Karnataka High Court
United India Insurance Co. Ltd. vs Smt. G B Roopini on 8 September, 2020
Author: S.Sujatha
Bench: S.Sujatha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF SEPTEMBER, 2020
PRESENT
THE HON'BLE MRS.JUSTICE S.SUJATHA
AND
THE HON'BLE MR. JUSTICE E.S.INDIRESH
M.F.A.No.4621/2015 c/w
M.F.A.No.6860/2015 (MV)
IN M.F.A.No.4621/2015:
BETWEEN :
UNITED INDIA INSURANCE CO. LTD.,
REGIONAL OFFICE,
KRISHI BHAVAN BUILDING,
NRUPATHUNGA ROAD, BANGALORE-560 009.
REP. BY ITS Dy. MANAGER SRI K.N.SUESH ...APPELLANT
(BY SRI ANUP SEETHARAMA RAO, ADV. A/W
SRI B.C.SEETHARAMA RAO, ADV.)
AND :
1. SMT.G.B.ROOPINI
W/O LATE A.C. CHANDRASHEKAR,
AGED ABOUT 27 YEARS
2. KUM. THEJASWINI
D/O LATE A.C.CHANDRASHEKAR,
AGED ABOUT 4 YEARS
3. MASTER DIGANTH GOWDA
S/O LATE A.C.CHANDRASHEKAR,
AGED ABOUT 2 YEARS
REPONDENTS 2 & 3 ARE MINORS,
REP BY THEIR MOTHER FIRST
RESPONDENT HEREIN
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4. SMT.SHANTHAMMA
W/O LATE N.CHIKKATHAMMAIAH,
AGED ABOUT 61 YEARS
ALL ARE R/AT ABALAWADI VILLAGE,
KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571401
5. SRI NANJUNDA
S/O LATE CHIKKAMMA, MAJOR,
ABALAWADI VILLAGE,
KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571401.
(OWNER OF TRACTOR NO.KA.11-T-7801)
6. SRI KEMPEGOWDA
S/O SRI THAMMEGOWDA, MAJOR,
NO.438, ABALAWADI VILLAGE,
KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571401
(OWNER OF TRAILER NO.KA.11-T-3028)
...RESPONDENTS
(BY SRI K.M.SANATH KUMAR, ADV. FOR R-1 TO R-4;
SRI D.T.CHETHAN, ADV. FOR R-5; R-6 SERVED.)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
20.02.2015 PASSED IN MVC NO.718/2014 ON THE FILE OF THE
SENIOR CIVIL JUDGE, MACT, MADDUR, AWARDING A
COMPENSATION OF RS.10,10,000/- WITH INTEREST @ 7% P.A.
FROM THE DATE OF PETITION TILL REALIZATION.
IN M.F.A.No.6860/2015:
BETWEEN :
1. SMT.G.B.ROOPINI
W/O LATE A.C. CHANDRASHEKAR,
AGED ABOUT 27 YEARS
2. THEJASWINI
D/O LATE A.C.CHANDRASHEKAR,
AGED ABOUT 4 YEARS
3. DIGANTH GOWDA
S/O LATE A.C.CHANDRASHEKAR,
AGED ABOUT 2 YEARS
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4. SMT.SHANTHAMMA
W/O LATE N.CHIKKATHAMMAIAH,
AGED ABOUT 61 YEARS
THE APPELLANTS NO.2 & 3 ARE MINORS,
REP BY THEIR NATURAL GUARDIAN
MOTHER APPELLANT NO.1.
ALL ARE R/AT ABALAWADI VILLAGE,
KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571404 ...APPELLANTS
(BY SRI K.M.SANATH KUMAR, ADV.)
AND :
1. SRI NANJUNDA
S/O LATE CHIKKAMMA,
ABALAWADI VILLAGE,
KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571404.
2. SRI KEMPEGOWDA
S/O SRI THAMMEGOWDA,
NO.438, ABALAWADI VILLAGE,
KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571404
3. THE BRANCH MANAGER
UNITED INDIA INSURANCE CO. LTD.,
M.C.ROAD, MANDYA CITY-571401. ...RESPONDENTS
(BY SRI ANUP SEETHARAMA RAO, ADV. A/W
SRI B.C.SEETHARAMA RAO, ADV. FOR R-3;
R-1 & R-2 SERVED.)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
20.02.2015 PASSED IN MVC NO.718/2014 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND MACT, MADDUR, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR HEARING, THIS
DAY, S. SUJATHA, J., DELIVERED THE FOLLOWING:
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JUDGMENT
Since the common and akin issues are involved, as the matters arise out of the same accident, they are clubbed, heard together and disposed of by this common judgment.
2. These appeals are preferred against the judgment and award dated 20.2.2015 passed in MVC No.718/2014 by the Senior Civil Judge & MACT, Maddur ('Tribunal' for short].
3. The Insurance Company as well as the claimants are before this court challenging the judgment and award dated 20.2.2005 passed in MVC No.714/2014 by the learned Senior Civil Judge & MACT, Maddur.
4. The claimants-wife and children of the deceased A.C.Chandrashekar filed petition under Section 166 of the M.V.Act,1988 ('Act' for short) claiming compensation of Rs.56,10,000/- for the death of Sri..A.C.Chandrashekar in the road traffic accident -5- which occurred on 13.4.2014 at 6.30 p.m. while he was proceeding on his motor cycle bearing Reg. No.KA- 41/HD-1180. It was averred that while the deceased was proceeding on his motor cycle, in front of the house of Eregowdara Srinivasa, near T. Ballekere Gate on Koppa-Maddur Main Road, one tractor and trailer bearing Reg. No.KA-11/T-7801 and KA-11/T-3028 being driven by its driver in a very rash and negligent manner and at a high speed came from opposite direction and dashed against the motor cycle driven by the deceased and caused the accident. Due to the said impact, Chandrashekar fell down and succumbed to the grievous injuries sustained. It was contended that the deceased was aged about 41 years and he was doing real estate business in addition to his work as Production Supervisor in Metcons Company, Bangalore. He was drawing salary of Rs.19,500/- per month and the claimants were entirely depending on the income of the deceased for their livelihood. Accordingly, they sought for compensation.
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5. In response to the notice issued by the Tribunal, the respondents have entered appearance through their respective counsels and filed their written statement denying the petition averments. The primary defence of the 3rd respondent-Insurance Company was that the 2nd respondent allowing the trailer bearing Reg.No.KA-11/T-3028 to get it attached to the tractor belonging to the 1st respondent was unwarranted. The said tractor was not insured with the 3rd Insurance Company. The rider of the Motor cycle and the driver of the said tractor had no valid and effective driving licence to drive that particular category of vehicles.
6. Based on the pleadings, the Tribunal has framed the issues and answered in terms of the reasons recorded in the impugned judgment.
7. The claimants to prove their case got examined one independent witness as PW-2 in addition to claimant No.1 examining herself as PW-1 and got marked the documents, Exs.P1 to P14. -7-
8. On behalf of the respondents, 3rd respondent-Insurance Company examined its Deputy Manager as RW-1 and marked Exs.R1 and R2. The respondent No.1 got examined himself as RW-2 and examined the driver of the offending vehicle as RW-3. The 2nd respondent got examined himself as RW-4.
9. On appreciation of evidence, the Tribunal allowed the petition in part awarding the compensation of Rs.10,10,000/- with interest at 7% p.a. from the date of petition till realization fastening the liability on the owner and insurer of the offending trailer bearing Reg.No.KA-11-T-3028 jointly and severally. Respondent No.3 - The United India Insurance Company Limited was directed to deposit the entire compensation amount within two months from the date of the judgment and order. The claim petition filed against the owner of tractor bearing No.KA-11/T-7801 was dismissed. -8-
10. Being aggrieved, the Insurance Company is in appeal challenging the liability inasmuch as the factum of negligence determined by the Tribunal, whereas the claimants not being satisfied with the quantum of compensation awarded, have preferred appeal seeking for enhancement of compensation.
11. Learned counsel for the insurer submitted that the accident in question occurred solely due to the use of trailer attached to the tractor. The trailer alone cannot be responsible nor cannot be negligently driven by a driver unless it is attached to the tractor. As the tractor was not insured and the trailer was insured, the entire liability has been fastened on the insurer of the trailer absolving the owner of the tractor from the liability. Utmost 50% of liability ought to have been fastened on the owner of the tractor. It was argued that the Tribunal has erroneously placed reliance on the judgment of this court in the case of Noor Baig Vs. Syed Anwer @ Anwer Sab and others reported in ILR -9- 2003 KAR 3203 which was dealing with the negligence of the driver of the tractor and not of the trailer alone. It was further submitted that the interest awarded @ 7% is on the higher side and the same requires to be reduced to 6% p.a.
12. Learned counsel for the claimants argued that the Tribunal has failed to consider the actual income of the deceased at Rs.19,500/- which is evident from the salary certificate at Ex.P8. The Tribunal ought to have awarded future prospects while considering the long standing work of the deceased as the Production Supervisor in Metcons Company, Bangalore. It was further argued that the compensation awarded under the different heads is too meager and the same calls for substantial enhancement.
13. We have carefully considered the rival submissions of the learned counsel for the parties and perused the material on record.
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14. The points that arise for our consideration are:
1. Whether the Tribunal is justified in fastening the liability on the insurer of the trailer bearing Reg.No.KA-
11/T-3028 which was attached to the tractor?
2. Whether the compensation awarded by the Tribunal is just and reasonable in the facts and circumstances of the case?
15. Re.Point No.1: "Tractor" as defined under Section 2(44) of the Act - means a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion); but excludes a road-roller; In terms of Section 2 (46) "trailer" means any vehicle, other than a semi-trailer and a side-car drawn or intended to be drawn by a motor vehicle.
16. The argument of the learned counsel for the insurer that the trailer alone cannot be used on the
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road unless it is attached to the tractor or in other words trailer is not a motor vehicle requires to be negated in view of the definition clause of 'motor vehicle' or 'vehicle' as per Section 2[28] of the Act which reads thus:
"2(28) "motor vehicle" or "vehicle" means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding [twenty-five cubic centimetres];"
[emphasis supplied] Ex.R1 is the copy of the insurance policy which indicates the schedule of premium collected separately for the tractor bearing Reg.No.KA 11 3027 and trailer bearing Reg.No.KA 11 3028. It cannot be disputed that the said trailer can be attached to any tractor, not necessarily to the tractor bearing Reg.No.KA 11 3027. It
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is discernable that the accident in question occurred due to the trailer being attached to the tractor for the purpose of carrying the agricultural produce. The portion of the trailer having touched the motor cycle, the deceased had died succumbing to the injuries sustained owing to such impact. Ex.P4 charge sheet evinces the actionable negligence of the driver of the tractor. No part of the tractor has touched the motor cycle of the deceased. The said accident would not have been caused if the trailer was not attached to the tractor. The Tribunal has relied upon the judgment of this court in Noor Baig supra, to fix the liability on the owner and insurer of the trailer. It is beneficial to quote the relevant portion of the said judgment which reads thus:
"8. The facts of this case are not in dispute. It is an admitted fact that appellant's tractor was insured with R-4 on the date of accident. Policy is also admitted by R-4. It is also an admitted fact that the trailor attached to the tractor was not insured. It is also an admitted fact that the tractor was proceedings behind the Luna and that the tractor has hit Luna which was proceedings in its front. From this it is clear that the accident has occurred due to the use of the tractor and not due
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to the use of the trailor. In the circumstances, this Court has to consider whether the insurance company can be exonerated on the ground that the trailor was also attached to the tractor which had no policy.
9. As rightly pointed by the learned Counsel for the appellant, no part of the trailor has hit either the Luna of the deceased or the deceased himself. Deceased died on account of the accident caused by the tractor and not by the use of the trailor. No doubt, trailor was attached to the tractor, if any portion of the trailor had touched & the Luna or the deceased and due to such impact if the deceased had died, then this Court to have confirmed the findings of the tribunal in exonerating the insurance company. When no part of the trailor has dashed against the Luna or the deceased, question of exonerating the liability of the insurance company will not arise at all, since the accident has been occurred in using the tractor and not due to the use of the trailor. Therefore, in the circumstances this Court has to hold that the tribunal has committed an error in exonerating the liability of the insurance company.
10. In the result, appeal is allowed Compensation awarded by the tribunal is modified by holding that the compensation awarded by the tribunal has to be satisfied by R- 4 insurance company. Amount in deposit shall be refunded to the appellant."
[emphasis supplied]
17. We are in agreement with the said legal proposition. It is exactly the converse in the present case. The material available on record demonstrates
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that the use of the trailer was the cause for the accident. In such circumstances, saddling the liability on the insurer of the trailer cannot be faulted with.
18. Re.Point No.2: The claimants have asserted that the deceased was drawing a monthly salary of Rs.19,500/-, but no cogent evidence was placed on record to substantiate the same. To prove the factum of income of the deceased, the claimants have examined PW-3, Manager of Metcons company, Bangalore. The said witness in his cross examination has deposed that he has to verify the appointment order and interview letter about the working of the deceased in the said company. Surprisingly, no such appointment order/letter was produced. In the absence of cogent evidence placed on record to substantiate the income of the deceased, the Tribunal has determined the monthly income notionally at Rs.7,500/- which in our opinion appears to be on the lower side. Having regard to the date of the accident i.e. 13.4.2014, we deem it proper to
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re-asses the monthly income at Rs.8,500/-. Considering the age of the deceased as 41 years at the time of the accident, 25% of the monthly income requires to be added towards future prospects in terms of the judgment in National Insurance Company Limited Vs. Pranay Sethi and others reported in (2017) 16 SCC 680. Applying the multiplier of 14, deducting 1/4th of the income towards personal expenses, loss of dependency would work out to Rs.13,38,750/- (Rs.10,625 x 12 x 14 x ¾). In terms of Pranay Sethi supra, and United India Insurance Company Limited Vs. Satinder Kaur @ Satwinder Kaur and others [2020 SCC Online SC 410] as well as New India Assurance Company Limited Vs. Somwati and others [2020 SCC Online SC 720], under the conventional heads, the claimants are entitled to the compensation of Rs.15,000/- towards loss of estate, Rs.40,000/- towards spousal consortium, Rs.80,000/- (Rs.40,000/- to each minor child) towards parental consortium and Rs.15,000/- towards funeral
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expenses. Thus, the total compensation is re-assessed as under:
Sl.No. Particulars Amount [in Rs.]
1. Loss of dependency 13,38,750
2. Loss of estate 15,000 Loss of spousal
3. 40,000 Consortium Loss of parental consortium
4. 80,000 (Rs.40,000/- to each child)
5. Funeral expenses 15,000 Total 14,88,750
19. However, we deem it appropriate to award interest at the rate of 6% p.a., on the compensation re- determined. Hence, the following:
ORDER
i) The total compensation awarded by the Tribunal is modified and enhanced to Rs.14,88,750/- (Rupees Fourteen lakhs eighty eight thousand seven hundred fifty only) as against Rs.10,10,000/- which shall carry interest at the rate of 6% per annum from the date of the claim petition till its realization.
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ii) The portion of the order of the Tribunal inasmuch as the liability, apportionment and disbursement remains intact. The insurance company-United India Insurance Company Limited shall deposit the total compensation re-determined as aforesaid within 90 days from the date of receipt of the certified copy of the judgment and order.
iii) The modified compensation amount shall be apportioned and disbursed in terms of the order of the Tribunal.
iv) Amount in deposit shall be transmitted to the jurisdictional Tribunal for disbursement.
v) Both the appeals stand disposed of in terms of the above.
vi) Draw modified award accordingly.
Sd/-
JUDGE Sd/-
JUDGE Dvr: