Partly allowed

The Orinetal Insurance Co. Limited v. Vasanthi N Shetty

Karnataka HC23 Jun 2021MFA/7448/2016

Case brief

AI extract

What is this about?

The High Court enhanced compensation from Rs.19.39 lakhs to Rs.36.20 lakhs in a composite negligence case. It held the car insurer not liable as Act policy excludes occupant risk, directing the lorry insurer to pay the entire amount with right to recover the car owner's share.

What did the court decide?

Compensation enhanced to Rs.36,20,527/-; car insurer absolved; lorry insurer directed to pay total amount with liberty to recover owner's share.

The Orinetal Insurance Co. Limited Vs Vasanthi N Shetty — Insurance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF JUNE, 2021

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PRESENT

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THE HON’BLE MRS.JUSTICE S.SUJATHA

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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.7362/2016 c/w M.F.A.No.7448/2016 & M.F.A.No.8360/2016 (MV)

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IN M.F.A.No.7362/2016:

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BETWEEN :

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SMT.VASANTHI N. SHETTY W/O NARAYANA SHETTY, AGED ABOUT 52 YEARS, R/O MULUGUDDE HOUSE, RAGIHAKLU, HEROORU VILLAGE & POST, KUNDAPURA TALUK, UDUPI DISTRICT ...APPELLANT

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(BY SRI K.PRASANNA SHETTY, ADV.)

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AND :

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1 . SRI KARUNAKARA S/O NARAYAN GANIGA, AGED ABOUT 35 YEARS, R/O NANDIKESHWARA NILAYA, KARANATARABETTU, BIJOOR VILLAGE, KUNDAPURA TALUK-576201

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2 . THE ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE, VISHNUPRAKASH, 2^ND FLOOR, COURT ROAD, UDUPI-576101, BY ITS BRANCH MANAGER

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3 . Mr. NEOAL RONALD, MAJOR AP NEHRE, AMBEGAON TAL HAVELI, PUNE, MAHARASHTRA STATE

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4 . M/s FUTURE GENERAL INDIA INSURANCE CO. LTD., HEAD OFFICE PUNE, MAHARASTRA STATE, BY ITS GENERAL MANAGER …RESPONDENTS (BY SRI M.S.SRIRAM, ADV. FOR R-2; SRI RAVI S. SAMPRATHI, ADV. FOR R-4; R-1 SERVED; NOTICE TO R-3 HELD SUFFICIENT.)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 08.08.2016 PASSED IN MVC No.322/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE, MEMBER, MACT, KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN M.F.A.No.7448/2016:

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BETWEEN :

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THE ORIENTAL INSURANCE CO. LIMITED DIVISIONAL OFFICE, VISHNUPRAKASH, 2^ND FLOOR, COURT ROAD, UDUPI, BY ITS BRANCH MANAGER, DULY REP BY ITS MANAGER REGIONAL OFFICE, 2^ND FLOOR, SUMANGALA COMPLEX LAMINGTON ROAD, HUBLI-580020 ...APPELLANT

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(BY SRI M.S.SRIRAM, ADV.)

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AND :

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1 . VASANTHI N. SHETTY W/O NARAYANA SHETTY, AGED ABOUT 52 YEARS,

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R/O MULUGUDDE, RAGIHAKLU, HEROORU VILLAGE & POST, KUNDAPURA TALUK, UDUPI DISTRICT-576101

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2 . KARUNAKARA S/O NARAYANA GANIGA, AGED ABOUT 35 YEARS, R/O NANDIKESHWARA NILAYA, KARANATARABETTU, BIJOOR VILLAGE, KUNDAPURA TALUK-576201

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3 . Mr. NEOAL RONALD (MAJOR) AP NEHRE, AMBEGAON TAL HAVELI, PUNE, MAHARASHTRA STATE

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4 . M/s FUTURE GENERAL INDIA INSURANCE CO. LTD., HEAD OFFICE PUNE, MAHARASHTRA STATE, BY ITS GENERAL MANAGER …RESPONDENTS

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(BY SRI K.PRASANNA SHETTY, ADV. FOR R-1; SRI RAVI S. SAMPRATHI, ADV. FOR R-4;

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R-2 SERVED; VIDE COURT ORDER DATED 19.02.2021 NOTICE TO R-3 IS HELD SUFFICIENT.)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 08.08.2016 PASSED IN MVC No.322/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE, MEMBER, MACT, KUNDAPURA, AWARDING COMPENSATION OF Rs.19,39,610/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT IN TRIBUNAL.

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IN M.F.A.No.8360/2016:

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BETWEEN :

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M/s FUTURE GENERAL INDIA INSURANCE COMPANY LTD., HEAD OFFICE PUNE, MAHARASHTRA STATE

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REP BY BANGALORE OFFICE NO.31, 3^RD FLOOR, ABOVE CROMA SHOWROOM. SHRAVANEE KRISHNA MANSION, 100 FEET ROAD, 2^ND BLOCK, JAYANAGARA, BANGALORE-560011 REP BY ZONAL MANAGER ...APPELLANT

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(BY SRI RAVI S. SAMPRATHI, ADV.)

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AND :

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1 . SMT.VASANTHI N. SHETTY W/O NARAYANA SHETTY, AGED ABOUT 52 YEARS, R/O MULUGUDDE HOUSE, REGIHAKLU, HEROORU VILLAGE & POST, KUNDAPURA TALUK, UDUPI DISTRICT-576101

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2 . SRI KARUNAKARA S/O NARAYAN GANIGA, AGED ABOUT 35 YEARS, R/O NADIKESHWARA NILAYA, KARANATAREBETTU, BIJOOR VILLAGE, KUNDAPURA TALUK, UDUPI DISTRICT-576101 3 . M/s ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE, VISHNUPRAKSASH, 2^ND FLOOR, COURT ROAD, UDUPI-576101 REP BY ITS BRANCH MANAGER 4 . SRI NEOAL RONALD FATHERS NAME NOT KNOWN TO APPELLANT, MAJOR IN AGE, R/O AP NEHRE, AMBEGAON TAL HAVELI, PUNE, MAHARASHTRA STATE-410024 …RESPONDENTS (BY SRI K.PRASANNA SHETTY, ADV. FOR R-1; SRI M.S.SRIRAM, ADV. FOR R-3; R-2 SERVED; APPEAL DISMISSED AGAINST R-4.)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 08.08.2016 PASSED IN MVC No.322/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE, MEMBER, MACT, KUNDAPURA, AWARDING COMPENSATION OF Rs.19,39,610/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT OF COMPENSATION IN THE TRIBUNAL.

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THESE APPEALS COMING ON FOR HEARING, THIS DAY, S. SUJATHA, J ., DELIVERED THE FOLLOWING:

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J U D G M E N T

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Since these appeals arise out of the common

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judgment relating to the same accident, the matters are clubbed together and disposed of by this common judgment.

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Succinctly stated the facts are that the

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claimant instituted the petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the death of Sri. Sandeep N. Shetty in the road traffic accident.

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It was averred in the claim petition that on

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27.04.2012 at about 9.30 p.m., when the deceased was proceeding in a Maruthi Alto Car bearing registration

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No.KA-37-N-6789 from Kundapura towards Uppunda side along with his father, near Maraswami Temple at Marvanthe Village on NH-66, the driver of the Lorry bearing registration No.MH-12-FZ-8906 (offending vehicle) came from opposite direction in a rash and negligent manner and dashed against the Maruthi Alto Car. Due to said impact, Sandeep N Shetty sustained grievous head injuries. Immediately, he was shifted to Chinmayi Hospital, Kundapura and thereafter to KMC Hospital, Manipal for further treatment. However, he has not responded to the medical treatment and succumbed to the accidental injuries on 03.05.2012 while taking treatment in the Intensive Care Unit at KMC Hospital, Manipal.

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The claimants contended that the deceased

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was aged about 23 years at the time of the accident and working as an engineer at Mind Tree Ltd., at Bengaluru and drawing salary of Rs.30,452/- per month as on the

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date of the accident. Due to the untimely death of the deceased, the claimant has suffered mental trauma besides loss of dependency, loss of love and affection etc., On these set of facts and grounds, alleging actionable negligence on the driver of the lorry, the claimant sought for compensation.

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On service of summons, the owners of both

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the vehicles have not chosen to appear before the court hence they were placed ex parte . Both the insurance companies appeared and contested the matter. The Oriental Insurance Company Limited–insurer of the Alto car filed the written statement admitting the issuance of the ‘Act’ policy in respect of the said car denied the liability. It was further contended that as the said respondent-insurer is made as a formal party to the proceedings, no liability could be fastened on this respondent. It was also contended that the driver of the Alto car had no valid and effective driving licence to

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drive the said vehicle at the time of the accident; the accident occurred solely due to the rash and negligent driving of the driver of the offending vehicle.

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Insurer of the lorry M/s Future General India Insurance Company Limited filed a written statement admitting the issuance of the policy in respect of the lorry and contended that its liability is subject to the terms and conditions of the policy. The rash and negligence of the driver of the lorry was denied alleging sole negligence on the part of the driver of the Alto Car.

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On the basis of the pleadings, issues were formulated and answered by the Tribunal as per the reasons recorded in the impugned judgment allowing the claim petition in part awarding total compensation of Rs.19,39,610/- with interest @ 6% p.a. from the date of petition till the date of deposit apportioning the negligence to the extent of 60% on the driver of the car

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and 40% on the driver of the lorry. The liability was fastened on the owner and the insurer of the car jointly and severally to pay 60% of the compensation amount i.e., Rs.11,63,766/- and liability was fixed to pay 40% of the compensation amount of Rs.7,75,844/- on the owner and insurer of the lorry jointly and severally.

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Being aggrieved by the said judgment and

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award, MFA No.7362/2016 is filed by the claimant, MFA No.7448/2016 is filed by the insurer of the car and MFA No.8360/2016 is filed by the insurer of the lorry.

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Referring to the judgment of the Hon'ble

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Apex Court in Khenyei Vs. New India Assurance Company Limited and others reported in (2015)9 SCC 273 learned counsel for the claimant submitted that in case of composite negligence the claimant is entitled to sue both or any one of the joint tortfeasors and to recover the entire compensation as liability of joint tortfeasors is joint and several. The deceased being an

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occupant of the car, the principles of composite negligence could be applicable. Referring to the aforesaid judgment, it is submitted that the Tribunal ought to have directed the insurer of the lorry to pay the entire compensation amount with liberty to recover 60% of the compensation amount from the owner of the car.

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Learned counsel appearing for the claimant submitted that the quantum of compensation awarded by the Tribunal is inadequate. The Tribunal has failed to appreciate the material evidence on record, more particularly the employment letter Ex.P8 which demonstrates that the deceased was getting salary of Rs.31,430/-, PW-3 was examined in support of Ex.P8. The Tribunal has determined the monthly income of the deceased at Rs.16,236/- per month ignoring the cogent evidence placed on record.

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It was argued that the Tribunal grossly erred in applying the multiplier 13 in considering the

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age of the younger parent instead of considering the age of the deceased. It was further contended that the compensation awarded under the conventional heads is in pittance and the same deserves to be enhanced substantially.

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Learned counsel appearing for the appellant in MFA No.7448/2016 submitted that the vehicle-car was covered under the Act policy as such the risk of the occupant in the car is not covered. The deceased being an occupant of the car, no liability arises on the insurer. The Tribunal having accepted the coverage of Act policy and its scope, committed a palpable error in fastening the liability jointly and severally on the owner and insurer of the car, further directing the insurer to pay and recover the compensation of Rs.11,63,766/-. Learned counsel sought for allowing the appeal absolving the appellant-insurer from its liability and

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payment of the compensation amount to the claimant

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as directed by the Tribunal.

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Learned counsel appearing for the appellant in MFA No.8360/2016 submitted that the lorry vehicle was parked on the mud road. The material evidence would indicate the manner of accident. The relevant exhibit R4- sketch placed on record was not appreciated by the Tribunal in the right perspective; accident took place due to the sole negligence of the driver of the car. Having recorded the same, the Tribunal ought to have dismissed the petition against the appellant-insurer of the lorry. Attributing contributory negligence on the part of the driver of the lorry to the extent of 40% is unjust and improper. Learned counsel further argued that the quantum of compensation awarded by the Tribunal is excessive and the same deserves to be reduced.

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14. We have given our careful consideration to

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the arguments advanced by the learned counsel for the parties and perused the material on record.

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The points that arise for our consideration in these appeals are:

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1. Whether the Tribunal was right in fixing the negligence to the extent of 40% on the part of the driver of the lorry?

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2. Whether the risk of the occupant in a car is covered under the Act policy?

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3. Whether the quantum of compensation awarded by the Tribunal is just and proper?

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Re. Point No.1 :

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The accident in question occurred in the night hours at about 9.30 p.m. on NH-66. Ex.R4 is the spot sketch. On perusal of the said exhibit, it is evident that the lorry was parked on the mud road to the right side of the National Highway road heading towards Byndoor from Kundapur. The complaint was lodged by

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the driver of the lorry. As per the complaint, it is forthcoming that on the date of the accident, due to heavy storm, rain and heavy traffic, he has parked the lorry by the side of the road. He has been examined as RW-2. The complaint does not disclose the indicators or the parking light or any signal put by him while parking the vehicle. Though RW-2 has deposed that he had parked the lorry by giving indicator/sign, there is no corroborative evidence to prove the same as the complaint does not speak the same. RW-2 being an interested witness, mere say of the said witness could not be believed as true unless substantiated by material corroborative evidence. It is discernable from the records that RW-2 has not made any attempt to shift the injured to the hospital for treatment but rushed to the police station to lodge a complaint against the driver of the car.

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It is trite that the vehicles have to be parked

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in the designated place of parking. Merely to suit the convenience of the drivers, vehicles cannot be parked either in the National Highway or the mud road immediately abutting the Highway that too in the night hours. It is unrealistic to expect the vehicles moving in a high speed on the National Highway to visualize the vehicles parked in the mud road immediately abutting the National Highway. Parking the vehicle in an undesignated place itself is negligence. The reason for parking the vehicle in the night hours as stated by RW2 in the complaint is due to storm, rain and heavy traffic. This shows that there was no emergency like attending to any unforeseen event or a mechanical defect of the vehicle which would be caused while driving. In a casual and cavalier manner the vehicles cannot be parked on any side of the road unless there is a designated place for parking. Further, there is no evidence of any indicator/signal given to the vehicle

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plying on the road. Had the driver of the lorry taken adequate care and caution in parking the vehicle by giving indication or signal to the other vehicles moving on the road, causing of the accident would have been averted. The Tribunal on analyzing the material evidence has rightly arrived at the conclusion that the driver of the lorry to avoid any consequential repercussion has rushed to lodge a complaint sans attending the injured. Though the charge sheet has been filed by the police against the driver of the car, that would not finally prove the aspect of negligence unless corroborated by substantial evidence. Respondent No.4-the insurer of the lorry has produced statement of independent witness by name Sri.Dinesh Pai in support of its defence that the accident occurred due to the sole and rash and negligent driving of the driver of the car but not chosen to examine the said independent witness. Hence, no credential value could

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be given to the statement said to have been made by one Dinesh Pai.

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Similarly there is negligence on the part of the driver of the car who has driven with high speed in a rash and negligent manner and has moved the car to the right direction thereby hitting the parked lorry. Hence, there is composite negligence on the part of both the drivers of the car and the lorry as far as the deceased – occupant of the car is concerned.

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Having considered the manner of accident as per the records, the Tribunal has rightly fixed the negligence to the extent of 60% on the part of the driver of the car and 40% on the part of the driver of the lorry.

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Re. Point No.2:

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This issue is no more res integra in view of the judgment of the Hon'ble Apex Court in the case of National Insurance Company Limited V/s. Balakrishnan and Another reported in [2013] 1 SCC

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731 wherein, the Hon'ble Apex Court has categorically held thus:

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“In view of the aforesaid factual position, there is no scintilla of doubt that a “comprehensive/package policy” would cover the liability of the insurer for payment of compensation for the occupant in a car. There is no cavil that an “Act Policy” stands on a different footing from a “Comprehensive/Package Policy”. As the circulars have made the position very clear and the IRDA, which is presently the statutory authority, has commanded the insurance companies stating that a “Comprehensive/Package Policy” covers the liability, there cannot be any dispute in that regard. We may hasten to clarify that the earlier pronouncements were rendered in respect of the “Act Policy” which admittedly cannot cover a third party risk of an occupant in a car. But, if the policy is a “Comprehensive/Package Policy”, the liability would be covered. These aspects were not noticed in the case of Bhagyalakshmi (supra)

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and, therefore, the matter was referred to a larger Bench. We are disposed to think that there is no necessity to refer the present matter to a larger Bench as the IRDA, which is presently the statutory authority, has clarified the position by issuing circulars which have been reproduced in the judgment by the Delhi High Court and we have also reproduced the same.”

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In the light of the said judgment, it is thus well settled that third party risk of the occupant of the car is not covered under the Act policy. Indisputedly the policy issued by the insurer of the car Ex.R1 is an Act policy which was in force at the time of the accident. As such, liability could be fastened only on the owner of the car absolving the insurer. Thus, the liability fastened on the insurer and the owner of the car jointly and severally to pay 60% of the compensation is unjustifiable. This case is certainly covered by the judgment of the Hon'ble Apex Court in Khenyei , supra, as the deceased was an occupant of the car and

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the accident occurred due to the composite negligence of the drivers of both the vehicles. The Hon'ble Apex Court has categorically held that if two tortfeasors are impleaded in the case, apportionment for the negligence could be made by the Tribunal/court and awarded compensation has to be recovered from anyone of the tortfeasor. This judgment was rendered in the context of the vehicle/trailer-truck which was not insured with the insurer, was negligent to the extent of 2/3. It has been held that it would be open to the insurer being insurer of the bus after making payment to the claimant to recover from the owner of the trailer-truck the amount to the said extent in the execution proceedings. This judgment is squarely applicable to the facts of the case.

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Thus the insurer of the lorry would be liable

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to make the payment of the entire compensation awarded to the claimant and recover 60% of the same

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i.e., the liability of the owner of the car in the execution

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proceedings.

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Re. Point No3:

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It is discernable from the records that the deceased was working as a software engineer at Mind Tree Ltd., Bengaluru. Ex.P7 is the Authorization certificate and Ex.P8 is the employment details. In order to prove the said documents, PW-3 the official of the Mind Tree Ltd., Bengaluru has been examined by the claimants. Though the said witness has deposed that the deceased was earning Rs.31,430/- at the time of the accident but he has admitted in the cross-examination that as per the income tax returns, his annual income was Rs.1,94,838/-. It is depicted from the salary slips produced at Ex.P8 that the deceased had drawn salary for the months of January, February, March, April 2012 at Rs.23,381/-, Rs.20,003/-, Rs.24,753/and Rs.30,452/- respectively. As could be seen Rs.6,485/-

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was his basic salary and special allowance, shift allowance varies. In the month of April 2012, bonus of Rs.11,449/- has been earned. Having regard to these aspects, we deem it appropriate to take the average of the salary figured in the salary slips at Ex.P8 which works out to Rs.24,647/-. The annual income would be Rs.2,95,764/-. After deducting income tax and profession tax amounting to Rs.13,976/- as applicable during the relevant assessment year, adding 40% of the income towards future prospects, total income would be Rs.3,94,503/- p.a. As the deceased was aged 23 years at the time of the accident, the multiplier applicable would be 18 considering the age of the deceased, not 13 as applied by the Tribunal considering the age of the younger parent. This view is fortified by the judgment of the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others ((2017)16 SCC 680) . Accordingly, loss of

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dependency would work out to Rs.35,50,527/-

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[Rs.3,94,503 x 18x ½].

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In terms of the dictum laid down by the Hon'ble Apex Court in Pranay Sethi and New India

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Assurance Company Limited v/s. Somwati and others reported in (2020) 9 SCC 644 , the claimant is entitled to Rs.40,000/- towards loss of filial consortium; Rs.15,000/- towards loss of estate and Rs.15,000/towards funeral expenses.

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For the reasons aforesaid, the total compensation

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awarded by the Tribunal is re-assessed as under:

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Sl.No.	Particulars	Amount [in Rs.]
1.	Loss of dependency	35,50,527/-
2.	Loss of filial consortium	40,000/-
3.	Loss of estate	15,000/-
4.	Towards funeral expenses	15,000/-
	Total	36,20,527/-

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However, in view of the composite negligence

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attributed at 60% on the part of the owner of the car and 40% on the part of the owner and insurer of the lorry jointly and severally as the liability of the insurer of the car being absolved for the reasons stated supra, the liability to pay 60% of the compensation i.e., Rs.21,72,316/- as re-assessed is fastened on the owner of the car bearing registration No.KA-37-N-6789. Though M/s.Future General India Insurance

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Company Ltd., the insurer of the lorry bearing registration No.MH-12-FZ-8906 is liable to pay 40% of

¶131

the compensation amount i.e., Rs.14,81,821/-, the entire compensation amount of Rs.36,20,527 shall be paid by the insurer of the lorry with liberty to recover Rs.21,72,316/- from the owner of the car in terms of the judgment of the Hon'ble Apex Court in Khenyei supra. The aforesaid compensation amount shall be paid within a period of 90 days from the date of receipt of certified copy of the order.

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Hence, the following:

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ORDER

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i. The appeal filed by the claimant in MFA No.7362/2016 is allowed in part.

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ii. The total compensation awarded by the Tribunal is modified and enhanced to Rs.36,20,527/- as against Rs.19,39,610/with interest at the rate of 6% per annum from the date of the petition till its realization.

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iii. Respondent No.1- the registered owner of the car is liable to pay 60% of the compensation i.e., Rs.21,72,316/- and respondent Nos.3 and 4 are jointly and severally liable to pay 40% of the compensation i.e., Rs.14,48,211/- as determined by this Court. iv. In view of the principles laid down by the Hon’ble Apex Court in the case of Khenyei

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Vs. New India Assurance Company

¶140

Limited and others reported in (2015) 9 SCC 273 , the Insurer of the lorry is directed to pay the entire compensation amount within a period of 90 days from the date of receipt of copy of this order with liberty to recover 60% of the compensation amount i.e., Rs.21,72,316/- from respondent No.1registered owner of the Maruti Alto Car bearing Registration No.KA-37-N-6789.

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v. MFA No.7448/2016 filed by the Oriental Insurance Company Limited is allowed. Liability/payment and recovery fastened on the said Insurer is set aside.

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vi. MFA No.8360/2016 filed by the Future General Insurance Company Limited stands dismissed.

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vii. Out of the enhanced compensation amount, 50% shall be kept in the name of the

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appellant in Fixed Deposit in any of the nationalized bank for a period of three years with liberty to draw interest from time to time. Balance 50% shall be released to the appellant on proper identification, in accordance with law.

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viii. The Registry shall transfer the amount in deposit along with original records to the jurisdictional Tribunal forthwith.

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ix. Draw modified award accordingly. x. All pending I.As stand disposed of accordingly.

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Sd/JUDGE

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Sd/JUDGE

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PMR/Dvr/NC

The Orinetal Insurance Co. Limited v. Vasanthi N Shetty

Case brief

What is this about?

What did the court decide?

The Orinetal Insurance Co. Limited v. Vasanthi N Shetty

Case brief

What is this about?

What did the court decide?

What the court decided

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