Allowed

M/S Oriental Insurance Company Ltd., v. Smt Gangamma

Karnataka HC12 Aug 2022MFA/3875/2017

Case brief

AI extract

What is this about?

Insurance company appealed against MACT award claiming deceased was not the claimant's son and quantum was inflated. Court held probability proved relationship and recalculated dependency loss applying 40% cap, reducing total compensation.

What did the court decide?

Impugned award modified; total compensation reduced to Rs.10,17,680/- with interest; other observations retained.

M/S Oriental Insurance Company Ltd., Vs… — Contract and Commercial Disputes | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF AUGUST 2022

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BEFORE

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THE HON’BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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MFA NO.3875 OF 2017 (MV)

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BETWEEN:

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M/S ORIENTAL INSURANCE COMPANY LTD., REGIONAL OFFICE NO.44/45, LEO SHOPPING COMPLEX RESIDENCY ROAD BANGALORE-560 001 REPRESENTED BY ITS DULY CONSTITUTED ATTORNEY

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...APPELLANT

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(BY SRI.LAKSHMI NARASAPPA, ADV. FOR SRI.A M VENKATESH., ADV.)

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AND:

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SMT GANGAMMA W/O LATE M. RAMU AGED ABOUT 59 YEARS R/AT NO.6, MUNNEGOWDA GARDEN MAIN ROAD, LEFT SIDE CROSS NEELASANDRA, SHANTHINAGAR BANGALORE-560 047.

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UDAY ESWARAN S/O K.S.ESWARAN R/AT 2^ND MADAPUR ESTATE P.B. NO.7, SOMWARPET KODAGU DISTRICT KARNATAKA STATE

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…RESPONDENTS

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(BY SRI.K V GIRISH, ADV. FOR R1: R2 SERVED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 03.02.2017 PASSED IN MVC NO.5638/2014 ON THE FILE OF THE V ADDITIONAL SMALL CAUSES JUDGE AND XXIV A.C.M.M., MEMBER, M.A.C.T., BENGALURU, AWARDING COMPENSATION OF RS.10,71,800/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.

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THIS MFA COMING ON FOR ORDERS, THIS DAY, THROUGH VIDEO CONFERENCING, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The appeal is filed by the Insurance Company challenging the judgment and award dated 03.02.2017 passed by V Additional Small Causes Judge and Member, Motor Accident Claims Tribunal, Court of Small Causes, Bengaluru in MVC No.5638/2014 insofar

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as it relates to the liability fastened on the appellant/Insurance Company and also on the

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quantum of compensation.

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2. The brief facts of the case are as

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follows:

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On 30.07.2014, between 11.00 p.m. and 11.50 p.m. one Muthuraj.R was walking on the side of Cubbon Road, Near Signal Centre, Bengaluru, at that time, a Car bearing registration No.KA-12-P-5834 came in a rash and negligent manner and dashed against the said Muthuraj.R. As a result of the impact, he fell down and sustained grievous injuries. He was immediately shifted to Bowring Hospital wherein first aid was given and thereafter, he was shifted to Nimhans Hospital where he succumbed to the injuries on 31.07.2014.

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Sri Lakshmi Narasappa, learned counsel for

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the appellant/Insurance Company vehemently argued that the Insurance Company is not liable to pay the

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compensation awarded by the Tribunal on the ground that there is no relationship established between the claimant/respondent no.1 herein and the deceased. It is submitted that the deceased is not identified as son of the claimant/ respondent no.1 and the claimant had falsely contended that the deceased was her son and a false claim was made before the Tribunal. He submitted that fraud is played before the Tribunal, and hence, the Insurance Company is not liable to pay the compensation.

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The learned counsel for the

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appellant/Insurance Company has argued on the aspect of chronological events of the case i.e., from the date of the accident till filing of the charge sheet and also the fact that the dead body appears like Muslim and the same was buried in the Muslim burial ground. Hence, submitted it cannot be said that the deceased in the present case certainly is not the son of the claimant. He further submitted that two complaints

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were lodged and FIRs were registered whereby one complaint was given by Sri R.T.Raju and another by the claimant. He also submitted that the claimant has lodged missing complaint of her son, but there is no proof that the deceased is the son of the claimant in the present case. Taking into consideration the facts and circumstances of the case, it cannot be said that the claimant is the mother of the deceased. Therefore, he submitted that the claimant is not entitled to any compensation much less from the Insurance Company also. Hence, he prays to allow the appeal by exonerating the Insurance Company to pay the compensation.

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However, the learned counsel for the appellant/Insurance Company submitted that the Tribunal has added 50% of the income of the deceased towards loss of future prospects in life and it ought to have been taken at 40%. In this regard, he prays to

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reduce the compensation under the head of loss of dependency. Hence, he prays to allow the appeal.

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On the other hand, learned counsel for

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respondent no.1/claimant submitted that the claimant is an aged old lady, illiterate and rustic woman. Therefore, she was not aware of the death of her son for several days after the accident. Accordingly, she lodged the complaint on 04.08.2014 alleging that her

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son was missing and FIR was registered. Upon investigation, when the investigation officer found truth by making publication in TV, Radio and through newspapers and also by pamphlet raised on various public places, then the claimant and her another son approached the Investigation Officer of the Shivajinagar Police Station and they identified the clothes and belongings of the deceased and also identified that the deceased is her son. Based on the same, the claimant has filed a claim petition seeking compensation for the death of the deceased. Hence,

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he submitted that there is no fraud played before the Tribunal and upon considering chronological events in the case, it is quite natural that the claimant could not identify the body of the deceased and by that time due to decay of dead body keeping it for several days, the police have got buried the dead body under an impression that the body is of a Muslim. Under these circumstances, it is quite natural that there could not be any occasion for the claimant to make out her son's dead body but she has identified the clothes in the police station that the clothes and other belongings were belonging to her son. Therefore, the Tribunal has appreciated the said aspect in correct manner and the finding recorded by the Tribunal in this regard is justified. Hence, he prays to dismiss the appeal.

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It is also contended by learned counsel for respondent no.1/claimant that the quantum of compensation awarded by the Tribunal is on the lower side. He submitted that the Tribunal had erred in

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considering the income of the deceased at Rs.7,200/per month. But, the notional income of Rs.8,500/- per month has to be taken into consideration as per the notional income fixed by the Karnataka State Legal Services Authority.

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Therefore, prays for enhancement of

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compensation and prays to dismiss the appeal filed by the Insurance Company.

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Considering the rival submissions made by

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the respective counsels as above discussed, it is not disputed fact that the accident was occurred on 30.07.2014 at night between 11.00 pm., to 11.50 pm. The driver of the Car bearing No,KA-12-P-5834 approached the police station and confessed that he has committed the offence of rash and negligent driving and dashed to the person. Based on that, one police official who is the Police Head Constable by name Mr.R.T.Raju gave complaint before the Shivajinagar Traffic Police Station on 31.07.2014. Both

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the driver of the car and Mr.R.T.Raju, Police Head Constable, searched in and around the place of accident and found that the person was lying by side of the bushes. Immediately, he was shifted to Bowring Hospital, but on 31.07.2014 the person who met with an accident died at 3.30 am. These facts are admitted. When the complaint is lodged on 31.07.2014, naturally the said head constable did not know the name of the deceased in the accident and therefore, recorded the dead person as unidentified person. The complainant has lodged the complaint on 04.08.2014 by complaining that her son was missing and crime was registered in Crime No.167/2014, but at that time the claimant did not know that her son met with an accident and died. In the meantime, since the dead body got decayed day by day, therefore, keeping the dead body in the mortuary and then upon seeing the physical features and face, the deceased might have belonging to the Muslim Religion, therefore, the dead body was buried at Muslim Burial Ground, Bangalore.

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One of the son of the claimant who is the brother of the said dead person, upon seeing the pamphlet affixed to the Metro Railway Station, the claimant and brother of the deceased went to the police station and enquired the police and the police have produced the cloths worn by the dead person and the claimant and her another son have identified the cloths belonging to her deceased son - R.Muthuraj.

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Therefore, in the present case, the only crucial evidence in identifying the person who died in the accident is identification of cloths made by the claimant. Therefore, considering all these chronological events, which are stated to be occurred in natural course, since the claimant and deceased were belonging to lower strata in the society and complaint being registered by an illiterate claimant, quite naturally, has lodged the complaint belatedly after four days by giving a missing complaint. This conduct is found to be natural one. It was also incumbent on the

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police to get the dead body buried, because of decaying of dead body and also there was no information regarding identification of the dead body. The claimant had approached the Police Station only after her another son by seeing the pamphlet in the Metro Station and found that the dead person is his younger brother and taken her mother to the police station, then in the police station, claimant had identified the cloths produced by the police as that of her son who was working in the Karnataka Government Secretariat Club as a Line Tennis Ball Picker. Therefore, in this way, the deceased is proved to be the son of the claimant.

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Further more, the claimant has got examined the Investigation Officer of the said case as P.W.2 and P.W.2 the Police Inspector who had conducted the investigation and filing of the charge sheet has stated that, later on, through the claimant,

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the dead body was found to be one R.Muthuraj and the claimant had identified the deceased as her son.

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It is also fact that P.W.1 is not an eye

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witness to the incident, but the evidence of P.W.2 is that the person who met with an accident and died in the accident is the son of the claimant. The fact in issue has been proved that the claimant had identified the cloths of the deceased in the police station as belonging to her son -R.Muthuraj. Therefore, in this regard, upon considering the appreciation of material on record, it is proved that the deceased was already buried by the police at Muslim Burial Ground, Bangalore, is none other than the son of the claimant.

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It is the contention of the learned counsel

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for the Insurance Company that the said Head Constable by name Mr.R.T.Raju was not examined and also another son of the claimant who is the brother of the deceased who had seen the pamphlet in the Metro

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Station that the dead person is his brother also was not examined. Therefore, argued that non-examination of these two witnesses as stated by the claimants is fatal to the claim proceedings and also argued that non-examination of his brother who is stated to have seen the pamphlets is not examined. Therefore, it proves that the deceased is not having any relationship with the claimant.

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This contention of the Insurance Company cannot be accepted for the reason that P.W.2 is the Investigation Officer who is examined and identified as the deceased is the person who met with an accident and identified by the claimant as her son. Therefore, under these circumstances, examination of Head Constable- Mr.R.T.Raju and another son of clamant are not necessary. Further more, P.W.2 had conducted the investigation and deposed before the Court that he has filed the charge sheet after completion of investigation and during the course of investigation, it was found out

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that the dead person is none other than the son of the claimant by name R.Muthuraj. Therefore, the charge sheet has its own weight and sanctity. There is nothing revealed from the Insurance Company that P.W.2Investigation Officer colluded with the claimant and made arrangement for filing the claim petition.

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Also just because the brother of the deceased who is another son of the claimant is not examined, that cannot be said that the claim is not genuine one. The Hon’ble Supreme Court in the case of

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ANITHA SHARMA AND OTHERS Vs. NEW INDIA ASSURANCE COMPANY LIMITED AND ANOTHER

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reported in (2021) 1 SCC 171 at paragraph No.21 held as follows:

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"21. Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than

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beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eye-witnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant’s version is more likely than not true."

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investigation conducted by P.W.2, the investigation is found to be fair and genuine one. Accordingly, charge

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sheet has been filed. Therefore, in the charge sheet, it is revealed that the deceased R.Muthuraj is the son of the claimant. Therefore, under these circumstances, considering all these chronological events and facts and circumstances, and in all, it is preponderance of probability proved that the deceased is the son of the claimant. Therefore, upon perusing the evidence on record from both sides, preponderance of probabilities is tilted more towards the claimant. The Insurance

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Company except taking the contention that the deceased is not the son of the claimant, but when it is the assertion of the Insurance Company that the deceased is not the son of the claimant, then the Insurance Company would have produced some evidence, but except producing the insurance policy and letter of the Karnataka Government Secretariat Club, no other evidence are placed. Ex.R.2 is only the salary certificate.

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Therefore, upon considering the entire case

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on preponderance of probabilities based on the evidence adduced, the Tribunal is right in holding that the deceased who met with an accident and died is none other than the son of the claimant. Hence, on the question of liability, the appeal filed by the Insurance Company does not have any merit. Therefore, on this fact in issue, the appeal is liable to be dismissed.

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Regarding quantum of compensation:

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The Tribunal has awarded compensation as under:

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Loss of dependency	Rs.10,36,800/-
Loss of love and affection and
Care and protection	Rs. 25,000/-
Obsequies Ceremony	Rs. 10,000/-
Total	Rs. 10,71,800/-

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1. Learned counsel for the appellant Insurance Company submitted that the Tribunal has committed error in adding 50% of income towards the loss of future prospects in life, but it ought to have been taken at 40% only. Therefore, by calculating addition of 40% of income, the quantum of compensation under the head loss of dependency be reduced. Therefore, prays to allow the appeal.

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On the other hand, the learned counsel for respondent No.1-claimant submitted that the amount

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of compensation awarded is on the lesser side by taking income at Rs.7,200/- per month only, but the notional income ought to have been taken at Rs.8,500/- per month. Therefore, prays to make enhancement of the compensation. Further submitted that the compensation awarded on other heads is on the lesser side. Therefore, prays for enhancement of the compensation.

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Admittedly, the claimant has not filed any appeal or cross objection for seeking enhancement of compensation. It is only the appeal filed by the Insurance Company on two grounds challenging the liability as well as on quantum of the compensation. Learned counsel for the Insurance Company brought to the notice of the Court the dictum of the Hon’ble Apex Court in the case of Ranjana Prakash and Others Vs., The Divisional Manager and Another reported in (2011) 14 SCC 639 and Shivawwa and Another Vs. The Branch Manager, National India

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Insurance Company Limited and Another reported in AIR 2018 SC 1640 and argued that in the absence of appeal by the claimant for enhancement cannot be made.

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Counter to the argument canvassed by the

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learned counsel for the respondent/claimant, it is contended by the counsel for the Insurance Company by relying on the above stated judgments that in the absence of any cross objection or appeal by the claimant, the Court cannot make enhancement of compensation. But can defend the quantum of compensation in the appeal filed by the insurer/owner. Therefore, the contention of the counsel for the Insurance Company that, in the absence of any appeal or cross objection by the claimants, the quantum of compensation cannot be enhanced as he has relied on the above stated judgments of the Hon’ble Apex Court.

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In the present case, Ex.P.17 and Ex.R.2 are the copy of Karnataka Government Secretariat Club

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stating that the deceased was working as a Line Tennis Ball Picker receiving salary of Rs.7,200/- per month from the month of July, 2014. Therefore, this is the last salary certificate proving the monthly income of the deceased as Rs.7,200/-. This Ex.P.17 is produced by the claimant herself and in the absence of appeal or cross objection by the claimant as above discussed getting support from the judgment of the Hon’ble Apex Court, it cannot be enhanced monthly notional income.

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As contended by the counsel for the claimant, the Tribunal has added 50% of income of the deceased towards loss of future prospects in life, but it ought to have been 40% as per the judgment of the Hon’ble Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi reported in (2017) 16 SCC 680. Therefore, the quantum of loss of dependency needs to be recalculated by considering the addition of 40% of income of the deceased. The deceased was aged 35 years and the appropriate multiplier applicable is “16”. The deceased was a bachelor. Hence, 50% of

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income is to be deducted towards his personal expenses and remaining 50% towards contribution to the family.

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Rs.7,200/- + Rs.2,880/- (40% of Rs.7,200/-) x 50% x 16 x 12 = Rs.9,67,680/-

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Accordingly, compensation of Rs.9,67,680/- is awarded under the head loss of dependency.

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Learned counsel for the claimant while defending the quantum of compensation also contended that the Tribunal has committed error in awarding compensation of Rs.25,000/- towards loss of love and affection and care and protection and only Rs.10,000/- towards Obsequies Ceremony. As per the judgment of the Hon’ble Apex Court in the cases of Magma General Insurance Co. Limited v. Nanu Ram & Others reported in 2018 ACJ 2782 and National Insurance Co. Ltd. Vs. Pranay Sethi reported in (2017) 16 SCC 680, the claimant is entitled for a sum of Rs.40,000/- towards loss of

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consortium, which is nothing, but loss of love and affection. Therefore, this mistake committed by the Tribunal is corrected by awarding Rs.40,000/- towards loss of consortium including loss of love and affection. Further the compensation of Rs.10,000/towards Obsequies Ceremony is found to be correct and there is no need to make any modification.

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Therefore, the appellant/claimant is entitled

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for enhanced compensation as under:

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Loss of dependency	Rs.	9,67,680/-
Loss of consortium	Rs.	40,000/-
Obsequies Ceremony	Rs.	10,000/-
Total	Rs.	10,17,680/-

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Therefore, the appeal is liable to be allowed in part insofar as quantum of compensation is concerned, but not on liability. Hence, I proceed to pass the following

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ORDER

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The appeal filed by the Insurance Company is allowed-in-part .

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The impugned judgment and award dated 03.02.2017 passed in MVC.No.5638/2014 by the MACT & V Addl. Judge, Court of Small Causes, Mayo Hall Unit, Bengaluru, is modified to the extent that the claimant is entitled to total compensation of Rs.10,17,680/- as against the compensation of Rs.10,71,800/- awarded by the Tribunal along with interest at the rate of 6% pa., from the date of petition till the date of realization.

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Both the owner and the insurance company are jointly and severally liable to pay the compensation. Therefore, the appellant-Insurance Company shall satisfy the claim amount to the claimants.

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The other observations made by the Tribunal are kept in tact.

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