IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF DECEMBER, 2017 BEFORE THE HON'BLE MR. JUSTICE B.SREENIVASE GOWDA MFA NO.7813/2012 (MV) BETWEEN:
M/S THE ORIENTAL INSURANCE COMPANY LIMITED NO.7, UTHAMAR GANDHI SOIL, 2ND FLOOR, ROSY TOWER, NAGAMBAKKAM,CHENNAI REP BY DIVISIONAL MANAGER THE ORIENTAL INSURANCE CO.LTD. SARASWATHIPURAM, MYSORE HEREIN APPEAL REPRESENTED BY:
M/S THE ORIENTAL INSURANCE CO. LTD REGIONAL OFFICE, LEO COMPLEX, RESIDENCY ROAD BANGALORE-01 REP BY ITS REIGONAL MANAGER (BY SRI K SURESH, ADV.) AND 1. SRI THIMMANAYAKA S/O ALTE SRI. GIRIYA NAYAKA AGED ABOUT 62 YEARS R/AT GALIGEKERE VILLAGE HOSA AGRAHARA HOBLI K.R.NAGAR TALUK ... APPELLANT 2. SRI. MADHU K.T.
S/O SRI. THIMMAPPA @ RAJANNA AGED ABOUT 35 YEARS B. KADEHALLIKOPPALU GAVEHALLI POST HASSAN TOWN 3. SRI. CHARANKUMAR S/O SRI. H.H. GOVINDARAJ AGED ABOUT 45 YEARS HOUSING BOARD, 2ND STAGE, 5TH CROSS, HASSAN (BY SRI CHETHAN B, ADV. FOR R2 & R3 R1 SERVED) ... RESPONDENTS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:8.2.2012 PASSED IN MVC NO.18/2007 ON THE FILE OF CIVIL JUDGE(SR.DN) & JMFC & MACT, K.R.NAGAR, AWARDING A COMPENSATION OF RS.3,32,000/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the insurer of Tata sumo vehicle challenging the judgment and award passed by the Tribunal on the ground of negligence, liability and quantum of compensation awarded by the Tribunal.
2. Heard the learned counsel appearing for the respective parties and perused the judgment and award of the Tribunal including the records.
3. For the sake of convenience, the parties are referred to as they are referred to in the claim petition before the Tribunal.
4. As there is no dispute regarding death of one Thimmamma in a road traffic accident occurred on 15.9.2006 by involvement of an Auto bearing Registration No.KA-12-3233 and a Tata Sumo bearing Registration No.KA-13-M-1125, the points that arise for consideration in the appeal are:
a) Whether the finding of the Tribunal on neglgience in holding that the accident occurred solely due to rash and negligent driving of the Tata Sumo by its driver, is just and proper?
b) Whether the Tribunal was justified in fastening liability on the insurer of the Tata Sumo?
c) Whether the quantum of compensation awarded by the Tribunal is just and reasonable or does it call for reduction?
5. Learned counsel for the insurer of the Tata Sumo submits that though the driver of the Tata sumo was driving his vehicle on the left side of the road slowly and cautiously, the accident occurred due to rash and negligent driving of an auto by its driver. The Tribunal has committed an error in holding that the accident occurred solely due to rash and negligent driving of the Tata Sumo by its driver and consequently has fastened the liability on the insurer of the Tata sumo. Regarding quantum, he submits that quantum of compensation awarded by the Tribunal is on the higher side and seeks for reduction of compensation. Therefore, he prays for allowing the appeal.
6. Sri.Chethan B, learned counsel appearing for respondent Nos.2 and 3, the driver and owner of the offending Tata sumo submits that the vehicle was insured with the appellant and policy was in force as on the date of accident and in the event of Court conforming the finding of the Tribunal on the ground of negligence, the appellant-insurer is liable to indemnify the owner and pay compensation to the claimant.
7. Police based on the information, registered the FIR against the driver of the Tata Sumo and after investigating the matter have filed charge sheet against the driver of Tata sumo. The insurer of Tata Sumo, who contends that the accident occurred due to rash and negligent driving of the auto by its driver, did not choose to examine either the driver of Tata sumo or any eye witness to the accident. The Tribunal based on the police records, such as FIR, sketch, mahazar, PM report was justified in holding that the accident occurred solely due to rash and negligent driving of the Tata sumo by its driver.
8. I have carefully gone through the said finding of the Tribunal on negligence and do not find any illegality or infirmity warranting interference of this Court. Accordingly, the finding of the Tribunal on negligence is confirmed. Point No.1 is answered accordingly.
Regarding liability:
9. The offending Tata sumo was insured with the appellant-insurance company and policy was in force as on the date of accident. In view of confirming the finding of the Tribunal on negligence holding that the accident occurred due to rash and negligent driving of the tata sumo by its driver, the Tribunal was justified in fastening the liability on the appellant-insurer by directing the appellant to pay compensation to the claimants. Point No.2 is answered accordingly.
Regarding quantum:
10. It is a case of death of one Thimmamma. The claim petition is filed by her husband. The claimant in support of his contention that his deceased-wife by selling vegetables was earning Rs.4,000/- per month has examined himself as PW-1.
The learned counsel for the insurer submits that the Tribunal should have applied the multiplier of ‘9’ based on the age of the claimant, who was 60 years old at the time of accident as per his age mentioned in the charge sheet instead of applying ‘13’ based on the age of deceased who was 50 years old at the time of accident.
There is no merit in the submission of the learned counsel for the insurer. As per the decision of the Apex Court in the case of National Insurance Co. Ltd vs. Pranay Sethi and others, multiplier has to be applied based on the age of deceased. Accordingly, multiplier of ‘13’ applied by the Tribunal is just and proper. Further, the Tribunal was justified in deducting 1/3rd of the income of the deceased towards her personal expenses and taking 2/3rd of her income as contribution to the family. The income of the deceased assessed by the Tribunal at Rs.3,000/- per month cannot be said that it is on the higher side. Therefore, the compensation of Rs.3,12,000/- awarded by the Tribunal towards ‘loss of dependency’ is just and proper and does not call for reduction.
Further, the Tribunal ought to have awarded Rs.40,000/- under the head ‘loss of consortium’, Rs.15,000/- under the head ‘loss of estate’ and Rs.15,000/- under the head ‘funeral expenses’. Whereas, it has awarded Rs.10,000/- under the head ‘loss of consortium’ and Rs.10,000/- under the head ‘funeral expenses’ which are on the lower side and therefore, there is scope for reduction even under the above heads.
11. As the compensation awarded by the Tribunal is found to be less than just entitlement, there is no scope of reduction of compensation awarded by the Tribunal. Point No.3 is answered accordingly.
12. Accordingly, the appeal filed by the insurance company is dismissed in its entirety.
13. The amount in deposit is ordered to be transferred to the Tribunal for disbursement as per the awarad of the Tribunal.
No order as to costs.
Sd/- JUDGE DM