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2020 DIGILAW 2014 (KAR)

Oriental Insurance Co. Ltd. v. Siddaiah

2020-10-07

NATARAJ RANGASWAMY

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JUDGMENT Nataraj Rangaswamy, J. - This appeal is filed by the insurer challenging the quantum as well as its liability to pay the compensation awarded by the Tribunal. 2. The claim before the Tribunal discloses that on 01.10.2005 at about 9.35 p.m. the deceased was riding pillion on a TVS-XL moped belonging to the respondent No.4 and ridden by the respondent No.3. Since, it was dark, the TVS-XL moped dashed against the lorry which was parked negligently in the middle of the road without turning the hazard lights on. This lorry was owned by respondent No.1 and insured by respondent No.2. As a result of the accident, the pillion rider died. The claim petition was filed by his legal representatives. 3. The insurer / appellant herein though was served with the notice of the claim petition, did not contest the proceedings. The Tribunal thereafter recorded the evidence of the claimants and having regard to the material on record passed an award directing the insurer to pay compensation of 60% of a sum of Rs.2,18,000/- along with interest at the rate of 6% per annum from the date of petition till the date of deposit of the award amount. 4. The insurer contends in this appeal that the lorry bearing registration No.KA-03-6929 was insured by it for a term 06.10.2005 to 05.10.2006 but the accident in question occurred on 01.10.2005. Therefore, the insurer contends that it was not liable to pay the compensation amount as there was no policy in force at the time of the accident. 5. An application is filed by the insurer in this appeal, placing on record the policy of insurance which disclose that the vehicle bearing registration No.KA-03- 6929 was insured with the insurer for the term 06.10.2005 to 05.10.2006. The affidavit accompanying the application does not indicate any reason as to why the insurer did not place this document before the Tribunal. If this was placed, the Tribunal would have conclusively determined it. However, having regard to the fact that public funds would be affected by not allowing a relevant document to be brought on record, I.A. No.2/2011 is allowed subject however to payment of cost of Rs.5,000/- payable to the claimants / legal representative of claimants. If this was placed, the Tribunal would have conclusively determined it. However, having regard to the fact that public funds would be affected by not allowing a relevant document to be brought on record, I.A. No.2/2011 is allowed subject however to payment of cost of Rs.5,000/- payable to the claimants / legal representative of claimants. The insurer requests this Court that the amount awarded by the Tribunal be setaside and an opportunity may be given to the insurer to file its statement as it was not liable to pay the compensation as awarded by the Tribunal. 6. The claim petition was filed in the year 2009. It is stated by the counsel for the insurer that the claimants are not alive and brother of the deceased has come on record as a legal representative. The notice issued to the brother of the claimant by this Court is served, but he is not represented. 7. The insurer was not able to demonstrate as how the quantum of compensation awarded by the Tribunal was excessive or unjustified. The deceased was aged 30 years at the time of the accident and the Tribunal considered his notional income at a sum of Rs.3,000/- per month. As he was not married, the petitioner No.1 was the only dependent. Thus, 50% of his income was deducted towards his personal expenses and adopting multiplier of 11 (based on the age of the mother) a total compensation of Rs.1,98,000/- was awarded towards loss of dependency and a sum of Rs.20,000/- was awarded under conventional heads. Hence, there is no error committed by the Tribunal in awarding compensation of Rs.2,18,000/-. Though this does not appear to be just compensation but as the original claimants are now not alive and the legal representatives of the original claimants was not a dependant on the deceased, the award of Rs.2,18,000/- does not call for interference. 8. However, since this Court has permitted the insurer to place on record the insurance policy which showed that the offending vehicle was not insured by the insurer as on the date of the accident, it is imperative that an opportunity is provided to the insurer to establish its claim before the Tribunal. Hence, the impugned award passed by the Tribunal fixing the liability to pay the compensation on the insurer is set aside. Hence, the impugned award passed by the Tribunal fixing the liability to pay the compensation on the insurer is set aside. The appeal is allowed in part and it is remitted back to the Tribunal only to identify and fix the liability on the person liable to indemnify the compensation awarded by the Tribunal. 9. The insurer shall deposit a cost of sum of Rs.5,000/- before the Tribunal. On such deposit, the Tribunal shall issue fresh notice to the legal representatives of the deceased and also permit the insurer to file its written statement and permit the parties to adduce additional evidence if required and pass appropriate orders within a period of six months from the date of receipt of a certified copy of this order. The amount in deposit is directed to be transferred to the Tribunal for further orders.