The Branch Manager vs Sundramma
2021 Latest Caselaw 3585 Kant

                            1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 8TH DAY OF NOVEMBER 2021

                       BEFORE

       THE HON'BLE MR. JUSTICE E.S.INDIRESH


            M.F.A. NO.489 OF 2015 (MV-D)

BETWEEN:

THE BRANCH MANAGER
ORIENTAL INSURANCE CO. LTD.,
BRANCH OFFICE, 1ST FLOOR
V.V.ROAD, MANDYA-571 401
BY ORIENTAL INSURANCE CO. LTD.,
REGIONAL OFFICE, NO.144,
RESIDENCY CROSS ROAD
BENGALURU - 560 025
BY IT'S MANAGER
                                       ... APPELLANT

(BY SRI.O.MAHESH, ADVOCATE)

AND:

1.     SUNDRAMMA
       W/O LATE L.CHANDRU
       AGE 39 YEARS

2.     DIVYA
       D/O LATE L.CHANDRU
       AGE 21 YEARS

3.     BHAVYA
       D/O LATE L.CHANDRU
       AGE 19 YEARS

4.     KAVYA
       D/O LATE L.CHANDRU
       AGE 17 YEARS
                           2


5.   VINAYKUMAR
     S/O LATE L.CHANDRU
     AGE 11 YEARS

     SINCE RESPONDENT NOS.4 AND 5
     ARE MINORS, REPRESENTED BY THEIR
     NATURAL GUARDIAN SMT.SUNDRAMMA -
     RESPONDENT NO.1

     ALL ARE R/O ANASALE VILLAGE
     KIRUGAVALU HOBLI
     MALAVALLI TALUK
     MANDYA DISTRICT - 571401

6.   M.P.SRINIVASH
     MAJOR
     PROPRIETOR
     GAYATHRI ROLLER FLOOR MILL
     NO.44/2, MAGADI ROAD
     BENGALURU - 560 023

                                      ... RESPONDENTS

(RESPONDENTS ARE SERVED AND UNREPRESENTED)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
30.10.2014 PASSED IN MVC NO.1828/2012 ON THE FILE
OF THE SENIOR CIVIL JUDGE, MACT, MALAVALLI,
AWARDING COMPENSATION OF RS.3,93,500/- WITH
INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL
DEPOSIT.

     THIS MFA COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                     JUDGMENT

This appeal is preferred by the Insurance Company,

challenging the judgment and award dated 30.10.2014

passed in MVC No.1828/2012 on the file of the Senior Civil

Judge and MACT at Malavalli, (for short hereinafter referred

to as Tribunal) allowing the claim petition in part.

2. The parties are referred as per their status before

the Tribunal.

3. The facts in nutshell for the purpose of

adjudication of this appeal are that on 12.12.2009, the

deceased L.Chandru was driving the lorry bearing

registration No.KA-02-0021 from Tumakuru towards

Mysuru and when the said vehicle reached near the Bridge

on Nice road, another Lorry bearing Reg. No.KA-13-C-9909

dashed against the road side bridge and capsized on the

road and in turn, the Lorry being driven by the said

L.Chandru, dashed against the capsized lorry and on

account of the same, L.Chandru died at the spot. In view

of the death of the earning member of the family, the

claimants became destitute and as such, filed

MVC No.1828/2018 on the file of the Tribunal seeking

compensation.

4. After service of summons, respondent No.1 was

served but unrepresented and was placed exparte.

Respondent No.2 - Insurance Company entered appearance

and filed detailed written statement denying the averments

made in the claim petition.

5. It is the case of the Insurance Company that the

said accident occurred due to negligent act of the deceased

and as such, the owner and the Insurer of the lorry bearing

Reg.No.KA-13-C-9909 are liable to pay the compensation to

the claimants. It is also stated in the written statement

that initially, the claim petition was filed under Section 166

of the Motor Vehicles Act, 1988 and thereafter, the claim

petition was amended to consider the claim under Section

163-A of the Act and the same is not maintainable and

therefore, the Insurance Company sought for dismissal of

the claim petition as against them.

6. The Tribunal, after considering the pleadings on

record, has formulated the issues for its consideration. In

order to prove their case, the claimants have examined

claimant No.1 as PW1 and produced 6 documents and the

same were marked as Exs.P1 to P6. Respondent No.2 -

Insurance Company has examined their official as RW1 and

produced 4 documents and the same were marked as

Exs.R1 to R4.

7. The Tribunal, after considering the materials on

record, by its judgment and award dated 30.10.2014

allowed the claim petition in part and awarded total

compensation of Rs.3,93,500/- with interest at the rate of

6% p.a. from the date of petition till the date of deposit.

Being aggrieved by the judgment and award passed by the

Tribunal, the appellant - Insurance Company has presented

this appeal.

8. I have heard Sri.O.Mahesh, learned counsel

appearing for the appellant - Insurance Company. The

respondents are served but unrepresented.

9. Sri.O.Mahesh, learned counsel appearing for the

appellant - Insurance Company submitted that the Tribunal

has failed to consider the fact that initially, the claimants

have preferred W.C.A.No.4/2010 before the Commissioner

for Workmen's Compensation, Mandya and thereafter, the

said petition came to be dismissed for default on

10.10.2012 and thereafter, the claimants have presented

the claim petition seeking compensation under Section 166

of Motor Vehicles Act and further amended the claim

petition under Section 163-A of the Act bringing down the

income of the deceased to Rs.3,300/- per month to

maintain the dubious claim petition against the appellant-

Insurance Company, which would clearly establish the

manner in which the claimants have filed claim petitions

before the Workmen's Compensation Court as well as

before the Tribunal and the same should be deprecated and

accordingly, sought for interference in this appeal. He

further contended that the Tribunal ought to have

considered the fact that the deceased was charge-sheeted

in respect of the accident in question and therefore,

awarding compensation to the claimants does not arise. As

such, he contended that the findings recorded by the

Tribunal requires interference in this appeal.

10. Having heard the learned counsel appearing for

the appellant - Insurance Company, it is not in dispute that

the deceased - L.Chandru was driving the lorry bearing

Reg.No.KA-02-0021 on 12.12.2009 from Tumakuru towards

Mysuru on Nice Road and the said Lorry was dashed by

another Lorry bearing Reg.No.KA-13-C-9909 and as a result

of the said accident, the husband of claimant No.1

(L.Chandru) died on the spot. In this regard, the Tribunal

has formulated issues 1 to 3 with regard to the liability and

taking into consideration the evidence adduced by

PWs.1 to 3, as well as the documents marked on behalf of

the claimants, namely FIR, Mahazar, IMV Report, Sketch as

per Exs.P.1 to 4 respectively, had come to the conclusion

that the husband of claimant No.1 succumbed to the

injuries in the road traffic accident occurred on 12.12.2009

and the said accident occurred due to the negligence on the

part of the driver of the offending lorry and as such, rightly

affirmed Issue No.1 in favour of the claimants.

11. Perusal of the findings recorded by the Tribunal

would indicate that the deceased was aged about 38 years

at the time of the accident and he was working as a driver

of the lorry. In this regard, perusal of the Ex.P.6 -

Post Mortem Report would clearly indicate that the age of

the deceased shown as 38 years. Perusal of the findings

recorded by the Tribunal at para No.17 of the judgment

would indicate that the Tribunal had taken monthly income

of the deceased at Rs.3,000/- per month and by applying

appropriate multiplier of 16 in terms of the law declared by

the Hon'ble Apex Court in the case of SARLA VERMA VS.

DELHI TRANSPORT CORPORATION AND ANOTHER

reported in (2009)6 SCC 121 had arrived at a conclusion

that the claimants are entitled for compensation of

Rs.3,84,000/- under the head "Loss of Dependency" and as

such, awarded Rs.2,000/- towards "Funeral and Obsequies

Expenses"; Rs.5,000/- towards "Loss of Consortium"; and

Rs.2,500/- towards "Loss of Estate". In view of the fact

that the appellant - Insurance Company has filed this

instant appeal questioning the liability and not on the

quantum of compensation arrived at by the Tribunal, I do

not find any grounds to interfere with the quantum of

compensation awarded by the Tribunal.

12. Though the learned counsel appearing for the

appellant - Insurance Company contended that the action

of the claimants in approaching the Court of Workmen's

Compensation and thereafter, filing the claim petition under

Section 166 of Motor Vehicle's Act and later, amending the

same as one under Section 163-A of Motor Vehicles Act

should be deprecated, I do not find any ground to interfere

with the impugned judgment and award passed by the

Tribunal as the Tribunal, after assessing the evidence of

PW1 and RW1 and considering the documents particularly,

Exs.P1 and P4, has rightly answered Issue Nos.1 and 2 in

favour of the claimants and therefore, I do not find any

infirmity or perversity in the judgment and award passed by

the Tribunal. In the result, the appeal fails and accordingly,

dismissed.

The amount in deposit shall be transmitted to the

Tribunal forthwith.

Sd/-

JUDGE

NBM