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2019 DIGILAW 1402 (KAR)

Manager Icici Lombard Gen Ins Co Ltd v. A. K. Jayamma

2019-06-24

ALOK ARADHE

body2019
JUDGMENT : Alok Aradhe, J. Sri. Pradeep B., learned counsel for the appellant. Sri. P.N. Harish, learned counsel for respondent Nos.1 to 5. Respondent No.6 though served is unrepresented. The appeal is admitted for hearing. With the consent of learned counsel for the parties, the same is heard finally. 2. In this appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act' for short), the appellant has assailed the validity of the award dated 28.12.2016 passed by the I Additional Senior Civil Judge and Additional Motor Accident Claims Tribunal-VII, Shivamogga. 3. The facts giving rise to filing of the appeal briefly stated are that the deceased K.Shivanna was employed as Home Guard. On 06.07.2014, the deceased was riding on his Hero Honda Motor Cycle to attend his duty. At about, 4.30 p.m., one Alto Car owned by respondent No.6, which was being driven by him in a rash and negligent manner dashed the motor cycle of the deceased. As a result of which, the deceased fell down and sustained grievous injuries. The deceased was taken to Narayana Hrudayalaya Hospital at Shivamogga and was admitted there. Unfortunately, he succumbed to the injuries on 07.07.2014. Thereupon, the respondent Nos.1 to 5, who are the legal representatives of the deceased filed the petition under Section 166 of the Act claiming compensation on account of death of aforesaid K.Shivanna. 4. Respondent No.6 filed objections in which it was pleaded that the petition filed by the respondent Nos.1 to 5 is bad on account of nonjoinder of necessary parties. It was also pleaded that on the date of accident, respondent No.6 was possessing a valid Driving License. However, it was admitted that the vehicle was duly insured with the appellant-Insurance Company. It was further pleaded that since the vehicle was insured, there is no breach of the policy conditions. Therefore, the appellant-Insurance Company is liable to indemnify the insured. 5. On the other hand, learned counsel for the appellant-Insurance Company in its objections pleaded that the vehicle was insured with the Insurance Company and since the driver of the car did not possess a valid Driving License to drive the vehicle as on the date of accident and vehicular documents were not intact, the Insurance Company is not indemnifiable to the insured. 6. 6. The Claims Tribunal on the basis of the pleadings, has framed the issues and has held that the accident took place due to rash and negligent driving of the vehicle by respondent No.6, by which deceased K.Shivanna lost his life. It was further held that the petitioners are entitled to a compensation of Rs. 20,60,000/-. Being aggrieved, this miscellaneous first appeal has been filed by the Insurance Company. 7. Learned counsel for the appellant while placing reliance on the decision of the Hon'ble Supreme Court in 'NATIONAL INSURANCE COMPANY LTD. VS. PRANAY SETHI & ORS, (2017) AIR SC 5157, submitted that future prospects of the deceased ought to have been quantified at 40% instead of 50% and excessive sum has been awarded to the respondents under the heads "Love and Affection to the children", "Loss of Filial Love and Affection to the Parents", "Transportation Charges" and "Loss of Estate",. Therefore, the amount of compensation under the head "Loss of Dependency" deserves to be reduced by a sum ofRs. 1,26,000/- ('18,90,000/- -Rs. 17,64,000/-). The aforesaid submission is fairly not opposed by the learned counsel for the respondents. 8. I have considered the submissions made by learned counsel for the parties. In view of the law laid down by the Hon'ble Supreme Court in the PRANAY SETHI & ORS (Supra), the future prospects of the deceased ought to have been quantified at 40%. Thus, the "Loss of Dependency" is recalculated as under: Monthly income - 10,000/- Add: 40% towards future prospects - 4,000/- Total - 14,000/- Less: 1/4 towards personal expenses - 3,500/- Actual monthly income - 10,500/- Multiplier - 14 Loss of dependency 10,500 x 12 x 14 - Rs. 17,64,000/- 9. Similarly, a sum ofRs. 20,000/- each is awarded to the claimants on account of "Loss of Consortium to Wife", "Loss of Love and Affection to Children", "Loss of Filial Love and Affection to the Parents" respectively. Similarly, expenses for "Transportation of Dead Body, Funeral and Obsequies Expenses" as well as "Loss of Estate" are reduced to Rs. 5,000/- each. 10. For the reasons stated above, the appeal is partly allowed and the impugned award dated 28.12.2016, is modified as under: Sl.No. Compensation under different Heads As awarded by the Tribunal Rs. As awarded by this Court Rs. 5,000/- each. 10. For the reasons stated above, the appeal is partly allowed and the impugned award dated 28.12.2016, is modified as under: Sl.No. Compensation under different Heads As awarded by the Tribunal Rs. As awarded by this Court Rs. 1 Loss of Dependency 18,90,000 17,64,000 2 Loss of Consortium to wife 50,000 20,000 3 Loss of Love and Affection to the Children 50,000 20,000 4 Loss of Filial Love and Affection to the parents 40,000 20,000 5 Transportation of dead body, Funeral & Obsequies Expenses charges 20,000 5,000 6 Loss of Estate 10,000 5,000 Total 20,60,000 18,34,000 11. Thus, as agreed to by the learned counsel for the parties, respondents are entitled to receive a sum of Rs. 18,34,000/- as compensation. Needless to state that the aforesaid amount shall carry interest at the rate of 6% p.a. from the date of filing of the petition till deposit. The amount deposited by the appellant shall be transmitted to the Claims Tribunal. Needless to state that the amount as and when deposited, the Tribunal shall disburse the same to the claimants as per the directions which may be issued by the Tribunal in accordance with law laid down in 'GENERAL MANAGER, KERALA S.R.T.C vs. SUSAMMA THOMAS, (1994) AIR SC 1631'. In view of disposal of the main appeal, pending interlocutory application does not survive for consideration.