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2015 DIGILAW 942 (KAR)

National Insurance Company Limited v. G. Swetha

2015-08-18

N.K.PATIL, P.S.DINESH KUMAR

body2015
JUDGMENT : These two appeals respectively by the Insurer and the claimants are directed against the same judgment and award dated 4th May, 2012, passed in MVC No. 3774 of 2010, by the VII Additional Judge and Member, Motor Accident Claims Tribunal-3, Court of Small Causes, Bangalore (SCCH-3) (for short, 'Tribunal'). 2. While the Insurer has filed the appeal seeking to set aside the direction issued by Tribunal to indemnify the award and also quantum of compensation awarded on the ground that, the entire claim petition should have been dismissed for fraud and misrepresentation and that the compensation awarded is exorbitant and disproportionate to the income of the deceased; the claimants have filed the appeal seeking enhancement of compensation on the ground that, the compensation awarded by Tribunal in their favour is inadequate and needs to be enhanced. 3. The facts in brief are that, the claimant No. 1 is the wife, claimant No. 2 is the minor son and claimants Nos. 3 and 4 are the parents, and claimant No. 5 is the aunt of deceased V. Manjunath. They filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 contending that, at about 9:15 p.m. on 6-4-2010, when the deceased V. Manjunath alias Appi was traveling in the Scorpio vehicle bearing Registration No. KA-03/ME-6032 after offering Pooja at Boyakonda Gangamma Temple, near Madanappli in Andhra Pradesh and returning to Bangalore, on Bangalore-Kadapa Main Road, at Jodikothapalli Village, the driver of the said vehicle drove the same at a high speed, in a rash and negligent manner and lost control over the vehicle. Thus, the vehicle swerved towards right side and crashed with a head on collision to a big tree. Due to the impact, the vehicle was totally damaged and all the inmates of the said vehicle sustained grievous injuries. But, unfortunately, the deceased V. Manjunath alias Appi who was sitting in the front left side of the offending vehicle sustained fatal injuries and died on the spot. 4. It is the case of the claimants before the Tribunal that, the deceased was aged about 33 years and working as Real Estate Developer and also owner of BVR Browsing Center at Ramamurthynagar Main Road, Banaswadi, Bangalore, earning a sum of Rs.1,00,000/- per month and hale and healthy prior to the accident. 4. It is the case of the claimants before the Tribunal that, the deceased was aged about 33 years and working as Real Estate Developer and also owner of BVR Browsing Center at Ramamurthynagar Main Road, Banaswadi, Bangalore, earning a sum of Rs.1,00,000/- per month and hale and healthy prior to the accident. On account of the untimely death of the deceased the first claimant has lost her life partner, the minor child has lost the love and affection, inspiration and special guidance and the parents have lost social, financial and moral support and therefore, they have to be compensated reasonably. 5. On account of the death of the deceased, the claimants filed the claim petition before the Tribunal, seeking compensation of Rs.75.00 lakhs, against the Insurer and owner of the offending vehicle. The said claim petition had come up for consideration before the Tribunal on 4th May, 2012. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding a sum of Rs.8,38,000/-, under different heads, with 8% interest per annum, from the date of petition till the date of payment. Being aggrieved by the direction issued to indemnify the award amount and also the quantum of compensation, the Insurer is in appeal seeking to set aside the said direction and also to reduce the compensation substantially on the ground that it is exorbitant and disproportionate to the income of the deceased and being dissatisfied with the quantum of compensation awarded by the Tribunal, the claimants are in appeal before this Court, seeking substantial enhancement of compensation. 6. We have gone through the grounds urged in the memorandum of appeal filed by both Insurer and claimants and also the impugned judgment and award passed by Tribunal and heard the learned Counsel appearing for the Insurer and also the learned Counsel appearing for claimants, for considerable length of time. 7. 6. We have gone through the grounds urged in the memorandum of appeal filed by both Insurer and claimants and also the impugned judgment and award passed by Tribunal and heard the learned Counsel appearing for the Insurer and also the learned Counsel appearing for claimants, for considerable length of time. 7. Sri A.N. Krishna Swamy, learned Counsel appearing for Insurer vehemently submits that the Tribunal has grossly erred in allowing the claim petition in part, instead of dismissing the same for fraud and misrepresentation committed by the owner of the offending vehicle in wangling an award, for the reason that the driver of the vehicle lost control of the vehicle and went to the right side and dashed against a tamarind tree and a story was woven on improbable ground, which deserves to be set aside. To substantiate the said submission, he drew our attention to the oral evidence of R.W1 and also Ex. P8, spot Mahazar and Ex. P10, IMV Report and also Ex. R1, the certified copy of the MLC extract and submitted that all these aspects of the matter have not been properly looked into or considered or appreciated by Tribunal, on the contrary, it has proceeded to fasten the liability on the Insurer to indemnify the award. The said direction issued by Tribunal cannot be sustained and is liable to be set aside, at the threshold, by modifying the impugned judgment and award passed by Tribunal. Regarding quantum of compensation, he submitted that the Tribunal grossly erred in awarding higher compensation and the same is liable to be reduced substantially. 8. As against this, Sri L.S. Venkatakrishna, learned Counsel appearing for claimants, submits that, the Tribunal, after due consideration of the entire material available on file, including oral and documentary evidence and considering each and every aspect of the matter, has recorded a specific finding at paragraph 9 of its judgment, holding that, the contents of Ex. R1, MLC extract have not been proved by examining the author of that document nor has the Insurer produced the private investigator's report, according to which the accident occurred due to dashing of unknown lorry to offending vehicle and there is no fault on the part of the driver of the offending vehicle and that as per Ex. P4, there is no delay in lodging the complaint with regard to the accident. P4, there is no delay in lodging the complaint with regard to the accident. The said finding given by Tribunal is after critical evaluation of the oral and documentary evidence available on file. Hence, interference in the said finding of the Tribunal is unwarranted. To further substantiate his submission, he relied upon the judgment passed by the learned Single Judge dated 21st July, 20 in M.F.A. Nos. 8629 connected with M.F.A. Nos. 8630 of 2011 c/w. 1106 and 1107 of 2012 (MV) in the case of R. Chandrashekar Reddy alias Chandru and Others v. Manjunatha Reddy G. and Others, wherein the very same argument addressed by the very same Advocate on behalf of the very same Insurer, arising out of the very same accident has been negatived by the learned Single Judge, by recording a specific finding. He further relied upon the Full Bench judgment of this Court in the case of Karnataka State Road Transport Corporation, Bangalore v. Arun alias Aravind and others, 2004(1) Kar. L.J. 338 (FB): ILR 2004 Kar. 26 (FB) and submitted that as per Sections 174 and 175 of the Motor Vehicles Act, if the particulars of the vehicle which was responsible for the accident is not known, remedy available is that the only joint tort-feasor on record is bound to pay the compensation awarded and that the question of apportionment of blameworthy in the absence of joint-feasor does not arise. Therefore, he submitted that when the specific ground taken by the learned Counsel appearing for the Insurer, arising out of the same accident, has been negatived by the learned Single Judge, he cannot take the very same contention once again before this Court. Admittedly the said finding has reached finality and when such being the case, the learned Counsel appearing for Insurer cannot urge the very same ground and contend that the Insurer should be absolved of its liability to indemnify the award. Admittedly the said finding has reached finality and when such being the case, the learned Counsel appearing for Insurer cannot urge the very same ground and contend that the Insurer should be absolved of its liability to indemnify the award. Regarding quantum of compensation, learned Counsel appearing for claimants vehemently submitted that the quantum of compensation awarded by Tribunal towards loss of dependency, on account of the death of the deceased, who was aged about 33 years and working as a Real Estate Developer, earning Rs.1,00,000/- per month, is on the lower side and liable to be enhanced for the reason that, the dependents are none other than the wife aged about 26 years, minor child aged about six years, parents, mother and father aged about 52 years and 60 years and aunt, aged about 58 years, who is physically disabled and that on account of the untimely and unnatural death of deceased in the road traffic accident, they have suffered great financial loss apart from social status and moral support. Further, he submitted that the compensation awarded towards conventional heads is also on the lower side and in view of the judgment of the Hon'ble Apex Court and this Court in hosts of judgments, the claimants are entitled to much higher compensation under the conventional heads. Therefore, he submitted that reasonable enhancement may be made under all the heads, by modifying the impugned judgment and award passed by Tribunal. 9. 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 to us, the only point that arise for our consideration in these two appeals is, Whether the quantum of compensation awarded by Tribunal is just and reasonable?. 10. After going through the entire material available on file including the impugned judgment and award passed by Tribunal, it emerges that, occurrence of accident at about 9:15 p.m. on 6-4-2010 and resultant death of the deceased V. Manjunath alias Appi, in the road traffic accident are not in dispute. It is also not in dispute that the deceased was aged about 33 years and working as Real Estate Developer. It is also not in dispute that the deceased was aged about 33 years and working as Real Estate Developer. The claimants are none other than the wife aged about 26 years, minor son, aged about 6 years, mother and father aged about 52 years and 60 years and aunt, aged about 58 years, as on the date of accident. It is stated that the aunt was physically disabled and the deceased was looking after the welfare of the family and he was the sole bread winner of the family and the entire family was dependent on his income. 11. Regarding assessment of monthly income of the deceased at Rs.6,000/-, it can be seen that the same is on the lower side for the reason that, the claimants, in support of their oral submission, have produced number of documentary evidence, such as bank statement, tax payers counter foil, saral form with balance sheet for the assessment years 2005-2006 and 2006-2007 to substantiate the income of the deceased, viz. Exs. P6, P7, P21, P21(a), P22 and P22(a) and also led oral evidence of P.W3. But, the same has been disbelieved by the Tribunal on the ground that they do not pertain to the relevant assessment year as the accident has occurred during the year 2010. But, it should be seen that he monthly also running a Browsing Center apart from doing real estate business. Therefore, we are of the opinion that the monthly income of Rs.6,000/- assessed by Tribunal is on the lower side, when compared to the year of accident and therefore, the same is liable to be reassessed. Having regard to the age, avocation and also the year of accident, i.e. 2010, we reassess the monthly income of deceased at Rs.10,000/-, to meet the ends of justice. 12. Admittedly, the deceased was aged about 33 years and working as Real Estate Developer and also running a browns center. We have already reassessed his monthly income as Rs.10,000/-. Since the claimants, in all are five in number and dependents are four, we have to deduct l/4th towards the personal and living expenses of the deceased. Accordingly, if l/4th (i.e. Rs.2,500/-) is deducted from Rs.10,000/- towards the personal and living expenses of deceased, the net income would be Rs.7,500/- per month. Since the claimants, in all are five in number and dependents are four, we have to deduct l/4th towards the personal and living expenses of the deceased. Accordingly, if l/4th (i.e. Rs.2,500/-) is deducted from Rs.10,000/- towards the personal and living expenses of deceased, the net income would be Rs.7,500/- per month. As the deceased was aged about 33 years, the proper multiplier applicable is 16' as per the decision of the Hon'ble Apex Court in the case of Smt. Sarla Verma and Other, ( 2009 ACJ 1298 ) as rightly adopted by Tribunal. Thus, the compensation towards loss of dependency would work out to Rs.14,40,000/- (i.e. Rs.7,500/- x 12 x 16') as against Rs. 7,68,000/- awarded by Tribunal. 13. As rightly pointed out by learned Counsel appearing for claimants, the Tribunal has erred in not awarding just and reasonable compensation towards conventional heads. Considering the age and status of the dependents and the facts and circumstances of the case and in the light of the law laid down by the Hon'ble Apex Court and this Court in catena of decisions, we award a sum of Rs.1,00,000/- towards loss of consortium, Rs. 1,25,000/- towards loss of love and affection at the rate of Rs.25,000/- to each claimant, Rs.25,000/- towards loss of estate and Rs.25,000/- towards transportation and funeral expenses as against the compensation awarded by Tribunal under the said heads. 14. Further, the submission and the stand taken by the learned Counsel appearing for Insurer that the rate of interest awarded at 8% p.a. is on the higher side and liable to be reduced, cannot be accepted for the reason that the accident is of the year 2010. Therefore, considering the year of accident and in the light of the judgment of the Hon'ble Apex Court and this Court in catena of decisions, we hold that the rate of interest awarded by Tribunal at 8% p.a. is just and proper and does not call for interference and we adopt the same rate of interest in respect of the enhanced compensation also. 15. Thus, the total compensation would work out to Rs.17,15,000/- as against Rs.8,38,000/- awarded by Tribunal, with interest at 8% per annum, on the enhanced sum, from the date of petition till the date of realisation. The enhancement of compensation would be Rs.8,77,000/- with 8% interest per annum. 16. 15. Thus, the total compensation would work out to Rs.17,15,000/- as against Rs.8,38,000/- awarded by Tribunal, with interest at 8% per annum, on the enhanced sum, from the date of petition till the date of realisation. The enhancement of compensation would be Rs.8,77,000/- with 8% interest per annum. 16. Regarding the specific contention taken and the specific ground urged in the memorandum of appeal by the learned Counsel appearing for Insurer, it can be seen that the same cannot be accepted nor has the same got any substance, for the reason that, as rightly pointed out and relied upon by the learned Counsel appearing for claimants that, the very same contention/argument addressed by the very same Advocate on behalf of the very same Insurer, arising out of the very same accident has been negatived by the learned Single Judge, by recording a specific finding in the judgment dated 21st July, 20 in M.F.A. Nos. 8629 connected with 8630 of 2011 c/w. 1106 c/w. 1107 of 2012 (MV) in the case of Sri R. Chandrashekar Reddy alias Chandru and Others v. Sri Manjunatha Reddy G and Others. Admittedly, the said judgment has attained finality as the same has not been challenged by the Insurer. In can further be seen that, the Full Bench of this Court in the case of KSRTC Vs. Arun @ Aravind and others reported in ILR 2004 Kar. 26, has held that, if the particulars of the vehicle which was responsible for the accident is not known, remedy available is that the only joint tort-feasor on record is bound to pay the compensation awarded and that the question of apportionment of blameworthy in the absence of joint feasor does not arise. When such being the case, the submission of the learned Counsel appearing for Insurer cannot be considered and is accordingly rejected and the Insurer cannot be absolved of its liability to indemnify the award. Therefore, interference in the direction issued by Tribunal to Insurer to indemnify the award is unwarranted. 17. In the light of the facts and circumstances of the case, as stated above, the appeal filed by the Insurer is dismissed and the appeal filed by claimants is allowed in part. Therefore, interference in the direction issued by Tribunal to Insurer to indemnify the award is unwarranted. 17. In the light of the facts and circumstances of the case, as stated above, the appeal filed by the Insurer is dismissed and the appeal filed by claimants is allowed in part. The impugned judgment and award dated 4th May, 2012, passed in MVC No. 3774 of 2010, by the VII Additional Judge and Member, Motor Accident Claims Tribunal-3, Court of Small Causes, Bangalore (SCCH-3), is hereby modified, awarding a sum of Rs.8,77,000/-, with interest at 8% per annum, from the date of petition till the date of realisation, in addition to the compensation awarded by Tribunal. The Insurer is directed to deposit the enhanced compensation of Rs.8,77,000/-, with interest thereon at 8% per annum, from the date of petition till the date of realisation, within three weeks from the date of receipt of copy of the judgment. Immediately on such deposit by the Insurance Company, a sum of Rs.3,00,000/- with proportionate interest shall be invested in the name of first claimant - wife of deceased, in Fixed Deposit, in any scheduled/Nationalised/Grameen Bank, for a period of fifteen years, renewable by ten years, with liberty reserved to her to withdraw the periodical interest. A sum of Rs.2,00,000/- with proportionate interest shall be invested in the name of second claimant -minor son of deceased, in Fixed Deposit, in any scheduled/Nationalised/Grameena Bank, till he attains the age of 30 years, with liberty reserved to the first claimant/mother and natural guardian to withdraw the periodical interest for his welfare till he attains the age of 21 years and from 22 years to 30 years, the second claimant is entitled to withdraw the periodical interest. A sum of Rs.1,00,000/- each with proportionate interest shall be invested in the names of third and fourth claimants - parents of deceased, in Fixed Deposit, in any scheduled/Nationalised/Grameena Bank, for a period of five years, renewable by five years, with liberty reserved to them to withdraw their respective periodical interest. Remaining sum of Rs.1,77,000/- with proportionate interest shall be released in favour of the claimants Nos. 1, 3 and 4 in equal proportion, immediately. Office to draw award, accordingly. The amount in deposit by the Insurer in the appeal filed by it is directed to be transmitted to the jurisdictional Tribunal, forthwith.