M/S. Oriental Insurance Company ... vs Laxmamma
2022 Latest Caselaw 13239 Kant

                              1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 23RD DAY OF NOVEMBER, 2022

                           BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                 M.F.A.NO.2841/2013 (MV-D)

BETWEEN:

M/S. ORIENTAL INSURANCE COMPANY LIMITED,
BRANCH OFFICE-II,
P.B.NO.210, NO.618,
CHAMARAJA DOUBLE ROAD,
MYSURU-570 024,
NOW REPRESENTED BY
ITS REGIONAL OFFICE,
NO.44/45, LEO SHOPPING COMPLEX,
REESIDENCY ROAD,
BENGALURU-560 025,
REPRSENTED BY ITS
AUTHROIZED SIGNATORY                     ... APPELLANT

        (BY SRI K.S.LAKSHMINARASAPPA, ADVOCATE FOR
        SRI A.M.VENKATESH, ADVOCATE [THROUGH VC])

AND:

1.     LAXMAMMA
       S/O LATE THAMMEGOWDA,
       AGED ABOUT 55 YEARS,
       R/O.P.NO.2938/A, 7TH CROSS,
       GANDHINAGAR, MANDYA.

2.     PANDU RAGHU RAO
       S/O.SURAIAH GUNADALA,
       VIJAYAWADA,
       KRISHNA DISTRICT-520 001
       ANDHRA PRADESH.
                               2



3.    MR. P. NANCHARAIAH
      S/O.SATHYANARAYANA,
      80-20/3-21, 1-B,
      SHASTRY STREET,
      SEETHARAMAPURAM,
      VIJAYAWADA-520 001
      ANDHRA PRADESH.                     ... RESPONDENTS

       (BY SMT.ARCHANA MURTHY P., ADVOCATE FOR R1;
               VIDE ORDER DATED 20.02.2017,
              NOTICE TO R2 IS HELD SUFFICIENT
               VIDE ORDER DATED 16.07.2015,
             APPEAL AGAINST R3 IS DISMISSED)


     THIS M.F.A., IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 29.11.2012
PASSED IN MVC NO.765/2009 ON THE FILE OF THE PRINCIPAL
CIVIL JUDGE (SR.DN) AND MACT, MANDYA, AWARDING
COMPENSATION OF Rs.6,06,000/- WITH INTEREST @ 6% P.A.,
FROM THE DATE OF PETITION TILL REALIZATION.

     THIS M.F.A., COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

Heard the learned counsel appearing for the appellant-

Insurance Company and the learned counsel appearing for

respondent No.1-claimant.

2. This appeal is filed challenging the judgment and

award dated 29.11.2012 passed in M.V.C.No.765/2009 on the

file of Principal Civil Judge (Sr.Dn.) & MACT., Mandya ['the

Tribunal' for short].

3. The parties are referred to as per their original

rankings before the Tribunal to avoid confusion and for the

convenience of the Court.

4. The factual matrix of the case of the claimant before

the Tribunal is that her son passed away in the accident. Hence,

she made a claim. The Tribunal after considering both oral and

documentary evidence placed on record, allowed the claim

petition in part and granting compensation of Rs.6,06,000/- with

interest at 6% p.a. from the date of petition till its realization.

The Tribunal while calculating the compensation considered the

income of Rs.6,000/- per month. Hence, the present appeal is

filed by the Insurance Company contending that the income

taken by the Tribunal as Rs.6,000/- is on higher side and it was

the accident of the year 2005. The learned counsel would

contend that the accident was on account of the negligence on

the part of the deceased himself and the contributory negligence

has not been taken. The learned counsel also would submit that

in the written statement, it is specifically pleaded negligence on

the part of the deceased. Hence, it requires an interference of

this Court.

5. Per contra, the learned counsel appearing for the

respondent - claimant would submit that though the defense of

contributory negligence was taken in the written statement, not

led any evidence before the Court and not examined the driver

of the offending vehicle and the Tribunal rightly not considered

the contributory negligence. Hence, the question of taking

contributory negligence does not arise. The learned counsel also

would submit that even though the Tribunal has taken the

income of Rs.6,000/- per month, the deceased was a driver by

profession and Ex.P7-Driving License of the deceased was

produced before the Court, the Tribunal taken the income of

Rs.6,000/- and not added future prospects while calculating the

loss of dependency. Hence, the Tribunal has not committed any

error.

6. Having heard the respective counsel and on perusal

of the material available on record, no doubt, in the written

statement defense of contributory negligence was taken and the

claimant produced the documents-Ex.P1-certified copy of FIR,

Ex.P3-certified copy of IMV report, Ex.P4-certified copy of IMV

intimation and Ex.P5-certified copy of charge-sheet. The charge-

sheet is also filed against the driver of the offending vehicle. In

order to take the contributory negligence, there must be cogent

evidence before the Court, unless the driver has been examined.

He is the right person to speak with regard to the contributory

negligence is concerned and no such evidence has been led

before the Court. Considering the material on record, the

Tribunal rightly came to the conclusion that the accident was

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

offending vehicle. Hence, I do not find any error committed by

the Tribunal and no material is placed before the Court with

regard to contributory negligence on the part of the deceased.

7. Now coming to the aspect of the quantum of

compensation is concerned, admittedly, the accident is of the

year 2005. Ex.P7-Driving License is also produced before the

Tribunal and when he was having a skill to drive the vehicle and

also no future prospects has been added while calculating the

loss of dependency, even assuming that his income was of

Rs.4,500/- per month in view of Driving License he was having

and if future prospects is added, it will not make any difference

and it comes more than the amount awarded by the Tribunal.

Hence, I do not find any ground to allow the appeal and modify

the judgment and award of the Tribunal.

8. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal is dismissed.

(ii) The amount in deposit, if any, be transmitted to the concerned Tribunal forthwith.

(iii) The Registry is directed to transmit the records to the concerned Tribunal, forthwith.

Sd/-

JUDGE

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