IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF MARCH, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE H.T. NARENDRA PRASAD M.F.A. No.9518 OF 2015 (MV) C/W.
M.F.A. No.7646 OF 2015 (MV) M.F.A. No.9518 OF 2015:
BETWEEN:
1. SRI RAMEGOWDA @ RAMAKRISHNEGOWDA, S/O. HUCHEGOWDA, AGED ABOUT 58 YEARS, 2. SMT. SHANTHAMMA W/O. RAMEGOWDA @ RAMAKRISHNEGOWDA, AGED ABOUT 52 YEARS, BOTH ARE RESIDING AT BELASINDA VILLAGE, KASABA HOBLI, CHANNARAYAPATNA TALUK, HASSAN DISTRICT. ... APPELLANTS (BY SRI RAJARAM SOORYAMBAIL, ADVOCATE) AND:
1. SRI SATHISH S/O. NANJUNDEGOWDA, AGED ABOUT 37 YEARS, R/AT GOORAMARANAHALLI VILLAGE, KASABA HOBLI, CHANNARAYAPATNA TALUK, HASSAN DISTRICT.
2. THE MANAGER, ORIENTAL INSURANCE CO. LTD., JAYADEVA HOSTEL BUILDING, B.H. ROAD, TIPTUR TOWN, TIPTUR TALUK, TUMAKURU DISTRICT. ... RESPONDENTS (BY SRI K. SURESH, ADVOCATE FOR RESPONDENT NO.2; RESPONDENT NO.1 – NOTICE DISPENSED WITH V/O DATED 01.04.2016) THIS M.F.A. IS FILED U/S 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 18.06.2015 PASSED IN M.V.C. NO.2004 OF 2013 ON THE FILE OF THE SENIOR CIVIL JUDGE, CHANNARAYAPATNA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
M.F.A. No.7646 OF 2015: BETWEEN:
THE MANAGER, THE ORIENTAL INSURANCE CO. LTD., JAYADEVA HOSTEL BUILDING, B.H. ROAD, TIPTUR TOWN AND TALUK, TUMKUR DISTRICT.
LOCAL OFFICE AT MANAGER THE ORIENTAL INSURANCE CO. LTD., SUBHASH SQUARE, HASSAN.
NOW REPRESENTED BY – M/S. THE ORIENTAL INSURANCE CO. LTD, REGIONAL OFFICE, 2ND FLOOR, SUMANGALA COMPLEX, LAMINGTON ROAD, HUBBALLI – 580 020, REPRESENTED BY ITS REGIONAL MANAGER. ... APPELLANT (BY SRI SURESH K., ADVOCATE) AND:
1. SRI RAMEGOWDA @ RAMAKRISHNEGOWDA S/O. SRI HUCHEGOWDA, AGED ABOUT 58 YEARS, 2. SMT. SHANTHAMMA S/O. SRI RAMEGOWDA @ RAMAKRISHNEGOWDA AGED ABOUT 52 YEARS, 3. SRI SATHISH S/O. SRI NANJUNDEGOWDA, AGED ABOUT 35 YEARS, RESIDING AT GOORAMAARANAHALLI VILLAGE, KASABA HOBLI, CHANNARAYAPATNA TALUK, HASSAN DISTRICT – 573 116. ... RESPONDENTS (BY SRI RAJARAM SOORYAMBAIL, ADVOCATE FOR RESPONDENTS NO.1 TO 3) THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 18.6.2015 PASSED IN M.V.C. NO.2004 OF 2013 ON THE FILE OF THE SENIOR CIVIL JUDGE, CHANNARAYAPATNA, AWARDING COMPENSATION OF RS.4,98,000/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT Though these appeals are listed for admission, with the consent of learned counsel on both sides, they are heard finally.
2. M.F.A. No.9518 of 2015 is filed by the claimants, while M.F.A. No.7646 of 2015 is filed by the insurer, assailing the judgment and award dated 18.06.2015 in M.V.C. No.2004 of 2013 passed by the Senior Civil Judge, M.A.C.T. at Channarayapatna (hereinafter referred to as ‘Tribunal, for the sake of brevity.
3. For the sake of convenience, the parties shall be referred to in terms of their status before the Tribunal.
4. The claimants filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation of Rs.20,00,000/- on account of the death of their son Dilip Kumar in a road traffic accident that occurred on 10.05.2013. According to the claimants, on the said date at about 3.45 p.m. claimant’s son, Dilip Kumar was proceeding on Discovery motor cycle bearing Registration No.KA-13-EA-7740 towards Channarayapatna. When he was near the market, the rider of a new Star City un-numbered motor cycle came in a high speed, rash and negligent manner and dashed against the motor cycle of Dilip Kumar from the hind side. As a result, Dilip Kumar sustained grievous injuries and succumbed to the injuries on the spot. Channarayapatna Town Police registered a case against the driver of the offending vehicle in Crime No.190 of 2013. Contending that they had lost their son and that the rider, owner and insurer of the offending vehicle was responsible for the same, they filed the claim petition seeking compensation on various heads.
5. In response to the claim petition, the first respondent-owner of the vehicle filed written statement denying and disputing the averments in the claim petition and contending that there was no rash and negligence on the part of the rider of the offending vehicle and the deceased was responsible for the cause of the accident and he further averred that the second respondent had issued a policy valid on the date of the accident, and therefore, sought rejection of the claim petition.
6. The second respondent – Insurance Company appeared and filed its written statement disputing the averments made in the claim petition and contending that there was no rashness and negligence on the part of the rider of the offending vehicle and that the deceased was responsible for the cause of the accident. That the rider of the offending vehicle was not holding a valid and effective driving licence and there was difference in the name of the father of first respondent. Hence, second respondent sought for rejection of the claim petition.
7. On the basis of the rival pleadings, the Tribunal raised the following issues for its consideration:
1. Whether the claimants prove that Sri.Dileepkumar has sustained grievous injuries in R.T.A. that occurred on 10.05.2013 at about 3.45 p.m., while proceeding on motor cycle bearing Reg. No.KA-13-EA-7740 near Hemavathi office met with an accident due to rash and negligent riding of new unnumbered motor cycle by its rider and succumbed to the injuries?
2. Whether the claimants are entitled for compensation as claimed? If so, to what amount and from whom?
3. What order or award?
8. In support of their case, the claimants examined two witnesses, P.W.1, being the father of the deceased and one Gangadhar as P.W.2. They produced nine documents, which were marked as Exs.P-1 to P-9. The respondents did not let in any evidence, except getting a copy of the policy marked as Ex.R-1. On the basis of the said evidence, the trial Court answered issued No.1 in the affirmative, issue No.2 partly in the affirmative and allowed the claim petition in part with cost, granting compensation of Rs.4,98,000/- with interest at the rate of 6% p.a. from the date of claim petition till deposit and directed the insurance company to indemnify the insured first respondent. Being aggrieved by the judgment and awarded of the Tribunal, the insurance company has preferred M.F.A. No.7646 of 2015. Not being satisfied with the quantum of compensation awarded by the Tribunal, the claimants have preferred M.F.A. No.9518 of 2015.
9. We have heard learned counsel for the insurance company and learned counsel for the claimants and perused the material on record and the original record.
10. Learned counsel for the Insurance Company contended that the vehicle, in respect of which the policy was issued, was not at all involved in the accident. That the complaint also does not refer to such a vehicle. That the deceased died on account of his own negligence. Even then the insured vehicle has been implicated and Crime No.190 of 2013 was filed against the rider of the insured vehicle.
11. He next contended that even though insurance policy has been issued to the vehicle, if the vehicle has not been registered and does not have a registration number, there is no liability on the part of the insurer to indemnify the insured. Drawing our attention to the exhibits produced by the respondent - claimants, he contended that the Tribunal was not right in directing the insurance company to satisfy the award. He, therefore, submitted that the appeal filed by the insurance company may be allowed and direction may be issued if at all to the insured to satisfy the award.
12. Per contra, learned counsel for the claimants drew our attention to the written statement filed by the insurer and contended that there is a specific averment to the effect that the policy has been issued in respect of the vehicle by noting the Engine number and the Chasis number even though the said vehicle had not yet been registered. When a policy has been issued in respect of the said vehicle, it is the duty of the insurer to indemnify the insured when the said vehicle has been involved in the accident. He contended that the Tribunal has found on the evidence on record that the insured vehicle was involved in the accident as the rider of the said vehicle had driven the same in a rash and negligent manner. Therefore the respondent cannot now contend that as the insurance policy is issued to an unregistered vehicle insurer cannot be made liable under the policy. He submitted that there is no merit in the appeal filed by the insurance company.
dependency, loss of love and affection as well as on other heads. He contended that the Tribunal was not right in applying ‘13’ multiplier by considering the age of the mother of the deceased, whereas the multiplier of ‘17’ has to be applied having regard to the age of the deceased. He, further, contended that no amount towards future prospects has been added to the monthly salary of the deceased. As per the recent judgment of the Hon’ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and Others, reported in (2017)16 SCC 680 50% of the monthly salary of the deceased must be added towards future prospects. He also contended that the Tribunal was not right in assessing the notional income of the deceased at Rs.6,000/- p.m. That even before the Lok Adalath Rs.8,000/- is assessed as the notional monthly income. Hence, the same may be considered and 40% of the monthly income may be added towards future prospects. Learned counsel for the claimants submitted that the compensation awarded by the Tribunal may be enhanced by allowing the appeal filed by the respondents.
14. Having heard learned counsel for the respective parties, the following points would arise for our consideration:
i. Whether the appellant – Insurance Company has established that the offending vehicle was not involved in the accident?
ii. Whether the offending vehicle which had not yet been registered, but in respect of which a policy was issued would make the insurer liable to indemnify the insured?
iii. Whether the claimants are entitled to enhanced compensation?
iv. What order?
15. It is the case of the claimants that on 10.05.2013 at about 3.45 p.m. Dilip Kumar was proceeding on Discovery motor cycle bearing No.KA- 13/EA-7740 towards Channarayapatna and at that time the rider of a new Star City motor cycle which had not yet been registered came in a rash and negligent manner and dashed against the motor cycle which was being driven by Dilip Kumar. As a result, Dilip Kumar sustained grievous injuries and died on the spot.
16. The contention of learned counsel for the insurance Company is that the accident did not occur on account of rash and negligent riding by the rider of the Star City motor cycle, which had not yet been registered. However, the contention of the claimants is that Dilip Kumar died on account of the rash and negligent driving of the said motor cycle by its rider. In fact, on perusal of the evidence on record, it is noted that Crime No.190 of 2013 was registered against the rider of the motor cycle which was unnumbered. In this regard the claimants have produced Ex.P-1 charge sheet, Ex.P-2 copy of the F.I.R., Ex.P-3 complaint, Ex.P-4 spot mahazar, Ex.P-5 sketch, Ex.P-6 seizure mahazar, Ex.P-7 inquest report and Ex.P-8 P.M. report and Ex.P-9 I.M.V. report. On consideration of the said documentary evidence, in light of the oral evidence let in by the claimants, the Tribunal has come to the conclusion that it was indeed the rider of the unnumbered motor cycle who hit Dilip Kumar, who was riding motor cycle bearing No.KA 13-EA-7740 on the fateful day from behind. As a result of which he died on account of the grievous injuries sustained by him in the accident.
17. It is also noted that while cross-examining P.W.1, nothing incriminating has been elicited by the insurance company. More significantly, in order to deny the case of the claimants, no oral or documentary evidence has been let in by the insurance company. In the circumstances, the Tribunal has found that the rider of the unnumbered motor cycle had indeed caused the accident resulting in the death of Dilip Kumar. We do not find any reason to depart from the findings arrived at by the Tribunal in that regard. Hence, point No.1 is answered against the insurance company and in favour of the claimants.
18. The second point for consideration is, as to whether, the insurance company could avoid indemnifying the insured merely because the vehicle in respect of which a policy has been issued was not registered on the date of the accident. The fact that the offending vehicle was insured by the insurance company has been admitted by the insurance company even in its written statement. The only contention is that what was insured was the vehicle bearing Engine and Chassis Nos.D1711649 and C-19316 respectively but it was not registered. The period of insurance is from 12.30 p.m. on 01.04.2013 to midnight of 31.03.2014. The accident occurred on 10.05.2013. Merely because the said vehicle did not have a registration number, cannot be a ground for avoiding the liability by the insurance company. The fact that Ex.R-1 proves that a policy was issued in respect of the said vehicle, wherein a particular Engine and chassis number was noted in the policy is sufficient to hold that the insured must be indemnified by the insurer. Subsequently the said vehicle may have been registered. But the fact that on the date of the accident, it did not bear Registration number is not a reason to avoid liability by the insurance company. In the circumstances, we answer point No.2 also against the insurance company and in favour of the claimants.
19. The third point which arises for our consideration in this appeal is with regard to enhancement of compensation sought by the claimants. The contentions have been noted above. The Tribunal has awarded compensation as under:
1. Loss of Dependency Rs. 4,68,000.00 2. Loss of Love and Affection Rs. 20,000.00 3. Transportation, Obsequies & Funeral expenses Rs. 10,000.00 Total Rs. 4,98,000.00 20. The contention of learned counsel for the claimants is regarding wrong application of the multiplier and meager assessment of the notional income.
21. Having regard to the fact that the accident occurred on 10.05.2013 and the deceased was working as a mason, which is a skilled employment, the notional monthly income of the deceased is assessed at Rs.8,000/- in the absence of any concrete evidence. Having regard to the latest judgment of the Hon’ble Supreme Court in the case of Pranay Sethi, 40% of the said monthly income is added towards future prospects in which event it would be Rs.8,000/- + Rs.3,200/- = Rs.11,200/-. Since the deceased was a bachelor, 50% of the said amount has to be deducted towards personal expenses in which event the amount will be Rs.5,600/-. The deceased was aged 26 years. The proper multiplier to be applied is ‘17’, bearing in mind the judgment of the Hon’ble Supreme Court in the case of Sarla Verma (Smt.) and Others vs. Delhi Transport Corporation and Another reported in (2009)6 SCC 121. Thus, the loss of dependency would be Rs.5,600/- x 12 x 17 = Rs.11,42,400/-.
22. Having regard to another recent judgment of the Hon’ble Supreme Court in the case of Magma General Insurance Company Limited v. Nanu Ram and Others, reported in 2018 ACJ 2782, a sum of Rs.40,000/- each has to be awarded to the claimants towards loss of filial consortium or loss of love and affection to the parents of the deceased. Further, a sum of Rs.15,000/- is awarded towards loss of estate and a sum of Rs.15,000/- is awarded towards transportation of the dead body and funeral expenses. Thus, the total compensation now assessed is Rs.12,52,400/- as under :
The enhanced compensation shall carry interest at the rate of 6% p.a. from the date of the claim petition till realization.
23. Thus the enhanced compensation is Rs.7,54,400/-. The enhanced compensation along with the proportionate interest is apportioned equally between the parents. 75% of the enhanced compensation shall be deposited in any post office deposit or Nationalised Bank for an initial period of five years, preferably for ten years. They shall be entitled to draw periodical interest of the said deposit. The balance compensation shall be released to the claimants after due identification.
24. In the result, the appeal filed by the insurance company is dismissed. The amount in deposit to be transmitted to the Tribunal.
25. The appeal filed by the claimants is allowed in part. The insurance company to deposit the enhanced compensation within a period of six weeks from the date of receipt of certified copy of this judgment. Parties to bear their respective costs.
Sd/- JUDGE Sd/- JUDGE hnm