Disposed

Royal Sundaram Alliance General Insurance Co. Ltd. v. Sri. G. Hari Babu

Karnataka HC10 Oct 2022MFA/3855/2016

Case brief

AI extract

What is this about?

Compensation for the death of an engineering student was enhanced in the insurer's appeal despite no appeal by the claimants. The court rejected contributory negligence, retained the assessed notional income, added future prospects and modified conventional heads. It denied interest on the enhancement while retaining interest on the original award.

What did the court decide?

Award modified to enhance total compensation without interest on the enhancement; interest on the original award retained.

Royal Sundaram Alliance General Insurance Co. Ltd… — Motor Accident Claims | Karnataka HC (2022)

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MFA No. 3855 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF OCTOBER, 2022

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PRESENT

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THE HON'BLE MR. JUSTICE B.VEERAPPA

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AND

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THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA

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MISCELLANEOUS FIRST APPEAL No.3855 OF 2016(MV-D)

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BETWEEN:

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ROYAL SUNDARAM ALLIANCE GENERAL INSURANCE CO. LTD., NO.187/7, RAGHAVENDRA COMPLEX, HOSUR MAIN ROAD, WILSON GARDEN, BENGALURU-27.

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BY ROYAL SUNDARAM ALLIANCE COMPANY LTD., SUBRAMANIAM BUILDING, II FLOOR, NO.1, CLUB HOUSE ROAD, ANNSASALAI, CHENNAI-600 002. BY ITS MANAGER.

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Digitally signed by MALATESH K C

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Location: High Court of Karnataka

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(BY SRI. O MAHESH., ADVOCATE)

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AND:

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SRI. G. HARI BABU, S/O. VENKATARAMANA REDDY, AGED ABOUT 46 YEARS,

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…APPELLANT

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SMT. USHA RANI, W/O. G. HARI BABU, AGED ABOUT 41 YEARS,

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MFA No. 3855 of 2016

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ARPITHA.G, D/O. G. HARI BABU, AGED ABOUT 22 YEARS,

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ALL ARE R/AT. NO.353, 3^RD FLOOR, 7^TH CROSS, GPR ROYAL LAYOUT, OPP. FRUITS MARKET, HEBBAGODI, ELECTRONIC CITY, BENGALURU-560 100.

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SHRI. K. MADESH, S/O. KRISHNAN, R/AT. NO.1, SUKUMA LAYOUT, NYANAPPANAHALLI, BEGUR POST, BENGALURU-68. (EXPARTE)

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…RESPONDENTS

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(BY SRI. R. KRISHNA REDDY, ADVOCATE FOR R1-R3; VIDE ORDER DATED 24.11.2017 NOTICE TO R4 IS DISPENSED WITH)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 11.03.2016 PASSED IN MVC No.1276/2015 ON THE FILE OF THE XII ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, BENGALURU, AWARDING COMPENSATION OF Rs.19,48,000/- WITH INTEREST @ 8% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR HEARING THIS DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:

MFA No. 3855 of 2016

J U D G M E N T

The insurer filed the present Miscellaneous First Appeal against the judgment and award dated 11.03.2016 passed in MVC No.1276/2015 on the file of the XII Additional Small Causes Judge and Member, Motor Accidents Claims Tribunal, Bengaluru, awarding total compensation of Rs.19,48,000/- with interest at 8% per annum from the date of petition till realization.

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2. The unfortunate parents and unmarried sister of the

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deceased, filed claim petition under Section 166 of the Motor Vehicles Act, 1988, on account of death of G.Rajashekar Reddy in a road traffic accident that occurred on 10.12.2014 at about 11.45 am. It is stated that the deceased was proceeding in a motor cycle bearing registration No.KA-51/EH-6228 slowly and cautiously, observing all the traffic rules and regulations, on the left side of the NICE road. When he reached near Basapura Bridge, the driver of the tipper lorry bearing registration No.TN 29/BA-3991 drove the same in a rash and negligent manner, without observing the traffic rules and regulations and dashed against the motor cycle from behind. Due to the impact,

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MFA No. 3855 of 2016

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deceased fell down and was caught under the lorry, dragged to certain distance. Again the said lorry dashed against the motor cycle bearing registration No.KA-01/HF-0338. Subsequently, fire broke out and both the tipper lorry and the motor cycle of the deceased caught fire. The deceased died on the spot. The body of the deceased was shifted to Victoria Hospital, Bengaluru, wherein, post mortem was conducted and the body was handed over to the claimants. The claimants shifted the body to their village and performed the funeral and obsequies by spending Rs.1,50,000/-.

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The claimants contended that the deceased was

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hale and healthy and was aged about 19 years as on the date of the accident and was a student of third semester, Mechanical Engineering. He was a meritorious student and since he was the only son, the claimant Nos.1 and 2 had great hopes and expectations that he will take care of them during their old age. Due to the sudden demise of the deceased, claimants put to deep mental shock and agony. It is further case of the claimants that the deceased died in the accident on account of rash and negligent driving of the driver of the tipper lorry.

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MFA No. 3855 of 2016

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Thereby, the Electronic City Traffic Police registered a case against the driver of the tipper lorry in Crime No.209/2014 for the offences punishable under Section 279 and 304(A) of the Indian Penal Code. It was contended that the respondent Nos.1 and 2 being the owner and insurer of the offending lorry are jointly and severally liable to pay the compensation and therefore, prayed to allow the claim petition.

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In response to the notice issued by the Tribunal, the respondent No.1 neither appeared nor filed any statement and thus, he was placed ex-parte . The respondent No.2-insurer of the offending vehicle filed the objections and denied the averments made in the claim petition. It was contended that the accident took place on account of negligence on the part of the deceased. The insurer also denied the age, as well as the fact that the deceased was a student and contended that, it is not liable to pay the compensation and accordingly, sought to dismiss the claim petition.

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Based on the aforesaid pleadings, the Tribunal framed the following issue:

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MFA No. 3855 of 2016

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"Whether the petitioners prove that deceased G.Rajashekar Reddy was died in a road traffic accident on 10.12.2014 at about 11.45 am near Basapura Bridge, on Nice Road, Bengaluru, due to the rash and negligent driving of the driver of the Tipper Lorry bearing registration No.TN-29/BA3991?

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Whether the petitioners are entitled for any compensation? If so, to what extent and from whom?"

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In order to prove their case, the father of the deceased was examined as P.W.1 and an eye witness to the accident was examined as P.W.2 and marked the documents Exs.P.1 to P.28. Respondent No.1 was placed ex-parte. The respondent No.2 neither examined any witness nor produced any documents to disprove the case of the claimants.

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The Tribunal, considering both oral and

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documentary evidence on record, recorded a finding that G.Rajashekar Reddy-son of claimant Nos.1 and 2 died in the road traffic accident that occurred on 10.12.2014 at about 11.45 am near Basapura Bridge, on NICE Road, Bengaluru, due

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MFA No. 3855 of 2016

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to the rash and negligent driving of the driver of the Tipper Lorry bearing registration No.TN-29/BA-3991. Thereby, awarded total compensation of Rs.19,48,000/- with interest at the rate of 8% per annum from the date of claim petition till realization.

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Aggrieved by the said judgment and decree, the Insurance Company filed the present Miscellaneous First Appeal on the point of negligence and quantum. The claimants have not filed any appeal seeking enhancement of compensation.

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We have heard the learned counsel for the parties

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to the lis.

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Sri O.Mahesh, learned counsel for the insurance company, contended that the impugned judgment and award passed by the Tribunal cannot be sustained and is liable to be set-aside. He further contended that the Tribunal failed to notice that there was no compliance of mandatory provisions of Section 134(c) of the Motor Vehicles Act by the insured and Section 158(6) of the Motor Vehicles Act, both by the insured and the concerned investigating officer, and the insurer was

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kept in darkness in respect of the alleged accident. It is further contended that the Tribunal failed to notice the statutory obligation under Rule 235 of the Karnataka Motor Vehicles Rules, 1989, to send notices to owner/s and driver/s of the vehicle/s said to have been involved in the accident. Therefore, the claim petition is liable to be dismissed for non-joinder of necessary the parties.

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Learned counsel further contended that the Tribunal failed to consider the contributory negligence on the part of the deceased who was the rider of the motor cycle and that of P.W.2, rider of another motor cycle stated to have been involved in the accident. It is further contended that the Tribunal erred in awarding Rs.17,28,000/- towards 'total loss of dependency' holding the income of the deceased student aged just 19 years, at Rs.16,000/- per month on presumptions and assumptions and the same cannot be sustained. He further contended that awarding Rs.1,60,000/- towards loss of love and affection and awarding Rs.50,000/- towards transportation of dead body and funeral expenses is contrary to the dictum of the Hon'ble Supreme Court in the case of United India

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Insurance Co. Ltd. vs. Satinder Kaur @ Satwinder Kaur and others reported in 2020 SCC Online SC 410 and Magma General Insurance Company Limited vs. Nanu Ram @ Chuhru Ram and others reported in (2018)18 SCC 130 and therefore, sought to allow the Miscellaneous First Appeal.

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Per contra, Sri R.Krishna Reddy, learned counsel for the respondents/claimants, while justifying the impugned judgment and award passed by the Tribunal, contended that the jurisdictional police have registered FIR against the driver of the offending tipper lorry as per Ex.P.2, drawn the mahazar as per Ex.P.3, prepared the spot sketch as per Ex.P.4, drawn the inquest report as per Ex.P.5, post mortem of the dead body was conducted and report was produced as per Ex.P.6 and IMV report was produced as per Ex.P.7. All these documents clearly depict that it is the negligence on the part of the driver of the offending tipper lorry and not the deceased. It is further contended that Ex.P.8-charge sheet filed by the police depicts the negligence on the part of the driver of the offending lorry. In the absence of any material documents against the

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MFA No. 3855 of 2016

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deceased, the Tribunal is justified in fastening liability on the Insurance Company.

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Learned counsel further contended that taking into consideration the fact that the deceased was aged 19 years, studying in third semester of mechanical engineering, had a bright future, Tribunal has taken notional income at Rs.16,000/- per month. It is further contended that Exs.P.12 to 24 are the certificates issued by the authorities during the course of their official business. Thereby, the Tribunal is justified in taking notional income at Rs.16,000/- per month. Taking into consideration the fact that the deceased was a bachelor, 50% has to deducted in terms of the dictum of the Hon'ble Supreme Court in the case of Sarla Verma and others vs. Delhi Transport Corporation and another reported in (2009)6 SCC 121 . P.W.2-eye witness to the accident has specifically stated about the rash and negligent driving of the driver of the offending lorry. Admittedly, the Insurance Company has not examined the driver of the offending tipper lorry to prove the negligence on the part of the deceased. In the absence of the same, the present Appeal cannot be

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MFA No. 3855 of 2016

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sustained and therefore, sought to dismiss the Miscellaneous

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First Appeal.

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In view of the aforesaid rival contentions urged by the learned Counsel for the parties, the points that arises for our consideration are:

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“(i) Whether the insurance company has made out a case to interfere with the impugned judgment and award passed by the Tribunal awarding total compensation of Rs.19,48,000/- with interest at 8% per annum in the facts and circumstances of the present case?

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(ii) Whether the claimants have made out a case for further enhancement of compensation in this appeal filed by the insurance company in the absence of any separate appeal filed by the claimants in view of the provisions of Order XLI Rule 33 of CPC?”

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We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material including the original records carefully.

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MFA No. 3855 of 2016

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16. Learned counsel for the appellant would contend

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that in the absence of any appeal filed by the claimants, they are not entitled for any enhancement of compensation in the present appeal filed by the insurance company. It is also contended that even if this Court enhances compensation in this appeal, the claimants are not entitled for interest on the enhanced compensation amount from the date of petition till the date of payment. He further contended that in the absence of any document produced by the claimants, the Tribunal is not justified in taking Rs.16,000/- per month instead of Rs.8,500/per month as per the Lokadalat Chart as on the date of the accident.

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Sri R.Krishna Reddy, learned counsel for respondent Nos.1 to 3 submitted that even though the respondents/claimants have not filed any appeal, still this Court can re-assess the compensation in exercise of powers under Order XLI Rule 33 of the Code of Civil Procedure, 1908 (“CPC”) as the Motor Vehicles Act, 1988 is a beneficial legislation. Therefore, this Court has every power to re-assess the compensation by awarding future prospects as the deceased

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MFA No. 3855 of 2016

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G.Rajashekar Reddy died at the age of 19 years. Therefore, he sought for enhancement of compensation by dismissing the appeal filed by the insurance company.

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It is an undisputed fact that the deceased G.Rajashekar Reddy aged about 19 years was studying in III semester of mechanical engineering, claimant Nos.1 and 2 are parents of the deceased and claimant No.3 is the sister of deceased Rajashekar Reddy who died in a road traffic accident that occurred on 10/12/2014 at about 11.45 a.m. near Basapura Bridge on NICE road, Bengaluru, due to rash and negligent driving of the driver of the Tipper Lorry bearing registration No.TN-29/BA-3991 and the same is evident from the oral evidence of PW.1 and documentary evidence on record vide Exs.P-2 FIR, P-3 mahazar, Ex.P-4 spot sketch, Ex.P-5 inquest report and Ex.P-8 charge sheet filed by the jurisdictional police against the driver of the Tipper Lorry during the course of his employment.

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Though Sri O.Mahesh, learned counsel for the appellant-insurance company contended that as per Ex.P-7 IMV report, there was negligence on the part of the deceased, the

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MFA No. 3855 of 2016

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same cannot be accepted for the simple reason that Ex.P-4 spot sketch produced by the authorities of the insurance company concerned and Ex.P-8 charge sheet filed against driver of the Tipper Lorry the same is neither challenged by driver or owner of the Tipper vehicle. Ex.P-8 charge sheet clearly depicts that PW.2 is the eyewitness has specifically stated that the accident occurred due to the rash and negligent driving of the driver of Tipper Lorry. No contra evidence is adduced, nor contra material is produced and nothing is elicited in the cross-examination of PW.2 to disprove the case of the insurance company that there was contributory negligence on the part of the deceased. Exs.P-1 and 2, as already stated above, remained unchallenged. Ex.P-3 copy of the spot mahazar and Ex.P-4 spot sketch clearly shows that the deceased was proceeding on the motorcycle to the extreme southern side of the road though there was sufficient space on the road, the driver of the Tipper Lorry ought to have taken immediate care to avoid the accident, but dashed against the motorcycle of the deceased from behind. Exs.P-5 and P-6, are the inquest report and post-mortem report which goes to show that the deceased succumbed to the accidental injuries has

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MFA No. 3855 of 2016

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sustained grievous injures to his head and the Tipper Lorry ran over his head. Admittedly, in order to prove the case of the insurance company, the driver of the Tipper Lorry has not been examined. Thereby, the contention of learned counsel for the appellant that there was negligence on the part of the deceased cannot be accepted in view of the oral and documentary evidence stated above.

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PW.2 has specifically stated in his examination-inchief that on 10/12/2014 at about 11.45 a.m., he was riding the motorcycle bearing registration No.KA-01/HF-0338 slowly and carefully observing the traffic rules to the left side of the road and the driver of the lorry bearing registration No.TN29/BA-3991 came in a high speed and negligent manner without following the traffic rules endangering human life, dashed against the motorcycle bearing registration No.KA01/HF-0338 from behind. Due to the said impact, Rajashekar Reddy was thrown out from the motorcycle and the said lorry ran over the head of the deceased and dragged him to certain distance and dashed his motorcycle also from behind. As a result of which Rajashekar Reddy died on the spot and

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subsequently, fire broken out and both the tipper lorry and the motorcycle of the deceased caught fire and the vehicle also got damaged. Nothing has been elicited to disprove the said statement, thereby the contention of learned counsel for the insurance company that there was contributory negligence cannot be accepted.

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It is an undisputed fact that at the time of accident, the deceased was aged about 19 years and was a B.E. III Semester mechanical engineering student as per Ex.P-16the study certificate. He was a meritorious student prior to the accident and as could be seen from Ex.P-12 SSLC marks card, he had passed in distinction scoring 87.04% and Exs.P-13 and P-14 PUC marks cards depict that he had passed in first class. Ex.P-15 is the B.E. I semester marks sheet, which shows that he had obtained 511 marks out of 775. The study certificates clearly depict issued by the college principal stating that the deceased was studying in II year B.E. (Mechanical Engineering) course from the academic year 2014-15 till 10/12/2014. Apart from the educational qualification, he also completed Combined Annual Training Camp 2011-12 1 Karnataka BN NCC, Bangalore

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MFA No. 3855 of 2016

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as per Ex.P-17 and obtained the rank CDT by the NCC Cadet Group A Bangalore dated 18/12/2011. Exs.P-18 and P-19 are the NCC Certificates issued by the Deputy Director General National Cadet Cops. Ex.P-20 is the, the general knowledge certificate of performance issued by the All India General Knowledge Examination for completing Advance Level Programme during the year 2009 with proficiency issued by the Chairman Vocational Service, Rotary International, Chairman CHRD. Apart from the merit and NCC, he was also active in sports, thereby St. Francis De Sales P.U. College issued certificates of merit for securing first place in football, second place in cricket from the same college and also issued PreUniversity Board Examination pass certificate for the academic year 2012-13 by the authorities vide Exs.P-21 to 23 and also appeared in IIT Delhi and obtained participation certificate issued by the IIT Delhi vide Ex.P-24. These documents clearly depict that he was not only a bright student and was NCC certificate holder and he was also in sports. Taking into consideration the bright future of the deceased aged about 19 years, studying in Mechanical Engineering III year, the Tribunal has taken notional monthly income at Rs.16,000/- though it

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was contended by the learned counsel for the claimants that a sum of Rs.30,000/- per month ought to have been taken as notional monthly income of the deceased.

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Sri O.Mahesh, learned counsel for the insurance company contended that in the absence of any document, the notional monthly income of Rs.8,500/- has to be taken in terms of the Lokadalat chart, and entitled for 40% of future prospects. The said contention cannot be accepted for the simple reason that the documents at Exs.P-10 to P-24 clearly depict that the deceased was not only meritorious student, but also obtained NCC, performance certificate, participation certificate and was also in sports, thereby he had a bright future and considering the age and the merit as well as the academic certificates produced by him as per Exs.P-12 to P-24, the Tribunal is justified in taking the income of the deceased at Rs.16,000/- per month.

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Our view is fortified by the dictum of the Coordinate Bench of this Court in the case of Sri D.P.Papegowda & others vs. Sri Mahesha C. [MFA.No.1106/2015 disposed of on 01/07/2015] , wherein, this Court has taken

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MFA No. 3855 of 2016

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into consideration that the deceased had completed diploma in Electronics and Communication and thus taken the income of the deceased at Rs.16,000/- per month, the deceased herein Rajashekar Reddy was a student of III semester Mechanical Engineering. Thereby, the contention of learned counsel for the insurance company cannot be accepted, thus, the notional income of the deceased is taken at Rs.16,000/- per month and 40% is added to the income of deceased towards future prospects of the deceased as he was aged about 19 years and in view of the dictum of the Apex Court in the case of National

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Insurance Company Limited vs. Pranay Sethi & others

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[(2017) 16 SCC 680] (Pranay Sethi) the monthly income would come to Rs.22,400/- (16,000/- x 40%) and thereby, as the deceased was a bachelor, 50% has to be deducted towards his personal expenses in view of the dictum of the Hon’ble Supreme Court in the case of Sarla Verma & others vs. Delhi

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Transport Corporation & another [2009 ACJ 1298] (Sarla

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Verma) , the actual monthly income would come to Rs.11,200/-. Applying the multiplier of 18, the claimant is entitled to Rs.24,19,200/- towards future prospects.

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MFA No. 3855 of 2016

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24. Though the contention was raised by the learned

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counsel for the insurance company that the claimants have not filed any appeal, this Court cannot enhance the compensation in the appeal filed by the insurance company, the same cannot be accepted in view of the provisions of order XLI Rule 33 of the Code of Civil Procedure, 1908 which reads as under:

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“33. Power of Court of Appeal.— The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees:

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Provided that the Appellate Court shall not make any order under section 35A in pursuance of

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any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.”

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We are also aware of the fact that the provisions of the Motor Vehicles Act, 1988 gives paramount importance to the concept of just and fair compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families even though appeal is not filed by the other side, this Court can re-assess and determine just and fair compensation. The provisions of Section 166 of the Motor Vehicles Act, 1988 deals with the concept of “just compensation” which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the claimants as held by the Hon’ble Supreme Court in the case of Sarla Verma , wherein at para No.8, it is held that just compensation is adequate compensation which is fair and equitable on the facts and circumstances of the case, to make good of the loss suffered as a result of the wrong, as far as

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money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit. Thereby, the legislature has introduced provisions of Section 166 of the Motor Vehicles Act provides for filing of an application for compensation. The relevant portion of the said Section 166 of the MV Act reads asunder:

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“166. Application for compensation. —(1) An application for compensation arising outof an accident of the nature specified insubsection (1) of section 165 may be made—

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(a) by the person who has sustained the injury; or

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(b) by the owner of the property; or

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(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or

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(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:

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Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal

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representatives who have not so joined, shall be impleaded as respondents to the application.”

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As already stated supra, MV Act is a benevolent legislation enacted for the object of providing monetary relief to the victims or their families. Therefore, the MV Act calls for a liberal and wider interpretation to serve the real purpose underlying the enactment and fulfil its legislative intent. We are also of the view that in order to maintain a claim petition, it is sufficient for the claimant to establish his loss of dependency. Section 166 of the MV Act makes it clear that every legal representative who suffers on account of the death of a person in a motor vehicle accident should have a remedy for realization of compensation.

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Our view to re-assess the compensation made by the MACT in the appeal filed by the insurance company is fortified by the provisions of Order XLI Rule 33 of the CPC and the judgment of the Hon’ble Supreme Court in the case of N.Jayasree & others vs. Cholamandalam MS General Insurance Company Ltd. [2021 (4) ACJ 2691] at para Nos.10, 16 and 21 read as under:

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MFA No. 3855 of 2016

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“10. The provisions of the Motor Vehicles Act, 1988 (for short ‘MV Act’) give paramount importance to the concept of ‘just and fair’ compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the MV Act deals with the concept of ‘just compensation’ which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavour should be made by the court to award just and fair compensation irrespective of the amount claimed by the applicant(s). In Sarla Verma, 2009 ACJ 1298 (SC), this court has laid down as under:

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“(8) …Just compensation is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit…”

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x x x

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16. In our view, the term ‘legal representative’ should be given a wider interpretation for the purpose of Chapter XII of MV Act and it should not be

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MFA No. 3855 of 2016

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confined only to mean the spouse, parents and children of the deceased. As noticed above, MV Act is a benevolent legislation enacted for the object of providing monetary relief to the victims or their families. Therefore, the MV Act calls for a liberal and wider interpretation to serve the real purpose underlying the enactment and fulfill its legislative intent. We are also of the view that in order to maintain a claim petition, it is sufficient for the claimant to establish his loss of dependency. Section 166 of the MV Act makes it clear that every legal representative who suffers on account of the death of a person in a motor vehicle accident should have a remedy for realization of compensation.

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x x x

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21. Coming to the facts of the present case, the appellant No.4 was the mother-in-law of the deceased. Materials on record clearly establish that she was residing with the deceased and his family members. She was dependent on him for her shelter and maintenance. It is not uncommon in Indian society for the mother-in-law to live with her daughter and son-in-law during her old age and be dependent upon her son-in-law for her maintenance. Appellant No.4 herein may not be a legal heir of the deceased, but she certainly suffered on account of his death. Therefore, we have no hesitation to hold

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that she is a ‘legal representative’ under section 166 of the MV Act and is entitled to maintain a claim petition.”

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Thereby, the contention of learned counsel for the insurance company that this Court cannot enhance compensation in the appeal filed by the insurance company cannot be accepted and it is devoid of merit.

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It is well settled principle that this Court being an appellate Court exercising the power under Section 166 of the MV Act can grant leave to the respondent even in the absence of cross-appeal as held by the Hon’ble Supreme Court time and again. For the reasons stated above, the point No.1 raised in the present appeal is answered in the affirmative holding that the insurance company has made out a case to modify the award passed by the trial Court towards loss of dependency, loss of love and affection, loss of estate and transportation of dead body. Accordingly, we answer point No.2 partly in the affirmative holding that the claimants have made out a case for further enhancement in terms of Order XLI Rule 33 of the CPC.

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29. After reconsideration of oral and documentary

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evidence on record, the claimants are entitled for just and proper compensation as under:

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Loss of dependency : Rs.24,19,200/Loss of love and affection : Rs. 1,20,000/(as against 1,60,000/-) Loss of estate : Rs. 15,000/(as against 10,000/-) Transportation of dead body & funeral expenses : Rs. 15,000/(as against 50,000/-) --------------------TOTAL : Rs.25,69,200/============

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In all the claimants are entitled for enhanced

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compensation of Rs.25,69,200/- as against Rs.19,48,000/awarded by the Tribunal. Thus, the claimants are entitled for enhanced compensation of Rs.6,21,200/-. It is made clear that since the claimants have not filed any appeal, we have exercised the power under Order XLI Rule 33 of the CPC. The claimants are not entitled for interest on the enhanced compensation amount from the date of petition till the date of realisation. Taking into consideration the age of the deceased and the meritorious certificates produced, the Tribunal had awarded 8% interest per annum on Rs.19,48,000/- and the

¶163

28 -

¶164

MFA No. 3855 of 2016

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same is just and proper. Accordingly, the contention to reduce the rate of interest is not acceptable.

¶166

In view of the above, we pass the following:

¶167

ORDER

¶168

(i) The appeal filed by the insurance company is disposed of.

¶169

(ii) The impugned award passed by the Tribunal is hereby modified.

¶170

(iii) The claimants are entitled for just and proper compensation of Rs.25,69,200/as against Rs.19,48,000/- awarded by the Tribunal and after deducting the same from the enhanced compensation, the claimants are entitled for Rs.6,21,200/- and the claimants are not entitled for interest on the enhanced compensation amount from the date of petition till the date of realisation.

¶171

(iv) The award passed towards love and affection at Rs.1,60,000/- is reduced to Rs.1,20,000/, loss of estate is enhanced from Rs.10,000/to

¶172

29 -

¶173

MFA No. 3855 of 2016

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Rs.15,000/- and the award of compensation towards transportation of dead body and funeral expenses of Rs.50,000/- is reduced to Rs.15,000/-. In all the claimants are entitled for a total sum of Rs.25,69,200/- as against Rs.19,48,000/-. The enhanced compensation is Rs.6,21,200/- and the claimant is not entitled for interest on the enhanced compensation amount.

¶175

No order as to costs.

¶176

Sd/JUDGE

¶177

Sd/JUDGE

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Para Nos... 1 to 13 kcm 13 till end S*

Royal Sundaram Alliance General Insurance Co. Ltd. v. Sri. G. Hari Babu

Case brief

What is this about?

What did the court decide?

Royal Sundaram Alliance General Insurance Co. Ltd. v. Sri. G. Hari Babu

Case brief

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What did the court decide?

What the court decided

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