Karnataka High Court
National Insurance Company Limited vs Shakila A Shetty on 13 October, 2020
Author: S.Sujatha
Bench: S.Sujatha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF OCTOBER, 2020
PRESENT
THE HON'BLE MRS.JUSTICE S.SUJATHA
AND
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
M.F.A.No.6357/2019 (MV)
BETWEEN :
NATIONAL INSURANCE COMPANY LIMITED
VERTICAL 101 106, BMC HOUSE,
N1 CONNAUGHT, NEW DELHI,
NOW REP BY ITS REGIONAL OFFICE,
NO.144, SHUBHARAM COMPLEX,
M.G.ROAD, BENGALURU-560 001
REP. BY ITS AUTHORIZED SIGNATORY. ...APPELLANT
(BY SRI A.M.VENKATESH, ADV.)
AND :
1. SHAKILA A. SHETTY
AGED ABOUT 44 YEARS.
2. AKANKSHA A. SHETTY
AGED ABOUT 17 YEARS.
3. AADHYA A. SHETTY
AGED ABOUT 8 YEARS.
RESPONDENT No.1 IS THE WIFE &
2 & 3 ARE MINOR CHILDREN OF
LATE ANIL KUMAR SHETTY
(SINCE RESPONDENT No.2 & 3 ARE
MINIORS, THEY ARE REP. BY THEIR
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MOTHER & NATURAL GUARDIAN
1ST RESPONDENT.
ALL ARE R/AT H.NO.2-342,
'AVIGNA', BHATRAHADI ROAD,
THRASI, KUNDAPURA-576 235
4. GULABI K. SHETTY
W/O KORAGU SHETTY,
AGED ABOUT 75 YEARS,
R/AT MUDKELABETTU,
CHERKADI VILLAGE,
BRAHMAVARA,
UDUPI TALUK & DISTRICT
5. RAGHAVENDRA ACHARYA
S/O RAMACHANDRA ACHARYA,
AGED ABOUT 52 YEARS,
R/AT GOWRI NILAYA,
VADIRAJA ROAD, BAILEKARE,
UDUPI TALUK & DISTRICT. ...RESPONDENTS
(BY SRI HAREESH BHANDARY T., ADV. FOR R-1 TO R-4;
SRI VYASA RAO K.S., ADV. FOR R-5;
R-2 & R-3 ARE MINORS & REP. BY R-1.)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
16.04.2019 PASSED IN MVC No.649/2016 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE & ADDITIONAL MACT, UDUPI,
AWARDING COMPENSATION OF Rs.58,61,792/- WITH INTEREST
AT 6% P.A. FROM THE DATE OF PETITION TILL FULL AND FINAL
REALIZATION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
S. SUJATHA, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment and award dated 16.04.2019 passed in MVC No.649/2016 -3- on the file of the Additional Motor Accident Claims Tribunal and Principal Senior Civil Judge, Udupi ('Tribunal' for short), whereby the petition filed by the claimants under Section 166 of the Motor Vehicles Act, 1988 ('Act' for short) has been partly allowed with costs.
2. The claim petition was filed by the claimants contending that on 15.02.2015 at about 17.30 hours, the deceased - Anil Kumar Shetty while traveling as a pillion rider in a motor bike bearing registration No.KA- 20EB-202, met with the motor vehicle accident due to the actionable negligence of the rider of the another motor vehicle bearing registration No.KA-20Y-9853. It was averred that the deceased - Anil Kumar Shetty sustained grievous multiple injuries and was immediately shifted to KMC hospital, Manipal, wherein he succumbed to the injuries. It was contended that the deceased - Anil Kuamar Shetty was aged about 46 years at the time of the accident and was working as -4- Physical Education Teacher in Government School at Kavadi. He was earning Rs.49,000/- per month. The claimants being the wife, minor children and mother of the deceased have suffered shock and mental agony due to the untimely death of the deceased - Anil Kumar Shetty.
3. On service of notice issued by the Tribunal, the respondents appeared and denied the petition averments. The specific defence taken by the insurer was that rider of the offending vehicle had no valid and effective driving licence as on the date of the accident.
4. Based on the pleadings, the Tribunal has framed the issues and answered in the affirmative awarding total compensation of Rs.58,61,792/- with interest at the rate of 6% per annum from the date of the petition till its final realization, fastening the liability on the insurer and owner jointly and severally. The insurer has been directed to deposit the amount within -5- one month from the date of the order. Liberty is reserved with the insurer to pay the compensation amount first and then recover the same from the owner.
5. Being aggrieved, the insurer is in appeal.
6. Learned counsel for the appellant/insurer argued that the Tribunal failed to appreciate the manner of the occurrence of accident, in particular the negligence aspect for the cause of the accident in question. The sketch and the scene of occurrence of the accident indicates that it was a junction road i.e., Indrali junction and vehicles proceeding towards junction ought to have been careful while crossing the junction. Hence, the Tribunal ought to have considered both Exs.R4 and R5 i.e., complaint and FIR filed by one Shantharam Shetty more carefully and ought to have fixed negligence on the rider of the motorcycle i.e., Laxman Suvarna on which the deceased was proceeding as a pillion rider. Even otherwise, contributory -6- negligence ought to have been fixed on the rider of the motorcycle on which the deceased was proceeding, but the Tribunal has fixed the entire negligence on the rider of the motorcycle bearing registration No.KA-20Y-9853. Learned counsel argued that the rider of the insured vehicle had no valid and effective driving licence at the time of the accident and as such the insurer is exonerated from indemnifying the insured - registered owner therebeing breach of policy conditions. Further, the learned counsel submitted that the Tribunal proceeded to award compensation sans deducting income tax to reckon the loss of dependency. The compensation awarded under the different heads also being excessive, the same calls for interference by this Court.
7. Learned counsel for the claimants supporting the impugned judgment and award submitted that the negligence of the rider of the -7- offending vehicle has been established. Even otherwise, the deceased being a pillion rider, the negligence aspect would be of little assistance to the insurer. Learned counsel contended that the claimants are entitled to compensation under the beneficial legislation even in cases of composite negligence without impleading the registered owner/insurer of the other vehicle. Hence, the contention raised by the insurer inasmuch as the negligent aspect deserves to be negated. As regards quantum, learned counsel fairly submitted that the income has to be determined after deducting tax components i.e., income tax as well as professional tax. He further submitted that the claimants are entitled to compensation towards filial consortium as well as parental consortium in the light of the recent judgment of the Hon'ble Apex Court in the case of New India Assurance Company Limited vs. Somwati and Others reported in 2020 SCC ONLINE SC 720 in -8- addition to Rs.70,000/- awarded by the Tribunal towards conventional heads.
8. We have given our anxious consideration to the arguments advanced by the learned counsel appearing for the parties and perused the original records.
9. The points that would arise for our consideration are:
1) Whether the Tribunal was justified in fixing the negligence on the part of the rider of the offending vehicle bearing registration No.KA-20Y-9853 and awarding compensation to the claimants?
2) Whether the compensation awarded by the Tribunal is just and proper in the facts and circumstances of the case?
Re. Point No.1
10. It is well settled that no negligence could be attributed to the pillion rider. It is not in dispute that the deceased was traveling as a pillion rider in the -9- motorbike bearing registration No.KA-20EB-202 on the ill-fated day. The contention of the learned counsel for the insurer is that an attempt made by the insurer to implead the registered owner/insured of the vehicle bearing registration No.KA-20EB-202 was declined by the Tribunal by rejecting the application filed in that regard. It is well settled by now that the claimants can exercise their option to claim compensation, if two or more vehicles are involved in the accident and there is composite negligence alleged between the riders/drivers of the two or more vehicles involved in the accident. This view is fortified by the judgment of the Hon'ble Apex Court in Khenyei Vs. New India Assurance Company Limited and others reported in (2015) 9 SCC 273. On the other hand, what is significant to note from the material on record is that the rider of the offending vehicle has driven the vehicle in a rash and negligent manner, the cause for the accident in question. The police records supports the case of the
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claimants. Viewed from any angle, no negligence can be attributed to the pillion rider i.e., the deceased - Anil Kumar Shetty. Hence, Point No.1 has to be answered in favour of the claimants negating the arguments of the learned counsel for the appellant - insurer. Re.Point No.2
11. The Tribunal has assessed the income of the deceased only deducting professional tax but not the income tax which indeed was liable to be paid by him having regard to the monthly income of Rs.39,802/- drawn by him as evinced from the salary certificate at Ex.P8. Deducting the professional tax of Rs.200/- per month the monthly income comes to Rs.39,602/-. By adding 30% towards future prospects considering the regular/stable job of the deceased as the Physical Education Teacher in Government School, Kavadi and his age as 46 years, the monthly income would be Rs.51,482/-. Annual income comes to Rs.6,17,784/-.
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After deducting income tax, the annual income of the deceased comes to Rs.5,69,228/-. Applying the multiplier '13' and deducting 1/4th towards personal and living expenses of the deceased, the loss of dependency would work out to Rs.55,49,973/- (5,69,228 x 13 x ¾).
12. In terms of the dictum of the Hon'ble Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others ((2017)16 SCC 680) and Somwati, supra, the claimants are entitled to compensation of Rs.40,000/- towards loss of spousal consortium; Rs.80,000/- towards loss of parental consortium (Rs.40,000/- to each minor child); Rs.40,000/- towards loss of filial consortium; Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses.
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13. For the reasons aforesaid, the total compensation awarded by the Tribunal is re-assessed as under:
Sl.No. Particulars Amount [in Rs.]
1. Loss of dependency 55,49,973/-
Loss of Spousal
2. 40,000/-
Consortium
3. Loss of Estate 15,000/-
Towards Funeral
4. 15,000/-
expenses Loss of parental
5. consortium (Rs.40,000/- 80,000/-
to each minor child)
6. Loss of filial consortium 40,000/-
Total 57,39,973/- Thus, the claimants shall be entitled to total
compensation of Rs.57,39,973/- with interest at the rate of 6% per annum from the date of the claim petition till the date of realization.
14. The Tribunal having held that admittedly no driving licence was renewed during the relevant period of accident, directed the insurance company to pay the compensation and recover it from the respondent
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No.5/registered owner. The said finding is in conformity with the judgment of the Hon'ble Apex Court in Pappuu and others Vs. Vinod Kumar Lamba & another reported in AIR 2018 S.C.592 and the Full Bench decision of this Court in New India Assurance Company Limited Vs. Yallavva & others in MFA No.30131/2010 (D.D.12.5.2020). We approve the same.
15. Hence, the following:
ORDER
i) The appeal is allowed in part.
ii) The total compensation awarded by the Tribunal is modified and reduced to Rs.57,39,973/-
(Rupees Fifty Seven Lakhs Thirty Nine Thousand Nine Hundred and Seventy Three only) as against Rs.58,61,792/- with interest at the rate of 6% per annum from the date of the claim petition till its realization.
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iii) The appellant-insurer and respondent No.5- registered owner are liable to pay the compensation amount.
iv) The appellant being the insurer has to deposit the amount within one month from the date of receipt of certified copy of the judgment and order. Liberty is reserved with the appellant - insurer to pay the compensation amount first and then recover it from the registered owner i.e., respondent No.5.
v) The portion of the order of the Tribunal inasmuch as apportionment and disbursement remains intact.
vi) The modified compensation amount shall be apportioned and disbursed in terms of the order of the Tribunal.
vii) Draw modified award accordingly.
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viii) The Registry shall transfer the amount in deposit with original records to the jurisdictional Tribunal forthwith.
ix) All pending I.As. stand disposed of.
Sd/-
JUDGE Sd/-
JUDGE PMR