Karnataka High Court
Oriental Insurance Company Ltd vs Kalamma W/O Raja Naika on 1 July, 2008
Author: Manjula Chellur
Bench: Manjula Chellur
!N THE HEGH COURT OF KARNATAKA AT BANGALORE
DAYED Tir-RS THE 13-r DAY OF JULY 2008
PRESENT
THE HONBLE MRSJUSTKSE MANJULA cH§2~2.Lg,~x§_%j " %
AND
THE HoN'aL1=_ MRJUSTECE K.N;.K§$¢HAvA§3AFi}éfi'VfiNAVAV
MISCELLANEOUS F¥RST APPEAL :N{)z§¥33$§3}2003(f%fif\:.')__
BETWEEN:
0R%ENTAL ¥NSURANCE COMPANY-.LT'-D_ _
HASSAN BRANCH THRQIJGH ITS BANGALORE
REG:oNA:.. Oi-"F%CE No.44;>45.
LEO SHOPPING COMPLEX," E
RESDENCY ROAD
BANGALORE %
REP. BY ITS r=<EG§oa~4AL'MkNAGER
APPELLANT
(By Siaé, s v H.E§3FjE::MUL¥£HA.N'D; ADV.)
KALAMMA w:'{.'----¥EAJANAIKA
32"vEARs,
" _ r2!AEr3e;3i:aA1<AoANuR V%LLAGE
E HAL.Liiv§YSORE HOBLL
H0i;E'§\i£{RASiPURA TALUK
Hassaw DISTR!CT
_ 2 EESHOBHA D10 RAJANAJKA
12 YEARS.
RIA GODDAKADANUR VILLAGE
HALUMYSORE HOBLI,
HOLENARASIPURA TALUK
HASSAN DISTRKBT
MINOR REP BY MOTHER &
NATURAL GUARDEAN KALAMMA
3 MEENAKSHI E310 RAJANAIKA
10 YEARS.
RIA DODDAKADANUR VJLLAGE
m
HALLIMYSORE I-{DBL}.
HOLENARASIPURA TALUK
HASSAN DISTRJCT
MSNOR REF' BY MOTHER &
NATURAL GUARDIAN KALAMMA
4 NANDHINI mo RAJANAIKA
9 YEARS, % '
R/A DODDAKADANUR VILLAGE R R» R
HALLIMYSORE HOBLI, , *
HOLEENARASAPURA TALL_JKv-
HASSAN DESTRICT
MINOR REP BY MOTHER L'
NATURAL GUARDSAN KAi.AM!viA '= . a
5 PUSHPA mo LATE RAJANA'lKA_._ R
BYEARS, R
R/A DODDAKADANUR vu_LAe§
HALL:ws<;:Ra Roam; R
HASSANi_D3_STRiCT A' "
:unNcRfREP' 'av NiQT*HER"&*"
ibiATLJRRLG§.}ARD.!(€N.__KALAMMA
6 LAK_S'HMAM_MA 'w1e._LA'rE KALANNKA
69 YEARS, R
. -REA waDA:<ADANuR ViLLAGE
~ HAE.L!MYSOR_E__HOBLI,
HoLENARAs:PuRA TALUK
* » k HASSAN QISTRICT
A -- Mi-N(3R~RE.P BY MOTHER 3.
* NAT_U_RAL GUARDSAN KALAMMA
7 JAYARAMA SIO BETTA BOVI
" 30':.YEARS.
" I RIO NYAMANAHALU VSLLAGE
HOLENARASJPURA TALUK
R gs K L MOHAN @ SHASHIDHAR @ SHASHI
S10 LACHANNA @ RAJE GOWDA
31 YEARS, R/O K K HOSUR WLLAGE
RESPONDENTS
(By Sri, C N KESHAVA MURTHY. ADV. FOR RLR5
SRi.A.V.GANGADHARAPF'A, ADV FOR R7
R6 8: 8 SERVES)
__. _ the Iriburrat. I
THIS MISCELLANEOUS FIRST APPEAL IS FIL.,Ei3_ UIS
173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGMENT
AND AWARD DAYED 25.3.2003 PASSED IN MVC NQ_.'i'I8i9§. ON
THE FILE OF CIVIL JUDGE (SRBN)
HOLENARASIPURA, PARTLY ALLOWING CLAIM
PETITION FOR COMPENSATION.
mas MISCELLANEOUS §='rRsr=APr#E'At. comm
HEARING, THIS om KEsHAvmARAY.Arr;«.J, p.*.=.u;rERe:s THE" ,
FOLLOWING: __ _ _
I I
Being aggrieved award dated
2s.3.2om pas;ee:rj;q-Mvc"r§io;t1er.imttbyfssivaz Judge, Sr.Dn. 3.
MACT, presented thts appeal under
Sectionv«1~--73--(II: ~"IAct. Respondents 1 to 6
herein:§ver'e4'tI'1e respondents 7 and 8. were
respondents "audit? fite_".eppeIIant was respondent No.3 before
course of the order. the parties wiII be referred
to with reference to their ranking before the Tribunat.
I The petitioners being the wife, minor chiidren and mother
_,vofIone Rajanaika flied ciaim petition seeking compensation of R330
Iakhs from the respondents for the death of Rajanaika. who died in
the motor vehicie accident that occurred at about 3.20 P.M on
18.4.1999 near Daiagowdanahaiii on Hassan-Mysore road.
&
4. According to the case of the petitioners, the deceased
was doing the business of selling tender coconuts by the side ___of the
road near Dalagowdanahalli on Hassan-Mysore road;
13.4.1999 at about 3.30 PM while time said
crossing the road to go to the other__side.4the:'M'ai§ti*:Ca§"beadrag"V'
No.KA 13 5014 owned by respondent i«i¢.1:'%;reurée
No.3 came from Holenarsipur .driven' dri\}er_'respcndent.V: L'
No.2 in a rash and negligent rnan-ner~..and against the
deceased, as a resuit. the~ l'2ajr§;naik=a'L3tistained severe injuries
to which he later succumbed.:._itt.is'theiLr case' thet'the deceased was
the oniy i.'aitliF)t_4€:A!.td"V'on*-account of the untimely
deatlwjthey scubrce'_iot._livelii1ood.
5.=lnspite ~~of'notice of petition, respondents 1 and 2
have .r_emainedV_iabsent.i"v. Respondent No.3 upon service of notice.
-
" _ apfieared before thé"'ti"ibUnaI through ie counsel and contested the No.3 denied all the petition averments 'regarding.'.d?ieV..:'rnanner in which the accident is said to have occuiredethe age. avocation and the income of the deceasw. It * iflasjurther contended that the accident was due to the negligence of deceased himself. Respondent No.3 admitted the issuance of Policy in respect of the vehicle in question and its validity at the W time of the accident. However, it is contended that the liah_ility is subject to the terms and condifions of the Policy.
6. On the basis of the pleadings, the Tribunal. regarding actionable negligence and also regarding..'1entit%ement_:of'~» compensation by the petitioners.
7. On assessment of the oral and evidencelet--..L in by the parties, the learned"mVeinberV.ot fate. thy its it judgment under appeat hetd tl:ai.tthe'a:cpident was solelyidue to the negligence of the driver of the that view of the ' matter.' ite:ld~..'_'tl1at claimants are enfitled for compensation. * to the evidence on record the Tribunal a'n*arded.Va t'etal"°icompensation of Rs.3,32.090/- and diaret$ted---..:respondent"**lsle.3 to pay the said amount together with 6% from the date of petition till the date of payment. by the said judgement, the appellants have I presented this appeal.
A 8. Upon service of notice of appeal, respondents 1 to 5 and appeared through their counsel. Respondents 6 and 8 flwough served have remained unrepresented.
9. We have heard both sides and perused the recerds. W negligence attributed against him nor respondent No.3 has made any efforts to secure the presence of the driver before the Tribunal and to place his evidence before the Court. Theretore' regard to the unchallenged evidence on record, considered opinion that the Tribunal rehashriglafeiharoliifixatti tire accident was due to the negligence of the driver of the i*in_ our considered view. the tribunafras notcomrnitted'?a'r:3-..error inv ' recording this finding andthere are_i:nergr'oL%lndeh to interfeie with the said finding. _ _ _ $1. With regard to the" ot.vcorn_pensation, as could be seen _under appeal. the Tribunal has computed or the deceased at Rs.2,5G0l- and after.deductingl_:ti3FF".'--ofthel'eaid monthly income towards personal axoeiisee otthe and by applying the muitiplier of 16 hairirig to flee age of the deceased, has computed the loss of 7at}:Rs.3,20,%I- and has further awarded a sum of Rs.1'2;0iGf2f~Vunder conventional heads. Thus, in all the Tribunal it ~ awarded Rs.3,32,000I-.
" 12, From the records. it is noticed that the deceased was required to maintain himself, his wife and his aged mother and four minor children. The evidence of Pws. 1 and 2 that the deceased was setting tender coconut by the side of the road is not challenged. Having regard to the number of dependentsj'"on the deceased and the cost of iiving during the year said that the income of me deceased computed Rs.2.500f- is high. in our considerediview; the 7TrEbonte§'i;eevrii;h'ét;{ dd assessed the zeonthiy income of the deceaeedtvat appeiiant has not disputed the Vmnrritipiier e'doptedAtVby "'Frit$unai."' ' L' Having regard to due faets andAr.eirci;m'stenoee"omheiicase, the amount of compensation at Rs.3.32,000l- cannot be terme§§ne$_ exoeeeivelor."e;§o:fbitent:f The compensation assessed byttire 7i;f:rib_urrej* the faets' endvvtcircumstances of the case iejtiet ree§§onabte"end ttierefils no scope for Interference by thietzourt. 1'here§ore,'ri'e_.'no merit in this appeai. Accordinglytttheevnpeeil is dismissed. No order as to costs. 1 Judge Sdfiu Judge mv*