Partly allowed

The Manager Oriental Insurance Company Ltd., v. Saritha Prasad W/O. Late Upendra Prasad

Karnataka HC3 Sept 2019MFA/20629/2013

Case brief

AI extract

What is this about?

In this Motor Vahe Appeal, the High Court upheld the Tribunal's award of Rs.8,38,000 compensation against the insurer. The Court found the assessed income adequate and not excessive, though it reduced the interest rate from 8% to 6% p.a. based on economic conditions.

What did the court decide?

Interest on the award reduced from 8% p.a. to 6% p.a.; Quantum of compensation maintained.

The Manager Oriental Insurance Company Ltd., Vs Saritha Prasad… — Insurance | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 03^RD DAY OF SEPTEMBER 2019

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BEFORE

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THE HON’BLE MR.JUSTICE K. NATARAJAN

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MFA NO.20629/2013 (MV)

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BETWEEN :

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THE MANAGER, ORIENTAL INSURANCE CO. LTD., BELLARY BRANCH. POLICY NO.472400/31/2011/1448, VALID FROM 02.7.2010 TO 01.7.2011 BELLARY. REP. BY ITS ADMINISTRATIVE OFFICER, REGIONAL OFFICE, SUMANGALA COMPLEX, LAMINGTON ROAD, HUBLI-29.

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... APPELLANT

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(BY SRI. G.N.RAICHUR, ADV.)

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AND:

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SMT. SARITHA PRASAD W/O: LATE UPENDRA PRASAD, AGE: 27 YEARS,

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RISHU KUMAR, S/O: LATE UPENDRA PRASAD, AGE: 5 YEARS, MINOR

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BOTH ARE R/O: BALUVA VILLAGE, DHAROLI TALUK, SHIVAN DISTRICT, BIHAR STATE. NOW R/O: KUDLIGI TOWN, KUDLIGI TALUK, DIST: BELLARY.

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SRI R. NAGESHWAR RAO S/O: BUCHHAIAH, AGE: 33 YEARS, OCC: DRIVER, (DRIVER OF HYDRA MOBILE CRANE BEARING REG.NO.KA-35/M-4585) R/O: ACHHARALAKASIMKOTA MANDALAM ANAGAPALLI TALUKA, VISHAKPATNAM DIST ANDRA PRADESH. NOW R/O: BMM ISPATH FACTORY DANPURA VILLAGE. MARIYAMMANAHALLI, TQ: HOSPET, DIST: BELLARY.

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SRI RAMESH BABU AGE: MAJOR, OCC: PROPRIETOR OF V.R.ENGINEERING WORKS, OWNER OF HYDRA MOBILE CRANE NO.KA-35/M-4585, R/O: NEAR VIJAYLAXMI TALKIES, MAIN ROAD, THORANGALLU, SANDUR TALUK, DIST: BELLARY. ... RESPONDENTS

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(BY SRI. SACHIN S.MAGADUM, ADV. FOR R1 & R2 R-2 MINOR REP.BY R1, R-3 SERVED NOTICE TO R-4 DISPENSED WITH V/O DATED 6.8.2019)

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THIS MFA FILED U/S.173(1) OF THE M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 07.12.2012 PASSED IN MVC NO.619/2011 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, KUDLIGI, AWARDING THE COMPENSATION OF RS.8,38,000/- WITH INTEREST AT THE RATE OF 8% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.

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THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-

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JUDGMENT

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This appeal is filed by the appellant-Insurer assailing the judgment and award dated 07.12.2012 passed by the Senior Civil Judge and JMFC, Kudligi, in MVC No.619/2011 (hereinafter referred to as the ‘Tribunal’, for short).

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Heard the arguments of the learned counsel for the appellant-insurer as well as learned counsel for respondents.

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The ranks of the parties before the Tribunal are retained for convenience.

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The claimants filed a petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the ‘Act’, for short) claiming compensation of Rs.32,00,000/interalia contending that on 04.07.2010 at about 12.30 p.m., at constructed of lander supporter near 5^th column, Ispath Factory, Danapura, Hospet Taluk, the husband of the first claimant

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Upendra Prasad was working as a fitter in the said factory. At that time, the respondent No.1, drove the Hydra Mobile Crane bearing registration No.KA-35/M-4585 in high speed with rash and negligent manner dashed to the beam. As a result, the said Upendra sustained grievous injuries and he was shifted to the Government Hospital in Ambulance and on the way to the hospital, he succumbed to the injuries. Prior to the accident, the deceased was quite young, hale and healthy. He was doing fitter work in the said factory by contributing his earnings to the maintenance of his family. Due to the untimely death, they have lost the earning member. Hence, filed the claim petition.

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In pursuance of the notice, the respondent No.1 and 2 appeared through their counsels but did not filed statement of objections. The respondent No.3 insurer filed the statement of objections by resisting the claim petition and

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denied the averments made in the petition as false and also denied the age, occupation, income of the deceased as false. However, they admitted the issuance of policy, if any liability the same shall be subject to the terms and conditions of the policy. Hence, prayed for the dismissal of the claim petition.

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Based upon the rival pleadings, the

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tribunal framed the issues;

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(i) Whether the petitioners prove that Upendra Prasad S/o: Lakshmangonu succumbed to injuries sustained in an accident occurred on 04.07.2010 at about 12.30 p.m., caused by rash and negligent driving of the Hydra Mobile Crane No.KA35/M-4585 by its driver in Ispath Factory, Danapura, Hospet as alleged in the petition?

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(ii) Are petitioners entitled for the compensation? If yes, at what rate and from whom?

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(iii) What order or award?

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To substantiate their claim, the clamant No.1 examined herself as PW.1 and also examined the Proprietor of EBEM Construction i.e. P.Ibrahim as PW.2 and got marked 10 documents as Ex.P1 to 10. On behalf of Insurer RW.1 has been examined and got marked 12 documents as Exs.R1 to 12. After considering the evidence on record, the Tribunal answered the issue No.1 in the affirmative, issue No.2 partly affirmative and allowed the petition in part by awarding the compensation of Rs.8,38,000/- together with interest @ 8% by judgment dated 07.12.2012. Assailing the judgment and award passed by the tribunal, the insurer filed this appeal.

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The learned counsel for the appellant-

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Insurer strenuously argued that, there is no dispute in respect of fastening the liability on the insurer but contended that as per own

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documents of the claimant, Exs.R7 and 8, muster role and Register of wages of the deceased goes to show that the employer of the deceased was paying Rs.121/- per day to the deceased and prior to the death in June 2010, the deceased was worked only for 12 days. Such being the case, the tribunal committed an error in considering Rs.200/- per day x 30 days by taking Rs.6,000/- per month is exorbitant and the same is required to be reduced. Further, contended that though the claimants were produced for Rs.18,000/- as salary to the claimant but the same was disputed by the insurer by summoning the document from the employer of the deceased and further the tribunal awarded Rs.20,000/- towards loss of estate and another Rs.20,000/- towards loss of mortal obligation, which is not admissible as per the judgment of the Hon’ble Apex Court in the case of National Insurance Company Vs.

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Pranay Sethi reported in ( 2017) 16 SCC 680

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and further contended the interest 8% awarded by the tribunal is also exorbitant. Hence, prayed for reducing the same.

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Per contra, learned counsel appearing for the respondent-Claimants contended that though the claimants not able to produce proper documents to prove the income, the tribunal has considered Rs.200/- per day and Rs.6,000/- per month as income that is adequate but not exorbitant and there is no award in respect of other conventional heads i.e. loss of consortium and other heads to the children and also contended that though the appeal is not filed by the claimants but there is no award towards future prospects. Therefore, supported the judgment of the tribunal and prayed for dismissal of the appeal.

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Upon hearing the learned counsels

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appearing for the parties and on perusal of the records, the points that arise for my consideration;

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(a) Whether the tribunal is not justified in awarding Rs.8,38,000/- to the claimants which call for interference?

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(b) Whether the interest awarded @ 8% p.a. requires reduction?

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(b) What order?

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The claimants have established the factum

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of accident dated 04.07.2010 and due to the accident the said person Upendra died. The only controversy is in respect of award of compensation by the tribunal by considering the income of the deceased said to be exorbitant as claimed by the insurer. Before the tribunal, the claimants stated that the deceased was earning Rs.18,000/- per month and they have also produced Ex.P1 the salary certificate and the

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same was strongly disputed by the respondentInsurer and they also examined RW.1 the Senior Assistant of the Insurance Company before the Tribunal and they also summoned wage register as well as muster role of the deceased. As per the muster role, the deceased said to be worked only for 12 days in June 2010. Though it is not in dispute that he was fitter working in the said factory and as per the Register of wages, the deceased said to have received Rs.121/- per day as wages from his employer and the same was placed before the Court. However, the tribunal considered Rs.200/per day for 30 days. Admittedly, the deceased was a temporary employee and used to get the wages only as and when he used to work.

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On perusal of the muster role, the deceased Upendra was worked only for 12 days in June 2010 and for remaining days of his attendance register shown as absent. The muster role and

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per day and received Rs.1,218/- in June 2010. However, the Exs.P7 and 8 though produced and marked shows that he was received Rs.121/- per day but due to his absence during the month June 2010, he has received less wages, which does not mean his income should be considered only for 12 days. However, the counsel for the claimants contended that merely some documents produced before the Court in respect of month of June, that itself is not a ground to reduce the wages of the deceased as well as the income of the deceased to Rs.3,000/- or less than Rs.6,000/-.

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However, as per Ex.P8 the deceased was joined the EBEM factory only in the month of June, 2010 and he was died on 04.07.2010. Such being the case, taking only Rs.121/- per day is not correct. Apart from that, he is said to be technical labour therefore the contention of

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the learned counsel for the insurer cannot be acceptable and his salary should be considered at Rs.121/- per day for the month. The learned counsel drawn produced judgment of the constitutional bench of Hon’ble Apex Court in the case of National Insurance Company Vs. Pranay Sethi reported in ( 2017) 16 SCC 680 wherein in it is held that the conception of “just compensation” has to be viewed through the prism of fairness, reasonableness and nonviolation of the principle of equitability. In a case of death, the legal heirs of the claimants cannot expect a windfall. Simultaneously, the compensation granted cannot be an apology for compensation. It cannot be a pittance. Though the discretion vested in the tribunal is quite wide, yet it is obligatory on the part of the tribunal to be guided by the expression, that is, “just compensation”.

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By considering the principle of justice computation by taking into consideration, the fitter cannot be considered as unskilled labour and taking the notional income of Rs.5,000/per month cannot be acceptable. Therefore, the income of Rs.6,000/- considered by the tribunal cannot be said to be exorbitant or excessive which is adequate. Therefore, it does not require for any interference by this Court.

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Though the tribunal has awarded a sum of Rs.10,000/- for funeral expenses, Rs.20,000/for loss of estate, Rs.20,000/- for loss of love and affection, Rs.20,000/- for mortal obligation, if you consider on the basis of the judgment of the Hon’ble Apex Court stated supra, the claimant No.1 is entitled for Rs.40,000/towards loss of spousal consortium and claimant No.2 is entitled towards loss of parental consortium and also entitled for Rs.15,000/towards funeral expenses and Rs.15,000/- for

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loss of estate. Therefore, looking from all the

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angels, the award passed by the tribunal at Rs.8,38,000/- cannot be said to be exorbitant and excessive and even as per the judgment of the Hon’ble Apex Court Pranay sethi supra, future prospects required to be taken into consideration. Such being the case, the award passed by the tribunal does not call for any interference by this Court. Hence, I answer point No.1 against the insurer and in favour of the claimants. However, the interest at the rate of 8% is required to be reduced to 6% p.a. in view of the present economical condition of the country in stead of 8% awarded by the tribunal. Accordingly, I pass the following;

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ORDER

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The appeal filed by the insurer allowed in part as regards the quantum of compensation is hereby dismissed. However, the interest on award is reduced to 6% p.a. from 8%.

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Four weeks time is granted to deposit the entire amount excluding the amount, if any, deposited.

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The amount in deposit ordered to be transmitted to the tribunal forthwith.

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Sd/JUDGE

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msr

The Manager Oriental Insurance Company Ltd., v. Saritha Prasad W/O. Late Upendra Prasad

Case brief

What is this about?

What did the court decide?

The Manager Oriental Insurance Company Ltd., v. Saritha Prasad W/O. Late Upendra Prasad

Case brief

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