Karnataka High Court
National Insurance Co Ltd vs B M Lohit on 8 March, 2013
Author: B.Sreenivase Gowda
Bench: B.Sreenivase Gowda
1
IN THE HIGH COURT OF KARNATAKA,
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 8th DAY OF MARCH, 2013
BEFORE
THE HON' BLE MR. JUSTICE B.SREENIVASE GOWDA
MFA NO.20134 of 2008 (MV)
C/w
MFA CROB.No.701 OF 2009
MFA No.20133 OF 2008
MFA NO.20134 of 2008 (MV)
BETWEEN
1. NATIONAL INSURANCE CO LTD
SUJATHA COMPLEX,
OPP: P. B. ROAD, HUBLI
REP, BY ITS DIVISIONAL MANAGER
...APPELLANT
(By Sri.RAVINDRA.R.MANE., ADV.,)
AND
1. SHEKARAPPA S/O HANUMANTHAPPA
BANDIBHYRANAHALLI,
AGE: 49 YEARS, R/O.KAGINALLI,
TQ.SHIKARIPURA, NOW AT
B.H.MADLUR HOUSE, GANESH NAGAR,
RANEBENNUR, DIST: HAVERI.
2. SMT YASHODA W/O SHEKARAPPA BANDI
BAIRANAHALLI,
R/O.KAGINAHALLI, TQ.SHIKARIPURA,
NOW AT B H MADLUR HOUSE,
GANESH NAGAR, RANEBENNUR,
3. HARISHKUMAR SHETTY,
2
S/O H ANANDASHYETTY,
RAGAVENDRA KRUPA,
SHISHUVIGAR ROAD,
SHIKARIPURA
DIST: SHIMOGA.
... RESPONDENTS
(By DHARWAR LAW ASSOCIATES FOR R-1 & R-2
NOTICE TO R-3 DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLES
ACT AGAINST THE JUDGMENT AND AWARD DATED
22/04/2008 PASSED IN MVC NO.93/2007 ON THE
FILE OF THE CIVIL JUDGE (SR.DN) AND
ADDL.M.A.C.T., RANEBENNUR, AWARDING A
COMPENSATION OF RS.2,00,000/- WITH INTEREST @
6% P.A. FROM THE DATE OF PETITION.
MFA CROB. NO.701 of 2009 (MV)
BETWEEN
1. SRI SHEKARAPPA
S/O HANUMANTHAPPA BANDIBAIRANAHALLI
AGE: 49 YEARS, OCC: AGRIL.,
POST: KAGINELI, TQ: SHIKARIPURA,
NOW AT GANESH NAGAR, RANEBENNUR.
2. SMT YASHODHA
W/O SHEKARAPPA BANDIBAIRANAHALLI,
AGE: 39 YEARS, OCC: H/W.,
POST: KAGINELI, TQ: SHIKARIPURA,
NOW AT GANESH NAGAR,
RANEBENNUR.
... CROSS OBJECTORS
(By Sri.PATIL M H, ADV., DHARWAR LAW ASSOCIATES
FOR APPELLANT-CROSS-OBJECTOR, R1-NOTICE
DISPENSED WITH)
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AND
1. MR HARISH KUMAR SHETTI
S/O ANAND SHETTI,
AGE: 48 YEARS, OCC: BUSINESS,
R/O.RAGHAVENDRA KRUPA,
SHISHUVIHAR ROAD,
TQ: SHIKARIPUR, DIST: SHIMOGA.
2. NATIONAL INSURANCE CO., LTD.,
SUJATHA COMPLEX,
OPP TO P.B.ROAD, HUBLI.
... RESPONDENTS
(BY Sri.R R MANE TO TAKE NOTICE FOR R-2
NOTICE TO R-1 DISPENSED WITH)
THIS MFA CROB IN MFA NO.20134/2008 IS
FILED UNDER SECTION 173(1) OF THE MOTOR
VEHICLES ACT R/W.O.41 RULE 22OF CPC., AGAINST
THE JUDGMENT AND AWARD DATED 22/04/2008
PASSED IN MVC NO.93/2007 ON THE FILE OF THE
CIVIL JUDGE (SR.DN) AND ADDL.M.A.C.T.,
RANEBENNUR, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
MFA NO.20133 of 2008 (MV)
BETWEEN
1. NATIONAL INSURANCE CO LTD
SUJATHA COMPLEX,
OPP: P. B. ROAD, HUBLI
REP, BY ITS DIVISIONAL MANAGER
...APPELLANT
(By Sri.RAVINDRA.R.MANE., ADV.,)
AND
1. B.M.LOHIT
S/O D.B.NAGARAJA
AGED ABOUT 11 YEARS,
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STUDENT, MINOR REP.BY
NATURAL GUARDIAN MOTHER
SMT.B.SHASHIKALA
W/O D.B.NAGARAJA
2. HARISHKUMAR SHETTY,
S/O H ANANDASHYETTY,
RAGAVENDRA KRUPA,
SHISHUVIGAR ROAD,
SHIKARIPURA
DIST: SHIMOGA.
... RESPONDENTS
(By Sri.M.H.PATIL, ADV., FOR R-1)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLES
ACT AGAINST THE JUDGMENT AND AWARD DATED
22/04/2008 PASSED IN MVC NO.94/2007 ON THE
FILE OF THE CIVIL JUDGE (SR.DN) AND
ADDL.M.A.C.T., RANEBENNUR.
THESE APPEALS AND MFA CROB COMING ON
FOR ORDERS, THIS DAY, THE COURT DELIVER THE
FOLLOWING:
JUDGMENT
MFA 20134/2008 and MFA No.20133/2008 are appeals by the insurer of offending vehicle challenging the judgment and award made by the Tribunal on the ground of contributory negligence.
2. MFA Crob.701/2009 is by the claimants seeking enhancement of compensation awarded by the Tribunal.
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3. Learned counsel for the insurer of offending vehicle submits that the deceased and injured claimant having traveled in the offending vehicle by standing on the ladder attached to the right side portion of the bus, they had also contributed for the accident and the Tribunal ought not to have fixed the entire negligence on the driver of the bus. In support of his contention he has relied upon the judgement of this Court in the case of Smt. Shivleela and Others Vs. Karnataka State Road Transport Corporation, by Managing Director, Bangalore, reported in ILR 2003 KAR 3602, he prays for allowing the appeal filed by the insurer and dismiss the appeal filed by the claimant.
4. Whereas the learned counsel for the claimants submits that the deceased and injured admittedly were minor children and their risk is covered under no fault liability.
5. Regarding quantum he submits, quantum of compensation awarded by Tribunal in the case of injured claimant is just and proper and there is no scope for reduction and in the case of death of a minor 6 child it is on the lower side and he prays for dismissal of both the appeals filed by the insurer and allow the appeal filed by the claimants and enhance the compensation in the case of death of a minor child.
6. Therefore, the points that remain for my consideration in the appeal are:
"Whether the Tribunal is justified in fixing the entire negligence on the driver of the Bus without noticing the negligence contributed by the deceased and the injured claimant and whether quantum of compensation awarded in the death case is just and reasonable or does it call for enhancement and Whether quantum of compensation awarded in the case of injured claimant is just and reasonable or does it call for reduction?"
Firstly, both the deceased and the injured claimant were minor children and no negligence can be attributed against them. Secondly, the contention of the insurer that they were travelling in the offending vehicle by standing in the ladder attached to the Bus is not proved and established. Therefore, finding of the Tribunal on negligence is confirmed.
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7. Now, I have to see whether quantum of compensation awarded in the death case is just and reasonable or does it call for enhancement?
8. The deceased was aged about 10 years at the time of death. The claim petition is filed by her parents. Therefore, her notional income is assessed at Rs.15,000/- per annum, out of which 1/3rd is to be deducted towards her personal expenses and 2/3rd is taken as contribution to family and fixed multiplier of 15 is to be applied. So, loss of dependency worked out Rs.1,50,000/- (15,000X2/3X15) and it is awarded.
In addition to that a sum of Rs.75,000/- is awarded towards non-pecuniary damages.
9. Considering that the deceased while she was going to school sustained grievous injuries, which resulted in her death and claimants have lost their school going child and there is evidence to show that she was a bright student and the said fact was not disputed, and therefore a sum of Rs.50,000/- is awarded towards special damages. Thus, in all the claimants are entitled to a total compensation of 8 Rs.2,75,000/- in MVC No.93/2007 as against Rs.2,00,000/- awarded by the Tribunal.
10. Accordingly, I pass the following:
ORDER MFA Crob. 701/2009 filed by the claimants is allowed in-part. Judgement and award of the Tribunal is modified. The claimants are entitled to total compensation of Rs.2,75,000/- as against Rs.2,00,000/- awarded by the Tribunal, with interest at 6% p.a. from the date of claim petition till the date of deposit on the enhanced compensation of Rs. 75,000/-. In view of allowing the MFA Crob. 701/2009 filed by the claimants and enhancing the compensation the MFA No.20134/2008 filed by the insurer on quantum does not survive and it is dismissed both on quantum as well as on negligence.
The Insurance Company is directed to deposit the additional compensation of Rs.75,000/- with 6% interest within two months from the date of receipt copy 9 of this judgement, after deducting the amount, if any, already deposited.
From the additional compensation of Rs.75,000/-, a sum of Rs.50,000/- with proportionate interest is to be invested in a fixed deposit in the name of second claimant mother in any nationalized bank or post office for a period of six years with right of option to renew it from time to time and withdraw periodical interest. The remaining amount is to be released equally in favour of both the claimants.
No order as to costs.
MFA 20133/2008 is filed by the insurer of offending vehicle challenging the award made by the Tribunal both on the ground of contributory negligence as well as quantum. It is a case of injury and injured claimant was a minor at the time of accident and ground urged regarding contributory negligence does not survive in view of finding on contributory negligence and further it is found that quantum of compensation 10 awarded is just and reasonable. Accordingly, this appeal is also dismissed.
No order as to costs.
Sd/-
JUDGE Vmb