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2022 DIGILAW 1341 (KAR)

New India Assurance Co. Ltd. v. Kumar

2022-10-11

NATARAJ RANGASWAMY

body2022
JUDGMENT Nataraj Rangaswamy, J. - The insurer of the motor vehicle bearing registration No. KA-22/B-0296 which was involved in an accident that occurred on 11.02.2010, has filed this appeal challenging the liability imposed upon it to pay the compensation to the claimant. 2. It is stated that the younger brother of the claimant was employed as a cleaner in the vehicle bearing registration No. KA-22/B-0296. On 11.02.2010 when the deceased was traveling in the vehicle, the driver lost control and dashed against a median and thereafter, dashed against a bridge guard barricade put up on the Markhandeya river bridge. As a result of the accident, the driver as well as the deceased suffered C/W MFA.CROB No. 896 of 2013 injuries and succumbed at the spot. The deceased was aged 22 years and was earning wages of Rs. 4,000/-p.m. including bata. The claimant therefore filed a claim petition contending that he was dependant upon the deceased. The claimant initially filed M.V.C. No. 1150/2011 and thereafter withdrew it to file a petition for compensation under the Employees' Compensation Act, in W.C. No. 66/2011 which too was withdrawn and a fresh claim petition was filed in M.V.C. No. 1073/2012. The Insurer opposed the claim petition and contended that the claimant was not dependent on the deceased and therefore, he was not entitled to claim any compensation. It was contended that the claimant was only entitled to the loss of estate. The Tribunal after considering the oral and documentary evidence held that the claimant is entitled to compensation and determined the same by treating the income of the deceased at a sum of Rs. 4,000/-p.m. and deducted 50% towards his personal expenses and awarded the following compensation: 3. The Tribunal directed the insurer to pay the compensation along with interest at the rate of 9% p.a. from the date of petition till the date of realization. 4. Being aggrieved by the said judgment and award, this appeal is filed by the Insurer. The claimant has also filed cross objection seeking enhancement of the compensation on the ground that the Tribunal ought to have considered the notional income of the deceased at a sum of Rs. 5,500/-p.m. and must have factored the future prospects at 40%. He further contended that the Tribunal failed to award compensation towards the loss of filial consortium. 5. The claimant has also filed cross objection seeking enhancement of the compensation on the ground that the Tribunal ought to have considered the notional income of the deceased at a sum of Rs. 5,500/-p.m. and must have factored the future prospects at 40%. He further contended that the Tribunal failed to award compensation towards the loss of filial consortium. 5. The learned counsel for the Insurer contended that the deceased was a bachelor while the claimant was his elder brother, who cannot be a dependant. He contended that the claimant can at the most claim loss of estate and nothing else. He contended that once the claimant had elected to avail the remedy under the Motor Vehicles Act, 1988, he could not have availed the benefit under the Workmen's Compensation Act, C/W MFA.CROB No. 896 of 2013 1923 and after doing so, he could not again invoke the provisions of the Motor Vehicles Act, 1988. Alternatively, he contended that the deceased was an employee traveling in the vehicle and no additional premium was paid by the insured for covering the liability to an employee as the liability was only to the extent as provided under the Employees Compensation Act, 1923. The learned counsel contended that the claimant was not a dependant and therefore, was not entitled to claim loss of dependency but was entitled to only the loss of estate. In this regard, he relied upon the judgment of the Hon'ble Apex Court in National Insurance Company Limited Vs. Prembai Patil And Others reported in 2005 ACJ 1323 as well as the judgment of a Constitution Bench of this Court in Bhimavva And Others Vs. Shankar And OtherS reported in 2003 ACJ 1829 . 6. I have considered the submissions made by the learned counsel for the parties. 7. It is not in dispute that the claimant was the younger brother of the deceased. The claimant had filed M.V.C. No. 1150/2011 which was withdrawn and thereafter C/W MFA.CROB No. 896 of 2013 W.C. No. 66/2011 was filed claiming compensation under the W.C.Act, 1923. The claimant perhaps realizing that the claim petition under Section 21 of the Act of 1923 was not maintainable as he was not a dependant as defined under the Act, withdrew it and filed M.V.C. No. 1073/2012. The Tribunal instead of considering the notional income of the deceased as Rs. 4,500/-p.m., treated it as of Rs. The claimant perhaps realizing that the claim petition under Section 21 of the Act of 1923 was not maintainable as he was not a dependant as defined under the Act, withdrew it and filed M.V.C. No. 1073/2012. The Tribunal instead of considering the notional income of the deceased as Rs. 4,500/-p.m., treated it as of Rs. 4,000/-p.m. and did not factor the loss of future prospects. The Tribunal also did not award adequate compensation towards the loss of filial consortium and towards loss of estate and other expenses. 8. The contention of the learned counsel for the Insurer that the claimant was not a dependant and therefore, was not entitled to compensation, is not sustainable in view of the judgment of the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Birender And Others ( 2020 ACJ 759 ), where the Apex Court while considering the question whether the legal representative of a deceased in motor vehicle accident have a right to apply for compensation and held as follows: "15. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependant on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meagre income between Rs. 1,00,000/-and Rs. 1,50,000/-per annum. In that sense, they were largely dependant on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years." 9. In that view of the matter, it is held that the claimant was entitled to claim compensation due to the death of the deceased. 10. Further, the Tribunal must have considered the income of the deceased at the rate of Rs. In that view of the matter, it is held that the claimant was entitled to claim compensation due to the death of the deceased. 10. Further, the Tribunal must have considered the income of the deceased at the rate of Rs. 4,500/-p.m. as claimed in the claim petition and must have factored 40% of his income as loss of future prospects and must have deducted 50% towards his personal expenses and must have awarded C/W MFA.CROB No. 896 of 2013 the compensation. The Tribunal committed an error in awarding interest at the rate of 9% p.a. In that view of the matter, the compensation to which the claimant is entitled to as follows: 11. In view of the above, the compensation awarded by the Tribunal is enhanced by a sum of Rs. 3, 03,400/- 12. The other contention raised by the Insurer that the deceased was employed in a truck and therefore, the liability of the Insurer is only restricted to the liability governed under the Workmen's Compensation Act, 1923, is liable to be rejected, as the insurer did not place on record the copy of the policy of insurance to verify whether it was only an Act policy or a package policy or a Workmen's Compensation policy only. Even otherwise, since the claimant did not fit into the definition C/W MFA.CROB No. 896 of 2013 of 'dependant' as defined under the Employees Compensation Act, 1923, he was justified in withdrawing the claim and representing a petition under Section 166 of the Motor Vehicles Act, 1988. Further, under Section 167 of the Motor Vehicles Act, the claimant has right to elect between the two remedies available to him and therefore, the contention urged by the Insurer that its liability is only governed under the Workmen's Compensation Act, is liable to be rejected. 13. The enhanced compensation is payable by the Insurer along with interest at the rate of 6% p.a. from the date of claim petition till the date of realization. The enhanced compensation shall be deposited within one month from the date of receipt of a copy of this order. 14. The amount in deposit is ordered to be transferred to the Tribunal for further orders.