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2019 DIGILAW 1938 (KAR)

Oriental Insurance Co. Ltd. v. Babita

2019-09-03

N.K.SUDHINDRARAO, S.SUJATHA

body2019
JUDGMENT : S. SUJATHA, J. 1. Insurance Company as well as the claimants are in appeal challenging the judgment and award passed by the Motor Accident Claims Tribunal, Bidar sitting at Basavakalyan ('Tribunal' for short) in MVC No.467/2015 dated 21.02.2017. 2. The claimants being the wife and children of the deceased Kashappa who died on 25.02.2015 in the road accident, have filed the claim petition under Section 166 of the Motor Vehicles Act,1988 alleging actionable negligence on the driver of Swift Car bearing Reg.No.KA-56/M-219. 3. On issuance of summons by the Tribunal, respondent Nos.1 and 2 appeared through their learned counsel and contested the claim. On appreciation of evidence, the Tribunal allowed the claim petition in part, awarding total compensation of Rs.18,16,000/- with interest at the rate of 7% per annum from the date of petition till its complete realization fixing the liablity on the Insurer. 4. Being aggrieved by the liability fastened on the Insurance Company and the quantum of compensation, the Insurer is in appeal whereas the claimants are in appeal seeking for enhancement of compensation. 5. Learned counsel Sri Sanjay M.Joshi appearing for the Insurer would submit that the full liability fastened on the Insurance Company is unjustifiable since the Policy-Ex.P.10 was a private car policy. The deceased Kashappa, a friend of the owner of the vehicle had borrowed the vehicle. The said vehicle was used for commercial purposes i.e., the cloth business of the deceased, which would not be covered under the policy Ex.P.10. The maximum liability that could be fixed under Ex.P.10 is Rs.2.00 lakh. 6. Nextly it was argued that no single document has been produced to prove that the three claimants children of the deceased were students, as such the dependants of the deceased Kashappa. The Tribunal erred in taking 1/4th of the income of the deceased towards the personal expenses of the deceased, the same ought to have been taken at 1/3rd. Even applying the principles of law enunciated by the Hon'ble Apex Court in the case of National Insurance Company vs. Pranay Sethi and others, (2017) AIR SC 5157, the amount towards future prospects ought to have been 25% not 30% as calculated by the Tribunal. The compensation under the different heads would not be in excess of Rs.70,000/-. 7. Learned counsel for the claimants would submit that the deceased was an occupant/inmate of the offending vehicle involved in the accident. The compensation under the different heads would not be in excess of Rs.70,000/-. 7. Learned counsel for the claimants would submit that the deceased was an occupant/inmate of the offending vehicle involved in the accident. In such circumstances, the Insurance Company cannot be exonerated from the liability. It was argued that the compensation awarded under the different heads is abysmally low and the same requires to be enhanced substantially. The claimants 2 to 4 are the children of the deceased Kashappa who were the students at the time of the accident and were dependants on the income of the deceased Kashappa. Hence, deduction of 1/4th towards the personal and living expenses of the deceased cannot be held to be unreasonable. 8. We have given our thoughtful consideration to the arguments advanced by the learned counsel appearing for the parties and perused the material on record. 9. It is significant to note that in the counter/objections filed by the Insurance Company before the Tribunal, no pleadings are forthcoming inasmuch as the arguments now advanced by the learned counsel for the Insurance Company relating to the coverage of the policy is concerned. Similarly, no evidence is adduced by the parties on this point. In the absence of the grounds raised, issues framed, arguments advanced, and the finding recorded by the Tribunal, no new grounds can be urged at the appellate stage, to improve the case of the Insurance Company. Hence, the grounds urged by the learned counsel for the Insurance Company not being supported by pleadings and evidence cannot be countenanced at the appellate stage. 10. Ex.P.10 clearly demonstrates that it is a Car package policy. The deceased was travelling in the said offending vehicle, as an occupant as a third party and as such the Insurer has to indemnify the owner. Hence, the liability saddled on the Insurer cannot be held to be illegal. 11. The claimants being the legal representatives of the deceased Kashappa being the dependants, personal and living expenses of the deceased has to be deducted by 1/4th in terms of the judgment of the Hon'ble Apex Court in the case of Sarla Verma (Smt) and others v. Delhi Transport Corporation and another, (2009) 6 SCC 121 . The deceased was aged about 46 years at the time of accident, as such multiplier of 13' has to be adopted. The deceased was aged about 46 years at the time of accident, as such multiplier of 13' has to be adopted. In view of the judgment of the Hon'ble Apex Court in Pranay Sethi, supra compensation of Rs.70,000/- is just and reasonable under the other heads apart from the medical expenses. 12. Tribunal albeit considering the income tax returns of the deceased for the assessment years 2013- 2014,2014-2015 whereby the average monthly income found to be at Rs.13,870/- determined the monthly income at Rs.10,000/- which appears to be on the lower side. Considering the age, occupation and date of accident, vis- -vis the income tax returns filed by the deceased, in our considered view, it would be just and reasonable in determining the monthly income of the deceased at Rs.13,870/-. 13. However, the Tribunal adding 30% towards the monthly earnings of the deceased to make good the loss of future prospects is not in conformity with the principles of law enunciated by the Hon'ble Apex Court in the case of Pranay Sethi supra. Accordingly, we deem it appropriate to add 25% of the monthly earnings towards the future prospects, applying the same, gross annual income would be Rs.2,08,044/-. Deducting 1/4th towards personal and living expenses of the deceased and applying the multiplier of 13', loss of dependency would workout to Rs.20,28,429/-. 14. Medical expenses determined by the Tribunal at Rs.1,45,000/- based on the hospital and medical bills is unchallenged. Hence, requires to be confirmed. 15. The claimants are entitled to compensation of Rs.70,000/- under the heads, viz., loss of consortium, loss of estate and towards transportation and funeral expense. 16. Hence, the total compensation awarded by the Tribunal is modified as under :- Sl.No. Heads Compensation 1. Loss of dependency Rs.20,28,429/- 2. Medical expenses Rs.1,45,000/- 3. Compensation under different heads (loss of estate, loss of consortium and funeral expenses) Rs.70,000/- Total Rs.22,43,429/- Thus, the claimants are entitled for a total compensation of Rs.22,43,429/- as against Rs.18,16,000/- awarded by the Tribunal. Therefore, the claimants are entitled for enhanced compensation of Rs.4,27,429/-. The award needs to be modified accordingly. In the result, we proceed to pass the following : ORDER MFA No.200608/2018 filed by the Insurance Company is dismissed. MFA No.201839/2017 filed by the appellants/claimants is allowed in part. Claimants are entitled for enhanced compensation of Rs.4,27,429/- with interest at 6% per annum from the date of petition till realization. The award needs to be modified accordingly. In the result, we proceed to pass the following : ORDER MFA No.200608/2018 filed by the Insurance Company is dismissed. MFA No.201839/2017 filed by the appellants/claimants is allowed in part. Claimants are entitled for enhanced compensation of Rs.4,27,429/- with interest at 6% per annum from the date of petition till realization. The terms of the apportionment, liability and disbursement shall be in terms of the order passed by the Tribunal. The amount in deposit, shall be transmitted to the Tribunal for disbursement.