Partly allowed

The Oriental Insurance Company Ltd. v. Smt Farida Begum Abdul Gaffar

Karnataka HC21 Nov 2022MFA/7277/2018

Case brief

AI extract

What is this about?

This is an appeal under Section 173(1) of the Motor Vehicles Act challenging compensation for death in a road accident. The court held that family pension is not deductible and dismissed the challenge on quantum but allowed the appeal to reduce interest from 9% to 6% per annum.

What did the court decide?

The impugned judgment is modified to reduce the rate of interest from 9% to 6% per annum from the date of filing of the petition till realization.

The Oriental Insurance Company Ltd. Vs Smt Farida… — Motor Accident Claims | Karnataka HC (2022)

HSJ: 21.11.2022

JUDGMENT

MISCELLANEOUS FIRST APPEAL NO. 7277 OF 2018

(MV-D)

BVK

MFA No. 7277 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21^ST DAY OF NOVEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 7277 OF 2018

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(MV-D)

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BETWEEN:

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THE ORIENTAL INSURANCE COMPANY LTD KRISHNA PRASADA BLDG, 3RD FLOOR, M G ROAD MANGALORE REPRESENTED BY AUTHORISED SIGNATORY AT REGIONAL OFFICE #44/45, LEO SHOPPING COMPLEX RESIDENCY ROAD CROSS BANGALORE-560025

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…APPELLANT

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(BY SRI. SRISHAILA S .,ADVOCATE)

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AND:

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SMT FARIDA BEGUM ABDUL GAFFAR W/O LATE ABDUL GAFFAR UMMER R/A NEAR CANARA BANK THENKA YERMAL VILLAGE UDUPI TALUK -576101.

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MR ROSHAN SHETTY S/O RAMAKRISHNA SHETTY R/ FLAT NO.603 SUDARSHA RESIDENCY AJJARKAD UDUPI TALUK -576101.

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…RESPONDENTS

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(R1 SERVED; NOTICE D/W TO R2 V/O DT.16.11.2022)

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MFA No. 7277 of 2018

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MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 27.04.2018, PASSED IN MVC NO.829/2016 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND MACT, UDUPI, AWARDING COMPENSATION OF RS.7,26,000/- WITH INTEREST @ 9% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is filed under Section-173(1) of the Motor Vehicles Act 1988 (hereinafter referred to as ‘MV Act’ for brevity) by the insurance company, challenging the judgment and award dated 27.04.2018, passed in M.V.C. No.629/2016, on the file of the Senior Civil Judge & M.A.C.T., Udupi, (hereinafter referred to as ‘the Tribunal’ for brevity) as the compensation granted towards loss of dependency was high and excessive and the rate of interest at 9% per annum is also excessive.

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Brief facts:

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On 10.01.2016 at about 8.05 p.m. the husband

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of respondent no.1 was walking by the side on footpath of N.H.66 near Yermal Masjid, Yermal Thenka Village, Udupi

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the driver of the bus bearing registration No.KA-20-D-

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MFA No. 7277 of 2018

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5088 drove the bus in rash and negligent manner and dashed against the husband of the respondent no.1, who was on the footpath. As a result of the same, her husband sustained grievous injuries. Later, he was shifted to A.J. Hospital, Mangalore wherein he succumbed to injuries.

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Hence, a claim petition was filed by the claimant under Section-166 of the M.V. Act, claiming compensation for the death of her husband. In pursuance of the Notice issued, Insurance company has appeared through counsel and filed written statement denying the averments made in the claim petition.

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To substantiate the contentions of the

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appellant–claimant, appellant examined herself as PW-1 and also examined one Thoufiq Ahammed as P.W.2 and got marked the documents at Exhibits-P1 to P10. The insurance company neither examined any witnesses nor got marked any documents in support.

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The Tribunal on appreciating the materials on

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record, allowed the petition in part, and awarded a

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MFA No. 7277 of 2018

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compensation of Rs.7,26,000/-, along with interest at 9%

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per annum from the date of petition till the date of deposit. The Tribunal held respondents No.1 and No.2 therein, jointly and severally liable to pay the compensation.

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Heard arguments of the learned counsel for both sides and perused the materials on record.

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Tribunal has ordered compensation under

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various heads as follows:

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Loss of Dependency		: Rs.	6,56,000/-
Loss of estate		: Rs.	15,000/-
Loss of consortium		: Rs.	40,000/-
Funeral Expenses		: Rs.	15,000/-
	TOTAL	: Rs.	7,26,000/-

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The ground urged by the learned counsel for

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the Insurance Company is that the Tribunal ought to have deducted the amount of family pension from the income of the deceased, but without doing so, tribunal has granted higher amount of compensation. Therefore, prays to deduct the family pension.

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MFA No. 7277 of 2018

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The ground raised by the Insurance Company is

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squarely covered by the judgment of Hon'ble Supreme Court in case of SEBASTIANI LAKRA & ORS vs. NATIONAL INSURANCE COMPANY LIMITED AND

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ANOTHER , reported in AIR 2018 SC 5034 , was pleased to observe at para-12 as follows:

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“12. The law is well settled that deductions cannot be allowed from the amount of compensation either on account of insurance, or on account of pensionary benefits or gratuity or grant of employment to a kin of the deceased. The main reason is that all these amounts are earned by the deceased on account of contractual relations entered into by him with others. It cannot be said that these amounts accrued to the dependents or the legal heirs of the deceased on account of his death in a motor vehicle accident. The claimants/dependents are entitled to ‘just compensation’ under the Motor Vehicles Act as a result of the death of the deceased in a motor vehicle accident. Therefore, the natural corollary is that the advantage which accrues to the estate of the deceased or to his dependents as a result of some contract or act which the deceased performed in his life time cannot be said to be the outcome or result of the death of the deceased even though

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MFA No. 7277 of 2018

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these amounts may go into the hands of the dependents only after his death.”

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Here the deceased was 67 years old and was

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working in Mumbai Port Trust. He was a pensioner. Therefore the pension amount was the only contribution to the family. The deceased was receiving pension amount of Rs.21,878/-. Wife was receiving family pension of Rs.14,000/-. The amount of family pension, gratuity, insurance are the mandatory advantages towards kith and kin and are not amenable for deductions as laid down in

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Sabastiani Lakra ( supra ).

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Therefore, there is no merit in the contention urged by the Insurance Company requesting to deduct the family pension amount. Therefore, the tribunal has correctly taken the pension amount and accordingly awarded compensation by applying appropriate multiplier and the relevant deductions. Therefore, the quantum of compensation awarded under the head of loss of dependency is found to be correct.

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MFA No. 7277 of 2018

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Therefore, on quantum of compensation

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granted, there is no merit found in the contention urged by the Insurance Company. Hence, on this aspect the appeal is liable to be dismissed.

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Insofar interest is concerned the tribunal has awarded 9% per annum. The same is scaled down to 6% per annum. Only on this, rate of interest is concerned, the appeal is liable to be allowed. Hence, I pass the following:

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ORDER

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i. The appeal is allowed in part .

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ii. The impugned judgment and award dated 27.04.2018, passed in M.V.C. No.829/2016, on the file of the Senior Civil Judge & M.A.C.T., Udupi is modified to an extent of rate of interest is concerned. The entire compensation amount shall carry interest at 6% per annum from the date of filing of the petition till realization.

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MFA No. 7277 of 2018

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iii. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.

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iv. Draw award accordingly. v. Costs made easy.

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Sd/JUDGE

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BVK

The Oriental Insurance Company Ltd. v. Smt Farida Begum Abdul Gaffar

Case brief

What is this about?

What did the court decide?

The Oriental Insurance Company Ltd. v. Smt Farida Begum Abdul Gaffar

Case brief

What is this about?

What did the court decide?

What the court decided

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