Karnataka High Court
The New India Assurance Co Ltd., vs Smt.Jyoti W/O Prakash Naik on 9 July, 2019
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 09TH DAY OF JULY 2019
BEFORE
THE HON'BLE MR.JUSTICE P.G.M. PATIL
M.F.A.NO.101347/2019
C/W
MFA CROB No.100063/2019 [MV]
IN MFA.NO.101347/2019:
BETWEEN:
THE NEW INDIA ASSURANCE CO LTD.,
THE BRANCH MANAGER,
JANAKI PLAZA,I FLOOR, KARWAR,
REPRESENTED BY ITS
DULY CONSTITUTED ATTORNEY
... APPELLANT
(BY SMT. PREETI SHASHANK, ADV.)
AND
1. SMT.JYOTI W/O PRAKASH NAIK,
AGE: 54 YEARS, OCC: HOUSE HOLD WORK,
2. SAGAR PRAKASH NAIK,
AGED ABOUT 21 YEARS, OCC: STUDENT,
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3. PRAVESH S/O PRAKASH NAIK,
AGED ABOUT 18 YEARS, OCC: STUDENT,
4. SMT. JANABAI W/O BUDDU NAIK,
AGE: 72 YEARS, OCC: HOUSE HOLD,
ALL ARE R/AT BRAHMANWADA, PO: BINAGA,
TQ: KARWAR, DIST: UTTAR KANNADA
PINCODE: 581301
5. SRI . GOVIND BABU NAIK,
REGISTERED OWNER OF THE BAJAJ MOTOR
CYCLE BEARING REGISTRATION NO. KA-30/U-
3138,
R/O H.NO. 141 NANDAWAD,
KADWAD, TQ: KARWAR, DIST: UTTAR KANNADA
PIN CODE: 581301.
... RESPONDENTS
(BY SRI T. M. NADAF, ADV. FOR R1-R4
RESPONDENT NO.5 DISPENSED WITH.)
THIS MFA FILED U/S.173(1) OF MOTOR VEHICLES
ACT, 1988, AGAINST THE JUDGMENT AND AWARD
DATED 30.10.2018 PASSED IN MVC NO.509/2017 ON
THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE
AND MEMBER II ADDITIONAL MOTOR ACCIDENT
CLAIMS TRIBUNAL, KARWAR, AWARDING
COMPENSATION OF RS.10,92,000/- WITH INTEREST AT
7% P.A. FROM THE DATE OF PETITION TILL ITS
REALIZATION.
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IN MFA.CROB.NO.100063/2019:
BETWEEN:
1. SMT.JYOTI W/O PRAKASH NAIK,
AGED ABOUT 54 YEARS, OCC: HOUSEHOLD,
2. SAGAR S/O PRAKASH NAIK,
AGED ABOUT 21 YEARS,
OCC: STUDENT,
3. PRAVESH S/O PRAKASH NAIK
AGED ABOUT 18 YEARS, OCC: STUDENT,
4. SMT.JANABAI W/O BUDDU NAIK,
AGED ABOUT 72 YEARS, OCC: HOUSEHOLD,
ALL ARE R/AT: BRAHMANWADA,
POST: BINAGA, TQ: KARWAR,
DIST: UTTARA KANNADA-581301.
... CROSS OBJECTORS
(BY SRI T. M. NADAF, ADV. )
AND
1. THE NEW INDIA ASSURANCE CO. LTD.,
THE BRANCH MANAGER,
JANAKI PLAZA, 1ST FLOOR, KARWR,
DIST: UTTARA KANNADA-581301.
2. SRI.GOVIND BABU NAIK,
REGISTERED OWNER OF THE
BAJAJ MOTOR CYCLE, BEARING
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REGISTRATION NO.KA-30/U-3138,
R/O: H.NO.141, NANDAWAD, KADWAD,
TQ: KARWAR, DIST: UTTARA KANNADA-581301.
... RESPONDENTS
(BY SMT. PREETI SHASHANK ADV. FOR R1.
RESPONDENT NO.2 DISPENSED WITH.)
THIS MFA.CROB IN MFA NO.101347/2019 FILED
UNDER ORDER 41 RULE 22 OF CPC., AGAINST THE
JUDGMENT AND AWARD DATED 30.10.2018 PASSED IN
MVC NO.509/2017 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE AND II ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL, KARWAR, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEAL AND CROSS OBJECTION ARE
COMING ON FOR ORDERS, THIS DAY, THE COURT
MADE THE FOLLOWING :-
JUDGMENT
The insurer and the claimants being aggrieved by the judgment and award dated 30.10.2018, passed in MVC.No.509/2017, by the Addl. Civil Judge Senior Division and II Addl. MACT, Karwar, have filed this appeal and Cross Objection.
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2. It is the case of the claimants before the tribunal that on 24/6/2017 at about 19.30 hours the deceased Prakash Buddu Naik was proceeding from Majali side by walk towards Sadashivagad. On the left side of the road. In the meantime, a motorcycle bearing No.KA-30-U-3138 came from Goa side towards Karwar being driven by its rider with great speed and in a rash and negligent manner and dashed to the deceased. Due to this impact, he fell down on the road and sustained grievous injuries. Immediately, he was shifted to the District Civil Hospital, Karwar. However, he died while under treatment due to severe injuries sustained by him in the accident. The deceased was doing PWD Contractor, Forest Contract Insurance Agency, Adviser of Exide Life Insurance Company and earning Rs.20,000/-p.m. The entire family members were depending on his earning. He was only bread earner of -6- the family. Due to untimely death of the deceased, the entire family members are facing miserable situation. Therefore, they claimed compensation against the owner and insurer of the offending vehicle.
3. In pursuance of the notice, respondent Nos.1 and 2 appeared before the Tribunal. Respondent No.2 filed written statement. He denied all the averments made in the claim petition including the age, avocation and income of the deceased and relationship with the petitioners. He further contended that the accident did not occur due to rash and negligent driving of the driver of the motor cycle. He has admitted that the vehicle belongs to respondent No.1 and was insured with him and his liability is subject to terms of the policy.
4. Based on the pleadings of the parties, Tribunal framed the issues. In support of their claim -7- petition, claimant No.1 got examined as PW-1 and got marked 12 documents as Exs.P1 to 12. Respondent No.2 produced 5 documents marked as Exs.R1 to R5.
5. The learned member of the Tribunal after hearing both the parties passed the impugned judgment and awarded a compensation of Rs.10,92,000/- with interest at the rate of 7% p.a. from the date of petition till the date of realisation. Respondent No.2 insurer was directed to deposit the compensation amount within two months.
6. The insurer being aggrieved by the impugned judgment has filed MFA.No.101347/2019 on the grounds that the Tribunal has arbitrarily granted Rs.5,25,000/- under the conventional heads without following the law laid down by the Larger Bench of the Supreme Court in the case of National Insurance Ltd. -8- Vs. Pranay Sethi and Others reported in AIR 2017 SCC 5157. Further, the Tribunal has granted Rs.1,00,000/- towards loss of consortium which is also without following the said decision. The Tribunal has granted Rs.3,00,000/- under the head of loss of love and affection which is also against the judgment of the Hon'ble supreme Court and that the Tribunal has granted excessive rate of interest at 7% p.a.
7. The claimants being dissatisfied with the impugned judgment have filed MFA.Crob.No. 100063/2019 seeking enhancement of the compensation on the grounds that the income of the deceased was about Rs.20,000/-p.m. and the Tribunal has considered the same at Rs.7,000/- per month. That the Tribunal has not awarded compensation -9- towards future prospects by adding 10% of the income of the deceased.
8. Heard the learned counsel for the parties.
9. A short question which arises for consideration before this Court is as to "whether the appellant-insurer has made out grounds for reducing the compensation amount awarded by the Tribunal and whether the claimants have made out a ground for enhancement of the compensation?'
10. Learned counsel for the appellant-insurer submitted that the awarding compensation of Rs.5,25,000/- under conventional heads and a sum of Rs.3,00,000/- under the head of loss of love and affection are against the judgment of Hon'ble Supreme Court in the case of National Insurance Ltd. Vs.
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Pranay Sethi and Others and the same may be reassessed and awarded in terms of the judgment of the Hon'ble Supreme Court.
11. Per contra, the learned counsel for the claimants submitted that the income of the deceased considered by the Tribunal is on the lower side and the same may be enhanced.
12. The claimants have contended before the Tribunal that the deceased was PWD Contractor, Forest Contractor Insurance Agency, Adviser of Exide Life Insurance Company and was earning Rs.20,000/-p.m. However, the claimants have not produced any positive evidence to prove the income of the deceased apart from the passbook. In the absence of such evidence, the Tribunal has considered the income of the deceased at Rs.7,000/- per month.
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13. However, considering the age and occupation of the deceased and the year of the accident i.e., 2017 and also in view of the guidelines provided for settlement of the cases before the Lok-Adalath, it is just and necessary to consider the income of the deceased at Rs.10,250/- per month for the purpose of awarding compensation. The compensation awarded by the Tribunal under the conventional heads, loss of love and affection needs to be reassessed in view of the Judgment of Hon'ble Supreme Court in the case of National Insurance Ltd. Vs. Pranay Sethi and Others reported in AIR 2017 SCC 5157. Thus, on reassessment, the following just compensation is awarded. Income of deceased is considered at Rs.10,250/- per month, 1/4th is deducted towards the personal and living expenses of the deceased which has comes to Rs.7,687/- per month which to be multiplied
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by 12 and 9 multiplier. Thus, the claimants are entitled for compensation amount of Rs.8,30,196/- towards loss of dependency. A sum of Rs.70,000/- is awarded under the conventional heads.
14. Claimant Nos.2 and 3 were shown as aged 19 and 16 years they are entitled for compensation for loss of love and affection at the rate of Rs.50,000/- each in view of the Judgment in the case of Magma General Insurance Co. Ltd. Vs. Nanu Ram and Others, reported in 2018 ACJ 2782, thus, Rs.1,00,000/- is awarded under this head. Claimant No.4 being mother of the deceased is entitled for parental consortium of Rs.40,000/- and the same is awarded.
15. Thus, the claimants are entitled for compensation amount of Rs.10,40,196/- as against compensation awarded by the Tribunal at
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Rs.10,92,000/-. The point for consideration in these matters is answered accordingly. In the result, this Court proceed to pass the following :
ORDER The appeal in MFA.No.101347/2019 is allowed in part. The claimants are awarded compensation amount of Rs.10,40,196/- with interest at the rate of 6% per annum from the date of petition till its realization.
The amount in deposit made in MFA.No.101347/2019 shall be transmitted to the concerned Tribunal.
The Cross Objection in MFA.CROB.No.100063/ 2019 is partly allowed in terms of the award in MFA.No. 101347/2019.
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The deposit and disbursement of the compensation amount shall be in terms of the orders of the Tribunal.
Sd/-
JUDGE Vmb/ckk