Karnataka High Court
The Oriental Insurance Company Ltd vs Smt Nanjamma @ Lakshmi on 28 November, 2023
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NC: 2023:KHC:43089
MFA No. 1582 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 1582 OF 2014 (MV-D)
BETWEEN:
THE ORIENTAL INSURANCE COMPANY LTD.,
DIVISIONAL OFFICE NO.8, #22, D V G
MAIN ROAD, BASAVANAGUDI
BANGALORE 560 004
REP. BY ITS, AUTHORISED SIGNATORY
AT R O #NO.44/45, LEO SHOPPING
COMPLEX, RESIDENCY ROAD
BANGALORE 560 025 ...APPELLANT
(BY SRI. S SRISHAILA., ADV.)
AND:
1. SMT NANJAMMA @ LAKSHMI
W/O LATE NINGAPPA
AGED ABOUT 53 YEARS
R/OF KADABAHALLY
BINDIGANVILE POST
NAGAMANGALA TALUK
MANDYA DIST - 571 432
Digitally signed by
MALA K N
2. SMT. LATHA
Location: HIGH COURT MAJOR IN AGE, W/O LATE MUNILINGA SHETTY
OF KARNATAKA
S/O LINGA SHETTY, (OWNER OF INSURED OF
TEMPO NO.KA 02 D 3302), R/OF NO.632
M R H B COLONY, RANGANATHAPURA
KAMAKSHIPALYA, BANGALORE 560 079
...RESPONDENTS
(BY SRI. M V MAHESWARAPPA, ADV. FOR R1)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 31.10.2013
PASSED IN MVC NO.24/2008 ON THE FILE OF THE SENIOR
CIVIL JUDGE, MACT, NAGAMANGALA, AWARDING A
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MFA No. 1582 of 2014
COMPENSATION OF RS.4,20,000/- WITH INTEREST @ 6% P.A
FROM THE DATE OF PETITION TILL PAYMENT.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal, Insurance Company has
challenged the judgment and award dated
31.10.2013 passed in M.V.C.No.24/2008 by the
Senior Civil Judge and M.A.C.T., Nagamangala ('the
Tribunal' in short).
2. For the sake of convenience, the rank of the
parties shall be referred to as per their status before
the Tribunal.
3. Brief facts of the case are, on 14.03.2007 at
about 01.00 a.m., while the son of the petitioners by
name N.Kumara, the deceased, was travelling in the
Tempo bearing No.KA-02/D-3302 as a Cleaner near
Talekere Gate, the said tempo hit against the
opposite coming lorry bearing No.KA-02/E-7295 and
caused injuries to him and other inmates. He
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succumbed to death during transit to the hospital.
The petitioners being the parents as dependants
approached the Tribunal for grant of compensation
of Rs.20 lakhs. Claim was opposed by the Insurance
Company. The Tribunal after taking the evidence, by
impugned judgment awarded a compensation of
Rs.4,20,000/- with 6% interest p.a. Aggrieved by
the same, the Insurance Company has filed this
appeal on various grounds.
4. Heard the arguments of
Sri.S.Srishaila, learned counsel for the Insurance
Company and Sri.M.V.Maheshwarappa, learned
counsel for petitioner No.2.
5. It is the contention of the learned counsel for
the Insurance Company that the deceased was not
working in the tempo as a cleaner, he was an
unauthorized passenger in the goods vehicle. The
evidence on record did not point out that he was a
cleaner so as to make a claim under Section 166 of
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the M.V.Act. It is also contended that the quantum
of compensation assessed is disproportionate to the
age and income of the deceased and sought for
interference.
6. Per contra, learned counsel for petitioner
No.2 has contended that deceased was inside the
cabin at the time of accident. He has suffered
severe injury, the owner of the tempo viz.,
Munilingashetty was also killed at the spot. PW-
2/Shivakumara is an eyewitness to the accident and
he was the passenger of the tempo. He has given
the evidence that the deceased was working as
Cleaner in the tempo. The Tribunal has rightly
considered the said aspects and assessed the
income, but without considering the future
prospects. Hence, he sought for dismissal of the
appeal and sought for enhancement of
compensation.
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7. I have given my anxious consideration to the
arguments advanced on both sides and also perused
the materials on record.
8. There is no dispute as to the accident, cause
of the accident and death of the deceased in the
accident. In the year 2007, accident has taken place
and the deceased was a bachelor and his income is
taken at Rs.6,000/- per month notionally without
any proof of income. In the year 2007, the notional
income of a person with no proof of income is taken
at Rs.4,000/-. Even if 40% future prospects is
added, it will come to Rs.5,600/- as against
Rs.6,000/-. Since it is only a nominal enhancement,
I do not find any reason to interfere with the
quantum of compensation assessed by the Tribunal.
9. The only issue is, whether the deceased was
a cleaner in the tempo in question. On perusal of
the Police records, it is pertinent to note that the
charge sheet was filed against the driver of the
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tempo. PW-2 is a co-passenger. In the course of
cross-examination, he admits that he was not aware
who is the owner of the tempo. Under such
circumstances, it is very hard to accept his evidence.
Since the owner is also killed in the said accident, his
wife is on record as respondent No.1. Even the first
petitioner is reported to be dead after disposal of
claim petition. In order to answer the point raised
for consideration, unless the petitioner places an
evidence to the effect that the deceased was working
as cleaner in the tempo, it is very tough to direct the
Insurance Company to indemnify the insured. The
evidence lacks the particulars about the avocation of
the deceased as cleaner. As the evidence of PW-2 is
not inspiring the confidence, the right person is the
driver, who is alive. It is he, who knew that who is
the cleaner or loader of the said Tempo. His
evidence is not made available. Hence, it is a fit
case for remand to give an opportunity to the
petitioner to place relevant evidence before the
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Tribunal to clear the question raised by Insurance
Company. Hence, the appeal merits consideration.
In the result, the following;
ORDER
i) The appeal is allowed.
ii) The impugned judgment and award is
set aside.
iii) The matter is remanded back to the
Tribunal to take up the case to the
stage of evidence, after giving
opportunity to both the parties to
produce evidence to prove the of
income of the deceased, he was the
cleaner of tempo in question. The
Tribunal shall adjudicate the claim on
merits in accordance with law.
iv) Without further notice, the parties
shall appear before the Tribunal on
20th December 2023.
v) The amount in deposit, if any, shall be
transmitted to the Tribunal and the
Tribunal shall keep the amount in Fixed
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Deposit and whoever succeeds in the
case shall take the same.
Sd/-
JUDGE
KNM
CT:HS
