THE DIVISIONAL MANAGER vs. SATHISHKUMAR

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF OCTOBER, 2019 PRESENT

THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA AND

THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ M.F.A. No.9544 OF 2018 (MV)

BETWEEN:

THE DIVISIONAL MANAGER NEW INDIA ASSURANCE COMPANY LIMITED MALLAPPA COMPLEX, NH 206 B.H.ROAD, SHIVAMOGGA POLICY NO.670601/31/08/02/00006097 BY ITS REGIONAL MANAGER THE NEW INDIA ASSURANCE CO. LIMITED REGIONAL OFFICE “MAHALAKSHMI CHAMBERS” 2ND FLOOR, 9/2, M.G.ROAD BANGALORE-560001 REPRESENTED BY ITS DEPUTY MANAGER

... APPELLANT

(BY SRI. P.B.RAJU, ADVOCATE) AND: 1. SATHISHKUMAR S/O BOJA SHETTY AGED ABOUT 1 YEAR S/O LATE GOPAL, MINOR REPRESENTED BY HIS GUARDIAN GRANDFATHER R. GOVINDAPPA

2 AGED ABOUT 69 YEARS S/O RAMAPPA

ALL ARE RESIDENT OF SREERAMPURA VILLAGE KASABA HOBLI, KDAUR TALUK CHIKKAMAGALURU DISTRICT

3 ALJUBEDA BUILDING, 3RD CROSS NEHRU ROAD, SHIVAMOGGA

... RESPONDENTS

THIS APPEAL IS FILED UNDER SECTION 173 (1) OF MOTOR VEHICLE ACT, AGAINST THE JUDGMENT AND AWARD DATED 04.08.2018, PASSED IN MVC NO.14/2011, ON THE FILE OF THE SENIOR CIVIL JUDGE AND MMACT, KADUR, CHIKKAMAGALUR DISTRICT, AWARDING COMPENSATION OF RS.24,64,200/- WITH INTEREST AT THE RATEOF 7% P.A., FROM THE DATE OF PETITION TILL THE REALIZATION.

THIS APPEAL COMING ON FOR ORDERS, THIS DAY, SURAJ GOVINDARAJ. J., DELIVERED THE FOLLOWING:

J U D G M E N T

4 3. For the sake of convenience, parties are referred to as per their ranking before the Tribunal. 4. Respondents No.1 to 3-claimants filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, (hereinafter referred to as the ‘Act’ for brevity) against the appellant and respondents No.4 to 6 seeking for compensation of Rs.25 lakhs together with interest at the rate of 21% p.a. on account of death of G.Gopal in a road traffic accident. Respondent Nos. 1 to 3 –claimants are minor son and parents of deceased G.Gopal. According to the claimants, on 6.2.2010 at about 7.30 per month G.Gopal was returning from Shimogga to his native village Srirampura on his motorcycle on the left side of the road, in a slow manner. When he was near Doddaghatta Bus station, N.H.206, in between Tarikere-Birur road, a lorry bearing registration No. KA-23-6492

driven by B.J.Siddarameshwara, respondent No.1 before the Tribunal, in a rash and negligent manner and with excessive speed came and dashed to the motorcycle in

5 which the deceased was riding from behind. As a result of the accident, Gopal sustained grievous injuries to his head, face and other parts of the body and died on the spot. On hearing about the death of G.Gopal, his wife also died due to shock. The claimant No.1 is the minor child of Gopal, who was five months baby at the time of the accident and is represented by his grand parents i.e. claimant Nos.2 and 3, who are parents of deceased G.Gopal. 5. It is stated that claimant Nos.2 and 3 spent more than Rs.40,000/- towards transportation of the dead body, funeral expenses, etc. They contended that the deceased was getting a salary of Rs.11,757/-, as also getting agricultural income of Rs.8,500/- per month. Therefore, they sought for award of a sum of Rs.25 lakhs together with interest at the rate of 21% per annum. 6. Respondent No.1 is the driver, respondent No.2 is owner of the lorry and respondent No.3 -United India Assurance is the insurer of the lorry bearing registration No.KA-23-6492. Hence, it was claimed that respondent

6 Nos.1 to 3 are jointly and severally liable to make payment of the compensation amount. 7. During the pendency of the claim petition, the claimants getting to know that, in fact, the insurer was New India Assurance Company Limited, got impleaded the said company as respondent No.4, who is now the appellant in the present claim. 8. In response to the notice issued by the Tribunal, the respondents through their respective advocates filed their statement of objections to the claim petition. Respondent No.4/appellant herein has admitted that it had insured the lorry bearing registration No.KA-23-6492, but denied other contents of the claim petition. Respondent No.4 – denied the averments made in the petition. According to Respondent No.4, the accident had not even occurred. The deceased had fallen somewhere and had died and the claimants by colluding with the concerned police had created the story of the accident to falsely implicate the respondent in the case.

7 9. It is the case of the driver and the owner of the lorry that their lorry had nothing to do with the death of G.Gopal but their lorry was seized blindly without any basis. Hence, they sought for dismissal of the claim petition. 10. Respondent No.4 –appellant herein admitted that it had insured the vehicle bearing No.KA-23-6492 and also admitted that the said policy was in force from 7.2.2009 to midnight of 6.2.2010, but other averments were denied. It is the contention of respondent No.4- appellant herein that respondent No.1-driver was not holding a valid and effective driving licence to drive the lorry on the date of the accident. Therefore, the Insurance Company is not liable and it would be the personal liability of the driver and owner of the lorry. The Insurance Company further alleged that the insurer of the motorcycle was not made a party to the claim proceedings. Thus, on account of non-joinder of necessary parties, the claim petition had to be dismissed was the contention.

8 11. Claimant No.2 examined himself as PW-1 and also examined one more witness as PW-2 and got marked 21 documents as Exhibits –P1 to P21. After closure of claimants’ side evidence, respondent No.4-appellant herein examined its Office Assistant as RW-1 and through him Exhibits-R1 to R3 were got marked. The other respondents have not led any evidence though they had filed their objections. 12. Based on the rival contentions of the parties, the Tribunal framed the following issues and additional issues: 1. Whether the petitioners prove that, G. Gopal has died due to the 9njuries sustained in an actionable negligent driving of lorry bearing Regn.No.KA.23/6492 by respondent No.1 in a road traffic accident which took place on 6.2.2010 at about 7.30 per month opposite to doddaghatta bus stop, N.H.206, between Tarikere-Birur road, Kadur taluk? 2. Whether the petitioners are entitled for compensation as claimed? If so what amount? 3. What award or order?

9 Addl. Issues: 1. Whether the petitioners prove that they are the L.Rs. of deceased G.Gopal? 2. Whether the respondent NO.4 proves that the respondent No.1 was not holding valid and effective driving licence to drive the offending vehicle as on the date of accident?”

Sl No. Nature of Heads Amount (Rs.) 1 Loss of dependency 24,19,200.00 2 Loss of love and affection 25,000.00 3 Funeral expenses 15,000.00 4 Transportation of dead body 5,000.00

TOTAL 24,64,200.00

10 respondent No.4-Insurance Company has filed the present appeal challenging the award on the sole ground that the Tribunal committed an error in determining the income of the deceased at Rs.13,500/- per month, contrary to the claim made in the statement that his income was Rs.11,757/-, etc. It is also urged that there was no provision made for deduction of professional and income tax and the compensation awarded is excessive. 16. Though the matter was listed for orders and there is 11 days delay in filing the appeal, we have nevertheless heard the learned counsel or the appellant- Insurer on the merits of the matter. 17. Sri.P.B.Raju, learned counsel for the appellant submits that the insurer, having insured the lorry is not liable for the reason that the lorry has been falsely implicated and it was not involved in the accident. He also contends that the Tribunal has committed an error in determining the income of the deceased at Rs.13,500/- p.m, which is contrary to the claim made in the claim

11 statement wherein the claimants had stated that the income of the deceased was Rs.11,757/-. He further submits that the Tribunal has not taken into account deduction of professional and income-tax and therefore, the compensation awarded being excessive needs to be revised having regard to the above facts. 18. Having heard learned counsel for the appellant and having perused the appeal memo and documents, the points that arise for our consideration are: i) Whether the award of compensation by the Tribunal would call for any interference ? ii) What order ? 19. As detailed above, the contention of the appellant is that no accident had occurred, the deceased fell down somewhere and died and the claimants colluding with the concerned police created the story of the accident and falsely implicated the respondent in the case to unjustly enrich themselves making a claim against the insurer. However, on perusal of the records, it is seen that

12 no evidence is led by appellant/respondent-insurer to prove the above contention. 20. The fact is that the accident had occurred and as per all the records which are available, lorry bearing registration No.KA-23-6492 was involved in the accident. A mahazar had been drawn and the police had conducted an enquiry. Post mortem examination of the deceased was conducted and thereafter, the Birur police submitted a charge sheet against respondent No.1. In the light of these facts, the contentions on the part of the respondent- insurer that there was no accident which had occurred and that the lorry has been falsely implicated cannot be believed and hence, such a contention is rejected.

13 22. The claim as regards the earning is that the deceased was working as Assistant Engineer and was earning a gross salary of Rs.13,500/- per month and further that he was also earning a sum of Rs.8,500/- per month on account of his agricultural activities. The claimants have produced salary certificate at Ex.P17 issued by Brindavan Hydropower, who was the employer of the deceased who was paid salary of Rs.13,500/- per month The 1st claimant is the minor son of the deceased, 2nd and 3rd claimants are father and mother respectively of the deceased. The wife of the deceased died due to shock immediately on coming to know about the death of the deceased. Suffice it to say that the deceased is survived by claimants No.1 to 3. In view of the same, deduction to be made towards the personal living expenses of the deceased would be 1/3rd of his income. Petitioner being aged 35 years, future prospects of the deceased is to be taken as 40% in terms of the decision in National Insurance Company Limited –v- Pranay Sethi &

14 Others reported in (2017) 16 SCC 680. Hence, loss of dependency would be as detailed below: TABLE – A

Sl.No. Particulars Amount 1 Gross salary

13,500/- 2 40% future prospects (13,500 x 40%) 5,400/- 3 Total salary per month 18,900/- 4. After deduction of 1/3 towards personal expenses 12,600/- 5. Salary per annum (13500 + 40% - 1/3 x 12) 1,51,200/- 5 Multiplier applicable ‘16’

Loss of dependency (151200 X 16) 24,19,200/-

15 TABLE – B Sl.No. Nature of Heads Amount (Rs.) 1. Loss of parental consortium to the son of the deceased -1st claimant 30,000/- 2. Loss of filial consortium to the father of the deceased - 2nd claimant 30,000/- 3. Loss of filial consortium to the mother of the deceased - 3rd claimant 30,000/- 4. Loss of estate 15,000/- 5. Funeral expenses 15,000/-

TOTAL 1,20,000/-

In view of the above, we find no reason to interfere with the well-reasoned judgment of the Tribunal.

Amount in deposit before this Court be transferred to the Tribunal.

The appeal is, accordingly dismissed.

Sd/-

JUDGE

Sd/- JUDGE

ln.