Karnataka High Court
Iffco-Tokio Gen. Ins. Co. Ltd vs M.Venkatalaxmi And Ors on 9 February, 2022
Bench: S.R.Krishna Kumar, K S Hemalekha
1
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.200117/2019
C/w MFA No.200027/2019 (MV)
IN MFA NO.200117/2019
BETWEEN:
1. M.Venkatalaxmi W/o Late Srinivas,
Age: 40 years, Occ: Household,
2. M.Subbarao S/o Late M.Srinivas,
Age: 22 years, Occ: Student,
3. M.Kanakadurga D/o Late M.Srinivas,
Age: 21 years, Occ: Student,
All R/o Konaddi Tq: Shahapur now
All R/o H.No.26 House of Venkatdurga Rao
S/o Krishna Rao Vinayak Kumar Jiddi Math,
Manik Prabhu Colony, Udnoor Road,
Kalaburagi.
... Appellants
(By Sri B.M.Kinikeri, Advocate)
2
AND:
1. Nagesh Janam S/o J.Rachanna,
Age: 33 years, Occ: Driver cum owner
of Motor Vehicle DCM bearing No.AP/20/X/9385,
R/o H.No.7-163/3, Vinayak Nagar, Jiddi Metala
Qhutabalapur, Dist: Rangareddy
(A.P. State) Pin Code No.500090.
2. The IFFCO Tokyo Gen. Insurance Co. Ltd.,
Secundrabad Through its Divisional Manager,
Asian Arcade, G-1-23 near Anand Hote,
S.B.Temple Road, Kalaburagi-585103.
... Respondents
(By Smt. Preeti Patil Melkundi, Advocate for R2;
Notice to R1 is dispensed with v/o dated 26.02.2021)
This Miscellaneous First Appeal is filed under Section
173 (1) of the Motor Vehicles Act, praying that the
judgment and award dated 9th day of October-2018 passed
by I Addl. Senior Civil Judge & MACT at Kalaburagi in MVC
No.31/2016 may kindly be modified and the top noted
appeal may kindly be allowed and award the compensation
as prayed in the claim petition.
IN MFA NO.200027/2019
BETWEEN:
1. The IFFCO Tokyo Gen. Insurance Co. Ltd.,
Secundrabad Through its Divisional Manager,
Asian Arcade, G-1-23 near Anand Hote,
S.B.Temple Road, Kalaburagi.
(Now represented by Authorized Signatory,
Bangalore)
... Appellant
(By Smt. Preeti Patil Melkundi, Advocate)
3
AND:
1. M.Venkatalaxmi W/o Late Srinivas,
Age: 40 years, Occ: Household,
2. M.Subbarao S/o Late M.Srinivas,
Age: 22 years, Occ: Student,
3. M.Kanakadurga D/o Late M.Srinivas,
Age: 21 years, Occ: Student,
All R/o Kongaddi Tq: Shahapur
Now all R/o H.No.26 House of Venkatdurga Rao
S/o Krishna Rao Vinayak Kumar Jiddi Math,
Manik Prabhu Colony, Udnoor Road,
Kalaburagi-585101.
4. Nagesh Janam S/o J.Rachanna,
Age: 33 years, Occ: Driver-cum-owner,
of Motor vehicle DCM bearing
No.AP-20/X-9385,
R/o H.No.7-163/3, Vinayak Nagar,
Jiddi Metala, Qhutabalpur,
Dist: Rangareddy-500074.
A.P.State
... Respondents
(By Sri.Chandrashekhar G & Sri.B.M.Kinikeri for C/R1 to 3;
Service of R4 is held sufficient v/o dated 19.11.2019)
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 09-10-2018 in MVC
No.31/2016 passed by the I Addl. Senior Civil Judge &
Member, MACT at Kalaburagi.
These appeals coming on for admission this day,
K.S. Hemalekha J., delivered the following:
4
JUDGMENT
Both these appeals arise out of the impugned
judgment and award dated 19.10.2018, passed in
MVC.No.31/2016, by the I Addl. Senior Civil Judge
and MACT, Kalaburagi ("the Tribunal" for short),
whereby the said claim petition filed by the wife and
children of late M.Srinivas, who died in a fatal road
traffic accident that occurred on 15.09.2015 was
allowed by the Tribunal awarding compensation of
Rs.14,64,100/- together with interest at the rate of
6% per annum in favour of the claimants.
2. MFA.No.200027/2019 is filed by the
insurance company questioning liability as well as
quantum of compensation awarded by the Tribunal.
3. MFA.No.200117/2019 is filed by the
claimants seeking enhancement of compensation.
The claim petition was filed under Section 166 of the
Motor Vehicles Act, 1988 ("the Act" for short) seeking
compensation of Rs.1,66,00,000/- with interest at the
rate of 12% per annum on account of death of one
M.Srinivas who was proceeding in his car from
Hyderabad bearing registration No.KA-33/M-2715 and
when he reached near Kanakamamidi gate, a DCM
goods vehicle bearing registration No.AP-20/X-9385
came in a rash and negligent manner and dashed
against the car of the deceased due to which, the
deceased succumbed to the injuries. The deceased
was hale and healthy at the time of accident and was
working as skilled supervisor and doing agricultural
work and owned 12 acres of fertile and irrigated land
and was also supervising of 30 acres of leased lands.
He was getting annual income of Rs.12,00,000/-. The
dependents are the wife and children of the deceased
M.Srinivas and were wholly depending upon the
income the deceased.
4. In pursuance of the notice issued by the
Tribunal, respondent No.1 though served with the
notice did not appear and hence was placed ex parte.
Respondent No.2/insurance company appeared and
filed its written statement.
5. Respondent No.2/insurance company
contended that the accident occurred due to the rash
and negligent driving of the deceased himself and not
due to the rash and negligent driving on the part of
the driver of DCM goods vehicle. It is also contended
that respondent No.1 being the driver-cum-owner of
the DCM goods vehicle was not having valid and
effective driving licence as on the date of the accident.
6. On the basis of the pleadings of the parties,
the Tribunal framed the following
ISSUES
1. Whether the petitioners prove that on
15.09.2015 at about 23-45 mid night at
Kanak Mamidi Gate, Highway of Moinabad,
the deceased M.Srinivas had met with an
accident and succumbed to the injuries on
the spot due to rash and negligent driving
of the DCM vehicle bearing No.AP.20/X-
9385 by respondent No.1?
2. Whether the respondent No.2 proves that
the driver of offending vehicle was not
holding valid and effective DL as on the
date of the accident and hence there is
violation of policy conditions?
3. Whether the petitioners are entitled to pay
compensation? If so, how much and from
whom?
4. What order or award?
7. In order to substantiate the claim, claimant
No.1 wife of the deceased examined herself as PW.1
and two other witnesses were examined on behalf of
claimants as PWs.2 and 3 and got marked the
documents as Exs.P-1 to P-17. On the other hand,
respondent No.2 did not adduce any oral and
documentary evidence.
8. The Tribunal, on the basis of the pleadings,
evidence and material on record held that the accident
occurred due to rash and negligent driving of the DCM
Goods vehicle bearing registration No.AP-20/X-9385,
which was driven by respondent No.1 and as such,
fastened the liability upon the insurance company and
awarded compensation of Rs.14,64,100/- with interest
at the rate of 6% per annum from the date of petition
till the date of realization under the following heads:
Sl.No. Particulars Amount
a. Towards dependency and loss Rs.13,44,060/-
of future income
b. Towards love and affection Rs.50,000/-
c. Towards Consortium, loss of Rs.70,000/-
estate and funeral expenses
Total Compensation Rs.14,64,060/-
Rounded off Rs.14,64,100/-
9. Being unsatisfied with the quantum of
compensation, the claimants have preferred
MFA.No.200117/2019 and insurance company has
preferred MFA.No.200027/2019 questioning the
liability as well as quantum of compensation awarded
by the Tribunal.
10. Heard the learned counsel for the parties.
11. The learned counsel for the claimants
submitted that the claimants have filed an application
I.A.No.1/2019 along with the additional documents in
order to point out that the said documents would
indicate that the deceased was earning a sum of
Rs.1,00,000/- and subsequently, the finding of the
Tribunal that the notional income of the deceased is to
be taken at Rs.8,000/- per month is incorrect and the
same deserves to be modified and the higher
compensation to be awarded in favour of the
claimants towards loss of dependency. It is also
contended that the quantum of compensation
awarded under the conventional head by the Tribunal
is incorrect, meager and the same also deserves to be
enhanced by this Court.
12. Per contra, Learned counsel for the
insurance company would submit that the contributory
negligence on the part of the deceased which has
caused the accident and this aspect was not
considered by the Tribunal. It is contended that the
evidence of PW.3 having admitted that the accident
occurred in the middle of the road is not considered by
the Tribunal and would further submit that the
deceased contributed negligence and consequently,
the Tribunal committed an error in fastening the entire
liability of paying the compensation upon the
insurance company on the ground that the driver of
the offending vehicle was only responsible for the
accident in question on account of his rash and
negligent driving. It is further contended that the
contributory negligence on the part of the deceased
has to be taken into account for the purpose of
apportioning the negligence and consequently, the
payment of compensation in favour of the claimants.
Secondly, it is submitted that quantum of
compensation claimed is based on the documents
produced along with I.A.No.1/2019 for production of
additional documents is also extremely exorbitant and
the said amount of Rs.1,00,000/- as contended by the
claimants relied upon by them is on the higher side
and is not acceptable.
13. It is further contended that the Tribunal
has taken the age of the deceased as 38 years when
the documents produced by the claimants would show
that deceased was aged about 44 years at the time of
accident.
14. Having given our anxious consideration to
the rival contentions and the material on record, the
points that would arise for our consideration in this
appeal are:
(i) Whether the Tribunal was justified in
fastening the liability upon the
insurance company?
(ii) Whether the judgment and award of
the Tribunal requires consideration
insofar as quantum of compensation
is concerned?
Point No.1:
15. Insofar as the contentions urged on behalf
of insurance company that there is an admission in
the cross-examination of PW.3, the fact that the
deceased was driving his car in the middle of the road
at the time of the accident is concerned is not
acceptable. As apart from the facts that PW.3 was not
an eyewitness to the accident coupled with the fact
that the accident occurred at 11.45 p.m. almost at
midnight in addition to the fact that the charge sheet
has been filed against the driver of the offending
vehicle and looking into the documents at Exs.P-4 to
P-6 clearly establish the fact that the accident
occurred due to the rash and negligent driving of the
offending vehicle bearing registration No.AP-20/X-
9385 which was coming from the opposite direction
from wrong side. Thus, we are of the considered
opinion that the finding of the Tribunal that the driver
of the offending vehicle was rash and negligent in
driving the vehicle and no contributory negligence can
be attributed to the deceased is correct and proper,
particularly when the insurance company has not
adduced any rebuttal evidence to establish that the
deceased himself was also guilty of the contributory
negligence. Accordingly, in view of the fact that the
material on record and the stray admission cannot be
made the basis to come to a conclusion that the
deceased was guilty of contributory negligence, we
are of the considered view that the point framed for
consideration is answered in the affirmative holding
that the Tribunal was justified in holding that there is
no contributory negligence on the part of the
deceased.
Point No.2:
16. So far as the contention urged by the
learned counsel for the insurance company that the
age of the deceased is to be taken as 44 years in view
of the age shown in the voters' I.D. and ration card,
we are of the considered opinion that in the driving
licence Ex.P-10, the age of the deceased is shown as
38 years. Coupled with the evidence adduced on
behalf of the claimants to the effect that he was aged
about 38 years and there being no other rebuttal
evidence adduced by the insurance company to show
that the deceased was aged about 44 years, we are of
the view it is sufficient to come to a conclusion that
the Tribunal was fully justified in taking the age of the
deceased as 38 years instead of 44 years. Despite the
discrepancy in the document produced by the
claimants, even then the contention urged on behalf
of the insurance company cannot be accepted and
hence, we take the age of the deceased as 38 years
as on the date of the accident.
17. Insofar as quantum of compensation is
concerned, though the claimants contend that the
deceased was earning Rs.1,00,000/- per month is
correct, proper appreciation of the entire material on
record including the additional documents produced
by the claimants comprising all the bank statement,
pass book etc., would clearly indicate that the monthly
income of the deceased can be safely taken at
Rs.12,000/- as against Rs.8,000/ as stated by the
Tribunal. Accordingly, I.A.No.1/2020 is allowed and
the same is taken on record. Thus, the compensation
towards loss of dependency is as under:
18. Taking the income of the deceased at
Rs.12,000/- adding 40% (4800 future prospects) is
awarded towards future prospects as per the dictum
of the Hon'ble Apex Court in the case of National
Insurance Company Limited vs. PranaySethi
[(2017)16 SCC 680] totaling to Rs.16,800/- and
1/3rd being deducted towards personal expenses and
multiplier 15 is applied taking into consideration the
age of the deceased as 38 years. The compensation
under the head loss of dependency would come to
Rs.20,16,000/- (16,800 x 2/3 x 15 x 12).
19. In view of the dictum in the cases of
United Indian Insurance Company Limited vs.
SatinderKaur& others [(2020) ACJ 3076] and
Magma General Insurance Company Limited vs.
Nanu Ram [(2018) 18 SCC 130] since the
dependents of the deceased are three in number, a
sum of Rs.40,000/- each to be awarded, which would
come to Rs.1,20,000/- towards loss of parental and
spousal. Under the head transportation of dead body
Rs.15,000/- and under the head funeral expenses and
obsequies ceremony, an amount of Rs.15,000/- to be
awarded. In all, the claimants are entitled to
Rs.21,66,000/- under the following heads:
Loss of dependency Rs.20,16,000/-
Loss of spousal and filial Rs.1,20,000/-
consortium
Transportation of dead body Rs.15,000/-
Funeral expenses & obsequies Rs.15,000/-
ceremony
Total Rs.21,66,000/-
20. The Tribunal has already awarded a sum of
Rs.14,64,100/-. Hence, after deducting the same, the
appellants would be entitled for enhanced compensation of
Rs.7,01,900/- (Rs.21,66,000/- less Rs.14,64,100/-) with
interest at 6% per annum from the date of petition till
realization. Accordingly, we answer point in the
affirmative.
21. In the result, we pass the following:
ORDER
(i) MFA.No.200027/2019 filed by the
insurance company is hereby
dismissed and MFA.No.200117/2019
filed by the claimants is partly
allowed.
(ii) The insurance company is directed to
deposit the enhanced amount of
Rs.7,01,000/- with interest at the rate
of 6% per annum from the date of
petition till the date of realization
within a period of eight weeks from
the date of receipt of the order.
(iii) The amount in deposit before this
Court be transmitted for
disbursement.
(iv) The apportionment, release and
deposit of the award is as directed the
Tribunal.
(v) Registry is directed to transmit the
trial Court record to the Tribunal.
(vi) No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
S*
