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New India Assurance Co. Ltd. & Others v/s Yuvaraj & Others

    MFA No. 32193 of 2012 (MV) c/w MFA. CROB. No. 200015 of 2014 (MV)

    Decided On, 13 August 2021

    At, High Court of Karnataka


    For the Appearing Parties: Uday P. Honguntikar, V.D. Amrutha, Ratna N. Shivayogimath, Advocates.

Judgment Text

1. The appeal in MFA. No. 32193/2012 is filed by the insurer under Section 173 (1) of the Motor Vehicle Act, 1988, challenging the quantum of compensation awarded by the MACT No. XII, Bijapur in terms of the judgment and award dated 26.3.2012 in MVC. No. 399/2010.

2. The claim petition discloses that the claimants are the parents of the deceased-Rohan Bhosale who was aged 19 years and was working as a Computer Programmer and DTP Designer and earning Rs. 6,000 per month. It is stated that on 1.9.2009 when Rohan was going to gymnasium on his cycle, a vehicle bearing Reg. No. MH-13/B-5102, being driven by its driver in a rash and negligent manner, ran over him and fled away from the spot. Rohan sustained grievous injuries and died on the spot. The claimants therefore filed a claim petition under Section 166 of the Motor Vehicle Act, claiming compensation at Rs. 13,56,000.

3. The claim petition was not contested by the owner. The insurer contested the claim petition and generally denied the averments of the claim petition. It also denied the avocation of the deceased and denied that the accident occurred due to the rash and negligent driving of the driver of offending vehicle. It contended that the accident in question occurred in Solapur and the claimants were ordinary residents of Solapur Maharastra State. The insurance policy was not issued at Bijapur and therefore, the claimants were not entitled to file claim petition at Bijapur. Based on these rival contentions, the claim petition was set down for trial.

4. The clamant No. 1 was examined as PW.1. The claimants examined another witnesses as PW. 2 and they marked documents as Exs.P.1 to 12. The insurer examined its official as RW.1 and marked documents as Exs.R.1 to R3.

5. Based on the oral and documentary evidence, the Tribunal held that the accident was caused by the rash and negligent driving by the driver of the offending vehicle which was owned by the respondents No. 3 and 4 and insured by the appellant herein. The Tribunal also noticed from the postmortem report at Ex.P.7 that the age of the deceased is 15 years. However, as per the complaint at Ex.P.1, the age of the deceased was mentioned as 16 years. Therefore, the Tribunal assessed the age of the deceased at 16 years and having regard to the fact that deceased was a minor, and in view of the decision of the Hon’ble Supreme Court in the case of Sarala Verma considered his notional income at Rs. 15,000 per annum applying proper multiplier at 18 and awarded Rs. 2,70,000 towards loss of dependency. However, the Tribunal has awarded a sum of Rs. 10,000 towards loss of consortium, Rs. 20,000 towards loss of expectancy of life and Rs. 5,000 towards funeral expenses.

6. Being aggrieved by the quantum of compensation awarded by the Tribunal, the insurer has filed an appeal in MFA. No. 32193/2012. Later the claimants have filed cross-objection in MFA. Crob. No. 200015/2014 seeking enhancement of the compensation.

7. The learned Counsel for the insurer contended that the Tribunal ought to have deducted 50% of the income towards personal expenses of the deceased. It also contended that the driver of the offending vehicle was acquitted in the criminal case and therefore, the accident did not occur due to his fault.

8. Per contra, the learned Counsel for the claimants contended that the deceased was employed and was aged more than 18 years and thus the Tribunal committed an error in accepting the notional income of a sum of Rs. 15,000. He contended that the deceased was earning Rs. 6,000 per month and he being the only son of the claimants, they had lost a vital bread earner in the family.

9. I have given my anxious consideration to the arguments advanced by the parties and also perused the records of the Tribunal. The evidence of PW.2, who incidentally was also one of the witness in the criminal case, clearly point out to the fact that the driver of the offending vehicle was negligent and responsible for the accident. There is no evidence whatsoever adduced by the insurer, contrary to the evidence of PW.2. Therefore, the accident occurred due to the rash and negligent driving by the driver of the offending vehicle. The contention that there was no damages found on the offending vehicle, as per the Motor Vehicle Inspector’s Report was easily countered by the fact that the deceased was riding the cycle and therefore, it is obvious that no damages could be found on the offending vehicle.

10. Insofar as the claim for compensation is concerned, there is no material placed by the claimants to establish that the deceased was aged more than 18 years or that the deceased was employed and earning Rs. 6,000 per month. The only available evidence to determine the age of the deceased is the postmortem report, which indicates that the deceased was aged 15 years. Therefore, it has to be construed that the deceased is a minor as on the date of the accident. The Tribunal has therefore, applied the notional income as per the judgment of the Apex Court in the case of Sarala Verma. However, subsequent to judgment of the Hon’ble Supreme Court in the case of Sarla Verma, the Apex Court in the case of Kishan Gopal and Another v. Lala and Other, reported in III (2013) ACC 878 (SC)=X (2014) SLT 458=(2014) 1 SCC 244, dealing with a case of compensation for the death of a minor in a road accident held, having regard to the age of the parents, the compensation at Rs. 4,50,000 towards loss of dependency and in addition at Rs. 50,000 towards loss of love and affection would be a just com

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pensation. Therefore, it is appropriate that the said principle is applied in the present case too and the compensation is reworked accordingly. 11. In view of the above, the appeal filed the insurer lacks merit and the same is dismissed. The cross-objection filed by the claimants is allowed in part and the compensation is enhanced from Rs. 3,5,000 to Rs. 5,00,000 payable by the insurer along with interest at the rate of 9% p.a. from the date of accident till its realization. The amount deposited by the insurer shall be transmitted to the Tribunal for necessary orders. Ordered accordingly.