Karnataka High Court
The Oriental Insurance Co.,Ltd., vs T.Venkatalakshmi on 11 December, 2018
Author: H.P.Sandesh
Bench: H.P. Sandesh
1
MFA Nos.6384/2010
C/w.1511/2010
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11th DAY OF DECEMBER, 2018
BEFORE:
THE HON'BLE MR. JUSTICE H.P. SANDESH
MISCELLANEOUS FIRST APPEAL NO.6384/2010 [MV]
C/w.
MISCELLANEOUS FIRST APPEAL NO.1511/2010 [MV]
IN MFA NO.6384/2010:
BETWEEN:
THE ORIENTAL INSURANCE CO. LTD.,
R.O. NO.44/45. LEO SHOPPING COMPLEX,
RESIDENCY ROAD,
BANGALORE-560 027.
ISSUING OFFICE:
NO.7, UTHAMAR GANDHI SALAI,
2ND FLOOR, ROSY TOWERS,
NUNGABAKKAM,
CHENNAI-600 034. ... APPELLANT
[BY SRI. S.N. ASWATHANARAYAN, ADVOCATE]
AND:
1. T. VENKATALAKSHMI,
W/O. LATE T. NARAYANASWAMY,
AGED ABOUT 32 YEARS,
2. MASTER T. VAMSI,
S/O. LATE T. NARAYANASWAMY,
AGED ABOUT 7 YEARS,
MINOR REPRESENTED BY
1ST RESPONDENT MOTHER AND
NATURAL GUARDIAN.
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MFA Nos.6384/2010
C/w.1511/2010
3. VENKATARAMUDU,
S/O. OBALESH,
AGED ABOUT 67 YEARS,
ALL ARE RESIDINGA AT NO.691,
29TH MAIN, BTM LAYOUT,
BANGALORE-68.
4. S. SYED BASHA,
S/O. S.HASAN JAN,
3/44/A, THURUKAPALLI,
PEDDAMANDYAM, CHITOOR,
ANDHRA PRADESH. ... RESPONDENTS
[BY SRI. N.GOPAL KRISHNA, ADVOCATE FOR R-1 & R-2
NOTICE TO R-4 IS HELD SUFFICIENT V.C.O. DATED 11.06.2018]
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED
13.11.2009 PASSED IN MVC NO.5348/2008 ON THE FILE OF THE
XIII ADDITIONAL SMALL CAUSES JUDGE, COURT OF SMALL
CAUSES & MEMBER, MACT, BANGALORE, AWARDING
COMPENSATION OF RS.3,86,000/- WITH INTEREST @ 6% P.A.
FROM THE DATE OF PETITION TILL DEPOSIT.
***
IN MFA NO.1511/2010:
BETWEEN:
1. T. VENKATALAKSHMI,
W/O. LATE T.NARAYANASWAMY,
AGED ABOUT 31 YEARS,
2. MASTER T.VAMSI,
S/O. LATE T. NARAYANASWAMY,
AGED ABOUT 6 YEARS,
MINOR REPRESENTED BY
1ST APPELLANT MOTHER AND
NATURAL GUARDIAN.
3. VENKATARAMUDU,
S/O. LATE OBALESH,
AGED ABOUT 66 YEARS,
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MFA Nos.6384/2010
C/w.1511/2010
ALL ARE RESIDING AT
NO.691, 29TH MAIN,
B.T.M. LAYOUT,
BANGALORE-560 068. ... APPELLANTS
[BY SRI. N.GOPAL KRISHNA, ADVOCATE]
AND:
1. S.SYED BASHA,
S/O. S.HASAN JAN,
3/44/A, THURUKAPALLI,
PEDDAMANDYAM,
CHITTOOR DIST. A.P.
2. THE ORIENTAL INSURANCE CO. LTD.,
R.O. NO.44/45, LEO SHOPPING COMPLEX,
RESIDENCY ROAD,
BANGALORE-560 027.
ISSUING OFFICE:
NO.7, UTHAMAR GANDHI SALAI,
2ND FLOOR, ROSY TOWERS,
NUNGABAKKAM,
CHENNAI-600 034. ... RESPONDENTS
[BY SRI. S.N.ASWATHANARAYANA, ADVOCATE FOR R-2
NOTICE TO R-1 IS DISPENSED WITH V.C.O. DATED 26.06.2017]
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD
DATED:13.11.2009 PASSED IN MVC NO.5348/2008 ON THE FILE
OF THE XIII ADDITIONAL SMALL CAUSES JUDGE AND MEMBER
MACT (SCCH-15), BANGALORE, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
***
THESE MFAs' COMING ON FOR FINAL HEARING, THIS DAY
THE COURT DELIVERED THE FOLLOWING:
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MFA Nos.6384/2010
C/w.1511/2010
JUDGMENT
M.F.A. No.1511/2010 is filed by the claimants, challenging the Judgment and Award, contending that the quantum of compensation awarded by the Tribunal is meagre and M.F.A. No.6384/2010 is filed by the Insurance Company, contending that deceased T.Narayanaswamy was a gratuitous passenger and the Tribunal has committed an error in fastening the liability on the Insurance Company in M.V.C. No.5348/2008, dated 13.11.2009.
2. The claimants have filed the claim petition before the Tribunal under Section 166 of the M.V. Act, claiming compensation of Rs.5,00,000/- for the death of T.Narayanaswamy, contending that on 11.06.2006 at about 5.30 p.m., deceased T.Narayanaswamy while proceeding as a loader on the DCM van bearing reg. No.AP-37/V-2123 loaded with vegetable bags towards Jadcherla side from Hyderabad side and at that time, the driver of the DCM van drove the same in rash and negligent manner and when the vehicle reached at GR Cable factory, Ranga Reddy Guda village on N.H. 7, Mehaboob Nagar District, the driver lost 5 MFA Nos.6384/2010 C/w.1511/2010 control over his vehicle due to high speed and dashed against a lorry bearing reg. No.AAD-8953. Due to which, the deceased sustained injuries and later succumbed to the injuries. The petitioners have contended that the deceased was a loader and earning Rs.150/- to Rs.200/- per day. In order to substantiate the claim, the claimants have examined the first claimant, who is the wife of the deceased as P.W.1 and got marked the documents Exs.P1 to 5. The respondents have also examined one witness as R.W.1.
The Tribunal after considering both the oral and documentary evidence, allowed the petition in part, granting compensation of Rs.3,86,000/- with 6% interest per annum.
3. Being aggrieved by the Judgment and Award of the Tribunal, the claimants have preferred this appeal contended that the compensation awarded by the Tribunal is on lower side and the counsel contends that the income of the deceased was taken only at Rs.3,000/- p.m. and also not considered the future prospects while considering the loss of dependency. The learned counsel also contends that the 6 MFA Nos.6384/2010 C/w.1511/2010 compensation awarded on other conventional heads is also very less and the same has to be enhanced.
4. The appellant/Insurance Company in M.F.A. No.6384/2010 has contended that the Tribunal has committed an error in fastening the liability on the Insurance Company even though the deceased was a gratuitous passenger and the Tribunal ought not to have fastened the liability on the Insurance Company. The other contentions of the Insurance Company are that the Tribunal has awarded an amount of Rs.3,36,000/- under the head loss of dependency is without any material evidence regarding the income of the deceased and the same is unreasonable, exorbitant and requires to be modified.
Learned counsel appearing for the Insurance Company also vehemently contended that the records reveal that the deceased was a gratuitous passenger and the same has not been taken into consideration by the Tribunal.
5. After having heard the arguments of the claimants counsel and also the Insurance Company's counsel, I have perused the Judgment and Award of the Tribunal and 7 MFA Nos.6384/2010 C/w.1511/2010 after considering the contentions, the points that arise for consideration are:
1. Whether the Tribunal has committed an error in not coming to the conclusion that the deceased is a gratuitous passenger?
2. Whether the Tribunal has committed an error in not awarding just and reasonable compensation and it requires modification?
6. Regarding Point No.1: The Judgment and Award which discloses that the Tribunal while considering the contentions of the Insurance Company in para 9 of the Judgment has given a definite finding that the insurance policy covers not only the driver, but also two persons. The main contention of the Insurance Company is that deceased T.Narayanaswamy was a gratuitous passenger and on perusal of the claim petition, it is seen that the claimants have specifically contended that the deceased was proceeding as a loader in the vehicle and on perusal of the written statement of the Insurance Company, the Insurance Company did not raise any specific contention before the Tribunal that the deceased was proceeding as gratuitous passenger. The 8 MFA Nos.6384/2010 C/w.1511/2010 learned counsel appearing for the claimants brought to my notice that no suggestion has been made in the cross- examination of P.W.1 that the deceased was proceeding as gratuitous passenger. On perusal of the entire cross- examination of P.W.1, nowhere a suggestion was made that the deceased was a gratuitous passenger and the Insurance Company first of all have failed to take the defence that the deceased was proceeding as gratuitous passenger in the written statement and also nothing is put to the witness P.W.1 in the cross-examination with regard to the same. Now, without any supporting pleading and evidence, the Insurance Company is before this Court contending that the deceased was proceeding as a gratuitous passenger and hence, I am of the opinion that the contention of the appellant's counsel appearing for the Insurance Company cannot be accepted in the absence of any material before the Court and hence, the appeal filed by the Insurance Company fails and have answered Point No.1 as negative.
7. Regarding Point No.2: In the appeal filed by the claimants, regarding quantum of compensation, the learned counsel contends that the income of the deceased 9 MFA Nos.6384/2010 C/w.1511/2010 was taken only at Rs.3,000/- p.m. and the accident was occurred in 2006. Hence, the income taken by the Tribunal is just and reasonable. I do not find any ground to take higher income than the income taken by the Tribunal. However, on perusal of the Judgment and Award of the Tribunal, it discloses that the Tribunal has not considered the future prospects while calculating the loss of dependency on account of death of T.Narayanaswamy. Hence, it requires interference of this Court with regard to taking up of future prospects.
8. On perusal of the Judgment and Award of the Tribunal, in para No.11 with regard to issue No.2, the Tribunal has considered the contentions of the parties and comes to the conclusion that the income of the deceased be taken as Rs.3,000/- p.m. While calculating the loss of dependency in para No.12, the Tribunal failed to consider the future prospects and there is no discussion with regard to the same. The Tribunal has also taken relevant multiplication while calculating the loss of dependency but, failed to consider the future prospects. Hence, considering the future prospects as 25% since the deceased was working as a loader, the compensation has to be enhanced. Having taken note of the 10 MFA Nos.6384/2010 C/w.1511/2010 income taken up by the Tribunal at Rs.3,000/- p.m. and by adding the future prospects as 25%, the loss of dependency would be:
Rs.3,000 + Rs.750 [Rs.3,000 x 25%] x 12 x 14 - 1/3 = Rs.4,20,000/- as against Rs.3,36,000/-.
9. On perusal of the Judgment and Award of the Tribunal, it is seen in para No.13 that the Tribunal has taken an amount of Rs.10,000/- under the head loss of love and affection, an amount of Rs.10,000/- under the head funeral expenses including the cost of transportation of the dead body. Further, awarded a sum of Rs.10,000/- under the head loss to the estate and also awarded an amount of Rs.20,000/- under the head loss of consortium. In all the Tribunal has awarded a sum of Rs.50,000/- and the same requires to be modified as Rs.70,000/- in view of the Judgment of the Larger Bench of the Hon'ble Apex Court in the case of National Insurance Company Vs. Pranay Sethi and others reported in AIR 2017 SC 5157.
10. In view of the discussion made above , I pass the following:
11MFA Nos.6384/2010
C/w.1511/2010 ORDER The appeal filed by the Insurance Company is dismissed.
The appeal filed by the claimants is partly allowed, granting compensation of Rs.4,90,000/- [Rs.4,20,000 + Rs.70,000] as against Rs.3,86,000/- and the interest allowed by the Tribunal is retained.
The amount in deposit is ordered to be transmitted to the Tribunal. The respondent/Insurance Company is directed to pay the remaining compensation amount within 6 [six] weeks from the date of receipt of copy of this Judgment.
Send the records to the Tribunal forthwith.
Sd/-
JUDGE Ksm* Ct.Jlr