Sriram General Insurance Com Ltd. Vs Mrs Lethipa

SRIRAM GENERAL INSURANCE COM., LTD 1003-E-8, RIICO INDUSTRIAL AREA SITHAPURA, JAIPUR, RAJASTHAN NOW BY SHRIRAM GENERAL INSURANCE CO. LTD, 5/4,3RD CROSS, S V ARCADE BELAKANAHALLI MAIN ROAD, OPP: BANNERGHATTA MAIN ROAD, II M.B. POST, BANGALORE - 560076 BY IT’S MANAGER

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…APPELLANT

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Digitally signed by NIRMALA DEVI Location: HIGH COURT OF KARNATAKA

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(BY SRI. O MAHESH, ADVOCATE)

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AND:

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MRS LETHIPA AGED ABOUT 47 YEARS W/O LATE MR ABDUL HAMEED

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MISS ASIFFA AGED ABOUT 21 YEARS D/O LATE ABDUL HAMEED,

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BOTH ARE RESIDING AT DOOR NO 4-118, NEW PADPU HOUSE, AREKALA VILLAGE AND POST, MANGALORE – 575001

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MR VIJAYA K AGED ABOUT 35 YEARS S/O RAMA SAPALYA, R/O D.NO. 11/371 KUNJATHUR, MANJESHWARA, KASARAGOD, KERALA STATE – 410113

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MR MOHAMMED SADIK MAJOR, S/O MR HUSAINABBA 5/37, F DABBEL, LACCHIL HOUSE, HAREKALA POST & VILLAGE HAREKALA, MANGALURU – 575001

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ORIENTAL INSURANCE COMPANY DIVISIONAL OFFICE BEAUTY PLAZA, BALMATTA ROAD, MANGALURU - 575001 BY ITS MANAGER

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…RESPONDENTS

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(BY SRI. H D SOMESHA, ADVOCATE FOR SRI. RAJARAMA S, ADVOCATE FOR R1 & R2 SRI. SANDESH SHETTY T, ADVOCATE FOR R4 SMT. HARINI SHIVANAND, ADVOCATE FOR R5 R3 SERVED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 20.11.2017 PASSED IN MVC NO.267/2015 ON THE FILE OF THE MEMBER, MACT & 1ST ADDITIONAL SENIOR CIVIL JUDGE, MANGALURU D.K., AWARDING COMPENSATION OF RS.8,05,000/- WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL REALIZATION AND ETC.

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IN MFA CROB NO. 5/2022

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BETWEEN:

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MRS LETHIPA W/O LATE MR ABDUL HAMEED AGED ABOUT 52 YEARS R/AT DOOR NO.4-118 NEW PADPU HOUSE, AREKALA VILLAGE AND POST MANGALORE

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MISS ASIFFA D/O LATE ABDUL HAMMED

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AGED ABOUT 26 YEARS R/AT DOOR NO.4-118 NEW PADPU HOUSE, AREKALA VILLAGE AND POST MANGALORE

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...CROSS OBJECTORS

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(BY SRI. H D SOMESHA, ADVOCATE FOR SRI. RAJARAMA S, ADVOCATE)

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AND:

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SRIRAM GENERAL INSURANCE COM LTD 10003-E-8 RIICO INDUSTRIAL AREA SITHAPURA JAIPUR RAJASTHAN

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MR VIJAYA K AGED ABOUT 40 YEARS S/O RAMA SAPALYA R/O D NO.11/371 KUNJATHUR, MANJESHWARA KASARAGOD, KERALA STATE

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MR MOHAMMED SADIK S/O MR HUSAINABBA MAJOR, 5/37 F, DABBEL LACCHIL HOUSE HAREKALA POST AND VILLAGE HAREKALA, MANGALURU

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THE ORIENTAL INSURANCE COMPANY DIVISIONAL OFFICE BEAUTY PLAZA BALMATTA ROAD MANGALURU

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...RESPONDENTS

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(BY SRI. O MAHESH, ADVOCATE FOR R1 SRI. C.R. RAVISHANKAR, ADVOCATE FOR R4 NOTICE TO R3 IS HELD SUFFICIENT V/O DTD 23.11.2024 R2 SERVED)

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THIS MFA CROB IS FILED U/O.41 RULE 22 R/W SEC.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DT.20.11.2017 PASSED IN MVC NO.267/2015 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, MANGALURU, D.K, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.

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THE APPEAL AND CROSS OBJECTION, COMING ON FOR FURTHER ORDERS, 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 C.M. POONACHA

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ORAL JUDGMENT

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(PER: HON'BLE MR JUSTICE C.M. POONACHA)

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MFA No.1315/2018 is filed by the insurer challenging the judgment and award dated 20.11.2017 passed in MVC No.267/2015 by the I Additional Senior Civil Judge, Mangaluru, D.K¹ . Cross Objection No.5/2022 is filed by the claimants seeking enhancement of the compensation.

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The parties will be referred to as per their ranks before the Tribunal for the sake of convenience.

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It is the case of the claimants that one Mohammed Ashik² was riding the motorcycle bearing No.KA-19-EM-4803 on 15.11.2014 from Thokkottu side towards Mangaluru and when he reached near Jappinamogaru, Mangaluru Taluk, mini lorry bearing No.KL-13-E-9193 came from opposite direction, on the

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1 Hereinafter referred to as the ‘Tribunal’

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2 Hereinafter referred to as the ‘deceased’

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wrong side of the road and hit against the motorcycle, causing the accident in question. Due to the accident, the rider of the motorcycle suffered grievous injuries and was admitted to the Hospital and he succumbed to his injuries on the next day i.e., 16.11.2014.

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The mother and sister of the deceased filed claim petition claiming compensation arraying the owner and insurer of the mini lorry as respondent Nos.1 and 2 and the owner and insurer of the motorcycle as respondent Nos.3 and 4. The claim proceedings were contested. The Tribunal by its judgment and award dated 20.11.2017 partly allowed the claim petition, awarded compensation of `8,05,000/- together with interest at 9% pa., and held that the owner and insurer of the mini lorry i.e., respondent Nos.1 and 2 before the Tribunal jointly and severally liable to pay the compensation and directed respondent No.2/insurer of the mini lorry to pay the compensation awarded. The claim petition against the owner and insurer of the motorcycle i.e., respondent Nos.3 and 4 before the Tribunal was dismissed.

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Being aggrieved, the insurer of the mini lorry has

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preferred the above appeal and the claimants have filed the cross objection.

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It is the contention of the learned counsel for the appellant that the deceased was not riding the motorcycle as on the date of the accident and that the mini lorry was not responsible for causing the accident in question. It is also contended that claimant No.2 being the sister, was not dependent on the deceased and the deduction made towards personal expenses is erroneous and the rate of interest awarded is on the higher side.

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The claimants justify the finding recorded by the

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Tribunal on negligence and liability and further in the cross objection seek for enhancement of the compensation.

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The submissions of both the learned counsels have been considered and the material on record including the records of the Tribunal have been perused. The questions that arise for consideration are:

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i. Whether the findings of the Tribunal on negligence and liability are erroneous and liable to be interfered with?

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ii. Whether the quantum of compensation awarded by the Tribunal is liable to be enhanced?

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Re. question No.(i):

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The claim proceedings were initially instituted only by the mother of the deceased against the owner and insurer of the mini lorry. Subsequently, the sister of the deceased has also come on record as claimant No.2 and the owner and insurer of the motorcycle have been arrayed as respondent Nos.3 and 4.

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The insurer of the mini lorry (respondent No.2 before the Tribunal), owner of the motorcycle (respondent No.3 before the Tribunal) and the insurer of the motorcycle (respondent No.4 before the Tribunal) have filed a separate statement of objections contesting the claim proceedings.

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In the statement of objections of the insurer of mini lorry, it is specifically averred that the accident was due to the sole negligence of the rider of the motorcycle. All the other averments made in the claim petition have been denied.

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However, the policy of insurance issued in respect of the mini lorry has been admitted.

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The owner of the motorcycle in the statement of objections has specifically averred that the accident has occurred due to the negligent driving of the driver of the mini lorry. It was further stated that the deceased was riding the motorcycle on the extreme left side of the road and the police authorities, after proper investigation have filed a charge sheet against the offending mini lorry and hence, the accident has occurred due to the rash and negligent driving of the driver of the mini lorry.

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The insurer of the motorcycle in the statement of objections has admitted issuance of the policy of insurance with respect to the motorcycle. However, it is specifically averred that the accident has occurred due to the rash and negligent driving of the driver of the mini lorry.

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Claimant No.1/mother of the deceased examined

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herself as PW.1 and one Mohammad Althaf has been examined as PW.2. PW.1 in her cross-examination has stated that Althaf was riding the motorcycle at the time of the accident. PW.2 in

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his affidavit by way of examination-in-chief has stated that he was traveling on the motorcycle as a pillion rider and the deceased was riding the motorcycle.

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The official of respondent No.4/insurer of the motorcycle has been examined as RW.1 and the official of respondent No.2/insurer of the mini lorry has been examined as RW.2.

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RW.1 in his testimony has deposed that the motorcycle was insured with the said insurer and as per the records one Mohammed Ashik was driving the motorcycle on the date of the alleged accident and he was not holding a driving licence.

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RW.2 has deposed that the mini lorry was insured with the said insurer and that as per the police documents, the rider of the motorcycle was one Mohammed Ashik. It is further deposed that the pillion rider, namely, Althaf (PW.2) had filed a claim petition in MVC No.770/2015 and the sketch, mahazar and MVI report marked in the said proceedings were confronted to PW.2, which were marked as Exs.R1, R2 and R3. That as per the said documents, the accident occurred in the middle of

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the road and front portion of both the vehicles has been damaged. That the police authorities have filed charge sheet (Ex.P4) against the owner of the motorcycle for permitting Mohammed Ashik, a person without required driving licence to drive the vehicle.

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The FIR (Ex.P1) and charge sheet (Ex.P4) have been marked in the evidence and the same have been filed against the driver of the lorry.

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Although, PW.1 is not the eyewitness to the accident, the pillion rider has been examined as PW.2 who is an eyewitness to the accident. PW.2 in his testimony has clearly deposed as to the manner of occurrence of the accident, which indicates that the accident occurred due to the rash and negligent driving of the driver of the mini lorry. The respondents apart from marking Exs.R1 to R3, have not adduced the testimony of any eyewitness to the accident nor examined the driver of the mini lorry. The only testimony of an eyewitness is that of PW.2, who has been examined by the claimants, which testimony has supported the case of the claimants.

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Although, the respondents seek to contend based on Exs.R1 to R3 that accident occurred in the middle of the road, the driver of the motorcycle is also responsible for causing the accident in question, it is relevant to note that Exs.R1 to R3 do not in any manner dilute the testimony of PW.2 . The sketch (Ex.R1) discloses the place of impact and the MVI report (Ex.R3) merely discloses damages to both the vehicles in front and right side. Both the said documents are drawn subsequent to the occurrence of the accident.

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The Tribunal, upon a detailed appreciation of the oral and documentary evidence on record has, held that the driver of the mini lorry was responsible for causing the accident in question.

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Although, it is the vehement contention of the learned counsel for the appellant/insurer that PW.1 has admitted that Althaf was riding the motorcycle and the said testimony is contrary to the testimony of PW.2, it is relevant to note that PW.2 has stated that he was a pillion rider and PW.1 is not an eye-witness. The statement of PW.1 in the crossexamination that Althaf was riding the vehicle is a stray

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statement and the same will not aid the case of the appellant to interfere with the finding recorded by the Tribunal.

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It is clear from the material on record that respondent No.3, the owner of the motorcycle had admitted that the deceased was driving the motorcycle at the time of the accident. PW.2 has also deposed regarding the same. The FIR and charge sheet have also been filed against the driver of the lorry. Hence, the said contention of the appellant is unsustainable and liable to be rejected.

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With regard to the contention of the appellant that there is no material on record to indicate that the driver of the mini lorry was solely responsible for causing the accident in question, it is relevant to note that the claimants have examined PW.2 who was the pillion rider who has deposed regarding the occurrence of the accident and he has clearly stated that when the motorcycle had reached Jappinamogaru, the mini lorry came from the opposite side, being driven by its driver in a rash and negligent manner, at high speed on the wrong side of the road and hit the motorcycle. Although PW.2 has been cross-examined in detail, his testimony with regard to occurrence of the accident has not been impeached.

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The appellant/insurer has not examined any eyewitness to the accident or adduced the testimony of the driver of the lorry nor has adduced any evidence not to rely upon the FIR and charge sheet. Exs.R1 to R3 which are sketch, spot Mahazar and MVI report do not, in any manner dilute the testimony of PW.2 with regard to the manner of occurrence of the accident.

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Hence, the appellants have failed in demonstrating that the finding of the Tribunal with regard to negligence is erroneous and liable to be interfered with. The question No.(i) framed for consideration is answered in the affirmative.

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Re. question No.(ii):

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The age of the deceased was 19 years as on the date of the accident. The claimants have deposed that the deceased was working as a Painter and getting a monthly income of 15,000/-. However, since no material has been produced in that regard, the Tribunal has assessed the income at 6,000/- pm. Having regard to the date of the accident, the age of the deceased and avocation as averred, keeping in mind

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the totality of the circumstances, the notional income of the deceased is reassessed at `8,500/-.

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The Tribunal has assessed the age of the deceased as 19 years and applied the appropriate multiplier 18, which is just and proper.

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For assessment of loss of dependency, 40% of the income of the deceased is required to be added towards future prospectus in view of the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Limited V. Pranay Sethi and others³ and 50% of the income is required to be deducted towards personal expenses since the deceased was a bachelor. Hence, the income of the deceased is reassessed as (8,500/- + 3,400/- - 50%) ` 5,950/- .

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Having regard to the aforementioned, the loss of dependency is reassessed as (5,950/-x12x18) 12,85,200/-.

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In view of the ratio laid down by the Hon’ble Supreme Court in the case of Magma General Insurance Company Limited vs. Nanu Ram Alias Chuhru Ram and

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3 (2017) 16 SCC 680

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others⁴ , claimant No.1/mother is required to be awarded loss of consortium of 44,000/-. The loss of estate and funeral expenses are reassessed at 16,500/- each, in a total sum of `33,000/-.

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The Tribunal has awarded a sum of `32,000/towards medical expenses as per the actual bills, which is just and proper.

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The Tribunal has awarded interest at 9% p.a., and no reasons have been assigned for awarding the said interest. Hence, the interest awarded by the Tribunal is required to be modified as 6% p.a.

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Accordingly, the total compensation under various

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heads is re-assessed as follows:

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Sl.No.	Heads	Amount awarded by the Tribunal (`)	Amount awarded by this Court (`)
1.	Towards love and affection	100000.00	0.00
2.	Funeral and other incidental expenses	25000.00	16500.00
3	Loss ofconsortium	0.00	44000.00
4.	Loss of estate	0.00	16500.00
5.	Loss ofdependency	648000.00	1285200.00
6.	Medicalexpenses	32000.00	32000.00
	Total	805000.00	1394200.00

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4 (2018) 18 SCC 130

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Hence, the claimants are entitled for a total compensation of 13,94,200/- as against 8,05,000/- awarded

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by the Tribunal along with interest at 6% p.a. Accordingly, question No.(ii) is answered in the affirmative.

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In the result, the following:

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ORDER

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The appeal and cross objection are partly allowed. The impugned judgment and award passed by the I Additional Senior Civil Judge, Mangaluru, D.K, in MVC No.267/2015 is modified as follows:

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i) The claimants are entitled to compensation of `13,94,200/- with interest thereon at 6% pa., from the date of petition till its realization;

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ii) Respondent No.2 – Sriram General Insurance Co.Ltd., shall deposit the entire compensation before the Tribunal within four weeks from the date of the receipt of the copy of this judgment on adjusting the amount already deposited, if any;

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iii) The enhanced compensation of `5,89,200/- shall not carry interest for a period of 786 days;

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iv) The claimant No.1 is entitled to the entire compensation amount;

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v) Out of the amount deposited, 50% shall be digitally released to claimant No.1 on furnishing required documents and balance 50% shall be invested in Fixed Deposit for a period of three years in any nationalized/scheduled bank of her choice;

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vi) Registry shall transmit the amount in deposit, if any and the TCR to the Tribunal forthwith.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(C.M. POONACHA) JUDGE

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ND

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List No.: 1 Sl No.: 34

Sriram General Insurance Com Ltd. v. Mrs Lethipa

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Sriram General Insurance Com Ltd. v. Mrs Lethipa

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