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2009 DIGILAW 858 (KAR)

Regional Manager, United India Insurance Company Limited, Bangalore v. Bibi Jan

2009-11-16

A.N.VENUGOPALA GOWDA

body2009
JUDGMENT : There is delay of 146 days in filing the appeal. I.A. No. 1 of 2005 is for condonation of delay. Respondents have not filed objections. In the circumstances, delay in filing is condoned and the matter is heard for final disposal. 2. Respondents 1 to 7 had instituted a claim petition under Section 166 of the Motor Vehicles Act, 1988 (‘Act’ for short), in Motor Accident Claims Tribunal at Bangalore contending that, on 19-6-1998, one Babu Khan alias Babu was traveling along with full load of cattle from Gangavathi to Bangalore in lorry bearing No. KA-04/692 and the said lorry dashed against another lorry which was coming form the opposite direction and thereafter dashed against a parapet wall of the bridge and fell into a dry tank upside down resulting in death of Babu Khan alias Babu and death and injuries to the cattle. The claim petition was contested by the respondents therein. Issues were framed directing the petitioners to prove whether accident occurred on 19-6-1998 due to rash and negligent driving of lorry bearing No. KA-04/692 and that Babu Khan alias Babu having been sustained injuries as a result of the accident, passed away and the petitioners/claimants are entitled to the compensation. Considering the evidence on record, the petition was allowed in part. While awarding the amount, the Tribunal has awarded a sum of Rs. 3,85,000/- for death of Babu Khan alias Babu and a sum of Rs. 95,000/- towards the death of 19 cattle at Rs. 5,000/- per cattle and in respect of injuries to 10 cattle at the rate of Rs. 3,000/- per cattle amounting to Rs. 30,000/-. This appeal is by the insure of the lorry KA-04/692. 3. Sri. A. N. Krishnaswamy, learned Counsel for the the appellant raised two contentions. Firstly, he contended that, the policy of insurance issued under Section 147 of the Act is not required to cover the risk of goods carried in the goods carriage as the risk of owner of goods alone is required to be covered and not the risk of goods carried in the vehicle. In that view of the matter, awarding of Rs. 95,000/- for the death of 19 cattle and Rs. In that view of the matter, awarding of Rs. 95,000/- for the death of 19 cattle and Rs. 30,000/- for injuries to the other cattle is illegal Secondly he contended that, the Tribunal has committed an error in awarding interest at 8 % p. a. much against the decision of this Court in the case of A. Manavalagan v. A. Krishnamurthy and Others 2004(5) Kar. L.J. 321 (DB): ILR 2004 Kar. 3268. Learned Counsel submitted that the amount awarded by the Tribunal in terms of the impugned award is highly excessive, at least by a sum of Rs. 2,75,000/- and hence interference is called for. 4. Having heard the learned Counsel appearing for the appellant and after perusing the certified copies of the record of the Trial Court made available for my perusal, I do not find there is excess award as such by the Tribunal. It is only a question of the amount awarded being properly apportioned under different heads. No doubt the insurer is not required to cover the risk of goods carried in a goods carriage as the risk of owner of goods alone is required to be covered under Section 147 of the Act and not the risk of the goods carried in the vehicle. However, in the instant case, the Tribunal has correctly determined the just compensation amount payable. If the just compensation is assessed, there is no excess award. 5. The accident in question is not in dispute. Death of Babu Khan alias Babu and also the death of cattle and injuries to other cattle, are not in dispute. The documentary evidence on record establishes the fact of the accident having taken place on 19-6-1998 involving the vehicle in question and death of Babu Khan alias Babu as well as the cattle. the finding with regard to rash and negligent driving of the vehicle and the death of said person and cattle and injuries to other cattle, is not under challenge. 6. P. Ws 1 and 2 were examined on behalf of the petitioners and Exs. P. 1 P. 15 were marked. On behalf of the respondents, R. Ws. 1 and 2 were examined and Exs. R. 1 and R. 8 were marked. 7. P. W. 1 is the wife and petitioners 2 to 5 are the children and petitioners 6 and 7 are the parents respectively of deceased Babu Khan alias Babu. P. 1 P. 15 were marked. On behalf of the respondents, R. Ws. 1 and 2 were examined and Exs. R. 1 and R. 8 were marked. 7. P. W. 1 is the wife and petitioners 2 to 5 are the children and petitioners 6 and 7 are the parents respectively of deceased Babu Khan alias Babu. The fact that the deceased was doing business in cattle, is not under challenge and as such, his income taken at Rs. 3,000/- p. m. cannot be found fault with. Considering the fact that the deceased was the sole earning member and was maintaining 7 other dependents i.e., petitioners, the deduction of income towards the personal income of the deceased at 1/3rd is incorrect. Even the age of the deceased being 28 years as is evident from Ex. P. 6, the multiplier that is applicable in terms of the decision in the case of Smt. Sarla Verma and Others v. Delhi Transport Corporation and Another 2009 Air SCW 4992 is ‘17’. The Tribunal has applied the wrong multiplier of ‘16’. By applying the unit method, the loss of income to the family is Rs. 2,400/- p. m. Hence, the loss of dependency comes to Rs. 4, 89,600/-(Rs. 2,400 X 12 X17= 4,89,600/-). 8. In terms of the decision in Smt. Sarla Verma’s case, 10% of the amount has to be awarded under the conventional heads. Taking into consideration the fact that, the petitioners 2 to 7 have lost love and affection of the deceased, it is a case wherein under the conventional heads a sum of Rs. 60, 000/- is required to be awarded. In the said view of the matter, the amount awarded by the Tribunal cannot be termed as excessive. 9. With regard to the contention regarding rate of interest is concerned, this Court has awarded 6% interest in the case of A. Manavalagan taking judicial notice of the fact that rate of interest paid by the Nationalised Banks on F. Ds. For one year which was 9 % p.a. when Smt. Kaushnuma Begum and Others V. New India Assurance Company Limited and Others 2004(5) Kar.L.J. 321 (DB): ILR 2004 Kar. For one year which was 9 % p.a. when Smt. Kaushnuma Begum and Others V. New India Assurance Company Limited and Others 2004(5) Kar.L.J. 321 (DB): ILR 2004 Kar. 3268, was decided, had been reduced to 6% Considering the facts and circumstances of the case and the date on which the accident has occurred and the rate of interest at that point of time being between 8 to 9%, the awarding of interest at 8% by the Tribunal is not illegal. Consequently, the appeal is devoid of merit and hence, stands dismissed.