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2020 DIGILAW 1034 (KAR)

Reliance Gen Ins Co Ltd. v. Sarojamma

2020-06-10

S.G.PANDIT, V.SRISHANANDA

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JUDGMENT V. Srishananda, J. - The present appeal and the cross-objection are arising out of one and the same judgment and award passed by the Presiding Officer, Fast Track Court and Additional M.A.C.T., Gangavathi in MVC No.115/2012 dated: 17.11.2012. 2. The insurance company is in appeal has filed M.F.A.No.20541/2013 whereas the cross-objection is filed by the claimants. 3. The brief facts which are necessary for disposal of these matters are as under: In the claim petition, it is contended that the claimants are the dependants of one Manjunath, who died in a road traffic accident that was occurred on 08.08.2011. It is contended that on the said day, when the said Manjunath was coming from Siddapur on Gangavathi road on motorcycle bearing No.KA-25/EB-6827, near Bargur cross, a tipper lorry bearing No.KA-37/7161 came in a rash and negligent manner and dashed against the motorcycle of Manjunath, due to which he sustained grievous injuries and was shifted to Dr.Chandrappa Multispeciality Hospital, Gangavathi and then to Vivekanand Hospital, Hubli but he succumbed to the injuries on 11.08.2011. The accident was informed to the brother of the deceased by one Shankaragowda, who is an eyewitness to the incident. It is contended that the claimants have spent more than Rs.1,00,000/- towards medical expenses. The deceased was having 10 acres of agricultural land and was also running a business in the name and style of Jayashri Fertilizers. He was also working as headmaster in Basavaraj Memorial School at Siddapur and was having monthly income of Rs.50,000/-. The first claimant is the wife and claimants 2 to 6 are the minor children of the deceased. Since they lost bread earner of the family, they laid a claim seeking compensation of Rs.64,00,000/-. On issuance of notice, second respondent remained absent and placed exparte. Respondents 1 and 3 appeared before the Tribunal and filed their written statement. Respondent No.1 contended that the accident has occurred on account of negligent riding of the motorcycle by Manjunath himself and the tipper lorry in question was also insured with respondent No.3 and in the event of any liability being adjudged, the compensation amount be ordered to be paid by respondent No.3 and prayed for dismissal of the petition as against him. The third respondent in its written statement denied that the accident has occurred on account of negligence driving of the first respondent and also denied other claim petition averments. The third respondent in its written statement denied that the accident has occurred on account of negligence driving of the first respondent and also denied other claim petition averments. The insurance company also denied that the first respondent had a valid driving licence and since the accident has occurred involving two vehicles, the owner of the motorcycle is also a necessary party and the petition is bad of non-joinder of necessary party and sought for dismissal of the petition. On completion of pleadings, the Tribunal framed issues and in order to establish the claim, on behalf of the claimants, claimant No.1 got examined herself as P.W.1 and eyewitness as P.W.2. Claimants have relied on documentary evidence which were marked as Exs.P.1 to P.16 before the Tribunal. On behalf of respondent No.3, the officer of the insurance company got examined as R.W.1 and documents vide Ex.R.1 to 6 were marked on behalf of the insurance company. On cumulative consideration of oral and documentary evidence on record, the Tribunal allowed the claim petition in part adjudging the compensation in a sum of Rs.16,60,000/- with interest at the rate of 6% per annum from the date of petition till realization. It is that judgment which is under challenge by the insurance company as well as claimants in the appeal and crossobjection. The claimants have sought for enhancement of compensation. 4. The learned counsel for the insurance company contends that the impugned judgment is erroneous and the quantum of compensation for a sum of Rs.16,60,000/- awarded by the Tribunal is on higher side. The learned counsel also contends that the accident as is portrayed is not at all taken place and thus, the finding of the Tribunal that the accident has occurred on account of negligence of the driver of the tipper is incorrect. This findings needs to be revisited by allowing the appeal. 5. Per contra, the learned counsel for crossobjectors has contended that the Tribunal has erred in assessing the annual income of the deceased at Rs.1,60,000/-, without taking into consideration that the deceased possessed 10 acres of agricultural land and was working as headmaster in Basavaraj Memorial School at Siddapur. It is contended that the Tribunal has erred in not awarding future prospects as per the decision of the Hon'ble Apex Court in the case of National Insurance Company Ltd vs. Pranay Sethi and others, (2017) AIR SC 5157 . It is contended that the Tribunal has erred in not awarding future prospects as per the decision of the Hon'ble Apex Court in the case of National Insurance Company Ltd vs. Pranay Sethi and others, (2017) AIR SC 5157 . It is further contended by the learned counsel for the cross-objectors that the Tribunal has erred in deducting 1/3rd of the income towards personal expenses of the deceased instead of 1/5th since there are six dependants on the deceased. It is contended that the Tribunal has awarded a meager amount on conventional heads and hence, prayed for enhancement of compensation. 6. In view of the rival contentions of the learned counsel for parties, the points that would arise for our consideration are as under:- i) Whether the insurance company proves that there was contributory negligence attributable on the deceased and thus the compensation needs to be reassessed? ii) Whether the cross-objectors/claimants prove that they are entitled for enhancement of compensation? 7. We answer Point No.(i) in the negative and Point No.(ii) in the affirmative, for the following: REASONS 8. It is submitted by the learned counsel for the insurance company that the accident in question has not occurred as contended by the claimants. In fact, it was a self-fall from the motorcycle. The learned counsel for the insurance company contended that the Tribunal failed to note that having regard to the documentary evidence placed on record deceased sustained fatal injuries due to fall from motorcycle. It is further contended that the Tribunal did not take into consideration that the rider of the motorcycle did not possess a valid driving licence and therefore, claim is not maintainable. It is also his submission that the driver of the tipper lorry did not possess licence to drive heavy goods vehicle at the relevant point of time and this aspect is not at all considered by the Tribunal and sought for allowing the appeal. Alternatively, he also submitted that the Tribunal has taken into consideration Rs.1,60,000/- as annual income of the deceased without there being any plausible evidence placed on record and thus sought for allowing the appeal of the insurance company. 9. Alternatively, he also submitted that the Tribunal has taken into consideration Rs.1,60,000/- as annual income of the deceased without there being any plausible evidence placed on record and thus sought for allowing the appeal of the insurance company. 9. Per contra, the learned counsel for the claimants contends that the Tribunal has rightly held that the accident was on account of rash and negligent driving of the driver of tipper lorry resulting in fatal injuries and later on injured succumbed to the injuries. His further contention is that the driver of the tipper did possess valid driving licence as on the date of the accident and therefore, the Tribunal has rightly allowed the claim petition but insofar as income of the deceased is concerned, the learned counsel for the claimants would contend that the Tribunal ought to have considered the monthly income at Rs.50,000/- having regard to the fact that the deceased was holding 10 acres of agricultural land and was having a business in the name and style of Jayashri Fertilizers and was also working as headmaster in Basavaraj Memorial School at Siddapur. Therefore, assessing the annual income of the deceased at Rs.1,60,000/- is on the lower side. The learned counsel for the claimants also contends that the Tribunal failed to grant any compensation on the head of future prospects and having regard to the number of dependants i.e. six claimants, the Tribunal ought to have deducted 1/5th of the assessed income towards personal expenses of the deceased instead of deducting 1/3rd as per the legal principles enunciated by the Hon'ble Apex Court in Sarla Verma and Others vs. Delhi Transport Corporation and Another, (2009) AIR SC 3104 and sought for enhancement of compensation. 10. In the backdrop of oral and documentary evidence placed on record, it is crystal clear that the charge-sheet came to be filed by the police after thorough investigation against the driver of the tipper lorry bearing No.KA-37/7161. The same is not challenged by the insurance company. Further, on behalf of respondent No.3, the Deputy Manager of Legal Claims of Insurance Company got examined before the tribunal as R.W.1. 11. In his affidavit in lieu of oral evidence has no doubt stated that a false criminal case came to be created by filing complaint against respondent No.1. The same is not challenged by the insurance company. Further, on behalf of respondent No.3, the Deputy Manager of Legal Claims of Insurance Company got examined before the tribunal as R.W.1. 11. In his affidavit in lieu of oral evidence has no doubt stated that a false criminal case came to be created by filing complaint against respondent No.1. However, page 20 of Ex.P.15, which is a case sheet produced and marked on behalf of the claimants/cross-objectors clearly shows that the patient reported to hospital in the history of road traffic accident occurred on 08.08.2011 on Gangavathi-Shidenur road, which is 2 k.m. away from Siddapur village. Therefore, in the absence of any other evidence placed on record to disbelieve the nature of the accident, we are of the considered opinion that the finding recorded by the Tribunal that there was an accident between motorcycle bearing No.KA-25/EB-6827 and tipper lorry bearing No.KA-37/7161 on 08.08.2011 at about 10.30 p.m. on account of rash and negligent driving of the lorry by its driver requires no interference. 12. The learned counsel for the insurance company contended that in the absence of any proper evidence placed on record, the Tribunal adjudging the yearly income of the deceased at Rs.1,60,000/- is on higher side. 13. On the contrary, the learned counsel for claimants/cross-objectors contends that the income assessed by the Tribunal at Rs.1,60,000/- per annum is on the lower side in view of the fact that the deceased had possessed 10 acres of agricultural land and was running business in the name and style of Jayashri Fertilizers and was also working as headmaster in a private school. But on record, the Tribunal after cumulative consideration of the oral and documentary evidence placed on record, especially the Records of Rights, which is marked at Ex.P.14 and Ex.P.13 audit report showing that the deceased was running business in the name and style of Jayashri Fertilizers has taken into account Rs.1,60,000/- per annum. 14. On re-appreciation of the above materials, we do not find any perversity in arriving at such a finding by the Tribunal. At a time, a person cannot work as an agriculturist and businessman and headmaster. Therefore, the Tribunal assessing the yearly income at Rs.1,60,000/-, requires no interference by this Court. 15. 14. On re-appreciation of the above materials, we do not find any perversity in arriving at such a finding by the Tribunal. At a time, a person cannot work as an agriculturist and businessman and headmaster. Therefore, the Tribunal assessing the yearly income at Rs.1,60,000/-, requires no interference by this Court. 15. However, the Tribunal did not consider adding of 25% of the assessed income towards future prospects and we find sufficient force in the submissions made on behalf of the claimants/cross-objectors. Following the principles enunciated in Pranay Sethi's case the claimants would be entitled for adding of 25% of the assessed income towards future prospects in view of the fact that the deceased died at his age of 40 years. After adding 25% of the assessed income the yearly income of the deceased would come to Rs.2,00,000/-. 16. Having regard to the number of dependants, the Tribunal erred in deducting 1/3rd of the income towards personal expenses instead of 1/5th as per the principles enunciated in Sarala Verma's case and accordingly, we deduct the 1/5th of the income towards personal expenses of the deceased. After deducting 1/5th of the income towards personal and living expenses of the deceased, the annual income of the deceased would be Rs.1,60,000/-. To that extent, the adjudged compensation needs interference of this Court. Since the age of the deceased was 40 years as on the date of the accident, applying multiplier 15' to the annual income of Rs.1,60,000/- the claimants/cross-objectors are entitled to Rs.24,00,000/- (Rs.1,60,000 x 15 = Rs.24,00,000/-) towards loss of dependency including future prospects. 17. Further, in view of the legal principles enunciated in Pranay Sethi's case, the claimants would be entitled for Rs.77,000/- on conventional heads. Accordingly, we answer point No.(i) in the negative and point No.(ii) in the affirmative and proceed to pass the following:- ORDER The appeal filed by the appellant/insurance company is dismissed and the cross-objection filed by the claimants/cross-objectors is allowed in part. Accordingly, the claimants/crossobjectors are entitled to the total compensation of Rs.24,77,000/- as against Rs.16,60,000/- awarded by the Tribunal, with interest @ 6% per annum from the date of petition till realization. The insurance company is directed to deposit the entire compensation amount with up-to-date interest within a period of six weeks from the date of petition till realization. The apportionment, deposit and disbursement shall be as ordered by the Tribunal in the same proportion. The insurance company is directed to deposit the entire compensation amount with up-to-date interest within a period of six weeks from the date of petition till realization. The apportionment, deposit and disbursement shall be as ordered by the Tribunal in the same proportion. The amount in deposit, if any, made by the insurance company as statutory deposit, be transmitted to the Tribunal, forthwith. Draw the modified award accordingly.