IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF NOVEMBER, 2019 PRESENT THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA AND THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM MFA NO.1940/2016(MV) C/W MFA NO.1248/2016(MV) IN MFA NO.1940/2016 BETWEEN:
1. SMT.ASHA, W/O LATE K.NARAYANASWAMY, AGED ABOUT 37 YEARS 2. KUM.VINUTHA, D/O LATE K.NARAYANASWAMY, AGED ABOUT 15 YEARS, MINOR 3. MOHAN KUMAR, S/O LATE K.NARAYANASWAMY, AGED ABOUT 12 YEARS, MINOR 4. SMT. CHENNAMMA, W/O C.KEMPAIAH, AGED ABOUT 71 YEARS PETITIONER NO.2 AND 3 ARE MINORS, REP. BY THEIR MOTHER AND NATURAL GUARDIAN THE PETITIONER NO.1 ALL THE PETITIONERS ARE R/AT NO.88, ARADESANAHALLI, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT.
…APPELLANTS (BY SRI.VENKATE GOWDA.K, ADVOCATE) AND:
1. SRI.CHENNAIAH.B.H, S/O HONNAPPA.B.H, MAJOR, NO.1530, 2ND CROSS, 17TH MAIN, 2ND PHASE, J.P.NAGAR, BANGALORE-560078.
2. M/S IFFCO-TOKIO GENERAL INSURANCE CO.LTD., BY ITS MANAGER, SHANTHI TOWER, NO.141, 5TH FLOOR, 3RD MAIN EAST, N.G.E.F. LAYOUT, KASTURI NAGAR, BANGALORE – 560043.
…RESPONDENTS (BY SRI.E.I.SANMATHI, ADVOCATE FOR R2;
V/O DTD 21.11.2017 NOTICE TO R1 IS DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:14.12.2015 PASSED IN MVC NO.5027/2014 ON THE FILE OF THE XVI ADDL.JUDGE, COURT OF SMALL CAUSES, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO.1248/2016 BETWEEN:
LEGAL MANAGER, IFFCO TOKIO GIC LTD, CUSTOMER SERVICE CENTER, SRI.SHANTHI TOWERS, 5TH FLOOR, NO.141, 3RD MAIN, EAST OF NGEF LAYOUT, KASTURBANAGAR, BANGALORE-560043.
(BY SRI.PRADEEP.B, ADVOCATE) AND:
1. SMT.ASHA, S/O LATE K.NARAYANASWAMY, NOW AGED ABOUT 37 YEARS 2. KUM.VINUTHA, D/O LATE K.NARAYANASWAMY, NOW AGED ABOUT 15 YEARS 3. MOHAN KUMAR, S/O LATE K.NARAYANASWAMY, NOW AGED ABOUT 12 YEARS …APPELLANT 4. SMT. CHENNAMMA, W/O C.KEMPAIAH, NOW AGED ABOUT 71 YEARS RESPONDENT NO.2 AND 3 ARE SINCE MINOR REP BY THEIR NATURAL GUARDIAN MOTHER AS 1ST RESPONDENT ALL ARE R/AT NO.88, ARADESANAHALLI, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT-91 5. SRI.CHENNAIAH.B.H S/O HONNAPPA.B.H, MAJOR, NO.1530, 2ND CROSS, 17TH MAIN, 2ND PHASE, J.P.NAGAR, BANGALORE-78.
…RESPONDENTS (BY SRI.VENKATE GOWDA, ADVOCATE FOR R1 & R4; R2 & R3 ARE MINORS REP BY R1;
SRI.C.G.SUNDAR, ADVOCATE FOR R5) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:14.12.2015 PASSED IN MVC NO.5027/2014 ON THE FILE OF THE XVI ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT, BANGALORE, AWARDING COMPENSATION OF RS.17,48,000/- WITH INTEREST @ 9% P.A. FROM THE DATE OF PETITION TILL THE DATE OF PAYMENT.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:
JUDGMENT Being aggrieved by the judgment and award dated 14.12.2015 passed in MVC.No.5027/2014 the Insurance Company has preferred appeal in MFA.No.1248/2016 questioning the liability fastened on it and also the quantum of compensation awarded and the claimants have preferred appeal in MFA.No.1940/2016 seeking enhancement.
2. The case of the claimants is that on 29.3.2014 at about 3.30 p.m. one Narayanaswamy who is the husband of claimant No.1 and father of claimants 2 and 3 and son of claimant No.4 was proceeding on a motor bike bearing No.KA-50-E-6709 on Rajanukunte- Kakolu road. When he reached near Basavalingappa layout in front of Muneshwara Temple, the driver of the Honda car bearing No.KA-05- MN-1738 owned and driven by the first respondent came in a rash and negligent manner and dashed against the motor cycle of the deceased from behind. On account of the said impact the deceased fell down and sustained grievous injuries all over the body and succumbed to the injuries in the hospital on the same day at about 4.30 p.m. The claimant averred in the claim petition that he was aged 44 years and was an agriculturist and was also doing milk vending business having monthly income of Rs.30,000/- to Rs.40,000/- per month. The claimants specifically averred in the claim petition that they were depending on the income of the deceased and therefore sought for compensation of Rs.30,00,000/-.
On receipt of notice, Respondent No.1 owner appeared before the Tribunal and specifically contended that the driver of the car was not responsible for the accident. And also claimed that the vehicle is duly insured with the appellant insurance company. The Insurance Company which was arrayed as 2nd respondent filed written statement and has stoutly denied the entire averments made in the claim petition. Further, took a specific defence that the driver of the car was not having effective and valid driving licence and hence, sought for dismissal of the claim petition.
The Tribunal based on rival contentions formulated issues and answered issue No.1 in the affirmative and proceeded to determine the compensation. The Tribunal while determining loss of dependency took the income of the deceased at Rs.10,000/- per month and proceeded to award Rs.16,38,000/- under the head of loss of dependency and under other heads awarded a sum of Rs.1,10,000/- Hence, the total compensation determined by the Tribunal is to the tune of Rs.17,48,000/-
3. The counsel for the Insurance Company vehemently argued that while determining the loss of dependency, the Tribunal was not at all justified in taking the income at Rs.10,000/- in the absence of cogent and clinching evidence. There is some force in the said submission.
On perusal of oral and documentary evidence as per Exs.P7 to 12, we are of the view that the income taken at Rs.10,000/-, appears to be on higher side and the same is arrived at without any basis. Therefore, in the absence of clinching evidence we have to rely on the chart prepared by the Legal Services Authority. The accident is of the year 2014. Hence, the notional income of the deceased has to be taken at Rs.8,500/-. Admittedly the deceased was aged 44 years and hence 25% has to be added towards future prospects which comes to (Rs.8,500+Rs.2,125)= Rs.10,625/-. Out of the said amount deducting ¼ towards personal expenses the total compensation payable under the of head of loss of dependency works out to Rs.7,968x12x14= Rs.13,38.624/-. Hence, the compensation payable under the head of loss of dependency is modified and the same is determined at Rs. 13,38,624/- as against Rs.16,38,000/- awarded by the Tribunal. Under other conventional heads, the claimants would be entitled to Rs.70,000/-. Thus, the claimants are held entitled for total compensation of Rs.14,08,624/- as against Rs.17,48,000/- awarded by the Tribunal. Having regard to the bank rate of interest prevailing at that point of time, the interest awarded by the Tribunal also requires to be modified. Accordingly, the claimants are entitled for interest at the rate of 6% per annum from the date of petition till the date of payment.
4. The next contention raised by the counsel appearing for the Insurance Company is that the driver of the offending vehicle was not holding effective driving licence and as such the insurance company is not liable to satisfy the award on account of breach of terms and conditions.
Having perused the lower court records, it is evident that the driver of the offending car was holding learning licence and was accompanied by his wife who was having effective driving licence. A perusal of the charge sheet discloses that the wife of Respondent No.1 was proceeding in the said vehicle and infact she is cited as eye witness in the criminal case. Hence in the absence of rebuttal evidence adduced by the Insurance company, the Tribunal has rightly accepted the contention of the claimants that the driver of the offending vehicle was holding a learning licence. In view of the ratio laid down by the Hon’ble Apex Court in respect of the doctrine of pay and recovery, the Insurance company has to pay the compensation in the first instance and thereafter proceed to recover the same from the first respondent. On this count, the finding of the Tribunal stands modified. The insurance company shall satisfy the award and thereafter recover the same from the owner.
5. In the light of the aforesaid finding, the appeal filed by the Insurance company in MFA.No.1248/2016 is allowed in part and the appeal filed by the claimants in MFA.No.1940/2016 is dismissed. The Insurance Company shall satisfy the Award and thereafter proceed to Recover from the owner of offending vehicle.
Sd/- JUDGE Sd/- JUDGE *alb/-