Partly allowed

C M Vinutha v. Sri Shivakumara Swamy

Karnataka HC23 Nov 2020MFA/5061/2019

Case brief

AI extract

What is this about?

The High Court dismissed the Insurance Company's appeal challenging liability and quantum. It partly allowed the claimants' appeal to enhance compensation, modifying the conventional head awards under the Somwati guidelines while upholding the dependency compensation.

What did the court decide?

The appeal by the claimants is partly allowed; conventional head compensation enhanced to Rs. 18,23,600 (up from Rs. 17,84,000) with interest at 6% p.a.; appeal by the Insurance Company dismissed.

C M Vinutha Vs Sri Shivakumara Swamy — Motor Accident Claims | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF NOVEMBER, 2020

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PRESENT

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THE HON'BLE MRS. JUSTICE S.SUJATHA

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AND

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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MFA.NO.5061 OF 2019 (MV-D) C/W MFA.NO.2867 OF 2019 (MV-D)

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IN MFA.NO.5061 OF 2019

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BETWEEN:

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1 . C. M. VINUTHA W/O LATE GIRISHA .B AGED ABOUT 24 YEARS HOUSE WIFE, R/O CARE OF C.M. CHANNAVEERASWAMY 6^TH WARD, SASALAWADA HIREHEGGADAHAL, KUDLIGI BELLARY-583 135

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2 . SMT RATHNAMMA .H .M W/O BASAVARAJAIAH AGED ABOUT 51 YEARS R/O TEMPLE STREET HARALAHALLI VILLAGE, DANDUR POST TARIKERE TALUK CHICKMAGALORE DISTRICT ....APPELLANTS (BY SRI. K.V. SATHISHCHANDRA, ADVOCATE)

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AND:

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1 . SRI SHIVAKUMARA SWAMY S/O VEERABHADRAIAH AGED ABOUT 38 YEARS R/O NO.36, 2^ND CROSS MEDARA KERI, VINOBANAGARA SHIVAMOGGA CITY-577 201

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2 . SRI NAVEEN .H .C S/O CHANDRAPPA .K .H AGED ABOUT 34 YEARS R/O RANGANATHA NILAYA GURUPURA SHIVAMOGGA CITY

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3 . THE NATIONAL INSURANCE CO. LTD. DIVISIONAL OFFICE, I FLOOR HARSHA COMPLEX, B H ROAD SHIVAMOGGA-577 201

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….RESPONDENTS

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(BY SMT. MANJULA .N. TEJASWI, ADVOCATE FOR R3 V/O DATED 23.11.2020 NOTICE TO R1 AND R2 D/W)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 06.12.2018 PASSED IN MVC NO.482/2017 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND MACT-8, SHIVAMOGGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA.NO.2867 OF 2019

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BETWEEN:

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NATIONAL INSURANCE COMPANY LTD . DIVISIONAL OFFICE 1^ST FLOOR, HARSHA COMPLEX B.H. ROAD, SHIVAMOGGA-577201 REPRESENTED BY THE REGIONAL MANAGER NATIONAL INSURANCE CO. LTD., REGIONAL OFFICE NO.144, II FLOOR SHUBHARAM COMPLEX M.G. ROAD BANGALORE-560 001 ....APPELLANT

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(BY SMT. MANJULA .N. TEJASWI, ADVOCATE)

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AND:

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1 . SMT. C. M. VINUTHA W/O LATE GIRISHA .B AGED ABOUT 24 YEARS R/O C/O C.M. CHANNAVEERASWAMY 6^TH WARD, SASALAWADA HIREHEGGADHALLI, KUDLIGI BELLARY-583 135 2 . SMT. RATHNAMMA .H .M W/O BASAVARAJAIAH AGE: 51 YEARS, MAJOR R/O TEMPLE STREET HARALAHALLI VILLAGE DANDUR POST,TARIKERE TALUK CHICKMAGALORE

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3 . SRI SHIVAKUMARA SWAMY

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S/O VEERABHADRAIH AGE 39 YEARS R/O NO.36, 2^ND CROSS MEDARA KERI, VINOBANAGARA SHIVAMOGGA-577 201

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4 . SRI NAVEENA H C S/O CHANDRAPPA K H AGE: 34 YEARS R/O RANGANATHA NILAYA, GURUPURA SHIVAMOGGA CITY-577 201

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….RESPONDENTS

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(BY SRI. K.V. SATHISHCHANDRA, ADVOCATE FOR R1 AND R2, V/O DATED 13.02.2020 NOTICE TO R4 IS D/W, NOTICE TO R3 IS SERVED & UNREPRESENTED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 06.12.2018 PASSED IN MVC NO.482/2017 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND MACT-8, SHIVAMOGGA, AWARDING COMPENSATION OF RS.17,84,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF THE PETITION TILL THE DATE OF DEPOSIT.

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THESE APPEALS COMING ON FOR ORDERS THIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:

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JUDGMENT

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The claimants as well as the Insurance Company have filed appeals challenging the judgment and award passed in MVC.No.482/2017. The claimants have filed appeal in MFA.No.5061/2019 seeking enhancement of compensation, whereas the Insurance Company has filed appeal in MFA.No.2867/2019 questioning the liability as well as quantum.

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

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The facts leading to the case are as under:

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The claimants filed claim petition by contending that husband of claimant No.1 namely, Girisha B. had been to Shiralakoppa along with his friends on 24.06.2015 in the Maruthi Omni Car owned by respondent No.1. It is specifically contended in the claim petition that about 7.30 p.m. when they reached Halkuni, the respondent No.2 i.e., the driver of the

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Omni car drove the same in a rash and negligent manner and when he encountered a cow which suddenly entered the road made an attempt to avoid collision with the cow and as a result of which he lost control over the vehicle and dashed against the road side tree. The claimants have stated that husband of claimant No.1 and other inmates sustained grievous and fatal injuries and they were immediately shifted to Sahyadri Narayana Hrudayalaya Hospital, where the said Girisha B. was treated. it is also stated that later he was shifted to Nanjappa Hospital, Shivamogga where he was treated as an inpatient from 09.07.2015 to 02.09.2015 and inspite of best medical treatment, he did not recover from the injuries and on 02.09.2015, he was discharged from the Hospital and referred to Nimhans. The claimants have stated that Girisha B. died on 03.09.2015. The claimants have contended that deceased Girisha was working as a

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Technician at Manjunatha Technical Services and was hardly aged 26 years and was getting a salary of Rs.10,943/- p.m. The claimants specifically contended that they were totally dependent on the income of the deceased and on account of untimely death have lost the sole bread earner and hence, filed claim petition claiming compensation of Rs.34,25,000/-.

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The respondent No.3/Insurance Company, on receipt of notice, contested the proceedings by filing written statement. The respondent No.3/Insurance Company specifically contended that the driver of the Omni car did not possess valid and effective driving licence. A plea was also set up that there is inordinate delay of 3 days in lodging the complaint with the police. It is also stated at para 5 of the written statement that the complaint is filed by one Prakash who is not the witness to the incident and the complaint lodged with the jurisdictional police station

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is fictitious and same is filed with a view to make a

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wrongful claim. At para 5, the respondent No.3/Insurance Company has also specifically contended that injured were admitted to the Hospital with the history of collision between Car and Bus. On these set of defence, the respondent No.3/Insurance Company prayed for dismissal of the claim petition by imposing exemplary cost.

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Based on the rival contentions, the Tribunal formulated the following issues:

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"1) Whether the petitioners prove that one Girisha B., sustained injuries in the accident that occurred on 24.06.2015 at about 7.30 p.m. near Hulkuni, ChoradiShikaripura Road, Shivamogga Taluk and succumbed to the injuries due to rash and negligent driving of the Omni Van bearing No.KA-14-N-9295 by its driver 2^nd respondent?

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2) Whether the petitioners are entitled for compensation as prayed for? If yes, what is the quantum of amount and who is liable to pay?

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3) Whether the petitioners are entitled for the relief claimed?

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4) What order or award?"

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The claimants in support of their contention, examined the mother of the deceased as PW.1 and in support of ocular evidence relied on documentary evidence vide Exs.P-1 to P-25. The respondent No.3/Insurance Company has examined its official as RW.1 and has only produced copy of insurance as per Ex.R-1.

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The Tribunal having examined the evidence on record, has answered issue No.1 in the affirmative by holding that Girisha B., succumbed to injuries on account of rash and negligent driving by the driver of the Omni Car bearing Reg.No.KA-41-N-9295. The Tribunal while determining compensation assessed the income of the deceased at Rs.9,000/- and by adding 40% towards future prospects assessed the income at Rs.12,600/- and by deducting 1/3^rd towards personal expenses and by applying the multiplier of 17 has

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awarded compensation of Rs.17,13,600/- under the head loss of dependency. Under conventional heads, the Tribunal has awarded a sum of Rs.70,000/-. The Tribunal, in all, has awarded a sum of Rs.17,84,000/with interest at 6% p.a. from the date of petition till the date of deposit.

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Learned counsel appearing for the

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Insurance Company in MFA.No.2867/2019 would vehemently argue and contend before this Court that the Tribunal has not at all examined the medical records which clearly demonstrate that there was a collision between car and bus and the claim petition is filed by twisting the facts deliberately with a malafide intention to claim compensation. She would further

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argue and contend before this Court that the fact that there is delay of three days in filing the complaint would clearly indicate that there was deliberation and false complaint is lodged by distorting facts. The

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grievance of the Insurance Company before this Court is that the Tribunal erred in not giving credence to the medical records which clearly depicts that the manner in which the accident has taken place. By misreading these documents, the Tribunal has arrived at a wrong conclusion and the finding recorded by the Tribunal on issue No.1 suffers from serious infirmities and the same would warrant interference by this Court. Learned counsel would further contend that since the Omni car was issued with a private car policy but, however, the same was used for commercial purpose and there being fundamental breach of policy condition, the Tribunal was not justified in fastening liability on the Insurance Company. On these set of grounds, she would submit to this Court that the appeal filed by the Insurance Company needs to be allowed by exonerating the Insurance Company.

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To buttress her argument, she has also relied on the judgment of the Apex Court in M/s. National Insurance Company Ltd., vs. Mr. Devaraju and Others rendered in MFA.No.8105/2011 decided on 22.07.2016 and also the law laid down by the Hon'ble Apex Court in United India Insurance Co. Ltd. vs. Rajendra Singh and Others, United India Insurance Co. Ltd., vs. Sanjay Singh and Others reported in AIR

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2000 SC 1165.

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Per contra, learned counsel appearing for

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the claimants in MFA.No.5061/2019 would vehemently argue and contend before this Court that the income assessed by the Tribunal is on the lower side . He would contend before us that there is clinching evidence indicating the income of the deceased and hence, the Tribunal was not justified in assessing the income of the deceased notionally. He would also

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submit to this Court that the compensation awarded under the conventional heads is on the lower side and the same needs to be modified by this Court. On negligence, learned counsel for the claimants would submit to this Court that claimants have placed cogent and clinching evidence and have established that it is the driver of the Omni car who was rash and negligent and caused death of B.Girisha. He would submit to this Court that the finding recorded by the Tribunal on issue No.1 is based on the evidence adduced by the claimants and in absence of rebuttal evidence by the Insurance Company and in that view of the matter, he would submit to this Court that the finding recorded by the Tribunal on issue No.1 does not suffer from any infirmities and would not warrant any interference by this Court.

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Heard learned counsel for the Insurance

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Company as well as learned counsel for the claimants.

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Perused the pleadings of the parties and have reassessed the entire oral and documentary evidence on record.

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The Insurance Company has taken a specific contention at para 5 of the written statement, wherein the Insurance Company has seriously disputed the accident as narrated by the claimants. It is specifically stated at para 5 that the medical records indicate that there was collision between car and bus. However, claim petition is filed by contending that since cow suddenly appeared on the road, the respondent No.2 who was driving the vehicle tried to avoid the cow and lost control and has dashed against the tree. The claimants to substantiate the contention have lead in ocular evidence and have examined PW.1 and have relied on FIR as per Ex.P-1, charge sheet as per Ex.P12 and spot mahazar as per Ex.P-13. By way of rebuttal evidence, the Insurance Company has

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examined RW.1, who is the Senior Assistant of respondent No.3/Insurance Company. In oral evidence, RW.1 has stated that the policy issued is a private car package policy. As on the date of accident, deceased Girisha was traveling in the said motor car who was working in Manjunatha Technical Services and he died while on duty. So on perusal of oral evidence of RW.1, it is forthcoming that the claim petition is resisted on the ground that the policy issued is a private car package policy and the same was used for commercial purpose. The plea set up in the written statement at para 5 that there was collision between car and bus is given a total go-by during trial. If RW.1 has not whispered anything about the manner in which the accident has occurred, the Insurance Company cannot be permitted to urge the said contention before this Court. In absence of rebuttal evidence, the said plea cannot be entertained

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at the appeal stage. There is absolutely no evidence to substantiate the plea raised at para 5 of the written statement. In absence of rebuttal evidence regarding the manner in which the accident has occurred, the Tribunal was left with the police records which are placed on record by the claimants. The Tribunal by following the judgment of the Hon'ble Apex Court has rightly taken a holistic view of the police records and has arrived at a conclusion that the death has occurred on account of rash and negligent driving by the driver of the car. Since Insurance Company has failed to substantiate its case, the Tribunal was justified in answering issue No.1 in the affirmative. We do not find any infirmities and thereby we affirm the reasonings assigned by the Tribunal on issue No.1. Accordingly, the above said plea raised by the learned counsel for the Insurance Company is negatived by this Court.

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We have gone through the judgment cited

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by the learned counsel appearing for the Insurance Company. Though we have no cavil in regard to proposition laid down by the Hon'ble Apex Court, however, the facts in the said judgment and in the present case on hand are totally different and the judgment relied by the learned counsel for the Insurance Company has no application to the present case on hand.

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Re: Quantum:

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On re-appreciation of evidence on record,

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we find that the income assessed by the Tribunal is perfectly correct. The Tribunal having regard to the age of the deceased has rightly added 40% towards future prospects. In that view of the matter, the compensation determined by the Tribunal under the head loss of dependency at Rs.17,13,600/- is fair and just and is in accordance with law and hence, the

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same would not warrant any interference by this Court. However, under conventional heads, we would find that the compensation of Rs.70,000/- is contrary to dictum laid down by the Hon'ble Apex Court in New

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India Assurance Company Limited vs. Somwati and Others reported in 2020 SCC Online SC 720 The claim petition is filed by the widow and mother of the deceased. In that view of the matter, by following the guidelines laid down by the Hon'ble Apex Court in Somwati's case, we would deem it fit to award Rs.40,000/- to the wife/claimant No.1 towards spousal consortium, Rs.40,000/- to the mother/claimant No.2 towards filial consortium and Rs.30,000/- towards loss of estate and funeral expenses. To this limited extent, the compensation determined by the Tribunal stands modified. Hence, the total compensation redetermined by this Court works out to Rs.18,23,600/as against Rs.17,84,000/- awarded by the Tribunal.

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11. Hence, the following:

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ORDER

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i) The appeal filed by the Insurance Company in MFA.No.2867/2019 stands dismissed and the appeal filed by the claimants in MFA.No.5061/2019 is partly allowed.

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ii) The total compensation awarded by the Tribunal is modified and enhanced to Rs.18,23,600/- as against Rs.17,84,000/- with interest at the rate of 6% per annum from the date of the claim petition till its realization.

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iii) The portion of the order of the Tribunal inasmuch as liability, apportionment and disbursement remains intact.

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iv) The Insurance Company shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order.

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v) The modified compensation amount shall be apportioned and disbursed in terms of the order of the Tribunal.

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vi) Draw modified award accordingly.

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vii) The Registry shall transfer the amount in deposit with original records to the jurisdictional Tribunal forthwith.

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viii) All pending I.As., if any, stand disposed of.

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Sd/JUDGE

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