Karnataka High Court
Smt Anuusuya vs Sri Raghavendra on 6 January, 2021
Author: H T Prasad
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
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/-.
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.
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/-
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.
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
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
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.
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
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
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/-.
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/-
