Partly allowed

The Oriental Insurance Co. Ltd. v. Prakash

Karnataka HC29 Jun 2021MFA/4405/2013

Case brief

AI extract

What is this about?

This bench disposed of three motor accident fatal appeals. The Court quashed the 70:30 contributory negligence ratio as binding precedent, recalculated compensation on loss of dependency using a higher notional income, and enhanced the award, dismissing insurer appeals challenging the negligence ratio.

What did the court decide?

Enhanced compensation of Rs.7,08,960/- granted with 6% interest; 70:30 negligence ratio affirmed; insurer appeals dismissed.

The Oriental Insurance Co. Ltd. Vs Prakash — 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 29^TH 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.9094/2013 (MV)

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C/W. M.F.A.NO.4405/2013 (MV) M.F.A.NO.4406/2013 (MV)

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IN M.F.A.NO.9094/2013 (MV):

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BETWEEN:

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1 . PRAKASH

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NOW AGED ABOUT 48 YEARS

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S/O PUTTASWAMYGOWDA

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2 . MANIAMMA

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NOW AGED ABOUT 42 YEARS W/O PRAKASH

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3 . PUTTASWAMYGOWDA

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NOW AGED ABOUT 77 YEARS S/O LATE APPAJIGOWDA

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4 . HOMBAMMA

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NOW AGED ABOUT 72 YEARS W/O PUTTASWAMYGOWDA

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ALL RESIDENTS OF BASAVANAHALLIKOPPALU VILLAGE BASAVANAHALLI POST, RAMANATHAPURA HOBLI ARAKALGUD TALUK PRESENTLY RESIDING AT

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C/O CHANNEGOWDA, NERALE VILLAGE BIDARAKKA POST, HALLIMYSORE HOBLI HOLENARASIPUR TALUK HASSAN DISTRICT-573201. … APPELLANTS

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(BY SRI KASHINATH J.D., ADVOCATE FOR M/S.PEOPLE’S LAW, ADVOCATE)

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AND:

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1 . T. THIMMEGOWDA NOW AGED ABOUT 47 YEARS S/O LATE THIMMEGOWDA KSRTC BUS DRIVER RAMANATHAPURA DEPOT ARAKALGUD TALUK HASSAN DISTRICT-573102

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2 . DEPOT MANAGER, KSRTC RAMANATHAPURA DEPOT (HASSAN DIVISION) ARAKALGUD TALUK HASSAN DISTRICT-573102 REPRESENTED BY DIVISIONAL CONTROLLER KSRTC, HASSAN DIVISION HASSAN DISTRICT-573201

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3 . SRI B.K. VISHWANATH NOW AGED ABOUT 52 YEARS S/O LATE KALEGOWDA BASAVANAHALLIKOPPALU VILLAGE BASAVANAHALLI POST RAMANATHAPURA HOBLI ARAKALGUD TALUK HASSAN DISTRICT-573102

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4 . BRANCH MANAGER THE ORIENTAL INSURANCE CO. LTD., NO.1001/56, 2^ND FLOOR JAYALAKSHMI MANSION

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4^TH BLOCK, DR RAJKUMAR ROAD, RAJAJINAGAR, BENGALURU-560010 REPRESENTED BY THE BRANCH MANAGER THE ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE C.NANJAPPA COMPLEX SUBHASH CHOWK HASSAN DISTRICT-573201 (POLICY NO.423200/31/2010/9742 VALID FROM 18.3.2010 TO 17.3.2011) ... RESPONDENTS

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(BY SRI G.M.CHANDRASHEKAR, ADVOCATE FOR R2; SRI M.S.SRIRAM, ADVOCATE FOR R4)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.02.2013 PASSED IN MVC.NO.2102/2011 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-2, MACT, HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN M.F.A.NO.4405/2013 (MV):

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BETWEEN:

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THE ORIENTAL INSURANCE CO. LTD., BRANCH MANAGER DIVISIONAL OFFICE C.NANJAPPA COMPLEX SUBHASH SQUARE, HASSAN THROUGH REGIONAL OFFICE SUMANGALA COMPLEX 2^ND FLOOR, LAMINGTON ROAD HUBBALLI-580020 BY DULY CONSTITUTED ATTORNEY REPRESENTED BY ITS ASST. MANAGER … APPELLANT

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(BY SRI M.S.SRIRAM, ADVOCATE)

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AND:

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1 . PRAKASH S/O PUTTASWAMYGOWDA AGED ABOUT 48 YEARS

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2 . MANIYAMMA @ MANI W/O PRAKASH AGED ABOUT 42 YEARS

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3 . PUTTASWAMYGOWDA S/O LATE APPAJIGOWDA AGED ABOUT 77 YEARS

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4 . HOMBAMMA W/O PUTTASWAMYGOWDA AGED ABOUT 72 YEARS

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ALL R/AT ARAKALGUD TALUK RAMANATHAPURA HOBLI BASAVANAHALLI VILLAGE AND POST

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PRESENTLY RESIDING AT C/O CHANNEGOWDA, NERALE VILLAGE BIDARAKKA POST, HALLYMYSORE HOBLI HOLENARASIPURA TALUK HASSAN DISTRICT.

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T. THIMMEGOWDA S/O LATE THIMMEGOWDA AGED ABOUT 47 YEARS KSRTC BUS DRIVER RAMANATHAPURA DEPOT ARAKALGUD TALUK HASSAN DISTRICT-573102

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6 . DIVISIONAL MANAGER, KSRTC RAMANATHAPURA DEPOT HASSAN DIVISION

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ARAKALGUD TALUK HASSAN DISTRICT REPRESENTED BY DIVISIONAL CONTROLLER KSRTC, HASSAN DIVISION HASSAN DISTRICT.

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7 . SRI B.K. VISHWANATH S/O LATE KALEGOWDA AGED ABOUT 52 YEARS R/AT BASAVANAHALLIKOPPALU VILLAGE BASAVANAHALLI POST RAMANATHAPURA HOBLI ARAKALGUD TALUK HASSAN DISTRICT. ... RESPONDENTS

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(BY SRI KASHINATH J.D., ADVOCATE FOR R1, R2 AND R4; SRI MAHANTESH S. HOSMATH, ADVOCATE FOR R7; R3, R5 AND R6 ARE SERVED)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.02.2013 PASSED IN MVC.NO.2102/2011 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-2, MACT, HASSAN, AWARDING A COMPENSATION OF Rs.4,48,200/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

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IN M.F.A.NO.4406/2013 (MV):

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BETWEEN:

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THE ORIENTAL INSURANCE CO. LTD., BRANCH MANAGER DIVISIONAL OFFICE C.NANJAPPA COMPLEX SUBHASH SQUARE, HASSAN THROUGH REGIONAL OFFICE SUMANGALA COMPLEX 2^ND FLOOR, LAMINGTON ROAD HUBBALLI-580020

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BY DULY CONSTITUTED ATTORNEY REPRESENTED BY ITS ASST. MANAGER … APPELLANT

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(BY SRI M.S.SRIRAM, ADVOCATE)

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AND:

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1 . MANJEGOWDA S/O LATE BASAVEGOWDA AGED ABOUT 52 YEARS

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2 . GIRIJAMMA W/O MANJEGOWDA AGED ABOUT 47 YEARS

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BOTH ARE R/A ARAKALGUD TALUK RAMANATHAPURA HOBLI BASAVANAHALLI POST BASAVANAHALLI KOPPALU PRESENTLY RESIDING AT C/O SANNAGOWRAIAH NERALE VILLAGE, BIDARAKKA POST HALLYMYSORE HOBLI HOLENARASIPURA TALUK HASSAN DISTRICT-573211.

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3 . T. THIMMEGOWDA S/O LATE THIMMEGOWDA AGED ABOUT 47 YEARS TOKEN NO.3219 DRIVER OF KSRTC BUS RAMANATHAPURA DEPOT ARAKALGUD TALUK

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HASSAN DISTRICT-573102

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4 . DIVISIONAL MANAGER KSRTC, RAMANATHAPURA DEPOT HASSAN DIVISION ARAKALGUD TALUK

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HASSAN DISTRICT REPRESENTED BY DIVISIONAL CONTROLLER KSRTC, HASSAN DIVISION HASSAN DISTRICT.

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5 . SRI B.K. VISWANATH S/O LATE KALEGOWDA AGED ABOUT 52 YEARS R/A BASAVANAHALLI KOPPALU VILLAGE BASAVANAHALLI POST RAMANATHAPURA HOBLI ARAKALGUD TALUK HASSAN DISTRICT. ... RESPONDENTS

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(BY SRI KASHINATH J.D., ADVOCATE FOR R1 AND R2; SRI MAHANTESH S. HOSMATH, ADVOCATE FOR R5; R3 IS SERVED; SMT.SHWETHA ANAND, ADVOCATE FOR R4)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.02.2013 PASSED IN MVC.NO.2105/2011 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-2, MACT, HASSAN, AWARDING A COMPENSATION OF Rs.6,23,200/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

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THESE MFAs’ COMING ON FOR ADMISSION 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 the matters are listed for admission today, with the consent of the learned counsel for the parties, they are taken up for final disposal.

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The appeals in M.F.A.Nos.9094/2013 and 4405/2013 are filed by the claimants and the Insurance Company challenging the judgment and award passed in MVC No.2102/2011 dated 4.02.2013 on the file of Fast Track Court-II and MACT, Hassan, questioning the quantum of compensation and contributory negligence in proportionate to the ratio of 70:30.

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The appeal in M.F.A.No.4406/2013 is filed by the Insurance Company challenging the judgment and award passed in MVC No.2105/2011 dated 4.02.2013 on the file of Fast Track Court-II and MACT, Hassan (‘the Tribunal’ for short), questioning the quantum of compensation and the contributory negligence in proportionate to the ratio of 70:30 on the driver of the bus and the rider of the motor cycle.

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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 due to the accident that had taken place on 16.2.2011, two persons died

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and hence, the claim petitions came to be filed by their representative before the Tribunal. The claimants, in order to substantiate their claims in the respective petitions, examined two witnesses as P.Ws.1 and 2 and got marked documents at Exs.P1 to 13 in MVC No.2102/2011 and Exs.P1 to P11 in MVC No.2105/2011. The respondents, on the other hand, examined four witnesses as R.Ws.1 to 4 and got marked a document at Ex.R1 in the respective petitions. The Tribunal, after considering both oral and documentary evidence, awarded the compensation of Rs.4,48,200/- in MVC No.2102/2011, which is challenged by the claimants in M.F.A.No.9094/2013 and awarded an amount of Rs.6,23,200/- in MVC No.2105/2011, which is challenged by the Insurance Company questioning the proportionate negligence.

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Learned counsel appearing for the claimants would vehemently contend that the Tribunal has committed an error in awarding the meager compensation on all heads and considered only an amount of Rs.4,000/- as the monthly income of the deceased while assessing the ‘loss of dependency’, which ought to have been taken at Rs.6,500/- per month as notional income

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in the absence of any documentary proof. The deceased was aged about 20 years and hence, the relevant multiplier applicable is 18. Hence, it requires interference of this Court in reconsidering the compensation on the head of ‘loss of dependency’.

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Per contra, learned counsel appearing for the

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Insurance Company would vehemently contend that the Tribunal has committed an error in taking the contributory negligence in proportionate ratio of 70:30 while considering the matter. Hence, it requires interference of this Court.

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Having heard the respective counsel and also on

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perusal of the materials available on record, the points that would arise for the consideration of this Court are:-

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

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Whether the Tribunal has committed an error in apportioning the negligence in the ratio of

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70:30 and whether it requires interference of this Court?

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3. What Order?

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Point No.1:-

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Having heard the respective counsel and also on

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perusal of the records, in MVC No.2102/2011, the Tribunal taken the income of the deceased at Rs.4,000/- per month. The accident is of the year 2011 and the deceased was aged about 20 years at the time of accident. The deceased was a bachelor. When the deceased was a bachelor and there is no documentary proof with regard to his income, the Tribunal ought to have taken the income of the deceased at Rs.6,500/- per month as notional income. Thus, the Tribunal committed an error in taking the income of the deceased at Rs.4,000/- per month. Hence, it is appropriate to take the income of the deceased at Rs.6,500/- per month as notional income in the absence of documentary proof and considering the age of the deceased as 20 years at the time of accident, 40% of his income is to be added. Since the deceased was a bachelor, 50% of the income

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is to be deducted towards his personal expenses. Accordingly, by applying the relevant multiplier as 18, the compensation on the head of ‘loss of dependency’ is recalculated as follows:-

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Monthly income – Rs.6,500/Add: 40% towards Future prospects - Rs.2,600/-------------Rs.9,100/Less: 1/2^rd towards Personal expenses - Rs.4,550/-------------Rs.4,550/-------------Loss of dependency = Rs.9,82,800/- (Rs.4,550/- x 12 x 18) --------------

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8. As held by the Apex Court in the case of NATIONAL

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INSURANCE COMPANY LIMITED v. PRANAY SETHI AND

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OTHERS reported in (2017) 16 SCC 680 , an amount of Rs.30,000/- is awarded on the conventional heads.

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Accordingly, in all, the claimants are entitled for an amount of Rs.10,12,800/-.

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Point Nos.2 & 3:-

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The main contention of the learned counsel for the Insurance Company is that the Tribunal has committed an error in assessing the contributory negligence in the ratio of 70:30 which ought to have been taken in the ratio of 50:50. It is not in dispute that the similar matter was considered by the Division Bench in M.F.A.No.5954/2013 filed by the claimants, wherein the contributory negligence apportioning the negligence to the extent of 70:30 was questioned and the same has been confirmed by the Division Bench vide its order dated 01.04.2015. In view of the decision already held by the Division Bench of this Court, the same cannot be urged before this Court and the same would be binding as the matter with regard to the proportionate contributory negligence has attained its finality. Hence, I do not find any reasons to interfere with the award of the Tribunal in MVC Nos.2102/2011 and 2105/2011 with regard the contributory negligence in the ratio of 70:30 and hence, I answer point No.2 in the negative.

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In view of the discussion held supra and also taking

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the contributory negligence in the ratio of 70:30, 30% of the compensation awarded in MFA No.9094/2013 is to be deducted towards negligence. After deducting so i.e., (Rs.10,12,800(30% of Rs.10,12,800) Rs.3,03,840=Rs.7,08,960/-), the compensation to which the claimants are entitled is for an amount of Rs.7,08,960/-.

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In view of the discussion made above, I pass the following:-

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ORDER

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(i) The appeal in M.F.A.No.9094/2013 filed by the claimants is allowed in part.

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(ii) The appeals in M.F.A.Nos.4405/2013 and 4406/2013 filed by the Insurance Company are dismissed.

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(iii) The judgment and award passed by the Tribunal in MVC No.2102/2011 is modified by granting compensation of Rs.7,08,960/- with interest at the rate of 6% per annum from the date of petition till realization as against Rs.4,48,200/-.

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(iii) Respondent-Insurance Company is directed to deposit the amount within 6 weeks’ from today.

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(iv) Registry to transmit the Trial Court Records to the concerned Tribunal, forthwith.

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(vi) The amount in deposit by the Insurance Company in M.F.A.Nos.4405/2013 and 4406/2013 shall be transmitted to the Tribunal, forthwith.

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Sd/JUDGE

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PYR

The Oriental Insurance Co. Ltd. v. Prakash

Case brief

What is this about?

What did the court decide?

The Oriental Insurance Co. Ltd. v. Prakash

Case brief

What is this about?

What did the court decide?

What the court decided

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