Partly allowed

The Branch Manager, Oriental Insurance Co. Ltd. v. Parutareddi @ Parutappagouda S/O Appannagouda

Karnataka HC3 Nov 2017MFA/30062/2011

Case brief

AI extract

What is this about?

This judgment dismissed appeals by the Oriental Insurance Company to set aside a Motor Vehicles Act award. The High Court allowed appeals by deceased victims' families to enhance compensation from Rs.3,93,500/- to Rs.4,36,167/- by recalculating dependency loss based on an annual income of Rs.40,000/- and affirmed driver liability.

What did the court decide?

Compensation enhanced to Rs.4,36,167/-; Insurance Company directed to deposit amount with interest within 30 days; 40% deposit ordered in Nationalized Bank.

The Branch Manager, Oriental Insurance Co. Ltd. Vs… — Cheque Dishonour | Karnataka HC (2017)

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IN THE HIGH COURT OF KARNATAKA

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KALABURAGI BENCH

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DATED THIS THE 3^RD DAY OF NOVEMBER, 2017

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BEFORE

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THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO

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M.F.A. No.32200/2010 (MV) C/w

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M.F.A. Nos.32199/2010 (MV), 30059/2011 (MV) And 30062/2011(MV)

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M.F.A. No.32200/2010

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BETWEEN:

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Parutareddi @ Parutappagouda S/o Appannagouda Malipatil, Age : 58 Years, Occ : Agriculture work, R/o : Maradagi S.M., Tq : Jewargi, Dist : Gulbarga, Now R/o : Narasalagi, Tq : Basavana Bagewadi, Dist : Bijapur.

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Basamma W/o Parutareddi @ Parutappagouda Malipatil, Age: 53 Years, Occ : Household work, R/o : Maradagi S.M.,

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Tq: Jewargi, Dist: Gulbarga, Now R/o Narasalagi, Tq: Basavana Bagewadi, Dist : Bijapur.

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Shailshree W/o Bapugouda Malipatil, Age: 31 Years, Occ: Household work, R/o: Maradagi S.M., Tq: Jewargi, Dist: Gulbarga, Now R/o : Narasalagi, Tq: Basavana Bagewadi Dist: Bijapur.

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Ayyanagouda S/o Bapugouda Malipatil, Age: 03 Years, Occ: Nil, R/o: Maradagi S.M., Tq: Jewargi, Dist: Gulbarga, Now R/o : Narasalagi, Tq: Basavana Bagewadi, Dist : Bijapur, (Minor guardian Represented by natural mother Appellant No.3) ... APPELLANTS

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(By Sri C.L. Koujalagi, Advocate)

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AND:

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Prabhu S/o Guranna Edurumane, Age: 31 Years, Occ: Driver/Owner of the Vehicle, R/o: Maradagi, Tq: Jewargi, Dist: Gulbarga.

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The Branch Manager, Oriental Insurance Co. Ltd., S.S. Front Road, Bijapur-586101. …RESPONDENTS

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(By Smt. Preethi Patil Melkundi Adv. for R-2; Notice to R-1 is dispensed with V/o dtd: 13.10.2015)

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This miscellaneous first appeal is filed under Section 173(1) of MV Act, praying to modify the judgment and award dated 15.10.2010 passed in the MVC No.42/2007 on the file of the Court of Senior Civil Judge, Member of MACT No.IX at Basavan Bagewadi and allow this Appeal by enhancing the compensation amount to Rs.10,00,000/- as claimed by the Appellants before the Tribunal.

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M.F.A. No.32199/2010

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BETWEEN:

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Mallamma W/o Basanagouda Policepatil, Age: 33 Years, Occ; Household work, R/o: Maradagi S.M., Tq: Jewargi, Dist: Gulbarga, Now R/o: Yalwar, Tq: Basavana Bagewadi, Dist: Bijapur.

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Channamma W/o Iranagouda @ Irappagouda Police patil, Age: 63 Years, Occ: Household work, R/o: Maradagi S.M., Tq: Jewargi, Dist: Gulbarga, Now R/o: Yalwar, Tq: Basavana Bagewadi, Dist: Bijapur. ... APPELLANTS

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(By Sri C.L. Koujalagi, Advocate) AND:

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Prabhu S/o Guranna Edurumane, Age: 31 Years, Occ: Driver/Owner of the Vehicle, R/o: Maradagi, Tq: Jewargi, Dist: Gulbarga.

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The Branch Manager, Oriental Insurance Co. Ltd., S.S. Front Road, Bijapur-586101. …RESPONDENTS

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(By Smt. Preethi Patil Melkundi Adv. for R-2; Notice to R-1 is dispensed with V/o dtd: 13.08.2014)

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This miscellaneous first appeal is filed under Section 173(1) of MV Act, praying to modify the judgment and award dated 15.10.2010 passed in the MVC No.41/2007 on the file of the Court of

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Senior Civil Judge, Member of M.A.C.T. No.IX at Basavan Bagewadi and allow this appeal by enhancing the compensation amount to Rs.10,00,000/- as claimed by the appellants before the Tribunal.

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M.F.A.No.30059/2011

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BETWEEN:

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The Branch Manager, The Oriental Insurance Co. Ltd., S.S. Front Road, Bijapur, (Now Represented by its Divisional Manager, Sri M.A.Quayum) Divisional Office, Gulbarga.

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... APPELLANT

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(By Smt. Preethi Patil Melkundi Advocate)

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AND:

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Mallamma W/o Basanagouda Policepatil, Age: 34 Years, Occ: Household work, R/o: Maradagi S.M., Tq: Jewargi, Dist: Gulbarga, Now R/o: Yalwar, Tq: B. Bagewadi, Dist: Bijapur.

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Channamma W/o Iranagouda @ Irappagouda Police Patil,

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Age: 64 Years, Occ: Household work, R/o: Maradagi S.M., Tq: Jewargi, Dist: Gulbarga, Now R/o: Yalwar, Tq: Basavana Bagewadi, Dist: Bijapur.

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Prabhu S/o Guranna Edurumane, Age: 28 Years, Occ: Driver/Owner of the Vehicle, R/o: Maradagi, Tq: Jewargi, Dist: Gulbarga. …RESPONDENTS

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(by Sri. S.S. Mamadapur, Advocate appearing for Sri.A.R.Kalyanashetty, Advocate for R-1 & R-2; Notice to R-3 is held sufficient V/o dtd: 19.07.2013)

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This miscellaneous first appeal is filed under Section 173(1) of MV Act, praying to call for the records and allow the above appeal by setting aside the impugned Judgment and Award dtd: 15.10.2010 in MVC No.41/2007 (Old No.1097/2007) passed by the Senior Civil Judge and Member, M.A.C.T. IX at Basavana Bagewadi.

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MFA.NO.*30062/2011

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BETWEEN:

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The Branch Manager, The Oriental Insurance Co. Ltd.,

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Corrected vide Chamber order dated 26.10.2018

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S.S. Front Road, Bijapur (Now Represented by its Divisional Manager, Sri.M.A.Quayum) Divisional Office, Gulbarga. (By Smt. Preeti Patil Melkundi, Advocate)

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... APPELLANT

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AND:

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Parutareddi @ Parutappagouda S/o Appannagouda Malipatil, Age: 59 Years, Occ: Agriculture, R/o: Maradagi S.M., Tq: Jewargi, Dist: Gulbarga, Now R/o: Narasalagi, Tq: B.Bagewadi, Dist: Bijapur.

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Basamma W/o Parutareddi @ Parutappagouda Malipatil, Age: 54 Years, Occ: Household work, R/o: Maradagi S.M., Tq: Jewargi, Dist: Gulbarga, Now R/o: Narasalagi, Tq: B.Bagewadi, Dist: Bijapur.

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Shailashree W/o Bapugouda Malipatil, Age: 31 Years, Occ: Household work, R/o: Maradagi S.M., Tq: Jewargi, Dist: Gulbarga, Now R/o: Narasalagi,

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Tq: B.Bagewadi, Dist: Bijapur. 4. Ayyanagouda S/o Bapugouda Malipatil, Age: 07 Years, Occ: Nil, R/o: Maradagi S.M., Tq: Jewargi, Dist: Gulbarga, Now R/o: Narasalagi, Tq: B.Bagewadi, Dist: Bijapur. Minor guardian represented by Natural Mother respondent No.3.

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Prabhu S/o Guranna Edurumane, Age: 32 Years, Occ: Driver/Owner of the vehicle, R/o: Maradagi, Tq: Jewargi, Dist: Gulbarga.

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…RESPONDENTS

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(by Sri S.S.Mamadapur, Advocate for R-1 to R-3 ; Respondent No.4 is minor rept. by R-3 Notice to R-5 is held sufficient v/o dtd: 07.08.2014)

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This miscellaneous first appeal is filed under Section 173(1) of MV Act praying to call for the records and allow the above appeal by setting aside the impugned judgment and award dtd: 15.10.2010 in MVC.No.42/2007 (Old No.1098/2007) passed by the Senior Civil Judge and Member, MACT.IX at Basavana Bagewadi.

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These appeals coming on for dictation this day, the court delivered the following:

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JUDGMENT

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All these appeals are directed against the judgment and award passed in MVC Nos.41/2007 and 42/2007 dated 15.10.2010 by Senior Civil Judge, M.A.C.T. No.IX at Basavana Bagewadi, wherein the petitions filed by the petitioners under Section 163(A) of Motor Vehicles Act came to be allowed in part.

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Both the claim petitions discussed by a common judgment as they are related to the same accident dated 16.03.2017. The passengers who lost their lives because of the injuries sustained in the said accident are one Basanagouda and Bapugouda and the respondents are Prabhu and the Branch Manager, Oriental Insurance Company Ltd.

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3. The MVC No.41/2007 is filed by mother

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and wife of Basanagouda and MVC No.42/2007 is

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filed by the parents, wife and son of deceased Bapugouda. These two appeals are being adjudicated along with two appeals.

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The MFA Nos.32200/2010 is preferred by

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petitioners in MVC No.42/2007, MFA

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No.32199/2010 is preferred by petitioners in MVC No.41/2007 and MFA Nos.30059/2011 and 30062/2011 are preferred by insurance company.

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The brief facts of the case are as under: -

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That on 16.03.2007 Basanagouda S/o Iranagouda @ Irappagouda Policepatil and Bapugouda S/o Parutareddy @ Parutappagouda Malipatil were travelling in a Auto rickshaw bearing registration

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No.KA-32/A-4643 driven by one Prabhu who incidentally is said to be the owner of the vehicle as well. But his driving was in a high velocity, rash and negligent manner and when vehicle came near Hire Mobhal cross on Jewargi-Shahapur road at 11 p.m. it dashed against the unidentified lorry which was coming from the opposite direction. Because of the accident Basanagouda and Bapugouda were sustained certain injuries and they succumbed to them as well.

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The insurance company in its objections contended that Basanagouda was driving the vehicle. He was not a holder of valid driving license and moreover, the owner had allowed the passenger to drive the vehicle.

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The accident is not disputed and deaths

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because of the injuries are also not disputed. But the question is that the learned counsel for the insurance company Smt. Preeti Patil would submit that Prabu was not driving the vehicle but deceased Basanagouda was driving the vehicle at the time of accident. She would further submit that in order to pack up the lapses, the complainant engineers the management.

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She would further submit that it was

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because of negligence of the auto driver who dashed the lorry that was there, whose registration number is also not known. The learned counsel would further submit that the petitions were filed under Section 163(A) of MV Act. The income of deceased claimed by the petitioners were at Rs.10,000/- per

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month. Thus, it has to fall at threshold stage. Learned counsel for the insurance company would further submit that documentary evidence speaks about involvement of the vehicle and the driver.

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The criminal case is registered against unidentified or unknown lorry. It is necessary to mention that no information of the case after registering the FIR and submitting it to the Magistrate. Thus, case registered in crime No.45/2007 by Jewargi Police Inspector on 17.03.2007 for the offences punishable under Sections 279, 338 and 304 of IPC R/w Section 187 of MV Act did not see further light. However, on perusal of records it is seen that Senior Civil Judge Basavana Bagewadi has received the original FIR. As the main and bone contention between the

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parties is regarding the person who drove the vehicle and which vehicle was said to be blamed. This according to the stand of the insurance company that the owner of the auto was not driving the vehicle on that day, he has over reached himself by handing over the vehicle to be run by passenger Basanagouda. On perusing FIR it is came to know that Prabhu the owner of the auto states that at the time of accident he was driving the auto. However, there were two persons in passengers seat. Thus, Prabhu the owner of the vehicle who is the complainant voluntarily states that he was driving the auto rickshaw and when the destination is of 2 km. away, passenger Basanagouda requests for driving vehicle and Prabhu handed over the vehicle. However, Prabhu stated that the lorry, which is

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unidentified, came in a very high speed and caused the accident. Thus, he complaints. On the basis of the complaint lodged by him police authorities have registered a criminal case in crime No.45/2007 for the offences punishable under Sections 279, 338, 304 of IPC R/w Section 187 of MV Act. Regard being had to the fact that there is a conflict of stands between the insurance company and the claimants. The Tribunal came to the conclusion that the auto driver was the person who was negligent in driving the vehicle.

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The data available before the learned Tribunal in MVC Nos.41/2007 and 42/2007 (MFA Nos.32199/2010 and 32200/2010) are that the income of the deceased claimed at Rs.10,000/- per month. Later it was got amended to Rs.40,000/-

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per annum. Both deceased are aged about 35 years.

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It has to be noticed that the claimants

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later sought for amendment of the petitions under Section 166 of MV Act into Section 163(A) of MV Act.

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Thus, material requirement to draw the

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benefit of Section 163(A) of MV Act is not meant for those whose annual income is beyond Rs.40,000/-.

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The rational for calculating the monthly income by the learned Member is as under :

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MVC No.41/2007

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Sl.No.	Nature of the heads	Compensation
1	Loss of Dependency	Rs.3,84,000/-
2	Funeralexpenses	Rs. 2,000/-
3	Loss of consortium	Rs. 5,000/-
4	Loss of estate	Rs. 2,500/-
	Total.	Rs.3,93,500/-

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MVC No.42/2007

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Sl.No.	Nature of the heads	Compensation
1	Loss of Dependency	Rs.3,84,000/-
2	Funeral expenses	Rs. 2,000/-
3	Loss of consortium	Rs. 5,000/-
4	Loss ofestate	Rs. 2,500/-
	Total.	Rs.3,93,500/-

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The income of the deceased are taken at Rs.36,000/- per annum and applicable multiplier is 16 and 1/3^rd is deducted towards loss of dependency. At this juncture, it is to be remembered that the income has to be considered at Rs.40,000/- per annum while adjudicating petition under Section 163(A) of MV Act. In so far as petition under Section 166 of MV Act is considered no such rules.

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The tested principle of benefit of future prospects cannot be denied to a person who makes application under Section 163(A) of MV Act. Further, the material principle which is recognized by the Hon’ble Apex Court that the compensation due mean the just compensation.

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Wherein, the annual amount of

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compensation even not claimed by the petitioner or even he has not preferred appeal that has to be quantified by the Tribunal or Courts.

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Thus, it cannot be concluded that a

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person be estopped from being granted a benefit which incidentally is more than what he/she has claimed. It is not a matter of calculation, the matter is whether it is just. Thus, in the above

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circumstances in both petitions Rs.3,93,500/- is granted and the amount of Rs.3,84,000/- is calculated on the head of loss of dependency. In so far as liability is concerned the contention of the insurance company is that the owner of the auto Prabhu was not driving the vehicle cannot be accepted. Hence, not accepted.

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Incidentally it is registered with no

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address of the driver or the owner of the lorry. Thus, in the column No.7 details of known/suspected/unknown accused with full particulars is as under :- The driver name and lorry no is not kwon.

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Under these circumstances, there are no

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details available as to the further proceedings if any

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regarding taking cognizance under Section 190 of the Code of Criminal Procedure. At this juncture, the Tribunal or the Court cannot be expected to write another theory stating that auto driver was the owner or when the clarity of facts are there it is not necessary to complicate them and to make it the un-understood. Learned counsel for appellants/claimants would submit that the income of the deceased to be considered at Rs.40,000/- per annum. In the circumstances, the income of the deceased are considered at Rs.40,000/-per annum. Hence, the compensation calculated is as under :

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Rs.40,000/x 16 = Rs.6,40,000/Rs.2,13,333/- (1/3^rd ) = Rs.4,26,667/-

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Under such event the compensation on the other heads shall not be disturbed. Thus, the

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petitioners in both the petitions are entitled for total compensation at Rs.4,36,167/-.

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The MFA Nos.32200/2010 and 32199/2010 are hereby partly allowed and MFA Nos.30059/2011 and 30062/2011 are hereby dismissed.

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The amount in deposit to be transmitted to the Tribunal. Further, insurance company is hereby directed to deposit the compensation with interest as stated therein within 30 days from the receipt of the certified copy of the order.

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The compensation amount deposited in respect of appellant *Nos.1 and 2 in MFA No.32199/2010 (MVC No.*41/2007) is concerned, it is modified as 40% of compensation amount has to be deposit in any Nationalized Bank and remaining

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Corrected vide Court order dated 20.09.2018

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60% of compensation amount is ordered to be

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released in favour of the appellant Nos.1 to 3.

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Sd/-

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JUDGE

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RSP

The Branch Manager, Oriental Insurance Co. Ltd. v. Parutareddi @ Parutappagouda S/O Appannagouda

Case brief

What is this about?

What did the court decide?

The Branch Manager, Oriental Insurance Co. Ltd. v. Parutareddi @ Parutappagouda S/O Appannagouda

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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