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2023 DIGILAW 365 (KAR)

National Insurance Co. Ltd v. Basheerahamed

2023-03-03

R.DEVDAS, RAJESH RAI K.

body2023
JUDGMENT/ORDER R.DEVDAS, J. - MFA No.103202/2016 and MFA No.100148/2017 are filed at the hands of the National Insurance Company, while MFA Cr. Ob. No. 100029/2017 filed in MFA No.100148/2017, and the MFA No.100290/2017 are filed by the claimants seeking enhancement of the compensation. 2. Since all these matters arise out of a common accident, the same are heard together and disposed off by this common judgment. 3. It was the case of the claimants that on 1/1/2015 a light motor vehicle Bolero bearing Reg.No.KA-25/P-6722 was being driven from Belagavi towards Bagalkot on the State Highway. The vehicle collided against a stationed lorry bearing Reg.No.KA-22/B-4249 and all the occupants of the Bolero vehicle were severely injured. Some of the occupants succumbed to the injuries and died. Insofar as the claim of the petitioners in MVC No.692/2015 and MFA Cr. Ob. No.100029/2017 is concerned, the contention is that the deceased Santosh Suresh Vannur was walking on the footpath and the Bolero vehicle came from behind, dashed against the deceased person throwing him of the ground and further the vehicle proceeded and dashed against the stationed lorry. Although it was contended on behalf of the appellant-Insurance Company that accident had occurred only due to the negligence of the lorry driver who had parked the vehicle on a State Highway without taking precautions, the said contention was negatived by the Tribunal and the Tribunal proceeded to award compensation to the claimants. However, since two appeals are filed at the hands of the Insurance Company, the contention of the Insurance Company shall be considered first. 4. Having regard to the evidence available on record, this court is of the considered opinion that Ex.P4 which is the spot sketch and panchanama corroborates with the contention raised by the claimants in MVC No.692/2015 (pedestrian). The spot sketch and panchanama clearly shows that the deceased Santosh Suresh Vannur was walking on the left side of the footpath on the State Highway and the offending vehicle Bolero came from behind and dashed against the pedestrian. Therefore, offending vehicle which was driven in a rash and negligent manner proceeded to collide with the stationed truck which was parked on the left side of the road. There is no doubt that the Bolero vehicle was being driven in a rash and negligent manner which was the cause for the accident. Therefore, offending vehicle which was driven in a rash and negligent manner proceeded to collide with the stationed truck which was parked on the left side of the road. There is no doubt that the Bolero vehicle was being driven in a rash and negligent manner which was the cause for the accident. Initially, having collided with a pedestrian who was walking on the foot path, the further course of the offending vehicle going and colliding with the stationed truck would also justify the contentions raised by the claimants that the Bolero vehicle was being driven in a rash and negligent manner and therefore, the blame cannot be shifted on the driver of the stationed truck, even if the tail lights were not put on as sought to be contended by the appellant-Insurance Company. 5. Learned counsel Sri.S.V.Yaji appearing for the appellant-Insurance Company seeks to place reliance on a decision of this Court in the case of New India Assurance Co., Ltd. Vs. Yousurf Basha and another reported in 2015 ACJ 1216 . No doubt, it has been opined that necessary care and precaution is required to be taken while parking heavy vehicles on the highways, if it is a national highway or State highway. However, having regard to the material available on record, it is clear that there can be no manner of doubt that the driver of the Bolero vehicle after colliding with a pedestrian, last control and thereafter proceeded to dash against the stationed truck. In that view of the matter, the fact matrix obtained in the present case is not the same as the case in Yousurf Basha supra which was cited by the appellant-Insurance company. In that view of the matter, this Court is of the considered opinion that the two appeals filed by the Insurance Company raising a challenge to the liability fastened on the Bolero Vehicle cannot be sustained. Accordingly, both the appeals filed by the National Insurance Company are liable to be dismissed. 6. Now coming to the appeal and cross appeal filed at the hands of the claimant, in the case of the pedestrian, Santosh Suresh Vannur in Cross Appeal No.100029/2017 is concerned, the victim was a 21 years old person who claimed to be working as a Mason. 6. Now coming to the appeal and cross appeal filed at the hands of the claimant, in the case of the pedestrian, Santosh Suresh Vannur in Cross Appeal No.100029/2017 is concerned, the victim was a 21 years old person who claimed to be working as a Mason. However, since no acceptable piece of evidence was placed by the parents who are the claimants to prove that deceased was working as Mason and that he was earning a particular salary, the Tribunal proceeded to consider the notional income of the deceased at the rate of Rs.7, 000.00 per month. The Tribunal adding 50% towards future prospectus. On this aspect of the matter, learned counsel for the appellantInsurance company submits that in the case of National Insurance Company Limited Vs. Pranay sethi and others, reported in AIR 2017 SC 5157 , the Hon'ble Supreme Court directed that in case of deceased who was self employed and there was no fixed salary, an addition of 40% of the income should be warranted and not 50% as taken by the Tribunal. In the considered opinion of this Court, there is substance in the submission of the learned counsel for the appellant-Insurance Company. However, the learned counsel for the claimants has pointed out to the chart maintained by this Court which is prepared at the instance of the Karnataka State Legal Services authority which would be guiding the notional income to be taken at a particular year. As per the said chart, if accident occurred in the year 2015, the notional income should be taken at Rs.8, 000.00 per month. 7. In that view of the matter, the award passed by the Tribunal is required to be reworked as follows: If the monthly income of the victim is taken at the rate of Rs.8, 000.00 and 40% of the same is added towards future income, it would work out to Rs.11, 200.00 per month. Since, the victim was an unmarried person, the income towards personal expenses at the rate of 50% is to be deducted. As rightly taken by the Tribunal, the multiplier that is required to be applied is 18' having regard to the age of the victim i.e. 21 years. The loss of dependency would therefore be Rs.12, 09, 600.00. In terms of the decision of the Hon'ble Supreme Court in the case of Magma General Insurance Co. Ltd., Vs. As rightly taken by the Tribunal, the multiplier that is required to be applied is 18' having regard to the age of the victim i.e. 21 years. The loss of dependency would therefore be Rs.12, 09, 600.00. In terms of the decision of the Hon'ble Supreme Court in the case of Magma General Insurance Co. Ltd., Vs. Nanu Ram @ Chuhru Ram & Others reported in 2018 ACJ 2782 , in case of death, the award under the head loss of consortium to the parents would be Rs.40, 000.00 each. Under the conventional heads, towards loss of Estate and towards Funeral expenses etc., a sum of Rs.15, 000.00each is awarded. Therefore, under the conventional heads in all a sum of Rs.1, 10, 000.00 is required to be awarded. The total of all the heads would works out to Rs.13, 19, 600.00. However, learned counsel for the claimants has pointed out that the Tribunal has taken into consideration the medical expenses having regard to the evidence placed on record and has awarded a sum of Rs.44, 000.00 under the head of medical expenses. Therefore, adding medical expenses of Rs.44, 000.00 to Rs.13, 19, 600.00, the total compensation that can be awarded is Rs.13, 63, 600.00 as against Rs.14, 03, 000.00 awarded by the Tribunal. 8. Insofar as the claimant in MFA No.100290/2017 is concerned, the victim is a student aged about 19 years who was studying in first year BA course. The Tribunal having taken into consideration the judgment of the Hon'ble Supreme Court rendered in the case of Ashvinbhai Jayantilal Modi Vs. Ramkaran Ramachandra Sharma reported in (2014) AIR SCW 6507, where the notional income of a medical student was taken at the rate of Rs.25, 000.00 per month, proceeded to hold that since BA course which the victim was studying is not professional course proceeded to consider Rs.10, 000.00 per month as the notional income of the victim. The learned counsel for the claimants would place reliance on a decision of Punjab and Haryana High Court in the case of Oriental Insurance Company Ltd., V/s Meenakshi and others reported in 2021(1)T.A.C.896(P & H). That was the case where victim was a student having completed B.Com., was pursuing her law degree. It is seen that decision of the Hon'ble Supreme Court in M.R.Krishna Murthi Vs. New India Assurance Co. Ltd. and others reported in 2019(2) T.A.C.1 was taken into consideration. That was the case where victim was a student having completed B.Com., was pursuing her law degree. It is seen that decision of the Hon'ble Supreme Court in M.R.Krishna Murthi Vs. New India Assurance Co. Ltd. and others reported in 2019(2) T.A.C.1 was taken into consideration. In the said case, it was held as follows: "In those cases where the victim of the accident is not an earning person but a student, while assessing the compensation for loss of future earning, the focus of the examination would be the career prospect and the likely earning of such a person in future. For example, where the claimant is pursuing a particular professional course, the poseer would be: what would have 4 of 6 been his income had he joined a service commensurating with the said Course. That can be the future earning." 9. Having regard to the said principles laid down by the Hon'ble Supreme Court, this Court is of the considered opinion that since the victim was studying BA Course and having regard to the fact that he was a District Level Player of Ball badminton having secured many certificates even at the hands of the State Government, the notional income of the victim cannot be equated to an ordinary unskilled labour. Therefore, in the considered opinion of this Court, the notional income of the victim should be taken at the rate of Rs.12, 000.00 per month. 40% of the income is required to be added towards future prospectus as directed in Pranay sethi's case. Since the victim was a student, 50% of the income is to be deducted towards personal expenses. Further, having regard to the age of the victim which was about 19 years as on the date of death, multiplier 18' was rightly considered by the Tribunal. Applying the above formula, the loss of dependency would workout to Rs.18, 14, 400.00. 10. In view of the judgment of the Hon'ble Supreme Court in Magma General Insurance Co. Ltd. (supra) the parents of the deceased are entitled for a sum of Rs.40, 000.00 each towards loss of consortium and a sum of Rs.15, 000.00 each towards loss of estate and funeral expenses. The total compensation to be awarded is Rs.19, 24, 400.00 as against Rs.18, 45, 000.00. Ltd. (supra) the parents of the deceased are entitled for a sum of Rs.40, 000.00 each towards loss of consortium and a sum of Rs.15, 000.00 each towards loss of estate and funeral expenses. The total compensation to be awarded is Rs.19, 24, 400.00 as against Rs.18, 45, 000.00. However, in respect of the rate of interest that is leviable in death cases would be 6% as rightly pointed out by the learned counsel for the insurance company. Having regard to the said aspect, the award amount shall be deposited by the Insurance Company before the Tribunal along with interest calculated at the rate of 6% p.a. from the date of filing of the claim petition till the date of deposit. The same shall be deposited within a period of four weeks from the date of receipt of a copy of this order. Registry is directed to transmit the amount deposited before this Court along with up-to-date interest, to the Tribunal so also the original records, forthwith.