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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MAY, 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.NO.559/2021(MV)
C/W.
M.F.A.NO.753/2021 (MV)
IN M.F.A.NO.559/2021 (MV):
BETWEEN:
1. SMT. JAYAMMA
AGED 47 YEARS
W/O LAKKEGOWDA
2. LOKKEGOWDA
AGED 52 YEARS
S/O LATE KURIGOWDA
BOTH ARE R/AT C/O BOREGOWDA
HOUSING BOARD COLONY
SRIRANGAPATNA TOWN AND TALUK
MANDYA DISTRICT-571401.
... APPELLANTS
(BY SRI MANJUNATH N.D., ADVOCATE)
AND:
1. RAVI
AGED 40 YEARS
S/O RANGEGOWDA
R/AT CHOTTANAHALLI VILLAGE
S.B.HALLI HOBLI, K.R.PETE TALUK
MANDYA DISTRICT-571 401
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2. THE MANAGER
IFFICO TOKIO GENERAL INSURANCE CO. LTD.,
NO.846, NEW KANTHARAJ URS ROAD
NEAR AKSHAYA BANDAR,
MYSURU-570009.
... RESPONDENTS
(BY SRI B.PRADEEP, ADVOCATE FOR R2 VIDE ORDER DATED
22.03.2021, R1 NOTICE DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 27.07.2020
PASSED IN MVC.NO.177/2018 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE, MACT, SHRIRANGAPATNA, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A.NO.753/2021 (MV):
BETWEEN:
THE BRANCH MANAGER
IFFICO TOKIO GIC LTD.,
R/AT CHOTTANAHALLI VILLAGE
S.B.HALLI HOBLI
K.R.PETE TALUK, MANDYA
NOW REP. BY ITS LEGAL OFFICER
IFFCO TOKIO GIC LTD.,
CUSTOMER SERVICE CENTER
SRI SHANTHI TOWERS,
5TH FLOOR, NGEF LAYOUT
KASTURBANAGAR
BENGALURU-560 043.
... APPELLANT
(BY SRI B.PRADEEP, ADVOCATE)
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AND:
1. SMT. JAYAMMA
W/O LAKKEGOWDA
AGED ABOUT 47 YEARS
2. LOKKEGOWDA
S/O LATE KURIGOWDA
AGED ABOUT 52 YEARS
BOTH ARE R/AT C/O BOREGOWDA
HOUSING BOARD COLONY
SRIRANGAPATNA TOWN AND TALUK
MANDYA DISTRICT.
3. RAVI, MAJOR,
S/O RANGEGOWDA
R/AT CHOTTANAHALLI VILLAGE
S.B.HALLI HOBLI, K.R.PETE TALUK
MANDYA DISTRICT.
... RESPONDENTS
(BY SRI MANJUNATH N.D., ADVOCATE R1 AND R2
(VAKALATH NOT FILED); R3-SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 27.07.2020
PASSED IN MVC.NO.177/2018 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE, MACT, AWARDING COMPENSATION OF
Rs.12,44,000/- WITH INTEREST AT 9 PERCENT P.A. FROM THE
DATE OF FILING THE PETITION TILL THE DATE OF DEPOSIT.
THESE MFA's COMING ON FOR ADMISSION THROUGH
'VIDEO CONFERENCE' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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JUDGMENT
These two appeals are filed by the claimants and the Insurance Company challenging the quantum of compensation and also the liability passed in M.V.C.No.177/2018 dated 27.07.2020 on the file of the Additional Senior Civil Judge, MACT, Srirangapatna.
2. The factual matrix of the case is that on 23.07.2017 at about 3.00 a.m. in the land of one Devachari of Giduvina Hosahalli Village, when the son of the claimants namely Lokesh was trying to remove coconut leave, struck in router attached to the tractor bearing Registration No.KA-51-T-3014, the driver of the said tractor drove it in negligent manner, as a result of which, the son of the claimants got into router and sustained grievous injuries and thereafter succumbed to the injuries.
3. It is the contention of the claimants that the deceased was aged about 25 years and was hale and healthy. He was working as an Agriculturist and was also doing milk vending business earning of Rs.20,000/- per month. Due to the 5 untimely death of their son, they have lost the source of income for their livelihood.
4. The claim petition was objected by the Insurance Company contending that the tractor was insured for the agricultural purpose however, the same was used for hire purpose and there is a violation of the terms and conditions of the policy and also denied the age, income and occupation of the deceased.
5. The claimants in order to substantiate their claim have examined second claimant as P.W.1 and another witness as P.W.2 and got marked the documents Exs.P1 to P10. On the other hand, the respondent-Insurance Company examined one witness as R.W.1 and got marked the documents Exs.R1 and R2.
6. The Tribunal, after considering both oral and documentary evidence placed on record, allowed the claim petition in part granting compensation of Rs.12,44,000/- with interest at 9% per annum and fastened the liability on the 6 respondent-Insurance Company. Hence, these two appeals are filed by the claimants as well as the Insurance Company.
7. The claimants in their appeal have contended that the Tribunal has committed an error in awarding just and reasonable compensation. The Tribunal, while calculating loss of dependency has taken the income of the deceased at Rs.7,000/- per month and added 50% as future prospects and awarded meager compensation of Rs.11,34,000/- towards loss of dependency. The counsel also would submit that the Tribunal has awarded an amount of Rs.1,10,000/- on the other conventional heads and the same is to be retained. He would further submit that this Court has to revisit for calculation of loss of dependency and award just and reasonable compensation.
8. Per contra, the learned counsel appearing for the respondent-Insurance Company would vehemently contend that the tractor was insured only for the purpose of agricultural use and the same has been used for hire purpose. The witnesses P.Ws.1 and 2 have been examined before the Tribunal and have categorically admitted that the tractor was used for hire purpose. 7 When such being the admission elicited from the mouth of witnesses P.Ws.1 and 2, it is clear that there is a violation of the terms and conditions of the policy. He would vehemently contend that the Tribunal has taken note of the income of the deceased, in the absence of any documentary proof and hence, it does not require any interference of this Court. The counsel also would vehemently contend that instead of taking 40%, the Tribunal has added 50% as future prospects and the same requires interference of this Court.
9. In reply to the arguments of the learned counsel for the respondent-Insurance Company, the counsel appearing for the claimants would rely upon the judgment of the Apex Court in the case of New India Insurance Company v. Darshana Devi and Others reported in (2008) 7 SCC 416 and referring this judgment, the counsel would vehemently contend that under Section 149(2) of Motor Vehicles Act, 1988, if there is any violation in the usage of vehicle, the Insurance Company has to pay the amount and recover the same from the owner. 8
10. Having heard the arguments of learned counsel for the claimants and the learned counsel for the respondent- Insurance Company and on perusal of the material available on record, the points that arise for consideration before this Court are:
(1) Whether the Tribunal has committed an error in not awarding just and reasonable compensation and it requires interference of this Court?
(2) Whether the Tribunal has committed an error in fastening the liability on the Insurance Company and whether it requires interference of this Court?
(3) What order?
Point No.(1)
11. Having perused the material available on record, there is no dispute with regard to the accident and the only dispute is with regard to the quantum of compensation and consideration of future prospects. The Tribunal while considering the loss of dependency has taken the income of the deceased as 9 Rs.7,000/- per month. It is not in dispute that accident has taken place in the year 2017 and in the absence of any documentary proof with regard to the income is concerned, the Tribunal has to take the notional income and in the year 2017, the notional income would be Rs.11,000/-.
12. It is rightly pointed out by the learned counsel for the respondent-Insurance Company that the Tribunal has taken 50% as future prospects. When the deceased was working as an Agriculturist and when there is no definite income, the Tribunal ought to have taken 40% towards future prospects, taking into account the age of the deceased. In the case on hand, the deceased is a bachelor and after adding 40% towards future prospects at the rate of Rs.4,400/-(11,000x40/100), the monthly income of the deceased comes to Rs.15,400/- per month. Having deducted 50% towards personal expense, it comes to Rs.7,700/-. The relevant multiplier applicable to the case on hand is 18 and after taking the income at Rs.7,700/- per month, the loss of dependency comes to Rs.16,63,200/- (7,700x12x18). In view of the principles down in the judgment 10 of the Apex Court in National Insurance Company Limited v. Pranay Sethi and Others reported in (2017) 16 SCC 680, this Court has to add an amount of Rs.30,000/- on the other conventional heads, as he was a bachelor and the claimants are parents. After adding the same, the compensation comes to Rs.16,93,200/-. Hence, point No.(1) is answered as 'affirmative'.
Point No.(2)
13. The learned counsel appearing for the respondent- Insurance Company in his arguments vehemently contends that P.Ws.1 and 2 have categorically admitted in the cross- examination that they have given the tractor for hire purpose. It is elicited in the cross-examination that one Devaraj took the tractor for hire purpose for Rs.600/- per hour and the tractor was used for hire purpose. P.W.2 also in the cross-examination admitted the same.
14. The learned counsel appearing for the claimants also not disputed the said fact in his argument and relied upon the judgment referred supra and also submit that the respondent- 11 Insurance Company has to pay the compensation and recover the same from the owner, if there is any violation in respect of the terms and conditions of the policy.
15. Having taken note of the answers elicited from the mouth of P.Ws.1 and 2, Tribunal while passing the order has come to the conclusion that mere usage of vehicle for hire purpose does not amount to violation and policy does not disclose the fact that vehicle should be used for his own purpose. Hence, fastened the liability on the respondent-Insurance Company. Having considered the reasons assigned by the Tribunal, and when the admissions are elicited from the mouth of P.Ws.1 and 2 that tractor was used for hire purpose and policy was issued for the usage of the tractor for agricultural purpose, I am of the opinion that it amounts to violation of the terms and conditions of the policy. It is rightly pointed out by the learned counsel appearing for the claimants that the Insurance Company has to pay the amount and thereafter, recover the same from the owner and the same is also not disputed by the learned 12 counsel appearing for the respondent-Insurance Company. Hence, point No.(2) is answered accordingly.
Point No.(3)
16. In view of the discussions made above, I pass the following:
ORDER
(i) The appeals are allowed in part.
(ii) The judgment and award passed by the Tribunal in M.V.C.No.177/2018 dated 27.07.2020 on the file of the Additional Senior Civil Judge, MACT, Srirangapatna is modified granting compensation of Rs.16,93,200/- as against Rs.12,44,000/- with interest at the rate of 6% per annum.
(iii) The respondent-Insurance Company is directed to deposit the amount within six weeks from today.
(iv) The Registry is directed to transmit the TCR to the concerned Tribunal forthwith.
Sd/-
JUDGE ST