SHARANAPPA MUYFAPPA UDAGATFI v. THE NATIONAL INSURANCE COMPANY LTD., DIVISIONAL MANAGER

(BY SRI SH1VAKUMAR S. BADAWADGI, ADV.) APPELLANT AND

1. SHARANAPPA S / 0. MU’ITAPPA UDAGAYFI, AGE 35 YEARS 0CC COOLIE R/O SHIRUR TQ BAGALKOT DIST. BAGALKOT.

2. K. V. SHIVAJI, AGE: MAJOR, 0CC: OWNER OF MIS. K.P.R. TRAVELS, RIO. BALAJI NAGAR. YADGIR. DIST: GULBARGA

3. THE NATIONAL INSURANCE CO. LTD., SHRIRAM SITE OFFICE. 2A PRAKASAM ROAD, T. NAGAR CHENNAI. TAMILNADU. (BY SRI HARSIIVARDHAN R. MALIPATIL, ADV., FOR R2 AND SRI C.S. KALBURGI, ADV., FOR R3) RESPONDENTS THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S. 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 25.06.2008 PASSED IN MVC NO. 23/2005 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) AND MEMBER MACT IX BASAVANA BAGEWADI. PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION OF RS.2,48,400/- @6% P.A. 4 MFA NO. 30268/2008 BETWEEN: NATIONAL INSURANCE CO. LTD., BILGUNDI COMPLEX OPP MINI VIDHANA SOUDHA GULBARGA REPRESENTED BY ITS ADMINISTRATIVE OFFICER. (BY SMT. PREETI S. PATIL, ADV.) APPELLANT AND

1. SHARANAPPA Sb. MUYFAPPA UDAGAYI]. AGE: 31 YEARS. 0CC: COOLIE R/O. SHIRUR TQ. BAGALKOT DIST. BAGALKOT.

2. MIS. K.P.R. TRAVELS NO. 5-1-263/6. SUGURESHWARNIVAS, BALAJI NAGAR. NEAR DHOKA JAIN SCHOOL, YADGIRI, DIST: GULBARGA. (BY SRI HARSHVARDHAN R. MALIPATIL, ADV., FOR Ri) .RESPONDENTS THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S. 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DTD: 25.06.2008 PASSED BY THE MACT, IN MFC NO.23/2005. BAGEWADI BASAVANA 5 THESE APPEALS COMING ON FOR HEARING. THIS DAY, THE COURT DELIVERED THE FOLLOWING JUDGMENT These three appeals are directed against judgment and award passed by MACT Basavana Begewadi in MVC No.23/2005 dated 25.06.2008, whereunder claim petition was allowed in part and liability is fastened on NEKRTC (herein referred to as ‘Corporation’ for the sake of brevity).

2. MFA No.30162/2008 is claimant’s appeal seeking for enhancement of compensation not being satisfied with the compensation of 2,48,40O/- awarded by the tribunal.

3. The wife of the deceased Smt. Hanumavva was travelling in a KSRTC bus bearing registration No.KA—33/A-4577 on 10.01.2005 and while said bus came near Krishna Canal on Nidagundi - Almatti road it capsized and fell into canal on account of the driver of 6 the bus by name Siddappa driving the same in rash and negligent manner resulting Smt. Hanumavva (amongst others including injuries sustained to other passengers) accordingly claim petition was husband seeking compensation.

4. Respondent Nos. 1 to 3 appeared on issuance of notice and filed their separate written statement. First respondent being RC holder of the offending vehicle stated that vehicle was insured with second respondent — Insurance Company and as such he be absolved from the liability if any. Other averments made in the claim petition was also denied. Second respondent — Insurance Company appeared and contended that contract of insurance of the offending vehicle was only with first respondent and since the vehicle had been given on hire i.e.. contract basis to the corporation by its owner Insurance Company need not pay the compensation arising out of such contractual 7 liability. All other averments made in the claim petition are denied.

5. On the basis of the pleadings of the parties tribunal framed issues for its determination. Claimant got himself examined as PW-3 and collectively claimants in all three cases got marked 25 documents as Ex.P- 1 to P-25. Administrative Officer of the Insurance Company was examined as RW- 1 and two documents were got marked namely Ex.R- land R-2.

6. On evaluation of the evidence on record tribunal allowed the claim petition M.V.C No.23/2005 in part and awarded total compensation of 2,48,40O/- under the following heads: Loss of dependency Loss of consortium Loss of estate Funeral expenses Transportation and rituals 1 .30.400/- Nil 10,000/- 3,000/- 5,000/- Total

2.48,400/- 8

7. Learned counsel the appellant would submit that he is confining his arguments in this appeal only with regard to compensation awarded under the heading “loss of income” or “loss of dependency” and for enhancement. Mr.Harshavardan Malipatil would contend that compensation awarded under the said heading is on the lower side and tribunal committed an error in taking the income of the deceased at 6O/- per day and it ought to have taken at 6,OOO/- per month, considering the fact that deceased was carrying on the avocation of milk vending business and also working as a coolie. He would also contend that appropriate multiplier to be adopted was 17 and tribunal committed an error in adopting multiplier of 16 and hence he prays for modification of the award.

8. Per contra, Smt.Preeti Patil learned counsel appearing for Insurance Company i.e., respondent herein would contend that compensation awarded under the judgment and award passed by the 9 tribunal Is Just and responsible and it does not call for interference and she prays for dismissal of the same.

9. Having heard the learned counsel for the appellant and first respondent it is noticed from the records that claimant has entered Into witness box and stated that he was dependant on his wife’s income solely. It has been contended that she was carrying on avocation of coolie work and she was also carrying milk vending business. No evidence whatsoever has been placed to prove these facts. No supporting witnesses have been examined and In the absence of any cogent evidence available on record the plea of the claimant that income of the deceased ought to be taken at ?6,000/- per month cannot be accepted. However, considering the age of the deceased as on the date of the accident beIng 23 years considering uncontraverted evidence of the claimant available on record, I am of the considered view that income of the deceased if taken at 8O/- per day same would be Just 4— l0 and realistic as against 60/- considered by the Tribunal and compensation under the heading loss of income/dependency is to be re-determined as under: (8Ox302,4O0/1/3rd =1,600x12x17=3,26,400/-)

10. Tribunal has awarded compensation under this heading in a sum of 2,30,400/-. Thus claimant is entitled for enhanced compensation of ‘96,OOO/- (3,26,400-2,30,400) with interest at 6% per annum. Re. MFA.No.30465/2009:

11. This appeal is by the Corporation directed against the judgment and award referred to above namely MVC.No.23/2005 dated 25.06.2008 contending that Corporation is not liable to pay the compensation. In view of the fact that offending vehicle was insured by its owner with the third respondent-National Insurance Company Limited. 1 1

12. A perusal of the record would go to show that as per the policy issued Exhibit RI., offending vehicle was insured with the third respondent. Only ground on which the Insurance company seeks to absolve itself from the liability to answer the award is on the ground that owner of the vehicle had given the offending vehicle on hire on contract basis to the Corporation and as such Insurance company is not required to indemnify such contractual claims. Learned advocates appearing for Corporation as wells as Insurance Company would submit that issue regarding indemnifying the claim is no more res-integra in view of the judgment of the Hon’ble Apex Court in the case of UPSRTC Vs. Kulsum and another reported in 2011(8) SCC 142. The Hon’ble Apex Court in Kulsums case has held as under:

45. “Thus, looking to the matter from every angle, we are of the considered opinion that Insurance Company cannot escape its liability of payment of compensation to Third 12 Parties or claimants. Admittedly, owner of the vehicle has not violated any of the terms and conditions of the policy or provisions of the Act. The owner had taken the insurance so as to meet such type of liability which may arise on account of use of the vehicle.

13. In view of the same and also in view of the fact that Division Bench of this Court under identical circumstances in MFA.No.8444/2007 connected matters disposed of on 2 1.09.2010 has held that liability would be on the Insurance company. I am the considered view that appeal filed by the Corporation deserves to be allowed and liability is to be fastened on the Insurance company. Judgment and award of Tribunal in directing Insurance company to recover the same from Corporation is also hereby set aside. Re. MFA.NO.30268/2008:

14. This appeal is by the Insurance company questioning the correctness and legality of the judgment 13 and award passed in MVC.No.23/2005 whereunder. Insurance company contends that there has been violation of terms of the policy since owner of the bus had given the offending vehicle on hire to the Corporation and thereby terms of the contract of Insurance policy was violated, it need not indemnify such claims.

15. In view of finding MFA.No.30465/2009 holding that Insurance company is liable to indemnify the claim. This appeal filed by the Insurance company is liable to be dismissed and it is also made clear that award of the Tribunal giving liberty to the Insurance company to recover amount from the Corporation would not arise since the said order and this Court MFA.No.30465/2009 by order of even date. 14

16. Accordingly, appeal filed by the Insurance company is liable to be rejected and accordingly it is hereby rejected.

17. In view of the discussions made herein above, following order is passed: ORDER and additional 1) MFA.30162/2008 is hereby allowed in part. Judgment and award passed by the Tribunal is modified compensation of 96,OOO/- is awarded to the claimant which shall carry interest at the rate of 6% per annum from the date of petition till the date of payment or deposit whichever is earlier. 2) The entire additional compensation awarded is ordered to be kept in any Nationalized Bank of claimants choice for a period of 5 years and claimant would be to withdraw periodical interest. entitled 3) MFA.No.30465/2009 is hereby allowed and the liability is fastened on the Insurance company 15 namely 3i1 respondent in this appeal and appellant/corporation is absolved of its liability. 4) MFA.No.30268/208 is hereby dismissed. 5) Insurance company shall deposit additional compensation as ordered herein above with interest and balance award amount with interest before Jurisdictional Tribunal within an outer limit of 6 weeks from the date of receipt of certified copy of the judgment and award, 6) The amount in deposit in MFA.No.30465/2009 is ordered to be refunded to the appellant KSRTC by the Registry. 7) The amount in deposit in MFA.No.30268/2008 ordered transmitted Jurisdictional Tribunal for disbursing the same to claimants. 8) Registry to draw the award accordingly. S. I 4 16 Suit. Preeti PaUl, learned counsel .18 permitted to file vakalathnama on behalf of respondent No.1 In MFA.No.30162/2008 and on behalf of appeflant In MFA.No.30268/2008 within three weeks from today. Srt/NB 2d/ I I I