IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE K. SOMASHEKAR M.F.A. NO.4714 OF 2017 (MV) BETWEEN :
1. CHANDRI BAI W/O LATE KRISHNA NAIK AGED ABOUT 40 YEARS.
2. SHWETHA D/O LATE KRISHNA NAIK AGED ABOUT 20 YEARS.
3. SANDESH S/O LATE KRISHNA NAIK AGED ABOUT 17 YEARS, 4. SANDEEP S/O LATE KRISHNA NAIK AGED ABOUT 10 YEARS APPELLANTS NO.3 AND 4 ARE MINORS REP. BY THEIR MOTHER CHANDRI BAI AS NATURAL GUARDIAN ALL R/O. THOLAHUNSE VILLAGE, DISTRICT AND TQ, DAVANGERE - 577 001.
(BY SMT. SARITHA KULKARNI, ADVOCATE) ... APPELLANTS AND :
1. VISHWANATH S/O VIRUPAKSHAPPA AGE: 34 YERAS, OCC: OWNER R/O BEHIND DCM, R.H.CIRCLE DAVANAGERE - 577 001.
2. DHANULAL S/O NANJA NAIK AGE: 42 YEARS, R/O AREHALLI, CHANNAGIRI TQ DISTRICT DAVANAGERE - 577 001.
3. THE DIVISIONAL MANAGER ORIENTAL INSURANCE CO LTD., THILUVALLI COMPLEX, I FLOOR, P.B.ROAD, DAVANGERE - 577 001.
... RESPONDENTS (BY SMT. ARCHANA MURTHY, ADVOCATE FOR R1;
SHRI H C VRUSHABHENDRAIAH, ADVOCATE FOR R3; NOTICE TO R2 IS DISPENSED WITH) THIS M.F.A. IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:15.07.2016 PASSED IN MVC NO.94/2013 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND VI MACT AT DAVANAGERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING :
JUDGMENT Though this appeal is posted for admission, with the consent of learned counsel for both the parties, the matter is taken up for final disposal.
2. The factual matrix of the appeal are as under :
It is stated in the claim petition that petitioner No.1 is the wife and petitioners No.2 to 4 are the children of deceased Krishna Naik. On 03.04.2012 Krishna Naik and his brothers were proceeding from Tholahunse village to Parashurampur village on motor cycle bearing No.KA- 17/EB-2215 on the left side of the road. At about 8.30 a.m. Krishna Naik and his brother came near Davangere University in front of petrol bunk at Tholahunse village area, at that time the driver of goods autorickshaw bearing No.KA-17/A-5152 came from opposite direction in rash and negligent manner and hit the motor cycle of Krishna Naik. As such Krishna Naik sustained injuries and he was immediately shifted to SSIM and RC Hospital, Davangere.
As the Krishna Naik was unable to respond to the treatment, he died at about 11.00 a.m. on 03.04.2012 itself. The deceased Krishna Naik was earning Rs.6,000/-
p.m. He was aged about 40 years on the date of accident.
He was also an agriculturist and was doing some coolie work. He was the main bread earner of the family. After his death, his family members have suffered both mentally as well as economically to lead their life. Hence, they being the legal representatives have filed claim petition before the Tribunal seeking for compensation.
3. In pursuance of the service of summons in the aforesaid claim petition filed by them, respondents No.1 to 3 appeared through their counsel and filed separate objection in detail and so also denied the averments made in the claim petition seeking compensation. However, respondent No.1 has admitted about the occurrence of road accident and its place. Respondents No.1 and 3 have specifically denied that the accident has taken place due to the rash and negligent driving of the auto. Respondent No.3 has denied the averments made in the claim petition and sought for dismissal of the claim petition filed by the legal representatives of deceased Krishna Naik.
4. Based upon the pleadings of both the parties, the Tribunal has framed issues.
5. In order to establish the case against the respondents, petitioner No.1 had examined herself as P.W.1 and got marked documents as Exs.P-1 to P-15. On behalf of respondents, two witnesses were examined as R.Ws.1 and 2 and got marked Exs.R-1 and R-2. The Tribunal after evaluating the oral and documentary evidence available on record awarded compensation in a sum of Rs.9,95,000/- with interest at 8% p.a. from the date of petition till its realization.
6. The impugned judgment has been challenged under this appeal on the ground that the compensation awarded by Tribunal is inadequate.
7. The learned counsel for appellant has taken through the evidence of P.W.1 and contended that the deceased Krishna Naik is said to be an agriculturist and the same has been proved by appellant No.1 by producing the documents at Exs.P-11 to P-15 i.e., RTC extracts. The said extracts have been secured from the concerned revenue authorities. But the Tribunal has erroneously taken into consideration the income of deceased Krishna Naik at Rs.4,000/-. Therefore, the same needs interference. The income taken by the Tribunal is meager.
8. It is further contended that the auto involved in an accident is transport vehicle and the driver of said vehicle was holding a driving licence to drive the light motor vehicle also. The same is marked at Ex.R-2. The driver of the offending vehicle had valid driving licence to drive the light motor vehicles, who is authorized to drive the said vehicles. This aspect has not been appreciated by the Tribunal. The liability is to be fastened on the insurance company instead of fastening on respondent No.1. It is further contended that the impugned judgment and award rendered by the Tribunal relating to the compensation awarded under funeral expenses, love and care in between deceased and the legal representatives of deceased, who are said to be claimants, needs interference. Hence, he prays for enhancement of compensation.
9. Per contra, learned counsel for respondent No.3 / Insurance Company has taken me through the evidence of R.Ws.1 and 2 and also the documents marked at Exs.R-1 and 2, which are the insurance policy copy and DL extract. These two documents are relevant and the same has been taken into consideration by the Tribunal along with the evidence of P.W.1 and R.Ws.1 and 2 for awarding compensation. Tribunal has awarded a sum of Rs.9,95,000/- along with interest at 8% p.a. The amount awarded to claimants is just and reasonable.
10. In this context, it is relevant to consider the evidence of P.W.1 and so also the relevant documents produced by claimants at Ex.P-3, Ex.P-4 and Ex.P-5, which are spot mahazar, seizure mahazar and inquest mahazar. The inquest mahazar is said to be conducted by the Investigating Officer in respect of the dead body of the deceased Krishna Naik, wherein it reveals the injuries inflicted upon him. Ex.P-6 is the post mortem report said to be issued by the Doctor, who conducted autopsy over the dead body. Ex.P-9 is said to be the date of birth certificate. Exs.P-11 to 15 are said to be RTC Extracts which are five in number. These are all the documents produced by claimants in order to establish their case against the respondent for claiming compensation, wherein the Tribunal has held the monthly at Rs.4,000/-. The same requires to be enhanced. As per the Guideline, the monthly income of the deceased enhanced by Rs.4,000/- and it come to Rs.8,000/- p.m. Therefore, the loss of dependency is worked out by adding 50% of the monthly income as future prospects and by deducting 1/3rd towards personal expenses of the deceased. As the age of the deceased was 40 years at the time of incident, the appropriate multiplier would be ‘15’. Therefore, the loss of dependency comes to Rs.14,40,000/- {Rs.8,000/- + Rs.4,000/- = [Rs.12,000/-] – [Rs.4,000/-] (Rs.12,000/- x1/3 = Rs.4,000/-) = Rs.8,000/- x 12 x 15 = Rs.14,40,000/-}. The tribunal has awarded Rs.10,000/- towards loss of estate, Rs.25,000/- towards funeral expenses, Rs.1,00,000/- each under the heads loss of consortium and loss of care & guidance; and Rs.40,000/- towards loss of love and affection.
11. However, as held by the Hon’ble Supreme Court in the case of National Insurance Company Limited v. Pranay Sethi and Others, reported in AIR 2017 SC 5157, the amount awarded under conventional head should not exceed Rs.70,000/- but the Tribunal has awarded Rs.2,75,000/-. The amount awarded towards loss of love and affection; and loss of love, care and guidance does not call for any interference. The compensation awarded towards funeral expenses and loss of consortium is reduced to Rs.15,000/- and Rs.40,000/- respectively. The compensation awarded towards loss of estate is enhanced to Rs.15,000/-. Therefore, in terms of the aforesaid reasons, it is said that the appellant is entitled to enhanced compensation of Rs.6,55,000/- in addition to the compensation awarded by the Tribunal i.e., a sum of Rs.9,95,000/- along with interest at 8% p.a. But the enhanced compensation carries the interest at the rate of 6% p.a. However, the Tribunal has awarded compensation by fastening the liability on respondent No.1, who is the owner of offending vehicle. Keeping in view the principles laid down in the case of Mukund Dewangan v. Oriental Insurance Company Limited, reported in AIR 2017 SC 3668, there is no res integra for consideration of the contention which has been taken by respondent – insurance company relating to intervention of the impugned judgment and award rendered by the Tribunal as the “transport vehicle” is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of “light motor vehicle” continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect.
12. Therefore, for the aforesaid reasons and findings, I proceed to pass the following :
ORDER i. The appeal is allowed in part.
ii. Consequently, the appellants are entitled to the enhanced compensation of Rs.6,55,000/- along with interest at 6% p.a. hereafter till realization of the enhanced amount.
iii. The entire compensation awarded by Tribunal as well as the enhanced amount in this appeal shall be paid by the respondent – insurance company and the same shall be deposited before the Tribunal within a period of four weeks from the date of receipt of a copy of this order.
iv. The amount in deposit, the compensation awarded by Tribunal as well as the enhanced amount in this appeal shall be apportioned in terms of the award passed by the Tribunal.
SD/- JUDGE hnm