Partly allowed

Smt Swarnalatha J Shetty v. National Insurance Co. Ltd.

Karnataka HC2 Dec 2020MFA/5952/2018

Case brief

AI extract

What is this about?

This Court disposed of two Motor Accidents Claims Appeals against a tribunal award. Upholding the liability finding of rash and negligent driving, the Court affirmed driver competency but modified the quantum of compensation from Rs.33,43,936 to Rs.30,28,601 based on different income assessment and deduction calculations.

What did the court decide?

Total compensation modified and reduced to Rs.30,28,601/-; Insurance Company's appeal allowed in part; Claimants' appeal dismissed.

Smt Swarnalatha J Shetty Vs National Insurance Co… — Motor Accident Claims | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 02^ND DAY OF DECEMBER, 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.5952 OF 2018(MV-D) C/W MFA.NO.4246 OF 2018(MV-D)

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IN MFA.NO.5952 OF 2018

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BETWEEN:

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1 . SMT. SWARNALATHA J SHETTY W/O LATE BONDALA JAGANNATH SHETTY AGED 45 YEARS

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2 . KUM. VARSHA SHETTY D/O LATE BONDALA JAGANNATH SHETTY AGED 23 YEARS

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3 . SMT. SAROJINI SHETTY W/O RAMANNA SHETTY AGED ABOUT 77 YEARS

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ALL ARE RESIDING AT BONDALA HOUSE SHAMBUR VILLAGE AND POST BANTWALA TALUK

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....APPELLANTS

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(BY SRI. GURUPRASAD .B.R, ADVOCATE)

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AND:

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1 . NATIONAL INSURANCE CO LTD ANAND BUILDING 1^ST FLOOR, NH-17 KULAI MANGALURU-575 019 REPRESNTED BY ITS MANAGER

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2 . BERNAD D SOUZA S/O LOUIS D SOUZA AGED ABOUT 68 YEARS R/O IDYA VILLAGE KATTLA SURATHKAL-575 014 MANGALORE TALUK

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….RESPONDENTS

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(BY SRI. O. MAHESH, ADVOCATE FOR R1 SRI. JEEVAN .K, ADVOCATE FOR R2)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 28.02.2018, PASSED IN MVC NO.1729/2012, ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE & MACT, MANGALURU, D.K., PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA.NO.4246 OF 2018

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BETWEEN:

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THE BRANCH MANAGER NATIONAL INSURANCE CO. LTD ANAND BUILDING 1^ST FLOOR, NH-17

KULAI, MANGALURLU

NATIONAL INSURANCE CO. LTD. REGIONAL OFFICE, NO. 144 SUBHARAM COMPMLEX, MG ROAD BANGLAORE-560 001 BY IT'S MANAGER

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....APPELLANT

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(BY SRI. O. MAHESH, ADVOCATE)

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AND:

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1 . SMT. SWARNALATHA J SHETTY AGE ABOUT 45 YEARS W/O. LATE BONDALA JAGANNATH SHETTY

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2 . KUM. VARSHA SHETTY AGED ABOUT 23 YEARS D/O. LATE BONDALA JAGANNATH SHETTY

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3 . MR. B. RAMANNA SHETTY AGE 86 YEARS S/O. JANARDHANA SHETTY

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4 . SMT. SAROJINI SHETTY AGE 77 YEARS W/O. B. RAMANNA SHETTY

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PERMANENT RESIDENT OF BONDALA HOUSE SHAMBUR VILLAGE AND POST BANTWALA TALUK-576 124

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5 . BERNAD D'SOUZA AGE 68 YEARS

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S/O. LUIS D'SOUZA IDYA VILLAGE, KATTLA SURATHKAL MANGALURU TALUK-575 001

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….RESPONDENTS

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(BY SRI. GURUPRASAD, B.R, ADVOCATE FOR R1, R2 & R4, SRI. JEEVAN .K, ADVOCATE FOR R5, V/O DATED 04.10.2018 R1, R2 & R4 ARE LRS OF R3)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 28.02.2018, PASSED IN MVC NO.1729/2012, ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE & MACT, MANGALURU, D.K., AWARDING COMPENSATION OF RS.33,43,936/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF ITS REALIZATION.

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

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JUDGMENT

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The claimant as well as the Insurance Company have preferred appeals challenging the judgment and award passed in MVC.No.1729/2012. The claimants have filed appeal in MFA.No.5952/2018 seeking enhancement of compensation whereas the Insurance Company has preferred appeal in

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MFA.No.4246/2018 challenging the liability as well as quantum.

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For the sake of convenience, the parties are

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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 specifically contending that husband of claimant No.1 namely Bondala Jagannatha Shetty was proceeding in his Toyota Fortuner car bearing Reg.No.KA-19-MC-4500 on 31.07.2012 and when he reached near Kallurutty Gudi (Shamboor cross Road) at about 10.30 p.m., the driver of the offending lorry bearing Reg.No.KA-19-AE-9951 loaded with gas cylinders came in a rash and negligent manner and dashed against the car in which the husband of claimant No.1 was proceeding. Due to the impact, the husband of claimant No.1 sustained grievous injuries and succumbed. The claimants specifically contended that deceased was hale and healthy at the time of accident

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and was aged 42 years. It was also contended in the claim petition that deceased was doing real estate business and had an income of Rs.6,00,000/- per annum. It was also stated in the claim petition that claimants were totally dependent on the income of the deceased. Hence, filed claim petition claiming compensation of Rs.2,00,00,000/-.

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The respondent No.2/Insurance Company, on receipt of notice, contested the proceedings by filing written statement. The respondent No.2/Insurance Company specifically contended that accident occurred on account of negligence on the part of the deceased himself. The Insurance Company further contended that driver of the offending lorry did not possess valid and effective driving licence to drive vehicle carrying dangerous or hazardous petroleum products.

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The respondent No.1, who is the owner of the offending lorry also contested the proceedings by filing written statement. He specifically contended that the vehicle involved

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in the accident was duly insured with the respondent No.2/Insurance Company. The allegation that the driver of the offending lorry was rash and negligent was seriously disputed by the respondent No.1 also.

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

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"1) Whether the petitioners proves that on 31.7.2012 at about 10.30 p.m. when deceased was traveling in his Toyota Fortuner car bearing Reg.No.KA-19-MC-4500 from Melkar towards his house, near Kallurty Gudi, Panemangalore village, Bantwal taluk, the driver of the Lorry bearing Reg.No.KA-19-AE-9951 drove the same from B.C.Road in a rash and negligent manner and dashed against the car and due to the said accident the deceased sustained grievous injuries and while taking him to the hospital he succumbed to the death?

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2) Whether the respondent No.2 proves that the accident was caused due to the rash and

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negligent driving of the car bearing Reg.No.KA-19MC-4500 by the deceased himself?

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3) Whether the respondent No.2 proves that the driver of Lorry bearing Reg.No.KA-19-AE-9951 has no valid licence at the time of accident?"

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The claimants in support of their contention examined the widow of the deceased as PW.1 and examined three witnesses as PWs.2 to 4. To corroborate ocular evidence, the claimants have produced documentary evidence vide Exs.P-1 to P-17. The respondent No.2/Insurance Company in support of its contention examined its official as RW.1 and examined 4 witnesses as RWs.2 to 5 and relied on rebuttal documentary evidence vide Exs.R-1 to R-20.

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The Tribunal having assessed the oral and documentary evidence answered issue No.1 in the affirmative holding that death of Bondala Jagannatha Shetty is on account of rash and negligent driving by the driver of the offending lorry. While determining the compensation, the Tribunal has assessed the income of the deceased at Rs.22,742/- by taking note of

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Ex.P-17 which is the E-statement of Income Tax returns. Having regard to the age of the deceased who was aged 43 years at the time of accident, the Tribunal by adding 25% towards future prospects has assessed the income of the deceased at Rs.28,428/- and by deducting 1/3^rd towards personal expenses and by applying the multiplier of 14 has awarded a sum of Rs.31,83,936/-. Under conventional heads, the Tribunal has awarded a sum of Rs.1,60,000/-. The Tribunal, in all, has awarded total compensation of Rs.33,43,936/-.

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Learned counsel appearing for the Insurance Company in MFA.No.4246/2018 would vehemently argue and contend before this Court that the findings recorded by the Tribunal on issue No.1 is palpably erroneous and contrary to clinching evidence on record. Relying on ocular evidence of RW.4, who happens to be the driver of the offending vehicle, he would contend that the ocular evidence of RW.4 coupled with the documentary evidence vide Ex.P-3 which is the

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Mahazar and Ex.P-8 which is the sketch would establish that the accident occurred solely on account of negligence on the part of the deceased himself and hence, the conclusion arrived at by the Tribunal while examining issue No.1 needs to be interfered by this Court. On quantum, he would submit to this Court that the Tribunal erred in relying on Ex.P-17 while assessing the income of the deceased. He would also submit to this Court that in the present case on hand, the Tribunal was not justified in adding 25% towards future prospects.

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Per contra, learned counsel appearing for the claimants in MFA.No.5952/2018 repelling the contentions raised by the Insurance Company would submit to this Court that the Tribunal erred in restricting the income of the deceased at Rs.22,742/- p.m. He would submit to this Court that the income assessed by the Tribunal is contrary to the clinching evidence on record. He would further submit to this Court that Tribunal ought to have added 40% towards future prospects and further, having regard to the number of

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dependents ought to have deducted 1/4^th instead of 1/3^rd . On these of set of grounds, learned counsel for the claimants would submit to this Court that there is scope for enhancement in the present case on hand.

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Heard learned counsel appearing for the claimants and learned counsel appearing for the Insurance Company. Perused the pleadings of the rival parties and have gone through the oral and documentary evidence on record.

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Regarding negligence:

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Both the parties have lead in evidence on negligence. We have meticulously examined the ocular evidence of the claimants. The driver of the offending lorry is examined as RW.4. Learned counsel appearing for the Insurance Company while addressing his arguments was persistent in his stand and made a submission that the offending lorry was traveling from South to North. This submission is factually incorrect. We have perused the

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contents in the FIR and the averments made in the claim petition. From the records, it is clearly evident that offending lorry was coming from North and was heading towards South i.e., from B.C.Road to Melkar. On perusal of spot sketch as per Ex.P-8, it is forthcoming that the driver of the offending lorry has virtually crossed the notional median and the point of impact is beyond notional median. On perusal of spot sketch, it is clearly evident that the driver of the lorry has virtually crossed the notional median and has dashed against the vehicle in which the deceased was proceeding. This sketch at Ex.P-8 is also corroborated by the police records as per Ex.P-1 (FIR), Ex.P-3 (mahazar) and Ex.P-5 (charge sheet). On reassessing the entire evidence on record, we are of the opinion that the Tribunal was justified in answering point No.1 in the affirmative. The reasons and conclusions arrived at by the Tribunal while dealing with issue No.1 does not suffer from any infirmities. In that view of the matter, we do not find any reason to interfere with the finding of the Tribunal on issue

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No.1. Accordingly, the contention raised by the Insurance Company on negligence is rejected.

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Regarding liability:

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On perusal of Ex.R-15, it is clearly evident that the

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driver of the offending vehicle was competent to drive the vehicles carrying hazardous petroleum products. On perusal of Ex.R-15, it is forthcoming that the driver of the offending lorry had a licence to drive the transport vehicle. In that view of the matter, the contention of the learned counsel for the Insurance Company that the driver of the offending lorry had not undergone training is factually incorrect and contrary to evidence on record. On perusal of Ex.R-16, it is forthcoming that he has undergone training and a certificate is also produced for having undergone training in safe transportation of hazardous petroleum products. In that view of the matter, the contention raised by the learned counsel for the Insurance Company that the Tribunal erred in fastening liability on the

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Insurance Company is not at all sustainable. Accordingly, the same is rejected.

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Regarding Quantum:

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The claimants have placed on record the Income Tax returns for the years 2010-11, 2011-12 and 2012-13 as per Ex.P-17. However, we are not inclined to take into consideration the Income Tax returns for the assessment year 2012-13 since the same is submitted after the death of the assessee. By taking aggregate of the Income Tax returns for the years 2010-11 and 2011-12, we would assess the income of the deceased at Rs.2,16,275/- per annum. Having regard to the age of the deceased, we would add 25% towards future prospects. Hence, the income of the deceased is assessed at Rs.2,70,343/-. By deducting 1/4^th and by applying the multiplier of 14, the compensation payable under the head of loss of dependency works out to Rs.28,38,601/(2,70,343x14x3/4). Under conventional heads, claimant No.1 is entitled for a sum of Rs.40,000/- towards spousal

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consortium, claimant No.2 is entitled for Rs.40,000/- towards parental consortium and claimant Nos.3 and 4 are entitled for Rs.40,000/- each towards filial consortium and Rs.30,000/- is awarded towards loss of estate and funeral expenses. Thus, the total compensation re-determined by this Court comes to Rs.30,28,601/- as against Rs.33,43,936/- awarded by the Tribunal.

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Hence, the following:

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ORDER

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i) MFA.No.4246/2018 filed by the Insurance Company is allowed in part and MFA.No.5952/2018 filed by the claimants stands dismissed.

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ii) The total compensation awarded by the Tribunal is modified and reduced to Rs.30,28,601/- as against Rs.33,43,936/- 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. viii) All pending I.As., if any, stand disposed of.

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Sd/JUDGE

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Sd/JUDGE

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Smt Swarnalatha J Shetty v. National Insurance Co. Ltd.

Case brief

What is this about?

What did the court decide?

Smt Swarnalatha J Shetty v. National Insurance Co. Ltd.

Case brief

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