1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA No.7425 OF 2011(MV)
C/W
MFA NO.7424 OF 2011(MV)
IN MFA 7425/2011
BETWEEN:
Smt. Anuusuya,
W/o Late. Basavaraju,
Aged about 33 years,
Residing at
Kadaseegenahalli, Nandi Hobli,
Chikkaballapur Taluk & District.
... Appellant
(By Sri.M.R.Kumaraswamy., Advocate)
AND:
1. Sri. Raghavendra,
S/o Sri. Kempaiah,
Vishwanathapura Village,
Devanahalli,
Bangalore-562 110.
2. ICICI Lombard Motor Insurance
Company Ltd.,
Zenith House,
Keshavrao Khade Marg,
Mahalaxmi,
Mumbai-400034.
2
Represented by its Regional Office,
Prestige Corniche, 1st Floor,
No.62/1, Richmond Road,
Bangalore-560 025.
... Respondents
(By Sri.S.K.Venkatachalapathy, Advocate for R1:
Sri. B.C.Shivanne Gowda, Advocate for R2)
This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated: 21.02.2011
passed in MVC No. 8989/2008 on the file of the X
Additional Judge, Member MACT, Bangalore, partly
allowing the claim petition for compensation and seeking
enhancement of compensation.
IN MFA 7424/2011
BETWEEN
1. Smt. Anuusuya
W/o late Basavaraju,
Aged about 33 years.
2. Master Prvan,
S/o Late Basavaraju,
Aged about 09 years
3. Master Suman,
S/o Late. Basavaraju,
Aged about 74 years.
4. Smt. Gowramma,
W/o late. Munishamappa,
Aged about 68 years.
All the appellants are
Residing at: kadaseegenahalli
Nandi Hobli
Chikkaballapur Taluk & District
3
Since appellant Nos.2 & 3 are
Minors they are represented
By appellant No.1 their mother
Of appellant Nos.2 & 3
As natural guardian.
...Appellants
(By Sri. M.R.Kumaraswamy, Advocate)
AND
1. Sri.Raghavendra,
s/o Sri. Kempaiah,
Vishwanathapura Village,
Devanahalli,
Bangalore-562 110.
2. ICICI Lombard Motor Insurance
Company Ltd.,
Zenith House, Keshavrao Khade marg,
Mahalakshmi, Mumbai-400034,
Represented by its Regional Office
Prestige Corniche, 1st Floor,
No.62/1, Richmond Road,
Bangalore -560 025.
...Respondents
(Sri. B.C.Shivannegowda, Advocate for R2:
R1 served and unrepresented)
This MFA is filed under Section 173(1) MV Act
against the judgment and award dated: 21.02.2011
passed in MCV No.8510/2008 on the file of the X
Additional Judge, Member MACT, Bangalore, Partly
allowing the claim petition for compensation and seeking
enhancement of compensation.
These MFAs, coming on for admission, through video
conference this day, this Court, delivered the following:
4
JUDGMENT
These two appeals are filed by the claimants challenging the judgment and award dated 21.02.2011 passed by the MACT, Bangalore City in MVC Nos.8989/2008 and 8510/2008. Since the challenge is to the common judgment, both the appeals are clubbed together, heard and common judgment is being passed.
2. Facts giving rise to the filing of the appeals briefly stated are that on 27.08.2008 at about 2.30 p.m. the claimant in MVC No.8989/2010 was proceeding as a pillion rider along with her husband Basavaraju in the motorcycle bearing registration No.KA-16/B-757. When they reached near Beerasandra Grama Gate in Devanahalli - Doddaballapura road, at that time, the driver of the tempo bearing registration No.KA-19/A-3662 drove the same at a high speed and in a rash and negligent 5 manner, dashed against the motorcycle. As a result of the aforesaid accident, the pillion rider sustained grievous injuries and the rider Basavaraju - husband of the claimant in MVC No.8989/2008 fell down, sustained grievous injuries and succumbed to the injuries in the hospital on 31.08.2008.
MVC No.8989/2008:
4. The claimant filed a petition under Section 166 of the Act on the ground that she was working as a tailor and was earning Rs.4,000/- per month. It was pleaded that she also spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the driver of the offending vehicle. Hence, claimant claimed compensation of Rs.3,00,000/-.
6
MVC No.8510/2008:
5. The claimants filed a petition under Section 166 of the Act on the ground that the deceased Basavaraju was doing agriculture and was earning Rs.12,000/- per month. Hence, claimants claimed compensation of Rs.20,00,000/-.
6. On service of notice, the respondent No.2 filed written statement in which the averments made in the petition were denied. The age, avocation and income of the claimant and the medical expenses are denied. It was pleaded that though the driver of the offending vehicle was not holding a valid and effective driving licence to drive the said vehicle. It was further pleaded that the accident has occurred due to the rash and negligent riding of the rider of the motorcycle. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant. 7 Hence, he sought for dismissal of the petition. The respondent No.1 did not appear before the Tribunal inspite of service of notice and was placed ex-parte.
6. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant herself was examined as PW-1 and got exhibited documents namely Ex.P1 to Ex.P14(a). On behalf of the respondents, an officer of the insurance company was examined as RW-1 and got marked documents as Exs.R1 to R4(a). The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the claimant sustained injuries and her husband succumbed to the injuries. The Tribunal further held that the claimants are entitled to a compensation of Rs.8,000/- and Rs.6,41,000/- 8 respectively along with interest at the rate of 6% per annum and since the owner of the offending vehicle has violated the policy conditions, dismissed the petition against the insurance company and directed the owner of the offending vehicle to deposit the compensation amount along with interest. Being aggrieved, the claimants have filed these appeals.
7. The learned counsel for the claimants has raised the following contentions:
Firstly, the Tribunal is not justified in dismissing the claim petition against the insurance company. Even as per the law laid down by the Hon'ble Apex Court in the case of AMRIT PAUL SINGH & ANOTHER vs. TATA AIG GENERAL INSURANCE COMPANY LIMITED & OTHERS ((2018) 7 SCC
558) and a Full Bench of this Court in the case of NEW INDIA ASSURANCE CO. LTD. BIJAPUR vs. 9 YALLAVVA AND ANOTHER (ILR 2020 Kar.2239), the insurance company has to pay the compensation amount with liberty to recover the same from the insured.
Secondly, in MVC No.8989/2008, the claimant has suffered abrasion over right shoulder and other injuries. The global compensation awarded by the Tribunal at Rs.8,000/- is on the lower side.
Thirdly, in MVC No.8510/2008 at the time of the accident deceased was aged about 36 years and he was an agriculturist and was earning Rs.12,000/- per month, the Tribunal is not justified in considering the monthly income of the deceased as Rs.4,000/-.
Fourthly, In view of the law laid down by the Hon'ble Apex Court in the case of NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS [AIR 2017 SC 5157], since the claimant 10 was aged about 36 years, 40% of his income has to be added towards future prospects.
Fourthly, the compensation awarded by the Tribunal on the other heads is on the lower side. Hence, he sought for allowing the appeals filed by the claimants and seeking enhancement of the compensation.
8. On the other hand, the learned counsel for the Insurance Company has raised the following contentions:
Firstly, it is not in dispute that as on the date of the accident the offending vehicle was not having valid permit. Since the insured has violated the policy conditions, the Tribunal has rightly exonerated the insurance company and dismissed the claim petition against the insurance company.
Secondly, the compensation awarded by the Tribunal in both the petitions on all the heads are just 11 and reasonable. Hence, he sought for dismissal of the appeals.
9. Heard the learned counsel for the parties. Perused the original records, judgment and award passed by the Tribunal.
10. It is not in dispute that the claimant suffered injuries and the deceased died in the accident occurred due to rash and negligent driving of the offending vehicle by its driver.
In view of the law laid down by the Hon'ble Apex Court in the case of AMRIT PAUL SINGH (supra) and a Full Bench decision of this Court in YELLAVVA (supra) the insurance company has to pay the compensation amount with liberty to recover the same. Accordingly, insurance company is directed to pay the compensation amount with liberty to recover the same from the insured.
12
Re.quantum in MVC No.8989/2008:
11. Due to the accident the claimant has suffered only abrasion over right shoulder. Hence, the compensation awarded by the Tribunal is just and reasonable.
MVC No.8510/2008:
12. The claimants have not produced any evidence or documents with regard to the income of the deceased. Therefore, the notional income has to be assessed as per the guidelines issued by the Karnataka State Legal Services Authority. Since the accident has taken place in the year 2008, the notional income has to be taken at Rs.4,500/- per month. To the aforesaid amount, 40% has to be added on account of future prospects in view of the law laid down by the Constitution Bench of the Supreme Court in 'PRANAY SETHI' (supra). Thus, the monthly income comes to Rs.6,300/-, out of 13 which, since there are 4 dependents, I deem it appropriate to deduct 1/4th towards personal expenses and therefore, the monthly income comes to Rs.4,725/-. The deceased was aged about 36 years at the time of the accident and multiplier applicable to his age group is '15'. Thus, the claimants are entitled to compensation of Rs.8,50,500/- (Rs.4,725*12*15) on account of 'loss of dependency'.
In view of the law laid down by the Supreme Court in MAGMA GENERAL INSURANCE CO. LTD. - V- NANU RAM reported in 2018 ACJ 2782, claimant No.1, wife of the deceased is entitled for compensation of Rs.40,000/- under the head of 'loss of spousal consortium', claimant Nos.2 and 3, children are entitled for compensation of Rs.40,000/- each under the head of 'loss of parental consortium' and claimant No.4, mother of the deceased is entitled for 14 compensation of Rs.40,000/- under the head 'loss of filial consortium' .
In addition, the claimants are entitled to Rs.15,000/- on account of 'loss of estate' and Rs.15,000/- on account of 'funeral expenses'.
13. Thus, the claimants are entitled to the following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 8,50,500
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of Parental 80,000
consortium
Loss of Filial consortium 40,000
Medical expenses 66,000
Total 11,06,500
The claimants are entitled to a total
compensation of Rs.11,06,500/-.
15
The Insurance Company is directed to deposit the compensation amount along with interest at 6% per annum from the date of filing of the claim petition till the date of realization, within a period of four weeks from the date of receipt of copy of this judgment with liberty to recover the same from the insured.
To the aforesaid extent, the judgment of the Claims Tribunal is modified.
Accordingly, both the appeals are disposed of.
Sd/-
JUDGE Cm/-