Partly allowed

Reliance General Insurance Co. Limited v. Smt. Suvarna

Karnataka HC12 Sept 2023MFA/100576/2020

Case brief

AI extract

What is this about?

This judgment considers two miscellaneous first appeals challenging a Motor Accident Claims Tribunal award. The High Court rejected the insurer's appeal on liability but enhanced the compensation for the claimants by correcting the deceased's income calculation and future prospects.

What did the court decide?

Enhanced compensation awarded to Rs.32,75,500/- with interest at 6% per annum; insurer's appeal dismissed.

Reliance General Insurance Co. Limited Vs Smt. Suvarna — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC-D:10686-DB MFA No. 100950 of 2020 C/W MFA No. 100576 of 2020

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 12^TH DAY OF SEPTEMBER, 2023

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PRESENT

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THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR

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AND

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THE HON'BLE MR JUSTICE G BASAVARAJA

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MISCELLANEOUS FIRST APPEAL NO.100950 OF 2020 (MV-D) C/W MISCELLANEOUS FIRST APPEAL NO.100576 OF 2020 (MV-D)

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IN MFA NO. 100950 OF 2020

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BETWEEN:

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SMT. SUVARNA W/O. JAYARAM PATIL, AGE: 42 YEARS, OCC: HOUSE HOLD,

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KUMAR OMKAR S/O. JAYARAM PATIL, AGE: 19 YEARS, OCC: STUDENT,

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KUMAR YASH S/O. JAYARAM PATIL, AGE: 15 YEARS, OCC: STUDENT,

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YASHAVANT NARAYANKAR

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Digitally signed by YASHAVANT NARAYANKAR Date: 2023.12.13 13:28:32 +0530

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(THE APPELLANT NO.3 IS MINOR REPRESENTED BY HIS NATURAL GUARDIAN MOTHER SMT. SUVARNA W/O. JAYARAM PATIL WHO IS APPELLANT NO.1)

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ALL THE APPELLANTS ARE R/O: VPC NO.53/B, BASAVAN GALLI, KHANGAON VILLAGE, TAL: BELAGAVI, PIN CODE: 591344.

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…APPELLANTS

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(BY SRI SANJAY S. KATAGERI, ADVOCATE)

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AND:

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SHRI DATTATARAY VISHNU BHANDARI, AGE: 56 YEARS, OCC: BUSINESS, R/O: NEAR MIRA CHITRA MANDIR, RAMANAND NAGAR, KIRLOSKARWADI, TAL: PALUS, DIST: SANGLI-416310, (DRIVER AND OWNER OF HYUNDAI I-10 NO.MH-10-BM-4856)

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THE MANAGER, RELIANCE GENERAL INSURANCE CO. LTD., CTS NO.10719, MAHADEV PLAZA, NEAR KOLHAPUR CIRCLE, NEHRU NAGAR, BELAGAVI-590010.

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SMT. GANGUBAI ISHWAR PATIL, C/O. SHIVAJI ISHWAR PATIL, AGE: 71 YEARS, OCC: HOUSEHOLD, R/O: 9A, INDRAPRASTH, SANKUL, 2ND LANE, JAYASINGAPUR, TAL: SHIROL, DIST: KOLHAPUR, PIN CODE: 416101. …RESPONDENTS

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(BY SRI G.N. RAICHUR, ADVOCATE FOR R2; NOTICE SERVED TO R1)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING THAT, THE JUDGMENT AND AWARD DATED 13.11.2019 PASSED IN MVC NO.1336/2016 ON THE FILE OF THE VI ADDITIONAL DISTRICT JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, WHEREIN THE CLAIM PETITION FILED BY THE APPELLANTS HEREIN IS PARTLY ALLOWED, BY AWARDING COMPENSATION OF RS.21,03,600/WITH INTEREST AT THE RATE OF 6% PER ANNUM BE KINDLY MODIFIED ENHANCING THE CLAIM COMPENSATION TO RS.2,00,00,000/-(2 CRORES) WITH INTEREST 9% PER ANNUM FROM THE DATE OF PETITION, TILL THE DATE OF PAYMENT; AND ETC.

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NC: 2023:KHC-D:10686-DB MFA No. 100950 of 2020 C/W MFA No. 100576 of 2020

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IN MFA NO. 100576 OF 2020

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BETWEEN:

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RELIANCE GENERAL INSURANCE CO. LIMITED CTS NO.10719, MAHADEV PLAZA, NEAR KOLHAPUR CIRCLE NEHRU NAGAR, BELAGAVI-590010. REPRESENTED BY ITS AUTHORIZED SIGNATORY.

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…APPELLANT

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(BY SRI G.N. RAICHUR, ADVOCATE)

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AND:

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SMT. SUVARNA W/O. JAYRAM PATIL, AGE: 42 YEARS, R/O: VPC NO.53/B BASVAN GALLI, KHANGAON VILLAGE, TAL: BELAGAVI-590021.

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KUMAR OMKAR S/O. JAYRAM PATIL, AGE: 19 YEARS, R/O: VPC NO.53/B BASVAN GALLI, KHANGAON VILLAGE, TAL: BELAGAVI-590021.

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KUMAR YASH S/O. JAYRAM PATIL, AGE: 15 YEARS, R/O: VPC NO.53/B BASVAN GALLI, KHANGAON VILLAGE, TAL: BELAGAVI-590021,

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RESPONDENT NO.3 IS MINOR AND IS REPRESENTED BY THEIR NATURAL GUARDIAN MOTHER SMT. SUVARNA W/O. JAYARAM PATIL, WHO IS RESPONDENT NO.1.

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SRI DATTATARAY VISHNU BHANDARI, AGE: 57 YEARS, OCC: BUSINESS, R/O: NEAR MIRA CHITRA MANDIR, RAMANAND NAGAR, KIRLOSKARWADI, TAL: PALUS, DIST: SANGALI-416415.

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SMT. GANGUBAI ISHWAR PATIL, C/O SHIVAJI ISHWAR PATIL, AGE: MAJOR, OCC: HOUSEHOLD, R/O: 9A INDRAPRASTH SANKUL, 2ND LANE, JAYASINGHPUR-416101, TAL: SHIROL, DIST: KOLHAPUR.

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…RESPONDENTS

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(BY SRI SANJAY S. KATAGERI, ADVOCATE FOR R1 AND R2; R3 IS MINOR REPRESENTED BY R1; NOTICE SERVED TO R4 AND R5)

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THIS MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING MODIFY THE JUDGMENT AND AWARD DATED 13.11.2019 PASSED IN MVC NO.1336/2016 ON THE FILE OF THE VI ADDITIONAL DISTRICT JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, AWARDING COMPENSATION OF RS.21,03,600/WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL ITS PAYMENT.

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THESE APPEALS, COMING ON FOR ORDERS, THIS DAY, BASAVARAJA J., DELIVERED THE FOLLOWING:

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J U D G M E N T

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Both appeals are arising out of judgment and award dated 13^th November, 2019 passed in MVC No.1336 of 2016 by the VI Additional District Judge and Motor Accident Claims Tribunal, Belagavi (for short hereinafter referred to as the "Tribunal").

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For the sake of convenience, the parties in this appeal are referred to with their status and rank before the Tribunal.

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Brief facts of the case are that:

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On 27^th May, 2015 when the deceased Jayaram Ishwar Patil was proceeding towards Ramanand Nagar from Phalus on his motorcycle in a moderate speed by observing traffic rules at about 5.45 pm and when he came near Maruti Mandir, one Hyundai i-10 car bearing registration No.MD-10/BM-4856 was illegally parked on the road without observing traffic rules and the respondent No.1 without looking on to the traffic, negligently opened the door, as a result the rider of the two wheeler dashed against the door and fell sustaining grievous head injuries. Immediately, he was shifted to Civil Hospital, Phalus, where the Doctors declared the injured as dead and

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later the body was handed over to the petitioners. It is stated in the claim petition that prior to accident the deceased was hale and healthy and was aged about 49 years and was a Diploma holder in Mechanical engineering and was also an agriculturist and was earning Rs.50,000/- per month and due to untimely death of the deceased, the petitioners have put to great loss, mental shock and agony. It is further stated that the respondent No.1 being the owner and the respondent No.2 being the insurer of the offending vehicle are jointly and severally liable to pay the compensation.

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Pursuant to issuance of summons, respondent No.1 was placed exparte. Respondent No.2 filed statement of objections contending that the policy was in force and the same was subject to conditions, exceptions and limitations thereof. It is further contended that the accident was due to the rash and negligent riding on the part of the deceased himself and there is no negligence on the part of the driver of the offending car who had parked the car on the extreme left side of the road and by taking all necessary precautionary measures. It is further contended that the deceased was not possessing the valid driving licence to ride the motorcycle and hence

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contributed to the accident and on the ground of contributory negligence on the part of the deceased rider, it is contended that the petitioners are not entitled for any compensation and if the Tribunal comes to a conclusion that petitioners are entitled for any compensation the same may kindly be reduced to the extent of contributory negligence by the deceased. On all these grounds sought to dismiss the petition.

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Respondent No.3-mother of the deceased, has filed

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her objections which are similar to the petition of the petitioners.

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Based on the rival contentions, the Tribunal framed

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the following issues for its consideration:

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1. Whether the petitioners prove that the deceased Jayaram S/o Ishwar Patil, died due to injuries sustained in accident occurred on 27.05.2015, at about 17.40 hours, near Maruti Mandir on Palus Colony, Kirloskarwadi/ Ramanand Nagar Road, Taluk: Palus, Disrtrict:Sangli due to the rash and negligent driving of the driver of the Hyundai i10 car bearing registration No.MH-10-BM-4856 by its driver?

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1. Are petitioners entitled for compensation? if so, how much and from whom?

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1. To what order?

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To prove their case, petitioners have examined two

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witnesses as PWs1 and 2 and got marked 21 documents as Exhibits P1 to P21. The respondent No.2 has not adduced any oral or documentary evidence. Upon hearing the learned counsel for the parties the Tribunal answered the issues as under:

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Issue No.1: affirmative;

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Issue No.2: Partly affirmative, petitioners are entitled for compensation of Rs.21,03,600/- from R2insurer

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Issue No.3: as per final order

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In view of the above finding, the Tribunal allowed the petition in part and awarded compensation of Rs.21,03,600/- with interest at 6% per annum from the date of petition till realisation. Being not satisfied by the compensation awarded by the Tribunal, the petitioners have preferred MFA No.100950 of 2020 seeking enhancement in compensation and being aggrieved by the impugned judgment and award, the Reliance General Insurance Company Ltd. has preferred MFA No.100576 of 2020, challenging the liability as well as quantum of compensation.

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Sri G.N. Raichur, learned counsel appearing for the appellant-Insurance Company submits that the Tribunal has committed an error in coming to a conclusion that the accident was due to negligent act on the part of the driver of the car only based on the police records. He submits that it is settled principle of law that in claim proceedings, the Tribunal has to decide the negligence aspect independently but the Tribunal has failed to comply this aspect while dealing with the aspect of negligence. He submits that the car was parked in the day light and had the deceased seen the car and driven the motorcycle slowly, the accident could have been avoided. Learned Counsel further submits that though the appellant has taken a contention that the deceased was not wearing headgear and had he ridden the motorcycle with a headgear he could not have suffered head injury and hence the same would constitute negligence on the part of the deceased, but, the same has not been considered by the Tribunal. Further, he submits that the Tribunal has committed an error in taking the income of the deceased at Rs.2,50,000/- per annum. He submits that as per Exhibits P7 to P9, the income tax paid by the deceased is Rs.5,460/-, Rs.3,250/- and Rs.1,916/-. The Tribunal ought to

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have deducted the professional tax while calculating the loss of dependency. Hence on all these grounds sought to allow the appeal.

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Sri Sanjay S. Katageri, learned counsel appearing for the respondents/claimants submits that the Tribunal has rightly held as to the liability of the Insurance company. He submits that the Tribunal has failed to consider the income-tax returns Exhibits P7 to P9. The Tribunal has considered the income of the deceased only at Rs.2,50,000/- per annum which is not in accordance with law and facts. The Tribunal ought to have added agricultural income of the deceased as the deceased was having agriculture lands as per Exhibits P10 to P16. The Tribunal has committed an error in making deduction of one-third towards personal and living expenses even though there are five dependents. The Tribunal has not awarded compensation in accordance with law and facts and also as per decision of the Hon'ble Supreme Court. On all these grounds sought to allow the appeal by enhancing the compensation.

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Having heard the learned counsel for the parties, the following points would arise for our consideration in these appeals:

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1. Whether the Insurance company has made out

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a ground to interfere with the impugned judgment and award as to the liability and quantum of compensation?

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1. Whether the claimants have made out grounds

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for enhancement of compensation?

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1. What order?

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Our answer for the above points are as under:

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Point No.1: in the negative;

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Point No.2: partly in the affirmative;

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Point No.3: as per final order

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Regarding Point No.1:

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It is the case of the petitioners that, on 27^th May,

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2015 when Jayaram Ishwar Patil was proceeding on his motorcycle, the respondent No.1 has negligently opened the door of Hyundai i-10 car bearing registration No.MD-10/BM4856 which was illegally parked on the road without observing traffic rules, as a result the rider of the two wheeler dashed against the door and fell sustaining grievous head injury. Immediately, he was shifted to Civil Hospital, Phalus, where the Doctors declared him as dead. It is stated in the claim petition

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that prior to accident the deceased was hale and healthy and was aged about 49 years and was a Diploma holder in Mechanical engineering and was also an agriculturist and was earning Rs.50,000/- per month and due to untimely death of the deceased, the petitioners have put to great loss, mental shock and agony. To substantiate the case of the Petitioner PW1-Suvarna, wife of the deceased, has deposed as to the accident as alleged in the petition. PW2-Sri Rajendra Vittal Savant who is an eye-witness to the accident cited as CW9 in the charge sheet, has deposed in his evidence as to the accident and also produced documentary evidence. Perusal of documentary evidence makes it clear that on the basis of the complaint filed by Shashikala Sambaji Chauhan, Phalus Police have registered case in Crime No.50 of 2015 against the accsed-Dattatreya Vishnu for commission of offence punishable under Section 304A of Indian Penal Code and submitted First Information Report to the court. Thereafter, Police visited the spot and conducted inquest panchanama in the presence of panchas, recorded statement of witnesses, obtained postmortem report and on thorough investigation, Investigating Officer submitted charge sheet against the accused for

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commission of offences punishable under Section 304A, 283 and 427 Indian Penal Code. The respondents have not disputed as to the charge sheet submitted by the Police. Even during the course of cross-examination of PWs1 and 2, they have not questioned as to the charge sheet submitted by the Investigating Officer. The respondents have not adduced any evidence before the Court to disprove the oral and documentary evidence placed by the petitioners. Considering the evidence placed before the Tribunal, Tribunal has rightly appreciated the evidence on record and held that the accident occurred due to rash and negligent act on the part of the driver of the offending vehicle. The arguments advanced on behalf of the respondent-Insurance Company cannot be accepted as the same is not substantiated by any legal evidence. Accordingly, we are of the considered view that the appellant-Insurance Company has failed to make out a ground to interfere with the impugned judgment and award as to the liability and also the quantum of the compensation awarded by the Tribunal. Hence, we answer the point No.1 in the negative.

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Regarding Point No.2:

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With regard to quantum of compensation is concerned, PW1-Survana wife of the deceased, has deposed that the deceased was hale and healthy before the accident and was aged 49 years and was doing mechanical work and was also an agriculturist and getting an average monthly income of Rs.50,000/- per month which he was contributing towards welfare of the family. She has produced documents Exhibits P7 to P9-income tax returns for the year 2013-14, 2014-15 and 2015-16. It is evident from Exhibit P7-income tax returns for the year 2013-14, the income of the accused was Rs.3,49,164/- and the tax of Rs.5,463/- was paid. The computation of total income is also produced along with Exhibit P7 in which it is clearly stated as to income from house property, income from business and from other sources and also deduction of tax. The petitioner also produced the profit and loss account for the year ending 31^st March, 2013, in which it is clearly stated as to the nature of business of the deceased which is shown as manufacture of machinery spares. Particulars of tax deducted at source is also produced,

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Exhibit P8 is the income tax returns for the year 2014-15, which reveals that the total income of the deceased was Rs.3,48,170/- and tax paid is shown as Rs.3,250/-. Statement of total income for the year ending 31^st March, 2014 is also produced along with the trading, profit and loss account. Exhibit P9 is the income-tax returns for the year 2015-16 and the same revels that the income of the deceased to the said assessment year is Rs.3,59,796/-. The tax payable is shown as Rs.1,475/-. The profit and loss account for the year ending 31^st March, 2015 is also produced. Exhibits P10 to 15 are the RTC extracts, Exhibit P16 is the khata extract which reveals that deceased is Jagdish Patil is having agricultural land in Khargaon of Bagewadi Hobli, Belgaum Taluk. The Tribunal has rightly observed that the deceased was running a proprietory concern in the name and style M/s. JP Engineering Works and had regular income as per income tax returns. But the Tribunal has not considered the income-tax returns Exhibit P7 to P9 and not assessed the income as per income tax returns. Considering the income-tax returns for the years 2013-14 to 2015-16 and also keeping in mind the deduction of profession tax, etc. and also income from agriculture, it is just and proper to assess the

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income at Rs.3,40,000/- per annum. Accordingly it is assessed. As per the judgment of the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157, future prospects at the rate of 10% is to be added to the income of the deceased. Hence, the annual income of the deceased would be Rs.3,74,000/-. In view of judgment of Hon'ble Supreme Court in the case of SARLA VERMA AND OTHERS v. DELHI TRANSPORT CORPORATION LIMITED AND ANOTHER reported in (2009)6 SCC 121 the appropriate multiplier commensurate to the age of the deceased would be 11, and same is rightly taken by the Tribunal. Since there are four dependents, one-fourth has to be deduced towards personal expenses of the deceased and hence, the annual income of the deceased would be Rs.2,80,500/-. Hence, the loss of dependency would be Rs.30,85,500/- (Rs.2,80,500/- x 11). Considering the facts and keeping in mind the decisions of Hon'ble Supreme Court in the case of SARLA VERMA AND OTHERS v. DELHI TRANSPORT CORPORATION LIMITED AND ANOTHER reported in (2009)6 SCC 121; NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS

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reported in AIR 2017 SC 5157; and MAGMA GENERAL INSURANCE COMPANY LIMITED v. NANU RAM ALIAS CHUHRU RAM AND OTHERS reported in (2018)18 SCC 130 it is just and

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proper to award compensation under the following heads:

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Sl.No.	Head	Amount (in Rs.)
1.	Loss of dependency	30,85,500.00
2.	Loss of consortium (Rs.40,000 x 4)	1,60,000.00
3.	Loss of estate	15,000.00
4.	Towards funeral expenses	15,000.00
	Total	32,75,500.00

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Accordingly, point no.2 is answered partly in the affirmative.

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Regarding Point No.3:

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For the aforesaid reasons and discussions, we

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proceed to pass the following:

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O R D E R

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MFA No.1005676 of 2020 preferred by the Insurance Company dismissed;

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MFA No.100950 of 2020 preferred by the claimants is allowed in part;

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Judgment and award dated 13^th November, 2019 passed in MVC No.1336 of 2016 by the VI Additional District Judge and Motor Accident Claims Tribunal, Belagavi is modified by

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enhancing the compensation to Rs.32,75,500/as against Rs. 21,03,600/- awarded by the Tribunal and the same shall carry interest at the rate of 6% per annum;

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