Karnataka High Court
Oriental Insurance Co Ltd vs Smt Laxmi Bai on 7 June, 2024
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2024:KHC:19920
MFA No. 706 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO. 706 OF 2023 (MV-D)
BETWEEN:
ORIENTAL INSURANCE CO. LTD.,
VASCO-DA-GAMA, GOA STATE,
REP. BY ITS REGIONAL OFFICE,
ORIENTAL INSURANCE CO. LTD.,
TP-HUB, REGIONAL OFFICE,
NO.44/4, LEO SHOPPING COMPLEX,
RESIDENCY ROAD CROSS,
BANGALORE-560025
REP. BY ITS REGIONAL MANAGER.
...APPELLANT
(BY SRI. A RAVISHANKAR., ADVOCATE)
AND:
1. SMT. LAXMI BAI
W/O LATE AMITH KUMAR CHOURASIA
Digitally signed by AGED ABOUT 36 YEARS
VEDAVATHI A K
Location: High
Court of Karnataka 2. MASTER CHOTU @ ARUN KUMAR
S/O LATE AMITH KUMAR CHOURASIA
AGED ABOUT 14 YEARS
MINOR REPRESENTED BY HIS
NATURAL GUARDIAN MOTHER
RESPONDENT NO.1
RESPONDENTS 1 AND 2 ARE
R/O VINAYAKA NAGARA MAIN ROAD,
NEAR ANJANEYA TEMPLE
DAVANAGERE-577006.
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MFA No. 706 of 2023
3. SMT GITA CHOURASIA
AGED MAJOR
W/O BALARAM CHOURASIA
MOTHER OF LATE AMITH KUMAR
4. SRI BALRAM CHOURASIA
AGED MAJOR, FATHER OF LATE AMITH KUMAR
RESPONDENTS 3 AND 4 ARE
R/O #113, CHOURASIA MOHALLA
KOTWALI POLICE STATION LIMITS
JHANSI, UTTARPRADESH-284002.
5. SRI PRAKASH
AGED MAJOR, S/O BAARSATI LAL HALWAI
R/O DESTERRO APARTMENTS
NEAR BUSY BEE SCHOOL
VASCO-GOA STATE-403802
6. M/S BHARATHI SHIPYARD LTD.,
PEREIRA CHAMBERS, 1ST FLOOR
VASCO-DA-GAMA, GOA STATE-403802
REP. BY ITS MANAGING DIRECTOR/MANAGER
7. SRI SITARAM LAMANI
S/O JAWRAPPA, AGED MAJOR
NEAR DURGA MA TEMPLE
MANGOOR, VASCO
GOA STATE-403804
8. THE ORIENTAL INSURANCE CO. LTD.,
VASCO DA GAMA
GOA STATE-403804
REP. BY ITS MANAGER
(INSURER OF MOTOR CYCLE)
...RESPONDENTS
(BY SRI. HARSHA A.K., ADV. FOR R1,
R2 IS MINOR, REPRESENTED BY R1,
V/O DATED: 07.06.2024, NOTICE TO R3 TO R6
ARE DISPENSED WITH.)
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NC: 2024:KHC:19920
MFA No. 706 of 2023
THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DT.10.11.2022 PASSED IN MVC
NO.250/2012 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE
AND CJM, DAVANGERE, AWARDING COMPENSATION OF
RS.22,31,200/- WITH INTEREST AT 6 PERCENT P.A. FROM THE
DATE OF PETITION TILL THE DATE OF DEPOSIT.
THIS APPEAL, COMING ON FOR HEARING ON
INTERLOCUTORY APPLICATION, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant-insurer under Section
173(1) of the Motor Vehicles Act, 1988 (for short 'M.V.Act')
challenging the judgment and award passed by the Prl. Senior
Civil Judge and CJM, Davangere in MVC No.250/2012 seeking
reduction in the compensation awarded by the Tribunal.
2. Heard the arguments of learned counsel for the
parties.
3. The rank of the parties before the Tribunal is
retained for the sake of convenience.
4. Brief facts of the case are as under:
Respondents-petitioner Nos.1 and 2 filed the claim
petition under Section 166 of M.V. Act claiming compensation
for the death of the husband of the petitioner No.1 who died in
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the road traffic accident occurred on 21.3.2009. That on
21.3.2009, the deceased-Amith Kumar was going on the motor
Cycle bearing registration No.GA-06/B-8407 as a pillion rider
along with his friend and at about 11.35 p.m., the rider of
Mahendra Bolero Jeep bearing registration No.GA-02-V-7492
came in a rash and negligent manner from the opposite side
and dashed to the motor cycle. As a result, the said Amith
Kumar sustained grievous injuries and died on the way to the
hospital. Hence the petitioners came to claim compensation and
parents of the deceased were made as respondent Nos.6 and 7.
The insurer appeared before the court, filed statement of
objection by denying in respect of age, occupation and income
and negligence of the driver of the offending vehicle and prayed
for dismissing the same. Based upon the pleading the Tribunal
framed following issues:
"1. Whether petitioners prove that the deceased Amit
Kumar Chourasia S/o Balram Chourasia died as a
result of an accident that occurred on
21/03/2009 at about 11-35 p.m solely due to
negligent driving of Mahendra Bolero Jeep
bearing Reg. No.GA-02/V-7492 by respondent
No.1 and the motor cycle bearing Reg. No.GA-
06/B-8407 by its rider?
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2. Whether petitioners are entitled for
compensation? If so, to what extent and from
whom?
3. What Order or Award?"
5. On behalf of the petitioners, petitioner No.1 is
examined as P.W.1 and got marked 18 documents and behalf
of the respondents, no evidence were lead. After hearing the
arguments, the Tribunal passed the award of Rs.22,31,200/-
and allowed the petition in part. Being aggrieved by the same,
the insurer-company is before this court.
6. The learned counsel for the petitioners has seriously
contended that the Tribunal considered the loss of dependency
for Rs.20,41,200/- by taking Rs.9,000/- per month as income
even though there is no documents produced before the court
to prove the income. Therefore, the notional income shall have
to be considered at least Rs.4,500/- to 5,000/- per month for
the accident occurred in the year 2009. Therefore, considering
income as Rs.9,000/- is not correct. Hence, prayed for reducing
the same.
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7. The learned counsel has not seriously contested in
respect of award granted for the conventional heads. Hence,
prayed for allowing the appeal.
8. Per contra, learned counsel for respondent has
supported the judgment of the tribunal.
9. Having heard the arguments and on perusal of the
records, the points would arise for my consideration are:
"(1) Whether the award pa0ssed by the Tribunal
calculating the dependency of Rs.20,41,200/- is
excessive and exorbitant?
(2) If so, what award?
10. The learned counsel for the appellant brought to the
notice of the court that the income of the deceased is not
proved and therefore, the court required to take Rs.5,000/- as
income. Normally, the courts were considering the guidelines
issued by the Karnataka Legal Services Authority considering
the notional income for the self-employed persons for
Rs.4,500/- to Rs.5,000/- per month for the accident occurred
during the year 2008 and 2009. Of course, the same amount
used to be considered only during the settlement in the
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Lokadalath, but the court cannot restrict or fix to the said
amount for computation of the income when the evidence is
adduced by the claimants. Hence, in this case the petitioners
accept oral testimony and in the petition it is stated that the
deceased was a cook at Goa and earning huge income, but no
documents is produced. As per the evidence of the petitioner,
the deceased was working in Goa in hotel Anand Ashram at
Vasco. Though they have not produced any document, but it is
pertinent to note that the deceased was a pillion rider in the
motorbike where the accident occurred in Goa, Vasco. Such
being the case, it cannot be said that he is not having any
avocation. However, he was getting free food and
accommodation in the hotel. Therefore, the hotel people will
give some amount as a salary to the deceased. Therefore,
without any evidence on record, I propose to consider
Rs.6,000/- per month instead of Rs.5,000/- computed in the
Lokadalath. If Rs.6,000/- is considered, 40% of Rs.6,000/-
would be Rs.2,400/-. Rs.6,000/-+ Rs.2,400/- would be
Rs.8,400 and 1/4th of Rs.8,400/- is 2,100/-. Therefore, if one-
fourth of the dependency for four persons is deducted, it
becomes 6,300 x 12 x 18 multiplier, it comes to Rs.13,60,800/-
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. This would be the actual loss of dependency by the claimants
as well as parents of the deceased. As regards to the other
heads, there is no dispute. The consortium awarded by the
Tribunal i.e., filial consortium, parental consortium, marital
consortium, no need to reduce the same. Therefore, the
respondents are entitled for Rs.13,60,800/- towards loss of
dependency instead of Rs.20,41,200/- calculated by the
Tribunal.
11. Thus in all, this Court has awarded the
compensation as under:
1 Loss of dependency Rs.13,60,800-00
2 Loss of Estate Rs.15,000-00
3 Loss of Funeral expenses Rs.15,000-00
4 Loss of consortium Rs.1,60,000-00
Rs.15,50,800-00
Hence, the appellants are entitled for a total reduced
compensation of Rs.15,50,800/- as against Rs.22,31,200/-
awarded by the Tribunal.
12. Accordingly, I pass the following:
ORDER
(i) Appeal is allowed in part.
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(ii) The compensation awarded by the Tribunal, i.e.,
Rs.22,31,200/- with interest @6% p.a. is reduced
to Rs.15,50,800/- with the interest @ 6% p.a. till
realization;
(iii) The amount already deposited by the appellant is
ordered to be adjusted;
(iv) The statutory amount, if any deposited shall be
transmitted to the Tribunal;
(v) The apportionment made by the Tribunal is hereby
confirmed.
(vi) Registry is directed to return the Trial Court records
to the Tribunal, along with the certified copy of the
order passed by this Court forthwith without any
delay;
(ix) Draw award accordingly.
Sd/-
JUDGE
GBB
