The Oriental Insurance Company Limited Vs Smt Shivamma

THE ORIENTAL INSURANCE COMPANY LIMITED REGIONAL OFFICE, T.P.HUB, NO. 44/45, LEO SHOPPING COMPLEX, RESIDENCY ROAD, BENGALURU - 560025. REP. BY ITS AUTHORIZED SIGNATORY.

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…APPELLANT

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(BY SRI. A M VENKATESH, ADV.)

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AND:

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SMT SHIVAMMA

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Digitally signed by NANJUNDACHARI Location: HIGH COURT OF KARNATAKA

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W/O LATE BELURAIAH @ BELURA SHETTY, AGED ABOUT 63 YEARS,

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SUMA C B

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D/O LATE BELURA SHETTY @ BELURAIAH AGED ABOUT 35 YEARS,

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CHANDRAKALA C.B. D/O LATE BELURAIAH @ BELURA SHETTY, AGED ABOUT 34 YEARS,

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ALL ARE R/AT NO.122 WARD NO.11 BEHIND POLICE QUARTERS KUVEMPU NAGARA CHANNARAYAPATNA HASSAN DISTRICT-573116.

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HC-KAR

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SHRI PANEESHA M.K. W/O M.H. KRISHNE GOWDA, NO.02, NEAR AGRICULTURAL CO OPERATIVE BANK, DODDAMAGGE, ARKALGUD TALUK, HASSAN DISTRICT - 573102.

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…RESPONDENTS

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(BY SRI. M.T. MADHU, ADV. FOR R1 TO R3 R4 SERVED & UNREPRESENTED)

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THIS APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 24.05.2023 PASSED IN MVC NO.5888/2021 ON THE FILE OF THE III ADDITIONAL JUDGE AND MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU SCCH-18, AWARDING COMPENSATION OF RS.18,34,500/- WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

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

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CORAM: HON'BLE MR. JUSTICE S.G.PANDIT AND HON'BLE MR. JUSTICE K. V. ARAVIND

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE S.G.PANDIT)

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This appeal is by the Insurance Company under

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Section 173(1) of the Motor Vehicles Act, 1988 (for short,

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‘the Act’) against the judgment and award dated 24.05.2023 in MVC No. 5888/2021 on the file of III Addl. Judge and MACT, Court of Small Causes, Bengaluru aggrieved by the saddling of 100% liability upon the

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insurance company as well the quantum of compensation awarded by the Tribunal.

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The brief facts of the case are that the claimants, who are the mother and sisters of the deceased, filed a petition under Section 166 of the Act seeking compensation for the accidental death of one Sri.Kumar @ Kumar C.B. on 28.11.2021 at about 6.00 p.m., involving Hero Passion Pro motor cycle bearing chassis No.MBLJA12AACGB10056 (driven by the deceased) and Swift D’zire car bearing registration No.KA-54-M-1241 (insured by the appellant herein) on Varahasandra village, Bindiganavile Hobli,Nagamangala Taluk, Mandya District, Mangaluru-BengaluruNH75 Highway. It is submitted that at the time of the accident the deceased was aged 37 years, earning Rs.25,000/- p.m. by doing welding and painting work, was hale and healthy and was the sole bread earner of the family.

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HC-KAR

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Before the Tribunal, upon issuance of notice,

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learned counsel for Respondent No.1 (owner of Swift D’zire Car) and Respondent No.2(appellant herein) appeared before the Tribunal and filed their separate objections. Learned counsel for the owner of the Swift Car contended that the accident occurred solely due to the rash and negligent driving of the deceased. Learned counsel for the insurance company contended before the tribunal that the deceased did not hold a valid and effective driving licence and that the accident occurred solely due to rash and negligent driving of the motor cycle by the deceased.

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On behalf of the claimants, the claimant no.1 was examined as PW1 and one Sri. Govindaraju J was examined as PW2 apart from marking Exs.P1 to P22. On behalf of the insurance company, the Assistant Manager of the insurance company was examined as RW1, apart from marking Exs.P1 and P2. The tribunal upon examination of the material on record, saddled the entire liability upon the

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insurance company of Swift D’zire car and awarded the

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total compensation of Rs.18,34,500/- along with interest

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@ 6% pa under the following heads:

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Sl	Compensation under	Amount
No.	the Head
1.	Loss of dependency	Rs. 16,87,500/-
2.	Loss of estate	Rs. 16,500/-
3.	Funeral expenses	Rs. 16,500/-
4.	Transportation expenses	Rs. 10,000/-
5.	Loss of Consortium	Rs. 44,000/-
6.	Medical expenses	Rs. 59,546/-
	TOTAL	Rs. 18,12,536/-

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While coming to the afore-stated conclusion, the Tribunal assessed the monthly income of the deceased notionally at Rs.15,000/- p.m., added 25% towards future prospects, deducted 50% towards personal and living expenses of the deceased and adopted the multiplier of ‘15’.

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Heard Sri. A M Venkatesh learned counsel for

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the insurance company and Sri. M T Madhu learned

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counsel for the claimants. Perused the entire appeal papers including the Trial Court records.

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Learned counsel Sri. A M Venkatesh for the insurance company would submit that the accident occurred solely due to the rash and negligent driving of the deceased himself. It is submitted that the deceased while taking a U-Turn, tried to cross the path on which the driver of the Swift D’zire car was on and hence, dashed against the left portion of the car, which led to him falling on the tar road and sustaining injuries which led to his death. It is contended on behalf of the Insurance company that the motor cycle driven by the deceased was unregistered and the deceased had no driving license to drive the vehicle and the motor cycle was not insured. Thus, it is submitted that the accident occurred solely due to the negligence of the deceased. Without prejudice to the above, it is submitted that the compensation awarded by the Tribunal is on the higher side and requires

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interference. Thus, it is prayed that the appeal filed by the insurance company be allowed.

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Per contra, learned counsel for the claimants

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Sri. M T Madhu would submit that the accident occurred due to rash, speedy and negligent driving of the Swift D’zire car. It is submitted that the Tribunal is justified in saddling the entire liability upon the appellant herein which requires no interference. Thus, it is prayed that the appeal filed by the insurance company be dismissed.

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Having heard the learned counsel appearing for

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the parties and on perusal of the entire appeal papers including the Trial Court Records, the following points would arise for our consideration:

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i. Whether the Tribunal is justified in attributing the entire negligence for the accident upon the driver of the Swift D’zire car?

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ii. Whether the quantum of compensation granted by the Tribunal is just and proper?

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Answer to both the points would be in the Negative for the following reasons:

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The accident that occurred on 28.11.2021 at about 6 p.m. involving unregistered motor cycle bearing chassis No.MBLJA12AACGB10056 (driven by the deceased) and Swift D’zire car bearing registration No.KA-54-M-1241 (insured by the appellant herein) on Varahasandra village, Bindiganavile Hobli,Nagamangala Taluk, Mandya District, Mangaluru-BengaluruNH75 Highway is not in dispute. However, learned counsel for the insurance company has argued that the accident occurred solely due to the negligence of the deceased driving the motor cycle, whereas, the claimants have argued that the accident occurred solely due to the rash and negligent driving of the Swift D’zire car.

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Subsequent to the accident, an FIR came to be

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registered against the driver of the Swift D’zire car, the contents of which would indicate that while trying to cross the road on the Mangalore-Bangalore NH 75 Highway, the

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driver of the Swift D’zire car drove the car in a rash and negligent and dashed against the left side of the motorcycle, due to which the deceased fell on the tar road and later succumbed due to the injuries sustained. However, in the charge sheet filed for the said crime, both the deceased as well as the driver of the Swift D’zire car have been arraigned as accused. Moreover, it is undisputed that the motor cycle being driven by the deceased was not registered and was uninsured. Further, it is also undisputed that the deceased did not hold a valid and effective driving licence as on the date of accident. In addition to this, on perusal of the Ex. P4 Spot sketch, it could be seen that the deceased while taking a U-turn came onto the path of the Swift D’zire car. It is also apposite to point out that, as seen from the Ex. P4 Spot sketch, there was no traffic signal at the spot of the accident. If that being so, a vehicle taking a U-turn must move slow and make way for the oncoming vehicles,

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especially in a Highway, rather than expecting the oncoming vehicles on the highway to slow down.

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Such being the circumstances, it may not be proper to hold that the deceased who was driving the motor cycle was not negligent at all. In the absence of the vehicle being registered, insured and in the absence of holding a valid and effective driving licence, the deceased ought not to have driven the motor cycle on road at all. Moreover, the accident occurred while the deceased tried to take a U-turn on the highway. Thus, we are of the considered opinion that it would be just and proper to hold that the deceased was responsible for the accident to an extent of 25%. Thus, 75%negligence is attributed to the driver of Swift D’zire car, to be indemnified by the appellant herein.

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With regard to the compensation to be awarded, in the absence of any documentary evidence to establish the monthly income of the deceased to be

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Rs.25,000/- per month, the Tribunal is justified in assessing the income of the deceased notionally at Rs.15,000/- per month for the accident of the year 2021 as per the chart prepared by Karnataka State Legal Services Authority. The accident occurred on 28.11.2021, the deceased died on 06.12.2021 and the deceased was born on 01.01.1981. Thus, as on the date of accident, the deceased had completed ‘40’ years of age. Thus, the Tribunal is justified in adopting the multiplier of ‘15’, adding 25% towards future prospects and since the deceased was unmarried, deducting 50% towards personal and living expenses. Thus, the compensation awarded under the head ‘loss of dependency’ by the Tribunal to the tune of Rs.16,87,500/- is maintained.

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With regard to the compensation under conventional heads, the Tribunal is right in stating that under the head ‘loss of estate’, the claimants are entitled to Rs.15,000/- to be enhanced at 10% for every three years by relying on the decision of the Hon’ble Apex Court

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in NATIONAL INSURANCE COMPANY LIMITED VS. PRANAY SETHI & OTHERS reported in AIR 2017 SC 5157. However, the Tribunal has erred in quantifying the compensation under the heads ‘funeral and transportation expenses’ and ‘loss of consortium’. In PRANAY SETHI

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( supra) the Hon’ble Apex Court held that compensation of Rs.15,000/- has to be granted for ‘funeral expenses’, to be enhanced at 10% for every three years. The Tribunal erred in granting compensation of Rs.15,000/- and Rs.10,000/individually under the heads ‘funeral expenses’ and ‘transportation charges.’ Furthermore, it is settled that each individual legal representative is entitled to ‘loss of consortium’ at Rs.40,000/- to be enhanced at 10% for every three years. On reading of para 35 of the impugned judgment, it seems that the purport of the Tribunal was that consortium is to be granted to all 3 of the claimants. However, the Tribunal erred in granting consortium of Rs.40,000/- enhanced at 10% for every three years,

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collectively to the claimants, rather than individually to each of the claimants.

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At this juncture, Order XLI Rule 33 of the Civil Procedure Code, 1908 (for short ‘CPC’) assumes significance and is hence reproduced hereunder:

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“ 33. Power of Court of Appeal.— The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees.

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Provided that the Appellate Court shall not make any order under section 35A in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.”

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Order XLI Rule 33 of the CPC provides that even in the absence of an appeal being filed by a party, the Appellate Court is empowered with the authority to pass any order or any decree which ought to have been passed, in favor of the party who is not in appeal.

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In the case on hand, it is true that the appeal is filed by the insurance company and the claimants are not in appeal. However, it is to be noted that in the impugned judgment, although the Tribunal has rightly held that all 3 claimants are entitled to compensation under the heads ‘loss of consortium’, the Tribunal has collectively granted Rs.44,000/- to the claimants rather than individually. Since the error by the Tribunal is merely arithmetical and since the purport of the Tribunal all along was to grant

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compensation under the head ‘loss of consortium’ to all three claimants, we are of the considered opinion that in exercise of power under Order XLI Rule 33 of the CPC, in the interests of justice and equity, each of the claimants shall be awarded Rs.44,000/- each under the head ‘loss of consortium’. We are aware that the power conferred under Order XLI Rule 33 of the CPC is to be exercised sparingly and only in exceptional circumstances. Having regard to the peculiar facts and circumstances of the present case and as the Court/Tribunal is expected to grant just compensation, we are of the considered view that this is a fit case warranting the exercise of the powers vested in this Court under Order XLI Rule 33 of the CPC.

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As far as the compensation awarded by the Tribunal under the head ‘medical expenses’ is concerned, we do not find any infirmity with the same. Thus, the claimants shall be entitled for the following modified compensation:

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Sl. No.	PARTICULARS	AMOUNT
1.	Loss of Dependency	Rs. 16,87,500/-
2.	Loss of Consortium	Rs. 1,32,000/-
3.	Loss of Estate	Rs. 16,500/-
4.	Funeral Expenses and	Rs. 16,500/-
	Transportation Charges
5.	Medical Bills	Rs. 59,546/-
	TOTAL	Rs.19,12,046/-
	75% of Total	Rs.14,34,035/-

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Thus, the claimants would be entitled to the compensation of Rs.14,34,035/- as against Rs.18,34,046/- awarded by the Tribunal, at the rate of 6% per annum from the date of petition till the date of realization.

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In the result, we proceed to pass the following:

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ORDER

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a) MFA No. 6815/2023 filed by the insurance

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company is partly allowed.

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b) The impugned judgment and award of the Tribunal is modified holding that the claimants would be entitled to the compensation of Rs.14,34,035/- as against Rs.18,34,046/- awarded by the Tribunal.

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c) The entire compensation amount shall carry interest at the rate of 6% per annum from the date of petition till date of realization.

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d) The insurance company shall deposit the entire compensation amount with accrued interest before the Tribunal within four weeks from the date of receipt of certified copy of this judgment.

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