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2020 DIGILAW 1446 (KAR)

Shriram General Insurance Co. Ltd. v. Durgamma

2020-07-21

N.S.SANJAY GOWDA

body2020
JUDGMENT N S Sanjay Gowda, J. - These two appeals are filed both by the insurance company as also by the claimant. The insurance company has preferred the appeal challenging its liability to satisfy the award, while the claimant has filed the appeal seeking for enhancement of compensation. 2. The claimant is the wife of one Thirupati. The case set forth in the claim petition that the vehicle in question had reached Kumareshwar Temple cross and all of a sudden, the vehicle started moving in the reverse direction and the deceased stepped down from the vehicle, on the advice of the driver, and tried to stop the vehicle from moving back by putting stones behind the rear wheel. It was stated that at the very same time, the driver of the lorry suddenly moved the vehicle in the reverse direction, as a result of which, Thirupati went under the rear wheel and was killed at the spot. 3. It was stated that the deceased was aged 29 years and was earning Rs.15,000/- p.m. by doing stationery business. A compensation of Rs.23,00,000/- was claimed under dif ferent heads. 4. The owner as well as the insurance company entered appearance and contested the petition. The owner of the offending vehicle contended that the vehicle was insured with the third respondent and the driver possessed a valid and effective driving licence at the time of accident and the Insurance Company was liable to satisfy the award. 5. The Insurance company, as is the norm, denied all the averments made in the plaint. It contended that it should be presumed that there was a statutory violation of the conditions of the policy and therefore the petition as against them ought to be dismissed. 6. The Tribunal, on consideration of the evidence adduced before it, came to the conclusion that the accident did occur on 14.04.2010 at 7.00 p.m. near Kumarswamy Temple when the lorry was driven in a reverse direction and the deceased came under the rear wheel of the vehicle and was killed on the spot. The Tribunal came to the conclusion that there was no evidence to establish the income of the deceased and proceeded to assess the monthly income as Rs.3,000/- on its own and proceeded to determine the compensation at Rs.4,58,000/- by adopting the formula under Section 163-A of the Motor Vehicles Act. 7. The Tribunal came to the conclusion that there was no evidence to establish the income of the deceased and proceeded to assess the monthly income as Rs.3,000/- on its own and proceeded to determine the compensation at Rs.4,58,000/- by adopting the formula under Section 163-A of the Motor Vehicles Act. 7. As far as the liability was concerned, the Tribunal held that the insurance company had not examined any person on its behalf except examining R.T.O. and it had therefore been unable to prove its defence. It held that having regard to the weight of the vehicle and fact that the driver had valid driving licence, the insurance company could not escape its liability to satisfy the award. 8. It is against this order of fastening the liability on it, the insurance company has preferred an appeal in MFA 22109/2013. 9. The other appeal is by the claimant i.e., M.F.A.No.23869/2013 seeking for enhancement of compensation. 10. It is not in dispute that the driver of the lorry did possess a licence to drive a light motor vehicle. Having regard to the decision rendered in Mukund Dewangan Vs. Oriental Insurance Company Limited and others, (2016) 4 SCC 298 , and having regard to the unladen weight of the lorry, it is clear that the driver of the lorry was competent to drive the lorry despite the fact that he was possessing only a licence to drive a light motor vehicle (non-transport vehicle). Thus, the insurance company would be required to satisfy the award. 11. Learned counsel for the insurance company, however, contended that a reading of the complaint itself indicated that the vehicle in question was being used for hire and reward and therefore the principle of pay and recovery was to be applied. 12. Learned counsel for the claimant, on the other hand, contended that the accident had occurred when the deceased was outside the vehicle and in that sense he was not an inmate of the vehicle when the accident occurred. He submitted that the evidence on record clearly indicate that the deceased had got down from the vehicle to bring the lorry from rolling backwards by putting stones to stop the movement of the rear vehicle and thus according to him, once the deceased was out of the vehicle, he became a third party and could not be considered as an inmate. 13. 13. In response, the learned counsel for the insurance company contended that so long as the vehicle was used for hire or reward, the insurance company was required to be given the benefit of pay and recover. 14. It cannot be in serious dispute that the deceased was not traveling in the vehicle at the time of the incident. It cannot also be in dispute that in order to bring the vehicle from rolling backward, he was attempting to put stones in the way of the rear wheel at which time the driver moved the vehicle in the reverse direction and he went under the wheel and was killed . In view of the fact that the deceased had come out of the vehicle at the time of the incident, to my mind, he cannot be considered an inmate of the vehicle and he had become a third party to the accident. As a result therefore, the claim of such a third party cannot be rejected on the ground that the vehicle was used for hire or reward. 15. Another fact to be noticed is that the insurance company did not adduce any evidence in order to establish that the vehicle was being used for hire or reward and it basically relied upon a complaint lodged regarding the motor vehicle accident to put forth this contention. Admittedly, the said complainant who had lodged the complaint was not examined before the Tribunal and neither was any other independent witness examined to establish that the vehicle was used for hire or reward. The Insurance Company was required to plead and establish the fact that the vehicle in question was being used for hire and reward and it cannot use the complaint or any other investigative materials collected by the Police as proof of its assertions. I am, therefore, of the view that the insurance company had failed to prove that the vehicle was used for hire and reward. 16. The deceased was aged about 29 years and admittedly, there was no evidence adduced to establish his monthly income. In such circumstances, in my view, it would be just and proper to adopt the monthly income determined by the Karnataka Legal Services Authority to decide Lok Adalat matters, which would be a sum of Rs.5,500/-, the sum determined as monthly income for the accident victims of the year 2010. In such circumstances, in my view, it would be just and proper to adopt the monthly income determined by the Karnataka Legal Services Authority to decide Lok Adalat matters, which would be a sum of Rs.5,500/-, the sum determined as monthly income for the accident victims of the year 2010. In view of the decision of the Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and others, (2017) AIR SC 5157 , to the said monthly income, future prospects of 40% is required to be added. Thus, the monthly income for the purpose of determination of compensation would have to be taken as Rs.7,700/-. The Tribunal has deducted 1/3rd of the monthly income as the personal expenses of the deceased, as there was only one dependent i.e., wife. The Learned counsel for the insurance company, however, argued that 50% of the monthly income was required to be deducted, since the deceased had left behind only one dependent i.e., his wife and he placed reliance on the judgment rendered by this Court in the case of New India Assurance Company Limited, Bangalore Vs. David T. and another, (2012) 2 KarLJ 502 to support his argument that whenever there was a sole dependent, 50% was required to be deducted. This argument, cannot be accepted, in view of the decision of the Apex Court in the case of Sarla Verma and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121 where the Apex Court has categorically stated as follows: 30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardized deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six. If the argument of the learned counsel is accepted, there would basically be no dif ference between the death of a bachelor and a person who is married when it comes to determining the quantum of deductions. If the argument of the learned counsel is accepted, there would basically be no dif ference between the death of a bachelor and a person who is married when it comes to determining the quantum of deductions. It cannot be in serious dispute that once a person gets married, obviously, the money that he would spend on himself is bound to decrease and I am therefore not inclined to accept the argument of the learned counsel in this regard. As the deceased was 29 years, a multiplier of 17 would have to be applied. Thus, towards loss of dependency the claimant would be entitled to the following sum: Rs.7,700 - 2,567 (1/3rd of Rs.7,700)=5,133/- Rs.5,133x17x12=Rs.10,47,132/- 17. In addition to the above, the claimant would be entitled to a sum of Rs.70,000/- under the conventional heads. 18. In all, the claimant would be entitled to a sum of Rs.11,17,132/- as against the sum of Rs.4,58,000/- that is awarded by the Tribunal. The said amount shall carry interest at the rate of 6% p.a. from the date of the petition till the date of deposit. 19. The insurance company is directed to deposit the entire compensation within a period of four weeks from the date of receipt of a copy of this judgment. 20. In the result, the appeal filed by the insurance company i.e., M.F.A.No.22109/2013 is dismissed and the appeal filed by the claimant in M.F.A.No.23869/2013 is allowed in part. 21. The amount in deposit shall be transmitted to the tribunal for disbursement.