Partly allowed

Roopa W/O. Nagaraj Meharwade v. Saiman W/O. Frances Bareto

Karnataka HC18 Oct 2019MFA.CROB/100060/2014

Case brief

AI extract

What is this about?

The High Court partially allowed the insurance appeal and claimant cross-objection regarding motor vehicle accident compensation. It rejected late evidence production, reduced interest to 6.5%, and enhanced total compensation to Rs. 11,90,954/- based on Supreme Court guidelines.

What did the court decide?

Compensation enhanced to Rs. 11,90,954/- with interest at 6.5% p.a.; insurance company directed to deposit amount before the tribunal within six weeks.

Roopa W/O. Nagaraj Meharwade Vs Saiman W/O. Frances Bareto — Insurance | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 18^H DAY OF OCTOBER, 2019

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BEFORE

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THE HON’BLE MR. JUSTICE H.T.NARENDRA PRASAD

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MFA No.23522/2013 (MV-D) C/w. MFA Cr.Ob.No.100060/2014

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In MFA No.23522/2013:

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Between:

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The Divisional Manager, The National Insurance Co. Ltd., Near Sujata Sanjota Talkies, Glass House at Hubballi, Now rep. by its Deputy Manger, Regional Office, Hubli.

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… Appellant

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(By Shri Rajashekhar S.Arani, Advocate)

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And:

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Smt.Roopa W/o.Nagaraj Meharwade, Age 26 years, Occ: Household,

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Kumar Shubam S/o.Nagaraj Meharwade, Age 3½ years, Occ: Nil,

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Both are R/o.: Alnavar, Tq. & Dist.: Dharwad,

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Since minor rep. by his natural Guardian mother respondent No.1

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Saiman W/o.Frances Bareto, Age major, Occ: Business, R/o.: Nehru Nagar, Tq. & Dist.: Dharwad, (Owner of the Hero Honda Spledor NXG Bearing No.KA-25/EF-0399)

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Smt.Savitribai W/o.Tippanasaa Meharwade, Age 67 years, occ: Household, R/o.: Tilak Nagar of Alnavar, Tq. & Dist.: Dharwad.

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… Respondents

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(By Shri Harish S.Maigur, Advocate for R1 & R2; R2 is minor represented by R1; Respondent Nos.3 and 4 are served)

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This MFA is filed under Section 173(1) of M.V. Act, against the judgment and award dated 23.02.2013, passed in MVC No.419/2011 on the file of the I-Addl. Senior Civil Judge and CJM, Member Addl. MACT, Dharwad, awarding the compensation of Rs.10,44,154/- with interest at the rate of 8% p.a. from the date of petition till the date of deposit.

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In MFA Cr.Ob.No.100060/2014:

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Between:

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Smt.Roopa W/o.Nagaraj Meharwade, Age 27 years, Occ: Household,

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Kumar Shubam S/o.Nagaraj Meharwade, Age 4½ years, Occ: Nil,

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Minor rep. cross-objector No.1

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Both are R/o.: Tilaknagar, Alnavar,

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Tq. & Dist.: Dharwad,

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… Cross-objectors

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(By Shri Harish S.Maigur, Advocate)

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And:

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Saiman W/o.Frances Bareto, Age major, Occ: Business, R/o.: Nehru Nagar, Alnavar, Tq. & Dist.: Dharwad,

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The Divisional Manager, The National Insurance Co. Ltd., Near Sujata Sanjota Talkies, Glass House at Hubballi,

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Smt.Savitribai W/o.Tippanasaa Meharwade, Age 68 years, occ: Household, R/o.: Tilak Nagar of Alnavar, Tq. & Dist.: Dharwad.

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… Respondents

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(By Shri Rajashekhar S.Arani, Advocate for R2; Respondent Nos.1 & 3 are served)

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This MFA cross-objection in MFA No.23522/2013 is filed under Order XLI Rule 22 of CPC, against the judgment and award dated 23.02.2013, passed in MVC No.419/2011 on the file of the I-Addl. Senior Civil Judge and CJM, Member Addl. MACT, Dharwad, partly allowing the claim petition for compensation and seeking enhancement of compensation.

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The appeal and the cross-objection are coming on for admission, this day, the Court delivered the following:

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JUDGMENT

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The appeal is filed by the appellant-insurance

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Company and the cross-objection is filed by the crossobjectors-claimants against the common judgment and award dated 23^rd February 2013, passed by the I- Additional Senior Civil Judge and CJM and Additional MACT, Dharwad (for short “the Tribunal”) in MVC No.419/2011, whereby the tribunal has awarded

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compensation of Rs.10,44,154/- with interest at the rate of 8% p.a. from the date of petition till the date of deposit and fastened the liability on respondent Nos.1 and 2 being R.C.Owner and insurer of the offending vehicle, jointly and severally. Hence, the appeal and the cross-objection are clubbed together and common order has been passed.

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For the purpose of convenience, the parties are referred to as per their ranking before the tribunal.

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Brief facts of the case are that on 06.03.2011 at about 10:30 a.m. the deceased-Nagaraj along with his brother Balakrishna as pillion rider proceeding on motorcycle bearing registration No.KA25/EF-7978 to attend the marriage ceremony of his friend at Dharwad from Alnavar via Haliyal in moderate speed. After ten kilometers from Haliyal on Haliyal-Dharwad road, a Hero Honda Splendor NXG motorcycle bearing registration No.KA-25/EF-399 came from opposite direction in a rash and negligent

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manner from Dharwad towards Haliyal and dashed against the motorcycle, which was ridden by the deceased-Nagaraj. Due to the impact, the deceasedNagaraj thrown to the road side tree and sustained fatal injuries all over the body including head and chest injuries. Immediately, he was shifted to Haliyal Government Hospital and thereafter he was referred to S.D.M. College of Medical Sciences and Hospital, Sattur, Dharwad for further treatment, wherein the said Nagaraj succumbed to the injuries. The claimants i.e., wife and son of the deceased have filed claim petition before the tribunal in MVC No.419/2011 seeking compensation.

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In order to establish the case, the petitioners examined two witnesses and marked 11 documents. On the other hand, the Insurance Company neither examined any witnesses nor marked any documents. On appreciation of the oral and documentary evidence, the tribunal has awarded

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compensation of Rs.10,44,154/- with interest at the rate of 8% p.a. from the date of the petition till the date of deposit and fastened the liability on respondent Nos.1 and 2 jointly and severally. Being aggrieved by the same, the Insurance Company has filed appeal challenging the liability as well as quantum of compensation awarded to the claimants by the tribunal and also the claimants have filed crossobjection seeking enhancement of compensation.

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The learned counsel for the appellant-

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Insurance Company contended that the motorcycle bearing registration No.KA-25/EF-7978 was falsely implicated in the case and now he has filed an application under Order XLI Rule 27 of CPC producing additional documents like medical certificate and wound certificate issued by the competent authority to establish the death of the deceased is not due to accident. He further contended that the compensation awarded by Tribunal towards loss of dependency and

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the interest at the rate of 8% p.a. are on the higher side and the same requires to be reduced. Hence, he sought for allowing the appeal filed by the appellantInsurance Company by dismissing the cross-objection filed by the cross-objectors-claimants.

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Per contra, the learned counsel for the cross-objectors-claimants contended that the application filed by the Insurance Company under Order XLI Rule 27 of CPC is not maintainable; the contention now raised in that application, which is also available before the Tribunal and they have not taken such contentions. Neither they have marked any documents nor examined any witnesses to prove the same. In support of his case, the learned counsel for the cross-objector relied upon the judgment of this Court in the case of Hanumanthappa vs. G.Jagadeesha and another reported in 2017(2) Kar.L.J. 604 . Further it is contended that the tribunal has rightly awarded interest at the rate of 8% p.a.,

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since the accident is of the year 2011. Further the deceased was a practicing advocate, the tribunal while awarding compensation towards loss of dependency, taken the monthly income of the deceased at Rs.6,000/-, which is on the lower side. Further, the tribunal erred in adding only 30% instead of 40% towards future prospectus. Further, the compensation awarded by the tribunal towards loss of consortium, loss of love and affection and loss of estate are on the lower side. Hence, the learned counsel for the crossobjector seeks for allowing the cross-objection filed by the claimants and also seeks dismissal of the appeal filed by the Insurance Company.

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Heard the learned counsel for the parties

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and perused the records.

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It is not in dispute that the deceased-

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Nagaraj died due to the accident, which occurred on 06.03.2011 by the rider of the motorcycle bearing registration No.KA-25/EF-399, who drove the same in

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rash and negligent manner. The claimants are the wife and son of the deceased. After service of summons, the respondent-Insurance Company appeared through its counsel and filed its written statement. The Insurance Company has not taken any contention with regard to the death of Nagaraj was not due to the said accident; neither the Insurance Company has examined any witness nor produced any documents to establish the same. Now for the first time before this Court, the Insurance Company has filed an application under Order XLI Rule 27 of CPC for production of additional documents like medical certificate and wound certificate issued by the competent authority to establish the death of the Nagaraj was not due to accident. In a similar circumstance, this Court in the case of Hanumanthappa vs. G.Jagadeesha

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(Supra) at paragraph Nos.8 and 9 has held as under:

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“8. In the light of these judgments, it can be held that the driver of the offending vehicle merely not possessing the valid and effective driving licence to drive a

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transport vehicle, not being satisfactorily established, would not be termed as breach and violation of the conditions of the policy. The breach must be so fundamental that the contract must come to an end. The onus lies on the shoulders of the Insurance Company to establish that the driver was disqualified from possessing the valid and effective driving licence to drive a transport vehicle, that exercise not having been done by the Insurance Company. Now, it cannot be held that the insured committed breach of terms and conditions of the policy. The production of document, DL extract, at the appellate stage to cure the lacuna cannot be allowed. It is not necessary to dispose of the appeals on merits considering the additional evidence not confronted to the witness before the tribunal more particularly, where there was no opportunity to the Tribunal to address on this point. For the reasons aforesaid, the appeals filed by the Insurance Company lacks merit and deserves to be dismissed, accordingly, the appeals stand dismissed.

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9. As regards the appeal filed by the claimant, it is perspicuous that the Tribunal has appreciated the evidence on record in extenso to award a sum of Rs.3,35,455/- with interest at 8% per annum which is just and reasonable and do not call for interference. Thus, the appeal filed by the claimant fails.”

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Therefore, the appellant-Insurance Company has not made out any ground under Order XLI Rule 27 of CPC to allow the application. Hence, the I.A. for additional documents is rejected.

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In respect of the contention raised by the Insurance Company with respect to awarding interest at the rate of 8% p.a. by the tribunal is exorbitant is concerned, it is relevant to state that as per the circular issued by the Reserve Bank of India, the accident occurred during 2011, the rate of interest to be paid was fixed at 6.5%. Accordingly, the claimants would be entitled to the interest at the rate of 6.5% p.a. instead of 8% p.a. awarded by the tribunal.

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In respect of the contention raised by the claimants regarding compensation awarded by the tribunal towards loss of dependency is concerned, it is relevant to state that as on the date of accident, the deceased was earning Rs.8,000/- to Rs.10,000/- per month, to substantiate the same the claimants have not have not produced any documents. Therefore, the tribunal is right in assessing the notional income of the deceased at Rs.6,000/- per month, which is as per the

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chart prepared by the Lok Adalath for assessing the income for the unskilled labourers and the same is taken into consideration for the purpose of assessing the compensation towards loss of dependency. Further, the tribunal erred in adding 30% towards future prospectus and the Hon’ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and Ors. reported in AIR 2017 SC 5157 , it is held that in case the deceased was self employed or fix salaried, deceased below 40 years, addition of 40%; between 40 to 50 years, addition of

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25%; and between 50 to 60 years, addition of 10% of established income to be made while determining the future prospects. In the present case the deceasedNagaraj was aged about 33 years at the time accident and accordingly, the loss of dependency would be reassessed as under:

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Rs.6,000/- + 40% x 12 x 16 x 2/3 = Rs.10,75,200/-

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Further, the compensation awarded by the tribunal towards loss of consortium, transportation of dead body, funeral, obsequies and other incidental expenses, and loss of estate are on the lower side and as per the judgment of the Hon’ble Apex Court in the case of Pranay Sethi and Ors. (Supra), a sum of Rs.15,000/- towards loss of estate, Rs.40,000/towards loss of consortium and Rs.15,000/- towards funeral expenses is awarded to the claimants.

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Further, the second claimant is the son of the deceased-Nagaraj, the tribunal has not justified in granting the compensation of Rs.10,000/- towards of

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loss of filial love and as per the judgment of the Hon’ble Supreme Court in the case of Magma General Insurance Co. Ltd., vs. Nanu Ram and Ors. reported in 2018 ACJ 2782, a sum of Rs.40,000/instead of Rs.10,000/is awarded towards loss of filial love and the compensation awarded by the tribunal towards medical expenses is unaltered. Therefore, the compensation awarded by

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the Tribunal is reassessed as under:

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Loss of dependency	Rs.10,75,200/-
Loss of consortium	Rs.40,000/-
Loss of filial love	Rs.40,000/-
Towards medical expenses incurred	Rs.5,754/-
Transportation of dead body, funeral, obsequies and other incidentalcharges	Rs.15,000/-
Loss ofestate	Rs.15,000/-
TOTAL	Rs.11,90,954/-

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Accordingly, the appeal filed by the Insurance Company and the cross-objection filed by he cross-objectors stand allowed in part and the claimants are entitled to the compensation of Rs.11,90,954/- instead of Rs.10,44,154/- with interest

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at the rate of 6.5% p.a. instead of 8% from the date of the petition till the date of deposit, awarded by the tribunal. The order of apportionment and deposit ordered by the Tribunal shall hold good for the compensation awarded in this appeal.

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The appellant-Insurance Company is directed deposit the entire compensation amount before the tribunal within six weeks from the date of receipt of a copy of this order.

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The office is directed to transmit the amount in deposit, if any, before this Court to the tribunal for disbursement forthwith .

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Vnp*

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Sd/-

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JUDGE

Roopa W/O. Nagaraj Meharwade v. Saiman W/O. Frances Bareto

Case brief

What is this about?

What did the court decide?

Roopa W/O. Nagaraj Meharwade v. Saiman W/O. Frances Bareto

Case brief

What is this about?

What did the court decide?

What the court decided

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