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Karnataka High Court · body

2020 DIGILAW 2145 (KAR)

National Insurance Company Ltd v. Sushma H R

2020-11-02

ALOK ARADHE, H.T.NARENDRA PRASAD

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JUDGMENT Narendra Prasad, J. - Mfa Nos.3402/2016 and 3403/2016 are filed by the insurance company challenging the judgment and award passed in MVC No.2260/2013 dated 09.12.2015 on the file of MACT, Bengaluru and MVC No.1090/2013 dated 18.04.2015 on the file of the MACT at Hassan, respectively, whereas MFA Nos.426/2016 and 9787/2017 are filed by the claimants in MVC No.2260/2013 under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act , for short). Since, all the appeals arise out of the same accident, they are heard together and are being decided by this common judgment. 2. Facts giving rise to the filing of the appeals briefly stated are that on 02.01.2013 the deceased persons B.J.Vinay, H.R.Srinivas and Janardhan were proceeding in a car bearing registration No.KA-02/MC- 4174 on Tirupati - Bangalore by-pass road. When they reached near Gandlakothur village, Yadamari Mandal, Chittoor district, Andhra Pradesh the lorry bearing registration No.KA-19/C-2163 drove the same in a rash and negligent manner, dashed against the opposite coming car. As a result of the aforesaid accident, the deceased persons sustained grievous injuries and succumbed to the injuries. 3. The claimants filed a petition under Section 166 of the Act on the ground that the deceased were aged about 29 years and 35 years, respectively, at the time of accident and were running bakery and were earning Rs.5,99,902/- per annum and Rs.50,000/- per month, respectively. The claimants claimed compensation to the tune of Rs.4,20,00,000/- and Rs.50,00,000/- respectively along with interest. In MVC No.2260/2013: 4. On service of summons, the respondent Nos. 1 to 4 appeared through counsel and filed written statement in which the averments made in the petition were denied. It was pleaded by respondent Nos.1 to 3 that the accident took place due to the rash and negligent driving of the car by its driver. It was pleaded by respondent Nos. 1 and 2 that the driver and owner of the car are not made as parties to the petition and the claimants have filed a false complaint with the collusion of the police for the wrongful gain. It was pleaded by the respondent No.3 that the liability, if any, is subject to the terms and conditions of the policy. 1 and 2 that the driver and owner of the car are not made as parties to the petition and the claimants have filed a false complaint with the collusion of the police for the wrongful gain. It was pleaded by the respondent No.3 that the liability, if any, is subject to the terms and conditions of the policy. It was pleaded by the respondent No.4that the accident took place due to the negligence on the part of the driver of the lorry alone and on investigation the police have filed charge sheet against the driver of the lorry. It was further pleaded by respondent Nos. 1 to 4that the quantum of compensation claimed by the claimants is exorbitant. Hence, they sought for dismissal of the petition. In MVC No.1090/2013: 5. On service of summons, the respondent No.2 appeared through counsel and filed written statement in which the averments made in the petition were denied. It was pleaded that the accident took place due to the rash and negligent driving of the car by its driver. It was further pleaded that the police had lodged a false complaint in respect of the accident to help the claimants to grab the compensation illegally from the respondents. It was further pleaded that the driver of the car was not holding valid and effective driving licence to drive the car and he himself is responsible for the accident. It was further pleaded that the driver of the offending lorry was not holding a valid and effective driving licence and there is violation of terms and conditions of the policy. It was further pleaded that the quantum of compensation claimed by the claimants is exorbitant. Hence, they sought for dismissal of the petition. 6. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. In MVC No.2260/2013, the claimants, in order to prove their case, examined claimant No.1 wife of the deceased as PW-1 and got exhibited documents namely Ex.P1 to Ex.P16. On behalf of respondents, five witnesses were examined as RW-1 to RW-5 and got exhibited documents namely Ex.R1 to Ex.R18. In MVC No.1090/2013, the claimants, in order to prove their case, examined claimant No.1 wife of the deceased as PW-1 and got exhibited documents namely Ex.P1 to Ex.P8. On behalf of respondents, five witnesses were examined as RW-1 to RW-5 and got exhibited documents namely Ex.R1 to Ex.R18. In MVC No.1090/2013, the claimants, in order to prove their case, examined claimant No.1 wife of the deceased as PW-1 and got exhibited documents namely Ex.P1 to Ex.P8. On behalf of respondents, two witnesses were examined as RW-1 and RW-2 and got exhibited documents namely Ex.R1 to Ex.R3. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the deceased sustained injuries and succumbed to the injuries. The Tribunal further held that the claimants are entitled to a compensation of Rs.13,28,000/- and Rs.24,39,480/- respectively, along with interest at the rate of 6% p.a. and directed the insurer of the offending lorry to deposit the compensation amount along with interest. Being aggrieved, insurance company has filed MFA Nos.3402/2016 and 3403/2016 and claimants in MVC No.2260/2013 have filed MFA Nos.426/2016 and 9787/2017. 7. The learned counsel for the insurance company has raised the following contentions: Firstly, the accident has occurred due to the rash and negligent driving of the driver of the car. The Tribunal has wrongly given a finding that the driver of the lorry is negligent in causing the accident. Secondly, the Tribunal only on the basis that the FIR is lodged against the driver of the lorry and charge sheet has been filed against the driver of the lorry has held that he is negligent. Under Section 166 of the Motor Vehicles Act it is the burden on the claimants to prove the negligence of the driver of the offending vehicle, but they have not proved the same by examining any independent witnesses. The Tribunal without any materials on record erred in holding issue No.1 as affirmative. Thirdly, as per Ex.R5 the permit issued to the lorry is only to ply in the States of Karnataka, Haryana, Rajastan, Maharashtra, Madhya Pradesh, Gujarat and Delhi and the accident occurred in Andhra Pradesh. The owner of the lorry has violated the policy conditions. Hence, the insurance company is not liable to pay the compensation. Thirdly, as per Ex.R5 the permit issued to the lorry is only to ply in the States of Karnataka, Haryana, Rajastan, Maharashtra, Madhya Pradesh, Gujarat and Delhi and the accident occurred in Andhra Pradesh. The owner of the lorry has violated the policy conditions. Hence, the insurance company is not liable to pay the compensation. Fourthly, in the photographs produced before the Tribunal it is very clear that the driver of the car went to extreme right side of the road and dashed against the lorry which was coming in the correct direction. But the Tribunal totally ignored the evidence lead by the insurance company. Fifthly, in MVC No.2260/2013 even though the claimants have claimed that deceased was earning Rs.5,99,902/- as per the income tax returns by running L.J.Bakery, in their evidence the claimants have admitted that even after the death of Vinay they were continuing the bakery. There is nothing to show that they have closed the bakery. Therefore, the Tribunal has rightly considered the notional income of the deceased as Rs.6,000/- per month. Sixthly, contrary to the law laid down by the Hon ble Apex Court in the case of NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS, (2017) AIR SC 5157 the Tribunal considered addition of future prospects at 50% instead of 40%. Hence, she sought for allowing of the appeals filed by the insurance company. 8. On the other hand, the learned counsel appearing for the claimants in MVC No.2260/2013 raised the following contentions: Firstly, the deceased was running a bakery and he was earning Rs.5,99,902/- per annum. To prove his income, the claimants have produced the income tax returns as per Ex.P8. The bakery stands in the personal name of the deceased, it is not a joint family property. There is no material placed before the Court to show that after the death of the deceased the mother-in-law was running the bakery business. Due to the death of Vinay the claimants have lost income of Rs.5,00,000/- per annum. The Tribunal failed to consider the same and erred in assessing the monthly income of the deceased as Rs.6,000/-. Secondly, as per the judgment of the Hon ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LTD. V- NANU RAM, (2018) ACJ 2782 , each of the claimants are entitled for compensation under the head of loss of love and affection and consortium . Secondly, as per the judgment of the Hon ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LTD. V- NANU RAM, (2018) ACJ 2782 , each of the claimants are entitled for compensation under the head of loss of love and affection and consortium . Hence, he sought for allowing the appeal filed by the claimants. 9. The learned counsel for the owner of the offending lorry has raised the following contentions: Firstly, the vehicle is covered by the insurance. The lorry has national permit to ply the vehicle. As per Ex.R10 the owner of the lorry has obtained authorization certificate from the competent authority in Form No.47 under Rule 87(2) of Central Motor Vehicles Rules, 1989. The authorization was issued on 21st September 2012. It has permit to ply throughout the territory of India upto 23rd September 2013. Therefore, the owner of the lorry has not violated the policy conditions. Therefore, insurance company has to pay the compensation awarded by the Tribunal. Hence, he sought for dismissal of the appeals filed by the insurance company. 10. We have considered the submissions made by the learned counsel for the parties and have perused the records. 11. The case of the claimants is that on 02.01.2013 at about 6.30 a.m. H.R.Srinivasa, Janardhan and Vinay were returning from Tirupati in a car bearing registration No.KA-02/MC-4174. At that time, the driver of the lorry bearing registration No.KA-189/C-2163 came in a rash and negligent manner and dashed against the car and caused the accident. As a result of the said accident Srinivasa died at the spot and Janardhan and Vinay succumbed to the injujries at the hospital. To prove their case, wife of the deceased in both the cases were examined as PW1 in the respective cases. They have specifically stated that the accident has occurred due to the rash and negligent driving of the driver of the offending vehicle. To disprove the same respondent Nos. 1 and 2 owner and insurer of the offending lorry have filed written statement stating that the accident has occurred due to the rash and negligent driving of the driver of the car. To disprove the same respondent Nos. 1 and 2 owner and insurer of the offending lorry have filed written statement stating that the accident has occurred due to the rash and negligent driving of the driver of the car. The insurer of the lorry has filed written statement contending that there is no nexus between the injury sustained by the deceased persons and the offending vehicle and further contended that the accident has occurred due to the rash and negligent driving of the driver of the car. The insurer of the car has filed the written statement contending that the accident took place due to the negligence of the driver of the offending lorry. The insurer of the lorry has examined the driver of the offending vehicle. In his evidence he has admitted that he had been to police station and he has not filed complaint against the driver of the car. Immediately after the accident police have registered the FIR against the driver of the lorry and he was arrested on the same day and his vehicle was seized from the place of the accident by the investigating officer. After thorough investigation the police have filed charge sheet against the driver of the lorry. Due to the accident the car was badly damaged. By perusing the aforesaid evidence of the parties and the documents produced it is very clear that there is no dispute regarding the involvement of the vehicles and the accident. Even in the evidence of PW1 it is clear that the accident has occurred due to the rash and negligent driving of the driver of the lorry. The owner and the insurer of the lorry have not cross-examined PW-1 and the driver of the lorry has not given any complaint against the driver of the car. Even though the insurer of the lorry has made emphasis on the photographs marked as Ex.P15 they have not proved the photographs by examining the person who has taken the photographs or the investigating officer. Except examining the driver of the offending vehicle they have not examined any other witness like cleaner of the lorry or any eyewitness to the accident. Except examining the driver of the offending vehicle they have not examined any other witness like cleaner of the lorry or any eyewitness to the accident. Therefore, the Tribunal only on the basis of the evidence of the parties and the documents produced has rightly held that the driver of the lorry is negligent in causing the accident and we do not find any error in the said finding recorded by the Tribunal. 12. In respect of the contention of the insurance company that at the time and place of the accident, the owner of the lorry had no valid permit to ply the vehicle in Andhra Pradesh, as per Ex.R10 Authorization Certificate issued by the competent authority in Form No.47 under Rule 87(2) of Central motor Vehicles Rules, 1989 dated 21st September 2012, it is valid throughout the territory of India upto 23rd September 2013. Therefore, the contention of the insurance company that the offending vehicle had no valid permit to ply at the place of the accident cannot be accepted. The Tribunal has rightly considered the contention of the parties and held that the insurer of the lorry is liable to pay the compensation. 13. In respect of quantum of compensation in MVC No.2260/2013 is concerned, the deceased Vinay was running a bakery and he has produced the income tax returns for the year 2012-13 and there was a profit of Rs.5,99,902/-. In the evidence of PW-1 she has stated that this is the only income they had for their livelihood. Taking into consideration the evidence of the claimant, income tax returns as per Ex.P8, age and avocation of the deceased, we are of the opinion that the monthly income of the deceased can be assessed as Rs.10,000/-. To the aforesaid amount, 40% has to be added on account of future prospects in view of the law laid down by the Constitution Bench of the Supreme Court in NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS, (2017) AIR SC 5157 (supra). Thus, the monthly income comes to Rs.14,000/-, out of which, we deem it appropriate to deduct 1/3rd towards personal expenses and therefore, the monthly income comes to Rs.9,333/-. The deceased was aged about 29 years at the time of the accident and multiplier applicable to his age group is 17 . Thus, the monthly income comes to Rs.14,000/-, out of which, we deem it appropriate to deduct 1/3rd towards personal expenses and therefore, the monthly income comes to Rs.9,333/-. The deceased was aged about 29 years at the time of the accident and multiplier applicable to his age group is 17 . Thus, the claimants are entitled to compensation of Rs.19,03,932/- (Rs.9,333*12*17) on account of loss of dependency . In view of the law laid down by the Hon ble Supreme Court in the case of MAGMA GENERAL INSURANCE COMPANY LTD (supra), claimant No.1, wife of the deceased is entitled for compensation of Rs.40,000/- under the head of loss of spousal consortium , claimant No.2, son is are entitled for compensation of Rs.40,000/- under the head of loss of parental consortium and claimant No.3, mother of the deceased is entitled for compensation of Rs.40,000/- under the head loss of filial consortium . In addition, the claimants are entitled to Rs.15,000/- on account of loss of estate and Rs.15,000/- on account of funeral expenses . 14. Thus, the claimants in MVC No.2260/2013 are entitled to the following compensation: Compensation under different Heads Amount in (Rs.) Funeral expenses 15,000 Loss of estate 15,000 Loss of spousal consortium 40,000 Loss of Parental consortium Loss of Filial consortium 40,000 40,000 Total 20,53,932 The claimants are entitled to a total compensation of Rs.20,53,932/-. The insurer of the lorry is directed to deposit the compensation amount along with interest within a period of four weeks from the date of receipt of copy of this judgment. Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 6% p.a. from the date of petition till payment is made. To the aforesaid extent, the judgment of the Claims Tribunal is modified. The amount in deposit is ordered to be transmitted to the Tribunals, forthwith. Accordingly, the appeals are disposed of.