Karnataka High Court
The Branch Manager vs Smt Lakshmi on 29 July, 2024
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NC: 2024:KHC:29913
MFA No. 9206 of 2015
C/W MFA No. 3977 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 9206 OF 2015 C/W
MFA NO. 3977 OF 2015 (MV-D)
IN MFA NO. 9206/2015
BETWEEN:
THE BRANCH MANAGER
THE ORIENTAL INSURANCE COMPANY LIMITED
BRANCH OFFICE AT SHARADA COMPLEX, OPP. TO
KSRTC BUS STAND, CHITRADURGA, REP. BY
THE MANAGER, THE ORIENTAL INSURANCE
COMPANY LIMITED, REGIONAL OFFICE
2ND FLOOR, SUMANGALA COMPLEX
LAMINGTON ROAD, HUBLI-580 020 ...APPELLANT
(BY SRI.H.C.VRUSHABENDRAIAH, ADV.)
AND:
1. SMT LAKSHMI
AGED ABOUT 33 YEARS
HOUSEWIFE
Digitally signed by
PRAJWAL A 2. MR VEERENDRA HEGDE
Location: HIGH COURT AGED ABOUT 14 YEARS
OF KARNATAKA STUDENT
3. SHRI LAKSHMIPATHI
AGED ABOUT 13 YEARS
STUDENT
4. SHRI GOVINDAPPA
SON OF SHRI POOJARI GOVINDAPPA,
PARENT OF LATE SHRI RAJANNA,
SINCE DECEASED.
LRS. ARE R1 TO R3 AND R5
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NC: 2024:KHC:29913
MFA No. 9206 of 2015
C/W MFA No. 3977 of 2015
5. SMT LAKSHMIDEVI
WIFE OF SHRI GOVINDAPPA
AGED ABOUT 57 YEARS
HOUSEWIFE
R1 IS THE WIFE, R2 AND R3
ARE THE CHILDREN AND R4 AND R5
ARE THE PARENTS RESPECTIVELY OF
LATE SHRI RAJANNA
RESPONDENT NOS. 2 AND 3 ARE
BEING MINORS REP. BY THEIR
NATURAL GUARDIAN/MOTHER
THE 1ST RESPONDENT HEREIN
ALL THE RESPONDENTS ARE R/AT
BHOVI COLONY, BABBUR VILLAGE
AND POST, HIRIYUR TALUK
CHITRADURGA DIST - 577 598
6. SHRI K PEETER
S/O SHRI S.JOACOB THOMAS
MAJOR, SOUTH CHURCH ROAD
RAYAPURAM, CHENNAI 600 013 ...RESPONDENTS
(BY SRI.RANGEGOWDA, ADV. FOR R1 TO R5;
R2 AND R3 ARE MINORS, REP. BY R1;
VIDE ORDER DATED 11.06.2021, R1 TO R3 &
R5 ARE LRS OF DECEASED R4;
VIDE ORDER DATED 11.11.2021
NOTICE TO R6 IS HELD SUFFICIENT)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 28.10.2009
PASSED IN MVC NO.15/2008 ON THE FILE OF THE CIVIL JUDGE
(SR.DN.) AND MEMBER, ADDITIONAL MACT, HIRIYUR,
AWARDING COMPENSATION OF RS.4,00,000/- WITH INTEREST
AT 6% P.A. FROM THE DATE OF PETITION TILL REALISATION.
IN MFA NO. 3977/2015
BETWEEN:
1. SMT. LAXMI
AGED ABOUT 33 YEARS
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NC: 2024:KHC:29913
MFA No. 9206 of 2015
C/W MFA No. 3977 of 2015
W/O LATE RAJANNA
2. VEERENDRA HEGDE
AGED ABOUT 14 YEARS
S/O LATE RAJANNA
3. LAXMIPATHI
AGED ABOUT 13 YEARS
S/O LATE RAJANNA
4. SMT LAXMIDEVI
AGED ABOUT 57 YEARS
W/O GOVINDAPPA
APPELLANT NOS. 2 & 3 BEING MINORS
REP. BY THEIR MOTHER AND NATURAL
GUARDIAN APPELLANT NO.1
ALL ARE R/O BABBUR VILLAGE
BABBUR POST, BHOVI COLONY
HIRIYUR TALUK
CHITRADURGA DIST - 577 599 ...APPELLANTS
(BY SRI. RANGEGOWDA N R, ADV.)
AND:
1. K. PEETER
S/O S JAKAB THOMAS
MAJOR, R/O SOUTH CHURCH ROAD
RAYAPURAM, CHENNAI 600 013, T N
2. THE ORIENTAL INSURANCE CO LTD
BRANCH OFFICE, SHARADA COMPLEX
OPP KSRTC BUS STAND, CHITRADURGA
BY ITS BRANCH MANAGER ...RESPONDENTS
(BY SRI.H.C.VRUSHABHENDRAIAH, ADV. FOR R2;
VIDE ORDER DATED 11.06.2021,
NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 28.10.2009
PASSED IN MVC NO.15/2008 ON THE FILE OF THE CIVIL JUDGE
(SR.DN.) AND MEMBER, ADDITIONAL MACT, HIRIYUR, PARTLY
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NC: 2024:KHC:29913
MFA No. 9206 of 2015
C/W MFA No. 3977 of 2015
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
ORAL JUDGMENT
In these two appeals, both the petitioners as well as the Insurance Company have challenged the judgment and award dated 28.10.2009 passed in M.V.C.No.15/2008 by the learned Civil Judge (Sr.Dn.) and Addl.MACT at Hiriyur ('the Tribunal' for brevity).
2. For the sake of convenience, the rank of the parties shall be referred to as per their status before the Tribunal.
3. Brief facts of the case are, the husband of petitioner No.1, father of petitioner Nos.2 and 3 and son of petitioner No.4 and 5 by name Rajanna, the deceased, met with an accident on 19.09.2007 at about 8.00 p.m., while riding TVS Champ near Reliance Petrol Bunk at Hiriyur, a lorry bearing No.TN-04/AD-5724 hit against -5- NC: 2024:KHC:29913 MFA No. 9206 of 2015 C/W MFA No. 3977 of 2015 the said moped causing him grievous injuries and killing him at the spot. The petitioners being the dependants have approached the Tribunal seeking grant of compensation. The claim was opposed by the Insurance Company of the lorry on the ground that negligence is on the part of the deceased himself. After taking the evidence and hearing both sides, the Tribunal by the impugned judgment awarded compensation of Rs.4,00,000/- with interest @ 6% per annum.
4. When the petitioners put the decree into execution, the Insurance Company has filed a review petition on the ground that the Policy was not genuine, it was fake. The application filed by the Insurance Company came to be dismissed by the Tribunal. As per direction of the Tribunal, the Insurance Company deposited the compensation. Thereafter, challenging the impugned judgment and also the order on review, the Insurance Company has filed M.F.A.No.9206/2015 and the petitioners after taking the compensation from the -6- NC: 2024:KHC:29913 MFA No. 9206 of 2015 C/W MFA No. 3977 of 2015 Tribunal, pleading inadequacy and seeking enhancement of compensation, have filed M.F.A.No.3977/2015.
5. Heard the arguments of Sri.H.C.Vrushabhendraiah, learned counsel for the Insurance Company and Sri.R.Rangegowda, learned counsel for the petitioners.
6. It is contended by the learned Counsel for the Insurance Company that neither the Insurance Company nor the owner of the lorry were aware about the policy as the claimants have not produced the original policy. The policy produced was a xerox copy and the Tribunal has relied on the xerox copy of the policy. Soon after coming to know that the Policy was fake, a review petition was filed before the Tribunal and the evidence was also let in, but the Tribunal did not consider the evidence and dismissed the review petition directing the Insurance Company to deposit the compensation. When the policy itself is fake, it is the duty of the petitioners to establish existence of the policy of insurance in order to satisfy the -7- NC: 2024:KHC:29913 MFA No. 9206 of 2015 C/W MFA No. 3977 of 2015 award. In a case of fake policy, the remedy is to remand to the Tribunal for fresh consideration. To buttress his arguments, he has relied upon the judgment of this Court in National Insurance Co.Ltd. -vs- Ramesh and others1.
7. Per contra, learned Counsel for the petitioners has contended that before the Tribunal, policy of insurance has been produced and the same was admitted by the Insurance Company and it was not fake. After the impugned judgment, in the review petition, the Tribunal has permitted the Insurance Company to lead evidence. Evidence was also let in. After appreciating the evidence, the Tribunal came to the conclusion that the Insurance Company has failed to establish that the Policy was fake and directed the Insurance Company to deposit the compensation. In compliance thereof, the Insurance Company has deposited the compensation. The petitioners have already realized the compensation amount in terms of the judgment and award. It is 1 2022 ACJ 697 -8- NC: 2024:KHC:29913 MFA No. 9206 of 2015 C/W MFA No. 3977 of 2015 further contended that, the petitioners have filed this appeal seeking enhancement. The deceased was aged 30 years, he was a milk vendor, earning more than Rs.4,500/- per month, there are five dependents in the family, instead of deducting 1/4th, the Tribunal has deducted 1/3rd towards personal expenses; future prospects was not considered; notional income was considered at Rs.3,000/- only. The compensation awarded under conventional heads is inadequate and sought for enhancement.
8. I have given my anxious consideration to the arguments addressed by the learned counsel for both parties and perused the records.
9. The material on record shows that there was an accident on 19.09.2007 in which the deceased Rajanna was riding his TVS moped, hit by lorry in question near T.B.Circle of Hiriyur killing him at the spot. The prosecution papers shows that the driver of the lorry was prosecuted by the Police and sufficient evidence is -9- NC: 2024:KHC:29913 MFA No. 9206 of 2015 C/W MFA No. 3977 of 2015 available on record to show the accident and the petitioners are the dependents of the deceased entitled to claim compensation.
10. On perusal of the impugned judgment, it is pertinent to note that though the Tribunal has considered the age of the deceased at 36 years on the basis of the PM report, it has taken Rs.3,000/- as notional income and deducted 1/3rd towards personal expenses; the petitioners are the wife, two minor children and parents; there are five dependants in the family. After passing of the impugned judgment, the father of the deceased reported to be dead and as on today, there are four dependants in the family. No future prospects has been considered.
11. In a case of this nature, compensation has to be determined by following the principles settled by the Hon'ble Apex Court in National Insurance Co.Ltd. -vs- Pranay Sethi and Others 2 and Sarla Varma (Smt.) 2 (2017) 16 SCC 680
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NC: 2024:KHC:29913 MFA No. 9206 of 2015 C/W MFA No. 3977 of 2015 and Others -vs- Delhi Transport Corporation and Another3.
12. The petitioners have not produced any evidence in support of the income and therefore, the deceased is treated as a person with no proof of income and in the year 2007, one can make a reasonable case that a person with no proof of income will earn not less than Rs.4,000/-. Accordingly, the notional income of the deceased is taken. In view of the principles laid down in Pranay Sethi's case, 40% of future prospects has to be considered for the age below 40 years. Even in case of four dependants, 1/4th has to be deducted towards personal expenses. Therefore, the loss of dependency will be Rs.4,000/- + Rs.1,600/- (40%) = Rs.5,600/- - Rs.4,000/- (1/4th) = Rs.4,200/- x 12 x 15 = Rs.7,56,000/-. Since there are four dependants, deceased died leaving behind his wife, children and parents, Rs.20,000/- each towards loss of consortium to the wife; loss of love and affection to two minor children 3 (2009) 6 SCC 121
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NC: 2024:KHC:29913 MFA No. 9206 of 2015 C/W MFA No. 3977 of 2015 and mother. Towards funeral expenses and loss of estate, Rs.10,000/- each is assessed. In view of judgment in Pranay Sethi's case, since the accident is of the year 2007, 10% appreciation on the conventional heads comes to Rs.10,000/-, thereby the total compensation comes to Rs.8,66,000/- as against Rs.4,00,000/- awarded by the Tribunal, thereby, petitioners are entitled for enhancement of Rs.4,66,000/- , which is the just compensation to which the petitioners are entitled, in the facts and circumstances of the case.
13. As regards liability is concerned, the main contention of the learned counsel for the Insurance Company is that the policy is a fake one. The Insurance Company has filed an application under Order XLVII Rule 1 of CPC. The Tribunal has allowed the parties to lead evidence. Evidence was let in on behalf of the Insurance Company. The evidence relied upon by the Insurance Company to establish the policy is fake, is Divisional Manager sitting at Davangere whereas the policy was issued in the office at Chennai, no person from Chennai
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NC: 2024:KHC:29913 MFA No. 9206 of 2015 C/W MFA No. 3977 of 2015 has been examined to substantiate the same. Evidence is also silent how the Divisional Office at Davanagere is having personal knowledge about the policy, which is fake issued in the office of Chennai. the Tribunal in detail has discussed and ultimately dismissed the review petition.
14. The co-ordinate Bench of this Court in National Insurance Co.Ltd. -vs- Ramesh (supra), while dealing with similar case at para-16 observed as under:
"16. One fact which is not in dispute in the case at hand is that neither the insurance company nor the claimants produced insurance policy - vital document that was necessary to hold the insurance company liable to pay the compensation. Though the insurance company was given opportunity to lead evidence, it failed to do so before the Tribunal both in the claim petition as well as in the civil miscellaneous petition filed seeking review of the order. But the fact remains that if the policy itself is not in existence, it would go to the root of the matter in assessing the quantum of compensation and liability as to who should make good the compensation. Since the allegation is one of fraud and if proved by the insurance company would unravel the entire proceedings instituted by the claimants before the Tribunal, the Tribunal ought to have
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NC: 2024:KHC:29913 MFA No. 9206 of 2015 C/W MFA No. 3977 of 2015 considered at the outset whether the policy on the strength of which compensation is to be paid by the insurance company is in existence or not and if policy was not in existence, it would clearly be a case of fraud which would annul the entire claim."
(underlining supplied)
15. In the said case, the matter was remitted to the Tribunal for fresh consideration, there was no review petition filed by the Insurance Company before the Tribunal. Hence, the principles laid down by the co- ordinate Bench of this Court is not applicable to the facts of the case. The evidence that the Insurance Company is going to rely even after remand is the same, which was led in the review petition. After taking the compensation, the petitioners after 1924 days came before this Court seeking enhancement; to counter the same, the appeal is filed by the Insurance Company after 2130 days. On total consideration of the material on record, I do not find any satisfactory explanation from the Insurance Company for remand. Hence, the compensation
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NC: 2024:KHC:29913 MFA No. 9206 of 2015 C/W MFA No. 3977 of 2015 assessed by the Tribunal is on the lower side and the petitioners are entitled for higher compensation.
16. Hence, the appeal filed by the Insurance Company is devoid of merits and the appeal filed by the petitioners merits consideration. In the result, the following:
ORDER
(i) M.F.A.No.9206/2015 is dismissed.;
(ii) M.F.A.No.3977/2015 is partly allowed and the impugned judgment and award passed by the Tribunal is modified;
(iii) The petitioners are entitled to enhanced compensation of Rs.4,66,000/- with interest at the rate of 6% per annum from the date of petition till its realization;
(iv) The petitioners are not entitled for interest for the delayed period of 1924 days;
(v) Rest of the judgment and award of the Tribunal is kept intact;
(v) The Insurance Company is directed to deposit the compensation amount within
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NC: 2024:KHC:29913 MFA No. 9206 of 2015 C/W MFA No. 3977 of 2015 eight weeks from the date of receipt of certified copy of this judgment.
(vi) The amount in deposit, if any, shall be transmitted to the Tribunal for disbursal as per the orders of the Tribunal, along with records.
SD/-
(T.G. SHIVASHANKARE GOWDA) JUDGE KNM List No.: 1 Sl No.: 41