M/S United India Insurance Company Limited Vs K E Thippeswamy

S/O. K.E. THIPPESWAMY, AGED ABOUT 7 YEARS, MINOR, REP. BY HIS FATHER AND NATURAL GUARDIAN RESPONDENT NO.1 BOTH ARE R/AT KUNABEVU, CHITRADURGA TALUK- 577 501.

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G THIPPESWAMY S/O GOWRANNA, MAJOR, OWNER OF MOTOR CYCLE BEARING NO.KA-16/Q-0073 R/O KUNABEVU, CHITRADURGA TALUK - 577 501.

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…RESPONDENTS

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(BY SRI. SPOORTHY HEGDE, ADVOCATE FOR R1, VIDE ORDER DATED 09.09.2015, NOTICE TO R2 IS DISPENSED WITH)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:19.2.2013 PASSED IN MVC NO.1756/2010 ON THE FILE OF THE ADDL. SESSIONS JUDGE (FAST TRACK COURT) CHITRADURGA, AWARDING COMPENSATION OF RS.4,33,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.

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IN MFA NO. 8407 OF 2013

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BETWEEN:

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K.E.THIPPESWAMY S/O LATE. ESWARAIAH, AGED ABOUT 43 YEARS.

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CHANDRASHEKHAR S/O K.E. THIPPESWAMY

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HC-KAR

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AGED ABOUT 7 YEARS APPELLANT NO.2 IS MINOR REPRESENTED BY HIS NATURAL GUARDIAN/ FATHER PETITIONER NO.1

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BOTH ARE R/O KUNABEHVU CHITRADURGA TALUK- 577 501.

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...APPELLANTS

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(BY SRI. K.S LAKSHMINARASAPPA, ADVOCATE FOR SRI.SPOORTHY HEGDE N.,ADVOCATE)

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AND:

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THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO.LTD., DIVISIONAL OFFICE, MMK COMPLEX, AKKAMAHADEVI ROAD, P.J. EXTENSION, DAVANAGERE- 577 002.

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G THIPPESWAMY S/O GOWRANNA MAJOR, OWNER OF MOTOR CYCLE BEARING NO. KA-16-Q-0073 R/O KUNABEVU CHITRADURGA TALUK- 577 501.

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...RESPONDENTS

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(BY SRI. A M VENKATESH, ADVOCATE FOR R1, VIDE ORDER DATED 09.09.2015, NOTICE TO R1 IS DISPENSED WITH)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:19.02.2013 PASSED IN MVC NO.1756/2010 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE, (FAST TRACK COURT), CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION

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HC-KAR

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FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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Both these appeals arises out of the judgment and award dated 19.02.2013 passed by the learned Additional Sessions Judge (Fast Track Court), Chitradurga in MVC.No.1756/2010.

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MFA.No.4394/2013 is filed by the insurer and MFA.No.8407/2013 is filed by the claimants. Since both the appeals arise out of common judgment and award, both are taken up together for final disposal.

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The parties are referred to as per their ranking before the Tribunal.

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The case of the claimants is that one Jamuna wife of claimant No.1 and mother of claimant No.2 was traveling as

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HC-KAR

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a pillion rider in a motor cycle bearing registration No.KA16/Q-0073. One Gajendra Babu was riding the said vehicle. He rode the vehicle in a rash and negligent manner and lost his control over the vehicle as a result of which she sustained grievous injuries and died at the spot. The pillion rider Smt.Jamuna sustained grievous injuries and while undergoing treatment she succumbed to injuries on 07.09.2010.

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It is the case of claimants that deceased was aged about 25 years at the time of the accident. She was self employed i.e., was doing tailoring work and was earning Rs.6,000/- per month. The deceased was contributing her earnings to the family. It is also submitted that the claimants had spent a sum of Rs.34,000/- towards medical expenses for her treatment. With these reasons, claimants prayed to award compensation of Rs.10,00,000/-.

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The respondent in his written statement denied the contention of the claim petition and stated that rider of the motor cycle was aged 19 years and was not possessing

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HC-KAR

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valid and effective driving license. At the time of accident, there were three pillion riders in the motor cycle and rider lost control over the vehicle and caused accident, therefore, respondent No.2 is not liable to pay the compensation. With these reasons, prayed to dismiss the claim petition.

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The Tribunal recorded the evidence of the parties. Claimants examined two witnesses as PW-1 and PW-2 and marked 10 documents as per Exs.P1 to P10. The respondent examined RW-1 and marked Ex.R1.

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The Tribunal after hearing both the parties, appreciated the evidence on record and allowed the claim petition by the impugned judgment. The Tribunal held that accident had taken place due to rash and negligent riding of the motor cycle by its rider and death of Jamuna was caused due to the injuries sustained in the accident. The Tribunal assessed the age of the deceased as 32 years and applied

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the multiplier at 16. The Tribunal assessed the income of the deceased at Rs.3,000/- per month; deducted 1/3^rd towards personal expenses and on the basis of the same assessed

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HC-KAR

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the compensation including the amount spent towards medical expenses. Being aggrieved by the findings of the Tribunal, both the claimants as well as respondent No.2 preferred these two appeals.

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I have heard learned counsel for the claimants as

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well as insurer.

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Learned counsel for the claimants submits that age of the deceased assessed by the Tribunal is incorrect. In the claim petition and evidence of PW-1 and Ex.P5, age of the deceased is mentioned as 25 years. The Tribunal was carried away by the cross examination of PW-1 that she married about 12 years prior to the accident, on that basis held that her age was 32 years, at the time of her death. If that is the case, then she might have been married at the age of 12 or 13 years, which may not be probable. Therefore, the age of the deceased shall be considered as 25

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years. He further contended that the deceased was a tailor and was earning Rs.6,000/- per month, as per the claim petition; Even if there is no sufficient evidence, then notional

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HC-KAR

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income could be considered as per the chart prepared by Karnataka Legal Services Authority at Rs.5,500/- per month since accident took during the year 2010. The suitable multiplier applicable to the case in hand i.e., between the age group of 20 to 25 years is 18 and the same could be applicable in the present case. He further contends that respondents have not examined the investigation officer or the concerned RTO to show that the rider of the vehicle had no valid and effective driving license to ride the motor cycle at the time of accident. Respondent No.2 did not discharge his burden. Therefore, it cannot contend that the finding of the Tribunal is incorrect. With these reasons, prayed to allow the appeal filed by the claimants and dismiss the petition filed by the insurer.

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Learned counsel for the insurer vehemently contends that findings of the Tribunal that rider of the vehicle was not charge sheeted for the offence punishable under Section 181 of MV Act 1988, cannot be a reason to disbelieve that rider of the said vehicle had valid and effective driving license. Therefore, finding of the Tribunal in

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HC-KAR

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this regard is incorrect. He further contends that amount of compensation awarded is just and reasonable and there is no need to interfere with the said findings. With these reasons, prayed to allow the appeal filed by the insurer and dismiss

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the appeal filed by the claimant. Learned counsel for the insurance company relied on the judgment of the Hon'ble Apex Court in the case of National Insurance Co. Ltd Vs.

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Challa Upendra Rao and others¹ and Oriental Insurance Co., Ltd. vs. Nanjappan and others² .

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Learned counsel for the claimants in reply submits that if this Court holds that the driver of the offending vehicle had no valid and effective driving license then respondent No.2 - insurer shall be directed to pay the compensation with a liberty to recover the same from the respondent No.1.

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From the contentions of the parties, following questions arises for my determination:

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1 AIR 2004 SCC 4882

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2 (2004) 13 SCC 224

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HC-KAR

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i. Whether the Tribunal has awarded just

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compensation and interference with the said

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finding is necessary?

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ii. Whether respondent No.2 is liable to pay the compensation?

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The Tribunal in the impugned judgment at paragraph No.11 erred in holding the age of the deceased as 32 years on the basis of evidence of PW-1. At an undisputed point of time, in Ex.P5, the age of the deceased was mentioned as 25 years. There is no other contra evidence to disbelieve it. If the marriage had taken place 12 years prior to her death then as rightly contended by the learned counsel for the claimant, she would be aged about 12-13 years at the time of her marriage. Therefore, the said reasons assigned by the Tribunal is not proper. Hence, the age of the deceased is taken as 25 years at the time of accident.

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The income of the deceased is taken as Rs.3,000/- per month. Admittedly, there are no materials to

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HC-KAR

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believe that she was earning Rs.6,000/-. Therefore, notional income of the deceased has to be assessed. As per the income chart prepared by Karnataka Legal Services Authorities, the notional income of the deceased could be considered as Rs.5,500/-. Since the age of the deceased is taken as 25 years, the suitable multiplier applicable is '18'. As per the judgment of National Insurance Company Limited vs. Pranay Sethi, the future prospectus has to be added to the income of the deceased. Since the deceased was aged below 40 years, 40% of her income has to be added towards future prospectus. Deceased was married, therefore 1/3^rd of her income has to be deducted towards her personal expenses. On these particulars, compensation under the head 'Loss of dependency' is calculated. In addition to that, the Tribunal on the basis of the materials placed on record awarded a sum of Rs.34,000/- towards 'Medical expenses' and the same is to be awarded.

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15. Compensation under conventional heads has

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to be awarded as per law laid down in the case of Pranay

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HC-KAR

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Sethi (Supra) and Magma General Insurance Company v.

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Nanu Ram Alias Chuhru Ram & Others³

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Thus, the claimants are entitled to the following

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compensation:

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Compensation under different Heads	Amount in (Rs.)
Loss of dependency	11,08,800
(Rs.5,500x12+40%x18x1/3)
Medical expenses	34,000
Funeral expenses	15,000
Loss of estate	15,000
Loss of consortium	80,000
Total	12,52,800
Awarded by the Tribunal	4,33,000
Enhancement	8,19,800
Rounded off	8,20,000

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The claimant is entitled for interest @ 6% p.a on the

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enhanced amount of compensation. Accordingly, question

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No.1 is answered partly in the affirmative.

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3 (2018) 18 SCC 130

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HC-KAR

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With regard to Liability

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The Tribunal by appreciating the evidence held that since the accused was not charge sheeted for the offence punishable under Section 279, 304(A) read with Section 181 of MV Act, it had presumed that rider of the motor cycle had valid and effective driving license. It is the duty of respondent No.1 - owner of the vehicle to produce license. In spite of service of notice, respondent No.1 remained absent. In the crossexamination of PW-1, it was suggested that rider of the vehicle had no valid and effective driving license and he denies the said suggestion. RW-1 is examined by respondent No.2 and he has stated that rider of the motor cycle had no valid and effective driving license. It is true that respondent No.2 has not examined investigating officer or the concerned RTO. It appears that no such efforts were made by the investigating officer at the time of submission of charge sheet. In view of these circumstances, it is difficult to believe that rider of the motor cycle had valid and effective driving license. Undisputedly, the said vehicle was insured with respondent No.2. The policy of insurance has been produced in Ex.R1. The

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HC-KAR

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Full Court of this Court in the case of New India Assurance

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Co., Ltd. Vs. Yallavva⁴ held that in such events insurer shall pay the compensation and it is at liberty to recover the same from the owner of the vehicle in an appropriate proceedings in accordance with law. The law laid down in the aforesaid judgment could be applied to the facts of the present case.

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Accordingly, I proceed to pass the following:

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ORDER

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i. MFA.No.4394/2013 C/w MFA.No.8407/2013 are partly allowed .

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ii. The impugned judgment and award dated 19.02.2013 passed in MVC.No.1756/2010 is

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modified.

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iii. The claimants are entitled to an enhancement of Rs.8,20,000/- with interest @ 6% p.a from the date of the petition till its realization over the amount awarded by the Tribunal.

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4 AIR ONLINE 2022 KAR-986

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