IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06TH DAY OF AUGUST, 2019 PRESENT THE HON’BLE MRS. JUSTICE B V NAGARATHNA AND THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR M.F.A.NO.5699 OF 2018 (MV D) C/W M.F.A.NO.2847 OF 2016 (MV D) IN M.F.A.NO.5699/2018: BETWEEN:
1. SMT.ASHA RANI, AGED ABOUT 28 YEARS, W/O LATE MUNEGOWDA.
2. KUMARI, NEETHU, D/O LATE MUNEGOWDA, AGED ABOUT 10 YEARS.
3. MASTER HARISHAT GOWDA, AGED ABOUT 8 YEARS, S/O LATE MUNEGOWDA.
APPELLANTS 2 AND 3 ARE SINCE MINORS, REPRESENTED BY THEIR MOTHER AS NATURAL GUARDIAN THE APPELLANT NO.1 HEREIN ALL ARE RESIDENTS OF ASHIVATTA, DASARAHALLI, BENGALURU – 562 129.
PRESENTLY AT ATTIVATTA VILLAGE, JADIGENAHALLI HOBLI, DASARAHALLI POST, HOSAKOTE TALUK, BENGALURU RURAL DISTRICT – 562129. …APPELLANTS (BY SRI NAGARAJA REDDY D, ADVOCATE) AND:
1. S.RAVI KUMAR, MAJOR, S/O S SATHYANARAYANA REDDY, CHINNAPANNAHALLI POST, DODDA NAKUNDI, BENGALURU – 560 037.
2. NATIONAL INSURANCE CO. LTD., MARATH HALLI BRANCH, NO.86/80, 2ND FLOOR, OLD AIRPORT ROAD, MARATHAHALLI, BENGALURU – 560 037.
3. SRI MUNINAGAPPA, AGED ABOUT 68 YEARS, S/O LATE MUNISWAMAPPA.
4. SMT.KEMPAMMA, AGED ABOUT 60 YEARS, W/O MUNINAGAPPA.
SL.NO.3 AND 4 ARE RESIDENTS OF ASHIVATTA, DASARAHALLI, BENGALURU – 562 129. …RESPONDENTS (BY SRI VENKATESH, ADVOCATE FOR;
SRI C.SHANKAR REDDY C, ADVOCATE FOR R1; SRI TRIMURTHY, ADVOCATE FOR R2;
SRI V.R.BALARAJ, ADVOCATE FOR R3 AND R4) **** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 18.02.2016 PASSED IN MVC NO.376/2010 ON THE FILE OF THE MEMBER, MACT AND XX ASCJ, XX ADDITIONAL SMALL CAUSE JUDGE, BENGALURU (SCCH22), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A.NO.2847 OF 2016:
BETWEEN:
SRI S.RAVI KUMAR, AGED ABOUT 44 YEARS, S/O LATE S.SATHYANARAYANA REDDY, RESIDING AT 1ST MAIN ROAD, CHINNAPPANAHALLI VILLAGE, DODDANEKKUNDI POST, BENGALURU – 560 037. …APPELLANT (BY SRI C.VENKATESH, ADVOCATE FOR; SRI SHANKAR REDDY C, ADVOCATE) AND:
1. THE BRANCH MANAGER, THE NATIONAL INSURANCE COMPANY LIMITED, MARATHAHALLI BRANCH OFFICE, NO.86\80, 2ND FLOOR, OLD AIRPORT ROAD, MARATHAHALLI, BENGALURU – 560 037.
2. SMT.ASHA RANI, AGED ABOUT 26 YEARS, W/O LATE SRI MUNE GOWDA.
3. KUM.NEETHU, AGED ABOUT 08 YEARS, D/O LATE SRI MUNE GOWDA.
4. HARSHAT GOWDA, AGED ABOUT 06 YEARS, S/O LATE SRI MUNE GOWDA.
SINCE THE RESPONDENTS NO.3 AND 4 ARE MINORS IN AGE, THEY ARE REPRESENTED BY THEIR NEXT FRIEND AND NATURAL GUARDIAN, SMT.ASHA RANI, THE RESPONDENT NO.2 HEREIN.
5. SRI MUNINAGAPPA, AGED ABOUT 66 YEARS, S/O LATE SRI MUNISWAMAPPA.
6. SMT.KEMPAMMA, AGED ABOUT 57 YEARS, WIFE OF SRI MUNINAGAPPA.
THE RESPONDENTS 2 TO 6 ARE RESIDENTS OF ASHIVATTA VILLAGE, DASARAHALLI, BENGALURU – 560 057. …RESPONDENTS (BY SRI D.NAGARAJ REDDY, ADVOCATE FOR R2 TO R4; SRI V.R.BALARAJ, ADVOCATE FOR R5 AND R6;
(R3, 4 – MINORS REPRESENTED BY R2); SRI TRIMURTHY, ADVOCATE FOR R1) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 18.02.2016 PASSED IN MVC NO.376/2010 ON THE FILE OF THE 20TH ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, BENGALURU, DISMISSING THE CLAIM PETITION FILED AGAINST 2ND RESPONDENT THEREIN AND 1ST RESPONDENT THEREIN ALONE IS HELD LIABLE TO PAY THE COMPENSATION.
THESE APPEALS COMING ON FOR ORDERS THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT Though these appeals have been listed for hearing on I.A. No.1/2019 in M.F.A. No.5699/2018 and I.A.
No.1/2017 in M.F.A. No.2847/2016 respectively, with the consent of learned counsel on both sides, they are heard finally.
2. M.F.A. No.5699/2018 has been filed by the claimants/appellants assailing the judgment and award passed in M.V.C. No.376/2010 dated 18.02.2016 by the Motor Accident Claims Tribunal – XX Additional Small Causes Judge, Bengaluru (hereinafter referred to as the ‘Tribunal’ for the sake of brevity), while M.F.A. No.2847/2016 has been filed by the owner of the offending vehicle, also challenging the very same judgment and award of the Tribunal, both on liability as well as on the quantum of compensation awarded.
3. As these appeals arise out of the same judgment and award of the Tribunal, they have been clubbed together and with the consent of learned counsel on both sides, they are heard finally and disposed of by this common judgment.
4. For the sake of convenience, the parties shall be referred to in terms of their status before the Tribunal.
5. The claimants being the widow, minor children and parents of Munegowda, filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the ‘Act’ for the sake of brevity), seeking compensation on account of the death of Munegowda in a road traffic accident that occurred on 29.12.2009 at about 9.30 a.m., on NH-4 road near Attivata gate.
6. According to the claimants/appellants herein Munegowda, aged 28 years, working as a Police Constable was riding his motor cycle bearing Registration No.KA- 03/ES-1286 on the left side of the Bangalore-Kolar NH-4 road, near Attivatta gate. At that time, a lorry bearing Registration No.CAK 3321 came in a high speed and in a rash and negligent manner and dashed against the deceased. As a result, Munegowda fell down from the motor cycle and sustained grievous injuries. Immediately, he was being shifted to MVJ Hospital, but, on the way to the Hospital, he succumbed to the injuries. The claimants/appellants contending that they have lost the bread earner of the family and have spent huge sum towards funeral expenses and that they were in penury and agony, filed the claim petition seeking compensation, on account of the death of Munegowda before the Tribunal.
7. In response to the notice issued by the Tribunal, the respondent No.1 – owner of the lorry appeared and filed his statement of objections, denying the material averments made in the claim petition, but contending that the lorry was insured with the respondent No.2 – Insurance Company and the Policy was valid from 09.10.2009 to 08.10.2010. That the Driver of the offending vehicle had a valid and effective Driving Licence and that if any liability is to be fastened on the owner of the vehicle, he was entitled to be indemnified by the Insurer. The respondent No.1 sought for dismissal of the claim petition.
8. The respondent No.2 – Insurance Company also appeared through its counsel and filed statement of objections admitting the issuance of policy in respect of the offending lorry, but denying the averments made in the claim petition and contending that any liability to be fastened on the insurer shall be subject to the terms and conditions of the policy and the provisions of the Act.
9. At this stage, it may be mentioned that the claim petition was adjudicated upon by the Tribunal, which culminated in judgment and award dated 19.08.2011. In the said case, the claimants/appellants examined two witnesses and produced 19 documents, which were marked as Exhibits-P1 to P19. While the respondents did not let in any evidence. By a judgment and award dated 19.08.2011, the Tribunal awarded compensation of Rs.24,12,265/- with interest at 6% per annum from the date of the claim petition till realization and fastened the liability to satisfy the award on the respondent No.1 – owner of the offending, while exonerating the respondent No.2 - Insurance Company. Being aggrieved by the judgment and award of the Tribunal, the owner of the offending vehicle, preferred M.F.A. No.771/2012 before this Court. By judgment dated 01.04.2015, a coordinate bench of this Court set aside the judgment and award of the Tribunal and remanded the matter to the Tribunal for fresh consideration, after giving reasonable opportunity of hearing to the parties through their counsel.
10. Subsequently, on remand, the Tribunal permitted the parties to let in evidence, but only the respondents let in evidence. The respondents examined RW1 and RW2 and produced two documents as per Exhibits-R1 and R2.
11. Initially, the Tribunal had framed the following issues for its consideration:
i. Whether the petitioners prove that the deceased died in the accident arising out of the use of the Motor Vehicle No.CAK 3321 lorry on 29.12.2009 at about 9.30 a.m.?
ii. Whether the petitioners are entitled to get compensation? If yes, how much and from whom?
iii. What order or award?
12. It answered issue No.1 in the affirmative and issue No.2 partly in the affirmative and had disposed of the claim petition by judgment and award dated 19.08.2011.
13. Subsequent to remand, the Tribunal raised the following additional issues for its consideration:
i. Whether the 2nd respondent proves that there is breach of conditions of the policy?
ii. What order or award?
14. The Tribunal answered additional issue No.1 in the affirmative and once again dismissed the claim petition against the Insurance Company by directing the respondent No.1 – owner of the lorry to satisfy the award, by its judgment and award dated 18.02.2016. Being aggrieved by the impugned judgment and award of the Tribunal, the claimants as well as the owner of the offending vehicle have preferred their respective appeals.
15. We have heard learned counsel for the appellants, learned counsel for the owner of the offending vehicle and learned counsel for the respondent – Insurance Company and perused the materials on record.
16. Learned counsel for the owner of the lorry bearing Registration No.CAK 3321 contended that the Tribunal was not right in fastening the liability on the appellant only, while exonerating the Insurance Company. He submitted that the vehicle was covered by a valid Insurance Policy. That the accident occurred on 29.12.2009; that the vehicle in question is a goods vehicle and that permit had expired in November 2009, but the renewal was obtained on 29.12.2009 on the very date of the accident. That having regard to Section 81 (5) of the Act, where a permit has been renewed after the expiry of the period thereof, such renewal shall have effect from the date of such expiry and that there is deemed permit and hence, the Tribunal could not have exonerated the Insurance Company, as there was no breach of the terms and conditions of the policy or the provisions of the Act. He contended that the finding of the Tribunal be reversed and the liability be fastened jointly and severally on the owner of the offending vehicle as well as the respondent – Insurance Company and a direction be issued to the insurer to indemnify the owner of the offending vehicle.
17. Learned counsel for the claimants/appellants also echoing the same submission of the learned counsel for the owner of the offending vehicle, also contended that the Tribunal was not right in not considering the aspect of award of compensation subsequent to remand. He drew our attention to the operative portion of the impugned judgment and contended that while holding the owner of the offending vehicle was liable to satisfy the award, did not consider the quantum of compensation to be awarded to the claimants/appellants. He submitted that, the Tribunal has not properly understood the nature of remand made by this Court by its judgment dated 01.04.2015 and has simply reiterated its finding given in the earlier round of litigation and has directed that the owner of the offending vehicle to satisfy the award without quantifying the award of compensation. He submitted that, the claimants/appellants have filed their appeal both on the question of liability to satisfy the award being fastened on the owner and insurer of the offending vehicle jointly and severally and also for enhancement of the award.
18. Per contra, learned counsel for the respondent - Insurance Company supported the judgment and award of the Tribunal and contended that in the first instance itself, the quantum of compensation was quantified and all that was to be done on remand was to give a finding on the liability aspect only. That the Tribunal has reiterated its earlier finding and directed the owner of the offending vehicle to satisfy the award by exonerating the Insurance Company and that there is no error in the impugned judgment and award. He contended that there is no merit in these appeals and the appeals may be dismissed.
19. Having heard learned counsel for the respective parties, we find that the following points would arise for our consideration:
i. Whether the Tribunal was right in fastening the liability to satisfy the award only on the respondent No.1 – owner of the offending vehicle?
ii. Whether the claimants are entitled to additional compensation?
iii. What order?
20. The fact that Munegowda died in a road traffic accident that occurred on 29.12.2009 at about 9.30 a.m., on NH-4 road, near Attivatta gate, while he was riding his motor cycle bearing Registration No.KA-03/ES-1286, on the left side of the Bangalore-Kolar road when at that time, lorry bearing Registration No.CAK 3321 came in a high speed and in a rash and negligent manner dashed against the deceased, as a result of which, Munegowda fell down from the motor cycle, sustained grievous injuries and succumbed to the injuries on the way to the Hospital, has been established by the claimants/appellants.
21. The controversy is, however in the first instance, with regard to liability to satisfy the award. The Insurance Company contended that the offending vehicle in question did not have a permit on the date of the accident, namely on 29.12.2009. That the permit was obtained on 29.12.2009, which is subsequent to the accident. Therefore, there was violation of the provisions of the Act and the breach of the terms and conditions of the policy and therefore, the liability was rightly fastened on the owner of the offending vehicle. The said contention was sought to be rebutted by the owner of the vehicle and the claimants/appellants, subsequent to remand. That the evidence on record is that, the vehicle indeed had a permit, it was covered under the permit till the end of November 2009 and thereafter, the permit was renewed on 29.12.2009 as per Exhibit-R2, which is the extract of permit, which has been produced. In the impugned judgment itself, it has been recorded that the renewal was for the period from 29.12.2009 and that the permit was valid for the period from 29.12.2009 and 28.12.2014. That the permit was got renewed on the date of the accident and RW2 – the owner of the offending vehicle has admitted that he had earlier applied for renewal within 30 days, but there was no document to that effect. The Tribunal has further noted that RW2 has not produced the previous permit and therefore, an adverse inference had to be drawn against him, as he had not examined any official of the Regional Transport Office (RTO) also to clarify the point and hence, the liability had to be fastened on the respondent No.1 only.
22. It has also come in the evidence of RW2 who is the owner of the offending vehicle, that he had renewed the permit as it had expired in the end of November 2009 and renewal was obtained under Section 81 of the Act. He has also referred to Section 81 (5) of the Act. Section 81 (5) of the Act states that where a permit has been renewed under the said Section after the expiry of the period thereof, such renewal shall have effect from the date of such expiry irrespective of whether or not permit has been granted under clause (d) of Section 87 and where a temporary permit has been granted, the fee paid in respect of such temporary permit shall be refunded.
23. In the instant case, there is evidence on record to show that on 29.12.2009, the permit was renewed for a period of five years. But sub-section (5) of Section 81 of the Act, is a deeming provision which states that the permit is renewed from the date of expiry when the renewal is sought under Section 81 (3) of the Act. In the circumstances, it is held that, this is not a case where the offending vehicle did not have a permit at all. It is the case where the permit had expired and subsequently, it was renewed. Therefore, in terms of sub-section (5) of Section 81 of the Act, it has to be held that, there is a deemed renewal and therefore, liability could not have been solely fastened on the owner of the offending vehicle. The liability ought to have been jointly and severally fastened on the owner of the offending vehicle as well as the insurer of the offending vehicle and hence, point No.1 is answered in favour of the appellants herein and against the insurer.
24. This takes us to the next point which is the claim for enhancement of compensation made by the claimants/ appellants in their appeal. The Tribunal, in the first instance, awarded a sum of Rs.24,12,265/- with interest at the rate of 6% per annum from the date of claim petition till realization. The Tribunal has awarded a sum of Rs.23,72,265/- under the head of loss of dependency; Rs.20,000/- towards loss of consortium; Rs.20,000/- towards loss of filial love; Rs.20,000/- towards loss of estate and Rs.5,000/- towards transportation of the dead body, funeral rites etc.
25. Learned counsel for the claimants/appellants contended that, subsequent to remand, the Tribunal did not consider the case of the claimants, vis-à-vis, award of compensation, instead, it simply directed that the compensation awarded in the first instance be paid by only the owner of the offending vehicle. He contended that, the compensation be enhanced in the instant case, having regard to the fact that the deceased was working as a Police Constable and he was aged 28 years. The appropriate multiplier which applies is 17. That having regard to the latest dictum of the Hon’ble Supreme Court in the case of National Insurance Company Limited v. Pranay Sethi and others reported in AIR 2017 SC 5157, 50% of the salary would have to be added towards future prospects. There are five claimants and therefore, only 1/4th of the amount had to be deducted towards personal expenses of the deceased. Under the head of loss of spousal consortium, a sum of Rs.40,000/- has to be awarded to the widow of the deceased and similarly, compensation would have to be awarded to the parents and children of the deceased under the head of love and affection, having regard to another dictum of the Hon’ble Supreme Court in the case of Magma General Insurance Co. Ltd. v. Nanu Ram reported in 2018 ACJ 2782.
26. Learned counsel for the respondent – Insurance Company, however, supported the quantum of compensation awarded by the Tribunal in the first instance and contended that the claimants/appellants are not entitled to any enhanced compensation.
27. We find that the Tribunal has rightly assessed a sum of Rs.23,24,265/- under the head of loss of dependency. But, however, having regard to the latest dictam of the Hon’ble Supreme Court in the case of National Insurance Company Limited v. Pranay Sethi and others and Magma General Insurance Co. Ltd. v. Nanu Ram, a sum of Rs.40,000/- has to be awarded to the widow of the deceased under the head of loss of spousal consortium; a sum of Rs.30,000/- each to be awarded to the two minor children of the deceased under the head loss of parental consortium and a sum of Rs.30,000/- each to be awarded to the parents of the deceased under the head of loss of filial consortium or loss of love and affection. Thus, the total compensation would be Rs.25,32,265/- instead of Rs.24,12,265/- as awarded by the Tribunal. The said compensation shall carry interest at the rate of 6% per annum from the date of claim petition till realization.
28. The apportionment shall be 15% each to the parents; 15% each to the two minor children and 40% to the wife of the deceased. We have noted the apportionment made by the Tribunal. At this stage, it is brought to our notice that the widow of the deceased has been appointed on compassionate grounds and therefore, the compensation to the parents of the deceased as well as the minor children of the deceased may be enhanced and while the apportionment to the widow may be reduced. We find considerable force in the said statement made at the bar. In the circumstances, total compensation assessed with interest shall be apportioned to the claimants in the ratio of 40 : 15 : 15 : 15 : 15.
29. The total compensation with interest awarded to the minor children of the deceased shall be deposited in any Post Office or nationalized Bank deposit till they attain the age of majority.
30. 50% of the compensation awarded to the parents of the deceased shall be deposited in any Post Office or nationalized Bank deposit for an initial period of five years. They shall be entitled to draw periodical interest on the fixed deposit. The balance compensation shall be released to them after identification.
31. 50% of the compensation awarded to the widow of the deceased shall be deposited in any Post Office or nationalized Bank deposit for an initial period of ten years. She shall be entitled to periodical interest on the said fixed deposit. The balance compensation shall be paid to her.
32. The compensation shall be released to the respective parties after due identification.
33. In the result, the appeals are allowed in part.
34. Parties to bear the respective costs.
35. In view of the disposal of the appeals, pending applications stand disposed.
36. The respondent – Insurance Company shall deposit the compensation within a period of four weeks from the date of receipt of certified copy of this judgment.
37. The statutory amount in deposit made by the owner of the offending vehicle in M.F.A. No.2847/2016 is ordered to be refunded to him by the Registry.
Sd/-
JUDGE Sd/-
JUDGE SJ