Partly allowed

The Branch Manager v. Smt. Avvamma

Karnataka HC17 Jun 2021MFA/2849/2019

Case brief

AI extract

What is this about?

The High Court allowed the appeal filed by the Insurance Company against the Motor Accident Claims Tribunal. The Court modified the awarded compensation by recalculating the income based on Karnataka Legal Services Authority guidelines and applying Supreme Court precedents, reducing the total amount.

What did the court decide?

Compensation reduced to Rs.18,38,828/- with interest at 6% p.a. awarded to claimants, modifying the Tribunal's judgment.

The Branch Manager Vs Smt. Avvamma — 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 17^TH DAY OF JUNE 2021

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PRESENT

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THE HON’BLE MR. JUSTICE ALOK ARADHE

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AND

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THE HON’BLE MR. JUSTICE HEMANT CHANDANGOUDAR

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M.F.A. NO.2849 OF 2019 (MV-D)

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BETWEEN:

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THE BRANCH MANAGER NATIONAL INSURANCE COMPANY LTD., SHRIKSHETHRA DHARMASTHALA BUILDING DHARMASTHALA BUILDING MAIN ROAD, PUTTUR TALUK DAKSHINA KANNADA-574 201 REPRESENTED BY THE REGIONAL MANAGER NATIONAL INSURANCE CO. LTD., NO.144, II FLOOR SHUBHARAM COMPLEX M.G. ROAD BANGALORE-1

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... APPELLANT

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

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AND:

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SMT. AVVAMMA W/O LATE ILYAS AGED ABOUT 42 YEARS.

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FATHIMATH ZOHARA D/O ILYAS AGED ABOUT 19 YEARS MAJOR

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SABANA D/O ILYAS, AGED ABOUT 15 YEARS

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SAFVANA D/O ILYAS AGED ABOUT 11 YEARS

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FATHIMATH SHIFA D/O ILYAS AGED ABOUT 7 YEARS

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RESPONDENT NO.1 TO 5 ARE ALL R/O 1-282 HARINAGARA HIREBANDADY VILLAGE PUTTUR TALUK D.K. 574 201

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RESPONDENTS 3 TO 5 ARE MINOR ARE REPRESENTED BY THEIR NEXT FRIEND NATURAL GUARDIAN, RESP.NO.1 MOTHER AVVAMMA W/O ILYAS

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K. EASUBU,MAJOR S/O SULAIMAN R/O RAMANAGAR UPPINANDAY POST PUTTUR TALUK, D.K. 574241

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... RESPONDENTS

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(RESPONDENTS SERVED AND UNREPRESENTED)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 14.12.2018 PASSED IN MVC 1267/2017 ON THE FILE OF THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER ADDITIONAL MACT, D.K. AWARDING COMPENSATION OF RS.20,96,000/- TOGETHER WITH INTEREST AT THE RATE OF 7% P.A. FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.

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THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY, HEMANT CHANDANGOUDAR J., DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short) is filed by the Appellant-Insurance company challenging the Judgment and award dated 14.12.2018 passed in MVC No.1267/2017 by the V Additional District and Sessions Judge and Member, Additional Motor Accident Claims Tribunal at Dakshina Kannada, Mangaluru.

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Facts giving rise to the filing of the appeal briefly stated are that the deceased Ilyas was working as a cleaner in Ecomet Lorry bearing registration No. KA-21-B-0607 and on 19.07.2017 at about 4.00 a.m. when the deceased was proceeding in the said lorry from Bangalore to Mangalore side and at a place called Malnad Hotel of Rekhya Village, Belthangady Taluk, D.K. the driver of the said lorry drove the same in a rash and negligent manner and went to the extreme left side of the road and dashed against the

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Container Lorry bearing registration No.KA-19-B-1139 which was parked in the mud road. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the same.

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The legal representatives of the deceased

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thereupon filed a petition under Section 166 of the Act claiming compensation on the ground that the deceased was aged about 47 years at the time of accident and was working as a cleaner of the lorry and was earning a sum of Rs.20,000/- per month. It was further pleaded that the accident took place solely on account of rash and negligent driving by the driver of the lorry. The claimants claimed compensation to the tune of Rs.40,00,000/- along with interest.

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4. The respondent No.1 filed the written statement

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stating that the driver of the Ecomet Lorry was driving the same slowly and steadily following all traffic rules and regulations. He further admits that the deceased was working as a Lorry cleaner under him and was earning Rs.20,000/- p.m. The said vehicle was insured with

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respondent No.2 and driver of the said lorry was possessing with valid driving licence at the time of the accident. The respondent No.2Insurance company filed written statement, in which the mode and manner of the accident was denied. It was also pleaded that the accident did not occur due to rash and negligent driving by the driver of the Ecomet Lorry but it was due to the negligence on the part of the driver of the Container Lorry who has not taken precautionary measures while parking the container lorry on the mud road. The age, avocation and income of the deceased was also denied and it was pleaded that the claim of the claimants is exorbitant and excessive.

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On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant No.1 examined herself as PW-1 and one witness as P.W.2 and got exhibited documents namely Ex.P1 to Ex.P11. The respondents did not lead any evidence However, got marked copy of insurance policy at Ex.R.1.

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The Claims Tribunal, by the impugned judgment,

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inter alia, held that the accident took place on account of rash and negligent driving by the driver of the container lorry. It was further held, that as a result of aforesaid accident, the deceased sustained injuries and succumbed to the same. The Tribunal further held that the claimants are entitled to a compensation of Rs.20,96,000 /- along with interest at the rate of 6% per annum.

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Learned counsel for the appellant- insurance company submitted that the Tribunal has grossly erred in assessing the income of the deceased as Rs.15,000/- in the absence of proof of income. It is further submitted that the compensation awarded under the other head and so also the rate of the interest at 7% p.a. are on the higher side. Hence seeks for reducing the compensation amount.

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The respondents -claimants though served with notice have remained absent.

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We have considered the submissions made by learned counsel for the parties and have perused the record.

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The only question which arises for our consideration in this appeal is with regard to the quantum of compensation. Admittedly, the claimants have not produced any evidence with regard to the income of the deceased. The accident is of the year 2017. It is also not in dispute that deceased at the time of accident was aged about 47 years. The claimants have not placed any evidence to substantiate their claim that the deceased was earning Rs.20,000/- p.m. However, the Tribunal has grossly erred in assessing the income of the deceased at Rs.15,000/- p.m. in the absence of evidence on record. Therefore, if notional income of the deceased is assessed as per the guidelines issued by the Karnataka Legal Services Authority, notional income comes to Rs.11,000/- per month.

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In view of the law laid down by the Constitution Bench of the Supreme Court in ‘ NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS’

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AIR 2017 SC 5157, 25% of the amount has to be added on account of future prospects. Thus, the monthly income comes to Rs.13,750/-. Since, the number of dependents are

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5, therefore, 1/4th of the amount has to be deducted towards personal expenses and therefore, the monthly dependency comes to Rs.10,313/-. Taking into account the age of the deceased which was 47 years at the time of accident, the multiplier of ‘13’ has to be adopted. Therefore, the claimants are held entitled to (Rs.10,313 x 12 x 13) i.e., Rs.16,08,828/- on account of loss of dependency.

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In view of laid down by the Supreme Court in ‘MAGMA GENERAL INSURANCE CO. LTD. VS. NANU RAM & ORS.’ (2018) 18 SCC 130, which has been subsequently clarified by the Supreme Court in ‘UNITED INDIA INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS.’ IN CIVIL APPEAL NO.2705/2020 DECIDED ON 30.06.2020 each of the claimant’s are entitled to a sum of Rs.40,000/- on account of loss of consortium and loss love and affection. Thus, the claimants are held entitled to Rs.2,00,000/-. In addition, claimants are held entitled to Rs.30,000/- on account of loss of estate and funeral expenses.

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Thus, in all, the claimants are held entitled to a total compensation of Rs.18,38,828/as against Rs.20,96,000/- awarded by the Tribunal. It is needless to state that the aforesaid amount shall carry interest at the rate of 6% p.a. from the date of filing of the petition till the realization of the amount of compensation. To the aforesaid extent, the judgment passed by the Claims Tribunal is modified.

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The Statutory amount in deposit in this appeal to be transmitted to the concerned Tribunal for disbursement to the claimants in accordance with law.

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Accordingly, the appeal is disposed of.

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Sd/JUDGE

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Sd/JUDGE

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The Branch Manager v. Smt. Avvamma

Case brief

What is this about?

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The Branch Manager v. Smt. Avvamma

Case brief

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