Karnataka High Court
National Insurance Co.Ltd., vs Smt. G. Renukamma on 12 September, 2019
Author: S.N. Satyanarayana
Bench: S.N. Satyanarayana
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 12th day of September 2019
Present
THE HON'BLE MR.JUSTICE S.N. SATYANARAYANA
and
THE HON'BLE MR.JUSTICE P.G.M. PATIL
MISCELLANEOUS FIRST APPEAL NO.103246 OF 2018 (MV)
C/W M.F.A. CROB NO.100003 OF 2019 (MV)
IN MFA NO.103246/2018
BETWEEN
NATIONAL INSURANCE CO.LTD.,
BY ITS MANAGER, PARVATHI NAGAR,
MAIN ROAD, BALLARI
BY ITS ADMINISTRATIVE OFFICER. ...APPELLANT
(BY SRI. RAVINDRA R. MANE, ADVOCATE)
AND
1. SMT. G. RENUKAMMA
W/O LATE RAMANJINEYULU
AGE ABOUT 45 YEARS
OCC. HOUSEWIFE
2. BHEEMESH,
S/O LATE RAMANJINEYULU
AGE ABOUT 25 YEARS, OCC.STUDENT
3. KUM. PUSHPAVATHI,
D/O LATE RAMANJINEYULU
AGE ABOUT 23 YEARS, OCC. STUDENT
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4. BHARATHI
D/O LATE RAMANJINEYULU
AGE.ABOUT 21 YEARS, OCC.STUDENT,
5. LINGANNA, S/O LATE ERAPPA,
AGE ABOUT 78 YEARS, OCC.NIL,
6. SMT. LAXMI DEVI, W/O LINGANNA
AGE ABOUT 73 YEARS, OCC. NIL
ALL ARE RESIDENTS OF
BEHIND ANJINEYA TEMPLE,
30TH WARD, VINAYAKANAGAR
BALLARI-583101.
7. K. BASAVARAJ, S/O SIDDANNA K.,
AGE.33 YEARS,
OCC. DRIVER OF LORRY (TANKER)
BEARING NO.KA-35/B-0931
R/O SIRIGERI VILLAGE
TAL. SIRUGUPPA
DIST. BALLARI-583121.
8. SMT. V.H. JAYASHREE,
W/O V.Y HALAPPA,
AGE.58 YEARS
OCC. OWNER OF LORRY (TANKER)
BEARING NO.KA-35/B-0931
R/O ASHIRVAD PETROL BUNK,
INDIAN OIL DEALERS,
BANNIHATTI CROSS
POST NAGALAPUR, TAL. SANDUR,
DIST. BALLARI-583119. ...RESPONDENTS
(BY SMT. G. K. KEERTHI, ADVOCATE FOR R1-R5)
(R6 - SERVED; NOTICE TO R7 & R8 DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED
28.4.2018 PASSED IN MVC NO.2/2016 ON THE FILE OF THE
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MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL-XII,
BALLARI, AWARDING COMPENSATION OF RS.15,82,000/-
WITH INTEREST AT 7% P.A. FROM THE DATE OF PETITION
TILL ITS REALISATION.
---------
IN MFA CROB NO.100003/2019
BETWEEN
1. SMT.G.RENUKAMMA,
W/O LATE RAMANJINEYULU
AGE: 39 YEARS,
OCC: HOUSEWIFE,
2. BHEEMESH,
S/O LATE RAMANJINEYULU
AGE: 22 YEARS, OCC: STUDENT,
3. KUM.PUSHPAVATHI,
D/O RAMANJINEYULU,
AGE: 20 YEARS, OCC: STUDENT,
4. MINOR BHARATHI,
D/O RAMANJINEYULU,
AGE: 21 YEARS, OCC: STUDENT,
5. LINGANNA, S/O LATE ERAPPA,
AGE: 72 YEARS,
6. SMT.LAXMI DEVI, W/O LINGANNA
AGE: 67 YEARS,
ALL ARE RESIDENTS OF
BEHIND ANJINEYA TEMPLE,
30TH WARD, VINAYAKANAGAR,
BALLARI-583101. ...CROSS-OBJECTORS
(BY SMT. KEERTHI G. K., ADVOCATE)
4
AND:
1. K.BASAVARAJ,
S/O SIDDANNA K., AGE: 33 YEARS,
OCC: DRIVER OF LORRY (TANKER),
BEARING REG.NO.KA-35/B-0931,
R/O: SIRIGERI VILLAGE,
IN SIRUGUPPA TALUKA,
BALLARI DISTRICT-583120.
2. SMT.V.H. JAYASHREE,
W/O V.Y. HALAPPA, AGE: 58 YEARS,
OCC: OWNER OF LORRY (TANKER)
BEARING REG.NO.KA-35/B-0931,
R/O: ASHIRVAD PETROL BUNK,
INDIAN OIL DEALERS,
BANNIHATTI CROSS,
NAGALAPUR POST, SANDUR TALUK,
BALLARI DISTRICT-583123.
3. M/S. NATIONAL INSURANCE
COMPANY LTD., BY ITS MANAGER,
PARVATHI NAGAR, MAIN ROAD,
BALLARI-583101. ...RESPONDENTS
(BY SRI. RAVINDRA R. MANE, ADVOCATE FOR R3)
(R1-R2 NOTICE DISPENSED WITH)
THIS MFA.CROB IN MFA NO.103246/2018 IS FILED
UNDER ORDER 41 RULE 22 OF CPC., AGAINST THE
JUDGMENT AND AWARD DATED 28.04.2018 PASSED IN MVC
NO.2/2016 ON THE FILE OF THE II ADDITIONAL DISTRICT
AND SESSIONS JUDGE AND MEMBER, MOTOR ACCIDENT
CLAIMS TRIBUNAL-XII, BALLARI, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS MFA AND MFA CROSS-OBJECTION COMING ON
FOR ADMISSION THIS DAY, S.N.SATYANARAYANA, J,
DELIVERED THE FOLLOWING:
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JUDGMENT
The 3rd respondent-insurer in M.V.C. No.2 of 2016 on the file of the Motor Accident Claims Tribunal-XII, Ballari (for short 'the Tribunal'), has come up in this appeal i.e., in M.F.A. No.103246 of 2018 challenging the quantification of the compensation awarded by taking the age of the deceased as 37 years ignoring his age which is shown to be in between 46 to 47 years in Aadhaar Card produced by the parties.
2. On service of notice in the appeal, the claimants before the Tribunal have filed cross objection which is in MFA Crob.No.100003/2019.
3. The appeal and cross-objection are clubbed together.
4. When this matter had come up for admission, an order was passed to secure the lower 6 court records, which is secured and placed before the Court.
5. Heard learned counsel for the appellant as well as cross-objectors who are respectively the contesting respondent and the claimants before the Tribunal.
6. Perused the pleadings, evidence and the judgment of the Tribunal, which are available on record. On going through the same, it is seen that the claim petition in M.V.C. No.2 of 2016 was filed by the widow, children and parents of one Ramanjineyulu who died in a road traffic accident that occurred on 08.12.2015. Admittedly, at the time of the accident, the deceased was pushing his cart on which he would vend fried chicken kabab, in a corner of a street at Sudha Cross on Hosapete Road, Ballari. It is stated that when Ramanjineyulu was pushing his cart towards the place where he would carry on his business, he 7 and his cart were hit by a lorry bearing registration No.KA-35/B-0931 resulting in his death, which is not in dispute. Thereafter, the widow, children and parents of the deceased Ramanjineyulu filed claim petition seeking compensation for the death of Ramanjineyulu. The claim petition, which is available in the records placed before this Court, would indicate that the claimants have contended that the age of the deceased was 37 years as on December 2015; the age of Renukamma, wife of the deceased, is also shown as 37 years; the age of the first child - Bheemesh is 20 years; the age of the second child - Pushpavathi is 18 years; and the third child - Bharathi is stated to be a minor and she is not referred to by age; so far as the parents of the deceased Ramanjineyulu is concerned, they are shown as aged 70 years and 65 years.
7. In the proceedings before the Tribunal, for the sake of claiming compensation, the income of the deceased was projected at Rs.1,000/- per day. Though 8 evidence was led in this behalf, the claimants were not in a position to demonstrate that the nature of business of the deceased was that of selling chicken kabab and his income was Rs.1,000/- per day. At the same time, they were also not able to demonstrate that the age of the deceased was 37 years as on the date of the accident. It is also seen from the records that though the claimants claimed their age, as stated supra, they have produced Aadhaar Cards (Exs.P.10 to P.15) issued to them by the Unique Identification Authority of India, Government of India, and the Ration Card (Ex.P.16) issued by the Government of Karnataka. The Aadhaar Cards at Exs.P.10 to P.15 would indicate that the age of the deceased Ramanjineyulu was between 46 to 47 years as on December 2015; the age of the claimants viz., Renukamma, widow of the deceased, is 42 years; the age of second child - Pushpavathi is 20 years; the age of the third child - Bharathi is 19 years. The Aadhaar 9 Cards issued to Linganna and Laxmi Devi, the parents of the deceased, would indicate that they are aged 75 years and 70 years. The ration card (Ex.P.16), which was issued on 14.10.2012, would show the age of the first child - Bheemesh is 20 years. The aforesaid documents at Exs.P.10 to P.16 were produced and relied upon by the claimants. Though all these documents were available on record before the Tribunal, it is rather surprising that the learned Member of the Tribunal chose to believe the averments made in the claim petition and took the age of the deceased as 37 years and also that of the claimants as stated in the claim petition which is far below their actual age. The claim petition would also indicate that one of claimants was shown as minor as on the date of filing the claim petition, but in fact all the claimants were major in age.
8. It is seen that though the Tribunal committed a mistake in not taking the age of the 10 deceased and the claimants properly, when it comes to taking of the income of the deceased, the Tribunal has rightly taken the income as per the chart, which is followed almost by all the Tribunals with reference to the income which is required to be taken in cases where the age, avocation and income of the deceased is not proved. In fact, the said chart is accepted through out the State as recommended by the Legal Services Authority. The said chart is followed as a thumb-rule for deciding the compensation payable in the matters which are referred to Lok Adalat. The Tribunal took the income of the deceased at Rs.8,000/- per month and the future prospects at 40% of the income, since the age of the deceased was taken as 37 years, and proceeded to award the compensation towards 'loss of dependency' to the tune of Rs.15,12,000/- and compensation under conventional heads at Rs.70,000/-.
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9. The insurer is aggrieved by the quantum of compensation awarded towards 'loss of dependency' only, that too for the reason that the calculation is made by taking the wrong age of the deceased as 37 years, when the documents available on record itself would indicate that the age of the deceased was in between 46 to 47 years as on December 2015.
10. In this proceeding, when the entire records which are made available are looked into, more particularly the Exs.P.10 to P.16, they would demonstrate that the age of the deceased is 46 years as on December 2015 and that the other claimants had attained majority as on the date of filing the claim petition. In that view of the matter, the Tribunal ought to have taken the multiplier on the basis of the age of the deceased, who was aged between 46 and 47 years, which is '13' instead it is taken as '15' and erroneously awarded higher compensation for which the claimants are not entitled to. Therefore, this Court 12 is of the considered opinion that the same is required to be interfered with.
11. In the meanwhile, learned counsel appearing for the cross-objectors/claimants would try to rely upon an unreported Division Bench judgment of this Court rendered in M.F.A. No.3807/2015 (The Branch Manager, The New India Assurance Company Limited Vs. Smt. Prema and Others), disposed off on 04.07.2018. When the said judgment is looked into, at un-numbered sub-para of the fourth paragraph, at page No.8, the Co-ordinate Bench of this Court has observed as under:
"Secondly, the Post-Mortem Report does not reveal the exact age of the deceased. The age mentioned in the postmortem report is subject to fluctuation of + 2 years. In case there are two different interpretations of a given piece of evidence, the interpretation in favour of the claimant would have to be adopted. Therefore, even the age revealed in the Post-Mortem Report would indicate that the deceased was, in fact, 49 years old. Furthermore, the 13 said piece of evidence is corroborated by the fact that according to the identity card, (Ex.P.6), the age of the deceased was 49 years. Hence, the learned Tribunal was justified in relying upon the identity card in order to decide the age of the deceased."
Relying upon the same, the learned counsel for the claimants, who are the cross-objectors, would insist that the age of the deceased should be taken as 37 years as shown in the post-mortem report and not as shown in the Aadhaar Card; and she would also try to assert that the said judgment is binding on this Court as the same is rendered by a Co-ordinate Bench of this Court.
12. No doubt, this Court is bound by a judgment of Co-ordinate Bench of this Court, but the judgment relied upon would not enure to the benefit of the cross-objectors, as claimed by the learned counsel. Instead, the judgment relied upon would indicate that when acceptable documents are made available, the same will have to be looked into, as it is done in the 14 said case, where the identity card which disclosed the age of the deceased as 49 years was taken into consideration as against the post-mortem which stated the age of the deceased to be 51 years. When the same analogy is applied to the case on hand, the age of the deceased shown as 37 years in the post-mortem report cannot be looked into, instead what is required to be looked into is the Aadhaar Cards, which are issued by the Government of India, on the basis of the declaration made by the parties during their life time and which documents were produced by the parties before the Tribunal. In that view of the matter, this Court is of the considered opinion that the judgment rendered by the Tribunal requires to be interfered, so far as the age of the deceased is concerned, and the same is considered in between 46 to 47 years and the relevant multiplier applicable is '13'. In view of the same, the compensation payable to the claimants 15 before the Tribunal for the death of Ramanjineyulu would be as under:
(i) Since the accident is of the year 2015, without there being any evidence with reference to his avocation and income, the same should be taken at Rs.8,000/- per month.
(ii) In view of the fact that the deceased was in the age group of 40-50, 25% of the income is required to be taken towards 'future prospects' instead of 40% as taken by the Tribunal. If that is taken into consideration, a sum of Rs.2,000/- will have to be added to Rs.8,000/-, which would come to Rs.10,000/-
per month.
(iii) The deduction towards personal upkeep of the deceased would be 1/4th since the dependants are six in numbers. Therefore, if 1/4th of the income is deducted towards personal upkeep of the deceased, then what would be available towards 'loss of 16 dependency' to the family is 75% of Rs.10,000/- or Rs.7,500/- per month. If the same is multiplied by 12, the 'loss of dependency' per annum will be Rs.90,000/- and further multiplied with the relevant multiplier '13', the compensation towards 'loss of dependency' to which the claimants are entitled would be Rs.11,70,000/- (Rs.7,500 x 12 x 13). The compensation which is awarded by the Tribunal towards conventional heads in a sum of Rs.70,000/- is retained. Therefore, the total compensation to which the claimants are entitled to is Rs.12,40,000/- as against Rs.15,82,000/- awarded by the Tribunal.
13. Accordingly, the appeal, which is filed by the insurer seeking refixation of the compensation payable under the head 'loss of dependency', is allowed as above.
14. In view of the compensation being reassessed in the aforesaid fact-matrix, the question 17 of considering the cross-objection filed by the claimants seeking enhancement of the compensation does not arise. Accordingly, the cross-objection is hereby dismissed.
In view of the appeal of the insurance company being allowed, the amount which is deposited by the insurance company shall be transmitted to the Tribunal for disbursement in accordance with the judgment rendered by the Tribunal. While doing so, if any amount is required to be deposited by the insurance company, the same shall be done within four weeks from this day.
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