Partly allowed

Iffco Tokio General Insurance Co. Ltd. v. Venkateshachari

Karnataka HC23 Mar 2022MFA/9480/2011

Case brief

AI extract

What is this about?

The High Court allowed part of an appeal, modifying the Motor Accident Claims Tribunal's award. The Court held that foster parents were not entitled to compensation for a non-adopted child but suggested a nominal sum of Rs.1,00,000/for the ends of justice.

What did the court decide?

Impugned award modified; compensation fixed at Rs.1,00,000/- with interest at 6% p.a.; insurer directed to deposit within six weeks.

Iffco Tokio General Insurance Co. Ltd. Vs… — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF MARCH, 2022

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BEFORE

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THE HON'BLE MS.JUSTICE J.M.KHAZI

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M.F.A.NO.9480/2011 (MV)

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BETWEEN:

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IFFCO TOKIO GENERAL INSURANCE CO.LTD., #41, II FLOOR, CRISTU COMPLEX, LAVELLE ROAD, BANGALORE – O1, ZONAL MANAGER, IFFCO-TOKIO GEN. INS. CO. LTD., CUSTOMER SERVICE CENTRE, “SRI SHANTHI TOWERS” 5^TH FLOOR, 3^RD MAIN, #141, EAST OF NGEF LAYOUT, KASTURI NAGAR, BANGALORE – 560 084

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… APPELLANT

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(BY SRI. A.N.KRISHNA SWAMY, ADVOCATE)

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AND:

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VENKATESHACHARI, S/O RAMACHANDRACHARI, NOW AGED ABOUT 43 YEARS,

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SMT SAROJAMMA, W/O VENKATESHACHARI NOW AGED ABOUT 37 YEARS, R/O YAGALBANDLUKERE, BAGEPALLI TALUK, CHICKBALLAPUR DISTRICT

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SMT LAKSHMIDEVAMMA W/O Y B BYAPPA, AGE: MAJOR

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R/O CHANCHARAYANAPALLI, GULUR POST, BAGEPALLI TALUK, CHICKBALLAPUR DISTRICT

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...RESPONDENTS

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(BY SRI. NARENDRA GOWDA, ADVOCATE FOR R1 & R2; V/O/DTD 13.04.2012, R3 NOTICE D/W)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 5^TH AUGUST 2011 PASSED BY THE MOTOR ACCIDENT CLAIMS TRIBUNAL, BANGALORE, SCCH-17 IN MVC NO.3808/2010 AND TO PASS SUCH OTHER ORDER OR ORDERS AS THIS HON’BLE COURT DEEMS FIT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, INCLUDING THE COSTS, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS MFA 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 by respondent No.2 Insurance company challenging the impugned judgment and award whereby the Tribunal has granted compensation in a sum of Rs.2,50,000/with interest at 6% p.a. in respect of death of Kum.Mahalakshmi, aged about 13 years, said to be the adopted daughter of petitioners.

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For the sake of convenience the parties are referred to by their rank before the Tribunal.

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FACTS: It is the case of the petitioners that deceased Mahalakshmi was their adopted daughter. She was aged about 12 years studying in VII standard at the time of accident. On 23.03.2010 at about 5.30 p.m. deceased was moving on the road near Munna Saw Mill, Bagepalli. She was passing on the left side of the road. At that time tractor-trailor bearing registration No.KA-40/T-7893, KA-40/T-7894 (hereinafter referred to as offending vehicle) driven by its driver in a rash or negligent manner came in a high speed and dashed against deceased. Respondent No.1 being the insurer and respondent No.2 being the owner of the offending vehicle are liable to pay the compensation.

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Inspite of due service of notice, respondent No.2 has not appeared and as such placed Ex-parte.

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Respondent No.1 appeared through counsel and filed written statement admitting that the offending vehicle was covered by valid policy issued by it. However, its liability is subject to the terms and conditions of the policy. Respondent No.2 has not complied with the provisions of Section 134-C of the MV Act and as such respondent No.1 is not liable. It has

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denied that accident occurred due to the rash or negligent driving by the driver of the tractor-trailor.

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Respondent No.1 has denied and disputed that deceased was the adopted daughter of petitioners. They are put to strict proof of the same. The compensation claimed is highly exorbitant and has sought for dismissal of the petition.

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During the course of enquiry petitioner No.1 is examined as PW-1 and Ex.P1 to P10 are marked.

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Respondent No.1 has not led any evidence on its

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behalf.

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Vide the impugned judgment and award the Tribunal has partly allowed the petition and granted compensation in a sum of Rs.2,50,000/- with interest at 6% p.a.

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Respondent No.1 has challenged the impugned judgment and award disputing the claim of the petitioners’ that deceased was their adopted daughter. In the absence of proof of adoption, they are not the legal representatives of the deceased and as such not entitled for any compensation. Petitioners have failed to prove that deceased was their adopted daughter. Since

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this issue goes to very root of the case, without considering the objections and without giving finding on that aspect, the Tribunal has mechanically allowed the petition granting compensation. It is on the higher side and has sought for allowing the appeal and dismiss the claim petition.

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PW-1 Venkateshachari who is petitioner No.1 has deposed in terms of the petition averments and stated that deceased was their adopted daughter. However, during his cross-examination he has admitted that in the PM report the father’s name of the deceased is noted as Venkatappa whereas he is Venkateshachari and both of them are two different persons. Even though he has denied that the deceased was not his daughter and to claim compensation, he is deposing falsely, fact remains that petitioners have failed to establish that they have adopted the deceased and on that basis they are entitled for compensation for her death. However, the complaint averments show that deceased was the daughter of the sister of the complainant i.e. petitioner No.1. When she was aged 3 months her father died and her mother also left her. Therefore, petitioners fostered her. Under law, the petitioners are not

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entitled for compensation. Having regard to the fact that deceased was the daughter of sister of petitioner No.1, after hearing both sides for some time, this Court suggested that to meet the ends of justice it would be appropriate to grant compensation in a sum of Rs.1,00,000/-. Both learned counsel have fairly conceded and accepted the suggestion made by this Court. In view of the same, I proceed to pass the following:

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ORDER

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(i) Appeal is allowed in part.

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(ii) The impugned judgment and award is modified restricting the quantum of compensation to Rs.1,00,000/-.

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(iii) Appellants/petitioners are entitled for compensation in a sum of Rs.1,00,000/together with interest at 6% p.a. from the date of petition till realization.

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(iv) Respondent No.1 Insurance company is directed to deposit the compensation with interest (minus the compensation if any already paid) within a period of six weeks from the date of this order.

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(v) The registry is directed to transmit the trial Court record along with the copy of this order.

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Sd/JUDGE

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Iffco Tokio General Insurance Co. Ltd. v. Venkateshachari

Case brief

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Iffco Tokio General Insurance Co. Ltd. v. Venkateshachari

Case brief

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