Karnataka High Court
National Insurance Co Ltd vs Smt Lakshmamma @ Lakshmidevamma on 10 January, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
M.F.A.No.7917/2013(MV)
BETWEEN:
NATIONAL INSURANCE CO. LTD.,
REGIONAL OFFICE,
NO.144, SUBHARAM COMPLEX,
M.G.ROAD, BANGALORE-560001.
REP. BY ITS DEPUTY MANAGER
MR.R.RAVI ..APPELLANT
(BY SRI LAKSHMINARASAPPA, ADVOCATE FOR SRI
SEETHARAMA RAO B C., ADVOCATE)
AND:
1 . SMT LAKSHMAMMA @ LAKSHMIDEVAMMA
AGED ABOUT 39 YEARS,
W/O LATE NARAYANASWAMY,
RESIDING AT VENKATAPURA VILLAGE,
THYAVANAHALLI POST,
KOLAR TALUK & DISTRICT.
2 . MISS.V.N.MALA
AGED ABOUT 21 YEARS,
D/O LATE NARAYANASWAMY,
RESIDING AT VENKATAPURA VILLAGE,
THYAVANAHALLI POST,
KOLAR TALUK & DISTRICT
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3 . MR.V.N.MADHU
AGED ABOUT 19 YEARS,
S/O LATE NARAYANASWAMY,
RESIDING AT VENKATAPURA VILLAGE,
THYAVANAHALLI POST,
KOLAR TALUK & DISTRICT
4 . SMT.LAKSHMAMMA
AGED ABOUT 68 YEARS,
W/O VENKATARAVANAPPA @ VENKATARAMANA
RESIDING AT VENKATAPURA VILLAGE,
THYAVANAHALLI POST,
KOLAR TALUK & DISTRICT
5 . SRI.A.S.BALU
S/O SHANKAR,
MAJOR
RESIDING AT NO.23, KACHARAKANAHALLI,
HENNUR MAIN ROAD, ST.THOMAS TOWN,
BANGALORE-560 096.
6 . SRI SELVAM E.
MAJOR
S/O ELUMALAI.C,
RESIDING AT NO.195, KARPAGA VINAYAGAR KOIL,
ST.SOMANGALAM,
CHENNAI,
TAMILNADU STATE-602101
(OWNER OF EICHER TEMPO
NO.TN.22/BK-1887)
7 . THE BAJAJ ALLIANZ GENERAL
INSURANCE CO. LTD.
NO.31, T.B.R. TOWER, 1ST CROSS,
NEW MISSION ROAD, J.C.ROAD,
BANGALORE-560 034.
(INSURER OF EICHER TEMPO
NO.TN.22/BK-1887) ..RESPONDENTS
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(BY SRI N GOPALAKRISHNA, ADVOCATE FOR R1-R4, SRI
H.S.LINGARAJU, ADVOCATE FOR R-7, NOTICE TO R-5 AND
R-6 DISPENSED WITH VIDE ORDER DATED 08.08.2017)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND
AWARD DATED 01.07.2013 PASSED IN MVC
NO.7922/2010 ON THE FILE OF THE VI ADDITIONAL
JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES,
BANGALORE, AWARDING COMPENSATION OF
RS.10,82,500/- WITH INTEREST @ 6% P.A. FROM THE
DATE OF PETITION TILL REALIZATION.
THIS MFA COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Appeal is directed against the Judgment and award dated 01.07.2013 passed in MVC No.7922/2010 by the VI Additional Judge, Member, MACT, Court of Small Causes, Bangalore, wherein claim petition came to be allowed in part and compensation of Rs.10,82,500/- with interest at the rate of 6% p.a. from the date of petition till realization came to be granted to the petitioners. Being 4 aggrieved by the said Judgment and award insurance company has preferred this appeal.
2. In order to avoid confusion and overlapping, parties are referred to as per their rankings before the Tribunal.
3. Facts leading to filing of claim petition are as under:
On 01.08.2010 at about 10.15 A.M. Narayanaswamy was going to Kailanoor Silk Cocoon Market from his village on Bajaj Chethak Scooter bearing registration No.KA-40-E-3436 on the left side of the road between Singahalli and Kurugal gate on Kolar-Chikkaballapur Road, the driver of Eicher goods tempo bearing registration No.TN-22-BK-1887 came from same direction in a rash and negligent manner and dashed to the rear side of the Scooter and Narayanaswamy lost control over the vehicle and fell 5 on the road and at that time TATA Indica Car bearing registration No.KA-05-MV-5665 came from opposite direction i.e., `H' Cross road side in a rash and negligent manner and dashed violently against Narayanaswamy, the wheels of the said car ran over Narayanaswamy and he sustained injuries and succumbed to them on the spot. Legal representatives of Narayanaswamy who are stated to be wife, two children and parents have filed the claim petition.
4. Learned Member adjudicated the matter considering the aspects of negligence, accident, loss of dependency and the related and was accommodated with oral evidence of PW-1-Smt.Lakshmamma and documentary evidence Exhibits P-1 to P-15 on behalf of the claimants and oral evidence of one RW-1- 6 B.R.Shilpa and documentary evidence Exhibit R-1 on behalf of respondent-insurance company.
5. Learned Member considered the monthly income of deceased Narayanaswamy stated to be an agriculturist and Mason, silk worm rearer's licence, at Rs.5,000/- with future prospects at 50%. 1/4th is deducted for personal and living expenses and compensation of Rs.70,000/- is awarded towards conventional heads.
6. Learned counsel for appellant-insurance company- Sri Lakshminarasappa would submit that the monthly income is considered at higher level, besides future prospects are also considered at a higher scale and personal and living expenses is considered more and it should have been 1/3rd as against 1/4th.
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7. Learned counsel would also submit that the admitted facts of the road traffic accident are that a goods tempo bearing registration No.TN-22-BK-1887 first dashed against the Scooter from the rear side and the Scooter rider Narayanaswamy fell down and it was at that time the offending vehicle car came from the opposite side and ran over the body wherein wheels of the offending vehicle crushed head and Narayanaswamy was dead.
8. Per contra, learned counsel Sri Gopalakrishna for claimants would submit that the liability is rightly saddled and the offending vehicle was responsible for the accident and consequently death of Narayanaswamy.
9. On considering the dependents who have preferred the claim petition petitioner No.1 is wife of 8 Narayanaswamy and petitioners No.2 and 3 are children and petitioners No.4 and 5 are parents of Narayanaswamy. As the claim petition is filed by five persons, deduction towards personal expenses is rightly considered at 1/4th.
10. Insofar as future prospects are concerned admittedly Narayanaswamy was agriculturist, Mason, silk worm rearer. In the circumstances insofar as monthly income is considered at Rs.5,000/-. However, the income that was earned by him would not have been branded as a permanent assured income for reckoning `future prospects'. As such the principles laid down in NATIONAL INSURANCE CO., VS PRANAY SETHI reported in 2017 (16) SCC 680 by the Hon'ble Supreme Court should have been followed wherein the future prospects under similar circumstances has been considered at 40%. Further 9 regarding saddling of liability the learned Member has rightly ordered to pay the compensation by insurer of offending vehicle -car.
11. It is in this connection learned counsel Sri Lakshminarasappa would submit that the very negligence prima facie on the driver of goods tempo bearing No.TN-22-BK-1887 which is stated to have dashed the scooter from the rear side because of which Narayanaswamy scooter rider fell down and car from opposite side came in a rash and negligent manner and ran over Narayanaswamy. Learned Member should have saddled the liability on the driver of the goods tempo as it was his negligence which triggered the accident.
12. Learned counsel H.S.Lingaraju appearing for 7th respondent -Bajaj Allianz General Insurance Company Ltd., opposes the same.
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13. Negligence is a breach of legal duty to take care of one self and others as well. It's a sheer indifferent attitude a don't care mentality being least bothered about consequence or inaction and that even negligence volunteering for the acts and hazards very often will be a question of fact.
14. The subsequent development after filing of appeal is that memo came to be filed by the appellant on 29.06.2017 and came before the board on 08.08.2017 and the contents of the memo is as under:
"Undersigned Advocate for the appellant respectfully submits that the appellant is not seeking any relief against the 5th and 6th respondents in this appeal and the summons issued to the 5th and 6th respondents herein in Trial Court is served and they were placed exparte. Hence the 11 notice of this appeal in respect of 5th and 6th respondents may kindly be dispensed with in the interest of justice."
15. Thus, memo was filed on the ground respondents 5 and 6 were set exparte before the Tribunal. Hence appellant-insurance company chose to file a memo dispensing notice to respondents 5 and
6. Said respondents 5 and 6 under appeal are
5.A.S.Balu, S/o Shankar, owner of car 6.Selvam owner of Eicher Tempo. Thus, by virtue of memo it is clear that appellant has not claimed any relief against the owners-respondent Nos.1 and 3 before the Tribunal and respondents 5 and 6 before this court. Respondent No.4 before the Tribunal is Bajaj Insurance Company Limited and respondent No.7 before this court. Thus, learned Member saddled the liability in entirety on respondents 1 and 2 before the Tribunal who are none other than A.S.Balu owner 12 (respondent No.5 before this court) and National Insurance Company, the insurer-appellant.
16. When the appellant- insurance company has gone on record by filing a memo for dispensing notice to respondents 5 and 6 in the appeal being A.S.Balu, owner of car and Selvam owner of tempo. Thus, consideration of liability on respondent No.6 -Selvam does not arise as notice is dispensed. Insofar as respondent No.7 -Bajaj Allianz General Insurance Company Ltd., respondent No.4 before the Tribunal is the respondent No.7 in this appeal and National insurance company-appellant cannot be selective on the parties to hold liability by exonerating the owner of the tempo No.TN-22-BK-1887 by holding the insurer of tempo liable. However final report was filed against the driver of the car No.KA-05-MV-5665. Thus, I do not find the accident, fixing of liability and 13 compensation has to be reconsidered. They deserve to be maintained.
17. Now total amount of compensation granted is Rs.10,82,500/- on the basis of considering monthly income Rs.5,000/- and adding 50% towards future prospects, deducting 1/4th towards personal and living expenses and conventional heads Rs.70,000/- as under:
SL.NO. DESCRIPTION AMOUNT
1. Loss of dependency Rs.10,12,500/-
2. Loss of love and affection Rs. 30,000/-
3. Transportation of dead Rs. 20,000/-
body and funeral and
obsequies expenses
4. Loss of consortium Rs. 20,000/-
Total Rs.10,82,500/-
18. In the above consideration of compensation a relook requires to be given regarding future prospects as deceased Narayanaswamy was stated to be an agriculturist and a mason. Future prospects should 14 have been restricted to 40% as against 50%. Thus the restructuring of compensation on loss of dependency would be:
Income Rs.5,000+40% future prospects- Rs.2,000/-
5,000+2,000=7,000 Less: 1/4th towards personal and living expenses Rs.1,750 =7,000-1750 =5,250/- Rs.5,250x12=63,000x15=Rs.9,45,000/- Add: conventional heads Rs. 70,000/-
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Total Rs.10,15,000/-
19. Thus, the error committed in reckoning the future prospects deserves to be reduced to 40% as against 50%. On such restructuring the fair and just compensation would be as stated above. 15
20. Learned Member though was right in allowing the claim petition in part erred in awarding the compensation as per the principles.
21. Thus, amount of Rs.67,500/- deserves to be reduced from the total compensation.
Hence, the following:
ORDER Appeal is partly allowed. Judgment and award dated 01.07.2013 passed in MVC No.7922/2010 by the VI Additional Judge, Court of Small Causes, Bengaluru, is modified by reducing the compensation by Rs.67,500/-.
Insurance company -appellant is directed to deposit the compensation amount with interest @ 6% p.a. within four weeks from the date of receipt of certified copy of this order. 16
Amount in deposit if any be transmitted to the jurisdictional Tribunal.
Sd/-
JUDGE SBN