Partly allowed

Smt Venkatamma v. Javaraiah

Karnataka HC1 Jun 2021MFA/9581/2017

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed the appeal in part against an arbitral award in a motor accident claim. The court held the Insurance Company liable for a pillion rider under a comprehensive policy, enhanced the compensation to Rs.17,43,528/- by adjusting income and dependency deduction, and awarded interest.

What did the court decide?

Compensation modified to Rs.17,43,528/- with interest at 6% per annum from date of petition; Insurance Company directed to deposit amount within 6 weeks.

Smt Venkatamma Vs Javaraiah — Cheque Dishonour | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST 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.9581/2017 (MV)

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BETWEEN:

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1 . SMT. VENKATAMMA W/O LATE MUTHURAMU AGED ABOUT 43 YEARS

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2 . SUDHA

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D/O LATE MUTHURAMU AGED AOBUT 25 YEARS

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3 . CHETHANA M S/O MUTHURAM

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AGED ABOUT 19 YEARS

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ALL ARE R/AT SRINIVASAPURA GATE KASABA HOBLI, MANDYA TALUK AND DISTRICT-571401.

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… APPELLANTS (BY SRI SANATH KUMARA K.M., ADVOCATE)

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AND:

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1 . JAVARAIAH

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S/O BELLARU SIDDAIAH R/AT NO.398, HOLALU VILLAGE DUDDA HOBLI, MANDYA TALUK AND DISTRICT-571401

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2 . THE MANAGER

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NATIONAL INSURANCE CO., LTD., NO.1576, 1^ST FLOOR V.V.ROAD, MANDYA-571401

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... RESPONDENTS

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(BY SRI H.R.RENUKA, ADVOCATE FOR R2; R1 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 22.08.2017 PASSED IN MVC.NO.1321/2014 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, MANDYA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS M.F.A. 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 matter is listed for admission today, with the consent of the learned counsel for both the parties, it is taken up for final disposal.

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This appeal is filed challenging the judgment and award dated 22.08.2017 in M.V.C.No.1321/2014 on the file of II Additional Senior Civil Judge and JMFC, Mandya (‘the Tribunal’ for short) questioning the quantum of compensation and also the liability.

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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 the claimants have filed the claim petition before the Tribunal claiming compensation on account of death of a person by name Mani due to the accident that took place on 13.10.2014 at about 1.00 to 1.30 p.m. on Mandya Malavalli Sulthan Road near Patel Swamy Malavalli Town, due to the actionable rash and negligent riding of the Hero Honda splendor plus motor cycle bearing registration No.KA-11/V-8332 by its rider. The claimants have contended in the claim petition that the deceased left behind his mother, the married sister, who is divorced and having a girl child and also the minor brother. The deceased was aged about 20 years at the time of the accident and he was working as a mason and earning an income of Rs.15,000/- per month. The said claim petition was resisted by filing the detailed statement of objections, denying the liability fastened on the Insurance Company to pay the compensation and also disputed the

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accident, age and income of the deceased. The claimants, in order to substantiate their claim, examined a witness as P.W.1, who is the first claimant and also examined two witnesses as P.Ws.2 and 3 and so also got marked the documents at Exs.P1 to P15. The respondents have not adduced any evidence, however, got marked the document Ex.R1 with consent. The Tribunal, after considering both oral and documentary evidence, allowed the claim petition in part by granting the compensation of Rs.14,56,000/- and fastened the liability on the owner by coming to the conclusion that as per Ex.R1 the pillion rider is not covered under the policy. Being aggrieved by the said award, the present appeal is filed by the claimants before this Court questioning the quantum of compensation as well as the liability.

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Learned counsel appearing for the appellants would vehemently contend that the Tribunal has committed an error in fastening the liability on the owner of the offending vehicle and that though the policy, which is marked as Ex.R1 is a comprehensive policy, the Tribunal has committed an error in coming to the conclusion that insurance policy does not cover

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the risk of a pillion rider. The second contention urged by the learned counsel for the appellants is that the Tribunal has taken the income of the claimant at Rs.6,500/- per month, though the accident had taken place in the year 2014 and the deceased was working as a mason and earning Rs.15,000/- per month.

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Learned counsel also would vehemently contend that the Tribunal has committed an error in deducting 50% of the income of the deceased towards personal expenses without considering the fact that the petitioners are the mother, minor brother and a widowed sister of the deceased. Hence, the Tribunal ought to have deducted 1/3^rd of the income towards his personal expenses and not 50%. Learned counsel would further contend that the compensation awarded on the other heads is also meagre and hence, it requires interference of this Court.

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Per contra, learned counsel appearing for the respondent would submit that the Tribunal has not committed any error in deducting 50% of the income of the deceased towards personal expenses since he was a bachelor. Further, there is no any income proof to the fact that he was earning an

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amount of Rs.15,000/- per month. Hence, the Tribunal has rightly taken the income of the deceased at Rs.6,500/- per month. The Tribunal also awarded higher compensation on the other conventional heads , which requires modification.

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Having heard the arguments of the learned counsel

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for the appellants as well as the learned counsel for the respondent and also on perusal of the records, the points that would arise for the consideration of this Court are:-

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(i) 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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(ii) What order ?

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Points No.1 and 2:-

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Having considered the arguments of the learned counsel for the respective parties, there is no dispute with regard to the accident is concerned, but the dispute is only with regard to fastening the liability on the owner rather than on the Insurance Company. Though the learned counsel for the

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respondent vehemently contends that the policy does not cover the risk of a pillion rider , it does not disputes the fact that the policy at Ex.R1 is a Comprehensive Policy. The Apex Court in National Insurance Company Ltd., v. Balakrishnan and Another reported in 2012(3) G.L.H. 748 and also in Oriental Insurance Company Limited v. Sudhakaran K.V and Others reported in (2008) 7 SCC 428 , has categorically held that the Insurance Company is not liable only in case, it is an Act Policy in respect of a pillion rider. If the policy is a Comprehensive Policy, the Insurance Company is liable to pay the compensation. Thus, the Tribunal has committed an error in fastening the liability on the owner by coming to the conclusion that the policy does not cover a pillion rider.

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In so far as the quantum of compensation is concerned, it is not in dispute that the accident had taken place in the year 2014, but the Tribunal has wrongly assessed the income of the deceased at Rs.6,500/- per month, which requires to be enhanced by taking the notional income at Rs.8,500/- per month in the absence of any documentary proof with regard to

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the income of the deceased. The relevant multiplier applicable to the case on hand is 18.

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Now the issue is with regard to deducting 50% of the income towards personal expenses. No doubt, the deceased is a bachelor, but he has left behind his widowed mother and also the minor brother along with the married sister, who has been deserted from her husband. Thus, the Tribunal has committed an error in deducting 50% of the income towards the personal expenses, which requires to be 1/3^rd and not 50% as contended by the learned counsel for the respondent. As there is no definite income of the deceased, the Court has to add 40% of the income since he was working as a mason as contended by the claimants. By adding 40% to the income i.e., (Rs.8,500x40%=Rs.3,400/-) + Rs.8,500/-, it comes to Rs.11,900/-. If 1/3^rd of the income is deducted towards the personal expenses i.e., (Rs.11,900x1/3^rd =Rs.3,967/-), the same would come to Rs.11,900-3,933=Rs.7,933/-. By applying the relevant multiplier as 18, the compensation of Rs.17,13,528/- is

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awarded under the head of loss of dependency as against Rs.14,04,000/- by working out as under:-

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Rs.7,933x12x18=Rs.17,13,528/-.

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The Tribunal has awarded an exorbitant

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compensation on the other conventional heads and hence, the same requires to be interfered with in view of decision of the Apex Court in Pranay Sethi’ s case, wherein the Apex Court has held that if the deceased is a bachelor, the claimant is entitled for a sum of Rs.30,000/- under the other conventional heads. Hence, by adding Rs.30,000/to Rs.17,13,528/-, the compensation is reassessed as Rs.17,43,528/-.

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In so far as the interest is concerned, learned counsel appearing for the respondent would vehemently contend that the Tribunal awarded an amount of Rs.14,56,000/- as compensation fastening the liability on the first respondent and no liability is fastened on the Insurance Company and hence, they have not filed any appeal. The Tribunal while awarding the interest passed an order that if the amount is not deposited within one month from the date of the award, the same carries

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an interest at the rate of 9%. It is to be noted that the interest

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is not awarded from the date of petition, instead an interest at the rate of 9% is awarded only if the amount is not paid within one month from the date of the award. Having taken note of the said fact, the claimants are entitled for the interest from the date of petition till the date of realization at the rate of 6% per annum.

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In view of the discussion made above, I pass the

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following:-

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ORDER

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(i) The appeal is allowed in part.

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(ii) The judgment and award passed by the Tribunal is modified by granting the compensation of Rs.17,43,528/- with interest at the rate of 6% per annum from the date of petition till realization as against Rs.14,56,000/-

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

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(iv) In all other respects, the award of the Tribunal shall remain unaltered regarding apportionment and proportionately release and keep the amount in Fixed Deposit in view of enhancement.

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

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(vi) The amount in deposit, if any, shall be transmitted to the Tribunal, forthwith.

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Sd/JUDGE

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PYR

Smt Venkatamma v. Javaraiah

Case brief

What is this about?

What did the court decide?

Smt Venkatamma v. Javaraiah

Case brief

What is this about?

What did the court decide?

What the court decided

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