Karnataka High Court
The Oriental Insurance Co Ltd vs Smt Jayamma W/O Late Kanakappa on 21 June, 2012
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 21ST DAY OF JUNE 2012
BEFORE
THE HON'BLE MR.JUSTICE K.N.KESHAVANARAYANA
MISCELLANEOUS FIRST APPEAL No.4395/2008 (MV)
BETWEEN:
The Oriental Insurance Co. Ltd.,
No.19/1, I Floor, III Cross,
Chikkanna Garden, Shankar Mutt
Compound, Chamarajpet,
Bangalore - 560 018.
Represented by Regional Office,
Leo Shopping Complex,
No.44/45, Residency Road,
Bangalore - 560 025.
By its duly Constituted Attorney. ...Appellant
(By Shri C.R.Ravishankar, Advocate)
AND:
1. Smt. Jayamma,
Aged about 47 years,
W/o. Late Kanakappa.
2. Sri. Kanakappa,
Aged about 55 years,
S/o. Late Thimmarayappa.
Both are residing at
Byrasandra Village,
Thathaguni Post,
Bangalore South Taluk,
Bangalore - 560 062.
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3. Sri. Venkatappa, Major,
S/o. Sri. Hanumaiah,
R/o. Agara Villagem,
Bangalore South Taluk. ...Respondents
(By Smt. Gayathri, Advocate for
M/s. C.H.Hanumantharaya
and Associates for R1 and R2,
R3 service held sufficient
v/o dated 01.02.2011)
This Miscellaneous First Appeal is filed under
Section 173(1) of Motor Vehicle Act against the
judgment and award dated 07.12.2007 passed in
M.V.C. No.1740/2001 on the file of IX Additional Judge,
Member, Motor Accident Claims Tribunal - 7, Court of
Small Causes, Bangalore, SCCH-7, awarding a
compensation of Rs.3,49,000/- interest at 6% per
annum from the date of petition till realisation.
This Miscellaneous First Appeal coming for
hearing on this day, the Court delivered the following: -
JUDGMENT
This appeal by the insurer is directed against the judgment and award dated 07.12.2007 passed in M.V.C. No.1740/2001 on the file of IX Additional Judge, Court of Small Causes and Member, Motor Accident Claims Tribunal - 7, Bangalore, SCCH-7.
2. The respondents 1 and 2 who are the parents of deceased Narayan filed the claim petition :3: under Section 166 of the Motor Vehicles Act, seeking compensation of Rs.9,00,000/- for the death of their son Narayan in the motor vehicle accident that occurred at about 10:30 p.m. on 21.03.2001. According to the case of the claimants, on the date and time of the accident, the deceased was proceeding in the tractor- trailer bearing registration No.KA-05-T-1091 as a coolie namely as an employee of the owner and as a result of the rash and negligent driving of the vehicle by its driver, the tractor turned turtle consequent to which the deceased who was sitting in the trailer caught under the trailer and died at the spot. The claim petition was filed against the driver, owner and insurer of the tractor- trailer. Subsequently the name of the driver of the vehicle was deleted from the array of parties. The owner of the vehicle though appeared through his counsel did not file any statement of objections. The insurer of the offending vehicle in its statement of objections though admitted issuance of policy in respect of the vehicle in question and its validity as on the date of the accident :4: sought to absolve itself from the liability on the ground that the deceased was an unauthorised passenger in the tractor-trailer and that at the time of the accident the vehicle was being used for a purpose other than agricultural operations for which the vehicle was meant to be used and thus, there is violation of the terms and conditions of the policy as such the insurer is not liable to indemnify the insured. In the light of the pleadings of the parties, the Tribunal framed the following issues: -
"1. Whether the petitioners prove that the deceased sustained injuries in the road traffic accident that occurred on 21.03.2001 at about 10:30 p.m., near Kanakapura Main Road within the jurisdiction of Thalgattapura Police Station and died on the spot due to rash and negligent driving by the driver of Tractor bearing registration No.KA-05-T- 1091?
2. Whether the petitioners are entitled for compensation? If so what amount and from whom?
3. What order?":5:
3. In support of their case, the first claimant who is the mother of the deceased examined herself as P.W.1 and two more witnesses were examined as P.W.2 and P.W.3. The claimants placed reliance on documentary evidence, which were marked as Ex.P-1 to Ex.P-6. An Official of Insurance Company was examined as R.W.1 and reliance was placed on Ex.R-1 and Ex.R-
2. The Tribunal after assessment of the oral and documentary evidence answered issue No.1 regarding negligence in the affirmative holding that the claimants have proved the accident alleged, as a result of rash and negligent driving of the vehicle by its driver resulting in the death of deceased Narayan who was proceeding in the tractor-trailer. The Tribunal further recorded finding that the deceased was proceeding in the vehicle in question at the time of the accident as a coolie, in other words, he was being carried in the said vehicle as an employee of the insured. The Tribunal having regard to the evidence on record rejected the contention of the insurer that the vehicle had been used for a different :6: purpose than the agricultural purposes, on the premise that the insurer who had sought to absolve itself from liability by asserting that there was breach of terms and conditions of the policy has not substantiated the same by any acceptable evidence, therefore, the insurer is liable to indemnify the insured. In that view of the matter, the Tribunal directed the insured to satisfy the award. The Tribunal accepting the deceased as a coolie, determined the earnings of the deceased at Rs.3,000/- per month and since he was a bachelor and died leaving behind his parents, deducted 50% of his earnings towards personal expenses of the deceased and by adopting the multiplier of 18 applicable in relation to the age of the deceased, quantified the loss of dependency at Rs.3,24,000/-. In addition to this, the Tribunal awarded a sum of Rs.20,000/- towards loss of estate and Rs.5,000/- towards funeral expenses. Thus, the Tribunal awarded a total compensation of Rs.3,49,000/- and directed the insurer to pay the said amount with interest at 6% per annum from the date of :7: petition till the date of deposit. Being aggrieved by the said judgment and award the insurer is in appeal before this Court.
4. I have heard the learned counsel for the appellant as well as the learned counsel for the respondents - claimant. Perused the records secured form the Tribunal.
5. The learned counsel for the appellant contended that the finding of the Tribunal that the insurer is liable to indemnify the insured is perverse and contrary to the evidence on record and that the Tribunal has not properly appreciated the oral and documentary evidence available on record. In this behalf, he further contended that the Tribunal has committed error in adopting the multiplier as applicable to the age of the deceased. It is contended that since the deceased was a bachelor, for the purpose of finding out appropriate multiplier, the age of the younger of the parents is relevant and not the age of the deceased. Therefore, it is contended having regard to the fact that :8: the mother of the deceased was aged nearly 45 years appropriate multiplier would be only 14 and not 18.
6. On the other hand, the learned counsel for the respondents - claimants sought to justify the judgment and award passed by the Tribunal. It is contended that there are no grounds to interfere with the finding recorded by the Tribunal.
7. As noticed supra, the insurer has admitted insurance of policy and its validity as on the date of the accident. The insurer sought to absolve itself from liability alleging violation of the terms and conditions of the policy and also on the basis that the deceased was not an employee of the insured. Perusal of the policy produced as per Ex.R-1 makes it clear that the insurer has undertaken to cover the risk of the loaders also. In other words, the insurer has agreed to cover the risk of employees of the insured carried in the vehicle in question. The claimants have adduced the evidence to indicate that the deceased was working as a coolie in the tractor in question. There is no serious challenge to :9: this part of the evidence. The Tribunal has accepted the said evidence and held that the deceased was a coolie in the tractor and at the time of the accident, he was being carried in the vehicle as an employee of the insured. There is no rebuttal evidence placed by the insurer to doubt the case of the claimants. Therefore, in my opinion the Tribunal is justified in holding that the deceased had been carried in the vehicle in question at the time accident as an employee of the insured. Therefore, the risk arising out of the death of such person is clearly covered under the said policy.
8. No doubt, the vehicle in question is a tractor-trailer meant to be used for agricultural purposes. It is the contention of the insurer at the time of the accident, the vehicle was being used for transporting bricks. However, the very suggestion put to P.W.1 in the cross-examination indicates that at the time of the accident, the trailer was empty. Suggestion in this regard is to the following affect "it is true that the tractor-trailer was empty at the time of the accident". : 10 : There is nothing on record to indicate that the tractor- trailer was being used for the purpose of transporting bricks. Assuming for the purpose of argument that the vehicle was being used for transporting the bricks, that by itself cannot be a ground to hold that the vehicle had been used for a different purpose than the agricultural purposes.
9. The insurer having sought exoneration from the liability on the terms that there was violation of terms and conditions of the policy was under an obligation to substantiate the same. However, the insurer has not placed any acceptable evidence to substantiate the said contention. Therefore, as rightly held by the Tribunal, there is absolutely no evidence to indicate that the vehicle in question had been used for different purposes than the agricultural purposes and thereby, the insured has committed any violation of the terms and conditions of the policy. Therefore, in my opinion, the Tribunal is justified in holding the insurer is liable to indemnify the insured and to satisfy the : 11 : award. The said finding is sound and reasonable having regard to the evidence on record, as such I find no ground to interfere with the said finding.
10. In so far as the multiplier is concerned, I see considerable force in the contention of the learned counsel. Admittedly, the deceased was a bachelor. He died leaving behind his parents as the only heirs. The Tribunal has correctly deducted 50% of the monthly income of the deceased towards the personal and living expenses of the deceased. However, the Tribunal has erroneously applied the multiplier in relation to the age of the deceased instead of age of the younger of the parents. It is now fairly well settled by catena of decision that in case of death of bachelor, the multiplier should be in relation to the age of the younger of the parents.
11. Therefore, the Tribunal has committed error in adopting multiplier of 18 in relation to the age of the deceased. In the case on hand, the claimants have shown the age of the mother of the deceased as 40 years. In the charge sheet, the age of the mother is : 12 : shown as 45 years. At the time of giving statement before the Police, the age of the mother of the deceased is shown as 45 years. There is no definite evidence as to the age of the mother. The deceased as noticed supra, was aged about 20 years. Therefore, it is reasonable to hold that the mother of the deceased was aged between 40 to 45 years. Therefore, the appropriate multiplier as laid down in the case of Sarla Verma And Others vs. Delhi Transport Corporation And Another, reported in 2009 ACJ 1298, would be 14. On that basis the total loss of dependency works out to (15,000 x 12 x 14) Rs.2,52,000/-. To this, the compensation of Rs.25,000/- awarded by the Tribunal under the conventional heads is required to be added. Thus, the total compensation payable to the claimants works out to Rs.2,77,000/- as against Rs.3,49,000/- awarded by the Tribunal. To this extent, the appeal filed by the Insurance Company deserves to be allowed.
12. Accordingly, the appeal is allowed-in-part. The compensation awarded by the Tribunal at : 13 : Rs.3,49,000/- is reduced to Rs.2,77,000/-. The compensation shall carry interest at 6% per annum from the date of petition till the date of payment. The appellant insurer is directed to deposit the entire compensation amount with interest within six weeks from today, if not already deposited.
13. The amount if any in deposit before this Court is ordered to be transferred to the Tribunal concerned.
Sd/-
JUDGE Rsh