Karnataka High Court
The Branch Manager, National Insurance ... vs Shri.Gangadhar S/O Veerappa ... on 23 July, 2012
Bench: N.Kumar, H.S.Kempanna
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
Dated this the 23rd day of July 2012
Present
THE HON'BLE MR.JUSTICE N.KUMAR
and
THE HON'BLE MR.JUSTICE H.S.KEMPANNA
M.F.A No. 22339/2009
C/W
M.F.A No.22475/2009
IN M.F.A No.22339/2009:
Between:
The Branch Manager,
National Insurance Co.Ltd.,
Branch Office, Munavalli Complex,
Laxmi Temple Road Gokak Rep. By its
Divisional manager,
Divisional Office, Sujata Complex,
P.B Road, Hubli,
Dr. M Venkata Subba Rao,
Divisional Manger, National Insurance Co.Ltd.,
Divisional Office, Hubli.
...Appellant
(By Sri. S.V Yaji for
Sri. Laxman B Mannoddar, Advocates)
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And:
1. Shri. Gangadhar
S/o. Veerappa Karaveershettar,
Age: 54 Years, Occ: Business,
R/o. Javalisal,
Hubli.
2. Mr. Santosh
S/o. Gangadhar Karaveershettar,
Age: 26 Years, Occ: Student,
R/o. Javalisal, Hubli.
3. Kumari Krutika
D/o. Gangadhar Karaveershettar,
Age: 21 Years, Occ: Student,
R/o. Javalisal, Hubli.
4. Mahesh Satyagouda Patil,
Age: 37 Years, Occ: Business,
R/o. S.No.3, H.No.410,
Shivabasava Nagar,
Belgaum.
5. H. Laxminarayan,
Age: Major, Occ: Business,
R/o. Opposite Gokak Resorts,
Falls Road, Gokak.
...Respondents
(By Sri. Dinesh M Kulkarni for R.1,
Sri. C.P Patil for R.4,
Service held sufficient in respect of R.5)
--------
This appeal is filed under Section 173(1) of MV act
against the judgment and award dated 27.05.2009
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passed in MVC No.486/2006 on the file of the I Addl.
Civil Judge (Sr.Dn.) & Addl. Motor Accident Claims
Tribunal, Hubli, awarding compensation of
Rs.12,72,500/- with interest @ 6% P.A. from the date of
petition till deposit.
IN M.F.A No.22475/2009:
Between:
1. Sri. Gangadhar
S/o. Veerappa Karaveerashatter,
Age: 54 Years, Occ: Business,
R/o. Javalisal, Hubli.
2. Sri. Santosh
S/o. Gangadhar Karaverashettar,
Age: 23 Years, Occ: Student,
R/o. Javalisal, Hubli.
3. Kumari Krutika
D/o. Gangadhar Karaverashettar,
Age: 21 Years, Occ: Student,
R/o. Javalisal, Hubli.
... Appellants
(By Sri. Dinesh M Kulkarni Adv. for R.1 is served)
And:
1. Sri. Mahesh Satyagouda Patil,
Age: 40 Years, Occ: Business,
R/o. S.No.3, H.No.410,
Shivabasav Nagar, Belgaum,
Driver of the Car No.KA-22/M-8126.
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2. Sri. H Laxminarayan, Age: Major,
Occ: Business,
R/o. Opposite Gokak Resorts,
Behind Shollapurmath, Advocate's House,
Falls Road, Gokak, Dist: Belgaum-591 307,
R.C Holder of the Car No.KA-22/M-8126.
3. The Branch Manager,
National Insurance Co.Ltd.,
Branch Office, Munavalli Complex,
Laxmi Temple Road, Gokak,
Represented by its Divisional Manager,
Divisional Office, National Insurance Co. Ltd.,
Sujatha Complex, P.B. Road, Hubli,
Insurer of the Car No.KA-22/M-8126
Bearing policy No.602602/31-04/6102330 valid
upto 02.11.2005.
... Respondents
(By Sri. S.V yaji for Laxman B Mannoddar for R.3,
Notice to R.2 is dispensed with)
--------
This appeal is filed under Section 173(1) of MV Act
against the judgment and award dated 27.05.2009
passed in MVC No.486/2006 on the file of the I Addl.
Civil Judge (Sr.Dn.) & Addl. Motor Accident Claims
Tribunal, Hubli, partly allowing the claim petition for
compensation and seeking enhancement of
compensation.
These appeals coming on for orders this day,
N.Kumar, J, delivered the following:
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JUDGMENT
These two appeals are filed against the very same judgment and award of the Tribunal and, therefore, they are taken up together for consideration and disposed of by this common order.
2. M.F.A. No.22339/2009 is filed by the insurance company challenging the liability as well as the quantum of compensation awarded by the Tribunal, whereas M.F.A. No.22475/2009 is preferred by the claimants seeking enhancement of compensation.
3. For the purpose of convenience, the parties are referred to as they are referred to in the claim petition before the Tribunal.
4. The 1st claimant is the husband and claimants 2 and 3 are the children of one Smt.Leela Karaveerashettar. On 11.07.2005, she along with her family members had been to Ambuli at Kolhapur :6: District to see the water falls in a car bearing No.KA- 22/M-8126 belonging to the 2nd respondent. While returning from Ambuli to Belgaum, the driver of the car
- respondent No.1 drove the vehicle in a rash and negligent manner at a high speed, lost control over the vehicle and dashed to a tree on the right side of the road. Smt. Leela Karaveerashettar sustained grievous injuries. Immediately, she was shifted to Chandgad Hospital and from there she was shifted to KLE Hospital, Belgaum. She went into coma for nearly one year. Ultimately, she succumbed to the injuries and died while undergoing treatment, on 03.08.2006.
5. The claimants preferred a claim petition seeking compensation of Rs.70,00,000/-. After service of notice, respondent Nos.1 and 2 did not contest the matter, they did not appear, therefore, they were placed ex-parte. It is only the insurance company - respondent No.3 contested the matter by filing a detailed written :7: statement; they denied all the allegations in the claim petition; however, they did not dispute the insurance coverage to the car in question. Their specific case was, the driver of the car was carrying more persons as against the permitted number of passengers; that was the cause for the accident; he had driven the vehicle without having a valid and effective driving licence on the date of the accident; there is violation of policy conditions and they are not liable to pay any compensation. Therefore, they sought for dismissal of the claim petition.
6. On the aforesaid pleadings, following issues were framed by the Tribunal for its consideration:
"1. Whether the petitioners prove that on 117.2005 at about 3.30 p.m. at Ambolli via Vegulra, Belgau, while thedeceased Smt. Leela W/o.Gangadhar Karaveershettar along with family members was travelling in a car bearing No.KA 22/M-8162, the driver of the said car drove the same in rash and negligent manner and went off the road and thereby dashed to a tree and thereby deceased :8: sustained grievous injuries and died on 13.08.2006 due to accidental injuries?
2. Whether the respondent No.3 proves that the driver of car was not holding valid and effective driving licence on the date of accident?
3. Whether respondent No.2 proves that the respondent No.1 has violated the policy conditions?
4. Whether the petitioner is entitled for the relief sought?
5. What award or order?
Addl. Issue No.1: Whether the respondent No.3 Insurance Company proves that as the vehicle involved in a accident is a private car as such Insurance Company do not cover the risk of the inmate of the private car, hence not liable to pay the compensation?"
To substantiate their claim, the 1st claimant was examined as P.W.1, the 3rd claimant-Kumari Krutika was examined as P.W.2 and Dr. Suresh Duggani, who treated the deceased, was examined as P.W.3. Claimants also produced 44 documents which are marked as Exs.P.1 to P.44. On behalf of the respondent, :9: an Official of the insurance company was examined as R.W.1 and insurance policy was marked as Ex.R.1.
7. The Tribunal, on consideration of the aforesaid oral and documentary evidence on record, held that the accident was on account of the rash and negligent driving by the 1st respondent - the driver of the car, and therefore, the claimants have established the actionable negligence and are entitled to compensation. The said finding is not challenged in appeal by the insurance company and, therefore, the said finding is affirmed.
8. Insofar as the driver of the vehicle not holding a valid driving licence is concerned, the driving licence is produced as Ex.P.23. It shows that the 1st respondent was holding a valid driving licence to drive motor car valid upto 19.01.2007. The driving licence was issued in the year 1991-92 bearing No.1887/91-92. Therefore, the driver of the car had a valid driving licence as on the date of the accident and the contention to the contrary : 10 : taken by the insurance company is disproved. The seating capacity of the car is 1 + 4. Admittedly, including the driver, three adult members and 3 minor children were proceeding with the parents. Therefore, it cannot be said that more persons had occupied the car. Moreover, only one claim petition is filed claiming compensation. Others did not file claim petition seeking compensation. Therefore, the insurance company is not liable to pay the compensation.
9. While assessing the damages under the head 'loss of dependency', the Tribunal took note of the evidence, which shows that the deceased was running a business and also employed in Camlin Limited earning Rs.5,303/- per month and Rs.5,000/- per month from Sanskruti Arts. Totally, she was earning Rs.10,303/- per month. The evidence of P.W.1 shows that his wife had visited Srilanka and China through Chamber of Commerce, Hubli, and he had invested huge amount in : 11 : the business of his wife; due to her sudden death heavy loss was caused to the family and petitioners 2 and 3 lost her love and affection. To prove that deceased was running a business in handicrafts under the name and style Sanskruti Arts, petitioners produced Ex.P.13, the certificate of imports and exports issued from Ministry of Commerce evidencing that in the building belonging to P.W.1 that business was started. Ex.P.14 is the permanent registration certificate issued from the Directorate of Industries that deceased Leela G.Karaveershettar had started business in handicrafts of Sanskruti Arts. Ex.P.15 is the registration certificate obtained from Registrar, Dharwad. Ex.P.16 is the certified copy of the memorandum of association evidencing that deceased was actively running the business and Ex.P.17 is the certificate of training issued in favour of Smt.Leela G.Karaveershettar by Small Industries Organisation. Ex.P.18 is the intimation under Section 143(1) of the Income Tax Act that she is an : 12 : income tax assessee and Ex.P.19 is the passbook obtained from the Corporation Bank. Ex.P.20 is the passport evidencing that she had visited other countries in connection with handicraft business and to promote the same. Ex.P.21 and 22 are the photographs showing that deceased was a professional in handicraft business and P.W.1 has stated that she has trained several persons in Hubli city. Exs.P.26, 27 and 28 are 'Praja Vani', 'Deccan Herald' and 'Sanje Darpan' news papers which had reported the death of Leela Karaveershettar stating that she was a woman of high entrepreneurship and she has created many people by giving training in the business of handicrafts. Ex.P.18 is the income tax returns, the income from retainer-ship as promoters from Camlin Limited was shown at Rs.48,000/-. This returns is submitted on 25.02.2003 by the deceased. The balance-sheet showed was for the year 2002 and Ex.P.39 is the Saral Form submitted for the year 2004. Ex.P.40 is the different letters showing receipt of : 13 : Demand Drafts from Camlin Limited towards reimbursement of sale promotion expenses. Ex.P.41 is the bank passbook issued from Bank of Maharashtra and Corporation Bank. In fact, there is no clear evidence of her income on the date of her death. In those circumstances, the Tribunal taking into consideration all the aforesaid documents came to the conclusion that, moderately, income of the deceased can be taken at Rs.6,000/- per month, and deducting 1/3rd towards her personal expenses, applying multiplier of 13 awarded a sum of Rs.6,24,000/- under the head 'loss of dependency'. Tribunal also awarded a sum of Rs.20,000/- to the claimants towards loss of love and affection, Rs.15,000/- towards loss of estate and Rs.10,000 towards funeral and transportation of dead body.
10. Insofar as the medical expenses is concerned, she was shifted to KLE Hospital where she took : 14 : treatment to her head injuries as an in patient; she was operated upon; from 11.05.2005 to 17.09.2005 she was in intensive care unit on ventilator and from 17.09.2005 to 14.11.2005 in special ward in KLE Hospital, Belgaum; from 14.11.2005 to 11.02.2006 at SDM Hospital, Dharwad, and again from 18.03.2006 to 11.04.2006 in KLE Hospital and ultimately, she succumbed to the death on 13.08.2006 as is clear from Exs.P.4 to P.10. The hospital bills, operation charges, prescription produced in 10 sets which are marked at Exs.P.29 to P.38 amounts to Rs.6.03,537/-. The doctor who treated the deceased was examined as P.W.3. Therefore, Tribunal awarded a sum of Rs.6,03,500/- towards medical expenses i.e., in all, a sum of Rs.12,72,500/- was awarded as compensation to the claimants.
11. Insofar as additional issue No.1 is concerned i.e., whether the occupants of the private car are : 15 : entitled to compensation for the death or injury, Tribunal relied on various judgments and referred to Sections 141 and 147 of the Motor Vehicles Act and then looked into Ex.R.1, which is package policy issued by the insurance company. The schedule of particulars of the policy shows that T.P.Basic Rs.500/-, P.A. to unnamed passenger No.3 of Rs.75/-, compulsory P.A. to owner and driver Rs.100/-, W.C. to employee Rs.25/- was recovered. Therefore, premium for three passengers apart from owner and employee is covered. Relying on the same, the tribunal was of the view that claimants are entitled to compensation for the death of the deceased who was a passenger in a private car.
12. Aggrieved by the said judgment and award, the insurance company as preferred the appeal challenging both the liability as well as the quantum, whereas the claimants have preferred the appeal seeking enhancement of compensation.
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13. The learned counsel for the insurance company assailing the impugned judgment and award contends, admittedly, the deceased was traveling as a passenger in a private car, she is not third party and therefore, her risk was not covered under the insurance policy and the Tribunal committed serious error in foisting the liability on the insurance company. Secondly, he contended that the evidence on record shows that the 1st claimant is the husband of the deceased was an industrialist; he was not dependent on his wife for his living; claimants 2 and 3 are the major children of the deceased who are also not dependant on the deceased for the living, therefore, awarding of compensation under the head of loss of dependency is erroneous and requires to be set aside. Even otherwise, he contends that the income of Rs.6,000/- per month taken by the Tribunal is without any basis and arbitrary and is on the higher side. Therefore, he submits that the compensation awarded has to be avoided; at least, it : 17 : has to be reduced. He also contended that only 1/3rd has been deducted towards personal expenses of the deceased and not 50%. For the aforesaid reasons, he wants the appeal to be allowed and set aside the award passed by the Tribunal.
14. Per contra, learned counsel appearing for the claimants submitted that evidence on record shows that the deceased was having income of Rs.10,000/- per month and that being the case without any justification, the Trial Court committed serious error in taking her income as Rs.6,000/- per month. Therefore, he submits that a case for enhancement of compensation is made out.
15. In the light of the aforesaid facts and rival contentions, the points that arise for our consideration in these appeals are as under:
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i) Whether the insurance company was liable to pay compensation in respect of death of a passenger of a private car?
ii) Whether the claimants were entitled to compensation under the head 'loss of dependency'?
iii) Whether the compensation awarded is on the higher side or is it inadequate as contended by the claimants?
16. The evidence on record shows that the car was duly insured. The policy-Ex.R.1 which was issued is not a mere policy issued under Section 147 of the Act. Ex.R.1 is a package policy. The schedule of the particulars of the policy shows that TP Basic Rs.500/-, P.A. to unnamed passenger No.3 of Rs.75/-, compulsory P.A. to owner and driver Rs.100/-, W.C. to employee Rs.25/- was recovered. That means apart from the driver and the employee, the risk of three passengers travelling in the car was covered under the insurance : 19 : policy. Therefore, the Tribunal, on careful consideration of the aforesaid documentary evidence coupled with the law on the point, has rightly held that the insurance policy covers the risk of passenger of a private car and the insurance company is liable to answer the claim of the claimants under Section 149(1) of the Act.
17. The evidence on record shows that the 1st claimant is an industrialist. May be he was not dependent on his wife for living in that sense. Claimants 2 and 3 though they are majors, they are children; they are studying; they were certainly dependent on mother apart from their father who is the 1st claimant. Merely because they had attained majority on the date of filing of the claim petition, it cannot be said that they were not dependent on their deceased mother. Even otherwise, as held by this Court in the case of A.MANAVALAGAN VS. A.KRISHNAMURTHY AND OTHERS reported in ILR 2004 KAR 3268, the law contemplates : 20 : two categories of damages on the death of a person. The first is, pecuniary loss sustained by the dependent members of his family. The second is, loss caused to the estate of the deceased. In the first category, action is brought by legal representatives as trustees for the dependants beneficially entitled. In the second category, action is brought by legal representatives on behalf of the estate of the deceased and the compensation, when recovered, forms part of the assets of the estate. The basis for awarding of compensation in the case of loss of dependency is as to what was contributed by the deceased to such claimants. In such cases, a conventional amount is awarded towards loss of expectation of life under the head loss of estate. However, when the basis for award of compensation is the loss to estate i.e., the loss of savings by the deceased a conventional sum for loss of expectation of life is also added in such cases. Therefore, whether compensation is awarded under the head 'loss of : 21 : dependency' or under the head 'loss to the estate, the pecuniary loss to estate is calculated on the same basis. The difference arises in the question of distribution of the amount awarded. Here, the Court has ample power to direct payment of compensation among the claimants depending upon the level of dependency of those persons, whereas in the case of loss of estate, the amount of compensation is payable according to the law of succession. Insofar as the quantum of compensation is concerned, the criteria for calculating the compensation is one and the same. In that view of the matter, we do not see any substance in the contention of the learned counsel for the insurance company that as the husband was not depending on the wife and husband was there to take care of his children and they being the majors, compensation awarded under the head 'loss of dependency' is erroneous, In fact, it makes no difference, as the same amount is payable under the head 'loss of estate'.
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18. That takes us to the next question, whether the amount of compensation awarded is excessive as contended by the insurance company or inadequate as contended by the claimants. In other words, what is the just compensation payable under the Act for the death of the deceased to the claimants. We have set out about the various documents produced to substantiate the claim by the claimants. The said documents disclose that the deceased was an upcoming entrepreneur; she is well known personality in Hubli; she was training people in handicrafts; she has visited China and Sri Lanka in connection with the business; her husband had invested huge amount in her business; she was an income-tax assessee and, unfortunately, this accident put an end abruptly to the upcoming young lady entrepreneur. The income-tax record shows that she was roughly earning about Rs.10,000/- per month, but the income-tax record is only of one year 2003-04 two years prior to her death. : 23 : Income-tax returns for the year 2004-05 is not produced. As rightly pointed by the Tribunal, there is no clear and clinching evidence as to actual income of the deceased. It is in those circumstances, on a moderate estimation, the Tribunal took the income at Rs.6,000/- per month. The grievance of the insurance company is, even that amount of Rs.6,000/- should not have been taken. The grievance of the claimants is, income should have been taken at Rs.10,000/-. We do not find any substance in either of these contentions. The evidence on record shows that the deceased has obtained requisite registration certificates from all governmental agencies; she was carrying on the business in handicrafts; she was training people; she was well-known in the circle and therefore, in the course of time, if only she had been alive, her income would have increased multi-fold and what is reflected in the income-tax returns for the year 2003-04 would only show the income which she was earning at the : 24 : initial stage of her career as a business entrepreneur. These factors cannot be lost sight of. At the same time, in the absence of any clinching evidence about the returns, it is not possible for us to imagine. It is well settled law that whatever may be the earning capacity and the income earned from such business, the uncertainties of life also have to be kept in mind. When these factors are kept in mind, in our view, the Tribunal was justified in arriving at the income of Rs.6,000/- as the basis for calculating the total loss of dependency / loss to the estate and no case for interference with the finding of the Tribunal on the said question of fact, based on legal evidence, supported by good reason, is made out.
19. Insofar as the contention that the Tribunal committed an error in taking 1/3rd and not half is concerned, it is without any substance. It is only in case where the deceased is a son or daughter, who is : 25 : not married, and the claimants are the parents, the age of the parents is taken into consideration. In such cases, normally, as a rule, 50% of the income earned by the deceased is deducted towards the personal expenses of the deceased. But, in cases where the dependants are the wife or husband and children, the minimum that could be deducted is only 1/3rd and therefore, the Tribunal committed no illegality in deducting 1/3rd and in not deducting half as contended by the learned counsel for the insurance company. Insofar as the compensation awarded under other heads is concerned, they are just and supported by legal evidence and do not call for any interference. In the result, we do not see any justification to interfere with the well-considered judgment and award passed by the Tribunal. Hence we do not see any merit in these appeals. Accordingly, we pass the following: : 26 :
ORDER
i) Both the appeals are dismissed.
ii) The High Court Registry is directed to transmit the amount deposited by the insurance company at the time of filing the appeal as well as the amount deposited in terms of the interim order of this Court to the Tribunal forthwith for being distributed to the claimants in terms of the awarded passed by the Tribunal.
iii) Parties to bear their own costs.
SD/-
JUDGE SD/-
JUDGE Kms