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2012 DIGILAW 283 (KAR)

Oriental Insurance Co. Ltd v. Premakka

2012-03-22

K.BHAKTHAVATSALA, K.GOVINDARAJULU

body2012
Judgment : 1. These two Appeals are directed against one and the same judgment and award dated 24.4.2006 made in MVC No. 3568/2004 on the file of Court of small Causes/Additional MACT at Bangalore City. 2. In other words, appeal in MFA No. 10749/2006 has been filed by the Insurance Company praying that the impugned judgment and Award passed against the Insurance Company may be set aside. Appeal in MFA No. 10737/2006 has been filed by the claimants, viz., legal representatives of the deceased Murthappa alias Murthy, praying to award compensation as claimed in the claim petition in MVC No. 3568/2004 by modifying the impugned judgment and Award dated 24.04.2006. 3. Since these two appeals are directed against one and the same judgment, we have heard common arguments and proceeding to dispose of these Appeals by this common judgment. 4. Learned Counsel appearing for the Insurance Company submits: i) that the claimants are residents of Reddihalli village Challakere Taluk, Chitradurga District and the motor accident occurred within the jurisdiction of Ainmangala Police Station, Chitradurga District and therefore the claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation before MACT at Bangalore, was not maintainable; ii) that the Tribunal erred in saddling the liability of the owner on the Insurance Company though the deceased was a passenger in a goods vehicle and the insurance policy does not cover the risk of the deceased; iii) that the Tribunal erred in awarding exorbitant compensation. 5. He has cited the following decisions: (i) Unreported decision dated 21.10.2011 made in W P No. 27707/2009 and connected cases (THE NEW INDIA ASSURANCE CO. LTD., VERSUS YOGESH AND ANOTHER): (ii) ILR 2011 KAR 3513 (GOPAL AND OTHERS VERSUS SHIVASHARANAPPA AND OTHERS): (iii) Judgment dated 19.7.2011 made in MFA No.8052/2007 a/w MFA No. 8053/2007 (M/S ORIENTAL INSURANCE COMPANY LTD. VERSUS MOOKAMBIKA AND ANOTHER). 6. Learned counsel for the claimants submits that there is no merit in the appeal filed by the insurance company. LTD., VERSUS YOGESH AND ANOTHER): (ii) ILR 2011 KAR 3513 (GOPAL AND OTHERS VERSUS SHIVASHARANAPPA AND OTHERS): (iii) Judgment dated 19.7.2011 made in MFA No.8052/2007 a/w MFA No. 8053/2007 (M/S ORIENTAL INSURANCE COMPANY LTD. VERSUS MOOKAMBIKA AND ANOTHER). 6. Learned counsel for the claimants submits that there is no merit in the appeal filed by the insurance company. He submits: (i) that the Insurance Company did not raise objection that the Tribunal at Bangalore had no jurisdiction to entertain the claim petition; (ii) that since the Insurance Company carries on business within the local limits of jurisdiction of MACT at Bangalore, it cannot be said that MACT/Additional MACT at Bangalore City, had no jurisdiction to entertain the claim petition filed under Section 166 of the Motor Vehicles Act, 1988; (iii) that the deceased Murthappa alias Murthy was aged about 35 years, doing agriculture and also rearing sheep and thereby earning Rs. 80,000/-p.a., and at the time of accident, the deceased was taking sheep/goat from Reddihalli to Hiriyur Santhe; the accident occurred due to rash and negligent driving of the lorry and as a result of which, 10 persons died, 15 others sustained injuries and as per spot panchanama at Ex.P4, all the 29 goats and 20 sheep died and therefore, the deceased was traveling in the lorry as owner of goods and not as a passenger, and the Tribunal has not awarded adequate compensation. 7. in view of the arguments addressed by the learned counsels for the parties, we formulate the following points for our consideration: (i) Whether the Motor Accidents Claims Tribunal at Bangalore, had the jurisdiction to entertain the claim petition filed under Section 166 of the Motor Vehicles Act, 1988? (ii) Whether the deceased Murthappa @ Murthy was traveling in the lorry bearing registration No. AP-02/P-3917 as owner of goods? (iii) If answer to the above point is in the affirmative, whether the Insurance Company is liable to indemnify the owner of the lorry? (iv) Whether the Compensation awarded by the tribunal is in-adequate/excess? Point No. (i) 8. So as to answer Point No. (i), it is necessary to refer to Section 166 of Motor Vehicles Act, 1988. (iii) If answer to the above point is in the affirmative, whether the Insurance Company is liable to indemnify the owner of the lorry? (iv) Whether the Compensation awarded by the tribunal is in-adequate/excess? Point No. (i) 8. So as to answer Point No. (i), it is necessary to refer to Section 166 of Motor Vehicles Act, 1988. According to Sub-Section (2) of Section 166, every application under sub-Section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides (emphasis supplied by us). 9. In the instant case, the claimants are residing within the jurisdiction of Chitradurga and the accident also occurred within the jurisdiction of the Chitradurga District. Therefore, it is contended that the claim petition filed before the court of Small Causes/Additional MACT at Bangalore city, was not maintainable. The Insurance Company has not questioned the jurisdiction of the Claims Tribunal at Bangalore, though it filed statement of objections. Admittedly, the vehicle in question was covered by insurance for the period from 18.3.2004 to 17.3.2005. Section 166 of the Motor Vehicles Act, 1988, gives option to the claimants to choose Claims Tribunal and even on the basis of residence of defendant. The insurance policy in question was issued by the Oriental Insurance Company by its Branch office at Hindupur. Since, the Oriental Insurance Company carries on business in Bangalore and within the jurisdiction of Court of Small causes/MACT, the contention raised by the Insurance Company as to the jurisdiction of the Tribunal, holds no water. 10. Further, it is also useful to refer to Section 21 of CPC Sub-Section (1) of Section 21 of CPC is excerpted as under: “(1) No objection a to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.” 11. Even, in view of Section 21 of CPC, the contention raised by the Insurance Company questioning the jurisdiction of the Claims Tribunal at Bangalore, in this Appeal is not maintainable. In view of the above, un-reported decision dated 21.10.2011 made in W.P No. 27707/2009 and connected cases (THE NEW INDIA ASSURANCE CO. LTD., Versus YOGESH AND ANOTHER) made by learned Single Judge of court is of no avail to the case of the appellant/Insurance Company. Accordingly, point No. (i) is answered in the affirmative in favour of the claimants. Point No.(ii) and (iii) 12. We take up point Nos. (ii) and (iii) together for discussion as the material on these points are interlinked. 13. According to spot panchanama (Ex.P4), all the 29 goats and 20 sheep being carried in the lorry died in the accident. At that time, the deceased-Murthappa @ Murty was taking goats/sheep in the lorry for the purpose of sale in Sandi Bazar. Thus, the deceased was traveling in the lorry as owner of goods and not as a passenger. The contention of the Insurance Company that the deceased was traveling as a passenger in the goods vehicle is without any basis and contrary to Ex.P4. Since the deceased-Murthappa @ murthy was traveling as owner of goods, the claimants are entitled to claim compensation from the Insurance Company. In other words, the Insurance Company is liable to indemnify the owner of the lorry in question. Accordingly, point Nos. (ii) and (iii) are also answered in the affirmative in favour of the claimants. 14. The decisions cited by the learned Counsel for the Insurance Company on the point of liability are not applicable to the facts and circumstances of the case. Point No. (iv) 15. It is the case of the claimants viz., wife, two minor daughters and two minor sons and parents of the deceased-Murthappa @ Murthy, aged about 35 years, that he was earning Rs. 80,000/-per annum from agriculture and also rearing sheep/goats. The accident occurred on 8.5.2004. Keeping in view the large number of family and the deceased was an agriculturist and also doing business in sheep, his income can be safely fixed at Rs. 6,000/-per month. 80,000/-per annum from agriculture and also rearing sheep/goats. The accident occurred on 8.5.2004. Keeping in view the large number of family and the deceased was an agriculturist and also doing business in sheep, his income can be safely fixed at Rs. 6,000/-per month. Since the deceased had 7 dependent members, according to the ratio laid down in Sarla Verma & Others versus Delhi Transport Corporation & Another (reported in 2009 (6) SCC Page-121),1/5th of the income shall be deducted towards personal expenses of the deceased. Thus, if asum of Rs 1200 is deducted towards personal expenses of the deceased, loss of dependency of the claimants comes to Rs. 4,800/-per month. Since the deceased was 35 years old, multiplier ‘16’ is applicable. 16. The Tribunal has fixed loss of dependency at Rs. 2,400/-per month, applied multiplier ‘15’ and awarded compensation in favour of the claimants as under: (i) Loss of dependency (in Rs) (ii) Transportation of dead body (Rs. 24,000/-x 15) 3,60,000.00 and funeral expenses 5,000.00 (iii) Loss of estate 10,000.00 (iv) Loss of consortium 10,000.00 3,85,000.00 17. In our view, the claimants are entitled for compensation as under: (i) Loss of dependency (Rs. 4,800/-x 16 x 12) 9,21,000.00 (ii) Loss of consortium 10,000.00 (iii) Loss of love and affection 10,000.00 (iv) Loss of estate 10,000.00 (v) Transportation of dead body and funeral expenses 10,000.00 Total 9,61,000.00 Less: Compensation awarded by The Tribunal 3,85,000.00 Balance 5,76,000.00 18. The claimants are entitled for enhancement of compensation, as stated above. Accordingly, the point No. (iv) is answered in favour of the claimants/appellants. 19. In the result, (i) Appeal in MFA No. 10749/2006 filed by the Insurance Company fails and the same is hereby dismissed with costs; (ii) Appeal in MFA No. 10737/2006 filed by the claimants is partly allowed, holding that the appellants/claimants are entitled for compensation of Rs. 9,61,000/-as against Rs. 3,85,000/-awarded by the Tribunal, along with costs and interest at the rate of 6% per annum from the date of petition till realisation, as against the owner and insurer of the lorry in question and whose liability is joint and several. (iii) The entire compensation along with costs and interest shall be apportioned among the claimants in the ratio 8:2:2:2:2:2:2. 3,85,000/-awarded by the Tribunal, along with costs and interest at the rate of 6% per annum from the date of petition till realisation, as against the owner and insurer of the lorry in question and whose liability is joint and several. (iii) The entire compensation along with costs and interest shall be apportioned among the claimants in the ratio 8:2:2:2:2:2:2. The share amount of the minor claimants shall be kept in Fixed Deposit until they attain the age of majority and claimant No.1, being mother of the minor claimants, is entitled to draw periodical interest that accrues on the deposit. (iv) Accordingly, the impugned judgment and award are modified. (v) The Oriental Insurance Company is directed to deposit the entire compensation amount along with costs and interest with the Tribunal within 3 months from today. (vi) The amount in deposit in MFA No. 10737/2006 shall be transmitted to the Tribunal for disbursement.