Partly allowed

The Divisional Manager v. Smt. Vinoda W/O Gangaram Goudra

Karnataka HC20 Apr 2021MFA/101036/2018

Case brief

AI extract

What is this about?

Disconnect between insurance company and minor claimants regarding compensation for a fatal motor accident. Court upheld Tribunal's liability but enhanced compensation from approx 19 lakhs to approx 21 lakhs using Lokadalath chart factors and applied 6% interest.

What did the court decide?

Enhanced compensation of Rs. 21,04,250/- granted with 6% per annum interest from the date of petition.

The Divisional Manager Vs Smt. Vinoda W/O Gangaram Goudra — Insurance | Karnataka HC (2021)

¶1

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 20^TH DAY OF APRIL, 2021

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PRESENT

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THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR

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AND

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THE HON’BLE MR.JUSTICE E.S.INDIRESH

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M.F.A. No. 101036/2018 c/w M.F.A. No. 103004/2018 (MV)

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IN M.F.A. No. 101036/2018

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BETWEEN:

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THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE CO. LTD., BHAVANI CHAMBERS, NO. 1663, IIND FLOOR, RAMLINGA KHIND GALLI, BELAGAVI, R/BY DULY CONSTITUTED ATTORNEY, REGIONAL OFFICE, NEW INDIA ASSURANCE CO., LTD., REGIONAL OFFICE, PINTO ROAD, HUBBALLI-20.

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APPELLANT

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(BY SRI. S.V. YAJI, ADVOCATE)

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AND:

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SMT. VINODA W/O GANGARAM GOUDRA, AGE: 30 YEARS, OCC: HOUSEHOLD WORK, R/O: HOSETTI (GLIHALLI), POST: BIDI, TQ: KHANAPUR, DIST: BELAGAVI, PIN CODE: 591 106.

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KUMAR PRAJWAL S/O GANGARAM GOUDRA, AGE: 07 YEARS, OCC.: STUDENT.

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HANUMANTH S/O GANGARAM GOUDRA, AGE: 5 YEARS, OCC.: STUDENT.

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: 2 :

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KUMAR SURAJ @ PRAJWAL, S/O GANGARAM GOUDRA, AGE: 03 YEARS, OCC.: STUDENT.

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(RESPONDENT NO. 2 TO 4 BEING MINORS ARE R/BY NATURAL GUARDIAN AND MOTHER RESPONDENT NO.1)

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SMT. NINGAVVA W/O HANUMANTH GOUDRA, AGE: 65 YEARS, OCC: NIL, R/O: HOSETTI (GLIHALLI), POST: BIDI, TQ: KHANAPUR, DIST: BELAGAVI, PIN CODE: 591 106.

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ANIL KUMAR S. GUPTA, AGE: 52 YEARS, OCC.: BUSINESS, R/O: PLOT NO. 5, 1^ST FLOOR, SRI SWASTIK RESIDENCY, 5^TH CROSS, BHAGYA NAGAR, BELAGAVI, PIN CODE: 590 001.

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RESPONDENTS

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(BY SRI. HANUMANTH R. LATUR, ADVOCATE FOR R1 & R5, R2 TO R4 ARE MINORS REP. BY R1, SRI C.R. CHIKKAMATH, ADVOCATE FOR R6)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF M.V. ACT, AGAINST THE JUDGMENT AND AWARD DATED 17.01.2018 PASSED IN M.V.C. NO. 1271/2016 ON THE FILE OF THE MEMBER, AMACT & SR. CIVIL JUDGE, KHANAPUR & ETC.

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IN M.F.A. No. 103004/2018

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BETWEEN:

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SMT. VINODA W/O GANGARAM GOUDRA, AGE: 30 YEARS, OCC: HOUSEHOLD, R/O: HOSETTI, POST: BEEDI, PIN: 591 106, TQ: KHANAPUR, DIST: BELAGAVI.

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KUMAR PRAJWAL S/O GANGARAM GOUDRA, AGE: 7 YEARS, OCC: STUDENT, R/O: HOSETTI, POST: BEEDI, PIN: 591 106, TQ: KHANAPUR, DIST: BELAGAVI.

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KUMAR HANAMANT S/O GANGARAM GOUDRA,

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: 3 :

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AGE: 05 YEARS, OCC: STUDENT, R/O: HOSETTI, POST: BEEDI, PIN: 591 106, TQ: KHANAPUR, DIST: BELAGAVI.

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KUMAR SURAJ S/O GANGARAM GOUDRA, AGE: 2 YEARS, OCC: STUDENT, R/O: HOSETTI, POST: BEEDI, PIN: 591 106, TQ: KHANAPUR, DIST: BELAGAVI.

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SMT. NINGAVVA W/O HANUMANTH GOUDRA, AGE: 65 YEARS, OCC: NIL, R/O: HOSETTI (GLIHALLI), POST: BIDI, PIN: 591 106. TQ: KHANAPUR, DIST: BELAGAVI,

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SINCE APPELLANTS NO.2 TO 4 ARE MINORS, R/BY NATURAL GUARDIAN MOTHER APPELLANT NO.1 SMT. VINODA W/O GANGARAM GOUDRA, AGE: 30 YEARS, OCC: HOUSEHOLD, R/O: HOSETTI, POST: BEEDI, PIN: 591 106, TQ: KHANAPUR, DIST: BELAGAVI.

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APPELLANTS

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(BY SRI. HANAMANT R. LATUR, ADVOCATE)

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AND:

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SHRI ANILKUMAR S. GUPTA, AGE: 52 YEARS, OCC: BUSINESS, R/O: PLOT NO-5, 1^ST CROSS, SHRI SWASTIK RESIDENCY, 5^TH CROSS, BHAGYANAGAR, BELAGAVI, PIN:580 001, TQ & DIST: BELAGAVI.

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THE MANAGER, NEW INDIA ASSURANCE CO. LTD., BHAVANI CHAMBERS, (660402), NO-1663, II FLOOR, RAMLING KHIND GALLI, BELAGAVI, PIN: 580 001, TQ & DIST: BELAGAVI.

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RESPONDENTS

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(BY SRI. C.R. CHIKKAMATH, ADVOCATE FOR R1, SRI S.V. YAJI, ADVOCATE FOR R2)

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: 4 :

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THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR FINAL HEARING THIS DAY, SREENIVAS HARISH KUMAR , J, DELIVERED THE FOLLOWING:

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JUDGMENT

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These two appeals have been disposed of by a common judgment as they arise out of the judgment and award dated 17.01.2018 in M.V.C. No. 1271/2016 on the file of Additional Motor Accident Claims Tribunal and Senior Civil Judge, Khanapur (for short ‘Tribunal’).

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In the accident that took place at about 10.20 p.m., Gangaram, the husband of the first claimant, the father of claimants No. 2 to 4 and son of claimant no.5 was killed. The deceased was riding a motorcycle bearing reg. no. KA-22/U-8670. The accident took place due to head on collusion between the motorcycle and a Bolero vehicle bearing reg. no. KA-22/Z-9911. The age of the deceased is shown as 30 years in the postmortem report. He was an agriculturist. Deciding the claim petition, the Tribunal granted compensation of `19,02,000/- with interest at the rate of 9% p.a. from the date of petition till the date of payment. Aggrieved by this judgment the insurance company as well as the claimants have preferred these

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: 5 :

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appeals. If the insurance company has disputed its liability, the claimants have sought enhancement in compensation.

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We have heard Sri S.V. Yaji, learned counsel for the insurance company and Sri Hanamant R. Latur, learned counsel for the claimants.

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Sri S.V. Yaji submits that the insurance company disputes its liability on four grounds, namely, (1) the accident took place due to negligence of deceased also and therefore the Tribunal ought not to have fastened entire liability on the insurance company; (2) in proof of the age of the deceased, no document has been produced. The Tribunal has blindly taken the age of the deceased 40 years; (3) the income of the deceased has been taken as `9,000/- without there being any proof and (4) on the conventional heads, the Tribunal has granted excess compensation.

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Sri Hanamant R. Latur submits that the Tribunal has rightly assessed the evidence to come to the conclusion

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: 6 :

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that driver of the Bolero vehicle was responsible for the accident to occur. The charge sheet was filed against the driver of the Bolero. For the first time in this appeal, it is being urged that the deceased was also responsible for taking place of the accident and there is no specific plea in this regard in the written statement of the insurance company. According to him, compensation granted by the Tribunal is inadequate and requires to be enhanced.

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We have perused the records. Ex.P.4 is the sketch of the scene of the accident. The rider was coming from North to South and the Bolero vehicle was proceeding in the opposite direction. The accident appears to have taken place at the Eastern side of the road. It shows that the rider of the motorcycle was in the correct lane. In all probability the driver of the Bolero vehicle might have crossed his lane and hit the motorcycle. If the written statement of the insurance company is perused, it becomes very clear that it has not taken a specific contention with regard to the negligence on the part of the rider, what is found is general denial of the averment

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: 7 :

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that the accident took place owing to negligence of the driver of the Bolero vehicle. This is not enough.

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PW1 is not the eyewitness. However, if her cross examination is perused, except giving a suggestion that her husband was responsible for the accident, there is no effort to discredit her to bring to fore that the accident actually took place owing to negligence of the rider as well as the bolero vehicle driver. Cross examination is more concentrated towards possessing of the licence by the deceased. Therefore we do not find any material to come to conclusion that the rider of the motorcycle was also responsible for the accident. The Tribunal has in fact discussed the evidence at length to hold that the accident took place owing to negligence of the driver of the Bolero vehicle.

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The argument of Sri Yaji is that there is no proof with regard to age of the deceased. According to him, the age written in the postmortem report cannot be considered. He also submitted that since the age of the first claimant is shown as 28 years in the claim petition,

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: 8 :

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the deceased must be at least three years older than the first claimant. We are unable to concede to this argument. Ex.P.3 is the postmortem report where the age if shown as 30 years. Probably the age might have been revealed to the Doctor by some of the family members of the deceased. In the claim petition also age of the deceased is mentioned as 30 years. The age difference of two years between the husband and wife is probable. Therefore there is no discrepancy with regard to age of the deceased.

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With regard to quantum, even though we may uphold the argument of Sri Yaji the total compensation payable does not see reduction, rather, it works out more than what the tribunal has granted. The deceased was an agriculturist and it is highly difficult to accept any documentary proof for his monthly income. Though the Tribunal has held his monthly income at 9,000/-, if we apply the Lokadalath chart in connection with the accident that took place in the year 2016, the income that can be considered is 8,750/-. To this amount 40% can be added

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: 9 :

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towards future prospects and 1/4^th has to be deducted towards personal expenses. The multiplier applicable is ‘17’. Thus looked, the amount to be granted towards loss of dependency works out at 18,74,250/- [12,250/x12x17x3/4). To this amount 2,00,000/- may be added towards loss of consortium and love and affection because there are five claimants. An amount of 30,000/- is to be added towards funeral expenses and loss of estate. Therefore, the total compensation to be payable works out to 21,04,250/- as against 19,02,000/- awarded by the Tribunal.

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In view of the above discussion, we proceed to pass the following order.

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ORDER

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Both the appeals are allowed in part.

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The claimants are entitled to compensation of 21,04,250/- as against 19,02,000/- awarded by the Tribunal with interest at the rate of 6% p.a. from the date of petition till realisation.

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: 10 :

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The amount in deposit before this Court shall be transferred to the Tribunal for disbursement to the claimants.

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SD/JUDGE

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SD/JUDGE

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bvv

The Divisional Manager v. Smt. Vinoda W/O Gangaram Goudra

Case brief

What is this about?

What did the court decide?

The Divisional Manager v. Smt. Vinoda W/O Gangaram Goudra

Case brief

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What did the court decide?

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