Karnataka High Court
United India Insurance Co. Ltd vs Smt. Balamma on 11 January, 2021
Author: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA No.3012 OF 2011(MV)
C/W
MFA No.8843 OF 2011(MV)
IN MFA 3012/2011
BETWEEN:
United India Insurance Co. Ltd.,
5th & 6th Floor,
Krishi Bhavan,
Nripathunga Road,
Near Bangalore City Corporation,
Bangalore-560 001.
Represented by its Manager-HC-Claims.
Formerly at:
No.25, I Floor,
Shankaranarayana Building,
M.G.Road, Bengaluru-560 001.
Reptd. By its Manager HC-claims.
... Appellant
(By Sri.Y.P.Venkatapathi, Advocate)
AND:
1. Smt. Balamma,
Major,
W/o Late. Narayanappa,
R/a Honnappanahalli Village,
Manchenahalli Post & Village
Gouribidanur Taluk-561 208.
2
2. Smt. Premamma,
Major,
W/o Mylarappa,
R/a Varavani Village-Post,
Gouribidaur Tq-561 208.
... Respondents
(By Smt. Suguna R Reddy, Advocate for R1:
Notice to R2 is held sufficient v/o dated:08.06.2017)
This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated: 18.10.2010
passed in MVC No. 2124/2007 on the file of the IX
Additional Senior Civil Judge, Member MACT-7, Court of
Small Causes, Bangalore, awarding compensation of
Rs.3,07,500/- with interest @ 6% p.a. from the date of
petition till realization.
IN MFA 8843/2011
BETWEEN:
Smt. Balamma,
Major,
W/o Late. Narayanappa,
Aged about 44 years,
R/a Honnappanahalli Village,
Manchenahalli Post & Hobli,
Gouribidanur Taluk
Chikkballapura District.
...Appellant
(By Smt. Suguna R Reddy, Advocate)
AND
1. Smt. Premamma,
Major,
W/o Mylarappa,
Varavani Post,
3
Gouribidaur Taluk,
Chikkaballapur District.
2. The Branch Manger,
United India Insurance Co. Ltd.,
Regional Office No.25,
Shankaranarayana Building,
M.G.Road, Bengaluru-560 001.
...Respondents
(By Sri. Y.P.Venkatapathi, Advocate for R2:
Notice to R1 is dispensed with v/o dated:12.11.2013)
This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated:18.10.2010 passed
in MVC No.2124/2007 on the file of the IX Additional
Senior Civil Judge, Member MACT-7, Court of Small
Causes, Bangalore, partly allowing the claim petition for
compensation and seeking enhancement of compensation.
These MFAs, coming on for hearing, through video
conference, this day, this Court, delivered the following:
JUDGMENT
These two appeals are filed challenging the
judgment and award dated 18.10.2010 passed by the
MACT, Bangalore in MVC No.2124/2007. Since the
challenge is to the same judgment, both the appeals
are clubbed together, heard and common judgment is
being passed.
2. The insurance company has filed MFA
No.3012/2011 challenging liability and also quantum
and the claimant filed MFA No.8843/2011 seeking
enhancement of the compensation.
3. Facts giving rise to the filing of the appeal
briefly stated are that on 12.06.2006 at about 1.00
a.m. the deceased Ramesha along with others was
proceeding by walk near Guyyalahalli village of
Gowribidanur Tauk. At that time, the tractor and
trailer bearing registration No. KA-40/T-4393 and KA-
40/T-4394 which was being driven in a rash and
negligent manner, dashed against the deceased. As a
result of the aforesaid accident, the deceased
sustained grievous injuries and succumbed to the
injuries.
4. The claimants filed a petition under Section
163-A of the Act on the ground that the deceased was
aged about 20 years at the time of accident and was
working as a coolie and was earning Rs.3,300/- p.m.
The claimants claimed compensation.
5. On service of summons, the respondent
No.2 appeared through counsel and filed written
statement in which the averments made in the
petition were denied. The insurance policy was
admitted but pleaded that it is subject to conditions of
the policy. It was pleaded that the driver of the
offending vehicle was not holding a valid and effective
driving licence as on the date of accident and there is
violation of the policy conditions. It as further pleaded
that there is no insurance coverage to cover the risk
of any passenger or any person who is not an
employee of the insured and therefore the risk of the
deceased is not covered. Hence, he sought for
dismissal of the petition. The respondent No.1 did not
appear 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 claimants, in order to
prove their case, examined claimant No.1 as PW-1
and got exhibited 10 documents namely Ex.P1 to
Ex.P10. On behalf of respondents, an officer of the
insurance company was examined as RW-1, an
investigator as RW-2, Medical officer, Government
Hospital as RW-3 and Surgeon of Manasa Hospital as
RW-4 and got exhibited 10 documents namely Ex.R1
to Ex.R10. 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 deceased sustained injuries and succumbed to the
injuries. The Tribunal further held that the claimants
are entitled to a compensation of Rs.3,07,500/- along
with interest at the rate of 6% p.a. and directed the
insurance company to deposit the compensation
amount along with interest. Being aggrieved, this
appeal has been filed.
7. The learned counsel for the insurance
company has raised the following contentions:
Firstly, the accident occurred on 12.06.2006 and
the complaint was lodged on 19.06.2006 at 17.00
hours and there is a delay in filing the complaint.
Secondly, deceased himself was driving the
tractor and trailer and not a pedestrian.
Thirdly, even if he is not the driver of the tractor,
he was traveling in the tractor as a gratuitous
passenger, therefore, insurance company is not liable
to pay the compensation. To support his contention,
he contended that to prove their case, they have
conducted the enquiry by the insurance company
through private investigator. They have produced
Ex.R6 CDs of the documents and the evidence of RW2
is very clear that Ramesh was driving the tractor.
Therefore, he is not entitled for any compensation.
The insurance company is not liable to pay the
compensation.
Fourthly, the claimant first filed the claim
petition under Section 166 of the Act and the
insurance company has taken a defence saying that
the negligence is on the part of the deceased himself,
then the claimants filed an application under Section
163-A and the said application has been allowed and
the claim petition has been converted under Section
163-A. Hence, the insurance company is not liable to
pay the compensation.
Fifthly, the accident occurred in the year 2006,
the monthly income of the claimant at Rs.3,000/- is
just and reasonable and overall compensation
awarded by the Tribunal is just and reasonable.
Hence, he sought for allowing the appeal filed by the
insurance company and dismissal of the appeal filed
by the claimant.
8. Per contra, learned counsel appearing for the
claimant raised the following contentions:
Firstly, even though there is a delay in filing the
complaint, immediately after the accident deceased
was admitted to the hospital and in view of the advice
of the villagers, the claimant has not filed the
complaint immediately. Thereafter, complaint has
been filed on 19.06.2006.
Secondly, it is very clear, after the accident
Shivakumar who was accompanying the deceased
filed the complaint before the police. The police have
registered FIR and after thorough investigation they
filed the charge sheet against the driver of the tractor
and trailer one Shivashankaraiah.
Thirdly, neither the owner nor the driver of the
tractor and trailer have challenged the charge sheet
filed against one Shivashankaraiah.
Fourthly, it is very clear from the documents
produced by the claimants after thorough
investigation, the police have held that the accident
has occurred due to the rash and negligent driving of
Shivashankaraiah who was driving, at any point of
time, the deceased was neither driving the tractor nor
traveling in the tractor. Even the CD - Ex.R6 filed by
the insurance company cannot be considered since the
police records are very clear that the deceased died in
road traffic accident. Since the claim is under Section
163-A of the Act the claimant need not prove the
negligence of the driver of the offending vehicle.
Fifthly, the claimants have claimed that
deceased was earning Rs.3,300/- per month, the
Tribunal has taken monthly income as Rs.3,000/- per
month, which is on the lower side.
Sixthly, since the claim is under Section 163-A of
the Act and the deceased was aged about 20 years, as
per Schedule II the compensation has to be awarded.
Hence, he sought for enhancement of the
compensation and dismissal of the appeals filed by the
insurance company.
9. Heard the learned counsel for the parties.
Perused the judgment and award and the original
records.
10. The case of the claimants is that the
deceased Ramesh, along with one Shivakumar was
proceeding by walk near Guyyalahalli village of
Gowribidanur Taluk on 12.06.2006 at 1.00 a.m. At
that time, the tractor and trailer dashed against him
from backside. Due to the impact, he fell down and
suffered grievous injuries, he was shifted to hospital
and he succumbed to the injuries on 15.06.2006. To
prove her case, claimant examined herself as PW1 and
produced Ex. P1 to P10. Police have registered the FIR
against the driver of the offending vehicle on
19.06.2006. Even though there is a delay of 7 days in
filing the complaint, since immediately after the
accident, deceased was shifted to the hospital, the
claimant could not file the complaint immediately. In
Ex.P1, the manner in which the accident occurred is
clearly mentioned. A perusal of Exs.P2, P3 and P6
discloses about the involvement of the offending
vehicle. Ex.P7 is the charge sheet filed against the
driver of the offending vehicle one Shivashankaraiah.
Therefore, it is very clear from the evidence of the
parties and the documents produced by the parties
that the deceased Ramesh died in a road traffic
accident involving the vehicle tractor bearing
registration No.KA-40/T-4393 and KA-40/T-4394.
11. In respect of the contention of the insurance
company that Ramesh was driving the tractor and
trailer and also they have taken the contention that he
was traveling as a gratuitous passenger and that he
consumed alcohol, they have not recorded the
statement of the owner of the tractor. Neither the
owner of the tractor nor the driver of the tractor
against whom FIR and charge sheet have been filed
have challenged the charge sheet before any court of
law. Even police investigation is very clear that one
Shivashankaraiah was driving the tractor and
deceased was a pedestrian returning to his house
after work, the driver of the tractor dashed against
him. Taking into consideration the aforesaid
documents, the Tribunal has rightly given a finding
that one was driving the tractor dashed against the
deceased who was a pedestrian. Hence, there is no
error in the finding given by the Tribunal.
Re.quantum:
12. Even though the claimants have claimed that
deceased was earning Rs.3,300/- per month, the
Tribunal after considering the evidence of the parties
has rightly assessed the monthly income of the
deceased as Rs.3,000/-. Since the claim is under
Section 163-A, the compensation has to be assessed
under Schedule 2, the deceased was aged about 20
years and the multiplier applicable is '17'. Since
deceased was a bachelor, 50% of the income has to
be deducted towards personal expenses. Accordingly,
the monthly dependency comes to Rs.1,500. The
compensation under loss of dependency is reassessed
as under:
Rs.1,500 x 12 x 17= Rs.3,06,000/-.
The compensation awarded under the other heads is
just and reasonable.
13. Thus, the claimant is entitled to the
following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 3,06,000
Funeral expenses 2,000
Loss of estate 2,500
Medical expenses 15,000
Total 3,25,500
The claimant is entitled to a total compensation
of Rs.3,25,500/-. The Insurance Company is directed
to deposit the compensation amount along with
interest at 6% p.a. from the date of petition till the
date of payment, within a period of four weeks from
the date of receipt of copy of this judgment.
To the aforesaid extent, the judgment of the
Claims Tribunal is modified.
The amount in deposit is ordered to be
transmitted to the Tribunal, forthwith.
Accordingly, the appeals are disposed of.
Sd/-
JUDGE
Cm/-
