Partly allowed

The Oriental Insurance Co. Ltd., v. Smt Sunitha P

Karnataka HC10 Feb 2023MFA/955/2017

Case brief

AI extract

What is this about?

The High Court allowed an appeal by an Insurance Company challenging a Motor Accident Claims Tribunal award. The Court recalculated compensation due to errors in assessing the deceased's age and applying the multiplier, reducing the award from Rs.18.95 lakhs to Rs.17.06 lakhs while adjudicating liability for a road accident.

What did the court decide?

The impugned award of Rs.18,95,000/ was modified to Rs.17,06,800/- with interest at 9% p.a.; appeal allowed in part.

The Oriental Insurance Co. Ltd., Vs Smt Sunitha P — Insurance | Karnataka HC (2023)

¶1

¶2

MFA No. 955 of 2017

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 10^TH DAY OF FEBRUARY, 2023

¶5

PRESENT

¶6

THE HON'BLE MR JUSTICE K.SOMASHEKAR

¶7

AND

¶8

THE HON'BLE MR JUSTICE C M JOSHI MISCELLANEOUS FIRST APPEAL NO. 955 OF 2017 (MV-D)

¶9

BETWEEN:

¶10

THE ORIENTAL INSURANCE CO LTD., REGIONAL OFFICE, BENGALURU. LEO SHOPPING COMPLEX NO.44/45, RESIDENCY ROAD, REPRESENTED BY ITS DEPUTY MANAGER BANGALURU 560025.

¶11

...APPELLANT

¶12

Digitally signed by T S NAGARATHNA Location: High Court of Karnataka

¶13

(BY SRI S.Y.SHIVALLI, ADVOCATE)

¶14

AND:

¶15

1 . SMT. SUNITHA P W/O LATE B LAXMINARAYANA AGED ABOUT 35 YEARS,

¶16

2 . SRI. BACCHE GOWDA S/O LATE RAMANNA, AGED ABOUT 71 YEARS,

¶17

3 . SMT AKKAYYAMMA

¶18

¶19

MFA No. 955 of 2017

¶20

W/O BACCHE GOWDA, AGED ABOUT 66 YEARS,

¶21

ALL ARE R/AT MANDI BYADARAHALLI VILLAGE, HANABE, BENGALURU - 560203.

¶22

4 . M/S. ALL INDIA RADIO

¶23

SUPER POWER TRANSMISSION PRASARA BHARATHI REP. BY ITS SUPERINTEND ENGINEER, R/O AT ALL INDIA RADIO NEW TOWN, YELAHANKA BENGALURU - 560064.

¶24

...RESPONDENTS

¶25

(BY SRI.H.MUJTABA ADVOCATE FOR R1 TO R3; SRI.HARIPRASAD, CGSC FOR R4 SMT K.S.ANASUYADEVI, CGSC FOR R4;)

¶26

THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 03.11.2016 PASSED IN MVC NO. 3463/2015 ON THE FILE OF THE XVI ADL. JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT, BANGALORE, AWARDING COMPENSATION OF RS.18,95,000/WITH INTEREST AT 9% PER ANNUM FORM THE DATE OF PETITION TILL THE DATE OF PAYMENT.

¶27

THIS M.F.A. HAVING BEEN HEARD AND RESERVED FOR JUDGMENT COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY C.M.JOSHI J. , DELIVERED THE FOLLOWING:

¶28

¶29

MFA No. 955 of 2017

¶30

JUDGMENT

¶31

Being aggrieved by the judgment and award dated 03.11.2016 passed in MVC No.3463/2015 by the learned XVI Additional Judge, Court of Small Causes and Member, MACT, Bangalore, whereby the petition filed by the petitioners came to be allowed in part awarding compensation of Rs.18,95,000/together with interest at 9% p.a., directing the Insurance Company to deposit the same, the insurance Company has filed this appeal urging various grounds .

¶32

The parties are referred to as per their

¶33

nomenclature before the Tribunal for the sake of convenience.

¶34

The brief facts of the case are as below:

¶35

The petitioners are the wife and parents of the deceased Laxminarayana @ Murthy who was aged 40 years, was an agriculturist and was earning Rs.15,000/- per month have filed the claim petition claiming compensation on account of the death of Laxminarayana contending that on 14.03.2015 at about 08.45 a.m., the deceased was riding his motorcycle bearing No.KA-43-L-5457 from Doddaballapura to Nelamanagala and when he reached near Akasha Vani, Kasaba

¶36

¶37

MFA No. 955 of 2017

¶38

Hobli, Doddaballapura Taluk, a Tempo bearing No.KA-50M2794 came from opposite side, driven by its driver with high speed, in rash and negligent manner suddenly turned to right side and dashed against the motorcycle of the deceased. Due to which, the said Laxminarayana fell down and sustained grievous injuries to his legs, head and all over the body and died while he was under treatment.

¶39

It is the further case of petitioners that, after post mortem, dead body was handed over to the petitioners who have conducted funeral and obsequies ceremonies. They have spent huge amount towards cremation and obsequies ceremonies. It is further case of the petitioners that deceased was the only bread earner of the family and due to his sudden death, the petitioners have suffered mental shock and agony, lost love and affection. It is contended that Doddaballapura Rural police have registered Cr.No.90/2015 against the driver of Tempo bearing No.KA-50-M-2794 for the offences punishable U/Sec.279, 338 and 304(A) of IPC. The respondents are the owner and insurer of the said vehicle and are jointly and severally liable to pay compensation. Hence, the petitioners

¶40

¶41

MFA No. 955 of 2017

¶42

have sought for awarding compensation of Rs.40,00,000/- with cost and interest.

¶43

On receipt of summons from the Tribunal,

¶44

respondents have appeared before the Court through their respective counsel and filed written statement separately. Both the respondents have denied the averments of the petition as false and contended that the petition is not maintainable either in law or on facts.

¶45

The 1^st respondent has contended that at around 08.50 a.m., when his vehicle was taking right turn to enter the main gate of transmitters, the deceased without wearing helmet riding motor bike bearing No.KA-43-L-5457 came from opposite direction at an alarming speed, ignoring his vehicle’s signals and hit at the left rear end portion of his vehicle, lost his balance and dashed against another vehicle viz., Mahindra Bolero bearing No.KA-50-A-0077 and got hurt, that his staff members immediately shifted the victim to the hospital, but the victim succumbed to the injuries, that the victim was riding motorcycle without observing the opposite vehicles and without wearing helmet and as such, he is only responsible for the said

¶46

¶47

MFA No. 955 of 2017

¶48

accident, that there was no fault on the part of the driver of his vehicle, that he is not liable to pay compensation to the petitioners. He has admitted that he has not furnished the particular documents of the said vehicle to the respondent no.2. He has further contended that the compensation claimed by the petitioner is highly exaggerated, excessive, speculative, fanciful and has no legal basis, that the accident has occurred due to sole negligence of the deceased and also driver of Mahindra Bolero bearing No.KA-50-A-0077, that the driver of Tempo bearing No.KA-50-M-2794 was experienced driver who was holding a valid licence and the said vehicle was having permit and FC as on the date of accident, that the police have charge sheeted the driver of the said vehicle and the same is contested by the driver of the vehicle. Hence, he has sought for dismissal of the petition with cost.

¶49

2^nd respondent-Insurance Company has admitted the issuance of the policy in favour of 1^st respondent in respect of Tempo bearing No.KA-50-M-2794. He has contended that the compensation claimed by the petitioners is highly disproportionate, exorbitant and without any basis, that there was no negligence on the part of the driver of the insured

¶50

¶51

MFA No. 955 of 2017

¶52

vehicle, that the driver of the insured vehicle was not holding a valid and effective driving licence and the said vehicle was not having a permit and FC as on the date of accident, that the insured has violated the terms and conditions of the policy, that he is not liable to indemnify 1^st respondent and that the insured and concerned police have not complied with their mandatory duties, that the accident has occurred due to sole negligence of the deceased himself, that the petitioners have received compensation from the owner of the tempo bearing No.KA.50M-2794, that there was no nexus between death of the deceased and accident. Hence, he has sought for dismissal of the petition with exemplary cost.

¶53

On the basis of the pleadings and contentions of the parties, the Tribunal has framed necessary issues for its consideration and after hearing both sides and considering the oral evidence of PW1 and RWs1 and 2 and documentary evidence of Exs.P1 to P13 and Exs.R1 and 2 on behalf of both the parties, allowed the petition in part and awarded a sum of Rs.18,95,000/- under different heads as below:

¶54

¶55

MFA No. 955 of 2017

¶56

Loss of dependency		Rs.	13,95,000/-
Loss of love and affection		Rs.	60,000/-
Loss of estate		Rs.	60,000/-
Medical expenses		Rs.	3,25,000/-
Transportation and expenses	Funeral	Rs.	30,000/-
Loss of consortium		Rs.	25,000/-
Total		Rs.	18,95,000/-

¶57

Being aggrieved by the same, the Insurance Company has approached this Court in this appeal contending that the Tribunal has committed a serious error in holding that the deceased was working in a medical shop and that that age of the deceased was 40 years as on date of the accident. It is contended that the deceased was shown to be an agriculturist and the PW2, who is wife of the deceased, had specifically deposed in her evidence that at the time of the accident, her husband was doing agricultural work earning a sum of Rs.15,000/- per month and therefore, the deceased working in a medical shop could not have been considered by the Tribunal. It is contended that the averments in the inquest panchanama regarding the avocation of the deceased could not have been relied in deciding the income of the deceased. It is further

¶58

¶59

MFA No. 955 of 2017

¶60

contended that though the Tribunal had accepted the age of the deceased as 45 years as per Ex.P13 i.e., the driving licence of the deceased but the Tribunal has committed an error by taking the age of the deceased as 40 years and applied multiplier of 15 while calculating the loss of dependency. It is also contended that the Tribunal could not have added 30% of future prospects while calculating the loss of dependency.

¶61

Respondent Nos.1 to 3/petitioners have appeared through their counsel in pursuant to the notice issued by this Court and so also learned Central Government Standing Counsel for R4.

¶62

We have heard learned counsel Sri S.Y.Shivalli,

¶63

appearing for the appellant-Insurance Company and the learned counsel Sri H. Mujtaba appearing for the R1 to 3 and Sri Y. Hariprasad, learned Central Government Standing counsel for R4.

¶64

The fact that the deceased was riding the motorcycle on 14.03.2015 at about 8.45 a.m., and while he was moving near Akashvani, Doddaballapur, the tempo owned by the respondent No.4 and insured by the appellant herein

¶65

10 -

¶66

MFA No. 955 of 2017

¶67

caused the accident by taking a abrupt right turn and dashed against the motorcycle of the deceased are borne out of the police papers and also the evidence led by the petitioners. The respondents had contended that there was also involvement of Bolero jeep. Obviously, after the collision between tempo insured by the appellant and the motorcycle of the deceased, the motorcycle hit against the Bolero jeep. Even if we hold that Bolero Jeep was also involved in the accident, it is a case of composite negligence and the petitioners are at liberty to go against anyone of the tortfeasors. Therefore, the question of liability as decided by the Tribunal cannot be assailed by the appellant in any way.

¶68

The only aspect to be considered is regarding the income and age of the deceased. The appellant-insurance company contends that the Tribunal was erroneous in holding that the deceased was also working in a medical shop apart from agricultural work in view of the fact that PW2 had only stated about the agricultural work by the deceased. It is relevant to note that if at all the deceased was an agriculturist, he would supervise his agricultural lands with utmost care apart from he working as an agricultural labourer in it. In the result,

¶69

11 -

¶70

MFA No. 955 of 2017

¶71

the contribution made by the deceased in the cultivation of the land owned by him would be more than any agricultural labourer, for whom the notional income would be applicable. An owner of the land, who is also cultivator, would take more care and efforts in cultivating his own land and therefore, this expertise in cultivation of the land contributed by him to the family would be definitely an advantage for the family members. It is also evident that in the inquest mahazar, there is a mention that the deceased was also working in a medical shop. Therefore, we do not find any reason to hold that the Tribunal had erred in holding that the deceased was working in a medical shop and therefore, he is entitled for future prospects at 30%. Over the period of years, even an agriculturist cultivating his own land would acquire expertise and we do not see any reason not to apply the principle of adding future prospects to his income. Therefore, we are unable to accept the arguments of the learned counsel appearing for the appellantinsurance company in this regard.

¶72

Coming to the second question raised by the appellant viz., the selection of multiplier, the petitioners had produced several documents to prove the age of the deceased

¶73

12 -

¶74

MFA No. 955 of 2017

¶75

in the form of Aadhaar card of the petitioners, copy of the driving licence of the deceased, postmortem report etc. The driving licence produced by the petitioners at Ex.P13 shows the date of birth of the deceased as 09.10.1969. The accident had happened on 14.03.2015. Therefore, as on date of the accident, the deceased was aged 45 years 3 months 5 days. Hence, the appropriate multiplier for the age of 45 years would be 13. Under these circumstances, the Tribunal definitely erred in holding the multiplier applicable for the age of 40 years.

¶76

It is pertinent to note that the deceased was an agriculturist as well as finding time to work in a medical shop. The guidelines issued by KSLSA concerning the settlement of the cases before the Lok-Adalath are in general consonance with the Minimum Wages Act. Therefore the notional income has to be taken at Rs.9,000/- per month as per the guidelines. It is pertinent to note that in view of the decision of the Hon’ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others¹ , the future prospects have to be calculated at 30%. Hence, applying the escalation of 30% regarding future prospects, the loss of dependency has

¶77

1 AIR 2017 SC 5157

¶78

13 - MFA No. 955 of 2017

¶79

to be calculated. The deceased has left behind him the petitioners, who are the wife and parents of the deceased. Therefore, 1/3^rd of his income has to be deducted towards personal expenses. Under these circumstances, the compensation under the head loss of dependency is reassessed at a sum of Rs.11,700 x 12 x 13 x 2/3^rd = Rs.12,16,800/-.

¶80

In a recent decision in the case of Rasmita Biswal and others Vs. Divisional Manager National Insurance Company Limited² the Hon’ble Apex Court has applied the enhancement of 10% in respect of the consortium, loss of estate and funeral expenses at an interval of every 3 years, as held in the case of Pranay Sethi . It was observed as below:

¶81

“6. In Pranay Sethi, this Court has awarded a total sum of Rs.70,000/- under conventional heads, namely, loss of estate, loss of consortium and funeral expenses. The said Judgment of the Constitution Bench was pronounced in the year 2017. Therefore, the claimants are entitled to 10% enhancement. Rs.16,500/- is awarded towards loss of estate and conventional expenses and Rs.44,000/- is awarded towards spousal consortium. We do not find any reason not to apply the enhancement of 10% to the case on hand.”

¶82

2 (2022) 2 SCC 767

¶83

14 -

¶84

MFA No. 955 of 2017

¶85

Petitioner No.1 has lost her husband and petitioner Nos.2 and 3 have lost their son. Therefore, each of them are entitled for a sum of Rs.44,000/- towards loss of consortium and loss of filial love and affection. So far as loss of estate and funeral expenses are concerned, the petitioners, in the light of the decision in the case of Rasmita Biswal (cited supra), are entitled for Rs.16,500/- each.

¶86

The deceased died after five days of the accident and the Tribunal has awarded a sum of Rs.3,25,000/- towards medical expenses and we do not see any reason to interfere with the same.

¶87

Thus, the petitioners are entitled to the reassessed compensation as under:

¶88

Loss of dependency (Rs.11700 x 12 x 13 x 2/3^rd) Rs.	12,16,800/-
Loss of consortium and loss of filial love and affection (Rs.44,000 x 4) Rs.	1,32,000/-
Loss of estate Rs.	16,500/-
Medical expenses Rs.	3,25,000/-
Funeral expenses Rs.	16,500/-
Total Rs.	17,06,800/-

¶89

15 -

¶90

MFA No. 955 of 2017

¶91

The rate of interest awarded by the Tribunal @ 9%

¶92

per annum appears to be proper and we do not interfere in the same.

¶93

In view of the above, the compensation of Rs.18,95,000/- awarded by the Tribunal is reduced to a sum of Rs.17,06,800/-, which shall carry interest at 9% p.a. from the date of petition till its realization.

¶94

Hence, we pass the following:

¶95

ORDER

¶96

(i) The appeal is allowed in part.

¶97

(ii) The impugned judgment and award dated 03.11.2016 passed in MVC No.3463/2015 by the Tribunal is modified awarding compensation of Rs.17,06,800/- as against Rs.18,95,000/- with interest at 9% p.a. from the date of petition till the date of payment.

¶98

(iii) The conditions of apportionment and deposit as ordered by the Tribunal remain unaltered.

¶99