IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 13TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.2369/2015 (MV) Between:
Bajaj Allainz General Insurance Company Ltd., No.363, Sri Hari Complex Sitavilas Road Mysore – 570 001. Represented by its Assistant Vice President (Claims) Regional office Golden Heights IV Floor, Rajajinagar Entrance Bangalore – 560 010. ... Appellant (By Smt. Renuka H.R., Advocate) And:
1. H.B. Kumara S/o. Bettegowda Aged about 35 years 2. Savitha W/o. H.B. Kumara Aged about 29 years Both are R/o. Dasaraguppe Village Srirangapatna Taluk Mandya District – 571 415.
3. Puttaswamy S/o. Chikkathammegowda Adult No.14, Dodakoppalu Pandavapura Taluk Mandya District – 571 434.
(Owner of Tata Magic bearing No.11 A 1972) . ... Respondents (By Sri M.Y. Sreenivasan, Adv. for R1 and R2 Smt. Sreevidya G.K., Adv. for R3 ) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act, against the Judgment and award dated 01.01.2015 passed in MVC No.423/2012 on the file of the Additional Senior Civil Judge, MACT, Srirangapatna, awarding compensation of Rs.5,00,000/- with interest at 6% p.a. from the date of petition till the date of deposit and etc., This Appeal is coming on for Admission this day, the Court delivered the following:
J U D G M E N T The insurance company has filed this appeal challenging the liability and quantum of compensation awarded by the Tribunal in MVC No.423/2012 on the file of Additional Senior Civil Judge and MACT, Srirangapatna, wherein, the Tribunal has awarded a total compensation of Rs.5,00,000/- with interest at 6% per annum, for the death of a child aged about 7 years, in a road traffic accident.
2. I have heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents.
3. The claimants – respondents are the parents of a minor child by name K. Manoj, aged about 7 years, who was studying in Gnanabandu Education Institution, at Devegowdanakoppalu, Pandavapura Taluk. On 23.01.2012 at about 8.00 a.m, the deceased boarded the school van bearing registration No.KA-11-A-1972 from Dasaraguppe Village to go to his school. At about 8.30 a.m, when the school van reached near K.Hosoor Village, the driver of the van drove the said van in a rash and negligent manner, due to which, the deceased who was sitting near the front door of the van was thrown out of the vehicle and sustained fatal injuries and succumbed to the injuries at the spot.
4. The claim petition was filed seeking a total compensation of Rs.5,00,000/- for the untimely death of the minor child. It is the case of the claimants that the death of their child caused a lot of mental agony and suffering to the claimants. The child was aged 7 years studying in 1st standard and he was a very bright student and had a very good future.
5. The Tribunal after considering the evidence and material on record awarded a total compensation of Rs.5,00,000/- with interest at 6% per annum from the date of petition till the date of deposit. The Tribunal held that the owner and insurer of the vehicle are jointly and severally liable to pay the above mentioned compensation to the claimants.
6. The contention of the learned counsel for the appellant is that the total compensation awarded in the facts and circumstances of the case is on the higher side, excessive and exorbitant and there is no basis for awarding the said compensation. It is further contended that the driver of the vehicle was holding a driving license to drive a Light Motor Vehicle and he was not possessing a driving license to drive the type of vehicle which was involved in the accident. Accordingly, it is submitted that there is violation of policy conditions and therefore, insurance company could not have been saddled with the liability to pay the compensation to the claimants.
7. The learned counsel appearing for the claimants on other hand would contend that the Tribunal has awarded just and reasonable compensation. The deceased was the only child to claimants and he was aged about 7 years and had a bright future and therefore, what has been awarded is just and reasonable. He would further contend that in view of the decision of the Hon’ble Apex Court in the case of MUKUND DEWANGAN V. ORIENTAL INSURANCE CO., LTD., AIR 2017 SC 3668, a separate endorsement in the driving license is not required to drive a transport vehicle of the category which was involved in the accident and therefore the driver of the said vehicle was holding a valid license, hence, the insurer is liable to pay compensation. Accordingly, he seeks to dismiss the appeal.
8. The accident in question involving the van bearing registration No.KA-11-A-1972 and actionable negligence on the part of the driver of the said van is not in dispute. However, it is the contention of the learned counsel for the appellant that the driver of the said vehicle was not entitled to drive a transport vehicle since he was holding driving license to drive only LMV (NT). The question raised by the learned counsel in this regard has already been settled by the Hon’ble Apex Court in Mukund Dewangan’s case (stated supra). Hence, the contention raised that the insurer is not liable to pay any compensation cannot be accepted.
9. According to the learned counsel for the appellant, global compensation of Rs.5,00,000/- awarded in the present case is excessive and on higher side. There is no basis to award the said compensation. The Tribunal after relying upon the decision of Hon’ble Apex Court in the case of Kishan Gopal and Another v. Lala and Others reported in AIR 2013 SCW 5037 and the decision of this Court in the case of Shekar Salian v. Raghavendra rendered in MFA No.284/2011 has awarded a global compensation of Rs.5,00,000/-.
10. It is relevant to see that in the present case the deceased was a child aged about 7 years. In Kishan Gopal’s case (supra), the deceased boy who was aged about 7 years was assisting his parents in the agricultural activities and therefore, the Hon’ble Supreme Court awarded the aforesaid sum. Taking the notional income at Rs.30,000/- per annum and also applying the multiplier considering the age of the younger parents, awarded Rs.4,50,000/- and another sum of Rs.50,000/- under other heads.
11. This Court in an unreported decision in the case of G.L. Chandrashekar and Another v. K.V. Raghavendra & Others in MFA No.4670/2012 dated 29.10.2013 has awarded a total compensation of Rs.3,75,000/- for the death of a child aged about 7 years. In that case, accident is of the year 2009. In the present case, accident has occurred in the year 2012. Considering the facts and circumstances of the present case and nature of evidence led, I am of the view that, it is just and reasonable to award a sum of Rs.4,50,000/- as global compensation as against Rs.5,00,000/- awarded by the Tribunal. Accordingly, I pass the following order:
i) The appeal is allowed in part.
ii) The judgment and award dated 01.01.2015 passed by Additional Senior Civil Judge & MACT, Srirangapatna is hereby modified.
iii) The claimants are entitled for a total compensation of Rs.4,50,000/- as against Rs.5,00,000/- awarded by the Tribunal with interest @ 6% p.a. from the date of petition till the date of deposit.
iv) The amount in deposit before this Court shall be transmitted to the jurisdictional Tribunal.
SD/- JUDGE nms