Partly allowed

M/S National Insurance Company Ltd. v. Mr B Puttaraju

Karnataka HC11 Nov 2024MFA/4828/2023

Case brief

AI extract

What is this about?

Insurance appeal against award to parents and husband of a teacher killed when a bus hit her car. Court upheld dependency and sole negligence of bus driver but recomputed income after deductions and reduced compensation from Rs.51,35,704/- to Rs.49,64,704/- with interest at 6% p.a.

What did the court decide?

Compensation modified to Rs.49,64,704/- with interest at 6% p.a., payable by the insurer within four weeks; apportioned between mother and husband with partial investment directions.

M/S National Insurance Company Ltd. Vs Mr B Puttaraju — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC:45845-DB MFA No.4828/2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11^TH DAY OF NOVEMBER, 2024 PRESENT

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THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO.4828/2023 (MV-D)

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BETWEEN:

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M/S NATIONAL INSURANCE COMPANY LTD NO.7, RAJA STREET, POST BOX NO.19 GOBBICHATTI PALYAM ERODE DISTRICT TAMILNADU STATE REPRESENTED BY BRANCH OFFICER NEAR RAMASWAMY CIRCLE MYSURU - 570 023.

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Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA

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REPRESENTED BY REGIONAL OFFICER SITUATE AT NO.144 2ND FLOOR, SHUBRAM COMPLEX M G ROAD, BANGALORE - 560 001 REPRESENTED BY REKHA S. MENON DEPUTY MANAGER.

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…APPELLANT

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(BY SMT. GEETHA R, ADV.,)

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AND:

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MR. B. PUTTARAJU SINCE DEAD BY LR'S .

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1(a) MR. ANAND P S/O LATE B. PUTTARAJU AGED BOUT 37 YEARS.

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1(b) MRS. SHEELA .P D/O LATE B. PUTTARAJU AGED ABOUT 35 YEARS.

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MRS. K.N. NAGARATHNA W/O B. PUTTARAJU AGED ABOUT 55 YEARS.

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ALL ARE R/AT BEHIND VIDYODAYA COLLEGE VIDHYANAGAR T. NARASIMPURA TOWN.

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MR. B. NAGARAJU S/O BASVANNA AGED ABOUT 36 YEARS R/AT SIDDAIAHANAPURA VILLAGE CHANDAKAVADI HOBLI CHAMARAJANAGARA DISTRICT.

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MR. N. MANI S/O NACHUMUTHU AGED ABOUT 61 YEARS RESIDING AT D NO.13/3 KUVEMPU EXTENSION SATHI ROAD CHAMARAJNAGARA TOWN.

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MR. UMESH N.V. S/O LATE S BASAVARAJU AGED ABOUT 46 YEARS RESIDING AT NO.3324/17 12TH CROSS, WARD NO. 19 R P ROAD, BAGERIYA LAYOUT NANJANGUDU.

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…RESPONDENTS

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(BY SRI. MAHANTESH S. HOSMATH, ADV., FOR R1 (a & b) & R2 & R5 R3 & R4 ARE SERVED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO CALL FOR RECORDS AND SET ASIDE THE JUDGMENT AND AWARD DATED 06.04.2023, PASSED BY THE COURT OF SENIOR CIVIL JUDGE & MACT, AT T.N. PURA, MYSROE IN MVC NO.667/2017, DISMISSING THE CLAIM PETITION IN THE INTEREST OF JUSTICE AND EQUIYT.

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL and HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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NC: 2024:KHC:45845-DB MFA No.4828/2023

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ORAL JUDGMENT

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( HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL )

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Challenging the judgment and award in MVC

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No.667/2017 passed by the Sr. Civil Judge and MACT, T.Narasipura, Mysuru, Insurance Company has filed this appeal.

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The appellant was respondent No.3, respondent Nos.1(a) and 1(b) in this appeal were claimants Nos.1(a) and 1(b), respondent No.2 in this appeal was claimant No.2, respondent Nos.3, 4 and 5 herein were respondent Nos.1, 2 and 4, respectively before the Tribunal. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Tribunal.

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Father and the mother of the deceased Shobha filed claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act'), seeking compensation for the death of their daughter Shobha in a road accident that occurred on 03.09.2016 at about 10 a.m. When the deceased was traveling in car bearing registration No.KA-09 MB-1568 on Kapila bridge, T.Narasipura, Mysuru main road. at that time, driver of bus bearing registration No.KA-55-6979

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drove the same in rash and negligent manner and dashed the car. Due to the said impact of the accident, deceased sustained grievous injuries and was provided treatment at BGS Apollo Hospital, Mysuru. However, on 05.09.2016 she succumbed to the injuries. The jurisdictional police registered the case in Crime No.244/2016 and on investigation, filed charge sheet against the driver of the offending bus for his negligence. It was contended that the deceased was aged about 31 years at the time of accident, was working as a Primary School Teacher and drawing salary of Rs.26,700/- p.m. It was further contended that the deceased was residing with her parents due to marital discord and respondent No.4 is the husband of the deceased. Hence, they sought for compensation of Rs.41,38,440/- on different heads and interest at the rate of 12% p.a.

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Respondent Nos.1 and 2 remained exparte before the Tribunal. Respondent No.3 - Insurance Company filed objections denying the claim of compensation, age, income and avocation of deceased. It was denied that the accident was caused due to the negligence of the driver of the bus. It was contended that the accident was caused due to the negligence

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of the driver of the TATA Indica car and for non-joinder of

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driver, owner and insurer of the car, the claim petition is liable to be rejected. It was further contended that payment of compensation is subject to fulfillment of terms and conditions of the policy. Hence, respondent No.3 sought for dismissal of the petition.

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5. Respondent No.4 filed separate objections denying

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the allegation that he has deserted the deceased and she was residing with her parents since five years prior to her death. It was contended that due to her ill-health she was residing with her parents and he being class-1 heir is entitled for compensation. He prayed for allotment of his compensation separately.

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The Tribunal recorded the evidence of the parties. Claimant No.1 got examined himself as PW-1 and got marked Exs.P1 to P10. Respondent No.4 got examined himself as RW1 but did not produce any documentary evidence. The Tribunal, on appreciation of the oral and documentary evidence, partly allowed the claim petition awarding compensation of Rs.48,02,304/- under the head of loss of dependency and in total, awarded compensation of Rs.51,35,704/- with interest @ 9% p.a. from the date of

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petition till realization. The Tribunal further saddled the liability to respondent No.3 - Insurance Company, apportioned the compensation between the claimant No.2 and respondent No.4 at the ratio of 25% and 75% respectively and awarded compensation to claimant Nos.1(a) and 1(b) under the head of loss of consortium. Being aggrieved, the Insurance Company is in appeal.

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Smt.Geetha Raj, learned counsel for the appellant submits that the Tribunal committed grave error in considering the parents of the deceased as the dependants in the absence of any documentary evidence to prove their relationship with the deceased. It is submitted that the Tribunal further erred in awarding compensation to respondent No.4 because as per the claim petition the deceased had deserted respondent No.4. Hence, he cannot be considered as dependant. It is further submitted that except Ex.P10, claimants did not produce any document to prove the income of the deceased. Hence, the Tribunal ought to have assessed the income of the deceased notionally and assessment of income by the Tribunal is without any evidence. The Tribunal has erred in considering the age of the deceased as 32 years based on the postmortem report and claimants have failed to prove the same. It is also submitted

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that the Tribunal has erred in appreciating the records which indicate that the deceased was suffering from chronic kidney disease. Hence, her employment and income is doubtful and the Tribunal failed to appreciate the said aspect. It is contended that the accident is due to the negligence of the driver of the car and the Tribunal did not record any finding with regard to the contributory negligence and the award of compensation by the Tribunal is exorbitant. Hence, she seeks to allow the appeal.

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Per contra, Sri.Mahantesh S.Hosmath, learned counsel for the respondent Nos.1(a), 1(b), 2 and 5 supports the impugned judgment and award of the Tribunal and submits that the deceased was not keeping well and therefore, she was residing with her parents. That cannot be the ground to reject the claim of the parents and the husband of the deceased. It is submitted that the Insurance Company did not adduce any evidence before the Tribunal. Respondent No.4 - husband of the deceased supported the claim petition and sought compensation for his share along with the parents of the deceased and Tribunal, considering the oral and documentary evidence, has allowed the claim petition which does not call for any interference. Hence, he seeks dismissal of the appeal.

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Considering the rival submissions of the parties and

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examining the materials on record including the Trial Court records, the point that arises for consideration is “ Whether

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the impugned judgment and award of the Tribunal calls for any interference”?

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ANALYSIS

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Claimant Nos.1 and 2 are the parents of deceased Shobha. Claimant No.1 - father of the deceased died during the pendency of the proceedings before the Tribunal, his legal representatives are brought on record as claimant Nos.1(a) and 1(b). Respondent No.4 is the husband of the deceased. The pleadings and evidence available on record indicate that in the road accident that occurred on 03.09.2016 deceased Shobha sustained grievous injuries and later succumbed to the same. The jurisdictional police registered the case against the driver of the offending bus bearing registration No.KA-55-6979 and on investigation filed charge sheet. The charge sheet materials indicate that driver of the bus was negligent. The claimants have produced the investigation papers as Exs.P1 to P4 and P7. The certified copy of IMV report is marked as Ex.P6 which also indicates that the driver of the offending bus was negligent and

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caused the accident. The Tribunal considering such evidence rightly held that driver of bus was the tort-feasor.

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Insofar as entitlement of compensation, the claim petition indicates that the deceased at the time of accident was residing with the claimants, she was a Government Teacher, drawing salary of Rs.26,700/- p.m. and due to her untimely death, the parents have lost emotional and financial dependency. In support of the claim, claimant No.1 entered the witness box and reiterated the averments made in the claim petition. The said witness has been cross-examined by the Insurance Company. However, nothing has been elicited with regard to the dependency of the claimants. Considering the pleadings and evidence on record and in the absence of any evidence by the Insurance Company on the issue of dependency, the initial burden of dependency has been discharged by the claimants. Admittedly, respondent No.4 is the husband of the deceased. Though the Insurance Company tried to deny the dependency of claimants, the pleading and evidence on record clearly indicate that the deceased was residing with her parents since five years prior to her death, due to her ill-health. Such long duration of stay of the deceased has created the emotional and financial dependency of the

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claimants on the deceased as PW-1 stated that his daughter used to contribute her salary to meet the family necessities. Hence, the contrary contentions urged by the Insurance Company with regard to entitlement of compensation by the claimants and dependency of respondent No.4 has no merit consideration and is accordingly rejected.

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The contention of the Insurance Company that the Tribunal has committed error in saddling the entire liability on the owner and insurer of the bus involved in the accident as there is head-on collision between the bus and the car, hence 50% liability is required to be saddled on the owner and insurer of car. The jurisdictional police registered Crime No.244/2016 on 03.09.2016 around 11 a.m. i.e. immediately after the accident. On investigation, police filed charge sheet against the driver of the offending bus bearing registration No.KA-55-6979 for the offences punishable under Sections 279, 337, 304-A of the Indian Penal Code, 1860 and Sections 134A and B read with 187 of the Act. The claimants have clearly pleaded in the claim petition with regard to the negligence of the driver of the bus and produced the certified copy of the FIR, spot mahazar, spot sketch, IMV report and charge sheet as Exs.P1 to P4, P6

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and P7. The oral testimony of the witnesses and the

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documentary evidence clearly indicate that the driver of the bus was negligent and caused the accident in question. Hence, the Tribunal has rightly saddled the entire liability on the Insurance Company of the bus which does not call for any modification.

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Insofar as compensation is concerned, the Tribunal considering Ex.P10 - salary slip of the deceased, assessed the income of the deceased at Rs.25,012/- p.m. The Tribunal has erred in omitting to deduct Rs.200/- p.m. as professional tax and Rs.300/- p.m. as special allowance from the salary. After deducting the aforesaid amount, the income of the deceased would be Rs.24,512/-. The deceased was aged about 32 years and was in Government employment. Hence, the claimants are entitled to addition of 50% of the income under the head of loss of future prospects of the deceased and appropriate multiplier would be '16'.

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Deceased was married and claimant No.2 is the mother and respondent No.4 is the husband of the deceased. Hence, appropriate deduction would be 1/3^rd towards personal and living expenses of the deceased. Claimant No.1 died during the pendency of the proceedings before the Tribunal.

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Hence, the legal heirs of the claimant No.1 are brought on record i.e. siblings of the deceased. Hence, legal representatives of claimant No.1, claimant No.2 and respondent No.4 are entitled to consortium of Rs.40,000/- each with 10% escalation for each 3 years i.e. 2 escalations. The Tribunal considering Ex.P8 the medical bills produced by the claimants has awarded Rs.78,400/- towards the hospital charges. The said amount is based on actual bills produced by the claimants for providing treatment to the deceased from 03.09.2016 to 05.09.2016. Hence, the said amount is retained. The compensation is re-determined as under:

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Sl. No.	Particulars	Compensation awarded in Rs.
1.	Loss of dependency (24,512 + 50% = 36,768 x 12 x 16 x 2/3^rd)	47,06,304/-
2.	Loss of consortium (48,000 x 3)	1,44,000/-
3.	Loss of estate with escalation at 20%	18,000/-
4.	Transportation of dead body and funeral expenses	18,000/-
5.	Medical expenses	78,400/-
	TOTAL	49,64,704/-
	Compensation awarded by the Tribunal	51,35,704/-
	Reduction of compensation	1,71,000/-

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For the aforementioned reasons, we pass the following:

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ORDER

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Appeal is allowed-in-part.

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The impugned judgment and award is modified as follows:

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i. The claimants and respondent No.4 are together entitled to compensation of Rs.49,64,704/- with interest thereon at 6% p.a. from the date of petition till its realization.

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ii. Respondent No.3 - the insurer (who is the appellant

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in this case) shall deposit the said compensation before the Tribunal within four weeks from the date of receipt of copy of this judgment on adjusting the amount already deposited, if any.

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iii. Out of the said compensation amount, consortium part of deceased claimant No.1 shall be paid to claimant No.2 - the mother.

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iv. Out of the rest of the compensation amount, claimant No.2 and respondent No.4 are entitled to 50% each.

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v. Out of the share of claimant No.2, 60% shall be released to claimant No.2 with accrued interest and 40% shall

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be invested in her name for a period of three years in any nationalized / scheduled bank of her choice.

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vi. Out of the share of respondent No.4, 50% shall be

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released to him and balance 50% shall be invested in his name in any nationalized / scheduled bank of his choice for a period of five years.

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vii. Transmit the amount in deposit, if any and the Trial Court records to the Tribunal forthwith.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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List No.: 1 Sl No.: 39

M/S National Insurance Company Ltd. v. Mr B Puttaraju

Case brief

What is this about?

What did the court decide?

M/S National Insurance Company Ltd. v. Mr B Puttaraju

Case brief

What is this about?

What did the court decide?

What the court decided

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