Karnataka High Court
M/S. United India Insurance ... vs Smt. Prabhavathi on 28 February, 2022
Bench: P S Kumar, Rajendra Badamikar
M.F.A No.5026/2016
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2022
PRESENT
THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR
AND
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
M.F.A. No.5026 OF 2016 (MV)
BETWEEN :
M/S. UNITED INDIA INSURANCE
COMPANY LIMITED
DIVISIONAL OFFICE, B.M.ROAD
ROBERTSONPET, K.G.F.
NOW REP. BY ITS REGIONAL OFFICE
6TH FLOOR, KRISHI BHAVAN
NRUPATHUNGA ROAD
BENGALURU-560 001
REP. BY ITS MANAGER ... APPELLANT
(BY SHRI. SHIVANNE GOWDA FOR
SHRI. A.M. VENKATESH, ADVOCATES)
AND :
1. SMT. PRABHAVATHI
W/O DORESWAMY DAYALAN
AGED ABOUT 46 YEARS
2. SMT. D. KALPANA
D/O DORESWAMY DAYALAN
AGED ABOUT 18 YEARS
3. SRI. D. KIRAN
S/O DORESWAMY DAYALAN
MAJOR
M.F.A No.5026/2016
2
4. SRI. D. KARTHIK
S/O DORESWAMY DAYALAN
AGED ABOUT 14 YEARS
ALL ARE R/O. RASHIKALA
NO.89, NEW MODEL HOUSE
NARIKUPPAM, KGF
5. SRI. UMAPATHI
R/AT NO.757, DHANAPRIYA
SUBBAIYANAPALYA
MARUTHISEVANAGAR POST
BENGALURU-560 033 ... RESPONDENTS
(BY SMT. SUGUNA R REDDY, ADVOCATE FOR R1 TO R4;
VIDE ORDER DTD.07.09.2021, NOTICE TO R5
IS HELD SUFFICIENT)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED.30.01.2014 PASSED IN MVC
NO.31/1999 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE,
ADDITIONAL MACT, KGF, AWARDING A COMPENSTION OF
RS.26,30,881/- WITH INTEREST @ 9% P.A FROM THE DATE OF FILING
THE PETITION.
THIS MFA, HAVING BEEN HEARD THROUGH VIDEO
CONFERENCING AND RESERVED FOR JUDGMENT ON 15.02.2022
COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY,
P.S.DINESH KUMAR J, PRONOUNCED THE FOLLOWING:-
JUDGMENT
United India Insurance Company Ltd., has presented
this appeal challenging the judgment and Award dated
January 30, 2014 in MVC No.31/1999 on the file of Principal
Senior Civil Judge and Addl., MACT, KGF.
M.F.A No.5026/2016
2. Heard Shri. Shivanne Gowda, learned Advocate
for the Insurer and Smt. Suguna R. Reddy, learned
Advocate for the claimants.
3. For the sake of convenience, parties shall be
referred as per their status before the Tribunal.
4. This case has a checkered history. Claimants
filed the instant claim petition in the year 1999 seeking
compensation of Rs.25,00,000/- contending inter alia that
first claimant's husband Doreswamy Dayalan was riding his
scooter on Old Madras Road at about 10.45 p.m. on August
2, 1995. The offending lorry dashed against him causing
grievous injuries. He was shifted to the Hospital for
treatment and he died in the hospital.
5. It was pleaded in the claim petition that Dayalan
was working as a Subedar in Madras Engineering Group,
earning Rs.11,505/- per month.
M.F.A No.5026/2016
6. The claim petition was dismissed on 11.03.2008,
holding that the Tribunal had no jurisdiction, by reserving
liberty to file fresh petition on the same cause of action. The
said judgment was challenged in M.F.A. No.5699/2008. This
Court, vide judgment dated January 2, 2013 set-aside the
said judgment holding that the Tribunal ought to have
returned the papers to re-present the same before
jurisdictional Tribunal. This Court also reserved liberty to
the claimants and insurer to lead additional evidence, if
any.
7. Insurer contested the claim, by filing its
Statement of objections on February 7, 2000, but admitted
the involvement of vehicle. The Tribunal framed three
issues. The first issue is, whether Dayalan was victim of
accident caused by the lorry bearing registration number
MYA 5608.
8. On behalf of the claimants, two witnesses were
examined. None was examined on behalf of the Insurer.
M.F.A No.5026/2016
The Tribunal, vide its judgment dated January 30, 2014 has
awarded compensation of Rs.26,30,881/- with 9% interest.
9. Thereafter, on June 30, 2014, the insurer has
filed I.A. No.4 under Section 151 of CPC to recall the
judgment and decree on the ground that the panel
Advocate to whom the case was entrusted before the
matter was remanded by the High Court, had passed away
and new Advocate was engaged. Further, the concerned file
was missing in the office and could not be traced. On
receipt of the judgment and Award, enquiry was made with
Division No.6 Office and it was learnt that the vehicle in
question was not insured. The said I.A. No.4 has been
dismissed on April 12, 2016. Feeling aggrieved by the
dismissal of I.A. No.4, Insurer has presented this appeal.
10. The principal argument advanced by
Shri. Venkatesh, learned Advocate for the insurer is, the
offending vehicle was not insured by the insurer. It was
urged that it is the duty of the claimant to furnish the
M.F.A No.5026/2016
Insurance policy details. Placing reliance on the Oriental
Insurance Company Ltd., Vs. N.S. Devaraja and others1, he
urged that insurer cannot be saddled with the liability when
the offending vehicle has not been insured.
11. In reply, Smt. Suguna Reddy, learned Advocate
for the claimants submitted that the claim petition was
dismissed at the first instance in March 2008. The said
judgment has been set-aside and matter has been remitted
by this Court. The insurer has admitted the involvement of
vehicle in the Statement of objections. Therefore, insurer is
estopped from raising that plea at this stage in the second
round of litigation. Accordingly, she prayed for dismissal of
this appeal.
12. We have carefully considered rival contentions
and perused the records.
13. Undisputed facts of the case are, insurer has
filed its Statement of Objections on February 7, 2000
ILR 1997 KAR 1061 (paras 11, 14 & 15)
M.F.A No.5026/2016
admitting that the offending vehicle was insured. The
relevant portion reads as follows:
"7. This respondent submits that it is true that the
vehicle that is MYA 5608 was insured with this respondent as
per the policy which is issued by DO.6, Malleswaram, Bangalore
in the name of first respondent and the Policy was in force as
on the date of accident."
(Emphasis Supplied)
14. The Statement of Objection is signed and verified
by the Senior Divisional Manager.
15. Smt. Suguna Reddy has placed reliance on
National Insurance Company Ltd., Vs. Saroj (Smt.) and
others2 in support of her contention that insurer cannot be
permitted to contend that the vehicle in question was not
insured by it.
16. It is relevant to note that in the Statement of
Objections, duly verified by the Divisional Manager, the
Insurer has expressly admitted in the year 2000 that the
vehicle in question was insured in the name of the first
respondent in the claim petition. Despite service of notice,
(2009)13 SCC 508 (para 18)
M.F.A No.5026/2016
the first respondent has remained absent before the
Tribunal. The award under challenge has been passed in
2014. Insurer has neither led in any evidence nor produced
any document.
17. The authority in Devaraja's case3, relied upon by
the Insurer, is not applicable to the facts of this case
because, the insurer in that case had raised a specific
objection that the vehicle in question was not insured by it.
18. The dates and events recorded by us
hereinabove, clearly demonstrate that insurer having filed
the Statement of objections admitting the coverage, as
back as in the year 2000 has attempted to turn around and
plead that the vehicle in question was not insured by filing
I.A. No.4 in 2014. It is also relevant to note that the claim
petition was first presented on January 1, 1999. Nearly, 23
years have elapsed from the date of presentation of the
claim petition and 22 years from the date of filing the
Statement of objections. Therefore, it is too late in the day
ILR 1997 KAR 1061 (para 14)
M.F.A No.5026/2016
for the insurer to contend that the vehicle in question was
not insured. Hence, the contention with regard to coverage
of insurance, urged on behalf of the insurer must fail.
19. Smt. Suguna Reddy also urged that the
compensation awarded is inadequate and this Court may
suitably enhance the compensation.
20. In reply, Shri. Venkatesh submitted that in the
event this Court were not to accept Insurer's contention
that the vehicle was not insured, this Court may consider to
re-compute the compensation in accordance with law. He
submitted that the Tribunal has not deducted the Income
tax while computing the 'loss of dependency'.
21. The deceased Dayalan was working as Subedar
in the Military. Ex.P.32 is the Certificate showing his pay as
Rs.14,062/-. He was aged 40 years as on the date of death.
Therefore, as held in National Insurance Company Ltd., Vs.
M.F.A No.5026/2016
Pranay Sethi and others4 30% will have to be added
towards future prospects.
22. Shri. Venkatesh has argued that in the year
1995, for a salaried person, the standard deduction was
Rs.15,000/- and Rs.2,400/- towards Professional tax is to
be deducted.
23. The net annual income of the deceased after
deducting Income tax is worked out as follows:
The total annual income of the deceased works out to
Rs.1,68,744/- (Rs.14,062*12).
Total Annual Income - Rs. 1,68,744/-
Less: Standard Deduction - Rs. 15,000/-
Less: Professional tax - Rs. 2,400/-
___________
Total Taxable Income - Rs. 1,51,344/-
24. The applicable tax slab for the relevant year is as
follows:
(2017)16 SCC 680 (para 59.4)
M.F.A No.5026/2016
Upto Rs.40,000/- - Nil
Rs.40,001 - 60,000 - 20%=Rs. 4,000/-
Rs.60,001 - 1,20,000 - 30%= Rs.18,000/-
Rs.1,20,001 and above - 40%= Rs.12,538/-
______________
Total tax payable Rs.34,538/-
_______________
After deducting applicable tax, the net income per
annum works out to Rs.1,16,806/- (Rs.1,51,344-34,538).
25. Thus, compensation towards loss of dependency is
worked out as follows;
The Annual income is Rs.1,16,806/-. By adding 30%
towards future prospects, it works out to Rs.1,51,848/-
(Rs.1,16,806 + 35,042). A sum equivalent to 1/4th of income
is deductible towards personal expenses of the deceased.
The income per annum works out to Rs.1,13,886/-
(Rs.1,51,848*3/4). By applying 15 as multiplier, the loss of
dependency works out to Rs.17,08,290/-(Rs.1,13,886*15).
M.F.A No.5026/2016
26. An amount of Rs.40,000/- each is to be awarded
towards 'loss of consortium' for the wife and three children of the
deceased.
27. The total compensation is re-computed as follows;
Sl.No Description Amount
(in Rs.)
a. Loss of dependency 17,08,290
b. ADD: Loss of Consortium 1,60,000
(Rs.40,000*4)
c. ADD: Conventional heads; 30,000
funeral expenses, etc.,
d. Total (a+b+c) 18,98,290
e. LESS: Compensation awarded 26,30,881
by the Tribunal
Reduced Compensation (d-e) 7,32,591
28. In the result, the following:
ORDER
(a) Appeal is allowed in part holding that the
claimants shall be entitled for a total compensation of
Rs.18,98,290/- as against Rs.26,30,881/- awarded by the
Tribunal.
M.F.A No.5026/2016
(b) Insurer shall deposit the sum of Rs.18,98,290/-
with interest at 6% p.a. through out, excluding the amount
if any, paid/deposited already, within six weeks;
(c) Registry shall transfer the amount in deposit to
the Tribunal forthwith;
(d) The Tribunal shall disburse the amount as per its
directions in the judgment and award dated 30.01.2014
with regard to apportionment.
29. In view of disposal of this appeal, pending
interlocutary applications if any, do not survive and the
same are disposed of.
No costs.
Sd/-
JUDGE
Sd/-
JUDGE
SPS
