Karnataka High Court
M/S National Insurance Company Ltd vs Mr B Puttaraju on 11 November, 2024
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MFA No.4828/2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
MISCELLANEOUS FIRST APPEAL NO.4828/2023 (MV-D)
BETWEEN:
M/S NATIONAL INSURANCE COMPANY LTD
NO.7, RAJA STREET, POST BOX NO.19
GOBBICHATTI PALYAM
ERODE DISTRICT
TAMILNADU STATE
REPRESENTED BY BRANCH OFFICER
NEAR RAMASWAMY CIRCLE
MYSURU - 570 023.
Digitally signed REPRESENTED BY REGIONAL OFFICER
by RUPA V SITUATE AT NO.144
Location: HIGH 2ND FLOOR, SHUBRAM COMPLEX
COURT OF M G ROAD, BANGALORE - 560 001
KARNATAKA REPRESENTED BY REKHA S. MENON
DEPUTY MANAGER.
...APPELLANT
(BY SMT. GEETHA R, ADV.,)
AND:
1. MR. B. PUTTARAJU
SINCE DEAD BY LR'S .
1(a) MR. ANAND P
S/O LATE B. PUTTARAJU
AGED BOUT 37 YEARS.
1(b) MRS. SHEELA .P
D/O LATE B. PUTTARAJU
AGED ABOUT 35 YEARS.
2. MRS. K.N. NAGARATHNA
W/O B. PUTTARAJU
AGED ABOUT 55 YEARS.
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MFA No.4828/2023
ALL ARE R/AT
BEHIND VIDYODAYA COLLEGE
VIDHYANAGAR
T. NARASIMPURA TOWN.
3. MR. B. NAGARAJU
S/O BASVANNA
AGED ABOUT 36 YEARS
R/AT SIDDAIAHANAPURA VILLAGE
CHANDAKAVADI HOBLI
CHAMARAJANAGARA DISTRICT.
5. MR. N. MANI
S/O NACHUMUTHU
AGED ABOUT 61 YEARS
RESIDING AT D NO.13/3
KUVEMPU EXTENSION
SATHI ROAD
CHAMARAJNAGARA TOWN.
6. MR. UMESH N.V.
S/O LATE S BASAVARAJU
AGED ABOUT 46 YEARS
RESIDING AT NO.3324/17
12TH CROSS, WARD NO. 19
R P ROAD, BAGERIYA LAYOUT
NANJANGUDU.
...RESPONDENTS
(BY SRI. MAHANTESH S. HOSMATH, ADV., FOR R1 (a & b)
& R2 & R5
R3 & R4 ARE SERVED)
---
THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO CALL
FOR RECORDS AND SET ASIDE THE JUDGMENT AND AWARD DATED
06.04.2023, PASSED BY THE COURT OF SENIOR CIVIL JUDGE &
MACT, AT T.N. PURA, MYSROE IN MVC NO.667/2017, DISMISSING
THE CLAIM PETITION IN THE INTEREST OF JUSTICE AND EQUIYT.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL
and
HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
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MFA No.4828/2023
ORAL JUDGMENT
(HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL)
Challenging the judgment and award in MVC
No.667/2017 passed by the Sr. Civil Judge and MACT,
T.Narasipura, Mysuru, Insurance Company has filed this
appeal.
2. The appellant was respondent No.3, respondent
Nos.1(a) and 1(b) in this appeal were claimants Nos.1(a) and
1(b), respondent No.2 in this appeal was claimant No.2,
respondent Nos.3, 4 and 5 herein were respondent Nos.1, 2
and 4, respectively before the Tribunal. For the purpose of
convenience, the parties are referred to henceforth according to
their ranks before the Tribunal.
3. Father and the mother of the deceased Shobha filed
claim petition under Section 166 of the Motor Vehicles Act,
1988 (hereinafter referred to as 'the Act'), seeking
compensation for the death of their daughter Shobha in a road
accident that occurred on 03.09.2016 at about 10 a.m. When
the deceased was traveling in car bearing registration No.KA-09
MB-1568 on Kapila bridge, T.Narasipura, Mysuru main road. at
that time, driver of bus bearing registration No.KA-55-6979
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drove the same in rash and negligent manner and dashed the
car. Due to the said impact of the accident, deceased
sustained grievous injuries and was provided treatment at BGS
Apollo Hospital, Mysuru. However, on 05.09.2016 she
succumbed to the injuries. The jurisdictional police registered
the case in Crime No.244/2016 and on investigation, filed
charge sheet against the driver of the offending bus for his
negligence. It was contended that the deceased was aged
about 31 years at the time of accident, was working as a
Primary School Teacher and drawing salary of Rs.26,700/- p.m.
It was further contended that the deceased was residing with
her parents due to marital discord and respondent No.4 is the
husband of the deceased. Hence, they sought for
compensation of Rs.41,38,440/- on different heads and interest
at the rate of 12% p.a.
4. Respondent Nos.1 and 2 remained exparte before
the Tribunal. Respondent No.3 - Insurance Company filed
objections denying the claim of compensation, age, income and
avocation of deceased. It was denied that the accident was
caused due to the negligence of the driver of the bus. It was
contended that the accident was caused due to the negligence
of the driver of the TATA Indica car and for non-joinder of
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driver, owner and insurer of the car, the claim petition is liable
to be rejected. It was further contended that payment of
compensation is subject to fulfillment of terms and conditions
of the policy. Hence, respondent No.3 sought for dismissal of
the petition.
5. Respondent No.4 filed separate objections denying
the allegation that he has deserted the deceased and she was
residing with her parents since five years prior to her death. It
was contended that due to her ill-health she was residing with
her parents and he being class-1 heir is entitled for
compensation. He prayed for allotment of his compensation
separately.
6. The Tribunal recorded the evidence of the parties.
Claimant No.1 got examined himself as PW-1 and got marked
Exs.P1 to P10. Respondent No.4 got examined himself as RW-
1 but did not produce any documentary evidence. The
Tribunal, on appreciation of the oral and documentary
evidence, partly allowed the claim petition awarding
compensation of Rs.48,02,304/- under the head of loss of
dependency and in total, awarded compensation of
Rs.51,35,704/- with interest @ 9% p.a. from the date of
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petition till realization. The Tribunal further saddled the liability
to respondent No.3 - Insurance Company, apportioned the
compensation between the claimant No.2 and respondent No.4
at the ratio of 25% and 75% respectively and awarded
compensation to claimant Nos.1(a) and 1(b) under the head of
loss of consortium. Being aggrieved, the Insurance Company is
in appeal.
7. Smt.Geetha Raj, learned counsel for the appellant
submits that the Tribunal committed grave error in considering
the parents of the deceased as the dependants in the absence
of any documentary evidence to prove their relationship with
the deceased. It is submitted that the Tribunal further erred in
awarding compensation to respondent No.4 because as per the
claim petition the deceased had deserted respondent No.4.
Hence, he cannot be considered as dependant. It is further
submitted that except Ex.P10, claimants did not produce any
document to prove the income of the deceased. Hence, the
Tribunal ought to have assessed the income of the deceased
notionally and assessment of income by the Tribunal is without
any evidence. The Tribunal has erred in considering the age of
the deceased as 32 years based on the postmortem report and
claimants have failed to prove the same. It is also submitted
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that the Tribunal has erred in appreciating the records which
indicate that the deceased was suffering from chronic kidney
disease. Hence, her employment and income is doubtful and
the Tribunal failed to appreciate the said aspect. It is
contended that the accident is due to the negligence of the
driver of the car and the Tribunal did not record any finding
with regard to the contributory negligence and the award of
compensation by the Tribunal is exorbitant. Hence, she seeks
to allow the appeal.
8. Per contra, Sri.Mahantesh S.Hosmath, learned
counsel for the respondent Nos.1(a), 1(b), 2 and 5 supports
the impugned judgment and award of the Tribunal and submits
that the deceased was not keeping well and therefore, she was
residing with her parents. That cannot be the ground to reject
the claim of the parents and the husband of the deceased. It is
submitted that the Insurance Company did not adduce any
evidence before the Tribunal. Respondent No.4 - husband of
the deceased supported the claim petition and sought
compensation for his share along with the parents of the
deceased and Tribunal, considering the oral and documentary
evidence, has allowed the claim petition which does not call for
any interference. Hence, he seeks dismissal of the appeal.
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9. Considering the rival submissions of the parties and
examining the materials on record including the Trial Court
records, the point that arises for consideration is "Whether
the impugned judgment and award of the Tribunal calls
for any interference"?
ANALYSIS
10. Claimant Nos.1 and 2 are the parents of deceased
Shobha. Claimant No.1 - father of the deceased died during
the pendency of the proceedings before the Tribunal, his legal
representatives are brought on record as claimant Nos.1(a) and
1(b). Respondent No.4 is the husband of the deceased. The
pleadings and evidence available on record indicate that in the
road accident that occurred on 03.09.2016 deceased Shobha
sustained grievous injuries and later succumbed to the same.
The jurisdictional police registered the case against the driver
of the offending bus bearing registration No.KA-55-6979 and on
investigation filed charge sheet. The charge sheet materials
indicate that driver of the bus was negligent. The claimants
have produced the investigation papers as Exs.P1 to P4 and P7.
The certified copy of IMV report is marked as Ex.P6 which also
indicates that the driver of the offending bus was negligent and
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caused the accident. The Tribunal considering such evidence
rightly held that driver of bus was the tort-feasor.
11. Insofar as entitlement of compensation, the claim
petition indicates that the deceased at the time of accident was
residing with the claimants, she was a Government Teacher,
drawing salary of Rs.26,700/- p.m. and due to her untimely
death, the parents have lost emotional and financial
dependency. In support of the claim, claimant No.1 entered
the witness box and reiterated the averments made in the
claim petition. The said witness has been cross-examined by
the Insurance Company. However, nothing has been elicited
with regard to the dependency of the claimants. Considering
the pleadings and evidence on record and in the absence of any
evidence by the Insurance Company on the issue of
dependency, the initial burden of dependency has been
discharged by the claimants. Admittedly, respondent No.4 is
the husband of the deceased. Though the Insurance Company
tried to deny the dependency of claimants, the pleading and
evidence on record clearly indicate that the deceased was
residing with her parents since five years prior to her death,
due to her ill-health. Such long duration of stay of the deceased
has created the emotional and financial dependency of the
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claimants on the deceased as PW-1 stated that his daughter
used to contribute her salary to meet the family necessities.
Hence, the contrary contentions urged by the Insurance
Company with regard to entitlement of compensation by the
claimants and dependency of respondent No.4 has no merit
consideration and is accordingly rejected.
12. The contention of the Insurance Company that the
Tribunal has committed error in saddling the entire liability on
the owner and insurer of the bus involved in the accident as
there is head-on collision between the bus and the car, hence
50% liability is required to be saddled on the owner and insurer
of car. The jurisdictional police registered Crime No.244/2016
on 03.09.2016 around 11 a.m. i.e. immediately after the
accident. On investigation, police filed charge sheet against the
driver of the offending bus bearing registration No.KA-55-6979
for the offences punishable under Sections 279, 337, 304-A of
the Indian Penal Code, 1860 and Sections 134A and B read
with 187 of the Act. The claimants have clearly pleaded in the
claim petition with regard to the negligence of the driver of the
bus and produced the certified copy of the FIR, spot mahazar,
spot sketch, IMV report and charge sheet as Exs.P1 to P4, P6
and P7. The oral testimony of the witnesses and the
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documentary evidence clearly indicate that the driver of the
bus was negligent and caused the accident in question. Hence,
the Tribunal has rightly saddled the entire liability on the
Insurance Company of the bus which does not call for any
modification.
13. Insofar as compensation is concerned, the Tribunal
considering Ex.P10 - salary slip of the deceased, assessed the
income of the deceased at Rs.25,012/- p.m. The Tribunal has
erred in omitting to deduct Rs.200/- p.m. as professional tax
and Rs.300/- p.m. as special allowance from the salary. After
deducting the aforesaid amount, the income of the deceased
would be Rs.24,512/-. The deceased was aged about 32 years
and was in Government employment. Hence, the claimants are
entitled to addition of 50% of the income under the head of
loss of future prospects of the deceased and appropriate
multiplier would be '16'.
14. Deceased was married and claimant No.2 is the
mother and respondent No.4 is the husband of the deceased.
Hence, appropriate deduction would be 1/3rd towards personal
and living expenses of the deceased. Claimant No.1 died
during the pendency of the proceedings before the Tribunal.
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Hence, the legal heirs of the claimant No.1 are brought on
record i.e. siblings of the deceased. Hence, legal
representatives of claimant No.1, claimant No.2 and
respondent No.4 are entitled to consortium of Rs.40,000/- each
with 10% escalation for each 3 years i.e. 2 escalations. The
Tribunal considering Ex.P8 the medical bills produced by the
claimants has awarded Rs.78,400/- towards the hospital
charges. The said amount is based on actual bills produced by
the claimants for providing treatment to the deceased from
03.09.2016 to 05.09.2016. Hence, the said amount is
retained. The compensation is re-determined as under:
Sl. Particulars Compensation
No. awarded in Rs.
1. Loss of dependency 47,06,304/-
(24,512 + 50% = 36,768 x
12 x 16 x 2/3rd)
2. Loss of consortium 1,44,000/-
(48,000 x 3)
3. Loss of estate with 18,000/-
escalation at 20%
4. Transportation of dead 18,000/-
body and funeral expenses
5. Medical expenses 78,400/-
TOTAL 49,64,704/-
Compensation awarded by 51,35,704/-
the Tribunal
Reduction of compensation 1,71,000/-
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15. For the aforementioned reasons, we pass the
following:
ORDER
Appeal is allowed-in-part.
The impugned judgment and award is modified as
follows:
i. The claimants and respondent No.4 are together
entitled to compensation of Rs.49,64,704/- with interest
thereon at 6% p.a. from the date of petition till its realization.
ii. Respondent No.3 - the insurer (who is the appellant
in this case) shall deposit the said compensation before the
Tribunal within four weeks from the date of receipt of copy of
this judgment on adjusting the amount already deposited, if
any.
iii. Out of the said compensation amount, consortium
part of deceased claimant No.1 shall be paid to claimant No.2 -
the mother.
iv. Out of the rest of the compensation amount,
claimant No.2 and respondent No.4 are entitled to 50% each.
v. Out of the share of claimant No.2, 60% shall be
released to claimant No.2 with accrued interest and 40% shall
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be invested in her name for a period of three years in any
nationalized / scheduled bank of her choice.
vi. Out of the share of respondent No.4, 50% shall be
released to him and balance 50% shall be invested in his name
in any nationalized / scheduled bank of his choice for a period
of five years.
vii. Transmit the amount in deposit, if any and the Trial
Court records to the Tribunal forthwith.
Sd/-
(K.S.MUDAGAL)
JUDGE
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
RV
