Judgments
Judgments
  1. Home
  2. /
  3. High Court Of Karnataka
  4. /
  5. 2017
  6. /
  7. January

M/S Icici Lombard General Insurance Company Limited vs Smt Bhagyamma W/O Late Kempahanumaiah And Others

High Court Of Karnataka|31 July, 2017
|

JUDGMENT / ORDER

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY 2017 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A.No.3265/2014 C/W M.F.A.No.3266/2014(MV) IN MFA No.3265/2014:
BETWEEN:
M/s ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED NO.89, IIND FLOOR, SVR COMPLEX, MADIVALA MAIN ROAD, BENGALURU-560068 REP. BY ITS MANAGER POLICY ISSUED AT M/s ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED ICICI LOMBARD HOUSE, 414, VEER SAVARKAR MARG, NEAR SIDDHI VINAYAKA TEMPLE, PRABHADEVI MUMBAI-400025. ... APPELLANT (BY SRI B C SHIVANNE GOWDA, ADVOCATE) AND:
1. SMT BHAGYAMMA W/O LATE KEMPAHANUMAIAH NOW AGED ABOUT 45 YEARS, 2. SMT.NAGARATHNA D/O LATE KEMPAHANUMAIAH, NOW AGED ABOUT 24 YEARS, 3. KUMARI ANITHA.K D/O LATE KEMPAHANUMAIAH, NOW AGED ABOUT 22 YEARS, 4. SRI SHIVU.K D/O LATE KEMPAHANUMAIAH, NOW AGED ABOUT 21 YEARS, THE ABOVE RESPONDENTS ARE RESIDENTS OF NO.178, 4TH MAIN, LAKSHMIDEVI NAGARA BENGALURU-560096 5. SMT.SHARADHA J W/O JAWAHAR, NO.J82, 9TH CROSS, L.N.PURAM GANDHINAGAR BENGALURU-560021. ... RESPONDENTS (BY SRI P C SHIVAKUMAR, ADVOCATE FOR R1 TO R4 SRI C NARAYANASWAMY, ADVOCATE FOR R5) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:02.01.2014 PASSED IN MVC NO.3847/2012 ON THE FILE OF THE XXII ADDITIONAL SMALL CAUSES JUDGE AND MEMBER MACT, BENGALURU, AWARDING COMPENSATION OF `7,75,112/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL DEPOSIT.
IN MFA No.3266/2014:
BETWEEN:
M/s.ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED NO.89, IIND FLOOR, SVR COMPLEX, MADIVALA MAIN ROAD, BENGALURU-560068 REP. BY ITS MANAGER POLICY ISSUED AT M/s.ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED ICICI LOMBARD HOUSE, 414, VEER SAVARKAR MARG, NEAR SIDDHI VINAYAKA TEMPLE, PRABHADEVI MUMBAI-400025. ... APPELLANT (BY SRI B C SHIVANNE GOWDA, ADVOCATE) AND:
1. SMT KEMPAMMA W/O ANJINAPPA NOW AGED ABOUT 40 YEARS NO.285, 5TH CROSS RAVINDRA NAGAR T. DASARAHALLI BENGALURU-560 057.
2. SMT SHARADHA J W/O JAWAHAR NO.J82, 9TH CROSS L.N. PURAM GANDHINAGAR BENGALURU-560 021. ... RESPONDENTS (BY SRI P SHIVAKUMAR, ADVOCATE FOR R1 NOTICE TO R2 HELD SUFFICIENT V/O DATED 03.01.2017) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:02.01.2014 PASSED IN MVC NO.4940/2012 ON THE FILE OF THE XXII ADDITIONAL SMALL CAUSES JUDGE AND MEMBER MACT, BENGALURU, AWARDING COMPENSATION OF `2,08,000/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL DEPOSIT.
THESE MFAs COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT With the permission of learned counsel for both the sides, appeals are taken up for final disposal.
2. In order to avoid the confusion, the parties are referred in accordance with the rankings as they stood before the tribunal.
3. Both these appeals are directed against the judgment and award passed by the learned Member, MACT, Court of Small Causes, Bengaluru, in MVC Nos.3847/2012 and 4940/2012 dated 02.01.2014.
4. The appellant is common in both the appeals. In the two claim petitions, the learned Member passed the common judgment wherein, MVC Nos.3847/2012 and 4940/2012 came to be allowed in part and an amount of `7,75,112/- and `2,08,000/- with interest at 6% per annum was awarded as compensation respectively.
5. The proceedings in MVC No.3847/2012 was initiated because of accident on 18.05.2012 at 06:10 p.m. when one Kempahanumaiah was riding Honda Activa bearing registration No.KA-02-EH-9909 accompanied by one Kempamma on Bengaluru-Kunigal NH-48. By that time, a car bearing Reg.No.KA-02-D-823 came in a rash and negligent manner and dashed against the two wheeler- Honda Activa ridden by Kempahanumaiah. Because of which, the petitioner and also the pillion rider fell down and sustained grievous injuries.
6. Kempahanumaiah during the treatment period succumbed to the injuries. Thus, petitioners in MVC No.3847/2012 claim dependency of Kempahanumaiah.
They also claim for having spent a sum of `80,000/- for funeral and obsequies ceremony and they claim that they have lost a person who was guiding them. The said Kemapahanumaiah was doing business of scrap material and earning a sum of `15,000/- per month.
7. The petitioner-pillion rider in MVC No.4940/2012, claim that after the accident she was shifted to Government Hospital, Nelamangala and later shifted to Victoria Hospital, Bengaluru and was treated as an inpatient for two days and later shifted to Nimhans Hospital, Bengaluru. Thereafter, she was shifted to Sapthagiri hospital for further treatment. Thus, she was inpatient for a period from 20.05.2012 to 30.06.2012, undergone surgeries and spent a sum of `2,50,000/- towards treatment and other expenses. Moreover, she claims that she was a coolie and earning `6,000/- per month. A criminal case came to be registered in Cr.No.180/2012 for the offences punishable under Sections 279, 337 and 304(A) of IPC against the driver of the car.
8. Respondent No.1 contended that it is a law abiding institution and always been subject to compliance of terms there shall not be any breach of terms and also claim that the driver of the car was not having proper and effective licence. It is claimed that the driver had only licence to drive LMV (non-transport vehicle) and respondent No.1 is not liable to compensate the claimants and insofar as respondent No.2 is concerned who is the owner of the vehicle, she denied the liability.
9. The learned Member framed the issues on accident, injuries and death. However, the liability is questioned seriously by the respondents. It is to be noted that MFA No.3265/2014 which relates to death of Kempahanumaiah, the petitioners are claiming dependency. It is necessary to mention that dependency is always claimed by the persons who are depending on the person who is dead, during his life time for necessaries.
10. Learned counsel for the appellant would submit that Sri.Kempahanumaiah during his life time never had suitable income. The dependants have not presented any document that he was getting consistent income to maintain the family.
11. It is not the case of the dependants that they had any independent source of income. The petitioner No.1 is the wife, petitioner Nos.2 and 3 are daughters and Petitioner No.4 is son.
12. The learned Member has granted compensation by allowing the claim petitions in part as under:
In MVC No.3847/2012:
In MVC No.4940/2012:
DESCRIPTION AMOUNT Pain and suffering `30,000.00 Medical expenses, conveyance, attendant and nourished food Loss of earnings during the period of treatment ` 68,000.00 ` 9,000.00 Loss of amenities of life ` 20,000.00 Loss of income due to the disability considering the disability in respect of the whole body at 10% which comes to `450/- per month and taking the multiplier as`15’ as the petitioner was aged 38 years at the time of the accident.
` 81,000.00 TOTAL ` 2,08,000.00 13. To arrive at said figure, the learned Member has considered the notional income at `5,000/- per month and Kempahanumaiah was married, hence, 1/3rd deducted towards personal expenses and applied multiplier of ‘14’ and awarded a sum of `7,28,112/- towards loss of dependency. Learned Member considered the income of the deceased at `5,000/- per month on the basis of the prevailing facts and circumstances of the case and other calculation is carried out as per recognized principles. But it fails with quantum of income. Insofar as income is concerned it has to be considered at `6,000/- per month.
`6,000+`1,800 (30% added)= `7,800/-and 1/3rd is deducted towards personal and living expenses `7,800x1/3=`2,600 =`5,200/-
14. Insofar as bare necessity among considering the cost of living, price of necessaries, minimum clothing, shelter, medicines one cannot jump to a conclusion `5,000/- per month by Kempahanumaiah was a mirage. Thus, insofar as monthly income is concerned, the learned Member did not go for analyzing the cost of living with reference to minimum necessities of food, clothing and shelter.
15. Learned counsel for appellant, Sri B.C.Shivannegowda also submits agriculturists cannot have a constant income, dependents who have filed the petition would continue agriculture and there is no occasion for assessing future loss of income and submissions are considered. However, amount of `6,000/- per month does not require trigonometrical calculation to consider it as exorbitant. The loss of dependency would be:
`6,000+`1,800 =7,800/3 =`2,600 7,800-2,600=5,200/-
`5,200X12X14 = `8,73,600 -7,28,112 = `1,45,488/-
16. Per contra in the ideal circumstances it is definitely keeping body and soul together and to lead a reasonable life. Thus, insofar as other conventional heads are concerned there is no necessity to interfere with them as they are entitled to be maintained in their present form.
17. Learned counsel for appellant would also submit that petitioner No.2-Nagarathna though married has claimed as dependent. In this connection it is also to be seen that her name as shown in the cause title is Nagaratna, D/o Kempahanumaiah which does not appear to be proper and fair. Though the daughter is married she continues to be daughter and in the matter of dependency she also gets included. However, after being married it should have been shown as Nagarathna, w/o her husband.
18. The award granted by the learned Member in MVC No.4940/2012 is `2,08,000/-. Tribunal has considered the notional income at `4,500/- per month of Kempamma, the petitioner-injured in MVC No.4940/2012.
19. Notional income is considered at `4,500/- p.m. and the disability percentage is taken at 10% to the whole body. It is also seen that the injuries suffered by the petitioner are Malunited fracture both pubic rami left, well united fracture fibula neck and osteoarthritis changes in both SI joints and doctor measured disability to the left lower limb at 50% and to the whole body at 17% and the learned Member assessed disability at 10% to the whole body. No reasons are assigned to over rule the medical assessment for it is permissible that exorbitant assessment has to be reduced. Malunion of fracture does not become a regular bone and injury of neck, point will have its own shooting and later effects. Thus pre-accident period cannot continue in the post-accident period, way of life, lifting of articles, past work, climbing stairs, these are the facts where a person has difficulty and pinch of pain. Thus, percentage should have been considered at 17% as it is not done by learned Member it is done by this Court. Insofar as other heads are concerned they deserve to be maintained.
20. However, learned Member has considered income at `4,500/-. Under the circumstances, considering the injuries suffered by Kempamma, thus, she being a home maker or maintaining the family or domestic activities definitely she is disabled to an extent plus definitely she is bound to loose her income which is notional income. Thus, it is just and proper to identify the income of Kempamma at `4,800/- instead of `4,500/- and disability at 17% and not 10%.
`4,800x12x17/100x15 `1,46,880/-
Less: awarded by Tribunal `81,000/-
`65,880/-
======== 21. Insofar as both the cases arise out of a common incident, the amount of award is `7,75,112/- in MVC No.3847/2012 and in case of injury an amount of `2,08,000/- to Kempamma in MVC No.4940/2012 respectively together with interest @ 6% p.a. It is the insurance company that has preferred appeals and status of the dependents of Kempahanumaiah is just claimants- petitioners nothing more. But in the matters of compensation it is not measured with reference to what the petitioner has claimed or respondent has admitted, it is always measured and identified as just compensation wherein the term `just’ means right compensation. The quantum must justify the right of getting compensation but by prefixing the word `just’ to compensation it cannot become just compensation. Any lesser ingredients of quantum of money or just compensation may not bring back the course during life time of Kempahanumaiah but his absence cannot throw the dependents to road. In this connection for analyzing whether or when appeal by the claimants, more particularly in the appeal preferred by the insurance company or respondent is well within permissible limit. In this connection the following Judgments are referred:
(i) (2015)4 SCC 237 - JITENDRA KHIMSHANKAR TRIVEDI AND OTHERS VS KASAM DAUD KUMBHAR AND OTHERS (ii) 2013- ACJ-1253 -RESHMA KUMARI AND OTHERS VS MADAN MOHAN AND ANOTHER (iii) 2013 ACJ 1403 -RAJESH AND ORS. VS. RAJBIR SINGH AND OTHERS 22. Thus, the Tribunal committed error in assessing just compensation for the dependents and the injured as well. Learned counsel for appellant submits that he has preferred the appeal only on the question of liability and not on the quantum. In the context of facts and circumstances, the matter before the Court is adjudication of claim whether it is genuine or a fake one whether the claimants are entitled for compensation if so, how much is required as just compensation and then compensation in the facts and circumstances means should it be tightened with the digits chosen by appellant, definitely not. Just compensation is arrived at by assessing entire circumstances prevailing in the family and in case of death the vacuum life left by head of family was said to be more indulged carrying and maintaining the family. Thus, while reckoning just compensation if the amount is more than the quantum granted by Tribunal, besides claimants not preferring the appeal is no more an embargo for enhancing the compensation to the claimants.
23. Insofar as the other heads are concerned, it is just and proper to maintain the quantum in their present figure. Thus, the learned Member erred in granting a lesser compensation than the eligibility of the claimants and the same is rectified under this appeal. Under the circumstances insofar as setting aside the Judgment and award dated 02.01.2014 passed in MVC No.3847/2012 and MVC No.4940/2012 by MACT, Bengaluru, the appellant has not made out any ground and the appeals are liable to be rejected. However, the award amount stands enhanced.
The amount of compensation enhanced by this Court in MVC No.3847/2012 is `1,45,488/- and in MVC No.4940/2012 is `65,880/-.
Hence, the following:
ORDER 1. MFA No.3265/2014 and MFA No.3266/2014 are hereby dismissed.
2. No order as to costs.
3. The amount of compensation payable to the claimants by appellant is enhanced by `1,45,488/- in MVC No.3847/2012 and `65,880/- in MVC No.4940/2012.
4. Appellant –insurance company is directed to deposit the compensation amount including the enhanced compensation payable to the claimants together with interest @ 6% p.a. within four weeks from the date of receipt of certified copy of this order.
5. Appellant-insurance company is entitled for deduction in respect of the amount already deposited by it in both cases.
6. Amount in deposit shall be transmitted to the jurisdictional Tribunal forthwith.
Sd/- JUDGE SBN
Disclaimer: Above Judgment displayed here are taken straight from the court; Vakilsearch has no ownership interest in, reservation over, or other connection to them.
Title

M/S Icici Lombard General Insurance Company Limited vs Smt Bhagyamma W/O Late Kempahanumaiah And Others

Court

High Court Of Karnataka

JudgmentDate
31 July, 2017
Judges
  • N K Sudhindrarao M