Karnataka High Court
The Branch Manager Bajaj Allianz ... vs Hari S/O Nagu Dwehe And Ors on 28 June, 2021
Author: S.G.Pandit And M.G.S.Kamal
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF JUNE 2021
PRESENT
THE HON'BLE MR.JUSTICE S.G.PANDIT
AND
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
M.F.A. NO.31373/2013
C/W
M.F.A. 31905/2013
IN MFA NO.31373/2013:
Between:
The Branch Manager
Bajaj Allianz General Insurance Co. Ltd.
2nd Floor, Hashmi Manzil
Madival Arked Club Road, Belgaum
Presently represented by its
The Assistant Manager
Bajaj Allianz General Insurance Co. Ltd.
VA Kalburgi Mansion
Opp: Municipal Corporation
Lamington Road, Hubli - 580 020
... Appellant
(By Sri Sudarshan M., Advocate)
And:
1. Hari S/o Nagu Dethe
Aged about 57 years
Occ: Agriculture
2. Sushila W/o Hari Dethe
Aged about 52 years
Occ: Household work
2
3. Swati W/o Sanjay Dethe
Aged about 24 years
Occ: Household work
4. Kalyani D/o Sanjay Dethe
Aged about 10 years, Occ: Nil
5. Ashwini D/o Sanjay Dethe
Aged about 9 years, Occ: Nil
Respondents 4 & 5 are minors
Represented by their natural
Guardian respondent No.3
All are R/o at Post Laxmi Takali
Taluk: Pandharpur, Dist. Solapur
6. Mrs. Savita
W/o Kameshwar Singh
Aged about 42 years
Occ: Business & Owner of Truck
No.MH-12-EQ-2508
R/o H.No.83, Shewale Wadi
Taluk: Haveli, Phurasangi
Pune - 412 308
7. Datta S/o Sopan Devakate
Aged about 47 years
Occ: Business and Owner of
Indica Car No.MH-04/BQ-8138
R/o at post Degaon
Taluk: N. Solapur, Dist. Solapur
8. Sachin Shankar Salunkhe
Aged about 47 years
Occ: Business
Insured of the Indica Car
No.MH-04/BQ-8138
R/o at post Korti
Taluk: Pandharapur
Dist: Solapur
9. The Branch Manager
United India Insurance Company Ltd.
3
Sangam Building
S.S. Font Road, Bijapur
... Respondents
(Sri Sanganagouda V. Biradar, Advocate for R1 to R5;
Sri S.B. Pattanshetty, Advocate for R6;
V/O Dtd. 10.06.2021 service of notice to R7 is held sufficient;
R8 - served; Sri Shivanand Patil, Advocate for R9)
This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, 1988, praying to set aside the
judgment and award dated 16.03.2013 passed in MVC
No.1227/2011 by the Motor Accident Claims Tribunal No.VII at
Bijapur.
IN MFA NO.31905/2013:
Between:
1. Hari S/o Nagu Dethe
Age: 57 years, Occ: Agriculture
2. Sushila W/o Hari Dethe
Age: 52 years, Occ: Household work
3. Swati W/o Sanjay Dethe
Age: 24 years, Occ: Household work
4. Kalyani D/o Sanjay Dethe
Aged about 10 years, Occ: Nil
5. Aswini D/o Sanjay Dethe
Age: 9 years, Occ: Nil
Since Appellant Nos.4 & 5 are minors
Represented by their natural mother
Appellant No.3
All are R/o Atpo-Laxmi Takali
Taluk: Pandrapur, Dist. Solapur (MH)
Now Residing at Rajaji Nagar
Bijapur - 586 101
... Appellants
(By Sri Sanganagouda V. Biradar, Advocate)
4
And:
1. Mrs. Savita
W/o Kameshwar Singh
Aged about 42 years
Occ: Business (Owner of Truck
No.MH-12/EQ-2508)
R/o H.No.83, Shewale Wadi
Taluk: Haveli, Phurasangi
Pune - 412 308
2. The Branch Manager
Bajaj Allianz General Insurance Co. Ltd.
2nd Floor, Hashmi Manzil
Madival Arked, Club Road, Belgaum
3. Datta S/o Sopan Devakate
Aged about 47 years
Occ: Business
(Owner of Indica Car
No.MH-04/BQ-8138)
R/o at post Degaon
Taluk: N.Solapur
Dist. Solapur - 413 001
4. Shri Sachin Shankar Salunkhe
Age: 47 years, Occ: Business
(Owner of the Indica Car
No.MH-04/BQ-8138)
R/o at post Korti
Taluk: Pandrapur
Dist. Solapur - 413 001
5. The Branch Manager
The united India Insurance Co. Ltd.
Sangam Building, S.S. Front Road
Bijapur - 586 101
... Respondents
(Notice to R1 & R3 is dispensed with;
R2 & R4 - served;
Sri Manvendra Reddy, Advocate for R5)
5
This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, 1988, praying to set aside the
judgment and award passed by the Motor Accident Claims
Tribunal No.VII at Bijapur in MVC No.1227/2011 dated
16.03.2013 by modifying the impugned order and be pleased to
allow the claim petition by granting the relief as prayed for (of
Rs.14,99,990/-) by the appellant.
These appeals having been heard and reserved on
15.06.2021 coming on for pronouncement of judgment this day,
S.G.Pandit, J., delivered the following:
JUDGMENT
Both the above appeals are filed under Section
173 (1) of the Motor Vehicles Act (for short 'M.V. Act'),
assailing the judgment and award dated 16.03.2019 in
MVC No.1227/2011 on the file of Motor Accident Claims
Tribuinal-VII at Bijapur (hereinafter referred to as 'the
Tribunal' for short). The Bajaj Allianz General Insurance
Co. Ltd. is in appeal in MFA No.31373/2013 challenging
the saddling of liability and the claimants are in appeal
in MFA No.31905/2013 praying for enhancement of
compensation.
2. The claimants parents, wife and children of
deceased Sanjay Dethe filed a claim petition under
Section 166 of the M.V. Act, claiming compensation for
the accidental death of Sanjay Dethe which had taken
place on 24.08.2011 involving car bearing
No.MH-04/BQ-8138 and lorry bearing No.MH-12/
BQ-2508. It is stated that the deceased Sanjay was
driving the car and when it reached Degaon village, car
dashed to the hind side of the lorry which was stationed
in the middle of the road without any parking lights
negligently and dangerously, due to which the deceased
Sanjay and Anil succumbed to the injuries, whereas one
Kalidas was injured. Further, the claimants stated that
deceased Sanjay was aged 26 years and was earning a
sum of Rs.20.00 lakhs per annum.
3. On service of notice, respondent No.1-owner
of the lorry filed written statement admitting the
ownership of the truck and further denying the claim
petition averments. Respondent No.2-insurer of the
lorry filed its written statement stating that the claim
petition averments are false and vexatious. It also
contended that the Tribunal has no territorial
jurisdiction. Further it also denied the nexus between
the accident involving truck and death of Sanjay in the
accident. Further it also contended that the driver of
the truck was not holding valid driving licence to drive
the truck as on the date of accident. The truck was
halted due to technical fault three days prior to the
accident. Therefore, putting indicators does not arise.
The accident occurred solely due to the rash and
negligent driving of the driver of the car. Respondent
No.5-insuer of the car filed written statement stating
that the accident had taken place in Maharashtra and
the Tribunal has no jurisdiction, apart from denying
claim petition averments.
4. In respect of the accident in question, three
claim petitions had been filed and all the three claim
petitions were clubbed together, tried and common
judgment was passed. In all, PW.1 to PW.5 were
examined and documents Exs.P1 to P17 were marked.
Respondents examined RW.1 to RW.3 and Exs.R1 to R4
documents were marked. The Commissioner's report
was marked as Ex.CR1.
5. The Tribunal, on scrutiny of the material on
record, awarded total compensation of Rs.7,28,500/-
with interest at 6% p.a. from the date of petition till
deposit under the following heads:
1. Towards loss of dependency Rs.6,88,500/-
2. Towards loss of consortium Rs.10,000/-
3. Towards loss of expectancy Rs.10,000/-
4. Towards funeral expenses Rs.10,000/-
5. Towards loss of love and affection Rs.10,000/-
Total Rs.7,28,500/-
While awarding the above compensation, the
Tribunal assessed the notional income of the deceased
at Rs.4,500/- per month, deducted 1/4th towards
personal expenses of the deceased and applied 17
multiplier. The claimants, not being satisfied with the
quantum of compensation awarded and the insurer,
questioning the liability, are before this Court in these
appeals.
6. Heard Sri Sudarshan M. learned counsel for
the insurer of the truck i.e., Bajaj Allianz General
Insurance Company Ltd., Sri Sangangouda V. Biradar,
learned counsel for the claimants and Sri Manvendra
Reddy, learned counsel for the insurer of the car i.e.,
United India Insurance Company Ltd. Perused the
appeal papers and lower Court records.
7. Sri Sudarshan M., learned counsel for the
insurer of the truck submits that since the accident had
taken place in the State of Maharashtra, the Tribunal at
Bijapur had no jurisdiction to try the claim petition. It is
his submission that the claimants are also residents of
Pune and no part of cause of action has arisen within
the jurisdiction of the Tribunal. The learned counsel
further contended that the driver of the truck by name
Sri Abiman Kengar had no valid and effective driving
licence as on the date of accident. Further he submits
that in the FIR, Sri Abiman Kengar is shown as driver,
whereas while filing charge sheet, along with
Sri Abiman Kengar, one Sri Nagendrasing is also shown
as driver of the truck. Thus, he submits that as the
driver shown in the FIR had no licence, there is violation
of terms and conditions of the policy. As such, the
insurer is not liable to pay any compensation. Lastly,
the learned counsel contended that the truck was
parked due to mechanical defect and it was parked as
such three days prior to the accident. It was parked on
the left side of the road and the accident occurred solely
due to the rash and negligent driving of the driver of the
car. Thus, there is contributory negligence which the
Tribunal failed to notice. With regard to the prayer of
the claimants for enhancement of compensation, the
learned counsel submits that the compensation
awarded by the Tribunal is just compensation and as
the claimants have not place on record any material to
establish the income of the deceased, the Tribunal has
assessed the income of the deceased notionally at
Rs.4,500/- per month, which needs no interference.
Thus, he prays for allowing the appeal of the insurer.
8. Per contra, learned counsel for the claimants
submits that the contention with regard to jurisdiction
is no more res integra, as the Hon'ble Apex Court in the
case of Malati Sardar vs. National Insurance
Company Limited and others reported in (2016) 3
SCC 43 has made it clear that there is no bar to a claim
petition being filed at the place where the insurance
company which is the main contesting party has its
business. Further, the learned counsel submits that
Sri Nagendrasing was the driver of the truck and charge
sheet has been filed against Sri Nagendrasing and
Sri Abiman Kengar, cleaner of the truck.
9. Sri Nagendrasing was examined as RW.3
and has admitted in his evidence that he was the driver
of the truck. Further, he submits that the driver of the
truck had valid and effective driving licence which is
marked as Ex.R4 and as such there is no violation of
terms and conditions of the policy. He also invites
attention of this Court to evidence of PW.3 to state that
the truck was parked in the middle of the road. With
regard to enhancement of compensation he submits
that the income assessed by the Tribunal at Rs.4,500/-
p.m. is on the lower side and the Tribunal erred in not
awarding future prospects, which the claimants would
be entitled to at 40% of the assessed income as the
deceased was aged 30 years. Further the learned
counsel submits that since the claimants are parents,
wife and children of the deceased, they would be
entitled for compensation on the head of filial
consortium and parental consortium apart from spousal
consortium.
10. Sri Manvendra Reddy, learned counsel for
the insurer of the car submits that rightly no liability is
fixed on the insurer of the car and the accident had
taken place solely due to the negligent parking of the
truck in the middle of the road. Thus, he supports the
findings of the Tribunal.
11. Having heard the learned counsel for the
parties and on perusal of the material on record, the
question that arise for consideration is with regard to
liability of the insurer of the truck and the entitlement
of the claimants for enhancement of compensation.
12. The accident that occurred on 24.08.2011
involving car bearing No.MH-04/BQ-8138 and truck
bearing No.MH-12/EQ-2508 and the accidental death of
Sanjay Dethe are not in dispute in these appeals. The
insurer of the truck is before this Court questioning the
saddling of liability on it and the claimants are in appeal
praying for enhancement of compensation.
13. The insurer of the truck contended that as
the accident had taken place at Maharashtra, the
Tribunal at Bijapur had no jurisdiction to try the claim
petition filed under Section 166 of the M.V. Act. This
question as submitted by the learned counsel for the
claimants is not in res integra.
14. The Hon'ble Apex Court in the case of
Malati Sardar (Supra), noting Section 166(2) of the
M.V. Act and the judgment in Mantoo Sarkar v.
Oriental Insurance Co. Ltd. [(2009) 2 SCC 244] at
para 14 has held as follows:
"14. We are thus of the view that in the
face of the judgment of this Court in Mantoo
Sakar, the High Court was not justified in
setting aside the award of the Tribunal in the
absence of any failure of justice even if there
was merit in the plea of lack of territorial
jurisdiction. Moreover, the fact remained that
the Insurance Company which was the main
contesting respondent had its business at
Kolkata."
15. In the instant case also, even though the
accident has taken place in the State of Maharashtra,
both respondent Nos.2 and 5 - insurers of the truck and
car respectively are having Branch Office at Bijapur and
they are carrying on their business within the
jurisdiction of the Tribunal. Hence, the contention of
the insurer that the Tribunal had no jurisdiction to try
the claim petition fails and accordingly the same is
rejected.
16. The insurer of the truck contended that the
driver of the truck had no valid and effective driving
licence as on the date of accident, as such there is
violation of terms and conditions of the policy. It has
come on record in the evidence that Sri Nagendrasing
was the driver of the truck and Sri Abiman Kengar was
the cleaner of the truck. It has also come on record in
the evidence that Sri Nagendarsing (RW.3) was not at
the spot when the accident had taken place. While
drawing the Mahazar, the cleaner of the lorry
Sri Abiman Kengar was on the spot and his name was
shown as driver in the FIR. After investigation, at the
time of filing charge sheet, charge sheet was filed
against both the driver and cleaner of the truck.
Nagendrasing-diver was examined as RW.3 and in his
evidence he has admitted that on the date of accident,
he was driving the lorry and he was not at the spot of
accident, as he had repair work of the truck. He also
states in his evidence that as Abiman Kengar was at the
spot, police mentioned him as driver of the truck.
Moreover, RW.3-Sri Nagendrasing has placed on record,
Ex.R4- copy of driving licence so as to establish that he
had valid and effective driving licence as on the date of
accident. Thus, the contention of the insurer that there
is violation of conditions of the policy is rejected.
17. The insurer lastly contended that the truck
was parked on the left side of the road, it was stationed
for three days prior to the date of accident and solely
due to the rash and negligent driving of the driver of the
car, accident had taken place. It is an admitted fact that
the truck was parked without any parking lights and it
was stationed for three days prior to the date of
accident. It is also an admitted fact that the accident
had taken place at 9.00 p.m. in the night. PW.3 -
Sri Balasaheb Ramachandra Ghadage has deposed that
the truck was parked in the middle of the road. PW.3
was having his house near the accident spot. He was
the person rushed to the spot immediately on
occurrence of the accident. He also states that the truck
was parked for more than two days and he had advised
the driver, who parked the truck in the middle of the
road to park the lorry on the left side. Ex.P3-spot
mahazar indicates that the truck was parked on the tar
road facing towards Pandrapur. On evaluation of
evidence of PW.3, RW.3 and Ex.P3-spot panchanama,
we are of the view that the truck was parked in the
middle of the road obstructing the movement of
vehicles. Thus, it could be safely held that the accident
had taken place solely due to the negligent parking of
the truck in the middle of the road.
18. The claimants have stated that the deceased
Sanjay was aged 26 years and was earning a sum of
Rs.20.00 lakhs per annum by doing agricultural work
and business. But, to substantiate their claim, the
claimants have not placed any material much less
cogent material to establish the income of the deceased.
PW.2 wife of the deceased Sanjay in her deposition has
admitted that she has not placed on record any
document to establish the income of her husband
deceased Sanjay. Hence, the Tribunal assessed the
income of the deceased notionally at Rs.4,500/- per
month. But, the said assessment of the income is on
the lower side. Normally, this Court and the Lok
Adalaths while settling the accident claims of the year
2011 would take the notional income of an unskilled
person at Rs.6,000/- per month on the basis of chart
prepared by the Karnataka State Legal Services
Authority. In the instant case also, in the absence of
any material to establish the income, we deem it
appropriate to assess the notional income of the
deceased at Rs.6,000/- p.m.
19. The claimants have stated that the deceased
Sanjay was aged 30 years as on the date of accident and
as there was no dispute with regard to the age of the
deceased, the Tribunal has taken the age of the
deceased at 30 years. As the deceased age was taken at
30 years, as held by the Hon'ble Apex Court in the case
of National Insurance Company Limited v. Pranay
Sethi and others reported in (2017) 16 SCC 680,
claimants would be entitled to add 40% of the assessed
income towards future prospects for assessing
compensation on the head of loss of dependency.
20. The claimants are parents, wife and children
of the deceased. As held by Hon'ble Apex Court in the
case of Magma General Insurance Company Limited
v. Nanu Ram Alias Chuhru Ram and others reported
in (2018) 18 SCC 130, claimant Nos.1 and 2 would be
entitled for Rs.40,000/- each on the head of filial
consortium and claimant Nos.4 and 5 would be entitled
for Rs.40,000/- each on the head of parental
consortium. Claimant No.3-wife of the deceased would
be entitled for a sum of Rs.70,000/- on conventional
heads as held in Pranay Sethi's case (Supra).
21. Thus, the claimants would be entitled for the
modified compensation as follows:
1. Towards loss of dependency Rs.12,85,200/-
Rs.6000 + Rs.2,400 (i.e., 40% of
income)=Rs.8400-Rs.2,100 (i.e.,
th
1/4 deduction) = Rs.6300x12x17
2. Towards conventional heads Rs.70,000/-
3. Towards filial consortium Rs.80,000/-
4. Towards parental consortium Rs.80,000/-
Total Rs.15,15,200
Thus, the appellants would be entitled for total
compensation of Rs.15,15,200 with interest at 6% p.a.
as against compensation of Rs.7,28,500/- awarded by
the Tribunal. Thus, the appellants would be entitled for
enhanced compensation of Rs.7,86,700/-.
22. Accordingly, MFA No.31905/2013 filed by
the claimants is allowed in part. The impugned
judgment and award dated 16.03.2013 in MVC
No.1227/2011 passed by the Tribunal is modified. The
appellant-claimants is entitled for the enhanced
compensation of Rs.7,86,700/- with interest at 6% p.a.
The apportionment, disbursement and deposit shall be
as ordered by the Tribunal.
23. Consequently, MFA No.31373/2013 filed by
the Insurance Company is dismissed. The amount in
deposit by the Insurance Company be transmitted to
the concerned Tribunal.
Sd/-
JUDGE
Sd/-
JUDGE
LG
