The Divisional Manager, National Insurance Co. Ltd. vs Bayamma and Others

Ram Mohan Reddy, J.—Though this appeal is listed for orders, with the consent of the learned counsel for the parties, is finally heard and disposed of by this order. The Insurance Company aggrieved by the common judgment and award dated 25th February, 2013 in MVC Nos. 588/2012 and 594/2012 of the Fact Track Court, Basavakalyan, Bidar district, in so far as it relates to MVC No. 588/2012 has presented this appeal on 5th February, 2013, accompanied by I.A. No. 1/2013 to condone the delay of 121 days.

In the affidavit accompanying I.A. No. 1/2013 the Administrative Officer of the applicant states that though the Tribunal passed the orders on 25.02.2013, the counsel for the applicant filed an application for issue of certified copy of the said order on 01.06.2013 which was received on 10.06.2013 and forwarded along with his opinion. Thereafterwards, it is stated, that the file was sent from Gulbarga to Hubli Regional Office and according to norms the file was sent to their counsel in Hubli for opinion, after receiving the opinion and collecting all the papers, the same was entrusted to the counsel to prefer an appeal only a week ago. Hence the appeal together with an application.

The explanation smack of inter departmental inertia, very common of insurance companies. We have noticed that in almost every appeal there is delay in initiating proceedings to file the appeal, invariably with the stock explanation that the file was transmitted from one place to another along with opinions. In the instant case too, relevant dates and material particulars about the officers, the transfer of the file from one place to another place and the learned counsel who rendered an opinion in Hubli, are not forthcoming. In short, there is no material to show sufficient cause for the inordinate delay of 121 days in filing the appeal.

Be that as it may, having examined the common judgment and award in so far as it relates to MVC No. 588/2012, the MACT extracted the head note of the decision in Fareeda and others v. Venkat Reddy and others, reported in 2012 Kant M.A.C. 64 (Kant), and jumped to the conclusion that the deceased Bheem, aged 40 years as on 12.06.2012, the date of accident and death,. was a Mason by occupation entitled to reckon Rs. 400/- as the daily income and deducting 1/4th for his personal expenses arrived at Rs. 300/- per day as the daily loss of dependency and the monthly loss as Rs. 9,000/- and applied multiplier ''15'' to the annual loss, to award Rs. 16,20,000/- towards total loss of dependency, to which was added Rs. 45,000/- under the conventional heads to award Rs. 16,65,000/- as the total compensation.

There is force in the submission of the learned counsel for the appellant that the MACT was not justified in reckoning Rs. 400/- per day as the income of the deceased, in the absence of relevant material constituting substantial legal evidence of the fact that he was a Mason by. avocation and earned Rs. 400/- per day. In the circumstances, we think it appropriate to reckon Rs. 250/- as the daily income of the deceased, aged 40 years on the date of accident and death, having regard to the inflationary trends and the cost of living during the year 2012, whence it is common knowledge that an ordinary coolie in the State of Karnataka would earn in the least Rs. 250/- per day. The deceased left behind 7 dependants hence deducting 1/5th towards his personal expenses, the daily income of the deceased is Rs. 200/- while the annual loss of dependency is Rs. 72,000/- and applying multiplier ''15'' commensurate with the age of the deceased, the loss of dependency is Rs. 10,80,000/-. Adding Rs. 45,000/- under conventional heads, the claimants are; entitled is Rs. 11,25,000/- as compensation as against Rs. 16,65,000/- awarded by the MACT.

Learned counsel for the appellant submits that a fraud is played upon the Insurance Company by the Police department since FIR when registered, admittedly nobody knew which motor vehicle dashed against the deceased Vishwanath and Bheem said to be pedestrians. The records disclose that on the date of accident and death of the two pedestrians, it is no doubt true the case was registered by the police against an unknown vehicle. Nevertheless after an investigation the police found that the lorry bearing Reg. No. AP-28/TA-6941 caused the accident and accordingly the driver of the said vehicle was charge sheeted. The police records such as Ex.P1 the FIR, its translation Ex.P2; Ex.P3 the crime details and its translation Ex.P4; Ex.P5 the inquest panchanama and Ex.P6 its translation; Ex.P7 the post mortem report of deceased Bheem; Ex.P8 IMV report, Ex.P9 the statement of one Narsing and its translation Ex.P10; statement of Govind Ex.11 and his further statement Ex.P12, true translations Ex.P13 and Ex.P14, coupled with the statement of Dilip and his further statement Ex.P15 and Ex.P16 respectively, translations at Ex.P17 and Ex.P18 and Exs.P19 to P26 the statements of the charge sheet witnesses, together establish the fact of the accident that occurred on 12.06.2012 at about 8.45 PM on NH-9 Road on Tururi village in front of Yogesh Pan Shop. Thus the evidence, both documentary and oral the claimants P.W.1 and P.W.2 prove the fact of the accident in which Bheem suffered injuries and succumbed to those injuries. The defence put forth by the Insurance Company that the vehicle in question was not involved in the accident remained unestablished since no witnesses were examined, much less, documents produced. It was open for the Insurance Company to have called upon the insured and the driver to place before the Court the log sheet of the vehicle in order to ascertain as to whether or not on the said date and time the vehicle was plying on that particular road. In short, the Insurance Company having exhibited inertia and failed to establish its defence, we are not inclined to interfere with the finding on actionable negligence recorded by the MACT in the award impugned.

The explanation to condone the delay of 121 days, supra, is far from satisfactory, nevertheless having noticed that the quantum of compensation is on the higher side, we think it appropriate to allow I.A. No. 1/2013 and condone the delay of 121 days in filing the appeal. In the result, this appeal is allowed in part. The judgment and award in MVC No. 588/2012 is modified entitling the claimants to Rs. 11,25,000/- as against Rs. 16,65,000/- and in all other respects remains unaltered.