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2020 DIGILAW 2037 (KAR)

Reliance General Insurance Co. Ltd. v. Asha L. , W/O Late Govindraj B. S.

2020-10-12

S.SUJATHA, SACHIN SHANKAR MAGADUM

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JUDGMENT : S. SUJATHA, J. This appeal is filed by the Insurance Company challenging the judgment and award dated 02.01.2016 passed in MVC No.77/2015 on the file of the Motor Accident Claims Tribunal, Bangalore (SCCH-14) ['Tribunal' for short] whereby the claim petition filed by the claimants/respondents has been allowed in part. 2. The claim petition was instituted by the legal representatives of the deceased Govindaraj. B.S., under Section 166 of the Motor Vehicles Act, 1988 ['Act' for short] claiming compensation, on account of the death of Sri.Govindaraj.B.S., in the road traffic accident. 3. The claimants had averred in the claim petition that the deceased Govindaraj while travelling as a pillion rider along with Sri. Venkatesh who was riding the motor cycle bearing No.KA-04-EV-2381 on 05.06.204, at about 8.30 a.m., met with the accident in question owing to the negligence of the driver of the private bus bearing Reg.No.KA-06-C-5312 [offending vehicle]. It was contended that due to the sudden impact of the offending vehicle ramming against the motor cycle in which the deceased was traveling, the rider and the pillion rider both fell down and sustained severe injuries. Immediately they were shifted to A.D.Giri hospital, B.G.Nagara, for first aid and then, they were shifted to Nimhans Hospital, Bangalore and thereafter they were shifted to Panacea hospital, Basaveshwarnagar, Bangalore, for further treatment. Venkatesh -rider of the motor cycle succumbed to the injuries on 7.6.2014 and Govindaraj-the pillion rider of the vehicle died due to the injuries on 9.6.2014. The claimants contended that the deceased Govindaraj was aged about 35 years and earning Rs.30,000/-per month. Due to the sudden and untimely death of the sole bread earning member, the claimants are suffering mental agony and shock. 4. On service of notice, respondent No.1 remained absent and was place exparte. The respondent No.2 insurer appeared before the Tribunal and contested the claim by filing objections. The defence set out was that there was no negligence on the part of the driver of the insured vehicle. The accident has occurred due to the negligence of the rider of the motor cycle; the insured vehicle was not involved in the accident in question; the compensation claimed by the claimants is excessive and unreasonable. 5. On the basis of the pleadings, issues were framed and answered in the affirmative, awarding total compensation of Rs.19,68,000/-with interest at 9% p.a. from the date of petition till its realization. 6. 5. On the basis of the pleadings, issues were framed and answered in the affirmative, awarding total compensation of Rs.19,68,000/-with interest at 9% p.a. from the date of petition till its realization. 6. Being aggrieved, the insurer is in appeal challenging the quantum of compensation awarded as excessive and arbitrary. 7. Learned counsel for the insurer submitted that the material evidence on record evinces negligence on the part of the rider of the motor cycle. However, the claimants filed a false complaint against the driver of the offending vehicle in order to make unlawful gain. 8. Learned counsel for the appellant-insurer submitted that the income of the deceased determined at Rs.8,000/-per month without there being any documentary evidence to support the same is exorbitant. The addition of 50% made towards future prospects is not in conformity with the well established principles of law enunciated by the Hon'ble Apex Court in catena of judgments. Similarly compensation awarded under the conventional heads is excessive. Accordingly, he sought for the compensation to be reduced. 9. Learned counsel for the claimants supporting the impugned judgment and award submitted that the Tribunal on appreciation of the oral and documentary evidence has rightly fixed the negligence on the driver of the offending vehicle. The police have filed charge sheet against the driver of the offending vehicle. The insurer has failed to establish the factum of negligence on the part of the driver of the motor cycle except making false allegations. Further, it was submitted that as the compensation awarded under the different heads is just and reasonable, the same requires to be confirmed dismissing the appeal. 10. Having heard the learned counsel for the parties and perusing the original records, the points that arise for our consideration are: 1. Whether the Tribunal was justified in fixing the negligence on the part of the driver of the offending vehicle and saddling the liability on the insurer to indemnify the registered owner of the offending vehicle? 2. Whether the compensation awarded by the Tribunal is just and proper? 11. Re. Point No.1 : The negligence is attributed by the insurer on the driver of the motor cycle alleging that the negligence of the rider of the motor cycle has resulted in causing the accident. 2. Whether the compensation awarded by the Tribunal is just and proper? 11. Re. Point No.1 : The negligence is attributed by the insurer on the driver of the motor cycle alleging that the negligence of the rider of the motor cycle has resulted in causing the accident. Further it was asserted that the driver of the offending vehicle was not holding valid and effective Driving Licence on the date of the accident, but failed to substantiate the same. 12. On the other hand, the police records would disclose that the driver of the offending vehicle was charge sheeted for the offences punishable under Sections 279 and 304(A) of IPC. Having regard to the material evidence available on record, the Tribunal has rightly held that the insurer has failed to prove breach of conditions of the policy and as such cannot be exonerated from the liability. 13. On re-appreciation of evidence, we concur with the findings of the Tribunal as no substantial evidence has been placed by the insurer to establish the factum of negligence on the part of the rider of the motor cycle. 14. Re. Point No.2: As regards the quantum of compensation, it is not in dispute that this court is determining the monthly income notionally where no cogent positive evidence is made available to establish the actual income of the victim of the road accident as per the chart prepared by the Karnataka State Legal Services Authority. Hence, we deem it appropriate to fix the monthly income of the deceased at Rs.8,500/-notionally. 40% of the said income has to be added towards future prospects in terms of the judgment of the Hon'ble Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others ( (2017)16 SCC 680 ). Applying the multiplier of 16 considering the age of the deceased as 33 years, deducting 1/4th of the income towards personal and living expenses of the deceased, loss of dependency would work out to Rs.17,13,600/-(Rs,11,900/-x 12 x 16 x ¾). The claimants are entitled to compensation under the conventional heads in terms of the judgment of Hon'ble Apex Court in Pranay Sethi, supra and New India Assurance Company Limited V/s. Somwati and Others [Civil Appeal No.3093 of 2020 and Connected matters, D.D. on September 7, 2020] 15. The claimants are entitled to compensation under the conventional heads in terms of the judgment of Hon'ble Apex Court in Pranay Sethi, supra and New India Assurance Company Limited V/s. Somwati and Others [Civil Appeal No.3093 of 2020 and Connected matters, D.D. on September 7, 2020] 15. Applying the principles laid down by the Hon'ble Apex Court in the aforesaid judgments, the compensation is re-assessed as under: Sl.No. Particulars Amount [in Rs.] 1. Loss of dependency 17,13,600 2. Loss of parental consortium 40,000 3. Loss of filial consortium 80,000 4. Loss of spousal consortium 40,000 3. Loss of Estate 15,000 4. Towards Funeral expenses 15,000 5. Towards Medical expenses 35,000 Total 19,38,600 Thus, the claimants are entitled to total compensation of Rs.19,38,600/-. Having regard to the rate of interest of the nationalized banks and the interest awarded at 6% p.a. consistently in catena of judgments by this court, we deem it proper to award the rate of interest at 6% p.a. from the date of petition till its realization. Hence, the following: ORDER (i) The appeal is allowed in part. (ii) The total compensation awarded by the Tribunal is modified and reduced to Rs.19,38,600/- (Rupees Nineteen laksh thirty eight thousand six hundred only) as against Rs.19,68,000/- which shall carry interest at the rate of 6% per annum from the date of the claim petition till its realization. (iii) The portion of the order of the Tribunal inasmuch as liability, apportionment and disbursement remains intact. (iv) The insurance company shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order. (v) The modified compensation amount shall be apportioned and disbursed in terms of the order of the Tribunal. (vi) Draw modified award accordingly. (vii) The Registry shall transfer the amount in deposit with original records to the jurisdictional Tribunal forthwith.