Karnataka High Court
Icici Lombard General Insurance Co, Ltd vs Gangawwa Basappa Kallolli on 8 October, 2013
Bench: K.L.Manjunath, A.N.Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 08th DAY OF OCTOBER, 2013
PRESENT
THE HON'BLE MR.JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR.JUSTICE A.N.VENUGOPALA GOWDA
MISCELLANEOUS FIRST APPEAL No.20778 OF 2013 [MV]
C/w.
MISCELLANEOUS FIRST APPEAL No.21680 OF 2013 [MV]
MISCELLANEOUS FIRST APPEAL No.21874 OF 2013 [MV]
IN MFA: 20778/13:
BETWEEN:
ICICI LOMBARD GENERAL INSURANCE
COMPANY LIMITED
POLICY ISSUING OFFICE, ZENITH HOUSE,
KESHAVRAO KHADE MARG,
MAHALAXMI, MUMBAI - 400034,
REPRESENTED BY THE LEGAL MANAGER,
ICICI LOMBARD GENERAL INSURANCE
COMPANY LIMITED
BELLAD BUILDING, GOKUL ROAD,
HUBLI
... APPELLANT
(BY SRI. S K KAYAKAMATH, ADV.)
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AND:
1. GANGAWWA BASAPPA KALLOLLI
AGE: 47 YEARS, OCC:HOUSEWIFE,
R/O: YARADAL,
TAL : BAILHONGAL, DIST: BELGAUM.
2. MANJUNATH BASAPPA KALLOLLI
AGE:27 YEARS,OCC:STUDENT,
R/O: YARADAL, TAL:BAILHONGAL
DIST: BELGAUM.
3. LAKSHMI BASAPPA KALLOLLI
AGE 18 YEARS, OCC:HOUSEWIFE,
R/O: YARADAL,TAL : BAILHONGAL
DIST: BELGAUM.
4. LAXMAN NINGAPPA PARIT
AGE:MAJOR, OCC :BUSINESS,
R/O: BAILHONGAL, DIST: BELGAUM.
(OWNER OF THE VEHICLE NO.KA-24/5130)
5. RAJESHKUMAR MAHAVEER GOPAL MAHAVEER
AGE:MAJOR, OCC: BUSINESS,
R/O : H NO.106,
GALLI NO.4, NEAR RAILWAY FATAK,
SANJAY GANDHI NAGAR,
BAG, KOTA, RAJASTHAN STATE
(OWNER OF ASHOK LEYLAND
LORRY NO.RJ20/G-5807)
6. SHRIRAM GENERAL INSURANCE CO, LTD
1003, E-8, RIICO, INDUSTRIAL AREA
SITAPUR, JAIPUR,
RAJASTHAN-302022.
... RESPONDENTS
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(By Sri. HANUMANT R LATUR ADV. FOR R1-R3,
SRI. NAGARAJ C.KOLLOORI, ADV. FOR R6,
R4-5-NOTICE SERVED BUT UNREPRESENTED.)
THIS MFA IS FILED U/S 173(1) OF MV ACT 1988,
AGAINST THE JUDGMENT AND AWARD DATED:31-10-2012
PASSED IN MVC NO.411/2010 ON THE FILE OF SENIOR
CIVIL JUDGE AND MEMBER, ADDL. MACT, BAILHONGAL,
AWARDING THE COMPENSATION OF RS.27,97,410/- WITH
INTEREST AT THE RATE OF 6% P.A., SHALL BE
DEPOSITED WITHIN THREE MONTHS FROM THE DATE OF
THE ORDERS.
IN MFA: 21680/13:
BETWEEN:
SHRIRAM GEN. INS.CO.LTD.,
E-8, EPIP, RIICO, SITAPUR,
JAIPUR, RAJASTAN-302022,
REP. BY ITS AUTHORIZED SIGNATORY.
... APPELLANT
(By Sri. NAGARAJ C KOLLOORI ADV.)
AND:
1. GANGAWWA W/O BASAPPA KALLOLLI
AGE: 47 YEARS, OCC: HOUSEWIFE,
2. MANJUNATH S/O BASAPPA KALLOLLI
AGE: 27 YEARS, OCC: STUDENT,
3. LAXMI D/O BASAPPA KALLOLLI
AGE: 18 YEARS, OCC: HOUSEWIFE,
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ALL ARE R/O: YARADAL,
TQ: BAILHONGAL,
DIST: BELGAUM.
4. LAXMAN S/O NINGAPPA PARIT
AGE: MAJOR, OCC: BUSINESS,
R/O: BAILHONGAL,TQ: BAILHONGAL.
DIST: BELGAUM.
5. ICICI LOMBARD GENERAL INSURANCE CO.LTD.,
ZENITH HOUSE, KESHAWARAO KADE MARG,
MAHALAXMI,MUMBAI-400034,
NOW REPRESENTED BY ITS,
MANAGER LEGAL, 2ND FLOOR,
BELLAD BUILDING,
GOKUL ROAD, HUBLI.
6. RAJESHKUMAR MAHAVEER
S/O GOPAL MAHAVEER
AGE: MAJOR, OCC: BUSINESS,
R/O: H.NO.106 GALLI NO.4,
NEAR RAILWAY FATAK,
SANJAY GANDHI NAGAR,
BAG, KOTA-RAJASTAN.
... RESPONDENTS
(BY SRI. HANAMANTH R.LATUR, ADV. FOR R1-3,
SRI. S.K.KAYAKAMATH, ADV. FOR R5.)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:31-10-2012 PASSED
IN MVC NO.411/2010 ON THE FILE OF SENIOR CIVIL
JUDGE AND MEMBER, ADDL. MACT, BAILHONGAL,
AWARDING THE COMPENSATION OF RS.27,97,410/- WITH
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INTEREST AT THE RATE OF 6% P.A., SHALL BE
DEPSOITED THE COMPENSATION AMOUNT AT THE RATIO
OF 70:30 WITHIN THREE MONTHS FROM THE DATE OF
THE ORDER.
IN MFA: 21874/13:
BETWEEN:
1. GANGAWWA W/O BASAPPA KALLOLLI
AGE: 47 YEARS, OCC:HOUSEWIFE,
R/O: YARADAL, TAL : BAILHONGAL,
DIST: BELGAUM.
2. MANJUNATH S/O BASAPPA KALLOLLI
AGE: 27 YEARS, OCC: STUDENT,
R/O: YARADAL, TAL BAILHONGAL
DIST: BELGAUM.
3. KUMARI LAKSHMI
D/O BASAPPA KALLOLLI
AGE: 18 YEARS, OCC: STUDENT,
R/O: YARADAL, TAL : BAILHONGAL,
DIST: BELGAUM.
... APPELLANTS
(BY SRI. HANAMANT R LATUR ADV.)
AND:
1. LAXMAN S/O NINGAPPA PARIT
AGE: 50 YEARS, OCC:BUSINESS,
R/O : BAILHONGAL,
DIST: BELGAUM.
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2. ICICI LOMBARD GENERAL INSURANCE CO, LTD
POLICY ISSUING OFFICE ZENITH
HOUSE, KESHWARAO KADE MARG,
MAHALAXMI, MUMBAI -400034.
3. SRI.RAJESHKUMAR MAHAVEER
S/O GOPAL MAHAVEER,
AGE: 50 YEARS, OCC: BUSINESS,
R/O H.NO.106, GALLI NO.4,
NEAR RAILWAY FATAK,
SANJAY GANDHI NAGAR,
BAG, KOTA-RAJASTAN.
4. SRRIRAM GENERAL INSURANCE CO.LTD.,
1003 E8, RIICO INDUSTRIAL AREA
SITAPUR, JAIPUR,
RAJASTAN-302022.
... RESPONDENTS
(BY SRI. S.K.KAYAKAMATH, ADV. FOR R2,
SRI. NAGARAJ C KOLLOORI, ADV. FOR R4)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:31-10-2012 PASSED
IN MVC NO.411/2010 ON THE FILE OF SENIOR CIVIL
JUDGE AND MEMBER, ADDL. MACT, BAILHONGAL, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
These appeals coming on for Admission this
day, K.L.MANJUNATH, J., delivered the following:
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J U D G M E N T
Though, these appeals are listed for admission, with the consent of learned counsel for all the parties, appeals are heard on merits and disposed of.
2. These appeals arise out of the judgment and award passed in MVC No.411/2010 on the file of Additional MACT, Bailhongal, dated 31.10.2012.
3. The appellants in MFA No.21874/2013 are the claimants before the Tribunal. Being not satisfied with the compensation awarded to them, the present appeal is filed for enhancement. MFA No.20778/2013 is filed by M/s.ICICI Lombard General Insurance Company Limited challenging the liability as well as the quantum of compensation awarded by the Tribunal. MFA No.21680/2013 is filed by M/s.Shriram General Insurance Company Limited, challenging the :8: liability saddled on the Company to an extent of 30%.
4. Since, all these appeals arise out of the judgment and award passed in MVC No.411/2010, by consent of parties, all the appeals are taken together.
5. The facts leading to these appeals are as hereunder:-
The claimants are the widow and two children of one Basappa Kallolli, who died in a road traffic accident in the early morning on 06.01.2010. While he was travelling in a Tempo Trax bearing No.KA-24/5130 along with his colleagues from Bailhongal to Bangalore, their vehicle met with an accident near Kunchaganalli village gate of Chitradurga on National Highway No.4, on account of rash and negligent driving of the Tempo Trax which dashed against the truck proceeding ahead :9: of it due to the lorry driver applying the brake suddenly without giving any indication. The passengers in the Tempo Trax sustained injuries and four of them died in the accident. The deceased along with his colleagues in order to attend the conference in Bangalore were proceeding to Bangalore.
6. The deceased was working as a Lineman at HESCOM drawing salary of Rs.21,288/- per moth. The claimants are the widow and two children. Claimant No.2 is the son aged about 24 years and claimant No.3 is the minor daughter of deceased. It was contended by M/s.ICICI Lombard General Insurance Company that the liability cannot be saddled on it, because, the person who was driving the Tempo Trax did not possess valid driving licence to drive the passenger vehicle since, he had driving licence to drive light motor : 10 : vehicle (Non-transport). It was also contended by M/s.Shriram General Insurance Company Limited-- the insurer of the truck, that driver of the truck bearing No.RJ/G-5807 was in no way responsible for the occurrence of accident. Since, the charge- sheet is filed against the driver of the Tempo- Trax, the case against the owner and insurance company of the truck bearing No.RJ/G-5807 has to be dismissed.
7. Along with the claim petition of the claimants, nine other claim petitions were clubbed and common evidence was recorded and common judgment has been delivered by the Tribunal. The Tribunal after considering the evidence let-in by the parties, came to the conclusion that the accident occurred due to the contributory negligence of both drivers of truck and temp trax. The Tribunal, considering the evidence of PW-6 : 11 : who lodged FIR before the Police, came to the conclusion that the accident occurred due to sudden application of brake by the driver of the truck which was proceeding ahead of the tempo trax and further came to the conclusion that the driver of the tempo trax was rash and negligent in driving the vehicle. Accordingly, fixed the liability at the ratio of 70:30 on the insurance company of the tempo trax and truck respectively. The Tribunal also came to the conclusion that since the driver had possessed valid driving licence to drive a light motor vehicle (Non-transport), liability has to be born by the insurance company of the tempo trax to an extent of 70%.
8. Considering the age of deceased and his salary, Tribunal came to the conclusion that claimants are entitled for a sum of Rs.27,37,410/- under the head of loss of dependency after : 12 : deducting 1/3 r d towards his personal expenditure, so also the professional tax and income tax to be payable by the deceased and a sum of Rs.60,000/- is awarded under the conventional heads. Thus, in all a sum of Rs.27,97,410/- has been awarded by the Tribunal, saddling the liability on both the insurance companies at the ratio of 70:30.
9. The claimants have filed this appeal contending that the Tribunal did not consider the future prospects of the deceased and that the compensation awarded under the conventional heads is on the lower side.
10. M/s.ICICI Lombard General Insurance Company Limited has filed the appeal contending that since the driver of the tempo trax did not possess valid driving licence to drive a light motor vehicle (transport) and as he was authorised to drive a light motor vehicle (Non-transport), it : 13 : cannot be made liable to pay compensation. It was also contended that the quantum of compensation awarded is on the higher side and that saddling of 70% liability against M/s. ICICI Lombard General Insurance Company is also incorrect, because the Tribunal did not consider the fact that the accident occurred due to contributory negligence of the drivers of both the vehicles and hence, should have apportioned contributory negligence at the ratio 50% each.
11. Per contra, learned advocate appearing for M/s.Shriram General Insurance Company contends that since the truck driver was no way responsible for the cause of accident, saddling the liability to the extent of 30% is bad in law.
12. Having heard the learned counsel for the parties, we are of the opinion that the following points are to be considered in these appeals:- : 14 :
(i) W hether the liability saddled at the ratio 70:30 on both the insurers of the vehicles has to be modified?
(ii) W hether M/s. ICICI Lombard General
Insurance Company is liable to
satisf y the award on account of the
driver of the tempo trax non-
possessing of driving licence to drive a light motor vehicle (Non-transport)?
(iii) W hether the compensation awarded by the Tribunal is required to be interfered with?
13. REG. POINT NO.1: So far as the liability of the insurance companies is concerned, it is not disputed by the learned counsel appearing for the parties that the truck in question was proceeding ahead of the tempo trax. PW-6 is the claimant and also the complainant who lodged FIR. In his evidence, he has categorically deposed that the driver of the tempo trax was proceeding behind the truck in question in a rash and : 15 : negligent manner. Since, all of a sudden the truck driver applied the brake, driver of the tempo trax could not control his vehicle and dashed against the truck. Though, the learned counsel appearing for M/s.Shriram General Insurance Company has cross-examined PW-6, he has not challenged the version of PW-6 in regard to the manner in which the accident has occurred.
14. When PW-6, who is an eye witness-cum- injured, has deposed that on account of the sudden applying of brake by the truck driver the tempo trax dashed against the lorry, therefore, it was for the truck driver to explain the reasons for sudden applying of brake by him. Similarly, it was also possible for the driver of the truck that he did not apply the brake and he was proceeding ahead in the normal speed and the driver of the tempo trax dashed against the truck negligently. It is : 16 : also not suggested by the learned counsel for M/s.Shriram General Insurance Company Limited to PW-6 in regard to non-applying of brake by the truck driver. In such circumstances, if the Tribunal has fixed the liability on both the insurance companies, holding that the drivers of both the vehicles were negligent in driving their vehicles, this Court cannot find fault with the same. Accordingly, we answer point No.1.
15. REG. POINT NO.2: So far as the contention of M/s.ICICI Lombard General Insurance Company Limited is concerned, in view of the judgment of the Apex Court in the case of S.IYYAPAN Vs. UNITED INDIA INSURANCE COMPANY LIMITED AND ANOTHER [(2013) 7 SCC 62], even if the contention of the appellant is accepted that the driver of the tempo trax had possessed the driving licence to drive a light : 17 : motor vehicle (Non-transport), the same will not take away the right of the owner to call upon the insurance company to satisfy the award. Accordingly, Point No.2 is answered in the affirmative.
16. In view of answering the aforesaid two points, the other question to be answered by us is whether the quantum of compensation awarded by the Tribunal required to be interfered with or not.
17. REG. POINT NO.3: So far as this point is concerned, admittedly the deceased was aged 50 years and was working as a Lineman. There is no evidence to show that he had future prospects. When such evidence is not there, if the said prospects is not considered by the Tribunal, this Court cannot find fault with the Tribunal. In addition to that, we are also of the opinion that the claimants' case for future prospects cannot be : 18 : considered, because, though no document is produced by the claimants to show that the deceased was getting income from agricultural source to an extent of Rs.70,000/- per annum, still the Tribunal has awarded including the income of Rs.70,000/- per annum while calculating the loss of dependency. When the deceased was a Lineman, permanently employed in HESCOM, question of getting agricultural income will not arise at all, more so in the background of claimant No.2 was 25 years old and who can look after the agricultural lands. The claimants have not let-in any evidence to show that the deceased, in addition to his regular work was also looking after the agricultural operation and getting income. In view of inclusion of income of Rs.70,000/- per annum under the head of agricultural income, question of considering the future prospects does not arise at all. So far as applying the multiplier : 19 : by deducting 1/3 r d is concerned, learned counsel for claimant has no grievance.
18. His another grievance is, inadequate awarding of compensation under the conventional heads. The Hon'ble Supreme Court in the case of RAJESH AND OTHERS Vs. RAJBIR SINGH (2013 ACJ 1403) has held that consortium of Rs.1,00,000/- is to be awarded to the widow. Considering the age of widow in the present case, we are of the opinion that she is not entitled for consortium of Rs.1,00,000/-. Therefore, we are of the opinion that in addition to the compensation awarded under the conventional heads, the claimants are entitled to a further sum of Rs.50,000/-.
In the result, MFA Nos.20778/2013 and
21680/2013 are dismissed. MFA No.21874/2013
is allowed in part holding that the
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appellants/claimants are entitled for an enhanced compensation of Rs.50,000/- with interest at the rate of 6% per annum from the date of petition till the date of payment.
The amount in deposit in MFA Nos.20778/2013 and 21680/2013 is ordered to be transferred to the Tribunal.
SD/-
JUDGE SD/-
JUDGE Ct:byg/-
RK/-