Partly allowed

Shriram Gen. Ins. Co. Ltd., v. Basavarajeshwari W/O Gangayya Hiremath

Karnataka HC19 Aug 2019MFA/23790/2013

Case brief

AI extract

What is this about?

High Court allowed the Motor Vehicles Accident compensation appeal and cross objection in part. The court enhanced the award from Rs.8,56,000/- to Rs.12,68,800/- by correcting the percentage deduction for personal expenses to one-fourth and the applicable multiplier to 16, while applying added consortium compensation for dependents.

What did the court decide?

The judgment and award dated 24.01.2013 is modified; compensation enhanced to Rs.12,68,800/- with interest at 6% p.a.

Shriram Gen. Ins. Co. Ltd., Vs Basavarajeshwari W/O… — Motor Accident Claims | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 19^th DAY OF AUGUST 2019

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BEFORE

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THE HON’BLE MR.JUSTICE K. NATARAJAN

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MISCELLANEOUS FIRST APPEAL No.23790 of 2013(MV) c/w

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MISCELLANEOUS FIRST APPEAL CROSS OBJECTION No.100209 of 2015

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IN MFA 23790 OF 2013 BETWEEN:

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SHRIRAM GEN. INS. CO. LTD., 2ND FLOOR, MONARCH CHAMBERS, INFANTRY ROAD, BANGALORE. NOW REPTD., BY ITS AUTHORIZED SIGNATORY, E-8, EPIP, RIICO, SITAPUR, JAIPUR, RAJASTHAN-302 022.

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... APPELLANT

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(By Sri. NAGARAJ C KOLLOORI, ADVOCATE)

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AND:

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BASAVARAJESHWARI W/O GANGAYYA HIREMATH, AGE: 33 YEARS, OCC: HOUSEHOLD WORK,

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KUMAR. NAGAYYA S/O GANGAYYA HIREMATH, AGE: 8 YEARS, OCC: STUDENT,

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KUMARI. PREETI D/O GANGAYYA HIREMATH, AGE: 6 YEARS, OCC: NILL,

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PARVATEVVA W/O BASAYYA HIREMATH,

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AGE: 63 YEARS, OCC: HOUSEHOLD,

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RESPONDENT NOS.2 AND 3 ARE MINORS REP. BY R1 AS MINOR GUARDIAN ALL ARE R/O KAMADENU, TQ: KALAGATAGI, DIST: DHARWAD.

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MARTANDAPPA S/O HULAGAPPA HARIJAN, AGE: MAJOR, OCC: BUSINESS, R/O: CHALAMATTI, TQ: KALAGATAGI, DIST: DHARWAD.

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AYUBKHAN H PATHAN, AGE: MAJOR, OCC: BUSINESS, R/O H.NO. 182, KULAKARNI HAKKALA, GANESHPETH, HUBLI, DIST: DHARWAD.

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THE NEW INDIA ASSURANCE CO., LTD., DIVISION OFFICE, II FLOOR, SRINATH COMPLEX, NEW COTTON MARKET, HUBLI, DIST: DHARWAD.

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... RESPONDENTS (By Smt SHAILA BELLIKATTI, ADVOCATE FOR R1 .R2 AND R3 ARE MINORS. REP. BY R1. .APPEAL STOOD DISMISSED AGAINST R4 VO DATED14.02.2019 .SRI. S.C. HIREMATH, ADV. FOR R5, SRI. VIJAY CHINIWAR, ADV. FOR R6 SRI. RAJASHEKHAR S. ARANI, ADV. FOR R7)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 24-012013 PASSED IN MVC NO.414/2011 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-III, DHARWAD, AWARDING THE COMPENSATION OF Rs.8,56,000/- WITH INTEREST AT THE RATE OF 6% P.A., FROM THE DATE OF PETITION TILL THE DATE OF REALISATION.

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IN MFA CROB No.100209 of 2015 BETWEEN:

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SMT.BASAVARJESHWARI W/O GANGAYYA HIREMATH AGE:34 YEARS OCC:HOUSEHOLD WORK R/O:KAMADENU , TQ:KALAGHATAGI DIST:DHARWAD

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NAGAYYA S/O GANGAYYA HIREMATH AGE:9 YEARS, OCC:STUDENT R/O:KAMADENU, TQ:KALAGHATAGI DIST:DHARWAD

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PREETI D/O GANGAYYA HIREMATH AGE:7 1/2 YEARS, OCC:NIL R/O:KAMADENU TQ:KALAGHATAGI, DIST:DHARWAD

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SMT.PARATEVVA W/O BASAYYA HIREMATH AGE:60 YEARS, OCC:HOUSEHOLD WORK R/O:KAMADENU, TQ:KALAGHATAGI DIST:DHARWAD

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(APPELLANTS NO.2 AND 3 ARE MINORS REP BY THEIR NATURAL MOTHER MINOR GUARDIAN APPELLANT NO.1)

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... CROSS OBJECTORS

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(By SMT SHAILA BELLIKATTI, ADV.)

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AND:

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SRI.MARTANDAPPA S/O HULAGAPPA HARIJAN AGE:MAJOR OCC:BUSINESS R/O:CHALAMATTI TQ:KALAGHATAGI DIST:DHARWAD (OWNER OF TATA SE-1612 LORRY BEARING ITS REGISTRATION NO.KA-31/1575)

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SHRI.RAM GENERAL INSURANCE COMPANY LIMITED 10003-E, E-8 RIICO INDUSTRIAL AREA, SITA PURA, JAIPURA RAJASTHAN-302022

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AYABKAHAN H PATHAN AGE:MAJOR, OCC:BUSINESS R/O:H.NO:182 KULKARNI HAKKAL GANESH PETH HUBBALLI DIST:DHARWAD (OWNER OF TATA-1612 LORRY REG NO.MEZ-4221)

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THE NEW INDIA ASSURANCE COMPANY LIMITED DIVISIONAL OFFICE, II FLOOR SRINATH COMPLEX, NEW COTTON MARKET, HUBBALI, DIST:DHARWAD

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... RESPONDENTS

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(By Sri. NAGARAJ C KOLLOORI, ADVOCATE FOR R2. SRI. RAJASHEKHAR S. ARANI, ADV. FOR R4. NOTICE TO R1 & R3 DISPENSED WITH VO DATED 5.8.2019)

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THIS MFA CROB IS FILED UNDER ORDER XLI RULE 22(1) OF CPC AGAINST THE JUDGMENT AND AWARD DATED 24.01.2013 PASED IN MVC NO.414/2011 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT III DHARWAD, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSTION AND SEEKING ENHANCEMENT OF COMPENSATION.

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MISCELLANEOUS FIRST APPEAL AND MFA CROSS OBJECTION COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Though both these matter have come up for admission, with the consent of counsel on both sides, the appeal and cross objection are heard finally.

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Miscellaneous First Appeal No.23790 of 2013 is filed by the insurer whereas Miscellaneous First Appeal Cross Objection No.100209 of 2015 is filed by the claimants-cross objectors for enhancement of compensation both assailing the judgment and award dated 24^th January 2013 passed by the Fast Track Court III, Dharwad, (hereinafter referred to as the ‘Tribunal’, for short) in MVC No.414 of 2011.

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For the sake of convenience, rank of the parties is maintained.

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Heard the arguments of the learned counsel

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for the insurer as well as the claimants.

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The claimants have filed a petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the ‘Act’, for brevity) claiming

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compensation of Rs.22,25,000/- inter alia contending that on 17.10.2010 at about 9.00 am, the husband of the first claimant namely Gangayya Basayya Hiremath was working as a cleaner in a lorry bearing registration No.MEZ 4221 belonging to the 3^rd respondent and as per the instruction of the driver of the aforesaid lorry, while he was assisting to start the stationed lorry by holding wooden support behind the stationed lorry and with the help of another lorry bearing registration No.KA 31/1575 which was pushing the stationed lorry from backside, the driver of the lorry bearing registration No.KA 31/1575 drove it in a rash and negligent manner towards reverse direction due to which the wooden log held by the deceased for support, slipped, and dashed to Gangayya Basayya Hiremath who caught in between both the vehicles and sustained injuries. He succumbed to the injuries while shifting to the hospital in the lorry bearing registration No.KA 31/1575. The claimants contended that due to the rash and negligent driving by the driver of the lorry bearing No.KA 31/1575

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have lost earning member and are put to hardship and financial loss. Hence, they claimed compensation on various heads.

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In pursuance to the notice, respondent Nos.1 to 4 appeared through their respective counsel and filed their statement of objections separately.

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First respondent filed statement of objections denying the fact that the deceased was working in a lorry bearing registration No.MEZ-4221 as a cleaner and further denied that the manner in which the accident occurred, as false, and prayed for dismissal of the petition against respondent No.1.

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Second respondent-insurer of vehicle bearing registration No.KA 31/1575 also filed objection denying the entire averments made in the petition as false and contended that the accident has taken place due to the rash and negligent driving by the driver of the lorry bearing registration No.MEZ 4221 and therefore, the petition against respondent No.2 requires to be

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dismissed and liability to be fixed only on 3^rd and 4^th respondents. Further, denied the age, occupation and income of the deceased as false and prayed for dismissing the claim petition.

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3^rd respondent also filed statement of objections by admitting the ownership of the lorry bearing registration No.MEZ 4221 and contended that the lorry was not a running condition and denied that the accident had occurred due to the negligence by the driver of his lorry and prayed for dismissal of the claim petition.

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4^th respondent-insurer of lorry bearing registration No.MEZ 4221 filed statement of objections and contended that the accident occurred solely due to the rash and negligent driving by the driver of the lorry bearing registration No.KA 31/1575 and there was no negligence on the part of the driver of the lorry bearing No.MEZ 4221 and hence prayed for dismissal of the claim petition.

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7. Based on the rival pleadings, the Tribunal

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framed the following issues:

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Whether the petitioners prove that on 17.10.2010 at about 09.00 hrs., the deceased was assisting to start the stopped lorry, the deceased was holding the wooden support behind the lorry bearing registration No.MEZ 4221 and through that support another lorry bearing registration No.KA-31/1575 was pushing the stopped lorry from back side to start it, at the same time driver of the lorry No.KA-31/1575 suddenly drove the lorry in a rash and negligent manner towards back side due to this the wooden support hold by the deceased was slipped and deceased compressed under the lorry as a result the deceased sustained fatal injuries and succumbed to the injuries?

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Whether the petitioners prove that they are entitled for compensation? If so, what amount and from whom?

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3. What order?

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To substantiate their claim, the first claimant herself examined as PW-1 and also examined PW-2 and got

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marked Exs.P-1 to P-7. The respondents have not let-in any evidence except marking Exs.R-1 and 2-a copy of driving licence and RC book of the vehicle respectively.

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After considering the evidence on record, the Tribunal answered issue Nos.1 and 2 in the affirmative and allowed the petition by awarding compensation of Rs.8,56,000/- under the following heads:

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Rs.

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1	Loss ofdependency		8,16,000/-
2	Loss ofconsortium		10,000/-
3	Loss ofestate		5,000/-
4	Funeralexpenses		10,000/-
5	Loss of loveandaffection		15,000/-
		Total	8,56,000/-

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Assailing the judgment and award passed by the

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Tribunal, the insurer filed MFA No.23790 of 2013 whereas the claimants filed MFA Cross Objection No.100209 of 2015 for enhancement of compensation.

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The counsel for the insurer contended that on

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perusal of the complaint as well as panchanama, it is clear

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that the accident had occurred not due to rash and negligent driving by the driver of the lorry bearing registration No.KA 31/1575. There is negligence on the part of the deceased himself who tried to remove the wooden log held for supporting the lorry. Even though the police have filed charge sheet against both the drivers of the lorries, the Tribunal has fastened the liability only on the insurer of the lorry bearing registration No.KA 31/1575 which is not correct. There is contributory negligence by the drivers of both the lorries as well as the deceased. The same was not properly considered by the Tribunal. Further, learned counsel contended that the Tribunal, while assessing the loss of dependency, has deducted 1/5^th of the income towards personal expenses though there were only 4 dependants. Deduction of 1/5^th is not correct. He further contended that the multiplier applicable for the age group of 31-35, is 16, whereas the Tribunal has taken the multiplier of 17, which is not correct. Therefore, he prayed for allowing the appeal.

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Per contra, learned counsel for the crossobjectors-claimants contended that the deceased was

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working as a cleaner earning Rs.8,000/- per month as salary but the Tribunal has considered only Rs.5,000/- per month which is very meager. Even this Court use to consider the notional income of an unskilled labour at Rs.5,500/- per month for the year 2010. The Tribunal has also not considered the future prospects of the deceased as per the judgment of the Hon’ble Apex Court in the case of National

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Insurance Company v. Pranay Sethi reported in (2017) 16 SCC 680. Further, the counsel contended that as per the judgment of the Hon’ble Apex Court in the case of Magma General Insurance Co. Ltd. v. Nanu Ram and others reported in 2018 ACJ 2782, the Tribunal has not awarded any compensation towards loss of parental consortium, loss of filial consortium and therefore, prayed for enhancing the compensation.

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Upon hearing the arguments of the learned counsel for both the parties and on perusal of the records, the points that arise for consideration are:

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(i) Whether the Tribunal is justified in fastening the liability only on the insurer of the vehicle bearing registration No.KA 31/1575 and calls for interference?

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(ii) Whether the cross-objectors-claimants are entitled for enhancement of compensation?

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(iii) What order?

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The claimants have established the accident

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that occurred on 17.10.2010 at about 9.00 am when deceased-Gangayya Basayya Hiremath was working as a cleaner in the lorry bearing registration No.MEZ 4221 which was stopped on the road and in order to start the lorry, they took assistance of the driver of another lorry bearing registration No.KA 31/1575 and the driver of the said lorry pushed the lorry bearing registration No.MEZ 4221 from backside to start the stationed lorry, at that time, the deceased, who was holding wooden log, slipped and was caught in between both the lorries and was crushed and sustained serious

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injury. The persons present at the spot waited for the ambulance and as they could not get the ambulance in time, they shifted the injured in the lorry bearing registration No.KA 31/1575 and while the injured was being shifted, he succumbed to the injuries on the way to hospital.

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PW-1, who is the first claimant reiterated the

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contentions made in the petition and in support of her case, one Ullaveppa Shatteppannavar, who is an eyewitness to the accident, was examined as PW-2 and he has also narrated the incident.

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Learned counsel for the insurer contended

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that as per the complaint itself, the vehicle belongs to the second respondent and it has been removed from the spot/place for shifting the injured to the hospital in the said vehicle but later while conducting spot panchanama-Ex.P-3, the said vehicle shown as if the vehicle was not all removed from the spot/place. There is contradiction between the averments made in the

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complaint as well as panchanama. Therefore, the occurrence of the accident itself is not true as narrated by the claimant and the eyewitness in the case.

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On perusal of the evidence of PWs.1 and 2,

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though PW-1 was not an eyewitness, PW-2, who is an eyewitness to the accident, gave evidence about the manner in which the accident occurred and has clearly stated that the vehicle was removed i.e. lorry bearing registration No.KA 31/1575 for carrying the injured to the hospital and in the cross-examination, again this witness re-asserted the evidence. Though this witness also admitted that the police have filed charge sheet against the drivers of both the lorries but the Tribunal after considering the evidence on record, at para 12 of its judgment, has held that though the police have filed charge sheet against the drivers of both the lorries, but the accident occurred due to rash and negligent driving by the driver of lorry bearing No.KA 31/1575 while pushing the vehicle in order to start the stationed

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vehicle, suddenly, took the vehicle backside and dashed to the deceased, who was caught in between the two vehicles and sustained grievous injures. Considering the evidence on record, the Tribunal has rightly held that accident had occurred solely due to the rash and negligence act by the driver of the lorry bearing registration No.KA 31/1575. Though the police have filed charge sheet against the drivers of both the lorries that by itself is not a ground to hold that there is contributory negligence on the part of driver of the lorry bearing registration No.MEZ 4221. Therefore, the Tribunal has rightly answered issue No.1 and fastened the liability against the insurer of lorry bearing registration No.KA 31/1575. The said finding does not call for interference. Therefore, I answer point No.(i) in favour of the claimants and against the insurer.

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The next question is in respect of quantum of compensation awarded to the claimants and to consider whether it is adequate or not. Though

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claimants have contended that the deceased was earning Rs.8,000/- per month, but they have not produced any document. Therefore, in the absence of any documentary evidence to prove the income, there is no other option for the Court but to take the notional income of the deceased. Normally, this Court used to consider Rs.5,500/- per month as notional income for the accident of the year 2010. But the Tribunal considered only Rs.5,000/- per month which is meager.

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Therefore, I propose to consider the income of the claimant at Rs.5,500/- per month. As per the judgment of the Hon’ble Apex Court in Pranay Sethi’s case (supra) 40% of the income towards future prospects of the deceased has to be taken. Apart from that, the claimants are 4 in number but the Tribunal has deducted 1/5^th of the income towards personal expenses of the deceased which is not correct as per the guidelines issued by the Hon’ble Apex Court in

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Sarala Verma and others v. Delhi Transport Corporation and Others reported in 2009 (6) SCC

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121. Therefore, the contention of the learned counsel for the insurer is acceptable and deduction towards personal expenses of the deceased must be 1/4^th but not 1/5^th . Likewise, the age of the deceased was 33 years which was established by the claimants. Such being the case, the multiplier that would be applicable is 16 and not 17 as applied by the tribunal. If the income of the deceased is Rs.5,500/- and 40% of the income would be Rs.2,200/- totaling to Rs.7,700/- and by deducting 1/4^th of the income towards his personal expenses, it comes to Rs.5,775/-x12 and by adopting multiplier of 16, the claimants would be entitled to a sum of Rs.11,08,800/- towards loss of dependency. As per the judgment of the Hon’ble Apex Court in Magma’s case supra, first claimant being the wife is entitled to Rs.40,000/- towards loss of spousal consortium and 2^nd and 3^rd claimants being the minor children are entitled for Rs.30,000/each towards loss of parental consortium and 4^th claimants being the aged mother of the deceased is entitled to Rs.30,000/- towards loss of

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filial consortium. In all, the claimants are entitled to

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reassessed compensation as under:

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		Rs.
1	Loss ofdependency	11,08,800/-
2	Loss ofspousalconsortium	40,000/-
3	Loss of filial consortium (30,000x2)	60,000/-
4	Loss ofparentalconsortium	30,000/-
5	Loss ofestate	15,000/-
6	Transportation and funeral expenses	15,000/-
	TOTAL	12,68,800/-

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Though the insurer is able to show error in the deduction made towards personal expenses of the deceased at 1/5^th and multiplier assessed by the Tribunal at 17 and the same being reduced to 1/4^th and 16 respectively but in view of re-assessing the compensation and the compensation being enhanced, the appeal and the cross objection filed by the insurer as well as the cross-objectors-claimants partly succeed. Accordingly, I pass the following order:

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The appeal and the cross objection are allowed in part.

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The judgment and award dated 24.01.2013 passed by the Fast Track Court-III, Dharwad, in MVC No.414 of 2011 is modified. The claimants are entitled to reassessed compensation of Rs.12,68,800/- as against Rs.8,56,000/- awarded by the Tribunal together with interest at 6% per annum from the date of petition till the date of realization.

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Apportionment and release of the compensation amount shall be as per the order of the Tribunal.

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The appellant-insurer is directed to deposit the award amount within four weeks from the date of receipt of a copy of this judgment.

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The LCR and the amount in deposit, if any, shall be transmitted forthwith to the Tribunal concerned.

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Sd/-

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JUDGE

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kmv

Shriram Gen. Ins. Co. Ltd., v. Basavarajeshwari W/O Gangayya Hiremath

Case brief

What is this about?

What did the court decide?

Shriram Gen. Ins. Co. Ltd., v. Basavarajeshwari W/O Gangayya Hiremath

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

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