Sheker S Vs Mahalakshmamma

(BY SRI. VIJAYA PHANEENDRA T B, ADVOCATE FOR SRI. A N KRISHNASWAMY, ADVOCATE FOR R5 SRI. SIDDHARTHA H V, ADVOCATE FOR SRI. H V VISHAKANTE GOWDA, ADVOCATE FOR R3 R2 IS MINOR REPRESENTED BY R1 R1 & R4 ARE SERVED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.01.2014 PASSED IN MVC NO.83/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT-15, KUNIGAL, AWARDING COMPENSATION OF RS.11,52,272/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION AND ETC.

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IN MFA.CROB NO. 100/2023

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BETWEEN:

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MAHALAKSHAMAMMA W/O LATE SHANAIAH AGED ABOUT 37 YEARS

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KARTHIK

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S/O LATE SHANAIAH AGED ABOUT 20 YEARS

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KIRANA S/O LATE SHANAIAH AGED ABOUT 22 YEARS

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JAYAMMA

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HC-KAR

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S/O LATE DODDASHAIANAIAH AGED ABOUT 66 YEARS

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ALL ARE R/AT SHETTIGERE VILLAGE KOTHAGERE HOBLI KUNIGAL TALUK TUMKURU DISTRICT 572130

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...CROSS OBJECTORS

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(BY SRI. SIDDHARTHA H V, ADVOCATE FOR SRI. H V VISHAKANTE GOWDA, ADVOCATE)

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AND:

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SHEKER S S/O SRINIVAS AGED ABOUT 42 YEARS R/AT HONNEGOWDANAPALYA THARADAKUPPE KOTHAGERE HOBLI KUNIGAL TALUK TUMKURU DISTRICT 572130

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THE NEW INDIA ASSURANCE COMPANY LIMITED TUMKUR SHOPPING COMPELX 1ST FLOOR, B H ROAD TUMAKURU 572101

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...RESPONDENTS

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(BY SRI. PRASANNA D P, ADVOCATE FOR R1 SRI. VIJAYA PHANEENDRA T B, ADVOCATE FOR SRI. A N KRISHNASWAMY, ADVOCATE FOR R2)

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THIS MFA.CROB IS FILED UNDER ORDER XLI RULE 22 OF THE CPC READ WITH SECTION 173(1) OF MOTOR VEHICLE ACCIDENT CLAIMS TRIBUNAL, AGAINST THE JUDGMENT AND AWARD DATED 01.01.2014 PASSED IN MVC NO.83/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT-15, KUNIGAL, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND ETC.

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THIS MFA AND MFA CROB, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE C.M. POONACHA

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HC-KAR

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ORAL JUDGMENT

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The above appeal and cross-objection are filed challenging the judgment and award dated 01.01.2014 passed in MVC No.83/2011 by the Senior Civil Judge and Additional MACT-15, Kunigal¹ . Hence, they are taken up together for consideration.

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For the sake of convenience, the parties are referred as per their rank before the Tribunal.

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The wife, two children and mother of one Sri Shanaiah² filed a claim petition, claiming compensation for the death of the deceased in a road traffic accident which occurred on 02.03.2010, when the deceased was traveling in a new Appe Piaggio Auto bearing No.KA-04-C-0138. The owner and insurer of the insured auto were arrayed as respondent Nos.1 and 2 respectively, in the claim proceedings. The owner entered appearance through a counsel. However, no statement of objection was filed. The insurer contested the claim proceedings by filing a statement of objections, whereunder, it

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1 Hereinafter referred as to ‘Tribunal’

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2 Hereinafter referred as to ‘deceased’

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was specifically contended that the details of the policy of insurance, that has been furnished by the insurer along with the claim petition, was not issued in favour of the vehicle in which the deceased was stated to be travelling and was issued in respect of another new unregistered Bajaj auto-rickshaw.

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Claimant No.1 examined herself as PW.1 and the representative of the employer of the deceased was examined as PW.2. The respondents did not adduce any oral or documentary evidence.

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The Tribunal, vide judgment and award dated 01.01.2014 partly allowed the claim petition and awarded a total compensation of `11,52,272/- together with interest at 6% per annum. However, having recorded a finding that respondent No.2 - insurer has not issued the policy of insurance in respect of the auto-rickshaw in which the deceased was travelling which met with an accident, the Tribunal dismissed the claim petition against respondent No.2 – insurer and directed respondent No.1 – owner to pay the compensation awarded together with the accrued interest. Being aggrieved,

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HC-KAR

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the owner has preferred MFA No.7073/2017 and the claimants have preferred Cross objection No.100/2023.

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Learned counsel Sri Prasanna D.P. appearing for the appellant/owner contends that the owner, along with the above appeal has filed IA.No.3/2017 under Order XLI Rule 27(1) (aa) of the Code of Civil Procedure, 1908³ , seeking the leave of the Court to produce an attested copy of the policy of insurance issued by respondent No.2 - insurer. It is contended that having regard to the fact that the vehicle which met with an accident, was owned by the appellant in the appeal and since the insurer had issued the policy of insurance, the liability to pay the compensation ought to be fastened jointly on the owner and that the insurer and the insurer be directed to pay the compensation awarded.

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Learned counsel Sri Siddharth H.V. appearing for learned counsel Sri.H.V. Vishakante Gowda appearing for the claimants/cross-objectors supports the contentions put forth by the owner of the vehicle that the insurer has issued the policy of insurance in respect of the auto-rickshaw which met with the

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3 Hereinafter referred as to ‘CPC’

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HC-KAR

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accident. Further, along with the cross objection, learned counsel for the cross objectors has produced a certified copy of the judgment and award dated 07.10.2011 passed in MVC No.5452/2010, whereunder another claim petition filed by another occupant of the auto-rickshaw in question, arising out of the same accident, was partly allowed by the Tribunal and the liability to pay the compensation was fastened on the insurer. Learned counsel for the cross-objectors further contends that the quantum of compensation has been awarded is on the lower side and seeks for enhancement of the same.

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The submissions on behalf of the insurer were made

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by the learned counsel Sri Vijaya Phaneendra TB for learned counsel Sri AN Krishnaswamy, whereunder he places the relevant facts on record.

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

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i. “Whether IA.No.3/2017 filed in MFA No.7073/2017 is required to be allowed?

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ii. Whether the finding of the Tribunal dismissing the claim petition against the insurer of the auto-rickshaw is just and proper?

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iii. Whether the quantum of compensation is liable to be enhanced?”

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Reg. question (i) :-

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Along with the appeal, the appellant – owner has filed IA.No.3/2017 seeking to produce a copy of the policy of insurance. It is deposed in the affidavit accompanying the application that the owner of the vehicle has insured the same with the insurer who has issued policy No.67230131090100207932 in respect of the Piaggio autorickshaw which policy was valid from 08.02.2010 to 07.02.2011. The B-register extract of the vehicle in question has also been produced along with the application. It is deposed in the affidavit filed in support of the application that the owner of the vehicle has furnished the requisite documents to the insurer, which has been produced by the insurer in other claim petitions. However, the same has not been produced in the present claim proceedings. It is further deposed that no

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HC-KAR

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issue in that regard was framed by the Tribunal. Hence, the said documents were not furnished before the Tribunal.

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It is clear from the aforementioned that the Tribunal has dismissed the claim petition against the insurer by holding that neither the copy of the policy nor the requisite details in respect of the same have been furnished. It is clear that the documents produced by the appellant – owner along with IA.No.3/2017 are necessary to adjudicate the questions that arise for consideration in the present appeal. Hence, IA.No.3/2017 is allowed. The documents produced along with the said application i.e., copy of the policy of insurance and the copy of the B-register extract of the insured vehicle are taken on record. Accordingly, question (i) framed for consideration is answered in the affirmative .

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Reg. question (ii) :-

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The Tribunal noticed that in terms of the policy number that was furnished in the claim petition, the insurer had taken a specific defence that the policy of insurance as per the details furnished was issued in favour of another autorickshaw, which was not involved in the accident in question.

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HC-KAR

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In the present appeal, the policy of insurance has been produced along with IA.No.3/2017. The insurer has not filed any objections to the said application till date. It is also pertinent to note that the insurer has been fastened with the liability to pay the compensation awarded vide judgment and award dated 07.10.2011 passed in MVC No. 5452/2010, which is a claim petition arising out of the same accident. It is also forthcoming that the policy number mentioned in the claim petition is erroneous inasmuch as certain digits have not been mentioned while compared to the policy of insurance that has been produced along with IA.No.3/2017.

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In view of the aforementioned, it is clear that the insurer has validly insured the auto-rickshaw that was involved in the accident. Hence, it is liable to deposit the compensation awarded by the Tribunal. To the said extent, the finding of the Tribunal dismissing the claim petition against respondent No.2 – insurer is liable to be interfered with. Accordingly, question (ii) framed for consideration is answered in the negative .

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HC-KAR

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Reg. question (iii) :-

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The deceased was stated to be 43 years as on the date of the accident i.e., on 02.03.2010. Hence, the appropriate multiplier to be applied is ‘14’.

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The deceased was stated to be an employee of H and R Johnson (India) Factory and was also involved in agricultural operations. It is averred in the claim petition that the deceased had a salary of 10,000/- per month and was earning 60,000/- per annum from agriculture. The employer of the deceased was examined as PW.2 and the deceased has produced the pay slips (Ex.P14 and 19), confirmation letter (Ex.P17), probationary order (Ex.P18), salary statement (Ex.P20) and performance register (Ex.P21). The Tribunal appreciating the said documents, has assessed the monthly earning of the deceased from the said employment as `5,722/which is just and proper.

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With regard to the contention of the claimant that the deceased was also being agriculturist earning `60,000/- per annum, in respect of which RTC (Ex.P15) was produced, which discloses that the deceased had acquired five guntas of land in

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survey No.20/5 of Theredakoppa Village and was carrying on agricultural operations, the Tribunal has noticed that no documents have been furnished to show the nature of crops or trees grown in the said land. However, having regard to the fact that the deceased was owning the said land, having regard to the notional income as on the date of accident it is just and proper that the income from agriculture be assessed at 5,000/- per month. The total monthly income of the deceased is re-assessed as (5,722/- + 5,000/-)= 10,722/- per month.

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25% is to be added towards future prospects in terms of the judgment of the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LTD V/S

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PRANAY SETHI AND ORS⁴ . Since the claimants are the wife, two children and mother (four members), 1/4 is required to be deducted towards personnel expenses. Hence, the loss of dependency is re-assessed as (10,722 + 25% - 1/4 X 12 X 14) =16,88,736/-.

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Loss of consortium is required to be awarded to four claimants in term of the judgment of the Hon’ble Supreme

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4 “(2017)16 SCC 680”

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HC-KAR

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Court in the case of MAGMA GENERAL INSURANCE

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COMPANY V/S NANU RAM ALIAS CHUBRU RAM AND

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ORS⁵ . Accordingly, the compensation of 40,000/- together with escalation at 20% is awarded in respect of the same in a sum of (48,000/- X 4)=1,92,000/-.

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Loss of estate and funeral expenses is required to be awarded at 15,000/- each together with escalation at 20%. Accordingly, the compensation of 18,000/- each is awarded towards the same as against `10,000/- each awarded by the Tribunal.

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The claimants have contended that they had incurred nearly 2,00,000/- towards medical expenses, since the deceased died on 28.03.2010 and was in hospital for a period of 26 days. The Tribunal noticed that the medical bills (Ex.P16) amounts to a sum of 1,69,974.82/-. However, the Tribunal has only awarded a compensation 1,50,000/- towards medical expenses. In view of the same, the medical expenses is re-assessed as 1,70,000/-.

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5 “(2018)18 SCC 130”

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HC-KAR

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Taking judicial notice of the rate of interest awarded

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towards fixed deposits, interest on the enhanced compensation is awarded as 7% pa.

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In view of the aforementioned, the compensation is

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re-assessed as follows:

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Sl.No	Compensation Head	Amount Awarded by the Tribunal (`)	Amount awarded by this Court (`)
1	Loss of dependency	937272.00	1688736.00
2	Loss of consortium	25000.00	192000.00
3	Loss of love and affection	30000.00	00.00
4	Loss of estate	00.00	18000.00
5	Transportation of dead body, funeral expenses	10000.00	18000.00
6	Towards medical expenses	150000.00	170000.00
	Total	1152272.00	2086736.00

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Accordingly, question (iii) framed for consideration is answered in the affirmative . Accordingly, the Claimants are entitled to an enhanced compensation of (20,86,736/- **-** 11,52,272/-)= 9,34,464/- rounded of to 9,35,000/-.

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HC-KAR

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In view of the aforementioned, the following:

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ORDER

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i) The appeal and cross-objection are allowed in part;

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ii) The judgment and award dated 01.01.2014 passed in MVC No.83/2011 by the Senior Civil Judge and Additional MACT-15, Kunigal, is hereby modified to the extent ordered herein. In all other respects, the judgment and award of the Tribunal remains unaltered;

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iii) The claimants are entitled to an enhanced compensation of `9,35,000/- together with interest at 7% per annum from the date of the petition till its realization in addition to the compensation awarded by the Tribunal;

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iv) The insurer (Respondent No.2 before the Tribunal) shall be liable to pay the compensation awarded by the Tribunal as well as the compensation enhanced by this Court together with accrued interest within a period of six weeks;

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