Partly allowed

The Divisional Manager v. Smt Murali

Karnataka HC21 Jun 2021MFA.CROB/73/2016

Case brief

AI extract

What is this about?

This judgment disposed of two appeals filed by claimants and an insurance company challenging a Motor Vehicles Accident Tribunal award. The Court enhanced compensation from Rs.5,70,000 to Rs.11,09,500 considering future prospects, as income evidence was lacking. Liability on the insurer was upheld citing Oriental Insurance vs. Mangari regarding lack of evidence that the tanker was filled with fuel

What did the court decide?

The appeal by insurance company dismissed; the appeal by claimants allowed in part with compensation enhanced to Rs.11,09,500/-

The Divisional Manager Vs Smt Murali — Insurance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^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.6591/2013 (MV) C/W.

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M.F.A.CROB NO.73/2016 (MV)

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IN M.F.A.NO.6591/2013 (MV):

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BETWEEN:

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1 . SMT.MURALI W/O RAM ASHISH @ RAM ASHISH YADAV AGED ABOUT 41 YEARS

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2 . KUM. SUNALI D/O RAM ASHISH @ RAM ASHISH YADAV AGED ABOUT 7 YEARS

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3 . KUM. SUNITHA D/O RAM ASHISH @ RAM ASHISH YADAV AGED ABOUT 5 ½ YEARS

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4 . MASTER SACHIN D/O RAM ASHISH @ RAM ASHISH YADAV AGED ABOUT 4 ½ YEARS

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5 . MASTER VIPIN S/O RAM ASHISH @

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RAM ASHISH YADAV AGED ABOUT 3 YEARS

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SINCE APPELLANTS NO.2 TO 5 ARE MINORS REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN APPELLANT NO.1.

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APPELLANTS ARE R/AT NO.37, NIBAHI VILLAGE, ROODRAPURA TALUK DEVARIYA DISTRICT, UTTAR PRADESH.

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NOW R/AT C/O NANDAKISHORE NO.65/1, MILLERS ROAD, BENSON TOWN, BENGALURU-46 … APPELLANTS

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(BY SRI B.C.THIPPESWAMY, ADVOCATE)

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AND:

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1 . THE MANAGING DIRECTOR M/S. BRIGHT PETROLEUM CHENNADASI PAILA VILLAGE, TAVAREKERE POST

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MAGADI ROAD, BENGALURU-23

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2 . THE DIVISIONAL MANAGER M/S. UNITED INDIA INSURANCE COMPANY LIMITED, D.O.IV, T.P. HUB, BASAVANAGUDI, BENGALURU-04. … RESPONDENTS

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(BY SRI JANARDHAN REDDY, ADVOCATE FOR R2; VIDE ORDER DATED 18.08.2015,

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SERVICE OF NOTICE TO R1 IS DISPENSED WITH)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 12.02.2013 PASSED IN MVC.NO.9178/2010 ON THE FILE OF THE 16^TH ADDITIONAL JUDGE, MACT, BENGALURU, PARTLY ALLOWING

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THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN M.F.A. CROB NO.73/2016 (MV):

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BETWEEN:

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THE DIVISIONAL MANAGER M/S. UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE-IV, T.P. HUB, BASAVANAGUDI, BENGALURU-560 004

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THROUGH REGIONAL OFFICE NO.18, 5^TH AND 6^TH FLOOR KRISHIBHAVAN, HUDSON CIRCLE BENGALURU-560 001 REPRESENTED BY ITS MANAGER. … CROSS OBJECTOR

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(BY SRI JANARDHAN REDDY, ADVOCATE)

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AND:

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1 . SMT.MURALI AGED ABOUT 44 YEARS W/O RAM ASHISH @ RAM ASHISH YADAV

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2 . KUMARI SUNALI

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AGED ABOUT 10 YEARS

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D/O RAM ASHISH @ RAM ASHISH YADAV

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3 . KUMARI SUNITHA

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AGED ABOUT 8 ½ YEARS

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D/O RAM ASHISH @ RAM ASHISH YADAV

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4 . MASTER SACHIN AGED ABOUT 7 ½ YEARS

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S/O RAM ASHISH @ RAM ASHISH YADAV

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5 . MASTER VIPIN AGED ABOUT 7 YEARS S/O RAM ASHISH @ RAM ASHISH YADAV

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SINCE THE RESPONDENT NOS.2 TO 5 ARE MINORS THEREFORE 1^ST RESPONDENT IS REPRESENTED ON BEHALF OF THEM AS A NATURAL GUARDIAN RESPONDENT NOS.1 TO 5 ARE R/AT NO.37, NIBAHI VILLAGE, ROODRAPURA TALUK, DEVARIYA DISTRICT, UTTAR PRADESH-231 001.

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NOW R/AT C/O NANDAKISHORE NO.65/1, MILLERS ROAD, BENSON TOWN, BENGALURU-560 046.

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6 . THE MANAGING DIRECTOR M/S. BRIGHT PETROLEUM CHENNADASI PAILA VILLAGE, TAVAREKERE POST, MAGADI ROAD, BENGALURU-560 023. … RESPONDENTS

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(BY SRI B.C.THIPPESWAMY, ADVOCATE FOR R1 TO R5; R2 TO R5 BEING MINORS REPRESENTED BY R1; R6-SERVED)

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THIS MFA CROB IS FILED UNDER ORDER 41 RULE 22 OF CPC., AGAINST THE JUDGMENT AND AWARD DATED 12.02.2013 PASSED IN MVC.NO.9178/2010 ON THE FILE OF THE 16^TH ADDITIONAL JUDGE, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MFA AND MFA CROB ARE 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 appeal and the cross objection are listed for admission, with the consent of learned counsel for both the parties, the same are taken up for final disposal.

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These two appeals are filed by the claimants as well as the insurance company challenging the judgment and award passed in M.V.C.No.9178/2010 dated 12.02.2013 on the file of the Motor Vehicles Accident Claims Tribunal, Bengaluru City, SCCH-14 questioning the quantum of compensation and also the liability.

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The factual matrix of the case is that on 07.09.2010

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at about 5.45 p.m., the deceased Ram Ashish @ Ram Ashish Yadav was riding his moped bearing registration No.KA-04-1511 from Makanahalli towards I.O.C. and was riding his moped with moderate speed on extreme left side of the road with care and caution and when he reached near Kenekal Cross, at that time, the petrol tanker bearing registration No.KA—02-D-7263 driven by its driver came in high speed in a rash and negligent manner

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and dashed against the Moped and as a result, Ashish died at the spot. Hence, the claim petition is filed by the wife and children.

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The insurance company appeared and contested the matter contending that the driver was not having endorsement to drive the hazardous goods vehicle i.e., petrol tanker. Hence, the insurance company is not liable to pay the compensation.

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The Tribunal, after considering both oral and documentary evidence placed on record, awarded compensation of Rs.5,40,000/- towards loss of dependency and also awarded compensation of Rs.30,000/- on the other heads. Hence, the claimants have filed the appeal in M.F.A.No.6591/2013.

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While awarding compensation, the Tribunal fastened

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the liability on the insurance company and hence, the same is questioned before this Court by the insurance company by filing M.F.A. Crob.No.73/2016 contending that, even though the driver was having the endorsement, the Tribunal has committed an error in fastening the liability on the insurance company.

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The learned counsel appearing for the claimants in M.F.A.No.6591/2013 would contend that the Tribunal has committed an error in taking the income of the deceased at Rs.4,000/- per month and deducted 1/4^th towards personal and taken the income of the deceased at Rs.3,000/- per month. The Tribunal also committed an error in not awarding compensation towards loss of future prospects and the compensation awarded on all the heads are very meager. Hence, it requires interference of this Court.

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Per contra, learned counsel appearing for the respondent-insurance company in M.F.A. Crob.No.73/2016 would contend that the Tribunal has taken the income of the deceased at Rs.4,000/- per month, in the absence of the documentary proof and the accident has taken place in the year 2010. The deceased was aged about 40 years and the relevant multiplier applicable is 15. The counsel also would vehemently contend that, in the absence of endorsement, the Tribunal ought not to have fastened the liability on the insurance company. In order to prove the fact that the driver of the petrol tanker was

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having endorsement, no document is placed. Hence, it requires interference of this Court.

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Having heard the arguments of respective counsel

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and also on perusal of the material available on record, the

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points that would arise for consideration of this Court are:

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

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(ii) Whether the Tribunal has committed an error in fastening the liability on the insurance company?

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(iii) What order?

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Point No.(i)

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It is the contention of the learned counsel for the

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claimants that the deceased was working as Fabricator and was earning Rs.7,500/- per month. In order to substantiate the same, the claimants have not placed any material before the Tribunal, except producing the documents of post mortem report, notarized copy of Election I.D. and notarized copy of

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election card. In the absence of documentary proof, the Tribunal has taken the income of the deceased at Rs.4,000/- per month. It is not in dispute that the accident has taken place in the year 2010. In the absence of any documentary proof with regard to income, notional income ought to have been taken by the Tribunal at Rs.5,500/- per month. The deceased was aged about 40 years. Hence, the Tribunal ought to have considered future prospects at 40%. If the same is taken, it comes to Rs.2,200/and after adding the same, the income comes to Rs.7,700/- per month. Since the claimants are 5 in number, 1/4^th has to be deducted which would be Rs.1,925/-. After deducting the same, the monthly of the deceased comes to Rs.5,775/- (7,700-1,925). Hence, taking the income of the deceased at Rs.5,775/- per month and applying the relevant multiplier 15, the loss of dependency works out to Rs.10,39,500/- (5,775x12x15).

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The claimants are also entitled for an amount of Rs.70,000/- on the other conventional heads in view of the principles laid down in Pranay Sethi’s case. Hence, in all, the

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claimants are entitled for compensation of Rs.11,09,500/-. Hence, I answer point No.(i) as ‘partly affirmative’.

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Point No.(ii)

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The main contention of the learned counsel for the insurance company is that the driver was not having endorsement to drive hazardous vehicle i.e., petrol tanker. Whether the petrol tanker was filled with petrol at the time of the accident or not, no material is placed before the Tribunal. Though the respondents got marked the documents Exs.R1 to R3 and also examined the witnesses as R.Ws.1 and 2, no cogent evidence is placed before the Tribunal. On perusal of the records, it is not in dispute that the driver of the petrol tanker was having driving license at the time of the accident. However, the R.W.2 deposes in his evidence that he was not having endorsement. The Tribunal, while considering the evidence of R.W.2 has taken note of the fact that admission elicited from the mouth of R.W.2 that he was having the driving license.

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Now, the question before the Court is that, whether

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he was having the endorsement to drive the hazardous goods

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vehicle. But the fact that at the time of the accident, the vehicle was filled with fuel is not substantiated. On perusal of the spot mahazar which is marked as Ex.P2, nothing is mentioned except mentioning the nature of the vehicle i.e., petrol tanker and the damages caused to it. In order to substantiate the fact that the petrol tanker was filled with fuel and he was driving the hazardous vehicle, no material is placed before the Court. This Court also while referring the judgment of High Court of Judicature at Allahabad in the case of Oriental Insurance Co.

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Ltd. vs. Mangari & Others reported in 2012 ACJ 2842 in M.F.A.No.30081/2011 vide Judgment dated 16.12.2013 held that in the absence of any material to prove the fact that the driver of the petrol tanker was driving the petrol tanker filled with fuel, the very contention of the insurance company that they are not liable to pay the compensation cannot be accepted. Hence, I answer point No.(ii) as ‘negative’.

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Point No.(iii)

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In view of the discussions made above, I proceed to pass the following:

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ORDER

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(i) The appeal filed by the insurance company in M.F.A. Crob. No.73/2016 is dismissed.

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(ii) The appeal filed by the claimants in M.F.A.No.6591/2013 is allowed in part. The judgment and award of the Tribunal passed in M.V.C.No.9178/2010 dated 12.02.2013 on the file of the Motor Vehicles Accident Claims Tribunal, Bengaluru City, SCCH-14 is modified granting compensation of Rs.11,09,500/- as against Rs.5,70,000/- awarded by the Tribunal with interest at 6% per annum.

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(iii) The respondent-Insurance Company is directed to deposit the amount within six weeks.

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(iv) The amount in deposit is ordered to be transmitted to the Tribunal forthwith.

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(v) The Registry is directed to transmit the TCR to the concerned Tribunal forthwith.

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Sd/JUDGE

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The Divisional Manager v. Smt Murali

Case brief

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What did the court decide?

The Divisional Manager v. Smt Murali

Case brief

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