NATIONAL INSURANCE CO LTD vs. SMT.LALITHA BAI

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 09TH DAY OF NOVEMBER, 2020

PRESENT

THE HON'BLE MRS. JUSTICE S.SUJATHA

AND

THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

MFA.NO.3664 OF 2014(MV-D) C/W MFA.CROB.NO.166 OF 2014(MV-D) IN MFA.NO.3664 OF 2014(MV-D)

IN MFA.NO.3664 OF 2014

BETWEEN:

NATIONAL INSURANCE CO LTD BRANCH OFFICE, BINDU, II FLOOR NEAR DOOM LIGHT CIRCLE NEW EXTENSION, KOLAR TOWN NOW REPRESENTED BY ITS REGIONAL MANAGER NATIONAL INSURANCE CO LTD REGIONAL OFFICE SUBHARAM COMPLEX, 144, MG ROAD BANGALORE-560 001 ....APPELLANT (BY SRI. A.N. KRISHNA SWAMY, ADVOCATE)

AND:

1 . SMT.LALITHA BAI

W/O LATE D. GOUTHAM CHAND NOW AGED ABOUT 49 YEARS

2 . RAKESH KUMAR S/O LATE D. GOUTHAM CHAND NOW AGED ABOUT 32 YEARS

3 . POONAM D/O LATE D. GOUTHAM CHAND NOW AGED ABOUT 28 YEARS

ALL R/O C/O MOHANLAL JAI 1ST MAIN, KURUBARPET KOLAR TOWN-563 101

4 . M/S WARDHA COAL TRANSPORT PVT. LTD., AL-MAJRI COLLIERY PO-SHVIAJI NAGAR TALUK BHADRAVATHI CHANDRAPUR DISTRICT MAHARASHTRA STATE-571 402 REPTED BY ITS PROPRIETOR

5 . MANNE MURAHARI S/O RAMAMURTHY MAJOR R/O BALAKRISHNAPURA 1ST LINE, 1ST ROAD, BAPTIA ANDHRA PRADESH-568 101 ….RESPONDENTS

(BY SRI. VEERANNA G. TIGADI, ADVOCATE FOR R1 TO R3 SRI. PANDURANGA NAIK, ADVOCATE FOR R4 SRI. SREEVIDYA G.K, ADVOCATE FOR R5)

THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:14.02.2014 PASSED IN MVC NO.122/2008 ON THE

FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, MACT, KOLAR, AWARDING COMPENSATION OF RS.14,21,052/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL REALIZATION.

IN MFA.CROB.NO.166 OF 2014

BETWEEN:

1 . LALITHA BAI W/O LATE D GOUTHAM CHAND AGED 50 YEARS

2 . RAKESH KUMAR S/O LATE D GOUTHAM CHAND AGED 33 YEARS

3 . POONAM D/O LATE D GOUTHAM CHAND AGED 29 YEARS

ALL ARE RESIDING AT C/O MOHANLAL JAIN 1ST MAIN KURUBARPET KOLAR TOWN-563 101 ....CROSS OBJECTORS

(BY SRI. VEERANNA G TIGADI, ADVOCATE)

AND:

1 . M/S. WARDHA COAL TRANSPORT PVT LTD A1-MAJRI COLLIERY PO SHIVAJI NAGAR TAH BHADRAVATHI CHANDRAPUR DISTRICT

MAHARASHTRA STATE-442 401 REPRESENTED BY ITS PROPRIETOR

2 . NATIONAL INSURANCE CO LTD BRANCH OFFICE BINDU, 2ND FLOOR NEAR DOOM LIGHT CIRCLE NEW EXTENSION KOLAR TOWN-560 101

3 . MR. MANNE MURAHARI S/O RAMAMURTHY R/O BALAKRISHNAPRAM 1ST LINE, 1ST ROAD BAPITIA-517 421 ANDHRA PRADESH ….RESPONDENTS

(BY A.N. KRISHNA SWAMY, ADVOCATE FOR R2 SRI. PANDURANGA NAIK, ADVOCATE FOR R1 SRI. SREEVIDYA G.K, ADVOCATE FOR R3)

THIS MFA CROB IN MFA NO.3664/2014 FILED UNDER ORDER 41 RULE 22 OF CPC, AGAINST THE JUDGMENT AND AWARD DATED:14.02.2014 PASSED IN MVC NO.122/2008 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, MACT, KOLAR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENCHANCEMENT OF COMPENSATION.

THIS MFA AND MFA CROB COMING ON FOR FINAL HEARING THIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:

JUDGMENT

These appeals are directed against the impugned judgment and award dated 14.2.2014 passed in MVC.No.122/2008 by the MACT and I Additional Senior Civil Judge, Kolar. MFA.No.3664/2014 is filed by the Insurance company on the ground of liability as well as quantum whereas the claimants have filed MFA.Crob.No.166/2014 seeking enhancement.

The claimants filed a claim petition contending that on 25.3.2007 at about 4.30 p.m. when the husband of claimant No.1 namely D. Goutham Chand Bhandari along with his family members was returning back to Mulbagal town in an Indica car bearing Regn.No.KA.01/MC-3026 and when the said car

reached Jonnathali Centre on NH-5 of Martur, Prakasham District, Andhra Pradesh, the driver of the Loader Machine bearing Regn.No.MH-34-M-3797 came in a rash and negligent manner and suddenly crossed the road in a wrong direction and dashed against the Indica car which was proceeding on the left side of the road and thereby caused the accident. As a result, the husband of claimant No.1 namely D. Goutham Chand Bhandari sustained fatal injuries and succumbed to the injuries on the spot. The claimants being the wife and children filed a claim petition by contending that deceased had an income of Rs.2,94,000/-. The claimants specifically contended in the claim petition that the deceased was the Proprietor of Jewel and Pawn Broker shop and relied on income-tax returns for the year 2007-08. They contended that they were totally dependant on the

income of the deceased and hence filed claimed compensation of Rs.30 lakhs.

The second respondent-Insurance company on receipt of notice contested the proceedings by filing objections to the claim petition. Though issuance of policy was admitted, however, the second respondent- Insurance company set up a defence that the driver of the offending vehicle did not possess valid and effective driving licence and hence, denied the liability to pay the compensation. The second respondent- Insurance Company also disputed the age, income and avocation of the deceased.

The Tribunal based on pleadings, framed the following issues:

"1.Whether the petitioners prove that

accident occurred on 24.05.2007 at 10.30

a.m. near Jonnathali Centre on NH-5 of

Martur, Prakasham District, Andhra Pradesh

is due to the rash and negligent driving of the

Loader Machine vehicle bearing Regn.No.MH-

M-3797 and D.Gowtham Chand Bhandari

sustained injuries and succumbed to the

accidental injuries at the spot?

2.Whether the 2nd respondent proves that

the driver of the Loader Machine vehicle

bearing Regn.No.MH.34-M-3797 was not

holding valid and effective driving licence at

the time of accident?

3.Whether the petitioners are entitled for

compensation? If so to what extent and from

whom?

4.What order or award?"

The claimants in support of their contention examined the claimant No.2 as P.W.1 and in support of ocular evidence produced documents as per Exs.P1 to P12. The second respondent-Insurance Company examined its Branch Manager as R.W.1 and relied on Exs.R1 to R8.

The Tribunal having examined the oral and documentary evidence answered issue No.1 in the affirmative.

The Tribunal while determining compensation, has assessed the income of the deceased at Rs.10,000/-. By adding 15% towards future prospects and deducting 1/3rd towards personal expenses and applying multiplier 13 has awarded Rs.11,96,052/- towards loss of dependency. under conventional heads, the Tribunal has awarded a sum of Rs.2,25,000/- and in all Rs.14,21,052/- is awarded with interest at the rate of 6% per annum from the date of petition till its realisation. Being aggrieved by the same, both the Insurance Company as well as the claimants have preferred these appeals.

Tribunal is on the higher side. Though several grounds are raised in regard to breach of policy conditions, however, the learned counsel appearing for the Insurance Company would not seriously urge this ground.

Though learned counsel appearing for the Insurance Company has raised a ground questioning

the liability however, there is absolutely no clinching evidence lead in by the Insurance company to show that the driver of the loading machine did not possess valid and effective driving licence and no evidence is placed on record.

Insofar as quantum is concerned, we would find some force in the submission made by the learned counsel for the claimants. Admittedly, the deceased was aged 49 years as per the post-mortem and inquest report and hence, the Tribunal was not justified in adding 15% towards future prospects. In view of the dictum laid down by the Hon'ble Apex Court in National Insurance Company .vs. Pranay Sethi and others (2017 ACJ 2700) 25% has to be added towards future prospects to the age group of above 40-50 years. In that view of the matter, without disturbing the income assessed by the

Tribunal, the income of the deceased is re-assessed at Rs.10,000x25/100=Rs.12,500/-. By deducting 1/3rd towards personal expenses and applying multiplier of 13, the amount payable towards loss of dependency is re-redetermined at Rs.12,500x12x13x2/3= Rs.13,00,000/-. Appellants 2 to 3 are majors. Hence, only claimant No.1 is awarded Rs.40,000/- towards spousal consortium and further Rs.30,000/- is awarded towards loss of estate and funeral expenses. Thus, under conventional heads a sum of Rs.70,000/- is awarded. Hence, the total compensation re- determined by this Court comes to Rs.13,70,000/- as against Rs. 14,21,052/- awarded by the Tribunal, to which the claimants are entitled with interest at 6% per annum from the date of claim petition till its realisation.

ORDER i] Appeal filed by the insurer in MFA No.3664/2014 is allowed in part. ii] MFA Crob.166/2014 filed by the claimants is dismissed. iii] The total compensation awarded by the Tribunal is modified and reduced to Rs.13,70,000/- as against Rs.14,21,052/- which shall carry interest at the rate of 6% per annum from the date of the claim petition till its realization. iv] The portion of the order of the Tribunal inasmuch as liability, apportionment and disbursement remains intact. v] The insurance company shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date of

receipt of the certified copy of the judgment and order. vi] The modified compensation amount shall be apportioned and disbursed in terms of the order of the Tribunal. vii] Draw modified award accordingly. viii] The Registry shall transfer the amount in deposit with original records to the jurisdictional Tribunal forthwith. ix] All the pending I.As stand disposed of accordingly.

Sd/- JUDGE

Sd/- JUDGE

*alb/-.