Smt Susheelamma vs Reliance Gen.Ins.Co.Ltd
2021 Latest Caselaw 1815 Kant

                                1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 23RD DAY OF MARCH 2021

                         PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                              AND

         THE HON'BLE MR. JUSTICE M.G.S. KAMAL

             M.F.A. NO.9317 OF 2015 (MV-D)
                          C/W
             M.F.A. NO.4825 OF 2015 (MV-I)

M.F.A. NO.9317 OF 2015

BETWEEN:

1.     SMT. SUSHEELAMMA
       W/O LATE DEVARAJU
       AGED ABOUT 48 YEARS.

2.     CHIDANANDA C D
       S/O LATE DEVARAJU
       AGED ABOUT 21 YEARS.

       BOTH ARE R/AT NO. 37, CHIKKAMASKAL
       MARASANDRA POST, KUDUR HOBLI
       MAGADI TALUK, RAMANAGARA DISTRICT.
                                            .... APPELLANTS
(BY MR. K. SHANTHARAJ, ADV.,)

AND:

1.     RELIANCE GEN. INS. CO. LTD
       EAST WING, 5TH FLOOR, NO.28
       CENTENARY BUILDING, M.G.ROAD
       BENGALURU - 560 001.
                                  2



2.     M/S. FLY WHEELS TOURS AND TRAVELS
       NO.230, 2ND FLOOR, KAMARAJ ROAD
       BENGALURU.
                                             ... RESPONDENTS
(BY MR. ASHOK N. PATIL, ADV., FOR R1
R2 NOTICE D/W V/O DTD:12.11.2020)
                            ---

THIS M.F.A. IS FILED UNDER SEC.173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 15.04.2015 PASSED IN MVC NO.845/2014 ON THE FILE OF THE II ADDITIONAL SMALL CAUSES JUDGE AND XXVIII ACMM, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

M.F.A. NO.4825 OF 2015

BETWEEN:

RELIANCE GENERAL INSURANCE COMPANY LIMITED, EAST WING 5TH FLOOR, NO.28, CENTENARY BUILDING M G ROAD, BENGALURU 560 001

NOW AT M/S RELIANCE GENERAL INS. CO. LTD., 5TH FLOOR, CENTENARY BUILDING M G ROAD, BENGALURU 560 001 NOW REPRESENTED BY MANAGER LEGAL.

.... APPELLANT (BY MR. ASHOK N. PATIL, ADV.,)

AND:

1. SMT. SUSHEELAMMA W/O LATE DEVARAJU AGED 47 YEARS.

2. CHIDANANDA C D S/O LATE DEVARAJU AGED ABOUT 20 YEARS.

BOTH ARE RESIDING AT NO.37, CHIKKAMASKAL MARASANDRA POST KUDUR HOBLI

MAGADI TALUK RAMANAGAR DISTRICT-562120.

3. M/S. FLYWHEELS TOURS & TRAVELS NO.230, 2ND FLOOR KAMARAJ ROAD BENGALURU 560 042.

... RESPONDENTS (BY MR. K. SHANTHARAJ, ADV., FOR R1 & R2)

---

THIS M.F.A. IS FILED UNDER SEC.173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 15.04.2015 PASSED IN MVC NO.845/2014 ON THE FILE OF THE II ADDITIONAL SMALL CAUSES JUDGE & XXVIII ACMM, MACT, BENGALURU, AWARDING COMPENSATION OF RS.8,70,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.

THESE M.F.As. COMING ON FOR ADMISSION, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:

COMMON JUDGMENT

MFA No.9317/2015 has been filed by the Insurance

Company whereas MFA No.4825/2015 has been filed by the

claimants under Section 173(1) of the Motor Vehicles Act,

1988 (hereinafter referred to as 'the Act', for short) against

the judgment dated 15.04.2015 passed by the Motor

Accident Claims Tribunal.

Since both the appeals arise out of the same accident

and the same judgment, they were heard analogously and

have been decided by this common judgment.

2. Facts giving rise to the filing of the appeals briefly

stated are that on 20.11.2013, at about 1.00 a.m., the

deceased was walking on the extreme left side of

Ramamurthynagar main road, near railway bridge along with

his friend. At that time, a car bearing registration No.KA-03

AB-540 which was being driven by its driver in a rash and

negligent manner, dashed against the deceased from behind.

As a result of the impact of the accident, deceased fell down

and succumbed to the injuries.

3. The claimants thereupon filed a petition under

Section 166 of the Act claiming compensation on the ground

that the deceased was aged about 25 years at the time of

accident and was working as a driver and was drawing a

salary of Rs.10,000/-. It was further pleaded that accident

took place solely on account of rash and negligent driving of

the driver of the offending car. An amount of Rs.30,00,000/-

along with interest was claimed as compensation.

4. Respondent No.1 filed written statement in which

inter alia it was pleaded that the accident took place solely

on account of negligence of the deceased as he was walking

in the middle of the road and crossing the road without

observing the traffic. It was also denied that the deceased

sustained injuries in the accident. The age, avocation and

income of the deceased was also disputed. It was further

pleaded that the claim for compensation is excessive and

exorbitant. The respondent No.2, in the statement of

objections, inter alia pleaded that he was the owner of the

offending vehicle and the vehicle was insured with

respondent No.1 and policy of insurance was in force at the

time of accident.

5. On the basis of the pleadings of the parties, the

Claims Tribunal framed the issues and thereafter recorded

the evidence. The claimant No.1 examined herself as PW-1

and got exhibited documents namely Ex.P1 to Ex.P10. The

respondents examined one B.Guruprasad as RW-1, and got

marked document Ex.R1. 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 car by its driver. It was held that the claimants are

entitled to compensation to the tune of Rs.8,70,000/- along

with interest at the rate of 6% p.a. from the date of petition

till the date of realisation. It was further held, that the

Insurance Company as well as the owner of the offending

vehicle are jointly and severally liable to pay the amount of

compensation. In the aforesaid factual background, these

appeals have been filed.

6. Learned counsel for the Insurance Company

submitted that the Tribunal erred in fastening the liability on

the Insurance Company to pay the compensation as the

owner of the offending vehicle did not have valid and

effective driving licence and that the Tribunal ought to have

invoked the principle of pay and recovery in view of decision

of the Supreme Court in 'PAPPU AND OTHERS Vs. VINOD

KUMAR LAMBA AND ANR.' AIR 2018 SC 592. It was

submitted that the Insurance Company be granted liberty to

pay the compensation and to recover the same from its

owner. It is further submitted that the Tribunal ought to

have appreciated that the deceased was negligent and the

accident was caused as he was walking in the middle of the

road in the night at 1 a.m. without observing the vehicle or

traffic. It is further submitted that the deceased was a driver

but no evidence was adduced with regard to his income.

Therefore, the Tribunal erred in assessing the income at

Rs.7,000/- p.m. It is further submitted that the Tribunal

grossly erred in awarding 50% on account of future

prospects.

7. On the other hand, learned counsel for the claimants

submitted that since the deceased was a driver, therefore,

his income should have been taken at Rs.10,000/- p.m. and

the Tribunal has rightly added 50% of the income on account

of future prospects. It is further submitted that the amount

awarded to the claimants under other heads is on the lower

side which deserves to be enhanced suitably.

8. We have considered the submissions made by

learned counsel for the parties and have perused the record.

It is well settled in law that the claimants are required to

prove the accident on the basis of preponderance of

probabilities. In view of the aforesaid legal principle, we may

advert to the evidence on record. The Tribunal has taken

into account the evidence of PW-1 and the other

documentary evidence and has recorded a finding that the

accident took place on account of rash and negligent driving

of the offending vehicle by its driver. The aforesaid finding is

based on meticulous appreciation of evidence on record and

therefore, we affirm the same.

       9.   Now       we   may   advert    to     the   quantum    of

compensation.     The deceased at the time of accident was

aged about 26 years and was employed as a driver which is

evident from the driving licence Ex.P8. But no evidence has

been adduced with regard to the income of the deceased.

However, the fact remains that the deceased was a skilled

person as he was driving the vehicle. Therefore, some

element of guess work would be involved in assessing the

income of the deceased in motor vehicle cases. Therefore,

we assess the monthly income of the deceased at

Rs.10,000/- p.m. To the aforesaid amount, in view of the

law laid down by the Constitution Bench of the Supreme

Court in 'NATIONAL INSURANCE COMPANY LIMITED Vs.

PRANAY SETHI AND OTHERS' AIR 2017 SC 5157, 40%

of the amount has to be added on account of future

prospects. Thus, the income comes to Rs.14,000/-. Out of

the aforesaid amount, 1/2 has to be deducted towards

personal expenses as the deceased was a bachelor and

therefore, the monthly dependency comes to Rs.7,000/-.

Taking into account the age of the deceased which was 25

years at the time of accident, the multiplier of '17' has to be

adopted. Therefore, the claimants are held entitled to

Rs.14,28,000/- (Rs.7,000 x 12 x 17) on account of loss of

dependency.

10. In view of laid down by the Supreme Court in

'MAGMA GENERAL INSURANCE CO. LTD. Vs. NANU RAM

& ORS.' (2018) 18 SCC 130, which has been subsequently

clarified by the Supreme Court in 'UNITED INDIA

INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS.'

AIR 2020 SC 3076 each of the claimants are entitled to a

sum of Rs.40,000/- on account of loss of consortium and loss

of love and affection. Thus, the claimants are held entitled to

Rs.80,000/-. In addition, claimants are held entitled to

Rs.30,000/- on account of loss of estate and funeral

expenses. Thus, in all, the claimants are held entitled to a

total compensation of Rs.15,38,000/-. The aforesaid amount

shall carry interest at the rate of 6% from the date of filing of

the petition till the realization of the amount of

compensation. The Insurance Company is granted liberty to

deposit the amount of compensation and to recover the same

from the owner.

To the aforesaid extent, the judgment passed by the

Claims Tribunal is modified.

Amount in deposit is transmitted to the Claims

Tribunal.

Accordingly, the appeals are disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

RV