IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR.JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO. 4887/2014 C/W MISCELLANEOUS FIRST APPEAL CROB NO.26/2015 IN MFA NO.4887/2014 BETWEEN:
THE BRANCH MANAGER UNITED INDIA INSURANCE CO.LTD BRANCH OFFICE, 1114/63, 2ND FLOOR, THAKUR COMPLEX, I MAIN, SC ROAD, YESHWANTHPUR, BENGALURU-560 022, NOW REPRESENTED BY ITS REGIONAL MANAGER UNITED INDIA INSURANCE CO LTD REGIONAL OFFICE, 5TH AND 6TH FLOOR, KRISHI BHAVAN, NRUPATHUNGA ROAD, BENGALURU-560 001. ... APPELLANT (BY SRI. A N KRISHNA SWAMY, ADV.,) AND:
1. SMT.LAKSHMAMMA, W/O LATE RAJANNA NOW AGED ABOUT 39 YEARS, 2. MANJUNATHA S/O LATE RAJANNA NOW AGED ABOUT 20 YEARS, 3. PUTTALAKSHMAMMA W/O LATE MARIYAPPA NOW AGED ABOUT 72 YEARS, ALL R/AT KULIPURA VILLAGE, NELAMANGALA POST, KASABA HOBLI, NELAMANGALA TALUK, BENGALURU DISTRICT.-562 123.
4. SMT. MANJULA W/O RAJANNA MAJOR, NO.709, BASAVANA GUDI, BEEDI, HESARAGHATTA, BENGALURU-560 088. ... RESPONDENTS (BY SRI. SHRIPAD V SHASTRI, ADV., FOR R1-R3; ADITI LAW ASSOCIATES, ADVS., FOR R4) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:13.12.2013 PASSED IN MVC NO.7610/2012 ON THE FILE OF THE JUDGE, XXVI ACMM, MACT, COURT OF SMALL CAUSES, BENGALURU, AWARDING COMPENSATION OF Rs.7,83,400/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN M.F.A.CROB NO.26/2015 BETWEEN 1. SMT. LAKSHMAMMA W/O LATE RAJANNA, AGED ABOUT 40 YEARS, 2. MANJUNATHA S/O RAJANNA, AGED ABOUT 21 YEARS, 3. PUTTALAKSHMAMMA W/O LATE MARIYAPPA, AGED ABOUT 73 YEARS, THE APPELLANTS ARE R/AT KULIPURA, VILLAGE, NELAMANGALA POST, KASABA HOBLI, NELAMANGALA TALUK, BENGALURU DISTRICT. ...CROSS OBJECTORS (BY SRI. SHRIPAD V.SHASTRI, ADV.,) AND:
1. MANJULA W/O RAJANNA, NO.709, BASAVANA GUDI BEEDI, HESARAGHATTA, BANGALORE-88.
2. THE BRANCH MANAGER THE UNITED INDIA INSURANCE CO LTD., BRANCH OFFICE, 1114/63, 2ND FLOOR, THAKUR COMPLEX, I MAIN, SC ROAD, YESHWANTHPUR, BANGALORE. ... RESPONDENTS (ADITI LAW ASSTS, ADV., FOR R1;
BY SRI A.N.KRISHNA SWAMY, ADV., FOR R2) THIS MFA.CROB IN MFA.NO.4887/2014 IS FILED U/O 41 RULE 22 OF CPC, AGAINST THE JUDGMENT AND AWARD DATED:13.12.2013 PASSED IN MVC NO.7610/2012 ON THE FILE OF THE JUDGE, COURT OF SMALL CAUSES, & XXVI ACMM, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFA AND MFA CROB. ARE COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment MFA No.4887/2014 is filed by the Insurance Company and MFA Crob.26/2015 is filed by the claimants. Both are directed against the judgment and award dated 13.12.2013 passed in MVC No.7610/2012 on the file of the Motor Accident Claims Tribunal (hereinafter referred to as ‘Tribunal’), Bengaluru, wherein the Tribunal has awarded a total compensation of Rs.7,83,400/- along with interest at 6% p.a. to the claimants for the death of one Rajanna, in a road traffic accident. The Tribunal has directed the Insurance Company to deposit the compensation amount with interest and then to recover the said amount from the insured.
2. I have heard the learned counsel appearing for the Insurance Company and the learned counsel appearing for the claimants.
3. Briefly stated facts of the case are that on 11.12.2012 at about 9.45 p.m., deceased Rajanna was riding a motorcycle bearing No.KA 52E 5070 and when he reached near Binnamangala village on Nelamangala BH road, Bangalore District, the driver of a private bus bearing registration No.KA 06 A 3177 by driving the said bus in a rash and negligent manner, dashed against the motorcycle from behind and due to the said impact Rajanna sustained fatal injuries and died. The claimants being the wife, son and mother of the deceased maintained a claim petition before the Tribunal seeking a total compensation of Rs.20,00,0000/- for the death of Rajanna. The claim petition was resisted by the Insurance Company.
4. Before the Tribunal, the claimant no.1 got herself examined as PW1 and another witness was examined as PW.2. 11 documents were got marked as Exs.P1 to P11. On behalf of the Insurance Company, RW1 was examined and 4 documents were got marked as Exs.R1 to R4.
5. The Tribunal, considering oral and documentary evidence adduced, awarded a total compensation of Rs.7,83,400/- along with interest at 6% p.a. The Tribunal held that there is violation of permit conditions as the offending private bus was plying within the jurisdiction of Nelamangala Taluk at the time of accident. It is further held that the deceased being a third party, the Insurance Company has to pay the compensation amount awarded to the claimants and then to initiate proceedings against the insured before the Tribunal and take necessary steps to recover the amount from the insured. Reliance was placed on the judgment of the Hon’ble Apex Court in the case of National Insurance Co. Ltd. –vs- Challa Bharathamma and Ors. reported in 2004 ACJ 2094.
6. Learned counsel appearing for the Insurance Company would vehemently contend that admittedly there is violation of permit conditions. As such, the Insurance Company cannot be held liable to pay the compensation. He submitted that pay and recovery
claimants and in such a scenario it is not open to the Court to direct the Insurer to pay the compensation and then to proceed to recover from the insured. It is his contention that the accident took place in a place where the vehicle did not have any permit to ply. As such, there is a clear violation of permit conditions and therefore, the judgment and award passed by the Tribunal is erroneous and deserves to be set aside. It is also the contention of the learned counsel for the Insurance company that there is absolutely no evidence with regard to the income of the deceased and the Tribunal has taken the notional income at Rs.4,500/- p.m. without any basis. When there is no evidence, then it is just and necessary to take into account the minimum wages applicable during that relevant point of time and the same should have been taken for considering the ‘loss of dependency’.
7. Per contra, learned counsel appearing for the claimants would contend that the deceased Rajanna was an agriculturist and doing milk vending business and he used to earn Rs.10,000/- p.m. and he was contributing the same for his family necessity. His family consists of three members i.e., wife, son and his aged mother. The Tribunal has erred in taking the income of the deceased at Rs.4,500/- p.m. contrary to the evidence on record. He would further submit that the total compensation awarded by the Tribunal is on a lower side and accordingly, seeks to enhance the compensation. It is his further contention that the Tribunal ought to have adopted higher multiplier instead of ‘13’ by considering the fact that the deceased was aged 40 years at the time of accident and accordingly, he seeks to allow the appeal.
8. It is the case of the claimants that on 11.12.2012 at about 9.45 p.m., deceased Rajanna was riding a motorcycle bearing No.KA 52E 5070 and when he reached near Binnamangala village on Nelamangala BH road, Bangalore District, the driver of a private bus bearing registration No.KA 06 A 3177 drove the same in a rash and negligent manner and dashed against the motorcycle from behind and on account of which Rajanna sustained fatal injuries and died.
9. The accident in question involving the offending bus and the actionable negligence on the part of the driver of the said bus is not seriously disputed. The Tribunal, after considering the evidence and material on record and taking the income of the deceased at Rs.4,500/- p.m., and adopting ‘13’ multiplier and also adding 30% of the income towards future prospects, awarded a total sum of Rs.70,200/-.
10. Learned counsel for the claimants would submit that the deceased was an agriculturist and doing milk vending business and used to earn Rs.10,000/- p.m. and therefore, the income taken by the Tribunal is on the lower side. In this regard, it is relevant to see that Ex.P11 is the pahani copy produced by the claimants to show that the deceased was owning agricultural lands. The claimants are the wife, son aged about 18 years and also aged mother of the deceased. It is their case that none of the family members were working at the time of the accident. The RTC extract for the year 2012 is with respect to the land measuring 2 acres 12 guntas situated at Hullanehalli village, Goolur Hobli, Tumkur Taluk.
11. It is the contention of the learned counsel for the claimants that the deceased was aged 40 years at the time of accident and therefore, the proper multiplier applicable would be ‘15’ instead of ‘13’. He relies on Ex.P5-PM report and Ex.P6-copy of inquest report wherein the age of the deceased was shown as 40 years. However, Ex.P8-notarized copy of the Election ID Card of the deceased shows the Date of Birth as 03.02.1966. Relying on the same, the Tribunal has considered that the deceased was aged about 46 years as on the date of the accident, which is just and proper.
12. Considering that the accident has occurred in the fag end of 2012 and also considering the number of family members who were dependent on the deceased, I am of the view that the income of the deceased can be taken at Rs.7,000/- p.m. In view of the judgment of the Hon’ble Apex Court in the case of National Insurance Company Ltd., -vs- Pranay Sethi reported in AIR 2017 SC 5157, an addition of 25% has to be made to the income of the deceased instead of 30% taken by the Tribunal towards future prospects. After deducting 1/3rd towards personal expenses of the deceased, the income of the deceased is arrived at Rs.5,834 (Rs.7000+1750=8750–2916). The appropriate multiplier applicable to the age of the deceased is 15. Therefore, the claimants are entitled to a sum of Rs.10,50,120/- (5,834 x 12 x 15) towards ‘loss of dependency’ as against Rs.6,08,400/- awarded by the Tribunal. The claimants are entitled for a sum of Rs.70,000/- under the ‘conventional heads’ as per Pranay Sethi’s case (supra). Hence, in all, the claimants are entitled for a total compensation of Rs.11,20,120/- as against Rs.7,83,400/- awarded by the Tribunal.
13. The Hon’ble Apex Court in the case of Rani and Ors. –vs- National Insurance Co., Ltd. and Ors.
reported in (2018) 8 SCC 492 has held that in a case where the offending vehicle does not possess a valid permit to operate in the State concerned, even in such a case, the compensation determined must be first paid by the insurer and thereafter recover the same from the owner of the offending vehicle. In view of the law laid down by the Hon’ble Apex Court, in the above case, the direction issued by the Tribunal that the Insurance Company has to pay the compensation amount and then to initiate proceeding against the insured to take necessary steps to recover the amount cannot be said to be erroneous. In that view of the matter, I pass the following:
ORDER i. MFA No.4887/2014 is dismissed and MFA Crob. 26/2015 is allowed in part.
ii. The claimants in MVC No.7610/2012 are entitled for a total compensation of Rs.11,20,120/- as against Rs.7,83,400/- awarded by the Tribunal.
iii. The enhanced compensation of Rs.3,36,720/- (11,20,120 – 7,83,400) shall carry interest @ 6% p.a. from the date of petition till its realization.
iv. The order with regard to the apportionment and disbursement of the compensation as directed by the Tribunal shall remain unaltered.
v. Amount in deposit, if any, before this Court shall be transmitted to the Tribunal forthwith.
In view of dismissal of MFA No.4887/2014, I.A.No.1/14 does not survive for consideration and the same is dismissed.
sd/-
JUDGE TL