Karnataka High Court
The Divisional Manager vs N. Ningaiah S/O K. Bheemappa on 8 August, 2022
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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MFA No. 100410 of 2017
C/W MFA No. 102288 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
MISC.FIRST APPEAL NO.100410 OF 2017 (MV-D)
C/W
MISC.FIRST APPEAL NO.102288 OF 2017 (MV-D)
IN M.F.A.NO.100410/2017
BETWEEN:
THE DIVISIONAL MANAGER,
M/S ORIENTAL INSURANCE COMPANY LTD.,
BALLARI, REPRESENTED BY ITS
AUTHORIZED SIGNATORY DEPUTY MANAGER,
ORIENTAL INSURANCE CO. LTD.,
REGIONAL OFFICE, SUMANGALA COMPLEX,
LAMINGTON ROAD,HUBBALLI-580020.
...APPELLANT
(BY SRI. G.N.RAICHUR, ADVOCATE)
AND:
1. N. NINGAIAH S/O K. BHEEMAPPA,
AGE: 52 YEARS, SECURITY GUARD.
2. K. MAREMMA W/O N. NINGAIAH,
AGE: 47 YEARS, OCC: HOUSEWIFE.
3. K.M. SHASHIDHAR S/O N. NINGAIAH,
AGE: 26 YEARS, OCC: STUDENT.
4. K.M. JITENDRA S/O N. NINGAIAH,
AGE: 20 YEARS, OCC: STUDENT,
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MFA No. 100410 of 2017
C/W MFA No. 102288 of 2017
ALL ARE R/O: KAPPAGAL ROAD,
4TH CROSS, BALLARI.
5. K.R. PULLAKESH @ SHIVAKUMAR,
S/O RAMANJINEYAIAH,
AGE: 30 YEARS, OCC: AGRICULTURIST,
DRIVER OF THE BAJAJ DISCOVER
MOTORCYCLE BEARING REG NO.KA-35/Q-7970,
R/O: 3RD WARD, YASHWANT NAGAR,
SANDUR TALUK, BALLARI DISTRICT.
6. K.M. RAMANJINEYA S/O K.M. NAGAPPA,
AGE: 62 YEARS, OWNER OF BAJAJ DISCOVER
MOTORCYCLE BEARING REG.NO.KA-35/Q-7970,
R/O: C/O PADMANABHA MAHADEVI SADANA,
4TH CROSS, M.J. NAGAR,
HOSAPETE, BALLARI DISTRICT.
...RESPONDENTS
(BY SRI. MANJUNATH JADAI, ADVOCATE FOR R1-R4.,
R5 AND R6 SERVED)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED 26.07.2016 PASSED
IN MVC.NO.655/2014 ON THE FILE OF THE MEMBER, MOTOR
ACCIDENT CLAIMS TRIBUNAL-XII, BALLARI, AWARDING
COMPENSATION OF Rs.10,93,000/- WITH INTEREST AT 7% P.A.
FROM THE DATE OF PETITION TILL ITS DEPOSIT.
IN M.F.A.NO. 102288/2017
BETWEEN:
1. N. NINGAIAH S/O K. BHEEMAPPA,
AGE: 53 YEARS, SECURITY GUARD.
2. K. MAREMMA W/O N. NINGAIAH,
AGE: 48 YEARS, OCC: HOUSEWIFE.
3. K.M. SHASHIDHAR S/O N. NINGAIAH,
AGE: 27 YEARS, OCC: STUDENT.
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MFA No. 100410 of 2017
C/W MFA No. 102288 of 2017
4. K.M. JITENDRA S/O N. NINGAIAH,
AGE: 21 YEARS, OCC: STUDENT,
ALL ARE R/O: KAPPAGAL ROAD,
4TH CROSS, BALLARI.
...APPELLANTS
(BY SRI. MANJUNATH JADAI, ADVOCATE)
AND:
1. K.R. PULLAKESHI @ SHIVAKUMAR,
S/O K. M. RAMANJINEYAIAH,
AGE: 31 YEARS, OCC: AGRICULTURIST,
DRIVER OF THE MOTORCYCLE
BEARING NO.KA-35/Q-7970,
R/O 3RD WARD, YASHWANT NAGAR,
SANDUR TALUK, BALLARI DISTRICT.
2. K.M. RAMANJINEYA S/O K.M. NAGAPPA,
AGE: 63 YEARS, OWNER OF THE MOTORCYCLE
BEARING NO KA-35/Q-7970,
R/O: C/O. PADMANABHA MAHADEVI SADANA,
4TH CROSS, M.J. NAGAR,
HOSAPETE IN BALLARI DISTRICT.
3. THE DIVISIONAL MANAGER,
M/S ORIENTAL GENERNAL INSURANCE COMPANY LTD.,
BALLARI.
...RESPONDENTS
(BY SRI. G.N.RAICHUR, ADVOCATE FOR R3;
R1- NOTICE DISPENSED WITH; R2 SERVED)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED 26.07.2016
PASSED IN MVC.NO.655/2014 ON THE FILE OF THE MEMBER, MOTOR
ACCIDENT CLAIMS TRIBUNAL-XII, BALLARI, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
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MFA No. 100410 of 2017
C/W MFA No. 102288 of 2017
THESE APPEALS ARE COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Challenging judgment and award dated 26.07.2016 passed by Motor Accident Claims Tribunal-XII, Ballari (for short, 'Tribunal') in MVC.No.655/2014, these appeals are filed. MFA No.100410/2017 is filed by insurer on liability and quantum while MFA No.102288/2017 is filed by claimants seeking for enhancement of compensation.
2. Though appeals are listed for admission, with consent of learned counsel for parties, they are taken up for final disposal.
3. Brief facts giving rise to these appeals are that on 29.10.2013 at about 4.30 p.m. Smt.Muttu Lakshmi w/o K.R.Pullakeshi and respondent no.1 were proceeding on motorcycle bearing registration No.KA-35/Q-7970 from Yashwanth Nagar to Ramasagara Village on Kampli-Hosapete Road. Near Pampa Vidyapeeta, 1st respondent rode said -5- MFA No. 100410 of 2017 C/W MFA No. 102288 of 2017 motorcycle in a rash and negligent manner due to which she fell down and sustained grievous injuries. Despite treatment at Government Hospital, Kampli and later at VIMS Hospital, Ballari, she did not recover and died. As on date of accident, she was 22 years of age, working as housewife-cum-tailor and earning Rs.12,000/- per month. Alleging loss of dependency due to her sudden demise, her parents and siblings filed claim petition under Section 166 of M.V. Act against owner and insurer of offending motorcycle.
4. On receipt of summons, respondent no.3- insurer filed objections denying claiming petition averments. Claim was opposed as being excessive and exorbitant. Violation of policy conditions by insured was also alleged. Even age, occupation, income and loss of dependency sustained were disputed.
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5. Based on averments, tribunal framed following issues:
i. Whether petitioners prove the death of one Smt.Muttu Lakshmi W/o K.R.Pullakeshi in RTA that was occurred on 29.10.2013 at about 4.30 p.m., on Kampli - Hospet road near Pampa Vidyapeeta in Hospet, due to rash and negligent riding of the Bajaj Discover Motorcycle bearing Regn.No.KA.35/Q.7970 by the first respondent?
ii. Whether third respondent proves that, first respondent was not having valid and effective DL to drive the said vehicle as on the date of accident?
iii. Whether petitioners are entitle for compensation as prayed for?
iv. What order or an award?
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6. Claimant no.1 was examined as PW.1 and Exs.P1 to P6 were marked. An official of insurer was examined as RW.1 and copy of insurance policy marked as Ex.R1.
7. On consideration, tribunal answered issue no.1 in affirmative, issue no.2 in negative, issue no.3 partly in affirmative and issue no.4 by allowing claim petition in part, assessing compensation of Rs.10,93,000/- with 7% interest per annum and holding respondents no.1 to 3 liable to pay the same jointly and severally.
8. Assailing award, both claimants and insurer are in appeal.
9. Sri. G.N. Raichur, learned counsel for appellant - insurer submitted that impugned award passed by tribunal was exorbitant, arbitrary and excessive. Claimants could not be treated as legal heirs of deceased. Tribunal erred in assessing future -8- MFA No. 100410 of 2017 C/W MFA No. 102288 of 2017 prospects even monthly income considered as well as rate of interest awarded were excessive and sought for allowing his appeal and dismissing claim petition.
10. On other hand, Sri. Manjunath Jadai, learned counsel appearing for claimants submitted that impugned judgment and award was grossly inadequate and not commensurate to loss sustained. Though deceased was 22 years of age, working as housewife-cum-tailor and earning Rs.12,000/- per month, tribunal erroneously considered her monthly income at meager amount of Rs.5,000/- per month. It was further submitted that tribunal erred in adding 30% future prospects even award under conventional heads were inadequate and sought for enhancement.
11. From above submission, occurrence of accident involving insured vehicle due to rash and negligent riding by its rider leading to death of -9- MFA No. 100410 of 2017 C/W MFA No. 102288 of 2017 Smt.Muttu Lakshmi is not in dispute as insurer is not challenging award on negligence. While claimants are seeking for enhancement of compensation, insurer is seeking for its reduction. Hence, points that arise for consideration are:
i. Whether assessment of compensation by tribunal calls for interference?
ii. Whether rate of interest awarded by tribunal is justified?
12. In order to establish that accident occurred due to rash and negligent riding of insured motorcycle, claimants produced FIR with complaint, spot panchanama and PM report marked as Exs.P1 to P3. To establish relationship, they produced Aadhaar cards and Ration card as Exs.P4 to P6.
13. As per Ex.P3 - PM report deceased was 22 years of age. Though they claimed that she was working as housewife-cum-tailor and earning Rs.12,000/- per month, no specific evidence was led
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MFA No. 100410 of 2017 C/W MFA No. 102288 of 2017 to substantiate same. Hence, tribunal was justified in assessing income on notional basis. But accident occurred during year 2013. Notional income fixed for said year for settlement of cases before Lok Adalat is Rs.7,000/-. Therefore, tribunal was not justified in taking it at Rs.5,000/-. It has to be considered at Rs.7,000/-.
14. Claimants are parents and siblings of deceased. Claimant no.1 is employed while claimants no.3 and 4 would be dependent on claimant no.1. Therefore, only claimant no.2 would be dependent. Deceased was self employed and aged below 40 years. As per decision of Hon'ble Supreme Court in case of National Insurance Company Limited v/s Pranay Sethi reported in (2017) 16 SCC 680, there has to be addition of 40% of income towards future prospects and deduction towards personal expenses will have to be at '½'. Multiplier applicable
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MFA No. 100410 of 2017 C/W MFA No. 102288 of 2017 would be '18'. Thus, loss of dependency would be as follows:
[Rs.7,000 + 40% (future prospects) - ½ (personal expenses) X 12 X 18 = Rs.10,58,400/-]
15. As per decision of Hon'ble Supreme Court in Magma General Insurance Co., Ltd. v/s Nanu Ram @ Chuhru Ram & Ors. reported in (2018) 18 SCC 130, each of claimants would be entitled to loss of consortium at Rs.40,000/- each.
16. They would also be entitled to Rs.15,000/- towards funereal expenses and Rs.15,000/- towards loss of estate. Since more than three years have lapsed after rendering of decision in Pranay Sethi (supra), they would be entitled for addition of 10% to award under conventional heads.
17. Thus total award under conventional heads would be as follows:
Rs.1,60,000 + 15,000 + 15,000 + 10% = Rs.2,09,000/-.
- 12 -MFA No. 100410 of 2017 C/W MFA No. 102288 of 2017
18. Thus total compensation would be as follows:
Sl. Amount in
Description
No. Rupees
1. Loss of dependency 10,58,400/-
2. Conventional heads 2,09,000/-
Total 12,67,400/-
Hence, point no.1 is answered partly in
affirmative as above.
19. While passing impugned award, tribunal has granted interest @ 7% per annum without assigning any specific reason. This Court in case of Shriram General Insurance Limited v/s Smt. Laxmi and others reported in 2018 (4) AKR 808 has held that rate of interest in motor accident claims has to be at 6%. Thus tribunal would not be justified in awarding it at 7%. Point no.2 is answered in negative. Rate of interest is reduced to 6%.
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MFA No. 100410 of 2017 C/W MFA No. 102288 of 2017
20. In view of above findings, I pass following:
ORDER i. MFA.No.100410/2017 is allowed in part only insofar as reduction in rate of interest to 6%.
ii. MFA.No.102288/2017 is allowed in part. Compensation is reassessed at Rs.12,67,400/- as against Rs.10,93,000/- awarded by tribunal.
iii. Amount in deposit in MFA.No.100410/2017 is ordered to be transmitted to tribunal for payment.
iv. Insurer is directed to deposit balance compensation within six weeks from date of receipt of certified copy of this order.
v. On deposit, entire enhanced
compensation to be released in
favour of claimants no.2 to 4
equally.
SD/-
JUDGE
GRD