Mrs. Ammenabi vs The Manager
2021 Latest Caselaw 1193 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 19TH DAY OF JANUARY, 2021

                        PRESENT

          THE HON'BLE MRS.JUSTICE S.SUJATHA

                          AND

           THE HON'BLE MR. JUSTICE M.I.ARUN

                M.F.A.No.9838/2018 (MV)

BETWEEN :

1.     Mrs. AMMENABI
       W/O DODDABABASABI,
       AGE 68 YEARS, OCC: NIL,
       R/AT WARD NO.22, H.S.GARDEN,
       KELAGINA THOTA
       CHIKKABALLAPUR DISTRICT.

2.     Mrs. RAMIZABEE
       W/O SYED MOHAMOOD
       AGE 41 YEARS, OCC: NIL
       R/AT NO.116, PANTHARAPALYA
       BLOCK NO.3, BAGEPALLI,
       KOLAR DISTRICT.

3.     Mrs. AMMAJA
       W/O VALLISAB, AGE 43 YEARS,
       OCC: NIL, R/AT NO. 107,
       KELAGINA THOTA,
       CHIKKABALLAPUR DISTRICT.

4.     Mr. RIYAS
       S/O DODDABABASABI,
       AGE 41 YEARS, OCC: NIL,
       R/AT NO.132, KELAGINA THOTA,
       CHIKKABALLAPUR DISTRICT.
                           -2-

5.      SIRINA
        D/O DODDABABASABI
        AGE: 34 YEARS, OCC: NIL,
        R/AT No.309, HALANAYAKANAHALLI,
        BENGALURU EAST TALUK,
        BENGALURU-560035.                        ...APPELLANTS

                (BY SRI SURESH M. LATUR, ADV.)

AND :

1.      THE MANAGER
        M/s GAURAV ENTERPRISES,
        10, GANESH, CHANDRA AVENUE
        KOLKATA - 700 013.

2.      THE REGIONAL MANAGER
        THE ORIENTAL INSURANCE CO. LTD.,
        REGIONAL OFFICE, 4TH FLOOR,
        NO.44/45, LEO COMPLEX,
        RESIDENCY ROAD,
        BANGALORE - 560 025.                ...RESPONDENTS

     (BY SRI SHYAM SUNDER H.V., ADV. FOR M/s FOX MANDAL,
                        ADVS. FOR R-1;
                 SRI O.MAHESH, ADV. FOR R-2.)

      THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
07.07.2018 PASSED IN MVC No.610/2016 ON THE FILE OF THE
XXI ACMM & XXIII ASCJ, BENGALURU (SCCH-24), PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

      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 7.7.2018 passed in MVC No.6107/2016 on

the file of the XXI ACMM & XXIII Addl. Small Causes

Judge and & Member, MACT, Bengaluru [Tribunal for

short].

2. The claimants instituted the petition under

Section 166 of the Motor Vehicles Act, 1988 seeking

compensation for the death of Doddababasabi in the

road traffic accident.

3. The claimants being the widow and children

of Doddababasabi averred in the petition that on

27.5.2016 while the deceased was riding TVS Excel

bearing Reg.No.KA-40-V-4971 on NH-234, at about

11.00 p.m. near Pujanahalli Gate, Chikkaballapura, a

road level grader vehicle bearing engine No.60329809

(offending vehicle) came with high speed in a rash and

negligent manner and dashed against the vehicle of the

deceased resulting in the accident in question, due to

which the deceased sustained fatal injuries and died on

the spot.

4. It was contended that the deceased was aged

about 69 years and self employed. He was earning

Rs.16,000/- from milk vending business and coolie

work and contributing the entire income for the

maintenance of his family. The claimants were

depending upon the income of the deceased. The

untimely death of the deceased has caused untold

hardship besides loss of dependency, loss of love and

affection etc., On these set of facts and grounds, the

claimants sought for compensation.

5. In response to the notice issued by the

Tribunal, the respondents appeared through their

respective counsel and filed separate written statement.

The respondent No.1 contended that the offending

vehicle was insured with the respondent No.2. The

accident occurred due to the negligence of the deceased

himself. Liability, if any, has to be satisfied by the

insurer.

6. The respondent No.2-insurer filed the

written statement admitting the issuance of policy in

respect of the offending vehicle. It was contended that

the liability under the said policy is subject to the terms

and conditions of the policy. The primary defence

taken was that the owner had not obtained policy for

the SDLG vehicle; the rider of the offending vehicle was

not holding valid and effective driving licence to drive

the said vehicle. As such, the insurer is not liable to

indemnify the owner for breach of policy conditions.

7. On the basis of the pleadings, the Tribunal

formulated the issues and allowed the petition in part

awarding total compensation of Rs.3,10,000/- with

interest @ 8% p.a. from the date of petition till the date

of deposit fastening the liability on the owner of the

offending vehicle to satisfy the award.

8. Being aggrieved, the claimants have

preferred the present appeal.

9. Learned counsel for the appellants-claimants

submitted that the Tribunal grossly erred in coming to

a conclusion that the offending vehicle was not covered

with insurance policy as on the date of the accident. The

owner of the vehicle has insured the vehicle on the next

day of expiry of policy at the time of the re-opening of

the office of the insurer. Hence, the insurer is liable for

payment of compensation. It was argued that the

Tribunal erred in determining the notional of the

deceased at Rs.8,000/- per month which is on the

lower side. The Tribunal ought to have determined the

income of the deceased considering the evidence placed

on record. The deceased was earning Rs.15,000/- per

month.

10. It was further argued that the Tribunal erred

in deducting 50% of the income towards personal and

living expenses of the deceased for computing the loss of

dependency. The Tribunal ought to have deducted 1/3rd

of the income towards personal and living expenses of

the deceased in terms of the settled principles of law.

11. Learned counsel for the respondent No.1-

owner submitted that the compensation awarded by the

Tribunal has been satisfied by it. The Tribunal after

analysing the material evidence on record has awarded

just and proper compensation which does not call for

any further enhancement. However, it was contended

that the policy was issued at 3.47 p.m. on 27.5.2016.

The accident in question occurred at 11.15 a.m. on

27.5.2016. Hence, the liability fastened on the R.C.

owner of the vehicle being satisfied, no further

enhancement is called for.

12. We have heard the learned counsel for the

parties and perused the original records.

13. Though the liability was saddled on the R.C

owner of the offending vehicle, since the said vehicle

was not covered with the insurance policy at about

11.15 a.m on 27.5.2016 and the insurance policy Ex.R2

was issued at 3.47 p.m. on 27.5.2016, after the

occurrence of the accident, the owner-respondent No.1

has not challenged the said finding of the Tribunal and

the same has reached finality. Moreover, the owner of

the offending vehicle is said to have satisfied the award.

As such, the fulcrum of dispute is now focused on the

quantum of compensation awarded by the Tribunal

claimed to be inadequate by the claimants.

14. It is discernable that the deceased was aged

about 69 years at the time of the accident. The Tribunal

had determined the monthly income of the deceased

notionally at Rs.8,000/-. Having regard to the date of

the accident, we deem it appropriate to re-determine the

monthly income of the deceased at Rs.9,500/- referring

to the chart prepared by the Karnataka State Legal

Services Authority in the absence of proof of income.

The Tribunal has deducted 50% of the income towards

the personal expenses of the deceased which in our

opinion is not in conformity with the law laid down by

the Hon'ble Apex Court SARLA VERMA AND OTHERS

vs. DELHI TRANSPORT CORPORATION AND

ANOTHER, reported in [2009] 6 SCC 121. Even

assuming that the claimants 2 to 5 were the major

children of the deceased and cannot be construed as

dependants on the deceased, the widow of the deceased

being alive, it cannot be held that the deceased was

spending 50% of his income towards his personal

expenses. The case of the bachelor stands on a

different footing than the married man who had the

responsibility of maintaining the family. Hence, 1/3rd of

the income determined at Rs.9,500/- deserves to be

deducted towards personal expenses of the deceased.

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Applying the multiplier of 5, loss of dependency would

work out to Rs.3,80,000/- (Rs.9500 x 12 x 5 x 2/3).

15. In terms of the ruling of the Hon'ble Apex

Court in National Insurance Company Limited Vs.

Pranay Sethi and others reported in ((2017)16 SCC

680) and New India Assurance Company Limited Vs.

Somawati and others reported in (2020) 9 SCC 644,

the claimants are entitled to compensation of

Rs.70,000/- under the conventional heads.

16. The total compensation is re-assessed as

under:

  Sl.No.             Particulars              Amount [in Rs.]
    1.           Loss of dependency              3,80,000
                   Loss of spousal
      2.                                           40,000
                     Consortium
      3.            Loss of Estate                 15,000
      4.          Funeral expenses                 15,000
                  Total                          4,50,000
                                - 11 -


Thus         the   claimants     shall     be    entitled   to    total

compensation of Rs.4,50,000/- with interest @ 6% p.a.

on the enhanced compensation amount.

Hence, the following:

ORDER

i) The appeal is allowed in part.

ii) The total compensation awarded by the Tribunal is modified and enhanced to Rs.4,50,000/- (Rupees Four Lakhs Fifty Thousand only) as against Rs.3,10,000/- with interest at the rate of 6% per annum on the enhanced compensation amount from the date of the claim petition till its realization.

iii) The portion of the order of the Tribunal inasmuch as liability, apportionment and disbursement remains intact.

iv) The RC owner of the vehicle - respondent No.1 herein shall satisfy the award amount.

v) The re-assessed compensation amount as aforesaid with accrued rate of interest shall be paid by the RC owner of the

- 12 -

vehicle - respondent No.1 within 90 days from the date of receipt of the certified copy of the judgment and order.

vi) The modified compensation amount shall be apportioned and disbursed in terms of the order of the Tribunal.

vii) Draw modified award accordingly.

viii) The Registry shall transfer the original records to the jurisdictional Tribunal forthwith.

ix) All pending I.As. stand disposed of accordingly.

Sd/-

JUDGE

Sd/-

JUDGE Dvr: