Karnataka High Court
The Oriental Insurance Company Ltd vs Muniswamappa on 11 July, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2023:KHC:23844
MFA No. 239 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 239 OF 2013 (MV-D)
BETWEEN:
THE ORIENTAL INSURANCE COMPANY LTD,
REGIONAL OFFICE,
LEO SHOPPING COMPLEX,
RESIDENCY ROAD CROSS,
BANGALORE-560001.
REP BY AUTHORIZED SIGNATORY
...APPELLANT
(BY SRI. C SHANKARA REDDY, ADVOCATE)
AND:
1. MUNISWAMAPPA
S/O LATE VENKATAPPA,
AGED ABOUT 43 YEARS.
Digitally signed by
VIJAYALAKSHMI B 2. KUMAR
N S/O MUNISWAMAPPA
Location: High AGED ABOUT 32 YEARS
Court of Karnataka
BOT ARE RESIDING AT
NO.8, CHANNEGOWDANADODDI
SHYANAMANGALA POST
BIDADI HOBLI
RAMANAGAR DISTRICT - 571 511
3. S. SIDDARAJU
S/O MANIKYAM
R/A 5-12, AURAVANI
NARKATAPALLY POST
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NC: 2023:KHC:23844
MFA No. 239 of 2013
NELAGONDA DISTRICT
ANDHRA PRADESH
...RESPONDENTS
(BY SRI. R CHANDRASHEKAR ADVOCATE FOR R1;
R2 IS SERVED
NOTICE TO R3)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 5.10.2012 PASSED IN MVC
NO.4040/2011 ON THE FILE OF VII ADDITIONAL JUDGE,
MEMBER, MACT-3, BANGALORE, AWARDING A COMPENSATION
OF RS.1,80,000/- WITH INTEREST @ 6% P.A FROM THE DATE
OF PETITION TILL REALIZATION.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the Insurance Company challenging the Judgment and Award dated 11.07.2023 passed in MVC No.4040/2011 passed by the MACT and Court of Small Causes, Bengaluru.
2. Brief facts of the case:
On 22.06.2011, wife of Respondent No.1 (deceased) herein was standing near Shyanamangala road, the driver of compressor attached to Tractor bearing Registration -3- NC: 2023:KHC:23844 MFA No. 239 of 2013 No.AP-16/N-2457 dashed the deceased, due to which, the deceased died on the spot. Deceased aged 55 years, was earning a sum of Rs.6,000/- p.m. A claim petition was filed by the husband and son of the deceased and the same was allowed in part
3. Heard the learned counsel for the parties.
4. In the present case, the claimants were granted compensation of Rs.1,80,000/- along with interest at the rate of 6% interest p.a., from the date of petition till realization. The Tribunal held that both the appellant- Insurance Company and the owner of tractor are jointly and severally liable to pay the compensation.
5. Learned counsel for the appellant-Insurance Company submitted that the driver of the tractor who caused the accident was not holding driving licence and also charge sheet is filed to the effect that the driver of the tractor did not have driving licence to drive the vehicle. Accordingly, charge sheet is also filed for the offence of non-holding of driving licence. Therefore, he -4- NC: 2023:KHC:23844 MFA No. 239 of 2013 submitted that there is a violation of conditions of policy. Hence, the Insurance Company is not liable to pay the compensation and prays to allow the appeal by exonerating the Insurance Company. RE. LIABILITY:
6. In the present case, the vehicle involved in the accident is a tractor attached with a compressor and the accident has resulted in the death of the deceased. The Investigating Officer has filed charge sheet for the offences under Section 188 and Section 84 read with Section 177 of the Motor Vehicles Act, 1988 (in short 'M.V.Act'), apart from other offences. Therefore, during the course of investigation, the Investigating Officer had found out that the driver did not have driving licence to drive the tractor. Normally, during the course of investigation, the Police will issue notice under Section 134(c) of the M.V.Act calling upon the owner or driver to produce driving licence and all other necessary -5- NC: 2023:KHC:23844 MFA No. 239 of 2013 documents. But in the present case, the owner has not produced either driving licence or permit. Therefore, charge sheet is filed for the above said offences. The Insurance Company has proved that there is a violation of conditions of insurance policy. Thus, Insurance Company has to be exonerated from payment of compensation. However, as per Section 149(2) of the M.V.Act, the Insurance Company though successfully established the defence, but the claimants are third parties. Hence, as per sub-sections (1), (5) and (7) of Section 149 of the M.V.Act, the Insurance Company shall satisfy the claim of the claimants as if Judgment Debtor and then, recover it from the owner of the tractor attached with compressor. In view of the Judgment of Hon'ble Supreme Court in the Hon'ble Supreme Court in the cases of PAPPU AND OTHERS Vs. VINOD KUMAR LAMBA AND ANOTHER1; NATIONAL INSURANCE COMPANY LIMITED VS. SWARAN SINGH AND OTHERS 2 and also as per the 1 (2018) 3 SCC 208 2 (2004) 3 SCC 297 -6- NC: 2023:KHC:23844 MFA No. 239 of 2013 full bench decision of this Court in the case of NEW INDIA ASSURANCE COMPANY LIMITED VS. YELLAVVA AND ANOTHER3. Accordingly, an order of pay and recovery is made.
RE. QUANTUM:
7. The Tribunal has awarded compensation as under:
Loss of dependency Rs.5,000/- minus 1/3rd= 1 Rs.1666/- x 12 X7 Rs. 1,40,000-00 2 Loss of expectancy Rs. 10,000-00 Transportation of dead body and funeral 3 expenses Rs. 10,000-00 4 Loss of estate Rs. 10,000-00 5 Loss of love and affection Rs. 10,000-00 Total Rs. 1,80,000-00 The Tribunal has committed arithmetical error while making computation of compensation under the head of loss of dependency which has to be rectified. Otherwise, it would lead to unjust Judgment. The Tribunal has committed an error in adopting multiplier according to the age of the Claimant No.1. The Tribunal has stated that 3 2020 ACJ 2560 -7- NC: 2023:KHC:23844 MFA No. 239 of 2013 the age of the claimant No.1 is 63 years and accordingly, adopted Multiplier of 7, but in the cause title, the age of the claimant No.1 is 41 years. The age of the deceased is 55 years as per post mortem report. The multiplier has to be taken according to the age of the deceased. 1/3rd of the income of the deceased is deducted towards personal and living expenses. 10% of income is added towards loss of future prospects in life. Accordingly, the same is rectified. Further, loss of dependency is computed as under:
Rs.5,000/- + Rs.500/- (10% of Rs.5,000/-) x 2/3 x 9 x 12 =Rs.3,95,995/- rounded off to Rs.3,96,000/-
8. Compensation towards loss of consortium is granted. Accordingly, as per the Judgment of Hon'ble Supreme Court in Magma General Insurance Co. Limited v. Nanu Ram & Others4, the claimants are entitled to Rs.40,000/- each under the head Loss Of Consortium, along with 10% escalation. 4 2018 ACJ 2782 -8- NC: 2023:KHC:23844 MFA No. 239 of 2013
9. On other heads also, the compensation amount awarded is not correct as per the Judgment of the Hon'ble Supreme Court in Magma General Insurance Co.Ltd. case supra. Hence, they are in contravention of law. Hence, the same has to be interfered with. Therefore, the claimant is entitled for a compensation of Rs.88,000/- towards loss of consortium. Further, a compensation of Rs.15,000/- each is awarded under the head transportation of dead body and obsequies and loss of estate with 10% escalation. Therefore, by exercising power vested in this Court being an Appellate Court, as per Order 41 Rule 33 of CPC, the error committed by the Tribunal is rectified by this Court.
10. Thus, the claimants are entitled for compensation as under:
1 Loss of Dependency Rs. 3,96,000-00 2 Loss of consortium Rs. 88,000-00 Transportation of dead body & funeral 3 expenses Rs. 16,500-00 4 Loss of Estate Rs. 16,500-00 Total Rs. 5,17,000-00 -9- NC: 2023:KHC:23844 MFA No. 239 of 2013
11. Therefore, I pass the following:
ORDER i. The appeal is allowed-in-part. ii. The impugned judgment and award dated 05.10.2012 passed in MVC.No.4040/2011 by the the MACT and Court of Small Causes, Bengaluru, is modified to the extent that the claimants are entitled to enhanced compensation of Rs.3,99,000/-
(Rs.5,17,000/- - Rs.1,18,000/-) along with interest at the rate of 6% per annum from the date of petition till the date of deposit. iii. No order as to costs.
iv. Appellant-Insurance Company shall pay the compensation amount to the claimant at the first instance and then recover the same from the owner of the Tractor bearing Registration No.AP-16/N-2457.
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NC: 2023:KHC:23844 MFA No. 239 of 2013 v. Registry is directed to transmit the TCR along with copy of this order to the Tribunal forthwith. vi. Draw award accordingly.
Sd/-
JUDGE BNV List No.: 1 Sl No.: 3