Partly allowed

National Insurance Co. Ltd., v. Mr.Sharanappa S/O Rayappa Jadav

Karnataka HC19 Nov 2018MFA/100596/2016

Case brief

AI extract

What is this about?

High Court of Karnataka addressed appeals concerning a motor vehicle accident compensation award. The Court rejected the insurer's plea of false implication regarding the vehicle and enhanced the compensation awarded to the claimants, directing specific disbursement portions for the minor child.

What did the court decide?

Insurer's appeal dismissed. Claimants' cross-objection partly allowed; compensation enhanced to Rs.12,12,400/- with interest.

National Insurance Co. Ltd., Vs Mr.Sharanappa S/O… — Motor Accident Claims | Karnataka HC (2018)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 19^TH DAY OF NOVEMBER 2018

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PRESENT

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THE HON’BLE MRS. JUSTICE B.V. NAGARATHNA

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AND

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THE HON’BLE MR. JUSTICE BELLUNKE A.S.

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M.F.A.No.100596/2016 c/w M.F.A.Crob.No.100127/2016 (MV)

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M.F.A. NO.100596 OF 2016

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BETWEEN

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NATIONAL INSURANCE CO. LTD., 1ST FLOOR, RENUKA ARCADE, STATION ROAD, GADAG, HEREIN REPRESENTED BY ITS DEPUTY MANAGER, 2ND FLOOR, ARIHANT PLAZA, KUSUGAL ROAD, HUBBALLI-580023.

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..... APPELLANT

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(BY SRI C V ANGADI, ADV.)

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AND

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MR.SHARANAPPA S/O RAYAPPA JADAV, AGE 40 YEARS, OCC: AGRICULTURE & COOLIE, R/O: KONGAWAD, TQ: NAVALGUND, NOW AT TABAKAD HONNALLI, TQ: KALAGHATAGI.

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KUMARI ISHIVAKKA D/O SHARANAPPA JADAV, AGE: 15 YEARS, OCC: STUDENT,

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R/O: KONGAWAD, TQ: NAVALGUND, NOW AT TOBAKAD HONNALLI, TQ: KALAGHATAGI.

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(SINCE MINOR REPRESENTED BY HER NATURAL FATHER I.E. RESPONDENT.1)

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MR.ARJUNAPPA S/O HANUMANTAPPA BABAR @ ARER, AGE: MAJOR, OCC: AGRICULTURE, R/O: KONGAWAD, TQ: NAVALGUND, DIST: DHARWAD, (OWNER OF TRACTOR TRAILER NO.KA 25 /TA 1547 & KA 25/TA 1548)

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..... RESPONDENTS

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(BY SRI C.R. HIREMATH & SRI J S SHETTY, ADVs. FOR R1 R-2 IS MINOR REP. BY R-1; R-3 SERVED)

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THIS MFA FILED U/SEC.173(1) OF MV ACT 1988, AGAINST JUDGMENT AND AWARD DTD:07.11.2015, PASSED IN MVC.NO.782/2011 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, HUBBALLI (ITINARY COURT AT KALGHATAGI), AWARDING THE COMPENSATION OF RS.6,87,000/- WITH INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.

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MFA.CROB NO 100127 OF 2016

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BETWEEN

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SHARANAPPA S/O RAYAPPA JADAV, AGE: 36 YEARS, OCC:AGRICULTURE AND COOLE, R/O KONGAWAD, TQ:NAVALAGUND, NOW AT TABAKAD HONNALLI, TQ:KALAGHATAGI, DISTRICT:DHARWAD.

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KUMARI SHIVAKKA D/O SHARANAPPA JADAV, AGE:11 YEARS, OCC:STUDENT,

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R/O KONGAWAD, TQ:NAVALAGUND, NOW AT TABAKAD HONNALLI, TQ:KALAGHATAGI, DIST:DHARWAD.

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..... CROSS OBJECTORS

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(BY SRI CHANDRASHEKHAR R HIREMATH, ADV. SRI C.V. ANGADI, ADV. FOR R-2)

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AND

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ARJUNAPPA S/O HANUMANTAPPA BABAR @ ARER, AGE: MAJOR, OCC:AGRICULTURE, R/O KONGAWAD, TQ:NAVALAGUND, DISTRICT:DHARWAD.

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THE DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LTD., SUJATA COMPLEX, NEAR SUJATA TALKIES, HUBBALLI.

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..... RESPONDENTS

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(BY SRI C V ANGADI, ADV. FOR R2)

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THIS MFA CROB. IS FILED IN MFA NO.100596/2016, UNDER ORDER 41 RULE 22 OF CPC, AGAINST THE JUDGMENT AND AWARD DATED 07.11.2015 PASSED IN MVC NO.782/2011, ON THE FILE OF III ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER ADITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL HUBBALLI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, BELLUNKE A.S., J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Though the matter is listed for admission, with the consent of learned counsel on both sides, they are heard finally.

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M.F.A.No.100596/2016 has been filed by the insurer and M.F.A.CROB.No.100127/2016 has been filed by the claimants against the judgment and award passed by the learned III Additional Senior Civil Judge and Additional M.A.C.T., Hubballi, (hereinafter referred to as ‘the Tribunal’ for the sake of convenience) dated 07.11.2015 passed in M.V.C.No.782/2011.

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For the sake of convenience, the parties are referred to as per their status before the Tribunal.

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Brief facts of the case are as under:

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On 19.08.2011, one Yallavva Sharanappa Jadhav was going to Kongawad village on the left side of the road and at that time, a Tractor and Trailer bearing registration Nos.KA-25/TA-1547 & KA-25/TA-1548 came in a rash and negligent manner and dashed against the said Yallavva. As a result, Yallavva died on the spot.

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The claimants before the Tribunal are

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husband and minor daughter of the deceased. The claimants contended in the claim petition that the accident has occurred due to rash and negligent act of the driver of the Tractor Trailer bearing registration Nos. KA-25/TA-1547 & KA-25/TA1548. It is further contended that the deceased was doing coolie work, tailoring and milk vending business and she was earning an income of Rs.10,000/- p.m. Therefore, the claimants claimed compensation of Rs.23,75,000/-.

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The petition was resisted by the insurer and the owner of the offending vehicle. Respondent No.1, owner of the vehicle filed his objections denying the age, income and dependency of claimant No.1 on the deceased. It is contended that there was no violation of policy conditions and that the accident has not occurred due to rash and negligent driving of the driver of

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the vehicle, it is the deceased who came across the road and which resulted in accident.

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Respondent No.2-insurance company contended that the vehicle bearing registration Nos.KA-25/TA-1547 & KA-25/TA-1548 do not belong to HMT Company but it belongs to Escorts Company whereas in the complaint, it is stated that the accident took place by use of vehicle of HMT Company. This vehicle was deliberately implicated. Therefore, the liability, if any, is subject to the terms and conditions of the policy.

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On the basis of the pleadings of the parties, the Tribunal framed the following issues:

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1. “Whether the petitioner proves that on 19.08.2011 while Smt. Yallavva Sharanappa Jadhav was on the left side of the road, towards Kongawad, the tractor/Trailer bearing No. KA25/TA-1547 & KA-25/TA-1548 was driven in high speed, rash and negligent manner and dashed the Yallavva causing RTA, whereby Yallavva died on the spot?

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2. From whom and how much the petitioner is entitled for just and fair compensation?

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3. What order/award?”

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In support of their case, first claimant

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examined himself as PW-1 and another witness as PW-2. He produced ten documents which were marked as Exs.P-1 to P-10. On behalf of respondents, three witnesses were examined as RW-1 to RW-3 and 32 documents were marked as Exs.R-1 to R-32.

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After the trial, it is found that the claimants have proved their case. The Tribunal has awarded the compensation of Rs.6,87,000/- to the claimants with interest at 6% p.a. and the liability was fastened on the insurance company to deposit the amount. The said award is questioned in M.F.A.No.100596/2016 by the insurance company on the following grounds:

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1. The Judgment and Award passed by the Court below is against law, evidence on record and facts of the case.

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2. The Court below has failed to appreciate the material evidence in the right and proper perspective and analysis.

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3. According to the FIR and complaint the vehicle involved in the accident tractor and trailer bearing Nos.KA-25/TA-1547 and KA-25/TA-1548 of HMT Zatar company. Further, according to Motor Vehicle Accident Report also the vehicle involved is tractor and trailer bearing Nos.KA-25/ TA-1547 and KA-25/TA-1548 of HMT Zatar Company and that there are no damages to the said vehicle. This aspect is not properly considered by MACT.

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4. The insurance policy – Ex.R1 issued by this appellant is in respect of tractor and trailer bearing No. KA 25/TA-1547 of Escorts company.

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We have heard the learned counsel for

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the claimants and the insurer at length.

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Learned counsel for the insurance

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company submitted that there is a delay of two days in filing the complaint. The Motor Vehicle Inspection was also conducted long after the accident. No damage was caused to the right side of the vehicle as per the Motor Vehicle Accident Report. He further submitted that the vehicle insured by this insurance company has been falsely implicated. The allegations made in the criminal case are that the manufacturer of the vehicle in question was HMT Company, whereas the vehicle to which insurance is covered, is manufactured by Escorts Company. He further submitted that the Tribunal has not properly appreciated the material evidence in right perspective. The tractor-trailer has been falsely implicated and therefore, he prays for allowing the appeal filed by the insurance company.

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In the cross objection, the claimants contended that the Tribunal ought to have awarded compensation as claimed in the claim petition. The compensation granted is too meager. The Tribunal has not awarded compensation on the head loss of dependency. The deceased was the only bread winner of the family. The compensation awarded on other heads is very meager. The deceased was earning Rs.10,000/- per month by doing coolie, tailoring and milk vending. The Tribunal has not taken these facts into consideration. The Tribunal ought to have awarded 12% interest per annum. Therefore, the cross objectors have prayed for enhancement of compensation as claimed by them before the Tribunal.

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Having heard the learned counsel for the parties, the following points would arise for our consideration:

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1) Whether the appellant in M.F.A. No.100596/2016 proves that the vehicle bearing registration Nos.KA25/TA-1547 & KA-25/TA-1548 having coverage of insurance by the appellant company was falsely implicated in this case?

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2) Whether the Cross-objectors prove that the compensation awarded by the Tribunal is against the evidence on record and it is liable to be enhanced? If yes, what is the quantum of compensation payable to the claimants?

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Point No.1: According to the insurer, it is the deceased who came across the road resulting in the accident. The photographs of the accident in question were produced at Exs.R-3 & R-4. The tractor with its registration No.KA-25/T1547 along with trailer is very much visible. It is seen from the said photographs that the dead body of the deceased was lying beneath the

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vehicle in question. The insurance company has not led any rebuttal evidence to prove that any other vehicle was involved in the accident. The ownership is admitted by RW-1 in his evidence. It is not denied that the driver of the vehicle to which they had given insurance was prosecuted. He has admitted that the registration copies of vehicle bearing registration Nos.KA-25/TA-1547 & KA-25/TA-1548 are at Exs.R-15 & 16. The insurance policy is at Ex.R-18.

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The vehicle was seized during the course of investigation and thereafter it was released to the owner. The tractor fell down on the road side and there was damage to the vehicle. Learned counsel for the insurance company had argued that the same is not borne out from Motor Vehicle Accident Report. The fact of accident is not disputed. It is important to note that a tractor is an open vehicle having a strong bodied trailer. If it falls on either side of the road, no visible damages can be found

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as commonly found in motor car, because the density of the steel body will be very thick and strong. Therefore, that alone cannot be taken into consideration to hold that the vehicle in question was not at all involved in the accident. Once it is admitted that the insurance coverage is given in respect of registered vehicle number, it is for the insurance company to prove that the registration number produced by the investigating officer as well as claimants does not belong to the vehicle to which insurance coverage is given. Therefore, there is no substance in the contention of the insurance company that the vehicle to which they had insurance coverage was not at all involved. Accordingly, point No.1 is answered in negative.

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Point No.2: As regards, quantum of compensation in question, the deceased was hale and healthy having capacity to generate income. The Tribunal has taken the income of the deceased

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at Rs.3,000/- per month. There is evidence of

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PWs-1 and 2 that the deceased was doing coolie work, tailoring and milk vending business and earning Rs.10,000/- per month. In villages, such type of occupation is normal phenomena among village women. However, there is no documentary evidence as such to prove that the deceased was earning Rs.10,000/- p.m. Having regard to the above facts and that the deceased was a coolie, we assess the income of the deceased at Rs.6,000/- p.m. The age of the deceased was said to be 25 years as on the date of accident. To this, 40% of future prospects is to be added in view of the law laid down in the case of National Insurance Company Limited Vs. Pranay Sethi and others reported in AIR 2017 SC 5157 . Therefore, the net income of the deceased comes to Rs.8,400/- per month. 1/3^rd of it is to be deducted as personal expenses of the deceased. Therefore, the net income of the deceased comes to

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Rs.5,600/- per month. The same is multiplied by 12 and multiplier of ‘17’ is to be applied based on the age of the deceased. Thus, the loss of dependency comes to Rs.11,42,400/-.

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On other conventional heads, such as loss of love and affection, loss of consortium, loss of estate etc., an amount of Rs.70,000/- is awarded as per the judgment cited supra . Therefore, the total compensation amount payable to the claimants on all heads is Rs.12,12,400/- payable with interest at 6% p.a. Accordingly, point No.2 is answered in affirmative and we proceed to pass the following:

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ORDER

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i) M.F.A.No.100596/2016 filed by the insurer is dismissed.

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ii) M.F.A.Crob.No.100127/2016 is allowed in part.

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iii) The cross-objectors are entitled to total compensation of Rs.12,12,400/- instead

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of Rs.6,87,000/-. The enhanced compensation payable to the claimants is Rs.5,25,400/which shall carry interest at 6% per annum.

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iv) Out of the compensation amount awarded, a sum of Rs.3,00,000/- with proportionate interest is apportioned to the claimant No.2. The said amount shall be kept in Fixed Deposit in any Nationalized Bank or Post Office in the name of claimant No.2 for a period of five years or till she attains the age of majority, whichever is later.

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v) Remaining amount of Rs.2,25,400/- with proportionate interest is apportioned to claimant No.1. Out of the said amount, a sum of Rs.1,50,000/- shall also be kept in Fixed Deposit in the name of claimant No.1 for a period of five years. The accrued interest of the respective Fixed Deposits shall be paid to claimant No.1 for his personal needs. The balance amount shall be released to claimant No.1.

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