Oriental Insurance Co.Ltd., ... vs M. Kallamma W/O M.Shanthaiah And ...
2021 Latest Caselaw 3451 Kant

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         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

     DATED THIS THE 18TH DAY OF OCTOBER, 2021

                      BEFORE

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

             MFA No.31404/2013 (MV)

BETWEEN

ORIENTAL INSURANCE CO.LTD., RAICHUR
BY ITS DIVISIONALMANAGER
                                       ...APPELLANT

(BY SRI MANVENDRA REDDY, ADVOCATE)

AND

1.    M. KALLAMMA W/O M.SHANTHAIAH
      AGE: 41 YEARS, OCC: HOUSE WIFE

2.    M.SHANTHAIAH S/O VEERAPPA
      AGE: 46 YEARS, OCC: COOLIE

3.    M.PADMA D/O M.SHANTHAPPA
      AGE: 24 YEARS, OCC: NIL,

      ALL ARE R/O AVUSALONIPALLY VILLAGE
      UTKOOR MANDAL, MAHABUBNAGAR
      NOW RESIDING AT LABOUR
      COLONY, SHAKTINAGAR,
      TQ. & DIST RAICHUR

4.    SHAIKH MASTAN S/O SHAIKH MUSTAFA
      AGE: MAJOR, OWNER OF LORRY REG
                               2




      NO.AP-31/T-9929,
      R/O FEOROZGUDA GOWTHAMNAGAR,
      BALANAGAR, RANGAREDDY, DIST. A.P.
                                    ...RESPONDENTS

(NOTICE TO R1 HELD SUFFICIENT;
R2 AND R3 SERVED; NOTICE TO R4 DISPENSED WITH)

   THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DT. 16.2.2013 PASSED IN
MVC NO.307/2012 ON THE FILE OF THE MOTOR ACCIDENT
CLAIMS TRIBUNAL (FTC-I) AT RAICHUR, PARTLY
ALLOWING THE CLAIM PETITION AND AWARDING
COMPENSATION OF RS. 10,71,800/- WITH INTEREST AT
6% P.A.

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

                        JUDGMENT

This appeal is filed by the insurance company under

Section 173(1) of the Motor Vehicles Act, 1988 against the

judgment and award dated 16.02.2013 passed in MVC

No.307/2012 on the file of Motor Accident Claims Tribunal

(FTC-I) at Raichur (for short 'Tribunal').

2. Brief facts leading to filing of the present

appeal are that, on 22.03.2012, at about 2.00 p.m., one

M.Veeresh was proceeding on a motorcycle bearing

registration No.AP-28/CE-9398 towards Hyderabad. When

he came near Vinayaka Steels, situated within the limits of

Kithus police station, a lorry bearing registration No.AP-

31/T-9929 (henceforth referred as 'offending vehicle')

driven by its driver in a rash and negligent manner, hit the

motorcycle of the deceased. Due to the impact, deceased

sustained grievous injuries and succumbed to the same.

Thereupon, the claimants being the dependents of the

deceased filed a claim petition seeking compensation on

the premise that the deceased was hale and healthy prior

to the accident and was earning Rs.12,000/- per month as

a driver of private car and contributing to the family and

maintaining them. It is contended that the death of the

deceased was on account of the accident, which was

caused due to the negligent driving by the driver of the

offending vehicle and same caused an emotional and

financial distress to the claimants and hence, they sought

for compensation.

3. Upon service of notice, respondent No.1 -

owner of the offending vehicle remained absent, whereas,

respondent No.2 - insurance company appeared through

its counsel and filed written statement denying the mode

and manner of the accident. It is further contended that

though the offending vehicle was insured with it, the

liability is subject to the terms and conditions of the policy

and subject to condition that the driver of the offending

vehicle having valid and effective driving licence.

4. The Tribunal based on the pleadings of the

parties, framed issues and recorded evidence. The

claimant No.1 examined herself as PW.1 and marked five

documents as Exs.P1 to P5. No witness has been

examined on behalf of the insurance company except

marking the copy of the insurance policy as Ex.R1.

5. Upon evaluation of the evidence, the Tribunal

held that the death of the deceased was on account of the

accident, which occurred due to rash and negligent driving

by the driver of the offending vehicle and consequently

held that the claimants are entitled for compensation of

Rs.10,71,800/- together with interest at 6% per annum

from the date of claim petition till realization and directed

respondent No.2 - insurance company to deposit the said

compensation within one month from the date of award.

Being aggrieved by the aforesaid judgment and award, the

insurance company is before this Court.

6. The learned counsel for the appellant -

insurance company reiterating the grounds urged in the

appeal memorandum, submitted that the Tribunal has

erred in assessing the income of the deceased at

Rs.6,000/- per month without there being any proof

thereof. That Tribunal erred in taking the age of the

deceased for determining the compensation instead of

taking the age of the youngest of the parents. Hence,

seeks for allowing of the appeal.

7. Heard the learned counsel for the appellant -

insurance company.

8. The accident in question is not in dispute. The

accident is of the year 2012. Though it is claimed on

behalf of the claimants that the deceased was earning

Rs.12,000/- per month as a driver of private car, no

acceptable evidence has been placed on record to justify

the said claim. In the circumstances, the Tribunal has

assessed the income notionally at Rs.6,000/- per month.

The Tribunal has added 30% of the income while

calculating the compensation towards loss of dependency

considering the chart prepared by the Karnataka State

Legal Services Committee fixing the notional income of the

victims of road traffic accident and in the light of law laid

down by the Apex Court for awarding compensation

towards future prospects. The enhancement made by the

Tribunal is maintained as just and proper.

9. The Tribunal has taken into consideration the

age of the deceased at 24 years and has applied the

multiplier of '18'. The other ground urged by the appellant

is that the age of the deceased ought not to have been

taken for the purpose of determination of the

compensation instead age of the youngest of parents

ought to have been taken. This issue is no longer res

integra. It is settled law that the age of the deceased

needs to be taken into consideration for the purpose of

determination of the compensation and not the age of the

youngest of the parents as contended. In view of the

settled position of law, this appeal does not survive for

consideration and same is dismissed. As regards grant of

compensation under other heads, same does not warrant

interference and it is maintained.

The amount in deposit be transferred to the

concerned Tribunal.

Sd/-

JUDGE

Srt