modified by enhancing the compensation as
claimed in the claim petition.
In MFA No.30143/2012
Between:
New India Assurance Co. Ltd.,
Nehru Gunj Circle, Raichur .
Through its branch Manager
Now Represented by
The Divisional Manager,
The New India Assurance Co. Ltd.,
Divisional Office, Gulbarga.
... Appellant
(By Sri.S.S.Aspalli, Advocate)
3
And:
1. Smt. Bombay Padma W/o B. Srinivasulu,
Age: 33 years, Occ: Coolie,
2. Kum. B.Venkateshwaramma D/o B.Srinivasulu,
Age: 18 years, Occ: Student,
3. Kum. B.Bujji D/o B.Srinivasulu,
Age: 16 years, Occ: Student U/G of her
natural mother i.e., petitioner No.1.
R/o Atmakar village & Mandal,
Dist: Mehaboobnagar Now at
Makthalpet, Raichur.
4. T. Rameshwar Rao S/o Narayanrao,
Age: Major, Occ: Owner of Bus
Bearing No.AP 22/W-2558,
R/o Opp: Co-Operative Central Bank,
Gopalpet, Village & Mandal
Dist Mehaboobnagar.
5. APSRTC,
Represented by its
Regional Manager,
APSRTC New Bus Stand,
Mehaboobnagar AP-509 001.
... Respondents
(By Sri. Veeranagouda, Advocate for R1 & R2;
R3 is minor U/G of R1;
Notice to R4 served
By Sri.Shivakumar S Badawadagi, Advocate for R5)
This Miscellaneous First Appeal is filed under Section
173(1) of the M.V.Act, praying to call for the records in
MVC No.202/2010 on the file of the Prl. Dist. Judge MACT-I
Raichur dated 07.07.2011. Set aside the judgment and
award dated 07.07.2011 passed by the Prl. Dist. Judge
(MACT-I Raichur, by allowing the above appeal.
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These appeals coming on for hearing, this day, the
Court delivered the following:-
JUDGMENT
Since these two appeals arise out of the judgment and award, they are heard together and disposed of by this common judgment.
2. These appeals are filed under Section 173(1) of the Motor Vehicles Act (for short 'the Act') challenging the judgment and award dated 07.07.2011 passed in MVC No.202 of 2010 by the Prl. District Judge, Motor Accident Claims Tribunal-I, Raichur, (for short hereinafter referred to as 'the Tribunal').
3. Parties are referred to as per their ranking before the Tribunal. Appellants in MFA No.200800/2014 are claimants, respondents are respondents before the tribunal.
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4. Facts giving rise to filing of these appeals are as under:
4.1. On 09.10.2008, the deceased Bombay Srinivasulu was travelling the bus bearing registration No.AP-22/W-2558 in order to reach Kothakota from Atmakur. While it was around 4.30 p.m., when the driver of the said bus drove the same near tank bund within the limits of Atmakur in a very rash and negligent manner, due to sudden application of brakes, the deceased fell down and succumbed to the injuries. The respondent No.2 was the insurer and respondent No3 was plying the said bus on hire basis.
The claimants being the legal representatives of deceased Bombay Srinivasulu filed the claim petition under Section 166 of Motor Vehicles Act seeking compensation.
4.2. The respondent No.2 filed written statement in which the averments made in the 6 petition were denied. It is further contended that the driver of the bus was not having valid and effective driving license at the relevant point of time. It is contended that said bus was hired to APSRTC which against the terms and conditions of the policy. Hence, sought for dismissal of the petition.
4.3. On the basis of the pleadings of the parties, the Tribunal framed the following issues;
a) Whether the claimants prove that, of them, claimant No.1 is the wife of the deceased Bombay Srinivasulu and Claimant Nos.2 and 3 are his children through the claimant No.1?
b) Whether the claimants further prove that on 9.10.2008 the said deceased Bombay Srinivasulu was travelling in APSRTC hired bus bearing registration No.AP-22/W-2558 in order to go to Kothakota from Atmakur and while it was around 4.30 p.m. the driver of the bus did drove the same in a 7 rash manner on the road near tank bund within the limits of Atmakur, in as much as the said Bombay Srinivasulu fell down?
c) Whether the claimants further prove that death of said Bombay Srinivasulu on 14.11.2008 was a direct consequence of such rash driving of the said bus?
d) To what quantum of compensation the claimants are entitled to? And from whom?
e) What order?
4.4. In order to prove the case, the claimant No.1 examined herself and got exhibited documents namely Ex.P1 to Ex.72. On behalf of the respondent No.2, its official is examined as DW-1. Whereas respondent No.3 examined its official as DW.2 and got marked documents as Exs.D1 to D3. The Tribunal, by the impugned judgment, inter alia, held that deceased Bombay Srinivasulu was travelling in APSRTC hired 8 bus bearing registration No.AP-22/W-2558 in order to go to Kothakota from Atmakur and while it was around 4.30 p.m. the driver of the bus did drove the same in a rash manner on the road near tank bund within the limits of Atmakur, in as much as the said Bombay Srinivasulu fell down and sustained injuries and succumbed to the injuries and further held that death of said Bombay Srinivasulu on 14.11.2008 was a direct consequence of such rash driving of the said bus and further held that the claimants are entitled for compensation and accordingly partly allowed the claim petition by awarding compensation of Rs.6,69,500/- with interest at the rate of 6% p.a. and directed the respondent Nos.1 and 2 to deposit the compensation amount along with interest. Being dissatisfied with the compensation awarded by the Tribunal, the respondent-Insurance Company filed MFA No.200800/2014 challenging the liability and 9 claimants have filed MFA No.30143/2012 seeking for enhancement of compensation amount.
5. Heard the learned counsel for claimants and learned counsel for respondent-Insurance Company.
6. The learned counsel for the claimants submits that the Tribunal has taken the income of the deceased at Rs.5,000/- per month, which is on the lower side. He further submits that the deceased was doing agriculture and working as mason and use to earn Rs.10,000/- per month and the Tribunal has committed an error in awarding lesser compensation towards loss of future earnings. Further the tribunal has not awarded the compensation under the head loss of love and affection and consortium. On these grounds, he prays to allow the appeal filed by the claimants and prays to dismiss the appeal filed by the respondent-Insurance Company.
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7. Per contra, the learned counsel appearing for the respondent/Insurance company supports the impugned judgment and award passed by the Tribunal and submits that the compensation awarded by the Tribunal is just and proper and does not call for interference. Hence, on these grounds prays to allow the appeal filed by the respondent-Insurance Company and prays to dismiss the appeal filed by the claimants.
8. Perused the records and considered the submissions made by the learned counsel for the parties.
9. The point that arises for consideration are with regard to quantum of compensation and liability.
10. It is not in dispute that deceased Bombay Srinivasulu met with an accident that occurred on 09.10.2008 and sustained injuries in the road traffic 11 accident and due the said accident the deceased succumbed to the injuries. In order to prove the negligence on the part of the driver of the offending vehicle, the claimants have produced copy of charge sheet which is marked as Ex.P3. Ex.P3, discloses that the accident was occurred due to rash and negligent driving of the drier of the offending vehicle.
11. Insofar as quantum of liability is concerned, it is the case of the respondent No.2-Insurance Company that the vehicle was hired with APSRTC and there is violation of policy conditions. Hence, the Insurance Company is not liable to pay compensation. The said issue is no more res-integra because the said issue has already been considered by the Hon'ble Apex Court in the case of Uttar Pradesh State Road Transport Corporation Vs. Kulsum reported in AIR Online 2011 SC 451, the tribunal was justified in fastening the liability on the Insurance Company. 12
12. Insofar as quantum of compensation is concerned, it is contended that the deceased was doing agriculture and working as mason was earning Rs.4,000/- per month and Rs.6,000/- per month respectively. In order to substantiate the claim of the claimants, the claimants have not produced any records to establish the income.
13. In the absence of proof of income, the notional income of the deceased will have to be taken as per the chart provided by the Karnataka State Legal Services Authority. In terms of the chart, for the accident of the year 2008, the notional income of the deceased will have to be taken at Rs.4,250/- as against Rs.5,000/- per month taken by the Tribunal. To the aforesaid amount, as the deceased was aged 33 years, 40% of the said amount has to be added on account of future prospects in view of the law laid down by the Constitution Bench of the Supreme Court 13 in the case of National Insurance Company Limited vs. Pranay Sethi and Others reported in AIR 2017 SC 5157. Thus, the monthly income comes to Rs.5,950/-. Out of which, considering that there are three dependents, I deem it appropriate to deduct 1/3rd of the said income towards personal expenses of the deceased and therefore, the monthly income of the deceased comes to Rs.3,967/-. Taking into account the age of the deceased which was 33 years at the time of accident, multiplier of 16 has to be adopted as per the judgment of the Hon'ble Supreme Court in the case of Sarla Verma vs. Delhi Transport Corporation reported in (2009) 6 SCC
121. Therefore, the claimants are entitled to a sum of Rs.7,61,664/- (3,967 x 12 x 16) on account of loss of dependency as against Rs.5,99,940/- awarded by the Tribunal.
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14. Further, the tribunal has not awarded compensation under the head medical expenses. However, the claimants have spent a sum of Rs.9,500/- medical expenses and produced medical bills, which are marked as Exs.P5 to 72. Hence, the claimants are entitled for a sum of Rs.9,500/- towards medical expenses.
15. However, the tribunal has failed to award compensation under the head loss of consortium. In view of the law laid down by the Hon'ble Supreme Court in Magma General Insurance Company Limited vs. Nanu Ram Alias Chuhru Ram & Others reported in 2018 ACJ 2782, each of the claimants are entitled for compensation of Rs.40,000/- under the head of 'loss of consortium', which comes to Rs.1,20,000/-.
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16. In addition, the claimants are entitled a sum of Rs.15,000/- towards funeral expenses and Rs.15,000/- under the head of loss of estate.
17. Thus, the claimants are entitled for total compensation of Rs.9,21,164/- as against Rs.6,69,500/- awarded by the tribunal. Hence, the claimants are entitled for enhanced compensation of Rs.2,51,664/-.
18. In view of the above discussion, I proceed to pass the following:
ORDER
(a) The appeal filed by the claimant in MFA Nos.200800/2014 is allowed in part.
(b) The appeal filed by the respondent-Insurance Company in MFA No.30143/2012 is dismissed.
(c) The impugned judgment and award passed by the Tribunal is modified. The claimants are entitled to the enhanced compensation of Rs. 16
2,51,664/- along with interest at the rate of 6% per annum from the date of petition till the date of realization.
(d) The respondent No.2-Insurance Company is directed to deposit the enhanced compensation amount within a period of eight weeks from date of the receipt of certified copy of this judgment.
(e) The amount in deposit be transmitted to the tribunal.
Sd/-
JUDGE msr