Karnataka High Court
The Oriental Insurance Co.Ltd vs Sampathbai W/O Late Subhash Sirsi ... on 29 June, 2022
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF JUNE 2022
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
MFA No.201498/2016 (MV)
C/w
MFA No.200866/2016
In MFA No.201498/2016
BETWEEN:
Sampathbai
W/o Late Subhash Sirsi,
Age: 48 years, Occ: Household,
R/o: Nasirwadi, Aland,
Tq: Aland, Dist: Kalaburagi-585101.
.....Appellant
(By Smt. Sharada R.Patil, Advocate)
AND:
1. Shivanand S/o Anandraya Tambake,
Age: Major, Occ: Business,
R/o: H.No.71, Halthadkal,
Tq: Aland Dist: Kalaburagi-585101.
2. The Oriental Insurance Co. Ltd.
Through its Divisional Manager,
Opp: Mini Vidhan Soudha,
Station Road, Gulbarga-585101.
2
3. Sharnbasappa S/o Hanmantharaya
Hoddinmani,
Age: Major, Occ: Business,
R/o: H.No.10-977/A, Manikeshwari Colony,
Brahampur, Kalaburagi-585101.
4. IFFCO Tokio Gen. Insurance Co. Ltd.
Through its Manager, Asian Arcade,
Near Anand Hotel, S.B.Temple Road,
Kalaburagi-585101.
.....Respondents
(By Sri. Babu H.Metagudda, Advocate for R1;
Smt. Preeti Patil Melkundi, Advocate for R2;
Sri. Rajesh G.Doddamani, Advocate for R3;
Sri. C.S.Kalaburgi, Advocate for R4)
This MFA is filed under Section 173(1) of M.V.Act, praying
to allow the above miscellaneous first appeal and consequently
be pleased to modify the judgment and award dated 28.03.2016
by the II Addl. Senior Civil Judge & MACT Kalaburagi in MVC
No.194/2013 and consequently be pleased to enhance the
compensation suitably.
In MFA No.200866/2016
BETWEEN:
The Oriental Insurance Co. Ltd.,
Through its Divisional Manager,
Opp. Mini Vidhan Soudha,
Station Road, Gulbarga.
.....Appellant
(By Smt. Preeti Patil Melkundi, Advocate)
AND:
1. Sampathbai
W/o Late Subhash Sirsi,
Age: 48 years, Occ: Household,
R/o: Nasirwadi, Aland,
Tq: Aland, Dist: Kalaburagi-585101.
3
2. Shivanand
S/o Anandraya Tambake,
Age: Major, Occ: Business,
R/o: H.No.71, Halthadkal,
Tq: Aland Dist: Kalaburagi-585101.
3. Sharnbasappa S/o Hanantharaya
Hoddinmani,
Age: Major, Occ: Business,
R/o: H.No.10-977/A,
Manikeshwari Colony,
Brahampur, Kalaburagi-585101.
4. IFFCO Tokio Gen. Insurance Co. Ltd.
Through its Manager, Asian Arcade,
Near Anand Hotel,
S.B.Temple Road,
Kalaburagi-585101.
.....Respondents
(By Smt. Sharada R.Patil, Advocate for R1;
Sri. Babu H.Metagudda, Advocate and
Smt. Sunita V.Sangan, Advocate for R2
Sri. Rajesh G.Doddamani, Advocate for R3;
Sri. C.S.Kalaburgi, Advocate for R4)
This MFA is filed under Section 173(1) of M.V.Act, praying
to call for the records and allow the above appeal by setting
aside the impugned judgment and award dated 28.03.2016 in
MVC No.194/2013 passed by the IInd Addl. Senior Civil Judge
and MACT at Kalaburagi.
These appeals coming on for final hearing, this day, the
court delivered the following:
4
JUDGMENT
These two appeals are filed by the appellant-
petitioner and respondent No.2-Insurance Company
challenging the judgment and award dated
28.03.2016 passed in MVC No.194/2013 by the II
Addl. Senior Civil Judge & MACT, Kalaburagi.
2. MFA No.201498/2016 is filed by the
petitioner seeking enhancement of compensation,
while MFA No.200866/2016 is filed by the respondent
No.2-Insurance Company challenging the liability. As
these appeals are arising out of the same judgment
and award passed by the tribunal, they are heard
together and common order is being passed.
3. For the sake of convenience, parties are
referred with the ranks occupied by them before the
Tribunal.
4. The brief facts leading to the case are that
on 31.12.2012 at about 11.45 p.m., the deceased
Shivaraj and others were going to Gulbarga for
attending the new year party on the motorcycle
bearing registration No.KA-32/U-8285. When they
were near Bhimalli cross, the motorcycle bearing
registration No.KA-32/Y-4179 came from opposite
direction and both the vehicles collided with each
other. Thereby the deceased who was pillion rider on
the motorcycle bearing registration No.KA-32/U-8285
fell down and sustained grievous injuries. He was
shifted to Government Hospital but while undergoing
treatment, he succumbed because of the injuries.
That the deceased was final year diploma student and
was earning Rs.6,000/- per month by conducting
private tuition to the school students. That the
petitioner being the sole dependent and hence she
filed claim petition seeking compensation of
Rs.16,60,000/- under the various heads. Further, it is
alleged that respondent No.1 is the owner of the
offending vehicle, while respondent No.2 is the insurer
of the offending vehicle on which the deceased was
traveling as a pillion rider. The respondent Nos.3 and
4 are the owner and insurer of the other vehicle,
which was involved in the accident.
5. The respondent Nos.1 and 3 did not contest
the matter, while respondent Nos.2 and 4 contested
the matter by filing objections. The respondent No.2
contended that respondent No.1 was not having valid
driving license to drive the motorcycle and three
persons were riding on the motorcycle and there is
breach of policy conditions. He has denied the other
allegations and sought for dismissal of the claim
petition.
6. The respondent No.4. has also filed
independent objections statement denying the
allegations and assertions made thereunder. Further it
is contended that the accident is due to actionable
negligence on the part of the rider of the motorcycle
on which the deceased was traveling and hence
sought for dismissal of the claim petition.
7. After recording the evidence of parties and
appreciating the oral and documentary evidence, the
tribunal has awarded compensation of Rs.12,45,000/-
with interest @ 6% p.a. by fastening the liability on
respondent Nos.2 and 4 in equal proportionate i.e.
50:50.
8. Being aggrieved by the judgment and
award passed by the tribunal, the petitioner has filed
MFA No.201498/2016 seeking enhancement.
9. Learned counsel for the petitioner would
contend that the deceased was a final year Diploma
student and the income taken was on lower side. She
would further contend that the future prospects were
not added and the compensation awarded under the
other conventional heads is on lower side. Hence, she
would seek for enhancement.
10. On the contrary, MFA No.200866/2016 is
filed by the respondent No.2-Insurance Company.
11. Learned counsel appearing for respondent
No.2-Insurance Company has contended that there is
clear breach of policy conditions as the vehicle on
which the deceased was traveling, three persons were
traveling including the deceased and due to imbalance
the accident has occurred. Hence, she would contend
that the contributory negligence on the part of the
deceased is required to be considered. She would
further contend that there is breach of policy
conditions by respondent No.1 and hence she would
seek for absolving of the liability of the Insurance
Company.
12. Learned counsel for respondent No.4 did
not appear to argue the matter.
13. Having heard the arguments and perusing
the records, it is evident from the records that the
accident has occurred on 31.12.2012 at about 11.45
p.m. The deceased was traveling on the motorcycle
bearing registration No.KA-32/U-8285, as a pillion
rider. The allegations made in the complaint itself
clearly disclose that there was breach of policy
conditions as three persons were traveling on the
motorcycle, when it is meant for two persons only.
However, it is also alleged that the deceased was a
final year diploma student and was earning Rs.6,000/-
per month by conducting private tuition classes. It is
important to note here that in respect of the accident
occurred in the year 2012, this Court is consistently
taking the notional income @ Rs.6,500/- per month.
The petitioner has not produced any material
document to show any other income on the part of the
deceased. The accident has occurred virtually in the
midnight i.e. at about 11.45 to 12.15 p.m. on the
intervening night of 31.12.2012 and 01.01.2013.
Normally, this Court takes notional income @
Rs.6,500/- in respect of the accident which occurred in
the year 2012. Considering the fact that the accident
has occurred on the intervening night of 2012 and
2013 and considering the educational qualification of
deceased and his performance, in my considered
opinion, it is just and proper to take the notional
income of the deceased @ Rs.7,000/- per month.
Though learned counsel for the appellant/petitioner
contend that the income of the deceased can be taken
at least minimum Rs.10,000/- per month, but to
substantiate the said contention, no other material
evidence is placed. The allegations disclose that the
deceased was self-employed and he was conducting
private tuition classes. Considering the age of the
deceased, 40% is required to be added towards future
prospects. As the deceased was bachelor, 50% is
required to be deducted for his personal expenses.
Hence, the loss of future income would be
Rs.10,58,400/- (Rs.9,800/- x 12 x 18 x 50%).
14. Further, the petitioner is entitled for
Rs.40,000/- under the head of loss of consortium.
15. The petitioner is also entitled for
Rs.15,000/- each under the head of loss of estate and
funeral expenses.
16. Thus, the petitioner is entitled for total
compensation of Rs.11,28,400/- as against
Rs.12,45,000/- awarded by the tribunal.
17. However, the tribunal has awarded total
compensation of Rs.12,45,000/-. Even the tribunal
has taken the income on lower side and though future
prospects were taken @ 50%, even then the
compensation arrived at Rs.12,45,000/- is on higher
side and it clearly disclose that there is mathematical
mistake in calculation which has resulted in awarding
compensation of Rs.12,45,000/-.
18. As regards the appeal filed by the
Insurance Company, it is contended that there is
breach of policy conditions and three persons were
traveling on the motorcycle. From Ex.P7, it is evident
that the rider of the motorcycle of respondent No.1 on
which the deceased was traveling was prosecuted for
the offences under Sections 279, 338 and 304(A) of
IPC, while against the rider of the other motorcycle
abate charge sheet is submitted. Hence, the
investigating officer specifically asserted that both the
riders of the motorcycle have equally contributed to
the accident and thereby the tribunal has fastened the
liability of 50:50 on both the Insurance Companies.
19. Now the learned counsel for appellant-
Insurance Company would raise an issue that there is
breach of policy conditions by respondent No.1, as it is
a case of triple riding which is evident from the
records. Hence, she would seek that at-least an order
regarding pay and recovery may be passed.
20. In my considered opinion, the said
submission having some force. No doubt, the
deceased was a pillion a rider, but he was riding along
with two others on the motorcycle and the policy at
Ex.P1 disclose that it was covering the risk of 1+1 and
only two persons were permitted to travel on a
vehicle. Hence, it is evident that there is breach of
policy conditions. However, the deceased was a third
party and under such circumstances the Insurance
Company is liable to pay compensation to the extent
of 50% with liberty to recover the same from
respondent No.1. Considering these facts and
circumstances, the appeal filed by the Insurance
Company needs to be allowed in part and the appeal
filed by the petitioner needs to be dismissed.
21. Accordingly, I proceed to pass the
following;
ORDER
(a) The appeal in MFA No.200866/2016 filed by the
Insurance Company is allowed in part.
(b) The petitioner is held entitled for total
compensation of Rs.11,28,400/- as against
Rs.12,50,000/- awarded by the tribunal with
interest @ 6% from the date of petition.
(c) The liability of respondent Nos.2 and 4 i.e.
appellant and respondent No.4 to the extent of
50:50 is confirmed.
(d) The appellant herein respondent No.2-
Insurance Company is directed to pay the
award amount with accrued interest thereon
within six weeks from today with liberty to
recover the same from respondent No.1/owner.
(e) The appeal in MFA No.201498/2016 filed by the
petitioner is dismissed.
(f) The release and deposit shall be made as per
the order of the tribunal.
(g) The amount in deposit shall be transmitted to
the tribunal forthwith.
Sd/-
JUDGE
msr
