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K.S. Pushpavathi & Others v/s Tata AIG General Insurance Co. Ltd. & Others

    Misc. First Appeal Nos. 12151 of 2011 (MV) C/W 2070 of 2012 (MV)

    Decided On, 11 January 2018

    At, High Court of Karnataka

    By, THE HONOURABLE MRS. JUSTICE RATHNAKALA

    For the Common Parties: Girish B. Baladare, Shripad V. Shastri, Advocates. For the Respondents:O. Mahesh, B.C. Seetharam Rao, Advocates.



Judgment Text

(Prayer: This M.F.A. is filed under Section 173(1) of MV Act against the Iudgment and Award dated 14.09.2011 passed in MVC No.41/2009 on the file of the Principal District Judge, Member, MACT, Chikmagalur, partly allowing the claim petition for compensation and seeking enhancement of compensation.

This M.F.A. is filed under Section 173(1) of MV Act against the Judgment and Award dated 11.11.2011 passed in MVC No.9932/2008 on the file of the XIII Additional Small Causes Judge, Member, MACT, Court of Small Causes, Bangalore, partly allowing the claim petition for compensation and seeking enhancement of compensation.)

1. Since these appeals are the consequences of judgment and award passed by two separate M.A.C.T., pertaining to an accident dated 17.10.2008, involving two Tata Indica cars bearing registration Nos.KA-03/MC-5072 and KA-05/MF-6720, both appeals are considered together.

2. The claimants are aggrieved by the judgments and award dated 14.9.2011 passed by the Principal District Judge

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and M.A.C.T., Chikmagalur (‘the Tribunal’ for brevity) in M.V.C.No.41/2009 and dated 11.11.2011 passed by the M.A.C.T. & Court of Small Causes at Bangalore (‘the Tribunal’ for brevity) in M.V.C.No.9932/2008 respectively. The common grievance of the claimants in both appeals is, the amount awarded is inadequate.

3. Briefly stated, the claim petitions were filed by the dependants/legal heirs of deceased persons viz., Shekarappa and Reddamma. Their case was, on 17.10.2008 at about 5.15 p.m., deceased Shekarappa was driving Tata Indica bearing registration No.KA-03/MC-5072 and the offending vehicle bearing No.KA-05/MF-6720 (Tata Indica car), which was driven in a rash and negligent manner dashed against his car, as a result, Shekarappa died at the spot. The deceased Reddamma, who was an inmate of the Tata Indica car bearing registration No.KA-03/MC-5072, also died in the said accident. Shekarappa was a driver by profession and Reddamma was an agriculturist.

4. The claim petition of widow and children of deceased Shekarappa was registered in M.V.C.No.41/2009 and the claim petition of children of Reddamma was registered in M.V.C.No.9932/2008. The owner and insurer of both vehicles were arrayed as respondent Nos.1 to 4 and both Insurance Companies contested the claim. The Tribunal after holding enquiry and on overall consideration of the evidentiary material partly allowed the claim petitions.

5. Deceased Reddamma being a third party, the claim in M.V.C.No.9932/2008 was allowed against both Insurance Companies fastening the liability at 50% each, same is in challenge in M.F.A.No.2070/2012.

6. Insofar as it relates to M.F.A.No.12151/2011, the deceased Shekarappa being the driver of the Tata Indica car bearing registration No.KA-03/MC-5072, he was held responsible by contributory negligence at 50% and the Insurer of his car i.e., United India Insurance Co. Ltd. was absolved of its liability by the Tribunal in M.F.A.No.12151/2011. Though the compensation was computed at Rs.7,07,000/-, the claimants were held entitled for 50% of the compensation amount payable by the Insurer of the offending vehicle i.e., TATA AIG General Insurance Co. Ltd.

7. Sri.Girish B.Baladare, learned Counsel appearing for the appellants in M.F.A.No.12151/2011 in the matter of deceased Shakarappa submits that, the deceased was a professional driver. He had Driving Licence to drive the Light Motor Vehicle (transport). Though the claimants claimed that the deceased was earning Rs.8,000/- per month, the Tribunal disbelieved their evidence and worked out the loss of dependency by assuming his income at Rs.6,000/- per month, that has substantially contributed for reduction of the compensation amount. Hence, the impugned judgment and award may be modified by enhancing the compensation by just and reasonable amount.

8. Sri.Shripad V.Shastri, learned Counsel for the appellants in M.F.A.No.2070/2012 in the matter of deceased Reddamma submits that, the claimants though are the major children of the deceased, they have lost the love, guidance and assistance of their mother and the Tribunal proceeded to compute the loss of estate by holding her savings at Rs.800/- per month and worked out the compensation at Rs.1,25,600/-. Going by the judgment of the Division Bench of this Court in A.Manavalagan –vs- A.Krishnamurthy and Others reported in ILR 2004 KAR 3268, if the earning of the deceased is assumed at Rs.4,500/- per month, of the the same may be conveniently considered as her savings towards loss of estate, same comes to Rs.1,125/-, the loss of estate ought to have been worked out on the said line and the impugned judgment and award may be modified by assuming her savings towards loss of estate at Rs.1,125/- per month.

9. Sri.O.Mahesh, learned Counsel appearing for respondent No.1/TATA AIG General Insurance Co. Ltd. while seeking to maintain the impugned judgment and award submits that in the absence of documentary proof about the income of the deceased, the Tribunal had no other go except to assume deceased Shekarappa’s income at Rs.6,000/- per month. However, considering the fact that the deceased had a transport endorsement, this Court may modify the award by just and reasonable amount.

10. Sri.B.C.Seetharama Rao, learned Counsel appearing for respondent No.4/United India Insurance Co. Ltd. submits that, considering the judgment of Division Bench of this Court in A.Manavalagan’s case (supra), the judgment and award of the Tribunal may be modified in the interest of justice.

11. With the above submissions, I have gone through the impugned judgment and award and also the lower court records.

12. In the matter of death of Shekarappa (M.F.A.No.12151/2011), the claimants had contended that, he was a professional driver earning Rs.8,000/- per month. They had produced his Driving Licence pertaining to Light Motor Vehicle (transport). Considering the date of the accident and also in the spirit of the recent judgment of the Apex Court in National Insurance Co. Ltd. –vs- Pranay Sethi and Others reported in 2017 ACJ 2700 and also having regard to future escalation in the cost of price index, it is just and reasonable to add 40% of the income of the deceased towards future prospects. Thus, working out on Rs.6,000/- monthly income of the deceased and adding 40% of the same (Rs.2,400/-) works out to Rs.8,400/-. Thus, annual income of the deceased comes to Rs.1,00,800/- (Rs.8,400/-x12). The deceased since aged 44 years at the time of accident, the suitable multiplier to work out loss of dependency is ‘14’ as per the guideline of the Apex Court in Sarla Verma and Others –vs- Delhi Transport Corporation and Another reported in 2009 ACJ 1298. Thus, after deducting 1/3rd personal income of the deceased, the loss of dependency would be Rs.9,40,800/- (Rs.67,200/-x14). As per the judgment of the Apex Court in Pranay Sethi’s case (supra), by adding another Rs.70,000/- under conventional heads, it comes to Rs.10,10,800/- as against Rs.7,07,000/- computed by the Tribunal. That being the total entitlement of the claimants, as per the finding of the Tribunal holding the deceased himself guilty of contributory negligence by 50%, the net amount payable to the claimants is Rs.5,05,400/- as against Rs.3,53,500/- awarded by the Tribunal. Thus, claimants are entitled for enhanced compensation of Rs.1,51,900/- rounded off to Rs.1,52,000/-.

13. In the matter of death of Reddamma (M.F.A.No.2070/2012), considering the date of accident, it is reasonable to hold that her income was Rs.4,500/- towards per month. Even though there was no loss of dependency to the family, the claimants being her children are entitled for loss of estate arising out of her death. As per the judgment in A.Manavalagan’s case (supra), considering her savings at 1/4th of her income, it works out to Rs.1,125/- per month. Her age being 55 years, the suitable multiplier as per Sarla Varma’s case (supra) is ‘11’. Thus, loss of estate works out to Rs.1,48,500/- (Rs.1,125/-x12x11). By maintaining Rs.20,000/- awarded by the Tribunal towards conventional heads, the total compensation works out to Rs.1,68,500/-, rounded off to Rs.1,68,000/- payable by both the Insurance Companies. Thus, claimants are entitled for enhanced compensation of Rs.42,400/-.

14. Accordingly, M.F.A.No.12151/2011 is allowed in part. The judgment and award dated 14.9.2011 passed by the Principal District Judge and M.A.C.T., Chikmagalur in M.V.C.No.41/2009 is modified. The claimants are entitled for enhanced compensation of Rs.1,52,000/- with interest @ 6% per annum from the date of petition till realization.

15. The first respondent i.e., TATA AIG General Insurance Co.Ltd. is directed to deposit the enhanced compensation of Rs.1,52,000/- with interest at 6% p.a., from the date of petition till the date of realisation, within three weeks from the date of receipt of a copy of this judgment.

16. On such deposit, the amount shall be disbursed/deposited in favour of the claimants in accordance with the order of the Tribunal.

17. M.F.A.No.2070/2012 is allowed in part. The judgment and award dated 11.11.2011 passed by the M.A.C.T. & Court of Small Causes at Bangalore in M.V.C.No.9932/2008 is modified. The claimants are entitled for total compensation of Rs.1,68,000/- with interest @ 6% per annum from the date of petition till realization.

18. The enhanced compensation of Rs.42,400/- shall be paid at 50% each by both the Insurance Companies i.e., TATA AIG General Insurance Co.Ltd. and United India Insurance Co. Ltd.

19. The Insurance Companies are directed to deposit the enhanced compensation of Rs.42,400/- with interest at 6% p.a., from the date of petition till the date of realisation, within three weeks from the date of receipt of a copy of this judgment.

20. On such deposit being made, the entire amount shall be disbursed in favour of the claimants. Registry is directed to transmit the LCR to the concerned Tribunal forthwith.

Sri.B.C.Seetharama Rao, learned Counsel is permitted to file vakalath for respondent no.4 in M.F.A.No.12151/2011 within four weeks from today.
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