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Karnataka High Court · body

2013 DIGILAW 725 (KAR)

B. R. Suma @ Radha v. Yamanoor Sab Katarki

2013-06-25

B.MANOHAR, N.K.PATIL

body2013
Judgment 1. Both these appeals by the claimants of the deceased B.H. Ramesh and Mahantesh Naik are directed against the impugned common judgment and award dated 29th February, 2012 passed in MVC No.359/2010 and M.V.C.No.358/2010, by Member, Motor Accident Claims Tribunal and District And Sessions Judge Court, Koppal, (for short, 'Tribunal' ), awarding compensation of a sum of Rs.29,23,726/- and Rs. 27,31,027/- under different heads, with 7% interest per annum, from the date of petition till the date of realization, on the ground that, the said compensation awarded by Tribunal is inadequate and requires enhancement. 2. The facts in brief are that, the claimants in M.F.A.No.23255/2012 (M.V.C.No.359/2010) are the wife, children and mother of the deceased B.H. Ramesh and claimants in M.F.A.No.23252/2012 (M.V.C. No. 358/2010) are the wife and children of the deceased Mahantesh Naik. The claimants of both the deceased persons filed separate claim petitions under Section 166 of the Motor Vehicles Act, contending that at about 6:30 P.M, on 17-01-2010, when the deceased persons namely B.H. Ramesh and Mahantesh Naik were returning from Dharwad and going towards Hospet, after attending the meeting at Dharwad along with their colleague in a Scorpio Car bearing No.KA-35/M-5856, near Halageri village of Koppal Taluk, on NH-63, they met with the accident due to rash and negligent driving by the driver of the said Scorpio Car and due to the impact, both the deceased persons sustained grievous head injuries and succumbed to the same. 3. On account of the death of the deceased persons, the claimants filed separate claim petitions before the Tribunal, seeking compensation of a sum of Rs.50.47 lakhs and Rs.55.57 lakhs respectively against the driver, owner and Insurer of the offending Scorpio Car. The said claim petitions had come up for consideration before the Tribunal on 29th February, 2011. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed both the claim petitions in part, awarding a sum of Rs.29,23,726/- and Rs.27,31,027/-under different heads, with 7% interest per annum, from the date of petition till the date of realization, by assessing the income of the deceased persons as per their salary Certificates, deducting towards their personal expenses and adopting the suitable multiplier as per the age of the deceased persons in the light of the decision of the Hon'ble Supreme Court in Sarla Verma's case ( 2009 ACJ 1298 ). Being dissatisfied with the quantum of compensation awarded by Tribunal, the claimants of both the deceased persons have filed these two appeals before this Court, seeking enhancement of compensation. 4. We have heard learned counsel appearing for the claimants in both the appeals and learned counsel appearing for Insurer, for considerable length of time. 5. The principal submission canvassed by the learned counsel appearing for claimants is that the Tribunal grossly erred in applying the multiplier of 13' in M.V.C.No.358/2010, when in fact, it ought to have adopted multiplier of 15' as the deceased Mahantesh Naik was aged about 40 years as on the date of accident. Further, he submitted that the Tribunal erred in not awarding reasonable compensation towards the conventional heads, for the reason that, the claimants are the wife, children and mother (M.V.C.No.359/2010) and wife, and children in (M.V.C.No.358/2010). The wives have lost their respective life partners at young age, the children have lost the love and affection, guidance, support and inspiration from their father and the aged mother has lost the social, financial and moral support from her son and she is deprived of seeing the bright future of her son. He further submits that, on account of the untimely death of the deceased persons, the claimants in both the appeals are put to great financial difficulties. Therefore, as per the decision of the Hon'ble Apex Court in Sarla Verma's case ( 2009 ACJ 1298 ), the claimants are entitled to Rs.45,000/- under the said heads. 6. Further, he submitted that the Tribunal is also not justified in directing the Insurer of the offending vehicle to indemnify only a sum of Rs.1,00,000/- with 7% interest per annum, from the date of petition till the date of realization for the reason that the policy is a package policy and it covers the risk of occupants/inmates of the Car and therefore, it ought to have saddled the entire liability on the Insurer of the offending vehicle instead of only a sum of Rs.1,00,000/-. Therefore, he vehemently submitted that reasonable enhancement may be made in both the appeals and the entire liability be saddled on the Insurer, by modifying the impugned judgment and award passed by Tribunal. 7. Therefore, he vehemently submitted that reasonable enhancement may be made in both the appeals and the entire liability be saddled on the Insurer, by modifying the impugned judgment and award passed by Tribunal. 7. As against this, Shri.Ravi V. Hosmani, learned counsel appearing for the respondents 2 and 4, owners of the offending vehicle sought to justify the impugned judgment and award, stating that the Tribunal grossly erred in passing the impugned judgment and award, resulting in serious miscarriage of justice in directing the Insurer to indemnify only a sum of Rs.1,00,000/- with interest at 7% per annum, without going through the terms and conditions of the policy produced at Annexure R1 by the Insurance Company. He submits that the Insurance policy at Ex.R1 is a package policy, which covers the risk of the occupants/inmates of a private Car and under such circumstances, the Insurer is liable to indemnify the entire compensation in the light of the circular issued by the Insurance Regulatory and Development Authority dated 16th November 2009 bearing No.IRDA/NL/CIR/F & U/073/11/2009, issued by the Executive Director of the Authority with copies marked to all the CEOs of the various Insurance Companies, clarifying the position. Therefore, he submits that the said direction issued to the Insurer to indemnify only a sum of Rs.1,00,000/- with 7% interest is liable to be set aside and the same is liable to be fastened on the Insurer, by modifying the impugned judgment and award passed by Tribunal. 8. After hearing learned counsel for the parties, after careful perusal of the judgment and award passed by the Tribunal and after going through the original records made available before us, the points that arise for our consideration in these appeals are: I] Whether the Tribunal is justified in directing the Insurer to deposit only Rs.1,00,000/- with 7% instead of fastening the entire compensation? II] Whether the quantum of compensation awarded by Tribunal is just and reasonable?" Re-Point I]: The occurrence of accident and the resultant death of the deceased persons, viz. B.H. Ramesh and Mahantesh Naik on account of the head injuries sustained are not in dispute. Further, it is not in dispute that, Ex.R1, Insurance Policy, is a package police (comprehensive policy) which covers the risk of the third party and the inmates of the private Car. In the present case, the deceased persons, viz. B.H. Ramesh and Mahantesh Naik on account of the head injuries sustained are not in dispute. Further, it is not in dispute that, Ex.R1, Insurance Policy, is a package police (comprehensive policy) which covers the risk of the third party and the inmates of the private Car. In the present case, the deceased persons, viz. B.H. Ramesh and Mahantesh Naik were the inmates of the private car and they succumbed to the injuries sustained in the road traffic accident. Therefore, in the light of the terms and conditions of the said package policy and in the light of the well settled law laid down by the Hon'ble Apex Court and this Court in catena of decisions, and also as per the circular dated 16th November 2009 bearing No. IRDA/NL/CIR/F&U/073/11/2009, issued by the Executive Director of the Insurance Regulatory and Development Authority, with copies marked to all the CEOs of the various Insurance Companies, it is crystal clear that, the Insurance Company is liable to indemnify the award amount if it is a package policy by the owner of a private Car and the Insurer is not supposed to take a different stand than the one in the terms and conditions of the said package policy. 9. Further, it is significant to note, as rightly pointed out by the learned counsel appearing for claimants that in respect of another case, arising out of the same accident, filed by the claimant, one K.P. Umapathy, in M.V.C.No.921/2011, on the file of the Motor Accidents Claims Tribunal - IX, Bellary, the jurisdictional Tribunal has after due appreciation of the oral and documentary evidence available on file, has held that since the insurance policy is a comprehensive policy, it covers the risk of inmates of the private vehicle also including the third party risk and therefore, the Insurance Company is liable to pay the compensation along with future interest. The said judgment and award passed by the jurisdictional Tribunal has reached finality as the same has not been challenged by the Insurance Company and that the award amount has also been satisfied by the Insurer. This position is not disputed by the learned counsel appearing for Insurer. Therefore, the impugned judgment and award passed by Tribunal is liable to be modified, by fixing the liability jointly and severally on the driver, owner and the Insurer of the offending vehicle. This position is not disputed by the learned counsel appearing for Insurer. Therefore, the impugned judgment and award passed by Tribunal is liable to be modified, by fixing the liability jointly and severally on the driver, owner and the Insurer of the offending vehicle. It is not in dispute that the Insurance policy is a package policy (comprehensive) and it was very much in force as on the date of accident. Hence, the Insurance Company is liable to satisfy the entire award amount and the direction issued to the Insurance Company to deposit only a sum of Rs.1,00,000/- with 7% interest is also liable to be set aside and the entire compensation is liable to be fastened on the Insurer alone. Accordingly, we answer point No.1 in the negative and hold that the Tribunal is not justified in directing the Insurer to indemnify only a sum of Rs.1,00,000/- and the remaining compensation by the driver and owner of the offending vehicle. Re-Point II]: So far as the quantum of compensation awarded by Tribunal in both the appeals is concerned, it can be seen that the Tribunal, after critical evaluation of the oral and documentary evidence available on file and after relying upon the decision of the Hon'ble Supreme Court in the case of Sarla Verma and others Vs. Delhi Transport Corporation and another reported in 2009 ACJ 1298 , has awarded just and reasonable compensation of Rs.27,31,027/- on account of the death of deceased Mahantesh Naik and compensation of a sum of Rs.29,23,726/- on account of death of deceased B.H. Ramesh in the road traffic accident. The Tribunal has rightly taken the income of the deceased, by adopting proper multiplier and making necessary deduction towards the personal expenses of the deceased. Further, so far as future prospects of the deceased persons is concerned, the Tribunal has rightly added 30% towards future prospects of the deceased and arrived at just and reasonable income of the deceased. But, the Tribunal has failed to deduct income tax from the total income arrived at. However, the same need not be interfered with, for the reason that the compensation towards under the conventional heads is on the lower side and this is compensated in the compensation awarded towards loss of dependency. 10. But, the Tribunal has failed to deduct income tax from the total income arrived at. However, the same need not be interfered with, for the reason that the compensation towards under the conventional heads is on the lower side and this is compensated in the compensation awarded towards loss of dependency. 10. Accordingly, the specific submission of the learned counsel appearing for claimants that the compensation awarded by Tribunal towards conventional heads is hereby rejected, holding that the total compensation awarded by Tribunal for the untimely death of the deceased persons is just and reasonable and does not call for interference by this Court. Accordingly, we answer point No.2 in the affirmative and hold that the quantum of compensation awarded by Tribunal is just and reasonable and does not call for interference by this Court. 11. In the light of the facts and circumstances of the case, as stated above, the appeals filed by claimants is allowed in part. The impugned common judgment and award dated 29th February, 2012 passed in MVC No.359/2010 and M.V.C.No.358/2010, by Member, Motor Accident Claims Tribunal and District And Sessions Judge Court, Koppal, is hereby set aside only in so far as it relates to the direction issued to the Insurer to deposit only a sum of Rs.1,00,000/- and remaining award amount by the driver and owner of the offending vehicle. The liability is fixed jointly and severally on the driver, owner and Insurer of the offending vehicle. However, as per the terms and conditions of the package policy and the light of the discussion made above, the Insurance Company is directed to indemnify the entire award amount with 7% interest. Accordingly, the Insurer is directed to deposit the entire compensation with interest from the date of petition till the date of realization, excluding the amount if any already deposited by them, within a period of three weeks from the date of receipt of a copy of the judgment. Office to draw award, accordingly.