Karnataka High Court

The Branch Manager vs Smt Lakshmi on 29 July, 2024

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                                                               NC: 2024:KHC:29913
                                                              MFA No. 9206 of 2015
                                                          C/W MFA No. 3977 of 2015




                          IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 29TH DAY OF JULY, 2024

                                               BEFORE
                      THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
                                     MFA NO. 9206 OF 2015 C/W
                                    MFA NO. 3977 OF 2015 (MV-D)

                     IN MFA NO. 9206/2015

                     BETWEEN:

                     THE BRANCH MANAGER
                     THE ORIENTAL INSURANCE COMPANY LIMITED
                     BRANCH OFFICE AT SHARADA COMPLEX, OPP. TO
                     KSRTC BUS STAND, CHITRADURGA, REP. BY
                     THE MANAGER, THE ORIENTAL INSURANCE
                     COMPANY LIMITED, REGIONAL OFFICE
                     2ND FLOOR, SUMANGALA COMPLEX
                     LAMINGTON ROAD, HUBLI-580 020             ...APPELLANT

                     (BY SRI.H.C.VRUSHABENDRAIAH, ADV.)

                     AND:

                     1.     SMT LAKSHMI
                            AGED ABOUT 33 YEARS
                            HOUSEWIFE
Digitally signed by
PRAJWAL A            2.     MR VEERENDRA HEGDE
Location: HIGH COURT        AGED ABOUT 14 YEARS
OF KARNATAKA                STUDENT

                     3.     SHRI LAKSHMIPATHI
                            AGED ABOUT 13 YEARS
                            STUDENT

                     4.     SHRI GOVINDAPPA
                            SON OF SHRI POOJARI GOVINDAPPA,
                            PARENT OF LATE SHRI RAJANNA,

                            SINCE DECEASED.
                            LRS. ARE R1 TO R3 AND R5
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                                         NC: 2024:KHC:29913
                                        MFA No. 9206 of 2015
                                    C/W MFA No. 3977 of 2015




5.   SMT LAKSHMIDEVI
     WIFE OF SHRI GOVINDAPPA
     AGED ABOUT 57 YEARS
     HOUSEWIFE

     R1 IS THE WIFE, R2 AND R3
     ARE THE CHILDREN AND R4 AND R5
     ARE THE PARENTS RESPECTIVELY OF
     LATE SHRI RAJANNA

     RESPONDENT NOS. 2 AND 3 ARE
     BEING MINORS REP. BY THEIR
     NATURAL GUARDIAN/MOTHER
     THE 1ST RESPONDENT HEREIN

     ALL THE RESPONDENTS ARE R/AT
     BHOVI COLONY, BABBUR VILLAGE
     AND POST, HIRIYUR TALUK
     CHITRADURGA DIST - 577 598

6.   SHRI K PEETER
     S/O SHRI S.JOACOB THOMAS
     MAJOR, SOUTH CHURCH ROAD
     RAYAPURAM, CHENNAI 600 013          ...RESPONDENTS

(BY SRI.RANGEGOWDA, ADV. FOR R1 TO R5;
    R2 AND R3 ARE MINORS, REP. BY R1;
    VIDE ORDER DATED 11.06.2021, R1 TO R3 &
    R5 ARE LRS OF DECEASED R4;
    VIDE ORDER DATED 11.11.2021
    NOTICE TO R6 IS HELD SUFFICIENT)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED           28.10.2009
PASSED IN MVC NO.15/2008 ON THE FILE OF THE CIVIL JUDGE
(SR.DN.) AND MEMBER, ADDITIONAL MACT, HIRIYUR,
AWARDING COMPENSATION OF RS.4,00,000/- WITH INTEREST
AT 6% P.A. FROM THE DATE OF PETITION TILL REALISATION.

IN MFA NO. 3977/2015

BETWEEN:

1.   SMT. LAXMI
     AGED ABOUT 33 YEARS
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                                          NC: 2024:KHC:29913
                                         MFA No. 9206 of 2015
                                     C/W MFA No. 3977 of 2015




       W/O LATE RAJANNA

2.     VEERENDRA HEGDE
       AGED ABOUT 14 YEARS
       S/O LATE RAJANNA

3.     LAXMIPATHI
       AGED ABOUT 13 YEARS
       S/O LATE RAJANNA

4.     SMT LAXMIDEVI
       AGED ABOUT 57 YEARS
       W/O GOVINDAPPA

       APPELLANT NOS. 2 & 3 BEING MINORS
       REP. BY THEIR MOTHER AND NATURAL
       GUARDIAN APPELLANT NO.1

       ALL ARE R/O BABBUR VILLAGE
       BABBUR POST, BHOVI COLONY
       HIRIYUR TALUK
       CHITRADURGA DIST - 577 599            ...APPELLANTS

(BY SRI. RANGEGOWDA N R, ADV.)

AND:

1.     K. PEETER
       S/O S JAKAB THOMAS
       MAJOR, R/O SOUTH CHURCH ROAD
       RAYAPURAM, CHENNAI 600 013, T N

2.     THE ORIENTAL INSURANCE CO LTD
       BRANCH OFFICE, SHARADA COMPLEX
       OPP KSRTC BUS STAND, CHITRADURGA
       BY ITS BRANCH MANAGER            ...RESPONDENTS

(BY SRI.H.C.VRUSHABHENDRAIAH, ADV. FOR R2;
    VIDE ORDER DATED 11.06.2021,
    NOTICE TO R1 IS DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 28.10.2009
PASSED IN MVC NO.15/2008 ON THE FILE OF THE CIVIL JUDGE
(SR.DN.) AND MEMBER, ADDITIONAL MACT, HIRIYUR, PARTLY
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                                          MFA No. 9206 of 2015
                                      C/W MFA No. 3977 of 2015




ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

     THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:      HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA


                    ORAL JUDGMENT

In these two appeals, both the petitioners as well

as the Insurance Company have challenged the judgment

and award dated 28.10.2009 passed in

M.V.C.No.15/2008 by the learned Civil Judge (Sr.Dn.)

and Addl.MACT at Hiriyur ('the Tribunal' for brevity).

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, the husband of

petitioner No.1, father of petitioner Nos.2 and 3 and son

of petitioner No.4 and 5 by name Rajanna, the deceased,

met with an accident on 19.09.2007 at about 8.00 p.m.,

while riding TVS Champ near Reliance Petrol Bunk at

Hiriyur, a lorry bearing No.TN-04/AD-5724 hit against

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the said moped causing him grievous injuries and killing

him at the spot. The petitioners being the dependants

have approached the Tribunal seeking grant of

compensation. The claim was opposed by the Insurance

Company of the lorry on the ground that negligence is on

the part of the deceased himself. After taking the

evidence and hearing both sides, the Tribunal by the

impugned judgment awarded compensation of

Rs.4,00,000/- with interest @ 6% per annum.

4. When the petitioners put the decree into

execution, the Insurance Company has filed a review

petition on the ground that the Policy was not genuine, it

was fake. The application filed by the Insurance

Company came to be dismissed by the Tribunal. As per

direction of the Tribunal, the Insurance Company

deposited the compensation. Thereafter, challenging the

impugned judgment and also the order on review, the

Insurance Company has filed M.F.A.No.9206/2015 and

the petitioners after taking the compensation from the

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Tribunal, pleading inadequacy and seeking enhancement

of compensation, have filed M.F.A.No.3977/2015.

5. Heard the arguments of

Sri.H.C.Vrushabhendraiah, learned counsel for the

Insurance Company and Sri.R.Rangegowda, learned

counsel for the petitioners.

6. It is contended by the learned Counsel for the

Insurance Company that neither the Insurance Company

nor the owner of the lorry were aware about the policy as

the claimants have not produced the original policy. The

policy produced was a xerox copy and the Tribunal has

relied on the xerox copy of the policy. Soon after coming

to know that the Policy was fake, a review petition was

filed before the Tribunal and the evidence was also let in,

but the Tribunal did not consider the evidence and

dismissed the review petition directing the Insurance

Company to deposit the compensation. When the policy

itself is fake, it is the duty of the petitioners to establish

existence of the policy of insurance in order to satisfy the

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award. In a case of fake policy, the remedy is to remand

to the Tribunal for fresh consideration. To buttress his

arguments, he has relied upon the judgment of this Court

in National Insurance Co.Ltd. -vs- Ramesh and

others1.

7. Per contra, learned Counsel for the petitioners

has contended that before the Tribunal, policy of

insurance has been produced and the same was admitted

by the Insurance Company and it was not fake. After

the impugned judgment, in the review petition, the

Tribunal has permitted the Insurance Company to lead

evidence. Evidence was also let in. After appreciating

the evidence, the Tribunal came to the conclusion that

the Insurance Company has failed to establish that the

Policy was fake and directed the Insurance Company to

deposit the compensation. In compliance thereof, the

Insurance Company has deposited the compensation.

The petitioners have already realized the compensation

amount in terms of the judgment and award. It is

2022 ACJ 697

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further contended that, the petitioners have filed this

appeal seeking enhancement. The deceased was aged

30 years, he was a milk vendor, earning more than

Rs.4,500/- per month, there are five dependents in the

family, instead of deducting 1/4th, the Tribunal has

deducted 1/3rd towards personal expenses; future

prospects was not considered; notional income was

considered at Rs.3,000/- only. The compensation

awarded under conventional heads is inadequate and

sought for enhancement.

8. I have given my anxious consideration to the

arguments addressed by the learned counsel for both

parties and perused the records.

9. The material on record shows that there was an

accident on 19.09.2007 in which the deceased Rajanna

was riding his TVS moped, hit by lorry in question near

T.B.Circle of Hiriyur killing him at the spot. The

prosecution papers shows that the driver of the lorry was

prosecuted by the Police and sufficient evidence is

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available on record to show the accident and the

petitioners are the dependents of the deceased entitled

to claim compensation.

10. On perusal of the impugned judgment, it is

pertinent to note that though the Tribunal has considered

the age of the deceased at 36 years on the basis of the

PM report, it has taken Rs.3,000/- as notional income

and deducted 1/3rd towards personal expenses; the

petitioners are the wife, two minor children and parents;

there are five dependants in the family. After passing of

the impugned judgment, the father of the deceased

reported to be dead and as on today, there are four

dependants in the family. No future prospects has been

considered.

11. In a case of this nature, compensation has to

be determined by following the principles settled by the

Hon'ble Apex Court in National Insurance Co.Ltd. -vs-

Pranay Sethi and Others 2 and Sarla Varma (Smt.)

(2017) 16 SCC 680

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and Others -vs- Delhi Transport Corporation and

Another3.

12. The petitioners have not produced any evidence

in support of the income and therefore, the deceased is

treated as a person with no proof of income and in the

year 2007, one can make a reasonable case that a

person with no proof of income will earn not less than

Rs.4,000/-. Accordingly, the notional income of the

deceased is taken. In view of the principles laid down in

Pranay Sethi's case, 40% of future prospects has to be

considered for the age below 40 years. Even in case of

four dependants, 1/4th has to be deducted towards

personal expenses. Therefore, the loss of dependency

will be Rs.4,000/- + Rs.1,600/- (40%) = Rs.5,600/- -

Rs.4,000/- (1/4th) = Rs.4,200/- x 12 x 15 =

Rs.7,56,000/-. Since there are four dependants,

deceased died leaving behind his wife, children and

parents, Rs.20,000/- each towards loss of consortium to

the wife; loss of love and affection to two minor children

(2009) 6 SCC 121

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and mother. Towards funeral expenses and loss of

estate, Rs.10,000/- each is assessed. In view of

judgment in Pranay Sethi's case, since the accident is of

the year 2007, 10% appreciation on the conventional

heads comes to Rs.10,000/-, thereby the total

compensation comes to Rs.8,66,000/- as against

Rs.4,00,000/- awarded by the Tribunal, thereby,

petitioners are entitled for enhancement of Rs.4,66,000/-

, which is the just compensation to which the petitioners

are entitled, in the facts and circumstances of the case.

13. As regards liability is concerned, the main

contention of the learned counsel for the Insurance

Company is that the policy is a fake one. The Insurance

Company has filed an application under Order XLVII Rule

1 of CPC. The Tribunal has allowed the parties to lead

evidence. Evidence was let in on behalf of the Insurance

Company. The evidence relied upon by the Insurance

Company to establish the policy is fake, is Divisional

Manager sitting at Davangere whereas the policy was

issued in the office at Chennai, no person from Chennai

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has been examined to substantiate the same. Evidence

is also silent how the Divisional Office at Davanagere is

having personal knowledge about the policy, which is

fake issued in the office of Chennai. the Tribunal in detail

has discussed and ultimately dismissed the review

petition.

14. The co-ordinate Bench of this Court in National

Insurance Co.Ltd. -vs- Ramesh (supra), while

dealing with similar case at para-16 observed as under:

"16. One fact which is not in dispute in the case at hand is that neither the insurance company nor the claimants produced insurance policy - vital document that was necessary to hold the insurance company liable to pay the compensation. Though the insurance company was given opportunity to lead evidence, it failed to do so before the Tribunal both in the claim petition as well as in the civil miscellaneous petition filed seeking review of the order. But the fact remains that if the policy itself is not in existence, it would go to the root of the matter in assessing the quantum of compensation and liability as to who should make good the compensation. Since the allegation is one of fraud and if proved by the insurance company would unravel the entire proceedings instituted by the claimants before the Tribunal, the Tribunal ought to have

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considered at the outset whether the policy on the strength of which compensation is to be paid by the insurance company is in existence or not and if policy was not in existence, it would clearly be a case of fraud which would annul the entire claim."

(underlining supplied)

15. In the said case, the matter was remitted to the

Tribunal for fresh consideration, there was no review

petition filed by the Insurance Company before the

Tribunal. Hence, the principles laid down by the co-

ordinate Bench of this Court is not applicable to the facts

of the case. The evidence that the Insurance Company is

going to rely even after remand is the same, which was

led in the review petition. After taking the compensation,

the petitioners after 1924 days came before this Court

seeking enhancement; to counter the same, the appeal is

filed by the Insurance Company after 2130 days. On

total consideration of the material on record, I do not find

any satisfactory explanation from the Insurance

Company for remand. Hence, the compensation

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assessed by the Tribunal is on the lower side and the

petitioners are entitled for higher compensation.

16. Hence, the appeal filed by the Insurance

Company is devoid of merits and the appeal filed by the

petitioners merits consideration. In the result, the

following:

ORDER

(i) M.F.A.No.9206/2015 is dismissed.;

(ii) M.F.A.No.3977/2015 is partly allowed and the impugned judgment and award passed by the Tribunal is modified;

(iii) The petitioners are entitled to enhanced compensation of Rs.4,66,000/- with interest at the rate of 6% per annum from the date of petition till its realization;