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Branch Manager, National Insurance Co. Ltd., Represented by Regional Manager, National Insurance Co. Ltd., Bengaluru v/s Latha & Others


Company & Directors' Information:- I.N. INSURANCE COMPANY PRIVATE LIMITED [Strike Off] CIN = U67200DL1994PTC062554

    M.F.A. No. 850 of 2015 (MV)

    Decided On, 02 March 2020

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE ALOK ARADHE & THE HONOURABLE MR. JUSTICE M. NAGAPRASANNA

    For the Petitioner: A.N. Krishna Swamy, Advocate. For the Respondents: R1 - R5, N. Vivek, Y.R. Sadasiva Reddy & Assts., R6, G. Shankar Goud, Advocates.



Judgment Text


Alok Aradhe, J.

1. This appeal is filed by the insurance company being aggrieved by the judgment and award dated 27.10.2014 passed by the II Additional Senior Civil Judge and Additional MACt - V, Chitradurga, wherein the claims petition preferred by the claimants - respondents has been allowed and held that the claimants are entitled to a sum of Rs. 33,77,000/- as compensation.

2. Parties will be referred to as per their ranking before the Claims Tribunal.

3. The facts giving rise to filing of the appeal briefly stated are that, on 29.04.2012, the deceased Kumaraswamy after completion of his personal work at Chitradurga was returning to his village at Belagatta and he was proceeding as a pillion rider on the motorcycle bearing registration No.KA-16/V-4005, which was ridden by one Somashekharappa. At about 5.00 p.m., when the said motorcycle reached near Gonur Kereyeri, the rider of the motorcycle, Somashekharappa lost his control over the motorcycle and toppled down the same on its left side. As a result of the aforesaid impact, the accident occurred. The pillion rider - Kumarawamy and the rider of the motorcycle fell down and sustained simple and grievous injuries. The said Kumaraswamy sustained grievous head injuries and other injuries on other parts of the body. He was immediately hospitalised but he succumbed to the injuries later on. The claimants filed a claim petition under section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') on the ground that the deceased, at the time of accident was aged about 41 years and was employed as Teacher in Morarji Desai High School, Chitradurga and was drawing a salary of Rs. 25,000/- p.m. The claimants accordingly claimed compensation to the tune of Rs. 50,70,000/- along with the interest at the rate of 12% p.a.

4. After service of notice, respondent Nos.1 and 2 appeared through their respective counsel. Respondent No.1 inter alia denied the age and occupation of the deceased. It was also denied that the claimants are not the legal heirs of the deceased Kumaraswamy. It was pleaded that the accident took place on account of rash and negligent driving of Kumaraswamy only and not by the rider of the motorcycle. It was also pleaded that on the date of the accident, the rider of the motorcycle was having valid and effective driving license. The insurance policy was in force and the liability of paying the compensation was on the insurance company. Respondent No.2 filed the statement of objections in which, inter alia it was pleaded that the motorcycle in question was not at all involved in the accident. The claimants, police, rider and owner of the motorcycle have colluded with each other in order to get compensation. It was also pleaded that the accident took place on account of the rash and negligent driving of the rider of the motorcycle. It is also pleaded that the compensation claimed by the claimants is exorbitant and excessive.

5. From the aforesaid facts and circumstances of the case, the Claims Tribunal framed issues and recorded the evidence of the witnesses.

6. The claimants, in order to prove their case, examined three witnesses, namely, one Latha - the wife of the deceased Kumaraswamy as PW.1 and two witnesses namely, Papesh and K.A.Nagaraja Reddy as PWs.2 and 3, who are the eyewitnesses to the incident and got marked 11 documents namely Exs.P1 to P11. The respondent No.2 examined the Administrative Officer as RW.1 and produced 8 documents as Exs.R.1 to R.8, which were marked as exhibits.

7. The Claims Tribunal on the basis of the evidence on record, held that the accident took place on account of rash and negligent driving of the rider of the offending vehicle in which the deceased sustained injuries and succumbed to the injuries. It is further held that the claimants are entitled to the compensation to the tune of Rs. 33,77,000/- along with interest at the rate of 7.5% p.a. In the aforesaid factual background, this appeal has been filed.

8. Learned counsel for the appellant - insurance company submitted that the rider of the motorcycle was not examined by the claimant and the rider of the motorcycle has not sustained any injuries in the accident. It is further submitted that in the criminal case, PW.3 has given altogether a different version of the accident. It was also urged that the deceased was not a pillion rider but was himself driving the vehicle. The amount of compensation is on the higher side and the rate of interest deserves to be reduced to 6% p.m.

9. On the other hand, learned counsel for respondent Nos.1 to 6 supported the judgment and award of the Claims Tribunal.

10. We have considered the submissions made by the learned counsel for the parties and have perused the records.

11. The claimants have examined PW.3 - K.A.Nagaraja Readdy, who was an eyewitness to the accident. The aforesaid witness in the examination in chief has stated that he has witnessed the accident and the deceased was driving as a pillion rider and the accident took place on account of rash and negligent driving of the driver of the motorcycle. Further, nothing could be elicited from him during the course of cross-examination.

12. The Insurance Company admittedly has not lead any evidence to prove the facts that the deceased himself was driving the motorcycle at the time of the accident. The proceedings under the Act has to be decided on the preponderance of probabilities and therefore, the Claims Tribunal has rightly held that the accident took place on account of rash and negligent driving of the driver of the motorcycle and the deceased was travelling as a pillion rider. Therefore, we affirm the reasons recorded by the Claims Tribunal.

13. Now, we may advert to the quantum of compensation awarded to the claimants. The deceased was aged 41 years at the time of accident. He was drawing a salary of Rs. 19,394/- p.m. and out of the aforesaid amount, Rs. 150/- is deducted towards professional tax and therefore, the net salary comes to Rs. 19,244/- p.m. As per the law laid down by the Hon'ble Supreme Court in the case of National Insurance Company Limited v. Pranay Sethi reported in AIR 2017 SC 5157, 30% of the amount is required to be added towards future prospects. Thus, the monthly income of the deceased would come to Rs. 25,017/- and if th is deducted on account of the personal expenses of the deceased, the income of the deceased is assessed at Rs. 18,762/- p.m. and the multiplier '14' is rightly adopted by the Claims Tribunal as the age of the deceased was 41 years at the time of the accident. Therefore, the Claims Tribunal held that the claimants are entitled to a sum of Rs. 31,52,000/- on account of loss of dependency.

14. Further, the claimants being the widow, children and parents of the deceased, in view of the decision of the Hon'ble Supreme Court in the case of Magma General Insurance Co. Ltd. v. Nanu Ram reported in 2018 (18) SCC 130, they are entitled for Rs. 40,000/- each towards loss of love and

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affection. Thus, in all, the claimants are entitled to Rs. 2,00,000/- towards loss of consortium and loss of love and affection. In view of the law laid down by the Hon'ble Supreme Court in the case of Pranay Sethi (supra), they are entitled to a sum of Rs. 30,000/- under loss of estate and funeral expenses. In all, the claimants are entitled to Rs. 33,82,000/- as compensation and the enhanced amount of compensation shall carry interest at the rate of 6% p.a. from the date of filing of the petition till the payment is made. 15. The amount in deposit shall be transmitted to the Claims Tribunal forthwith for disbursement to the claimants. To the aforesaid extent, the judgment of the Claims Tribunal is modified. Accordingly, the appeals are disposed of.
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