The Deputy Manager (Legal) vs Vaishali @ Varsha And Ors
2022 Latest Caselaw 2031 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

      DATED THIS THE 9TH DAY OF FEBRUARY 2022

                        PRESENT

     THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

                           AND

      THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA

             MFA NO.202454/2019 (MV)

BETWEEN:

The Deputy Manager (Legal),
Future Gen. India Ins. Co. Ltd.,
Pasadena No.18/1 (Old No.125/A),
IIIrd Floor, Ezone Building,
Ashoka Pillar road, Jainagar,
1st Block, Bangalore-560011.
(Now represented by Authorized
Signatory, Deshpande Nagar,
Hubli).
                                              ... Appellant

(By Smt. Preeti Patil Melkundi, Advocate)

AND:

1.     Vaishali @ Varsha W/o Navanath Kshirasagar,
       Age: 33 years, Occ: Household work & Coolie,

2.     Bhakti D/o Navanath Kshirasagar,
       Age: 10 years, Occ: Nil.,
                              2


3.   Samskar S/o Navanath Kshirasagar,
     Age: 07 years, Occ: Nil,

4.   Suman W/o Namadev Kshirasagar,
     Age: 63 years, Occ: H.H.Work,

     Resp. No.2 and 3 herein are minor
     M/G by Resp.No.1 herein natural Mother,

     All R/o Dobale Galli,
     Vijaypur-586101.

5.   Dasharat S/o Rajaram Jadhav,
     Age: Major, Occ: Owner of truck
     Its No.MH-11/M-5726,
     R/o: Tondal, Tq: Khandala,
     Dist: Satara-415002.
                                           ... Respondents

(By Sri.Basavaraj.R.Math, Advocate for R1 & R4;
R2 & R3 are minors U/g of R1;
R5 served)

     This Miscellaneous First Appeal is filed under Section
173 (1) of the Motor Vehicles Act, praying to call for the
records and allow the above appeal by setting aside the
impugned judgment and award dated 29.07.2019 in MVC
No.1529/2014 passed by the IIIrd Addl. District and
Sessions Judge & MACT IV, Vijaypur.


     This appeal coming on for admission this day,
K.S. Hemalekha J., delivered the following:
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                             JUDGMENT

The insurance company has preferred this appeal

assailing the judgment and award dated 29.07.2019, passed

in MVC.No.1529/2014, by the III Additional District & Sessions

Judge & Motor Accident Claims Tribunal, Vijayapura

(hereinafter referred to as "the Tribunal" for short) questioning

the liability and quantum of compensation awarded by the

Tribunal.

2. The claimants filed the petition in

MVC.No.1529/2014 under Section 166 of the Motor Vehicles

Act, 1988 ("the Act" for short) claiming compensation of

Rs.46,50,000/- on account of death of one Navanath S/o

Namadev Kshirasagar, who succumbed to the injuries

sustained in a fatal road traffic accident that occurred on

27.02.2014, when the deceased was proceeding on a

motorcycle bearing registration No.MH-10/AP-9334 from

Solapur towards Indian Sugar Manufacturing Company Ltd.

along with the pillion rider by name Siddeshwar Patil S.o

Shankar Patil. When they reached Solapur - Vijaypur Road, a

lorry bearing registration No.MH-11/M-5726 came from the

opposite direction from wrong side in a rash and negligent

manner and dashed against the motorcycle of the deceased,

due to which the deceased sustained grievous injuries and

succumbed to the injuries while on the way to the hospital.

The claimants are the wife, children and mother of the

deceased and the deceased was the only sole bread winner of

the family and the entire family was depending upon the

income of the deceased.

3. In pursuance of the notice issued by the Tribunal,

respondent Nos.1 and 2 appeared and filed their written

statement.

4. Respondent No.1/owner of the offending vehicle

contended that the accident occurred due to the sole

negligence on the part of the deceased, who was the rider of

the motorcycle bearing registration No.MH-10/AP-9334 and

hence, the respondent is not liable to pay any compensation

amount to the claimants.

5. Respondent No.2/insurance company filed

objections, inter alia contended that the accident occurred due

to the negligence on the part of the deceased rider of the

motorcycle, who lost control and fell down and thus, the

accident occurred on his own accord. It is further contended

that the lorry bearing No.MH-11/M-5726 was falsely implicated

in the accident and the insurance company is not liable to pay

compensation to the claimants as the rider of the motorcycle

on his own accord caused the accident.

6. The Tribunal, on the basis of the rival pleadings of

the parties, framed the following:

ISSUES

1. Whether the petitioners prove that on 27.02.2014 at about 08.30 p.m. near Seena River, on Solapur-Vijayapur road, Navanath S/o. Namadev Kshirasagar, met with road traffic accident due to actionable negligence on the part of the driver of Lorry bearing its Reg.No.MH-11/M-5726 and sustained fatal injuries?

2. Whether the petitioners prove the age and income of the deceased?

3. Whether the petitioners are entitled for compensation? If so, to what quantum and from which of the respondents?

4. What order or award?

ADDL. ISSUE

1. Whether respondent No.2 proves the violations of terms and conditions of insurance policy?

7. In order to substantiate their case, the claimants

examined the wife of the deceased as PW.1 and two other

witnesses as PWs.2 and 3 and got marked documents at

Exs.P-1 to P-17. On the other hand, the respondent

examined the Assistant Manager of the insurance company as

RW.1 and one Siddeshwar Patil as RW.2 and got marked the

documents at Exs.R-1 and R-2.

8. The Tribunal, on the basis of the pleadings,

evidence and material on record held that the accident

occurred due to the rash and negligent driving on the part of

the driver of the said lorry, due to which the deceased

succumbed to the injuries and fastened the liability on the

insurance company and awarded compensation of

Rs.27,07,640/- which is rounded off to Rs.27,07,700/- with

interest at 6% per annum from the date of claim petition till

realization under the following heads:

1. Loss of dependency and Rs.17,51,760/-

expectancy

2. Loss of consortium Rs.25,000/-

    3.        Loss of estate                      Rs.20,000/-
    4.        Loss of love and affection          Rs.25,000/-
    5.        Towards funeral expenses            Rs.10,000/-
    6.        Future prospects -50%.            Rs.8,75,880/-
                                Total         Rs.27,07,640/-

9. Being aggrieved by the fastening of liability and

the quantum of compensation awarded by the Tribunal, the

insurance company is in appeal.

10. Heard learned counsel for the appellant/insurance

company and learned counsel for the respondent/claimants.

11. Smt. Preeti Patil Melkundi, learned counsel for

the appellant / insurance company would contend that the

fastening of liability by the Tribunal is without considering the

specific contention of the insurance company that the accident

occurred due to the negligence on the part of the rider himself

and that the lorry bearing registration No.MH-11/M-5726 was

falsely implicated in the alleged accident.

12. It is further contended that the Tribunal has not

considered the evidence of RW.2, the pillion rider of the

motorcycle in proper perspective.

13. Insofar as the quantum of compensation is

concerned, it is contended that the award of compensation to

the extent of Rs.17,51,760/- under the head loss of

dependency and Rs.8,75,880/- towards future prospects is

much on the higher side and hence, sought for reduction of

compensation awarded by the Tribunal.

14. Per contra, Sri Basavaraj R. Math, learned

counsel for the claimants would contend that the Tribunal

looking into the evidence and material on record has rightly

held that the accident has occurred due to the rash and

negligent driving of the lorry bearing registration No.MH-11/M-

5726 and the Tribunal considering the actual income of the

deceased and in view of the judgment of the Hon'ble Apex

Court has awarded compensation which is fair, just and proper

compensation and the same does not call for any interference

at the hands of this Court.

15. Having given our anxious consideration to the

rival contentions and having perused the material on record,

the points that arise for our consideration in this appeal are:

(i) Whether the Tribunal was justified in fastening the liability on the insurance company?

(ii) Whether the judgment and award of the Tribunal requires any interference insofar as the quantum of compensation is concerned?

(iii) What order?

Point No.1:

16. The date, time and occurrence of the accident

and that the deceased succumbed to the injuries sustained in

a fatal road traffic accident that occurred on 27.02.2014 is not

in dispute. The dispute is with regard to whether the accident

occurred due to the negligence on the part of the driver of lorry

bearing registration No.MH-11/M-5726 or whether the

accident occurred due to the own accord of the deceased/rider

of the motorcycle.

17. Perusal of the documents Ex.P-4 the spot

panchnama and Ex.P-8 the charge sheet, which is leveled

against the driver of the lorry bearing registration No.

MH-11/M-5726 clearly indicate that the accident occurred due

to the rash and negligent driving of the offending vehicle. It is

also seen from the record that the said lorry was seized by the

police authority as on the date of the accident. PW.3 who is

the eyewitness to the accident in an unequivocal terms stated

that the occurrence of the accident is due to the rash and

negligent driving of the driver of the said lorry. The insurance

company, by way of cross-examination of PW.3 could not elicit

anything from the mouth of PW.3 contrary to what was stated

by PW.3 in his evidence. Though the insurance company

tried to contend that the lorry was falsely implicated in the

accident, the evidence of RW.1, who has categorically

admitted that neither complaint nor any investigation was

conducted by the insurance company to substantiate their

stand that the lorry bearing registration No.MH-11/M-5726 was

falsely implicated. Thus, the contention of the insurance

company that accident was created and there was no

negligence on the part of the driver of the lorry does not bring

home the satisfied evidence as required. Thus, in our

considered view, the reasoning of the Tribunal holding that the

accident occurred due to the rash and negligent driving of the

driver of the offending vehicle does not call for any

interference. As a result, we answer point No.1 in the

affirmative.

Point No.2:

18. Insofar as the quantum of compensation is

concerned, the Tribunal has taken the income of the deceased

as per his salary and the documents at Exs.P-11 to P-15.

Ex.P-15 is the salary certificate for the month of January 2014.

Ex.P-17 is the consolidated salary certificate for the months of

November, December and January. Ex.P-16 is the certificate

issued by the General Manager of Indian Sugar Manufacturing

Company. PW.2 has stated in his evidence that the deceased

was a permanent employee and Exs.P-16 and P-17 are the

documents which clearly show that the deceased was a

permanent employee and was earning a gross salary of

Rs.13,126/- per month and the net income of the deceased

was taken as Rs.12,976/-. The Tribunal, taking into

consideration the actual salary of the deceased and applying

the multiplier as per the dictum of the Hon'ble Apex Court in

the case of National Insurance Company Limited vs.

Pranay Sethi [(2017)16 SCC 680], has awarded a sum of

Rs.17,51,760/- under the head loss of dependency and

Rs.8,75,880/- under the head future prospects. Under the

head loss of consortium, the Tribunal has awarded a sum of

Rs.25,000/-. Under the head loss to estate, loss of love and

affection and funeral expenses, the Tribunal has awarded

Rs.20,000/-, Rs.25,000/- and Rs.10,000/- respectively. Thus,

the perusal of the entire judgment and award of the Tribunal

would clearly depict that the award of compensation by the

Tribunal is just, fair and proper compensation and it does not

call for any interference. Thus, point No.2 raised for

consideration is answered in the affirmative holding that the

quantum of compensation awarded by the Tribunal does not

call for any interference.

19. In view of the aforesaid discussion, we pass the

following:

ORDER

(i) The appeal filed by the insurance company is

hereby dismissed.

(ii) The impugned judgment and award dated

29/07/2019 in MVC.No.1529/2014 on the file of

the Tribunal is hereby confirmed.

No order as to costs.

Sd/-

JUDGE

Sd/-

JUDGE S*