Partly allowed

Hdfc Ergo General Insurance Co. Ltd. v. Smt. Anuradha Krishna @ Kisan Jambalekar

Karnataka HC9 Nov 2023MFA/101095/2018

Case brief

AI extract

What is this about?

This Full Bench allowed the claimant's appeal partly and dismissed the insurance company's appeal. It held the deceased did not contribute to the accident, awarded enhanced compensation of Rs.4,38,600/- with 6% interest, and applied Supreme Court precedents on notional income and dependency unless otherwise adjusted.

What did the court decide?

Allowed appellant-claimants appeal partly for additional compensation of Rs.4,38,600/- with 6% interest; dismissed insurance company appeal.

Hdfc Ergo General Insurance Co. Ltd. Vs Smt… — Motor Accident Claims | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 09^th DAY OF NOVEMBER, 2023

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PRESENT

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THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV

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AND

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THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL

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MISCELLANEOUS FIRST APPEAL NO.103904/2017 C/W

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MISCELLANEOUS FIRST APPEAL NO.101095/2018

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IN MAFA NO.103904/2017

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BETWEEN

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1 . SMT. ANURADHA KRISHNA @ KISAN JAMBALEKAR AGE: 29 YEARS, OCC: HOUSEHOLD,

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MAST. RITESH KRISHNA @ KISAN JAMBALEKAR AGE: 05 YEARS, OCC: ANGANWADI STUDENT,

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Digitally signed bySHIVAKUMAR SHIVAKUMAR HIREMATH HIREMATH Date: 2023.11.10 10:40:56 +0530

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MAST. PAVAN @ ARAYAN KRISHNA @ KISAN JAMBALEKAR, AGE: 01 YEAR 9 MONTHS, OCC: ANGANWADI STUDENT, SINCE APPELLANTS NO:2 & 3 ARE MINORS, R/BY THEIR MINOR GUARDIAN NATURAL MOTHER, APPELLANT NO.1.

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4.. SMT. SUMAN RAMACHANDRA JAMBALEKAR, AGE: 56 YEARS, OCC: NIL.

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SHRI. RAJU RAMCHANDRA JAMBALEKAR, AGE: 31 YEARS, OCC: NIL (MENTALLY UNFIT), R/BY HIS NEXT FRIEND GUARDIAN, MOTHER APPELLANT NO.4 ALL ARE R/O. SAI COLONY,

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SHAHU NAGAR, BELAGAVI-590010.

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...APPELLANTS

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(BY SRI. HARISH S. MAIGUR, ADVOCATES)

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AND

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1 . SHRI. AGARAWAL LOGISTIC, R/O. BLOCK NO-36/A, NEAR VRL AUTO NAGAR, VANSATHALIPURAM, HAYATHNAGAR, HYDERABAD-500070, ANDHRA PRADESH.

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2 . THE DIVISIONAL MANAGER, HDFC ERGO GENERAL INSURANCE CO. LTD., II 4TH FLOOR, OFFICE NO-401 & 402, KUCHKULLA HOUSE, HIMAYAT NAGAR, HYDERABAD-500029.

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3 . SHRI. IMTIYAZ SAYYED S/O. BASHA SAYYED HOUSE NO-47, RAGHVENDRA SWAMI MUTT, MONTE HILL-MARGAO, GOA-403601.

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…RESPONDENTS

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THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED 06.09.2017 PASSED IN MVC NO.1116/2016 ON THE FILE OF THE XI ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER, ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO. 101095/2018

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BETWEEN

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HDFC ERGO GENERAL INSURANCE CO. LTD, II 4TH FLOOR, OFFICE NO.401 & 402, KUCHKULLA HOUSE, HIMAYAT NAGAR, HYDERABAD-500029.

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...APPELLANT

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(BY SRI. S. K. KAYAKAMATH, ADVOCATE)

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AND

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1 . SMT. ANURADHA KRISHNA @ KISAN JAMBALEKAR, AGE: 30 YEARS, OCC: HOUSEHOLD, R/O. SAI COLONY, SHAHU NAGAR, BELGAVI.

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MAST. RITESH KRISHNA @ KISAN JAMBALEKAR AGE: 6 YEARS, OCC: STUDENT, R/O. SAI COLONY, SHAHU NAGAR, BELAGAVI.

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MAST. PAVAN @ ARAYAN KRISHNA @ KISAN JAMBALEKAR, AGE: 2 YEARS 9 MONTHS, OCC: ANGANWADI STUDENT, R/O. SAI COLONY, SHAHU NAGAR, BELAGAVI. RESPONDENT NO. 2 & 3 BEING THE MINORS REPRESENTED BY THEIR MINOR GUARDIAN NATURAL MOTHER RESPONDENT NO.1

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SMT. SUMAN RAMACHANDRA JAMBALEKAR, AGE: 55 YEARS, OCC: NIL, R/O. SAI COLONY, SHAHU NAGAR, BELAGAVI.

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SRI. RAJU RAMACHANDRA JAMBALEKAR, AGE: 30 YEARS, OCC: NIL (MENTALLY UNFIT), REPRESENTED BY HIS NEXT FRIEND GUARDIAN MOTHER PETITIONER NO.4.

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SRI. AGARAWAL LOGISTIC, BLOCK NO.36/A, NEAR VRL AUTO NAGAR, VANSATHALIPURAM, HAYATHNAGAR, HYDERABAD-500070, ANDHRA PRADESH (OWNER OF CONTAINER GOODS TRUCK NO. AP-29/TC-1025).

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SHRI. IMTIYAZ SAYYED S/O BASHA SAYYED, HOUSE NO.47, RAGHVENDRA SWAMI MUTTU, MONTE HILL, MARGOA, GOA. (OWNER OF TRUCK NO.GA 02/V 5548).

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…RESPONDENTS (BY SRI. HARISH S. MAIGUR, ADV. FOR R1, R4 & R5, R2 & R3 MINORS R/BY R1, NOTICE TO R6 SERVED, NOTICE TO R7 DISPENSED WITH)

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THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 06.09.2017 PASSED IN MVC NO.1116/2016 ON THE FILE OF THE XI ADDITIONAL DISTRICT AND SESSIONS JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, AWARDING COMPENSATION OF Rs.20,09,000/- WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL ITS REALISATION.

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THESE APPEALS HAVING BEEN HEARD, RESERVED ON 31.10.2023 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT VIJAYKUMAR A PATIL, J., PRONOUNCED THE FOLLOWING:

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JUDGMENT

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MFA No.103904/2017 is filed by the appellantsclaimants, who are the legal heirs of deceased Krishna @ Kisan Jabalekar, seeking for enhancement of compensation. MFA No.101095/2018 is filed by the appellant-Insurance Company challenging the liability as well as the quantum of compensation awarded by the Tribunal vide judgment and award dated 06.09.2017 passed by the XI Addl. District and Sessions Judge, Belagavi (hereinafter referred to as ‘the Tribunal’) in MVC No.1116/2016.

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Brief facts giving rise to filing of these appeals are

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that the legal heirs of the deceased Krishna @ Kisan filed a claim petition seeking compensation before the Tribunal. It is averred that on 22.04.2016 at 8.30 p.m., the deceased Krishna had parked his truck bearing No.GA-02/-V5548 near Karki Halla village on Hubballi-Dharwad Bypass road on Kachcha road and was taking rest in the said truck. The container goods truck bearing No.AP-29/TC-1025 came from the opposite direction in a rash and negligent manner, driver lost the control over the vehicle and dashed to the truck parked on the side of the road resultantly the driver has suffered fatal injuries and succumbed to those injuries on the spot. It is further averred that, deceased was hale and healthy before the accident, he was earning Rs.15,000/- per month and was the only bread earner in the family and the claimants are the dependents.

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The respondent Nos.1 and 2 have filed their

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objections by denying the averments of the claim petition. It

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is averred that, the deceased Krishna @ Kisan was negligent in parking the vehicle on the road side, has resulted in the accident and sought for dismissal of the claim petition.

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The tribunal has framed the issues and recorded the evidence of the parties. The appellant No.1 has examined herself as P.W.1, got marked Ex.P.1 to P.9 and respondent Insurance company has examined its official as R.W.1 and got marked Ex.R.1 and R.2. The tribunal on appreciation of evidence, has awarded compensation of Rs.20,09,000/- along with 9% interest. With the aforesaid factual matrix, the present appeal has been filed.

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Learned counsel Sri. S.K.Kayakmath, appearing for the appellant-Insurance company submits that, the deceased has parked his lorry on the highway contrary to the rules resulting in accident in question. Hence, the investigating Officer has filed charge sheet against both the drivers. It is submitted that, the tribunal ought to have fastened the liability of 50% on the deceased Krishna for having contributed to the accident in question. The sketch on

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record at Ex.P.3A clearly demonstrates that, the appellantclaimant has parked the vehicle on the national highway which is impermissible under the Regulation 22 of Motor Vehicle (Driving) Regulation 2017. It is further submitted that, the accident has taken place in the night hours and the deceased appellant-claimant has parked the vehicle on the National Highway without any sign or indication which clearly demonstrates that the deceased Krishna was negligent and has contributed to the accident in question.

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It is submitted that the tribunal has assessed

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income of the appellant-claimant at Rs.11,000/- without any basis as the appellants have not produced any iota of evidence to substantiate the income. He submits that, the tribunal ought to have assessed the notional income at Rs.8,750/- placing its reliance on the chart prepared by the Legal Services Authority. He further submits that, the tribunal ought to have awarded interest at the rate of 6% instead of 9%.

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It is also submitted that, the official of the

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Insurance company has been examined as R.W.1. to substantiate their contentions before the tribunal. It is contended that, the award of compensation by the tribunal on the other heads is also on the higher side, required to be modified in the present appeal.

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Per contra, Sri. Harish Maigur, learned counsel appearing for the appellant-claimant submits that, the tribunal on considering the material on record has fastened the entire liability on the offending vehicle bearing No.AP29/TC-1025 which does not call for any interference in the appeal filed by the Insurance company. It is submitted that, the driver of the offending vehicle without noticing the fact that, the deceased has parked his lorry on the extreme left side of the road and the width of the road is 100 feet, there was sufficient space on the road to pass his vehicle without any difficulty. However, without noticing the parked vehicle, the driver of the offending vehicle in a rash and negligent

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manner dashed the stationed vehicle, which resulted in death of the driver.

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It is further submitted that, the tribunal has

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assessed notional income of the deceased at Rs.11,000/taking into account that the appellant is holder of the driving licence of the transport vehicle as per Ex.P.7. In support of the said contention, he places reliance on the decision of this Court in MFA No.102446/2019 and connected appeal disposed of on 29.07.2022 and submits that, the Division Bench of this Court has held in paragraph No.19 that, since the deceased was holder of the transport license as well as the passenger vehicle, it would be appropriate to consider the income of the deceased at Rs.16,000/-. Hence, he seeks to assess the income of the deceased at Rs.16,000/- per month.

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It is also contended that, the tribunal has awarded Rs.3,00,000/- under the head of love and affection and Rs.1,00,000/- towards the loss of consortium which

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does not call for any modification and award of

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compensation on other heads are required to be enhanced.

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Having heard the learned counsel for the appellant-Insurance company, the appellant-claimants,

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perused the memorandum of appeal and the tribunal records, the points that arise for consideration in these appeal are:

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(i) Whether the deceased Krishna the Driver of the lorry bearing No.GA-02-V5548 has contributed to the accident in question?

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(ii) Whether the appellants-claimants are entitled for higher compensation?

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The answer to the above points are in the

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negative and affirmatively, respectively, for the following reasons:

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(a) The parties to the proceedings do not dispute that, Sri. Krishna the driver of vehicle bearing No.GA-02/V5548 has succumbed to the injuries in a road accident on

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22.04.2006. The contention of the Insurance company that, the driver of the vehicle bearing No.GA-02/V-5548 has contributed to the accident by negligently parking the lorry on the national highway without any indication and parking of the vehicle is contrary to the regulation is required to be rejected for the reason that, the appellant-Insurance company has failed to establish the factum of contributory negligence before the tribunal, the tribunal on appreciation of evidence on record has recorded the finding that, the driver of the offending vehicle was negligent which resulted in accident in question, there is no error in the said finding. It is not in dispute that the appellant-Insurance company has not examined the driver of the offending vehicle, nor examined any independent witness to substantiate the claim of contributory negligence. On close scrutiny of the sketch at Ex.P.9a, it clearly indicates that, the deceased has parked his lorry on the extreme left side of the road and the spot of the accident is shown as Kachcha road i.e. rough road, in other words the deceased has parked his lorry outside the

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edge of the road. It is not in dispute that, the width of the road is shown as 100 feet and the parked lorry was outside the 100 feet road as per the sketch at Ex.P.3a. There is no evidence on record to demonstrate that the offending lorry could not pass through the remaining passage of the road, hence, the contention of the Insurance company does not merit consideration. The contention of the Insurance company that, the jurisdictional police have filed the chargesheet against both the drivers. The filing of charge-sheet ipso facto does not establish the contributory negligence of the deceased, in the absence of any corroborative or independent evidence on record to demonstrate that the deceased has contributed to the accident in question, this Court is of the considered view that, the deceased has not contributed to the accident in question, there is no dispute with regard to the Regulation 22 of the Motor Vehicle (Driving) Regulation 2017. However, the said regulation stipulates certain requirements to be followed by the drivers for stopping and parking of their vehicle. The appellant-

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Insurance company has not placed any evidence to substantiate their claim of contributory negligence with regard to the stipulations contained in aforesaid regulations. Mere reliance on the aforesaid regulation without substantiating with specific contraventions by cogent and acceptable evidence, the aforesaid regulation would not aid the Insurance company. Hence, the said contention does not merit consideration.

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(b) Insofar as the income of the deceased, the tribunal has assessed the income of the deceased at Rs.11,000/- per month. This Court in MFA No.102446/2019

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and connected appeal has held that, the income of the deceased driver of the transport vehicle to be assessed at Rs.16,000/- per month, taking into account the notional income fixed by the Karnataka State Legal Service Authority of a particular year. In the instance case, the accident is of

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the year 2016 and as per the chart prepared by the Karnataka State Legal Service Authority, the notional income would be Rs.8,750/- and it is not in dispute that, the

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deceased was also the holder of driving licence for heavy transport vehicle. Keeping in mind the reasoning assigned in the aforesaid appeals by the Co-ordinate Bench, this Court is of the considered view that the tribunal was justified in assessing the income of the deceased at Rs.11,000/- which does not call for interference.

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(c) The tribunal has recorded a finding that, the deceased had five dependents and proceeded to deduct 1/4^th of the deceased income towards his personal expenses. The same is in consonance with the law laid down by the Hon’ble Supreme Court and does not call for any modification. The appellant Nos.1 is wife, appellant Nos.2 and 3 are the sons, appellant No.4 is the mother and appellant No.5 is the mentally retarded brother represented by his mother who was dependant of deceased. Hence, each of the dependents are entitle for consortium of Rs.40,000/- each as held by the the Hon’ble Supreme Court in the case of Magma General Insurance company Limited Vs. Nanu Ram and others,

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reported in (2018) 18 SCC 130 .

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(d) The tribunal has not awarded any compensation

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for the loss of future prospects and as per the decision of the Hon’ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi, reported in (2017) 16 SCC 680. The deceased was aged about 35 years as on the date of the accident and was self employed. Hence, the appellants-claimants are entitle for addition of 40% of the assessed income of the deceased under the head of loss of

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future prospects.

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The appellants-claimants are entitle for Rs.15,000/- for

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loss of estate and Rs.15,000/- towards the funeral expenses.

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The loss of dependency is assessed as under:

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Rs.11,000/+ 40% = Rs.4,400/minus 1/4^th deduction towards the personal expenses (Rs.3,850/-) = Rs.11,550/- X 16 X 12 = Rs.22,17,600/-.

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In view of the above, the compensation awarded

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by the tribunal and enhanced compensation are as under:

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1	Loss of consortium Rs.40,000/- each	Rs.2,00,000/-
	(Rs.40,000/- X 5 = Rs.2,00,000/-)
2	Loss of estate and funeral expenses	Rs.30,000/-

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3	Loss of dependency	Rs. 22,17,600/-
	Total	Rs.24,47,600/-
	Awarded by Tribunal	Rs.20,09,000/-
	Additional compensation awarded by this Court	Rs.4,38,600/-

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Therefore, the appellant-claimants are entitle for additional compensation of Rs.4,38,600/- with 6% from the date of filing of the petition till realization in addition to what has been awarded by the tribunal. Accordingly, we pass the following:

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ORDER

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(i) MFA No.101095/2018 filed by the Insurance company appeal is dismissed.

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(ii) MFA No.103904/2017 filed by the appellantsclaimants is allowed in part.

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(iii) The Judgment and award dated 06.09.2017 passed in MVC No.1116/2016 by the XI Additional District and Sessions Judge and Addl. MACT. Belagavi is hereby modified. The appellants-claimants are entitled to enhanced compensation of Rs.4,38,600/- with interest

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at the rate of 6% per annum from the date of petition till the date of realization, in additional to the compensation awarded by the tribunal;

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(iv) The Insurance company is directed to deposit the compensation amount within eight weeks from the date of receipt of certified copy of this Judgment.

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(v) The apportionment, deposit and disbursement shall be made as per the award of the tribunal;

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(vi) The Registry is directed to transmit the amount in deposit to the tribunal along with tribunal records, forthwith.

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(vii) Draw modified award accordingly.

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Sd/JUDGE

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Sd/JUDGE

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Svh/-

Hdfc Ergo General Insurance Co. Ltd. v. Smt. Anuradha Krishna @ Kisan Jambalekar

Case brief

What is this about?

What did the court decide?

Hdfc Ergo General Insurance Co. Ltd. v. Smt. Anuradha Krishna @ Kisan Jambalekar

Case brief

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What did the court decide?

What the court decided

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