Karnataka High Court
United India Insurance Co Ltd vs Smt Anasawwa W/O Late Mallappa Kuri on 21 April, 2017
Author: K.Somashekar
Bench: K.Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21st DAY OF APRIL 2017
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
MFA NO.20386/2009 (MV)
C/w
MFA No.20385/2009 (MV)
MFA NO.20386/2009:
BETWEEN:
United India Insurance
Company Ltd.,
Koppal DO
Through its Divisional Office,
LEA Complex, Dharwad.
Rep. By its Divisional Manager,
Sri. Anand Kumar. ... Appellant
( By Shri. N.R. Kuppelur, Advocate)
AND:
1. Smt. Anasawwa,
Aged about 28 years,
W/o. Late Mallappa Kuri,
2. Kum. Muttawwa,
D/o. Late Mallappa Kuri,
Aged about 4 years,
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3. Kum. Savitrawwa,
D/o. Late Mallappa Kuri,
Aged about 8 years,
4. Kum. Siddawwa,
D/o. Late Mallappa Kuri,
Aged about 9 years,
5. Kum. Ratnawwa,
D/o. Late Mallappa Kuri,
Aged about 10 years,
6. Kum. Sasikala,
D/o. Late Mallappa Kuri,
Aged about 11 years,
7. Sri. Mudiyappa,
S/o. Hanumappa Kuri,
Aged about 66 years,
8. Smt. Laxmawwa,
W/o. Mudiyappa Kuri,
Aged about 66 years,
Since Respondents 2 to 6
are minors, they are
represented by their mother
i.e., first respondent herein.
9. Sri. Mailarappa,
S/o. Parappa Tondihal,
Aged about 36 years,
(owner of T-T unit
No. KA.37/T-6342-6343)
10. Sri. Ningappa,
S/o. Veerabhadrappa Barker,
Aged about 29 years,
Driver of the T-T Unit
No. KA.37/T-6342-6343)
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All are residents of Kallur,
Taluk: Yelburga, Dist: Koppal. : Respondents
(By Shri. Harish S. Maigur, Advocate for R-1 to R8
Shri. A.S. Patil & D.V. Pattar, Advocate for R9
Ningappa , R10 served)
This MFA is filed under Section 173(1) of M.V. Act
against the judgment and award dated 30.07.2008 passed in
MVC.No.527/2007 on the file of the Civil Judge (Senior
Division), Yelburga, awarding compensation of Rs.4,23,000/-
with interest at 9% p.a from the date of petition till its
realization.
In M.F.A. No.20385/2009:
BETWEEN:
United India Insurance
Company Ltd.,
Koppal DO
Through its Divisional Office,
LEA Complex, Dharwad.
Rep. By its Divisional Manager,
Sri. Anand Kumar. ... Appellant
( By Shri. N.R. Kuppelur, Advocate)
AND:
1. Smt. Yamanawwa @ Yamanabi,
Aged about 30 years,
W/o. Late Dawalsab Pinjar,
2. Kum. Jubeda Begum,
D/o. Late Dawalsab Pinjar,
Aged about 7 years,
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3. Kum. Reshma Begaum,
D/o. Late Dawalsab Pinjar,
Aged about 12 years,
4. Kum. Nafiza Begum,
D/o. Late Dawalsab Pinjar,
Aged about 14 years,
5. Chi. Rajasab,
S/o. Late Dawalsab Pinjar,
Aged about 15 years,
6. Smt.Kajamma,
W/o Fakirsab Pinjar,
Aged about 86 years,
Respondents No. 2 to 5 are
Minors represented by
Their mother Respondent No.1
7. Sri. Mailarappa,
S/o. Parappa Tondihal,
Aged about 36 years,
(Owner of T-T unit
No. KA.37/T-6342-6343)
8. Sri. Ningappa,
S/o. Veerabhadrappa Barker,
Aged about 29 years,
Driver of the T-T Unit
No. KA.37/T-6342-6343)
All are residents of Kallur,
Taluk: Yelburga, Dist: Koppal. :Respondents
(By Shri. Harish S. Maigur, Advocate for R-1 to R6
Shri. A.S. Patil & D.V. Pattar, Advocate for R7
Ningappa R8 served)
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This MFA is filed under Section 173(1) of M.V. Act
against the judgment and award dated 30.07.2008 passed in
MVC.No.526/2007 on the file of the Civil Judge (Senior
Division), Yelburga, awarding compensation of Rs.4,23,000/-
with interest at 9% p.a from the date of petition till its
realization.
These appeals are coming on for hearing this day, the
Court delivered the following:-
JUDGMENT
Being aggrieved by the impugned judgment and award dated 30.07.2008 passed by the Civil Judge (Senior Division) and MACT, Yelburga in MVC.No.527/2007 and MVC No. 526/2007 respectively, the insurance company has filed these two appeals questioning the liability fastened on it to pay the compensation as well as quantum of compensation awarded.
2. For the sake of convenience, the parties are referred to as per their rank before the Tribunal. As these two appeals arose out of the same accident involving the same vehicle, they are clubbed, heard together and disposed of by this common judgment.
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3. The facts of the case are that on 17.06.2007 at about 03.00 p.m., when the deceased Mallappa and Dawalsab Pinjar were travelling in a Tractor bearing registration No. KA- 37/T-6342 as Coolies under respondent No.2, the owner of the said Tractor, respondent No.3, the driver of the Tractor drove the same in a rash and negligent manner with high speed suddenly applied breaks. Due to the impact, the vehicle turtled and both Mallappa and Dawalsab sustained grievous injuries all over the body and died in the hospital. Hence, the claim petitions were filed under Section 166 of M.V. Act claiming compensation of Rs.17 Lakhs by the dependants/heirs of the deceased persons.
4. After service of notice, the insurer, owner and driver of the offending vehicle filed written statement and contested the claim petition. In support of their claims, the claimants in MVC. No. 527/2007 examined PWs. 1 & 2 and got marked Ex.P.1 to P.6. Whereas the claimants in MVC. No.526/2007 two witnesses as PWs. 1 & 2 and got marked Exs.P.1 to P6. No evidence either oral or documentary was let in on behalf of the respondents.
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5. Based on the pleadings of the parties, the Tribunal framed the following issues:
In MVC: 527/2007
1) Whether the petitioners prove that on 17.06.2007 at about 03-00 p.m., on Kallur to Yelburga road driver of the vehicle bearing No.KA-37/T-6342 driven the said vehicle in a rash and negligent manner and thereby caused the death of Mallappa?
2) Whether the petitioner is entitled for compensation?
If yes, how much from whom?
In MVC: 526/2007
1) Whether the petitioners prove that on 17.06.2007 at about 03-00 p.m., on Kallur to Yelburga road driver of the vehicle bearing No.KA-37/T-6342 driven the said vehicle in a rash and negligent manner and thereby caused the death of Dawalsab Pinjar?
2) Whether the petitioner is entitled for compensation?
If yes, how much from whom?
6. The Tribunal, after evaluation of the oral and documentary evidence has held that the accident had occurred due to rash and actionable negligent driving of the :8: driver of the offending vehicle and consequently awarded the total compensation of Rs.4,23,000/- in both the cases, with interest at 6% per annum from the date of petition till the date of realization under the following heads:-
Sl. Headings Amount
No Rs.
1 Loss of dependency 3,84,000
2 Loss of consortium 10,000
3 Loss of love and affection 10,000
4 Loss of expectation of life 10,000
5 For loss of funeral and 06,000
obsequies ceremonies
6 For transportation of dead 03,000
body
TOTAL 4,23,000
Heard the learned counsel for the appellant- insurer and the learned counsel for the respondents and perused the records.
7. Sri. N.R. Kuppellur, learned counsel for the appellant-insurer in both these appeals drawing the attention of the Court to the First Information Report Ex.P.1 contended that on the date of the accident, both the deceased persons were travelling on the mudguard of the Tractor, as an unauthorized passengers and they were not engaged as :9: coolie, in order to attend the field work and therefore, there is a violation of the terms and conditions of the policy.
8. He further contended that the driver of the vehicle has violated the Regulation-28 of the Road Regulations, 1989 and that the risk of such person is not covered under the policy and therefore, the Tribunal grossly erred in fastening the liability on the appellant and it ought to have vicariously fastened the liability on the owner of the offending vehicle. As regards the quantum of compensation, he contended that the Tribunal erred in applying the multiplier 16, however, there was no dispute as regards the compensation awarded under other heads. In support of his submission, he placed reliance on the Division Bench decision of this Court rendered in the case of Oriental Insurance Company Ltd., Bangalore -vs- Shoba @ M.S. Rajanna @ Malleswaram (2011 ILR-KAR 4619).
9. On the other hand, the learned counsel for the claimants-respondents, argued in support of the impugned judgment and award. He contended that the compensation : 10 : awarded by the Tribunal under the conventional heads are on the lower side and seeks enhancement in the compensation.
10. On perusal of the material on record it is seen that during the enquiry before the Tribunal, the claimants, who are the dependents of the deceased persons have established the occurrence of the accident, rash and negligent driving of the offending vehicle and its insurance coverage with the appellant-insurer. Sharanappa (PW.2) in his evidence, has categorically stated that on the date of accident, four persons viz., himself and both the deceased persons were travelling in the offending vehicle to go to the land of Mailarappa to do the field work. Indisputably, the accident had occurred during the course of their employment and hence, the contention of the appellant-insurer that both the deceased persons were unauthorized persons cannot be sustained. The owner of the vehicle is vicariously liable for the act done by his servant. As on the date of accident, the offending vehicle was covered with the insurance policy, the Tribunal was justified in directing the insurer-appellant herein to indemnify the owner of the offending vehicle.
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11. As regards the quantum of compensation, having regard to the date of accident being 17.06.2007, in the absence of specific proof of income of the deceased persons, the Tribunal has rightly determined the notional income of the deceased at Rs.3000/- per month and as the deceased were aged 30 years old at the time of accident, the Tribunal rightly applied the multiplier-16 to determine the compensation payable towards 'loss of dependency'. The compensation awarded by the Tribunal under other conventional heads are found to be just and reasonable. Hence, the contention of the learned counsel for the appellant-insurer that the compensation awarded by the Tribunal is excessive and exorbitant cannot be sustained. The Judgment relied on by the learned counsel, referred to supra, cannot be made applicable to the present case, inasmuch as, the facts and circumstances involved in the said case are different from the present case.
12. The Division Bench of this Court, in the judgment rendered in MFA. No. 7837/2007 (The Manager, National : 12 : Insurance Company -vs- Imamsab), disposed of on 17.07.2013, in paragraph-11, was pleased to observe thus:
"In the absence of any such evidence to show it is the negligence on the part of the deceased in travelling on the mudguard, which is the cause for the accident, it is not possible to hold that by such travelling he is disentitled from claiming compensation. The Commissioner has rightly held the insurance company liable."
On re-appreciation of the material on record, this Court does not find any good grounds to interfere with the findings of the Tribunal. Consequently, both the appeals are liable to be dismissed, inasmuch as, they are devoid of merits.
Accordingly, both the appeals are dismissed. The amount in deposit before this Court shall be transmitted to the Tribunal.
Sd/-
JUDGE VR