Partly allowed

The Oriental Insurance Co. Ltd. v. Smt Reshma

Karnataka HC22 Jun 2021MFA/2426/2013

Case brief

AI extract

What is this about?

In two MFAs under the 2019 Amendment, one by the insurance company opposing negligence and quantum, and another by claimants seeking enhanced compensation, the High Court held that the insurance company failed to prove the deceased stood on the foot board. Consequently, the insurance appeal was dismissed, while the claimants' appeal was partly allowed with enhanced compensation.

What did the court decide?

The claimants' appeal was partly allowed; compensation enhanced to Rs. 9,77,200/- with interest at 6% p.a. from the date of the petition, excluding the failed period; insurance company to deposit the

The Oriental Insurance Co. Ltd. Vs Smt Reshma — Motor Accident Claims | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF JUNE, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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M.F.A.NO.2426/2013 (MV) C/W. M.F.A.NO.1349/2019 (MV)

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IN M.F.A.NO.2426/2013:

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BETWEEN:

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THE ORIENTAL INSURANCE CO. LTD., NO.364/1, 10^TH ‘B’ MAIN SRINIVASA MANSION JAYANAGARA, 3^RD BLOCK BENGALURU-560 011

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DULY REPRESENTED BY:

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THE REGIONAL MANAGER THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE LEO SHOPPING COMPLEX 44/45, RESIDENCY ROAD BENGALURU-560 025 BY ITS MANAGER … APPELLANT [BY MRS.H.C.LOKESHWARI, ADVOCATE for Sri A. RAVISHANKAR, ADVOCATE]

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AND:

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1 . SMT. RESHMA AGED ABOUT 34 YEARS W/O LATE ABDUL SALAM @ SREENIVASA

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2 . MUBHARAK AGED ABOUT 16 YEARS S/O LATE ABDUL SALAM @ SREENIVASA

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3 . SHABANA AGED ABOUT 14 YEARS D/O LATE ABDUL SALAM @ SREENIVASA

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RESPONDENT NOS.1 TO 3 ARE RESIDENT BEHIND A.C.OFFICE MADHUGIRI TOWN-572 132

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4 . SRI M.V. RUDRARADHYA AGED ABOUT 53 YEARS S/O VISWARADHYA 1^ST BLOCK, B.B.ROAD MADHUGIRI-572 132

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5 . SMT. YELLAMMA AGED ABOUT 84 YEARS R/O NEAR THENGINAMARADA BHAVI ROAD, BEHIND A.C.OFFICE MADHUGIRI-572 132

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5(A). SMT. PUTTAMMA W/O VASUDEV AGED ABOUT 40 YEARS KANNADA YUVAKA SANGHA TENGINA MARADA BHAVI ROAD BEHIND A.C.OFFICE, MADHUGIRI.

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(AMENDMENT CARRIED OUT AS PER COURT ORDER DATED 21.01.2021)

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… RESPONDENTS

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[BY MR.K.SHANTHARAJ, ADVOCATE FOR R1 TO R3 (R2 AND R3 ARE MINORS REPRESENTED BY R1); MR.G.V.DAYANANDA, ADVOCATE FOR R4; R5(A) IS SERVED]

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 09.08.2012

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PASSED IN MVC.NO.42/2009 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, MACT-XIII, MADHUGIRI, AWARDING A COMPENSATION OF Rs.5,34,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.

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IN M.F.A.NO.1349/2019:

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BETWEEN:

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1 . RESHMA W/O LATE ABDUL SALAM @ SRINIVASA

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AGED ABOUT 40 YEARS

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2 . MUBARAK

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S/O LATE ABDUL SALAM @ SRINIVASA AGED ABOUT 22 YEARS

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3 . SHABANA

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D/O LATE ABDUL SALAM @ SRINIVASA AGED ABOUT 20 YEARS

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ALL ARE RESIDING AT BEHIND A.C.OFFICE MADHUGIRI TOWN-572 132. … APPELLANTS

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[BY MR.K.SHANTHARAJ, ADVOCATE]

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AND:

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1 . M.V. RUDRARADHYA S/O VISWARADHYA AGE: MAJOR R/AT 1^ST BLOOK, B.B.ROAD MADHUGIRI-572 132.

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2 . THE ORIENTAL INSURANCE COMPANY LIMITED BY ITS MANAGER NO.364/1, 10^TH ‘B’ MAIN ROAD SRINIVASA MANSION

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JAYANAGARA 3^RD BLOCK BENGALURU-560011. … RESPONDENTS

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[BY MRS.H.C.LOKESHWARI,, ADVOCATE for Sri A. RAVISHANKAR, ADVOCATE FOR R2; VIDE ORDER DATED 28.05.2021

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SERVICE OF NOTICE TO R1 IS DISPENSED WITH]

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 09.08.2012 PASSED IN MVC.NO.42/2009 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND MACT-XIII, MADHUGIRI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE MFAs’ COMING ON FOR ORDERS THROUGH ‘VIDEO CONFERENCE’ THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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Though these matters are listed for orders today, with the

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consent of both the learned counsel it is taken up for final disposal.

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These two appeals are filed by the Insurance Company and the claimants, respectively, challenging the Judgment and Award dated 09.08.2012 passed in M.V.C.No.42/2009 on the file of Additional Senior Civil Judge and MACT XIII at Madhugiri (‘the Tribunal’ for short), questioning the

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negligence on the part of the driver of the bus and also the quantum of compensation awarded by the Tribunal.

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The parties are referred to as per their original rankings before the Tribunal to avoid confusion and for the convenience of the Court.

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The factual matrix of the case is that on 28.12.2008 at 7:00 p.m, when the deceased Abdul Salam @ Srinivasa was proceeding in the bus, who met with an accident near E.G.Hally gate at Jalli Mission on Gowribidanuru-Madhugiri road. The accident was on account of the sole negligence on the part of the driver of the bus.

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The Insurance Company appeared through Counsel and filed a detailed objections statement contending that the deceased was proceeding on the foot board on the rear side of the bus, standing on the foot board of the bus and hence, he also contributed for the negligence.

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The claimants in order to substantiate their claim, they have examined the first claimant as P.W.1 and also examined P.W.2 and got marked the documents as Exs.P1 to P8.

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On the other hand, the respondents have not led any evidence, however, got marked the document as Ex.R1-Policy Schedule by the concerned.

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The Tribunal, after considering both oral and documentary evidence available on record, allowed the claim petition of the petitioners in part granting compensation of Rs.5,34,000/- with 6% interest per annum from the date of petition till its realization and not accepted the defense of the Insurance Company. Hence, the present appeals are filed by the Insurance Company as well as the claimants.

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The learned counsel appearing for the

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appellant/Insurance Company in MFA No.2426/2013 would vehemently contend that the deceased Abdul Salam @ Srinivasa was travelling in the bus on the foot board and the same is in violation of Section 123 of the Motor Vehicles Act, 1988 (‘MV Act’ for short) and the Tribunal ought to have taken note of the same when the charge sheet and other records clearly borne out from the records that he was travelling in the bus standing on the foot board. It is also contended that the Tribunal has committed an error taking the income of Rs.3,500/- per month and with regard

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to the quantum also, higher compensation has been awarded. The learned counsel for the appellant reiterates the grounds urged in the appeal. Hence, it requires an interference of this Court.

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Per contra, learned counsel appearing for the claimants would vehemently contend that the accident was taken place in the year 2008 and the monthly income taken was very less i.e., Rs.3,500/- and also not taken future prospects under the head of loss of dependency. He would further contend that the Tribunal has not awarded just and reasonable compensation on other conventional heads also. Hence, it requires interference of this Court.

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Having heard the arguments of learned counsel appearing for the Insurance Company and the learned counsel appearing for the claimants and on perusal of the grounds urged in the appeal and the materials available on record, the points that would arise for consideration of this Court are:

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(i) Whether the Tribunal has committed an error in not considering Section 123 of the MV Act?

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(ii) Whether the Tribunal has committed an error in not awarding the just and reasonable compensation and whether it requires an interference of this Court?

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(iii) What order?

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Point No.(i):

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Having heard the respective counsel and on perusal of the material available on record, it is specifically contended that the accident occurred on account of the sole negligence on the part of the driver of the bus. The claimants in order to substantiate their case mainly relied upon the documents i.e., Ex.P1-FIR, Ex.P2-Charge Sheet, Ex.P3-P.M. report and Ex.P4Police Notice, and examined P.W.2. In Exs.P1 and P2, a specific allegation is made against the driver of the bus, who drove the bus in a rash and negligent manner from Kodigenahally towards Madhugiri with high speed in a rash and negligent manner and the deceased, who was travelling on the rear side door of the bus, sustained grievous injuries and succumbed to the injuries in the General Hospital, Tumakuru on 05.01.2009.

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The Tribunal while considering issue No.3 regarding

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negligence is concerned held that P.W.2, who was travelling in

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the bus on the date of the accident has deposed that a person, who had fallen out of the bus was the deceased. He boarded the bus at E.G.Hally gate and he had stood near the front door entrance. There were said to be 80-90 passengers and even he had stood in the bus. His stray sentence that were about 80-90 passengers by itself cannot prove that there was violation of the terms and conditions of the policy. Usually even in the private bus, there will be issue of the tickets and also that there will be maintenance of the trip sheet by which it can be elicited exactly how many passengers were travelling at that particular point of time, but no such documentary evidence is placed before the Court. The deceased is said to have stood on the foot board on the rear side of the bus, standing on the foot board of the bus cannot be a ground to discard the claim petition when he is a paid passenger. It has to be noted that the Insurance Company though took specific defense in the written statement that the deceased was travelling by standing on the foot board and in order to substantiate he same, none of the witnesses have been examined before the Tribunal. Merely relying upon the document i.e., charge sheet, the Court cannot come to a conclusion unless

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the same has been proved by examining the witnesses.

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The very contention of the learned counsel for the appellant is that the Charge Sheet material borne out that he was proceeding by standing on the foot board and the said contention cannot be accepted unless a cogent evidence has been placed before the Court and also not examined the Investigating Officer, who is the person filed the charge sheet. In the absence of any contra evidence, the contention of the Insurance Company cannot be accepted. The Insurance Company even not made any efforts to examine either eyewitness or Investigating Officer or any other person to substantiate their claim. Hence, I do not find any error committed by the Tribunal in not accepting the defense of the Insurance Company.

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The very contention of the learned counsel for the Insurance Company is that there is a violation of Section 123 of the MV Act. I have already pointed out that whether there was a violation and it has not been substantiated by examining any of the witnesses. Mere taking the defense is not enough and the same has to be proved by examining the witnesses. Hence, I do

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not find any force in the contention of the Insurance Company. Hence, I answered point No.(i) as ‘negative’.

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Point No.(ii):

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Having heard the respective counsel in MFA No.1349/2019 and also on perusal of the material, the contention of the learned counsel for the appellants/claimants is that the Tribunal has taken the income of the deceased at Rs.3,500/- per month. The accident was of the year 2008. In the absence of any documentary proof with regard to the income, the Tribunal ought to have taken the notional income at Rs.4,500/- per month. Taking the notional income of the deceased at Rs.4,500/- per month, since the deceased was aged about 32 years, 40% is to be added towards future prospects which comes to Rs.1,800/-. After adding the future prospects, the monthly salary of the deceased would be Rs.6,300/- per month.

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The claimants are the wife and the children and also the mother. The learned counsel for the second respondent/Insurance Company would submit that the mother is no more after filing of this appeal. The said contention cannot

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be accepted and cause of action arises on account of death of the deceased in view of the accident. At the time of the accident mother was alive and she was also a dependant. Hence, 1/4^th has to be deducted from Rs.6,300/- which comes to Rs.1,575/-. If Rs.1,575/- is deducted from Rs.6,300/-, the monthly salary of the deceased would be Rs.4,725/- (6,300-1,575). The relevant multiplier applicable to the case on hand is 16. Taking the income of the deceased at Rs.4,725/- and applying the relevant multiplier 16, the ‘loss of dependency’ comes to Rs.9,07,200/(4,725x12x16).

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In view of the Judgment of the Apex Court reported in (2017) 16 Supreme Court Cases 680 in the case of NATIONAL INSURANCE COMPANY LIMITED V. PRANAY SETHI AND OTHERS, the appellants/claimants are entitled for compensation of Rs.70,000/- under the ‘conventional heads’.

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With regard to the interest portion is concerned, this Court vide order dated 28.05.2021, while condoning the delay of 2293 days in filing the appeal passed an order that the appellants/claimants would not be entitled for any interest for the delayed period of 2293 days, in case of enhancement of

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compensation. Hence, the appellants are not entitled for any interest for the delayed period of 2293 days in filing the appeal.

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Point No.(iii)

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In view of the discussions made above, I pass the

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following:

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ORDER

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(i) The appeal filed by the Insurance Company in MFA No.2426/2013 is dismissed.

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(ii) The appeal filed by the claimants in MFA No.1349/2019 is allowed in part.

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(iii) The Judgment and Award dated 09.08.2012 passed in M.V.C.No.42/2009 on the file of Additional Senior Civil Judge and MACT XIII at Madhugiri, is modified granting compensation of Rs.9,77,200/- as against Rs.5,34,000/- excluding the interest for a period of 2293 days in filing the appeal awarded by the Tribunal with interest at 6% per annum from the date of the petition till its realization.

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(iv) The Insurance Company is directed to deposit the amount within six weeks from the date of receipt of copy of this order.

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(v) The amount in deposit, if any, deposited by the Insurance Company is ordered to be transmitted to the concerned Tribunal, forthwith.

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Sd/JUDGE

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cp*

The Oriental Insurance Co. Ltd. v. Smt Reshma

Case brief

What is this about?

What did the court decide?

The Oriental Insurance Co. Ltd. v. Smt Reshma

Case brief

What is this about?

What did the court decide?

What the court decided

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