Karnataka High Court
M/S Oriental Insurance vs Smt Shankaran on 11 July, 2017
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY, 2017
BEFORE
THE HON'BLE MR.JUSTICE N.K.SUDHINDRARAO
MFA No.25/2014(MV)
c/w
MFA No.23/2014(MV),
MFA No.24/2014(MV),
MFA CROB No.151/2014 IN MFA. NO.25/2014(MV),
IN MFA No.25/2014(MV):
BETWEEN:
M/s. Oriental Insurance Company Limited
Divisional Office-XII
1001/56, Jayalakshmi Mansion
2nd Floor, Dr.Rajkumar Road
4th Block, Rajajinagar,
Bangalore-560 010.
Now rep. by its Regional Office
44/45, Leo Shopping Complex
Residency Road
Bangalore-560 025.
Rep. by its Authorized Signatory.
...Appellant
(By Sri A.M.Venkatesh, Adv.)
AND:
1. Shri Shankaran @ Shankar
S/o late Allimuttu
Aged about 39 years
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2. Kum. S.Chaithra
D/o Shankaran @ Shankar
Aged 3 ½ years
Minor, Rep. by R-1
3. Shri Thangadorai
S/o Govindaswamy
Aged about 53 years
4. Smt. Shanthi
W/o Thangadorai
Aged about 48 years
All are R/at No.12,
L-118/6, 14th Cross,
Lakshminarayanapura
Bangalore-560 021.
5. KSRTC Bangalore (Central)
Managing Director
Karnataka State Road
Transport Corporation
Bangalore Central Division
Bangalore-560 027.
6. The Managing Director
Karnataka State Road
Transport Corporation
Kolar Division
Kolar-563 101.
...Respondents
(By Sri Shripad V.Shastri, Adv. for R-1, R-3 & R-4;
Sri D.Vijaya Kumar, Adv. for R-5 & R-6)
This MFA is filed under Section 173(1) of MV Act against
the judgment and award dated 1.7.2013 passed in MVC
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No.1811/2011 on the file of the XII Additional Small Cause
Judge, Member, MACT, Bangalore, awarding a Compensation of
Rs.6,73,000/- with interest @ 6% P.A from the date of petition
till realization.
IN MFA No.23/2014(MV):
BETWEEN:
M/s. Oriental Insurance Company Limited
Divisional Office-XII
1001/56, Jayalakshmi Mansion
2nd Floor, Dr.Rajkumar Road
4th Block, Rajajinagar,
Bangalore-560 010.
Now rep. by its Regional Office
44/45, Leo Shopping Complex
Residency Road
Bangalore-560 025.
Rep. by its Authorized Signatory.
...Appellant
(By Sri A.M.Venkatesh, Adv.)
AND:
1. Smt. K.Parimala
W/o A.Kumaravelu
Aged about 24 years
R/at No.12, L-118/16, 14th Cross,
Lakshminarayanapura,
Bangalore-560 021.
2. KSRTC Bangalore (Central)
Managing Director
Karnataka State Road Transport Corporation
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Bangalore Central Division
Bangalore-560 027.
3. The Managing Director
Karnataka State Road Transport Corporation
Kolar Division
Kolar-563 101.
...Respondents
(By Sri D.Vijaya Kumar, Adv. for R-2 & R-3;
Sri Shripad V.Shashtri, Adv. for R-1)
This MFA is filed under Section 173(1) of MV Act against
the judgment and award dated 1.7.2013 passed in MVC
No.1810/2011 on the file of the XII Additional Small Cause
Judge, Member, MACT, Bangalore, awarding a Compensation of
Rs.8,000/- with interest @ 6% P.A from the date of petition till
realization.
IN MFA No.24/2014(MV):
BETWEEN:
M/s. Oriental Insurance Company Limited
Divisional Office-XII
1001/56, Jayalakshmi Mansion
2nd Floor, Dr.Rajkumar Road
4th Block, Rajajinagar,
Bangalore-560 010.
Now rep. by its Regional Office
44/45, Leo Shopping Complex
Residency Road
Bangalore-560 025.
Rep. by its Authorized Signatory ...Appellant
(By Sri A.M.Venkatesh, Adv.)
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AND:
1. Kum. S.Chaitra
D/o A.Shankaran
Aged about 3 ½ years
R/at No.12, L-118/16, 14th Cross,
Lakshminarayanapura,
Bangalore-560 021.
Ref. by natural guardian father Shankar.
2. KSRTC Bangalore (Central)
Managing Director
Karnataka State Road Transport Corporation
Bangalore Central Division
Bangalore-560 027.
3. The Managing Director
Karnataka State Road Transport Corporation
Kolar Division
Kolar-563 101.
...Respondents
(By Sri D.Vijaya Kumar, Adv. for R-2 & R-3;
R-1 is Minor)
This MFA is filed under Section 173(1) of MV Act against
the judgment and award dated 1.7.2013 passed in MVC
No.1812/2011 on the file of the XII Additional Small Cause
Judge, Member, MACT, Bangalore, awarding a Compensation of
Rs.19,220/- with interest @ 6% P.A from the date of petition till
realization of the entire award amount.
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IN MFA CROB No.151/2014 IN
MFA No.25/2014(MV):
BETWEEN:
1. Shri. Shankaran
@ Shankar
S/o late Allimuttu
Aged about 39 years
2. Kum. S.Chaithra
D/o A.Shankaran
@ Shankar
Aged about 4 ½ years
Minor, Rep. by natural guardian Father
3. Shri. Thangadorai
S/o Govinda Swamy
Aged about 53 years
4. Smt. Shanthi
W/o Thangadorai
Aged about 48 years
All appellants are R/at No.12,
L-118/6, 14th Cross
Lakshminarayanapura
Bangalore-560 021.
...Cross Objectors
(By Sri Shripad V. Shastri, Adv.)
AND:
1. The Oriental Insurance Co. Ltd.,
DO:XII, No.1001/56, Jayalakshmi Mansion
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2nd Floor, Dr.Rajkumar Road
4th Block, Rajajinagar,
Bangalore-560 010.
by its Manager.
1. KSRTC Bangalore (Central)
Managing Director
Karnataka State Road Transport Corporation
Bangalore Central Division
Bangalore-560 027.
2. The Managing Director
Karnataka State Road Transport Corporation
Kolar Division
Kolar-563 101.
...Respondents
(By Sri D.Vijaya Kumar, Adv. for R-2 & R-3;
Sri A.M.Venkatesh, Adv. for R-1)
This MFA CROB IN MFA No.25/2014 is filed under Order
41, Rule 22 of CPC against the judgment and award dated
1.7.2013 passed in MVC No.1811/2011 on the file of the XII
Additional Small Cause Judge, Member, MACT, Bangalore, partly
allowing the claim petition for Compensation and seeking
enhancement of Compensation.
These MFAs and cross-objection coming on for hearing this
day, the Court delivered the following:-
JUDGMENT
MFA.Nos.23/2014, 24/2014 and 25/2014 are preferred by the Oriental Insurance Company Limited against the common -8- judgment and award dated 1.7.2013 passed in MVC Nos.1811/2011, 1810/2011 and 1812/2011 by the Motor Accident Claims Tribunal at Bangalore, thereby seeks for setting aside the same, whereas MFA.Crob.151/2014 in MFA No.25/2014 is preferred by the dependents/legal representatives of the deceased T.Poongadi seeking enhancement of the compensation awarded by the Tribunal.
2. The petitioners in MVC.Nos.1810/2011, 1812/2011 and the deceased Smt.T.Poongadi were travelling in a KSRTC bus bearing Regn.No.KA-07-F-1246 on 20.7.2010 at about 1.40 a.m. When the said bus reached Gangavaram-Mandalam four roads, in a rash and negligent manner so as to endanger human life and dashed against another KSRTC bus bearing Regn.No.KA-40- F363, as a result of which, the petitioners in MVC.Nos.1810/2011 and 1812/2011 and T.Poongadi sustained grievous injuries. Inspite of treatment given by the doctor, T.Poongadi succumbed to the injuries on 20.7.2010 at about 4.30 a.m. Postmortem was conducted at Government Hospital, -9- Palamaner, Andhra Pradesh. The petitioners claim that the accident in question occurred due to rash and negligent driving by the driver of the offending bus.
3. The respondent-Insurance Company who contested the case, denied the claim in entirety. The Tribunal framed the issues regarding the accident, injuries sustained, cause of death, disability, loss of dependency and granted the compensation as under:-
Sl.No. MVC No. Compensation awarded 1 1810/2011 Rs. 8,000/- 2 1811/2011 Rs.6,73,000/- 3 1812/2011 Rs. 19,220/-
4. Being aggrieved by the judgment and award, the Insurance Company preferred MFA.Nos.23/2014, 24/2014 and 25/2014, whereas the claimants, who claim to be the dependants of the deceased T.Poongadi have preferred MFA.Crob.151/2014.
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5. By considering the notional monthly income of T.Poongadi at Rs.4,500/- deducted 1/3 for personal and living expenses to reach monthly income at Rs.3,000/- and annually at Rs.36,000/- and applied multiplier `18', and awarded loss of dependency at:
Rs.36,000 X 18=Rs.6,48,000/-
The breakup regarding grant of compensation in MVC.No.1811/2011 is as under:-
Loss of dependency : Rs.6,48,000/-
Loss of estate : Rs. 10,000/-
Loss of consortium : Rs. 10,000/-
Funeral expenses : Rs. 5,000/-
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Total: Rs.6,73,000/-
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6. The learned member has not considered the future prospects. Thus considering the notional monthly income at Rs.4,500/- adding 50% towards future prospects i.e., Rs.2,250/-. And after deducting 1/3 towards Personal and living expenses, claimants are entitled to
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(4,500+2,250=6,750/3=2,250=4,500x12x18)Rs.9,72,000/- towards loss of dependency.
Thus, the claimants are entitled to enhanced compensation as under in MVC.No.1811/2011, which shall carry interest at 6% per annum till full settlement.
Loss of dependency `9,72,000.00
Loss of consortium ` 10,000.00
Loss of estate ` 10,000.00
Funeral Expenses ` 5,000.00
---------------
Total ` 9,97,000.00
Less:granted by Tribunal ` 6,73,000.00
----------------
Enhanced compensation ` 3,24,000.00 =========
7. The matter assumes significance by virtue of the fact that driver of KSRTC bus bearing Regn.No.KA-07.F-1246 is the person against whom criminal case was registered was charge sheeted as well for the offence punishable under Sections 279 and 304A of IPC and even the said bus was not insured with its internal wing of insurance and as two Insurance Companies were
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litigating before the Tribunal it was not proper for the learned member to fix the liability on the insurer of the bus bearing Regn.No.KA-07-F.1246, having regard to the fact that the bus bearing Regn.No.KA.40.F.363 which had insurance with Oriental Insurance Company Limited.
But the Tribunal erred in holding that the appellant- Insurance Company being the insurer of KSRTC bus bearing Regn.No.KA-07-F-1246 and KA-40-F-363 is liable to pay the compensation and the said error is set right under this appeal.
8. The learned member committed a serious mistake in fastening the liability on the appellant-Oriental Insurance Company Limited in MFA No.25/2014 for the primary fact and also reason there was no insurance in respect of the offending vehicle KA.40.F.363 nor was any other internal insurance.
9. At the same time, the present appellant in MFA.No.25/14 has also filed other two appeals. The facts are similar. But the learned Member of the Tribunal mistook
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regarding the insurance of the offending bus being insured with the Oriental Insurance Company.
10. The circumstance that reflects justifiable stand in common as submitted by learned counsel Sri.Vijayakumar is that the Managing Director, KSRTC, Kolar Division is duty bound and in fair gesture accepts the liability to pay the entire compensation to the appellants in MFA.Crob.No.151/2014.
11. The learned Counsel for KSRTC, Kolar Sri.D.Vijayakumar on the other hand submitted as a commendable gesture that his client KSRTC, Kolar has undertaken to discharge the liability in the capacity of the owner of the bus which did not possess insurance at the time of accident. Thus it is the KSRTC which is liable to pay compensation has graciously accepted and as a result one more round of litigation at the level of original jurisdiction is prevented. Not only in MFANo.25/2014 even the other appeals as well as the respondent No.2 KSRTC, Kolar owner of the bus
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has accepted the legal liability to compensate the respective claimants.
12. Thus in the absence of insurance, the liability to compensate is invariably on the KSRTC, Kolar District in the capacity as the owner and the mistake is committed by the tribunal.
13. The cross objector in MFA.Crob.No.151/14 has filed an application under Order 41 Rule 27 of CPC seeking permission to adduce additional evidence along with the extract of register wherein the appellant claims to have paid Rs.2,35,000/- to Sri.Shankaran, who is the husband of deceased T. Poongadi on 16.11.2010 by way of a cheque. The application came to be filed when the matter was taken up for arguments.
14. It was not a matter of discussion or point for consideration or submission or defence or pleaded or evidenced in the earlier proceedings. However learned counsel for
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claimants, to a question posed to the claimants, as to whether the amount was received by the claimants, the answer is in affirmative.
15. However, the learned counsel for the claimants submit that this can never be part of compensation. On the other hand it was paid as exgratia amount and that is separate and independent.
16. In this regard, it is necessary to refer Section 2(d) of the Indian Contract Act, 1872, which reads thus:-
"Section 2(d)- When, at the desire of the promisor, the promise or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise."
Thus, past consideration is also a good consideration. However, the learned counsel for the claimants contend that it
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was a separate and distinct payment and was paid as an exgratia amount by the KSRTC in its independent capacity and it never represents any part of the compensation.
17. With this background, it is also necessary to get reminded of the point of law, anything capable of being valued in terms of money or money itself or its worth. The recipient cannot take the things for granted and appropriate them when he gets gratuitously. The concept of quasi contract and obligation similar to contractual obligation ripe even when there is no pre-existing agreement.
18. Thus the amount of Rs.2,35,000/- given to the claimants in MVC.No.1811/11 is nothing but part of compensation awarded and the liability is based on the principle "No one shall enrich himself unjustly at the cost of another".
19. The claimants being dependants of deceased Poongadi are entitled for the compensation amount, it is very much necessary to note that Poongadi was not a KSRTC
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employee or a lady who died while serving the KSRTC, wherein the DCRG or Death-cum-Retirement benefits are paid to her or exgratia amount. Amount of Rs.2,35,000/- paid by the KSRTC can never be treated as a different amount than towards the compensation. The claim petition was filed on 28.3.2011 i.e. ten months' after the amount was paid by the KSRTC. In the circumstances, there cannot be any other meaning to the amount of Rs.2,35,000/- other than that it is a "part of compensation".
20. He stands totally in a quasi contractual situation. As stated above, Section 72 of the Indian Contract Act, 1872 reads thus:-
"72. Liability of person to whom money is paid, or thing delivered, by mistake or under coercion:-
A person to whom money has been paid, or anything delivered, by mistake or under coercion, must repay or return it."
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21. On 20.7.2010, the obligation came into existence to pay the compensation. The offending vehicle was never insured with the Oriental Insurance Company. Thus, there is only one consequence i.e. the award amount + enhanced compensation amount - part payment = balance amount.
22. Thus, the amount of Rs.2,35,000/- received on 30.7.2010 is liable to be appropriated together with interest from the date of payment till the date of settlement. Thus the claimants are entitled to enhanced compensation of Rs.3,24,000/- in MVC.No.1811/2011, which shall carry interest at 6% per annum from the date of the petition till full realisation.
23. However, the amount of Rs.2,35,000/- paid by the KSRTC on 30.7.2010 has to be deducted from the total compensation Rs.9,97,000/-(Rs.6,73,000+Rs.3,24,000) payable to the claimants with proportionate interest at the rate of 6% per annum.
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24. Thus, the appellants in the Cross-objection succeed to the extent of getting enhanced compensation of Rs.3,24,000/-, needless to say with interest as stated above but with deduction of Rs.2,35,000/- together with same rate of interest from the date of receipt of the amount till the date of receiving balance consideration.
25. As the liability is cast on the KSRTC, Kolar Division, under the legal consequence and also by virtue of the submission made by learned counsel Sri.Vijayakumar, for KSRTC, Kolar Division, wherein he has undertaken that KSRTC, Kolar Division, would pay compensation amount in all the three cases.
26. At the cost of repetition the problem gets resolved and reaches logical end by virtue of the counsel for KSRTC admitting the obligation to compensate is exclusively by them, in the absence of proper and valid insurance to the offending vehicle.
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Hence, the following:
ORDER
1. The appeals in MFA.Nos.25, 24 and 23/2014 are allowed and the cross objection in MFA.Crob.No.151/2014 is partly allowed.
2. Judgment and award dated 01.07.2013 passed in MVC Nos.1811/2011, 1810/2011, 1812/2011 by MACT, Bengaluru, is modified holding that KSRTC is liable to pay compensation.
3. Judgment and award dated 01.07.2013 passed in MVC No.1811/2011 by MACT, Bengaluru, is modified by granting compensation of Rs.9,97,000/-(enhanced compensation of Rs.3,24,000/-) with interest @ 6% p.a. and the respondent-KSRTC, Kolar Division, is entitled for set off of Rs.2,35,000/- in MFA.25/2015 (MFA.Crob.No.151/14) together with interest at the rate of 6% p.a. from the date of payment till settlement.
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4. Insofar as apportionment is concerned, the formula laid down by the MACT shall be followed.
5. The amount deposited by the appellant-Oriental Insurance Company shall be refunded to it.
6. The respondent-KSRTC, Kolar Division, in all the appeals as undertaken and also as directed by the Court shall pay the compensation amount together with interest at the rate of 6% p.a. from the date of petition till the date of realization to the claimants in all the appeals.
7. No costs.
Sd/-
JUDGE *ck.....................pages 1 to 13 *alb/- ..............pages 14 to 23