Karnataka High Court
The Oriental Insurance Company Ltd vs Nabisa on 11 November, 2024
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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MFA No. 329 of 2020
C/W MFA No. 5148 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
MISCELLANEOUS FIRST APPEAL NO. 329 OF 2020 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 5148 OF 2020 (MV-D)
IN MFA No. 329/2020
BETWEEN:
The Oriental Insurance Company Ltd.,
BEAUTY PLAZA,
2ND FLOOR, BALMATTA,
MANGALURU - 575 001.
THE ORIENTAL INSURANCE COMPANY LIMITED,
TP HUB, REGIONAL OFFICE,
LEO SHOPPING COMPLEX,
NO.44/46, RESIDENCY ROAD CROSS,
BENGALURU - 560 025.
Digitally signed NOW REPRESENTED BY MANAGER LEGAL
by KIRAN
KUMAR R ...APPELLANT
Location: HIGH (BY SRI. ASHOK N. PATIL., ADVOCATE)
COURT OF
KARNATAKA AND:
1. NABISA W/O LATE. MOHAMMED,
AGED ABOUT 65 YEARS
2. ISMAIL S/O LATE. MOHAMMED,
AGED ABOUT 48 YEARS,
3. SALEEM.M S/O LATE. MOHAMMED,
AGED ABOUT 43 YEARS,
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MFA No. 329 of 2020
C/W MFA No. 5148 of 2020
4. HATIM S/O LATE. MOHAMMED,
AGED ABOUT 38 YEARS,
5. ABDUL MAZEED S/O LATE. MOHAMMED,
AGED ABOUT 36 YEARS,
6. RUKIYA W/O ZAINUDDIN,
AGED ABOUT 34 YEARS,
RESIDING AT 19-14,
KASABA BENGRE,
MANGALURU.
7. PRATHIMA JOHARA
W/O IBRAHIM,
AGED ABOUT 34 YEARS,
RESIDING AT 23-53,
BLOCK NO.23
KASABA BENGRE,
MANGALURU.
8. MARIYAMMA
W/O MOHAMMED ASIF,
AGED ABOUT 34 YEARS
RESIDING AT D.NO.20-3-15,
MJM 1156, KASABA BENGRE,
MANGALURU.
THE RESPONDENTS NO.1, 2, 3, 4, 5 ARE
RESIDING AT D.NO.19-10,
KASABA BENGRE,
MANGALURU.
9. VINOD KUMAR
S/O SRI RAVOMDRA SHRIYAN,
AGED ABOUT 53 YEARS
RESIDING AT NO.1-124,
NEAR GOVERNMENT HIGHER PRIMARY SCHOOL,
SHASHIHITHL, MULKI,
MANGALURU.
10. IBRAHIM KHALEEL,
S/O LATE MOHAMMED,
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MFA No. 329 of 2020
C/W MFA No. 5148 of 2020
AGED ABOUT 38 YEARS
R/AT KASABA BENGRE,
NEAR FOOD BALL GROUND,
MANGALURU.
...RESPONDENTS
(BY SRI.G.RAVISHANKAR SHASTRY, ADVOCATE
FOR R1 TO R8, SRI. KRISHNAMOORTHY D.,
ADVOCATE FOR R9, R10 IS SERVED AND
UNREPRESENTED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED. 23.07.2019, PASSED IN MVC
NO.852/2016, ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND MACT, MANGALURU, D.K., AWARDING
COMPENSATION OF RS.7,95,000/- ALONG WITH INTEREST AT
6 PERCENT P.A., FROM THE DATE OF PETITION TILL
REALIZATION AND ETC.
IN MFA NO. 5148/2020
BETWEEN:
1. MRS. NABISA
W/O LATE. MOHAMMAD,
AGED ABOUT 66 YEARS,
2. MR. ISMAIL
S/O LATE. MOHAMMAD,
AGED ABOUT 49 YEARS,
3. MR. M .SALEEM
S/O LATE. MOHAMMAD,
AGED ABOUT 44 YEARS,
4. MR. HATIM
S/O LATE. MOHAMMAD,
AGED ABOUT 39 YEARS
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MFA No. 329 of 2020
C/W MFA No. 5148 of 2020
5. MR. ABDUL MAZEED
S/O LATE. MOHAMMAD,
AGED ABOUT 37 YEARS,
6. MRS. RUKIYA
W/O ZAINUDDIN,
AGED ABOUT 35 YEARS,
RESIDING AT 19-14, KASABA BANGRE,
MANGALURU. D.K DISTRICT.
PIN - 575 008.
7. MRS. PRATHIMA JOHARA,
W/O IBRAHIM,
AGED ABOUT 35 YEARS,
RESIDING AT 23-53, KASABA BANGRE,
BLOCK NO.23, KASABA BANGRE
MANGALURU. D.K DISTRICT.
PIN -575 008.
8. MRS. MARIYAMMA
W/O MOHAMMED ASIF
AGED ABOUT 35 YEARS,
RESIDING AT D NO.20-3-15,
MJM 1156, KASABA BENGRE,
MANGALURU. D.K DISTRICT.
PIN -575008.
APPELLANT NOS.1,2,3,4,5 ARE ALL
RESIDING AT D NO 19-10, KASABA BENGRE
MANGALURU, D.K. DISTRICT.
PIN - 575 008.
...APPELLANTS
(BY SRI. RAVISHANKAR SHASTRY G., ADVOCATE)
AND:
1. SRI VINOD KUMAR
S/O SRI. RAVOMDRA SHRIYAN,
AGED ABOUT 54 YEARS,
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MFA No. 329 of 2020
C/W MFA No. 5148 of 2020
RESIDING AT NO.1-124,
NEAR GOVERNMENT HIGHER PRIMARY SCHOOL,
SHASHIHITHLU,MULKI
MANGALURU , D.K DISTRICT.
PIN -575 012.
2. THE ORIENTAL INSURANCE COMPANY LIMITED
BEAUTY PLAZA, 2ND FLOOR, BALMATTA,
MANGALUUR. D.K. DISTRICT REPRESENTED BY
ITS BRANCH MANAGER
PIN -575 001.
3. MR. IBRAHIM KHALEEL
S/O LATE. MOHAMMED,
AGED ABOUT 39 YEARS
RESIDING AT BANGRE KASABA,
NEAR FOOT BALL GROUND, MANGALURU,
D.K DISTRICT.
PIN -575 008.
...RESPONDENTS
(BY SRI.ASHOK N. PATIL, ADVOCATE FOR R2
R1,R3 ARE SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED. 23.07.2019, PASSED
IN MVC NO.852/2016, ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND MACT, MANGALURU, D.K.,
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION AND ETC.
THESE APPEALS, COMING ON FOR ORDERS , THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE N S SANJAY GOWDA
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MFA No. 329 of 2020
C/W MFA No. 5148 of 2020
ORAL JUDGMENT
1. Both the insurer as well as the claimants are in
appeal.
2. An accident occurred on 12.09.2015 between a
motorcycle driven by deceased Abdul Rahiman and a
Scorpio car driven by Kamlaksha. As a result of the
collusion, Abdul Rahiman who was 27 years old, was killed
in the accident.
3. Two claim petitions came to be filed one by pillion
rider Abubakar and the other by the legal representatives
of the deceased Abdul Rahiman.
4. Unfortunately, both the claim petitions were not
clubbed though there was material on record to indicate
that the Insurance Company was aware of the petition
filed by Abubakar.
5. The petition filed by Abubakar was dismissed on the
ground that he had failed to prove the negligence on the
part of the driver of the Scorpio car and the deceased who
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was riding a motorcycle was trying to enter into the main
road from a cross-road and was therefore responsible for
the accident.
6. Learned counsel for the insurer submits that this
dismissal of the claim petition by Abubakar has been
accepted by him and in light of the dismissal of his claim
petition, wherein a finding is recorded that the deceased
Abdul Rahiman was responsible, the Tribunal could not
have come to the conclusion that the deceased Abdul
Rahiman was not negligent.
7. Learned council for the claimants contends that the
dismissal of the claim petition of Abubakar would have no
bearing on the claim petition filed by the legal
representatives of the deceased Abdul Rahiman. He
submits that the charge sheet was admittedly laid against
both the driver of this Scorpio car as well as the deceased
Abdul Rahiman and therefore, to attribute negligence only
to Abdul Rahiman would be illegal. It is submitted that the
evidence on record clearly indicated that it was the driver
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of the Scorpio car who was negligent and therefore, the
Tribunal has justified and come to the conclusion that the
driver of the Scorpio car was responsible for the accident.
Learned counsel for the claimants also submits that a sum
of Rs.7,95,000/- awarded towards compensation is
inadequate and required to be enhanced.
8. As stated above, the occurrence of the accident is
not in dispute. The only contention advanced by the
parties is that they were not responsible for the accident.
The dismissal of the claim petition filed by Abubakar, the
pillion rider and its acceptance by him cannot obviously
bind the Legal representatives of the deceased since they
were not parties in these proceedings and the negligence
will have to be considered based on the evidence adduced
by them.
9. In this case, admittedly, the police after investigation
have laid a charge sheet against the driver of the Scorpio
car as well as against the deceased Abdul Rehiman. The
eyewitness to the accident - Abubakar was examined in
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these proceedings and he has reiterated the contention
that he had advanced that the driver of the Scorpio car
was responsible for the accident. The author of the sketch,
which is produced by the learned counsel for the insurer
(which was produced in the claim petition filed by
Abubakar) indicates that the accident did occur at the
intersection of a cross-road and the main road. The spot of
accident also indicates that the accident occurred not
exactly in the middle of the road but to the left of the
road.
10. In my view, having regard to the sketch that is
produced and also taking into consideration that the police
have laid a charge sheet against both the deceased as well
as the driver of the Scorpio car, it would be appropriate to
hold that the deceased had also contributed to an extent
of 30% to the accident and the driver of the Scorpio car
was negligent to an extent of 70%.
11. Learned Counsel for the insurer of the Scorpio car
contends that the driver of the Scorpio car did not possess
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a driving license and therefore, it cannot be fastened with
the liability. In other words, it is the case of the insurer
that there is a breach of the policy conditions. In such
cases, the only remedy available to the insurer would have
to pay the compensation and thereafter recover the same
from the owner of the offending vehicle.
12. As far as compensation is concerned, the Tribunal
has awarded the following sums:
Sl. Amount
Particulars
No. in (Rs.)
1. Loss of dependency 7,65,000/-
2. Funeral expenses 15,000/-
3. Loss of estate 15,000/-
Total 7,95,000/-
13. As far as the compensation is concerned, the
Tribunal has assessed the monthly income of the deceased
of Rs.7,500/- and deducted 50% towards the personal
living expenses and applied a multiplier of '17'. The
claimants had produced the identity card of the deceased,
which indicated that he was engaged as a seaman and
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therefore, his avocation stands proved. However, there is
no proof of his earning as a seaman. Since Karnataka
State Legal Services Authority has determined the sum of
Rs.9,000/- for accidents of the year 2015, it is appropriate
to adopt the same.
14. Since the deceased was aged 27 years, 40% requires
to be added to the monthly income towards future
prospects, which would result in the income to be
Rs.12,600/-. If 50% is deducted towards personal and
living expenses, his monthly income would be Rs.6,300/-.
15. The income of the deceased for the purposes of
determining the 'loss of dependency' would thus be
Rs.6,300/-.
16. As the deceased was aged 27 years, a multiplier of
'17' would have to be applied. Consequently, the
claimants would be entitled to a sum of Rs.12,85,200/-
(Rs.6,300 X 12 X 17).
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17. The claimants, being the mother and siblings, would
each be entitled to a sum of Rs.48,400/- towards of 'loss
of love and affection', i.e., in all Rs.3,87,200/-
(Rs.48,400/- X 8) and they would also be entitled to a
sum of Rs.36,300/- under the 'conventional heads'.
18. Since the deceased had contributed to an extent of
30% in the accident, compensation to an extent of 30%
from the above should be reduced and the claimants are
entitled to a sum of Rs.11,96,090/-.
19. Thus, the claimants, in modification of the impugned
award would be entitled to the following sums:
Compensation As awarded by
Sl.
under different this Court
No.
Heads (Rs.)
1. Loss of dependency 12,85,200
2. Loss of love and 3,87,200
affection
3. Conventional Heads 36,300
Total 17,08,700
Contributed to the -5,12,610
extent of 30%
Total compensation 11,96,090
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20. The insurer will be liable to pay the said
compensation, they have to proceed to recover the same
from the owner of the offending vehicle.
21. Thus, the claimant would be entitled to a
compensation of Rs.11,96,090/- as against
Rs.7,95,000/- awarded by the Tribunal, along with interest
at the rate of 6% per annum from the date of petition till
its realization.
22. The amount in deposit, if any, shall be transferred to
the Tribunal for disbursal in terms of the award.
23. Accordingly, the appeals stand disposed of.
Sd/-
(N S SANJAY GOWDA)
JUDGE
BKN
