IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR MISCELLANEOUS FIRST APPEAL NO.11348 OF 2012 C/W MISCELLANEOUS FIRST APPEAL NO.11452 OF 2012 (MV) IN MFA No.11348 OF 2012 BETWEEN:
1. B.S. BALAKRISHNA RAI S/O LATE SHANKAPPA AGED 49 YEARS PROPRIETOR, MAMATA TRADERS HIGH SCHOOL ROAD SIDDAPUR-571 253 VIRAJPET, KODAGU DISTRICT 2. B.B. MANJUNATHA RAI S/O B.S. BALAKRISHNA RAI AGED 49 YEARS (ACTUALLY AGED 29 YEARS) R/AT HIGH SCHOOL ROAD GUHYA VILLAGE-571 253 SIDDAPUR, VIRAJPET TALUK KODAGU DISTRICT … APPELLANTS (BY SHRI. T.A. KARUMBAIAH, ADVOCATE) AND:
1. K. ROSY THOMAS W/O LATE K.A. THOMAS AGED 53 YEARS 2. K.T. ANTHONY S/O LATE K.A. THOMAS AGED 33 YEARS 3. K.T. VARGHEESE S/O LATE K.A. THOMAS AGED 31 YEARS 4. K.T. MARY D/O LATE K.A. THOMAS AGED 28 YEARS 5. K.T. ALICE D/O LATE K.A. THOMAS AGED 27 YEARS ALL ARE RESIDING AT 7TH HOSKOTE VILLAGE SOMWARPET TALUK KODAGU DISTRICT-571 234 6. NATIONAL INSURANCE CO. LTD REP. BY ITS BRANCH MANAGER VIRAJPET BRANCH 1ST FLOOR, MANNA BUILDING VIRAJPET TOWN KODAGU DISTRICT-571 218 … RESPONDENTS (BY SMT. MANJULA N. TEJASWI, ADVOCATE FOR R6) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 20.09.2012 PASSED IN MVC NO.46/2009 ON THE FILE OF THE DISTRICT JUDGE, MEMBER, MACT, KODAGU, MADIKERI, AWARDING A COMPENSATION OF RS.2,51,000/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
IN MFA NO.11452/2012 BETWEEN:
1. SMT. K. ROSY THOMAS W/O LATE K.A. THOMAS AGED 54 YEARS 2. SRI. K.T. ANTHONY S/O LATE K.A. THOMAS AGED 34 YEARS 3. SRI. K.T. VARGHEESE S/O LATE K.A. THOMAS AGED 32 YEARS 4. KUM. K.T. MARY D/O LATE K.A. THOMAS AGED 29 YEARS 5. KUM K.T. ALICE D/O LATE K.A. THOMAS AGED 27 YEARS ALL ARE RESIDENTS AT KAMBIBANE, 7TH HOSKOTE VILLAGE SOMWARPET TALUK KODAGU DISTRICT-571 201 … APPELLANTS (BY SHRI. D.B. PRASANNA, ADVOCATE) AND:
1. SRI. B.S. BALAKRISHNA RAI S/O LATE SANKAPPA AGED 50 YEARS PROPRIETOR, ‘MAMATA TRADERS’ HIGH SCHOOL ROAD SIDDAPUR VIRAJPET TALUK KODAGU DISTRICT-571 201 2. SRI. B.B. MANJUNATHA RAI S/O B.S. BALAKRISHNA RAI AGED 50 YEARS RESIDENT OF HIGH SCHOOL ROAD GUHYA VILLAGE, SIDDAPUR VIRAJPET TALUK KODAGU DISTRICT-571 201 3. NATIONAL INSURANCE CO. LTD REPRESENTED BY ITS BRANCH MANAGER VIRAJPET BRANCH I FLOOR, MANNA BUILDING VIRAJPET TOWN KODAGU DISTRICT-571 201 … RESPONDENTS (BY SHRI. T.A. KARUMBAIAH, ADVOCATE FOR R1 & R2; SMT. MANJULA N. TEJASWI, ADVOCATE FOR R3) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:20.09.2012 PASSED IN MVC NO.46/2009 ON THE FILE OF DISTRICT JUDGE, MEMBER MACT, KODAGU, MADIKERI, ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFAs COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT MFA No.11452/2012 is presented by the claimants challenging judgment and award dated 20.09.2012 in MVC No.46/2009 passed by District Judge, MACT, Kodagu, seeking enhancement of compensation and MFA No.11348/2012 is presented by the owner of the vehicle challenging liability.
2. One K. Thomas was riding a motor cycle. A Tata 407 goods vehicle bearing No.KA-12-J-2434 dashed against the motor cycle. Victim sustained grievous injuries and later succumbed to death due to the injuries. His wife and children filed the instant claim petition seeking compensation. Learned Tribunal has awarded a sum of Rs.2,51,000/- and absolved the Insurer from indemnifying the owner on the ground that driver of goods vehicle did not possess a valid licence.
3. Learned advocate for the claimants submitted that the accident has occurred in the year 2008. Deceased was working as a Building Contractor. Learned Tribunal has taken the earning capacity of the deceased as Rs.3,000/- which is grossly inadequate. No compensation has been awarded towards future prospects.
4. Learned advocate for the owner of the vehicle submitted that the driver of the vehicle was holding a valid licence to drive a light motor vehicle. However, there was no endorsement to drive a transport vehicle. Placing reliance on the decision of the Hon’ble Supreme Court in Mukund Dewangan Vs. Oriental Insurance Company Limited1, he submitted that Insurer is liable to indemnify the owner.
5. Smt. Manjula N. Tejaswi, learned advocate for the Insurer argued in support of the award. So far as the licence aspect is concerned, in her usual fairness, she submitted that the driver of the vehicle was holding a licence to drive a light motor vehicle but the licence did not contain an endorsement to drive a transport vehicle.
1 AIR 2017 SC 3368 6. I have carefully considered the rival contentions and perused the records.
7. So far as the aspect of the compensation is concerned, no evidence is produced by the claimants with regard to the earning capacity of the deceased. Accident has occurred in the year 2008. This Court, in absence of any evidence and proof of income, has consistently taken the earning capacity for the year 2008 as Rs.4,500/- per month. Keeping in view the age of the deceased as 56 years, 15% of the income will have to be added towards future prospects. Further, following the authority in National Insurance Company Limited vs. Pranay Sethi and others2, amount of Rs.70,000/- is required to be paid towards conventional heads. There are in all four dependents. Therefore, 1/4th of the earning will have to be deducted towards personal expenses as held by the Hon’ble Supreme Court in Sarla Verma (Smt) and others Vs. Delhi Transport Corporation and another3.
2 AIR 2017 SC 5157 3 2009(6) SCC 121 8. Hence, the compensation is recomputed as follows:
Sl.No. PARTICULARS AMOUNT (IN RUPEES) Earning Capacity of the a deceased - 4,500 p.m.
(4500*12) 54,000 ADD: future prospects – 15% b of 54000 8,100 Total of (a+b) 62,100 LESS: personal expenses -1/4th c of 62100 15,525 Total of (a+b)-c 46,575
LESS: Compensation amount f already awarded by Tribunal 2,51,000 Enhanced compensation 2,38,175 9. It is settled that insurer’s liability to indemnify the owner of insured vehicle cannot be absolved for want of transport endorsement [See Mukund Dewangan (supra)]. In the circumstances, these appeals filed by both the claimants as well as the owner/insured merit consideration. Hence, the following:
ORDER (i) MFA No.11452/2012 filed by the claimants is allowed in part and it is ordered that claimants are entitled for a total compensation of Rs.4,89,175/- with 6% interest from the date of filing the claim petition till the date of deposit;
(ii) MFA No.11348/2012 filed by the owner is allowed and the finding so far as the dismissal of the appeal against the Insurer is set-aside. The Insurer is held liable to indemnify the owner;
(iii) Insurer shall deposit the entire amount of Rs.4,89,175/- with 6% interest p.a. within eight weeks from the date of receipt of a copy of this order;
(iv) Disbursement of the compensation amount shall be as ordered by the learned Tribunal and;
(v) Registry shall refund the statutory amount to the owner.
10. In view of disposal of these appeals, I.A.No.1/2012 does not survive for consideration and the same stands disposed of.
Sd/- JUDGE AV