New India Assurance Co. Ltd vs Smt. Bombay Padma W/O ...
2022 Latest Caselaw 5422 Kant

                            1




        IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 25TH DAY OF MARCH, 2022

                        BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI


             MFA NO.200800/2014 (MV)
                       C/W
               MFA NO.30143/2012


In MFA No.200800/2014

Between:

1.   Smt. Bombay Padma W/o B. Srinivasulu,
     Age: 36 years, Occ: Household,

2.   Kum. B.Venkateshwaramma D/o B.Srinivasulu,
     Age: 21 years, Occ: Student,

3.   Kum. B.Bujji D/o B.Srinivasulu,
     Age: 19 years, Occ: Student,

     All are R/o Atmakur Village & Mandal,
     Balanagar Mandal, Mahaboobnagar,
     Dist. Mehaboobnagar,
     Now at Makthalpet, Raichur.
                                             ... Appellants

(By Sri.Veeranagouda, Advocate)
                              2




And:

1.     T. Rameshwar Rao S/o Narayan Rao,
       Age: Major, Occ: Owner of Bus
       Bearing No.AP-22/W-2558,
       R/o Opp: Co-Operative Central Bank,
       Gopalpet, Village & Mandal,
       Mehaboobnagar District-509 003.

2.     The New India Assurance Co. Ltd.,
       Near Gunj Circle, Raichur-584 102.
       Through its Branch Manager.

3.    APSRTC represented by its
      Regional Manager, APSRTC New Bus stand,
      Mehaboobnagar-509 001.
                                        ... Respondents
(Notice to R1 & R3 are served;
By Sri.S.S.Aspalli, Advocate for R2)
      This Miscellaneous First Appeal is filed under Section
173(1) of the M.V.Act, praying to allow the appeal, the
judgment and award dated 07.07.2011 passed in MVC
No.202/2010 by the Prl. District Judge MACT-I, Raichur,
may kindly be modified by enhancing the compensation as
claimed in the claim petition.

In MFA No.30143/2012
Between:

New India Assurance Co. Ltd.,
Nehru Gunj Circle, Raichur .
Through its branch Manager
Now Represented by
The Divisional Manager,
The New India Assurance Co. Ltd.,
Divisional Office, Gulbarga.
                                               ... Appellant
(By Sri.S.S.Aspalli, Advocate)
                              3




And:

1.     Smt. Bombay Padma W/o B. Srinivasulu,
       Age: 33 years, Occ: Coolie,

2.     Kum. B.Venkateshwaramma D/o B.Srinivasulu,
       Age: 18 years, Occ: Student,

3.     Kum. B.Bujji D/o B.Srinivasulu,
       Age: 16 years, Occ: Student U/G of her
       natural mother i.e., petitioner No.1.
       R/o Atmakar village & Mandal,
       Dist: Mehaboobnagar Now at
       Makthalpet, Raichur.

4.     T. Rameshwar Rao S/o Narayanrao,
       Age: Major, Occ: Owner of Bus
       Bearing No.AP 22/W-2558,
       R/o Opp: Co-Operative Central Bank,
       Gopalpet, Village & Mandal
       Dist Mehaboobnagar.

5.     APSRTC,
       Represented by its
       Regional Manager,
       APSRTC New Bus Stand,
       Mehaboobnagar AP-509 001.
                                          ... Respondents
(By Sri. Veeranagouda, Advocate for R1 & R2;
R3 is minor U/G of R1;
Notice to R4 served
By Sri.Shivakumar S Badawadagi, Advocate for R5)

     This Miscellaneous First Appeal is filed under Section
173(1) of the M.V.Act, praying to call for the records in
MVC No.202/2010 on the file of the Prl. Dist. Judge MACT-I
Raichur dated 07.07.2011. Set aside the judgment and
award dated 07.07.2011 passed by the Prl. Dist. Judge
(MACT-I Raichur, by allowing the above appeal.
                                  4




      These appeals coming on for hearing, this day, the
Court delivered the following:-


                          JUDGMENT

Since these two appeals arise out of the

judgment and award, they are heard together and

disposed of by this common judgment.

2. These appeals are filed under Section

173(1) of the Motor Vehicles Act (for short 'the Act')

challenging the judgment and award dated

07.07.2011 passed in MVC No.202 of 2010 by the Prl.

District Judge, Motor Accident Claims Tribunal-I,

Raichur, (for short hereinafter referred to as 'the

Tribunal').

3. Parties are referred to as per their ranking

before the Tribunal. Appellants in MFA

No.200800/2014 are claimants, respondents are

respondents before the tribunal.

4. Facts giving rise to filing of these appeals

are as under:

4.1. On 09.10.2008, the deceased Bombay

Srinivasulu was travelling the bus bearing registration

No.AP-22/W-2558 in order to reach Kothakota from

Atmakur. While it was around 4.30 p.m., when the

driver of the said bus drove the same near tank bund

within the limits of Atmakur in a very rash and

negligent manner, due to sudden application of

brakes, the deceased fell down and succumbed to the

injuries. The respondent No.2 was the insurer and

respondent No3 was plying the said bus on hire basis.

The claimants being the legal representatives of

deceased Bombay Srinivasulu filed the claim petition

under Section 166 of Motor Vehicles Act seeking

compensation.

4.2. The respondent No.2 filed written

statement in which the averments made in the

petition were denied. It is further contended that the

driver of the bus was not having valid and effective

driving license at the relevant point of time. It is

contended that said bus was hired to APSRTC which

against the terms and conditions of the policy. Hence,

sought for dismissal of the petition.

4.3. On the basis of the pleadings of the parties,

the Tribunal framed the following issues;

a) Whether the claimants prove that, of them, claimant No.1 is the wife of the deceased Bombay Srinivasulu and Claimant Nos.2 and 3 are his children through the claimant No.1?

b) Whether the claimants further prove that on 9.10.2008 the said deceased Bombay Srinivasulu was travelling in APSRTC hired bus bearing registration No.AP-22/W-2558 in order to go to Kothakota from Atmakur and while it was around 4.30 p.m. the driver of the bus did drove the same in a

rash manner on the road near tank bund within the limits of Atmakur, in as much as the said Bombay Srinivasulu fell down?

c) Whether the claimants further prove that death of said Bombay Srinivasulu on 14.11.2008 was a direct consequence of such rash driving of the said bus?

d) To what quantum of compensation the claimants are entitled to? And from whom?

e) What order?

4.4. In order to prove the case, the claimant

No.1 examined herself and got exhibited documents

namely Ex.P1 to Ex.72. On behalf of the respondent

No.2, its official is examined as DW-1. Whereas

respondent No.3 examined its official as DW.2 and got

marked documents as Exs.D1 to D3. The Tribunal, by

the impugned judgment, inter alia, held that deceased

Bombay Srinivasulu was travelling in APSRTC hired

bus bearing registration No.AP-22/W-2558 in order to

go to Kothakota from Atmakur and while it was

around 4.30 p.m. the driver of the bus did drove the

same in a rash manner on the road near tank bund

within the limits of Atmakur, in as much as the said

Bombay Srinivasulu fell down and sustained injuries

and succumbed to the injuries and further held that

death of said Bombay Srinivasulu on 14.11.2008 was

a direct consequence of such rash driving of the said

bus and further held that the claimants are entitled for

compensation and accordingly partly allowed the claim

petition by awarding compensation of Rs.6,69,500/-

with interest at the rate of 6% p.a. and directed the

respondent Nos.1 and 2 to deposit the compensation

amount along with interest. Being dissatisfied with the

compensation awarded by the Tribunal, the

respondent-Insurance Company filed MFA

No.200800/2014 challenging the liability and

claimants have filed MFA No.30143/2012 seeking for

enhancement of compensation amount.

5. Heard the learned counsel for claimants

and learned counsel for respondent-Insurance

Company.

6. The learned counsel for the claimants

submits that the Tribunal has taken the income of the

deceased at Rs.5,000/- per month, which is on the

lower side. He further submits that the deceased was

doing agriculture and working as mason and use to

earn Rs.10,000/- per month and the Tribunal has

committed an error in awarding lesser compensation

towards loss of future earnings. Further the tribunal

has not awarded the compensation under the head

loss of love and affection and consortium. On these

grounds, he prays to allow the appeal filed by the

claimants and prays to dismiss the appeal filed by the

respondent-Insurance Company.

7. Per contra, the learned counsel appearing

for the respondent/Insurance company supports the

impugned judgment and award passed by the Tribunal

and submits that the compensation awarded by the

Tribunal is just and proper and does not call for

interference. Hence, on these grounds prays to allow

the appeal filed by the respondent-Insurance

Company and prays to dismiss the appeal filed by the

claimants.

8. Perused the records and considered the

submissions made by the learned counsel for the

parties.

9. The point that arises for consideration are

with regard to quantum of compensation and liability.

10. It is not in dispute that deceased Bombay

Srinivasulu met with an accident that occurred on

09.10.2008 and sustained injuries in the road traffic

accident and due the said accident the deceased

succumbed to the injuries. In order to prove the

negligence on the part of the driver of the offending

vehicle, the claimants have produced copy of charge

sheet which is marked as Ex.P3. Ex.P3, discloses that

the accident was occurred due to rash and negligent

driving of the drier of the offending vehicle.

11. Insofar as quantum of liability is concerned,

it is the case of the respondent No.2-Insurance

Company that the vehicle was hired with APSRTC and

there is violation of policy conditions. Hence, the

Insurance Company is not liable to pay compensation.

The said issue is no more res-integra because the said

issue has already been considered by the Hon'ble

Apex Court in the case of Uttar Pradesh State Road

Transport Corporation Vs. Kulsum reported in AIR

Online 2011 SC 451, the tribunal was justified in

fastening the liability on the Insurance Company.

12. Insofar as quantum of compensation is

concerned, it is contended that the deceased was

doing agriculture and working as mason was earning

Rs.4,000/- per month and Rs.6,000/- per month

respectively. In order to substantiate the claim of the

claimants, the claimants have not produced any

records to establish the income.

13. In the absence of proof of income, the

notional income of the deceased will have to be taken

as per the chart provided by the Karnataka State

Legal Services Authority. In terms of the chart, for

the accident of the year 2008, the notional income of

the deceased will have to be taken at Rs.4,250/- as

against Rs.5,000/- per month taken by the Tribunal.

To the aforesaid amount, as the deceased was aged

33 years, 40% of the said amount has to be added on

account of future prospects in view of the law laid

down by the Constitution Bench of the Supreme Court

in the case of National Insurance Company Limited

vs. Pranay Sethi and Others reported in AIR 2017

SC 5157. Thus, the monthly income comes to

Rs.5,950/-. Out of which, considering that there are

three dependents, I deem it appropriate to deduct

1/3rd of the said income towards personal expenses

of the deceased and therefore, the monthly income of

the deceased comes to Rs.3,967/-. Taking into

account the age of the deceased which was 33 years

at the time of accident, multiplier of 16 has to be

adopted as per the judgment of the Hon'ble Supreme

Court in the case of Sarla Verma vs. Delhi

Transport Corporation reported in (2009) 6 SCC

121. Therefore, the claimants are entitled to a sum of

Rs.7,61,664/- (3,967 x 12 x 16) on account of loss of

dependency as against Rs.5,99,940/- awarded by the

Tribunal.

14. Further, the tribunal has not awarded

compensation under the head medical expenses.

However, the claimants have spent a sum of

Rs.9,500/- medical expenses and produced medical

bills, which are marked as Exs.P5 to 72. Hence, the

claimants are entitled for a sum of Rs.9,500/- towards

medical expenses.

15. However, the tribunal has failed to award

compensation under the head loss of consortium. In

view of the law laid down by the Hon'ble Supreme

Court in Magma General Insurance Company

Limited vs. Nanu Ram Alias Chuhru Ram & Others

reported in 2018 ACJ 2782, each of the claimants

are entitled for compensation of Rs.40,000/- under

the head of 'loss of consortium', which comes to

Rs.1,20,000/-.

16. In addition, the claimants are entitled a

sum of Rs.15,000/- towards funeral expenses and

Rs.15,000/- under the head of loss of estate.

17. Thus, the claimants are entitled for total

compensation of Rs.9,21,164/- as against

Rs.6,69,500/- awarded by the tribunal. Hence, the

claimants are entitled for enhanced compensation of

Rs.2,51,664/-.

18. In view of the above discussion, I proceed

to pass the following:

ORDER

(a) The appeal filed by the claimant in MFA

Nos.200800/2014 is allowed in part.

(b) The appeal filed by the respondent-Insurance

Company in MFA No.30143/2012 is dismissed.

(c) The impugned judgment and award passed by

the Tribunal is modified. The claimants are

entitled to the enhanced compensation of Rs.

2,51,664/- along with interest at the rate of

6% per annum from the date of petition till

the date of realization.

(d) The respondent No.2-Insurance Company is

directed to deposit the enhanced

compensation amount within a period of eight

weeks from date of the receipt of certified

copy of this judgment.

(e) The amount in deposit be transmitted to the

tribunal.

Sd/-

JUDGE

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