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National Insurance Co. Ltd., by is Divisional Manager v/s Babajan Saheb & Others

    Miscellaneous First Appeal No. 22757 of 2011 (MV)

    Decided On, 17 January 2018

    At, High Court of Karnataka Circuit Bench At Dharwad

    By, THE HONOURABLE MR. JUSTICE B.A. PATIL

    For the Appellant: Aruna R. Deshpande, Advocate. For the Respondents: R1-R2, Dinesh M. Kulkarni, R3 & R4, M.M. Naikwad, Advocates.



Judgment Text

(Prayer: This MFA is filed u/sec.173(1) of M.V. Act 1988, against the Judgment and Award dated:31.05.2010, passed in M.V.C. No.548/2007 on the file of the Principal Civil Judge (Sr. Dn.) and Member M.A.C.T. Hubli, awarding the compensation of Rs.4,73,000/- with interest at the rate of 6% p.a. from the date of petition till realization.)

1. The present appeal has been preferred by the insurer assailing the judgment and award dated 31.05.2010 passed by the Principal Civil Judge(Senior Division) and Member Motor Accident Claims Tribunal, Hubli, in MVC No.548 of 2007.

2. Heard. Though the appeal is listed for hearing on interlocutory application, with the consent of the learned counsel appearing for the parties, the same is taken up for final disposal.

3. Brief facts of the case are that on 27.10.2006 Nisar Ahmed Kelaginamani was proceeding from Hubli to Yellapur on motorcycle bearing regis

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tration NoKA.25/V-5150 as a pillion rider and one Aslam was riding the said motorcycle. When they came near Chikkamavalli bus stand at about 1.30 pm, the rider of the motorcycle drove the same rashly and negligently, due to which, he lost control over the vehicle and as a result of which the vehicle turtled and Nisar Ahmed sustained grievous injuries. Immediately he was shifted to the hospital and on 02.11.2006, he succumbed to the injuries. It is further contended that Nisar Ahmed was hale and healthy and was doing tailoring work earning Rs.6,000/- per month. For having lost the bread earner, parents of the deceased filed claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation.

In pursuance of the notice, respondent Nos.1 to 4 appeared.

Respondent No.2 filed written statement. By denying the contents of the petition, it is further contended that as per the policy, the vehicle in question, as on the date of the accident, was standing in the name of Abdulgani Gandi of Hubli and he has sold the said vehicle to the first respondent and the first respondent went on renewing the policy issued to the earlier owner without bringing notice of this fact to the second respondent who had issued the policy to 4th respondent on 24.01.2017. It is further contended that after the accident, 1st respondent got the policy transferred to his name. It is further contended that as on the date of the accident, there was no contract of insurance between the insurance company and the 1st respondent. It is further contended that on the date of accident, 1st respondent being the owner was not holding the policy of the vehicle and the liability of insurance company ceases on the date of transfer of vehicle by 4th respondent to 1st respondent; that as on the date of the accident, respondent 1 or 4 have not paid the premium covering the risk of the pillion rider in the policy issued to the vehicle. It is further contended that the rider of the vehicle was not holding valid and effective driving licence. As such, there is breach of policy conditions and in that light, it is not liable to pay any compensation.

Other respondents did not file any objections.

On the basis of the above pleadings, the Tribunal framed the following issues:

1. Whether the petitioners proves that on 27.10.2006 Nisar Ahmed was going from Hubli to Yellapur on motor cycle bearing Registration NO.KA 25/V-5150 as a pillion rider and when the said Motor cycle came near Chikkamavalli Bus Stand at about 13.30 hours on Karwar-Bellary National Highway NO.63, the rider of this vehicle drove it in great speed, rash and negligent manner and lost control over the vehicle and the vehicle turtle down and caused the accident. As a result of this accident, Nisar Ahmed sustained severe injuries and died at the Hospital?

2. Whether the second respondent proves that the respondent No.1 or 4 have not paid the premium to cover the risk of pillion rider in the policy issued to the vehicle. Hence, this respondent-insurance company is not liable to pay any compensation to the petitioners?

3. Whether the second respondent proves that the rider of the Motor cycle in question was not at all holding valid and effective driving licence on the date of accident?

4. Whether the petitioners prove that the deceased Nisar Ahmed was earning Rs.6,000/- per month at the time of accident?

5. Whether the petitioners prove that they are entitled for compensation as prayed?

6. What order or award?

In order to prove the case of the petitioners, petitioner No.1 came to be examined as PW-1 and Doctor-Yellappa was examined as PW-2 and got marked Exs.P-1 to P-54. On the other hand, the respondents did not adduce any evidence. But, however, got marked Ex.R-1-insurance policy.

After hearing the parties to the lis, the impugned judgment and award came to be passed. Assailing the same, the insurer is before this Court.

4. The main grounds urged by the learned counsel for the appellant-insurer is that though the deceased was a bachelor, instead of deducting of the income of the deceased towards his personal expenses, the Tribunal, has erred in deducting 1/3rd. She further contended that the income which has been taken by the Tribunal is also on the higher side and in that light, the compensation awarded is on the higher side and the same may be reduced appropriately. On these grounds, she prayed for allowing the appeal by reducing the compensation.

5. Per contra, learned counsel appearing for the respondents-claimants by justifying the impugned judgment and award contended that though Exs.P-9 to P-52 have been produced at with regard to the medical expenses which has been incurred by the petitioners, the Tribunal has awarded a sum of Rs.5,000/- only instead of the actual amount which has been incurred. He also contended that the deceased was doing tailoring work and Ex.P-51 is the bill book which shows that he was having income through tailoring business. He further contended that the compensation arrived at is just and proper and the same may be confirmed by dismissing the appeal.

6. The accident is not in dispute so also involvement of the offending vehicle insured with the respondent-insurance company.

7. It is the contention of the petitioners that the deceased was carrying out tailoring work and was earning Rs.6,000/- per month. Though they have produced Ex.P-51, the said record is not going to show or throw any light regarding the amount of income. In that light, the Tribunal by taking the notional income of the deceased @ Rs.4,000/- per month, after deducting 1/3rd towards personal expenses of the deceased and after applying multiplier of 14, has awarded compensation of Rs.4,48,000/- towards loss of dependency. Though under the normal circumstances, the compensation awarded is justifiable, when there is no material or documentary evidence to show the income of the deceased, then under such circumstances, the Tribunal ought to have kept in view the year of accident and the wages prevailing during that particular period.

8. Admittedly, the accident is of the year 2006 and at that time, notional income of Rs.3,750/- was the yardstick which used to be adopted even in settlement of cases before the Lok Adalat. Admittedly, the deceased was a bachelor and under such circumstances, instead of deducting 1/3rd towards personal expenses, the Tribunal ought to have deducting of the income and after applying multiplier of 14, the claimants will be entitled to an amount of Rs.3,15,000/- towards loss of dependency. In view of the decision of the Apex Court in the case of National Insurance Company Limited v. Pranay Sethi and others reported in AIR 2017 SC 5157, under the conventional heads, they are entitled to an amount of Rs.15,000/- towards loss of love and affection and Rs.15,000/- towards transportation of dead body and funeral expenses.

9. Even as could be seen from the records, though the claimants have produced Ex.P-9 to P-50 the medical records for having incurred medical expenses when the deceased was admitted in the hospital, the Tribunal without assigning any reasons has granted lesser amount. At this juncture, both the counsel were requested to verify the records and to come to a consensus about the calculation of the bills which are produced by the claimants. In that light, they submit that the amount of Rs.27,500/- may be granted. The said amount of Rs.27,500/- is awarded to the claimants under the head medical expenses. Thus, in all, the claimants are entitled to an amount of Rs.3,72,500/- with interest at 6% per annum as against compensation of Rs.4,73,000/- awarded by the Tribunal.

Accordingly, the appeal is allowed. The judgment and award dated 31.05.2010 passed by the Principal Civil Judge(Senior Division) and Member Motor Accident Claims Tribunal, Hubli in MVC No.548 of 2007 is modified as indicated above. All pending applications do not survive for consideration and they stand disposed of.

Registry is directed to draw the award accordingly and the amount in deposit shall be transferred to the Tribunal concerned forthwith. Registry is further directed to send back the lower court records to the Tribunal concerned forthwith.
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