Partly allowed

M/s. New India Assurance Company Limited v. Savithri

Karnataka HC5 Jan 2021MFA/4501/2016

Case brief

AI extract

What is this about?

High Court ordered a fresh compensation assessment in a motor accident death claim. Court rejected the insurer's appeal regarding negligence but allowed dependents' appeal to enhance compensation based on Apex Court guidelines for notional income and future prospects.

What did the court decide?

Enhanced compensation awarded to claimants at Rs. 13,19,600/- with interest at 6% p.a., superseding the Tribunal's award of Rs. 10,47,000/-

M/s. New India Assurance Company Limited Vs Savithri — Cheque Dishonour | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF JANUARY 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 V. SRISHANANDA

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MFA NO. 4501/2016 C/W MFA No. 6591/2016

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IN MFA NO. 4501/2016: BETWEEN:

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M/s. New India Assurance Company Limited Shri Ram Building, Near Head Post Office Udupi. Now rep. by its Appeals Hub Divisional Office - III No. 9/2, Mahalakshmi Chambers M. G. Road, Bengaluru - 560001 Rep. by its Duly Constituted Attorney

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... APPELLANT

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(By Sri. A. M. Venkatesh, Adv.,)

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AND:

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Savithri

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W/o. Vijay Poojary Aged about 47 years

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Vijaya Poojary S/o. Late Giriya Poojary Aged about 49 years

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Both are R/at 'Sadguru Kripa' Thenkumane Kudiyoor village and post Udupi Taluk and District-576 101.

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Vijaya S. Bhandari S/o. Subbayya Bhandari Kodrasharma Thenkanidiyoor village Udupi Taluk and District-576 101.

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RESPONDENTS

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(By Sri. Ganesh. R., Adv. for R1 and R2. R3-served)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 22.04.2016 PASSED IN MVC NO.544/2014 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL MACT, UDUPI, AWARDING COMPENSATION OF RS.10,47,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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IN MFA No. 6591/2016: BETWEEN:

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Savithri. V W/o. Vijay Poojary Aged about 47 years

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Vijaya Poojary S/o. Late Giriya Poojary Aged about 49 years

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Both are R/at 'Sadguru Kripa' Thenkumane, Kidiyoor Village and Post Udupi Taluk and District - 576101.

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...APPELLANTS

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(By Sri. Ganesh. R. Adv.,)

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AND:

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Vijaya S. Bhandari S/o. Subbayya Bhandari Kodrasharma Thenkanidiyoor village Udupi Taluk and District.

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The New India Assurance Co. Ltd., Sri Ram Building, Near Head Post Office Udupi Taluk and District - 576101.

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...RESPONDENTS

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(R-1 - notice dispensed with vide order dated 9.12.2020 By Sri. A. M. Venkatesh, Adv., for R2)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 22.04.2016 PASSED IN MVC NO.544/2014 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE M.F.As. COMING ON FOR ADMISSION , THIS DAY, V. SRISHANANDA J., THROUGH VIDEO CONFERENCING DELIVERED THE FOLLOWING:

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J U D G M E N T

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The Insurance Company and the claimants are in appeal challenging the validity of the Judgment and Award dated 22nd April 2016 passed in MVC No.544/2014 by the

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Additional Senior Civil Judge and Addl. MACT, Udupi (hereinafter referred to as the “ Tribunal ” for short).

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The brief facts, which are necessary for disposal of these appeals are as under:

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A claim petition came to be filed under Section 166 of the Motor Vehicles Act contending that on 02.12.2013 Bipin V. Poojary was proceeding on a motor-cycle bearing No.KA-20-L-7458 as a pillion-rider from Kidiyoor towards Malpe and when they reached near Kalmady main road of Kodavoor village, a bus bearing Registration No.KA-209698 came in a rash and negligent manner and dashed against the motor-cyclist from the hind side. As a result, pillion-rider of the motor-cycle fell down and sustained grievous injuries. Sri.Bipin V.Poojary was shifted to Hitech Hospital, Udupi and then to KMC Hospital, Manipal. Despite the best treatment, he did not survive. The claimants further contend that they being the dependants on the income of the deceased, have sought for awarding suitable compensation.

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In pursuance of the notice issued, first respondent-owner of the offending bus remained absent and he was placed exparte. Second respondent appeared through advocate and resisted the claim petition by filing objection statement denying the averments of the claim petition in toto.

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

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(1) Whether petitioners prove that their son namely Bipin V. Poojary died in an accident took place on 02.12.2013 near Kalmady main road of Kodavoor Village, when he was going in a motor cycle bearing registration No. KA-20-L-7548 as pillion rider, due to the rash and negligent driving of the driver of the bus bearing registration No.KA20/9698 and dashed against the motor cycle?

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(2) Whether petitioners are entitled for the compensation? If so, what is the quantum?

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(3) What order or award?

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In order to prove the claim petition averments,

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first claimant got examined himself as P.W.1 and Preetham was examined as P.W.2 and relied on 11 documentary evidence which were exhibited and marked as Exs.P.1 to P.11. On behalf of the Insurance Company, there was oral evidence adduced and copies of insurance policy was marked as Ex.R1.

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On cumulative consideration of the oral and documentary evidence on record, the Tribunal allowed the claim petition in part awarding a sum of Rs.10,47,000/-. It is that judgment which is under challenge by the Insurance Company as well as the claimants.

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Learned counsel appearing for the Insurance Company contended that the Tribunal wrongly appreciated the evidence on record as there was no negligence on the part of the driver of the bus. He further contended that at least the Tribunal should have taken into consideration some amount of contributory negligence on the rider of the motor-cycle. He also contended that the Tribunal failed to

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notice that the claim petition was bad for non-joinder of necessary parties. He further contended that the Tribunal grossly erred in awarding the compensation by adding 50% towards future prospects and also erred in taking the monthly income of the deceased. He further contended that the deceased being the bachelor, the Tribunal ought to have deducted 50% towards personal expenses in considering the loss of dependency and should have adopted the multiplier '14'. He further contended that the Tribunal misjudged itself while awarding the quantum of compensation in a proper manner.

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Per contra, the learned counsel for the claimants contended that the award of compensation by the Tribunal is on the lower side and sought for suitable enhancement.

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In view of the rival contentions of the parties, the sole point that would arise for consideration is:

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"(i) Whether the finding recorded by the Tribunal that the accident has occurred solely

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on the negligence of the driver of the bus is erroneous?

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(ii) Whether the quantum of compensation adjudged by the Tribunal is just compensation?

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The answer to the above point is in the negative for the following:

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REASONS

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In the case on hand, the pillion rider namely Bipin V.Poojary, having lost his life on account of the accidental injuries that occurred on 02.12.2013 at Kalmady main road of Kodavoor village involving motor-cycle bearing No.KA-20-L-7458 and the bus bearing No.KA-209698 is not in dispute.

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Admittedly, the Police, after thorough investigation, filed the charge sheet against the driver of the bus.

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The spot sketch that was produced and marked at Ex.P5 would depict the scene of the incident. The oral

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testimony of P.W.2 is taken into consideration by the Tribunal who is an eye-witness to the incident and rider of the motor-cycle. In his cross-examination, a suggestion is made that there was no accident at all. When such being the situation, for the first time before this Court without there being sufficient pleading and proof, Insurance Company urging that the Tribunal ought to have attributed some amount of contributory negligence to the rider of the motor-cycle cannot be countenanced. Accordingly, Point No.1 is answered.

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In so far as quantum of compensation is concerned, admittedly, the deceased was aged about 18 years. It has been contended that he was working as a Fisherman. In the absence of any formal proof of income, the Tribunal assessed the monthly income at Rs.6,000/per month for the accidental claim of the year 2013. But, this Court and Lok Adalaths would normally assess the notional income at the rate of Rs.8,000/- per month for the accidental claim of the year 2013. As per the decision

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of the Hon’ble Apex Court in the case of National

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Insurance Company Limited vs. Pranay Sethi and

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others reported in (2017) 16 SCC 680 , the claimants would be entitled to additional 40% on the notional income and 50% is to be deducted as the deceased was a bachelor for calculating towards future prospectus which works out to Rs.12,09,600/- [8,000/- + 3,200 = 11,200/2 = Rs.5,600/- x 12 x 18]. Under conventional heads, a sum of Rs.70,000/- is awarded to the first claimant. In so far as the second claimant is concerned, he is entitled for a sum of Rs.40,000/- towards filial affection. Accordingly, the quantum of compensation payable to the claimants is

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re-assessed as under:

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Head of account	Amount in Rs.
Towards Loss of dependency	12,09,600/-
including future prospectus
Towards love and affection	1,10,000/-
Total:	13,19,600/-

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In view of the aforesaid discussions, we pass the

following:

ORDER

(i) The appeal of the Insurance Company in MFA No.4501/2016 is rejected and the appeal of the claimants in MFA No.6591/2016 is allowed in part.

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(ii) In modification of the award passed by the Tribunal, the claimants are entitled to a sum of Rs.13,19,600/- with interest at 6% p.a., from the date of petition till realization as

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against a sum of Rs.10,47,000/- awarded by the Tribunal.

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(iii) Amount in deposit, if any, is ordered to be transmitted to the Tribunal

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forthwith.

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(iv) Balance amount is ordered to be deposited by the Insurance Company within six weeks from the date of receipt of a certified copy of this order.

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(v) Apportionment and deposits is as

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per the judgment and award of the Tribunal.

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(vi) Office to draw the modified award

accordingly.

Sd/JUDGE

Sd/JUDGE

BNV/PL*

M/s. New India Assurance Company Limited v. Savithri

Case brief

What is this about?

What did the court decide?

M/s. New India Assurance Company Limited v. Savithri

Case brief

What is this about?

What did the court decide?

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