IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14th DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MS. JUSTICE JYOTI MULIMANI MISCELLANEOUS FIRST APPEAL No.2780 of 2017 (MV) C.W.
MISCELLANEOUS FIRST APPEAL No.1795 of 2017 (MV) IN MFA No.2780 of 2017 BETWEEN :
THE DIVISIONAL MANAGER NATIONAL INSURANCE CO., LTD., OPPOSITE BAPUJI AUDITORIUM M.C.C. ‘B’ BLOCK, DAVANAGERE REPRESENTED BY, THE ASSISTANT MANAGER, NATIONAL INSURANCE COMPANY LTD., NO.144, IST FLOOR, SHUBHARAM COMPLEX M.G.ROAD BANGALORE - 1.
... APPELLANT (BY SMT.MANJULA.N.TEJASWI, ADVOCATE) AND:
1. SMT.CHANDRAMMA W/O.LATE N.RAMAPPA AGE: ABOUT 42 YEARS HOUSE WIFE R/O.HOLALKERE TOWN CHITRADURGA DISTRICT – 577 501.
2. RAJAPPA.V.H. S/O.HALAPPA, AGE: MAJOR R/O.MALLADIHALLY VILLAGE RAMAGIRI HOBLI, HOLALKERE TALUK CHITRADURGA TALUK AND DISTRICT – 577 501.
...RESPONDENTS (BY SRI.R.SHASHIDHARA, ADVOCATE FOR R-1, R-2 SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT 1988, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 21.10.2016 PASSED IN MVC NO.129/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MACT, HOLALKERE, AWARDING COMPENSATION OF RS.17,91,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF FILING OF THIS PETITION TILL REALIZATION.
IN MFA No.1795 of 2017 BETWEEN :
CHANDRAMMA W/O.LATE N. RAMAPPA AGED ABOUT 42 YEARS HOUSE WIFE R/O.HOLALKERE TOWN - 577 526. ... APPELLANT (BY SRI.R.SHASHIDHARA, ADVOCATE) AND:
1. RAJAPPA.V.H. S/O.HALAPPA, MAJOR R/O.MALLADIHALLY VILLAGE RAMAGIRI HOBLI, HOLALKERE TALUK - 577 526.
2. THE DIVISIONAL MANAGER, THE NATIONAL INSURANCE CO., LTD., OPPOSITE BAPUJI AUDITORIUM, M.C.C. ‘B’ BLOCK DAVANAGERE – 04.
...RESPONDENTS (BY SMT.MANJULA.N.TEJASWI, ADVOCATE FOR R-2, R-1 SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND MACT AT HOLALKERE IN MVC 129/2015 DATED 21.10.2016 AND TO ENHANCE THE COMPENSATION FROM RS.17,91,000/- TO RS.30,00,000/- BY ALLOWING THIS APPEAL.
THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT Though these appeals are listed for admission, with the consent of learned counsel on both sides, they are heard finally.
2. MFA 2780/2017 has been filed by National Insurance Company Limited, while MFA No.1795/2017 has been filed by the claimant, both assailing the common judgment and award dated 21.10.2016 passed by the Senior Civil Judge and Motor Accident Claims Tribunal at Holalkere in MVC No.129/2015 (hereinafter referred to as ‘the Tribunal’, for the sake of brevity).
3. For the sake of convenience, parties herein shall be referred to in terms of their status before the Tribunal.
4. Respondent No.1 – claimant, being the spouse of one Ramappa, S/o.Nagappa filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the Act’) claiming compensation of Rs.30,00,000/- on account of death of her husband – Ramappa in a road traffic accident that occurred on 29.05.2014 at about 8.15 p.m. According to the claimant, on the fateful day, Ramappa was riding a Hero Honda Splendor motorcycle bearing registration No.KA-16/K-2249 towards his house on National Highway -13 (NH-13). When he was near the post office at Holalkere Town, the driver of Bajaj Air Cab vehicle (passenger auto) bearing registration No.KA-16/A- 7847 drove the same in a rash and negligent manner and dashed against Ramappa’s vehicle. As a result, Ramappa fell down from the motorcycle and he sustained grievous injuries. He was shifted to Government Hospital for treatment and thereafter, to S.S.Hospital, Davanagere for advance treatment. However, on 05.06.2014 at about 6.40 p.m. he died in the said hospital. It is contended that the deceased - Ramappa was working as a cook in the Ladies Hostel and he was also doing Agricultural work and stone work and was earning a salary of Rs.30,000/- per month. On account of the sudden death of Ramappa, the claimant has been suffering from mental shock and agony and loss of bread earner of the family. Hence, he filed the claim petition seeking compensation of Rs.30 lakhs with interest at 18% p.a. before the Tribunal.
5. In response to the notices issued by the Tribunal, respondent No.1 – owner of the vehicle did not appear, though he was served and was placed ex parte, while respondent No.2 – Insurance Company appeared and filed its written statement denying the averments made in the claim petition and contended that the driver of the offending autorickshaw was not holding a valid and effective driving licence and further contended that the driver of the said autorickshaw was not negligent in causing the accident. It was further submitted that the satisfaction of the award would be subject to the terms and conditions of the policy including the grant of permit and conditions of permit. Hence, insurance company sought for dismissal of the claim petition.
6. On the basis of the aforesaid pleadings, the Tribunal framed the following issues for its consideration:
i. Whether the petitioner proves that Ramapaa S/o.Nagappa died for the injuries sustained in the RTA occurred on 29.05.2014 at about 8.15 p.m. near Post Office, NH-13 Road, Holalkere Town, due to rash and negligent driving of driver of Bajaj Air Cab vehicle (Passenger Auto) bearing reg. No.KA-16/A-7847?
ii. Whether the petitioner is entitled for compensation? If so, what quantum and from whom?
iii. What order or award?
7. In order to prove her case, the claimant – Chandramma examined herself as PW-1, and produced 15 documents which were marked as Exs.P.1 to P.15. While Sri.B.L.Palanna, the Officer of the insurance company was examined as RW-1 and Chandrashekar, Officer of RTO, Chitradurga was examined as RW-2 and produced three documents which were marked as Ex.R.1 to R.3. On the basis of the said evidence, the Tribunal answered issue No.1 in the affirmative and issue No.2 partly in the affirmative and allowed the claim petition in part by awarding compensation of Rs.17,91,000/- with cost and interest at the rate of 6% per annum from the date of filing of the claim petition till realization. Being aggrieved by fastening the liability on the insurance company and also contending that the quantum of compensation awarded by the Tribunal is exorbitant and also in violation of terms and conditions of permit and insurance policy, the insurance company has preferred MFA No.2780/2017. Being aggrieved by the meager compensation awarded by the Tribunal, the claimant has sought for enhanced compensation by filing MFA No.1795/2017.
8. Since these appeals arise out of same judgment and award of the Tribunal and also from the same accident, they have been clubbed together and have been heard together.
9. Learned counsel for the appellant - Insurance Company firstly, submitted that the Tribunal was not right in fastening the liability on the appellant – Insurer. She contended that the offending vehicle namely, the passenger autorickshaw bearing registration No.KA-16/A- 7847 in respect of which the insurance policy was issued, was beyond the limits of the permit and referring to Exs.R.2 and R.3, being the certified copies of the permit, she contended that the permit was issued to ply within the circumference of ten kilometers from Malladihalli village, but in the instant case, the vehicle was plying 10.4 kilometers away from Malladihalli village. She submitted that although RW-2, being one of the Officials of the RTO was examined in his cross-examination, he submitted that he was not aware of the distance from Malladihalli village and the spot of the accident, but additional evidence has been produced by filing an application – I.A.No.2/2017 under Order XLI Rule 27 read with Section 151 of Civil Procedure Code, 1908 (CPC) in the form of a communication, which has been issued by the Assistant Executive Engineer, PWD Department, Holalkere to the appellant – Insurer dated 28.01.2017, to state that the distance between Holalkere Town to Malladihalli village is 10.40 kilometers, which is beyond the permit limit of ten kilometers, as the accident occurred at Holalkere Town. She further contended that the application seeking additional evidence may be allowed and Insurance Company may be exonerated from its liability to satisfy the award. Alternatively, she placed reliance on the judgment of the Hon’ble Supreme Court in the case of RANI AND OTHERS v. NATIONAL INSURANCE COMPANY LIMITED AND OTHERS reported in (2018) SCC 492, to contend that the direction may be issued to pay the compensation to the claimant and recover the same from the owner of the insured vehicle.
10. She next submitted that the award of compensation of Rs.17,91,000/- with interest at the rate of 6% per annum is exorbitant. She submitted that the deceased was 51 years of age, only 15% of the income of the deceased towards future prospect could be considered whereas, the Tribunal has added 30% of the income of the deceased towards the future prospects, which is contrary to the dictum of the Hon’ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680. She further submitted that the Tribunal has rightly deducted 50% of the income of the deceased towards his personal expenses, but the award of compensation on the head ‘loss of dependency would have to be reassessed and reduced, since 15% of the income to be considered towards future prospects. She submitted that the award of compensation on the conventional heads are also exorbitant and therefore, the appeal would not call for interference on the question of quantum of compensation awarded by the Tribunal. Therefore, she submitted that the appeal filed by the Insurance Company may be allowed.
11. Per contra, learned counsel for the claimant submitted that the award of compensation is on the lower side. Hence, claimant has filed her appeal seeking enhancement. He contended that the Tribunal could not have deducted 50% of the income of the deceased towards his living expenses, as the deceased was married and that only 1/3rd of the income could have been deducted towards the living expenses of the deceased. He further submitted that the award of compensation on the head ‘loss of consortium’ and ‘loss of funeral expenses’ is on the lower side and no compensation has been awarded towards ‘loss of estate’. He contended that the Tribunal has rightly considered 30% of the income of the deceased towards future prospects, by retaining the same, the quantum of compensation may be enhanced in this appeal. He further contended that the application filed by the appellant – insured under Order XLI Rule 27 of CPC may be dismissed, as the appellant sought to let-in evidence. He also contended that RW-2 was unsuccessful in eliciting any fact in their favour and having made use of an opportunity before the Tribunal, the Insurance Company cannot now seek any opportunity to lead any additional evidence, so as to prove its case that the offending autorickshaw was plying beyond the permit limit. He contended that the permit to ply was for ten kilometers surrounding Malladihalli village and at any rate there is no evidence on record to prove that the autorickshaw was plying on the said road beyond ten kilometers radius. He submitted that when effort has been made by the Insurance Company to seek exoneration or in alternative to seek for a direction for pay and recovery has been unsuccessful before the Tribunal, a second opportunity may not be granted by this Court to the appellant- Insurer. He contended that the appeal filed by the Insurance Company may be dismissed, while the appeal filed by the claimant may be allowed by enhancing the compensation.
12. Having heard the learned counsel for the respective parties and on perusal of material on record as well the original record, the following points would arise for our consideration.
i. Whether the Insurance Company has proved that there was any violation of the condition of permit as well as the condition in the policy, so as to seek exoneration from its liability to satisfy the award or in the alternative a direction to pay and recover the award amount from the owner of the vehicle / insurer?
ii. Whether the quantum of compensation awarded by the Tribunal calls for any interference in this appeal?
iii. What order?
13. The claimant has established the fact that Ramappa – husband of the claimant died in a road traffic accident on 05.06.2014 at about 6.40 p.m. on account of the injuries sustained by him in the accident that occurred on 29.05.2014 at about 8.15 p.m., when he was riding his Hero Honda Splendor motorcycle bearing registration No.KA-16/K-2249 towards his house on National Highway - 13 (NH-13) near the post office at Holalkere Town when at that time, the driver of the passenger autorickshaw bearing registration No.KA-16/A-7847 drove the same in a rash and negligent manner and hit the motorcycle, as a result, Ramappa sustained injuries and succumbed to the same.
14. The controversy is with regard to two aspects: The first is with regard to there being violation of the condition of permit granted in respect of the passenger autorickshaw. Exs.R2 and R3 are the certified copies of the permit issued in respect of the offending autorickshaw and perusal of the same, it would indicate that the autorickshaw had the permit to ply within the radius of ten kilometers from Malladihalli village. In order to prove the fact that the offending vehicle had violated the condition of permit, the Insurance Company let-in evidence of RW-2 namely – Chandrashekar, official of RTO, Chitradurga and on perusal of his evidence, it is clear that the said Official has not been able to state categorically, the distance between Malladihalli village and spot of the accident in Holalkere town. Consequently, the Tribunal held that there is no proof of the defence taken by the Insurance Company and fastened the liability on the Insurer. At this stage, in this appeal, the Insurance Company has filed the application – I.A.No.2/2017 under Order XLI Rule 27 read with Section 151 of Civil Procedure Code, 1908 seeking to produce additional evidence in the form of a letter of the Assistant Executive Engineer, Holalkere Town dated 28.01.2017 written to the Branch Manager of the appellant – insurer. It states that the distance between Malladihalli village and Holalkere town is 10.40 kilometers.
15. We have perused Order XLI Rule 27 of the CPC, which permits additional evidence to be let in at the appellate stage, subject to certain terms and conditions. On perusal of the same, we do not think that the appellant has made out a case coming within the scope of any of the stipulations under Order XLI Rule 27 read with Section 151 of CPC, so as to seek permission to lead any additional evidence. On the other hand, we note that the appellant – Insurer has made efforts to prove its defence, so as to seek exoneration before the Tribunal, but has been unsuccessful. Having been unsuccessful before the Tribunal in proving the fact that the distance between Malladihalli village and Holalkere Town was over 10 kilometers and the radius within which the offending autorickshaw could ply was only ten kilometers, we do not think that interest of justice would be served by permitting the Insurance Company to let-in any additional evidence. On the other hand, prejudice would be caused to the claimant if additional evidence is sought to be produced at this stage, as the appellant – Insurer has failed to establish its case before the Tribunal, despite making an effort to let-in evidence of RW-2, who is none other than the Official of the RTO at Chitradurga. In the circumstances, the application – I.A.2/2017 filed under Order XLI Rule 27 read with Section 151 of CPC is dismissed.
16. Consequently, the finding of the Tribunal that the Insurance Company has failed to prove his defence, so as to seek exoneration of its liability on the term that there is violation of the permit condition is affirmed. Hence, we answer issue No.1 in favour of the claimant and against the insurance company.
17. Next point is with regard to the quantum of compensation awarded by the Tribunal. The arguments submitted at the bar by the respective counsel would not call for reiteration.
18. The Tribunal has awarded compensation of Rs.17,91,272/- which is rounded of to Rs.17,91,000/-, on the following heads:
Heads Compensation awarded by the Tribunal (in Rs.) Loss of dependency 17,31,272.00 Loss of consortium 25,000.00 Loss of love and affection 10,000.00 Funeral, transportation of dead body and obsequious 25,000.00 Total 17,91,272.00 19. The deceased – Ramappa was 51 years of age.
He was working as a Group ’D’ employee in the Department of Social Welfare (T.P.) and he was earning salary of Rs.20,378/- per month. Out of the same, Rs.200/- has been deducted towards Professional Tax and the net salary arrived at Rs.20,178/-per month. The Tribunal following the decision of the Hon’ble Supreme Court in the case of SMT.SARALA VERMA & ORS. V.DELHI TRANSPORT CORPORATION & ANR. reported in AIR 2009 SC 3104, added 30% of the said income of the deceased towards future prospects. However, in view of the latest dictum of the Hon’ble Supreme Court in PRANAY SETHI, when the deceased is above 50 years of age, only 15% of the income has to be added towards future prospects. Thus, the deceased was earning Rs.20,378/- per month, Rs.200/- is required to be deducted towards professional tax, which comes to Rs.20,178/-, then 15% of Rs.20,178/- which works out to Rs.3,026/- shall have to be added. The salary would be Rs.23,204/-. The claimant is not having children and the claimant is the only dependant of the deceased. Having regard to the dictum of the Hon’ble Supreme Court in the case of SARALA VERMA, 50% of the said amount has to be deducted towards personal and living expenses of the deceased. Therefore, 50% of the income of Rs.23,204/- is deducted, it comes to Rs.11,602/-. When the same is annualized and multiplied by ’11’, it comes to Rs.15,31,464/-. Consequently, we propose to award Rs.15,31,464/- as against Rs.17,31,272/- awarded by the Tribunal on the head ‘loss of dependency’.
20. Having regard to the judgment of the Hon’ble Supreme Court in the case of PRANAY SETHI, the claimant is entitled to Rs.40,000/- towards “loss of spousal consortium”. Further, a sum of Rs.15,000/- is awarded on the head ‘loss of estate’ and another sum of Rs.15,000/- is awarded towards ‘funeral expenses’. In all, claimant in MVC No.1795/2017 is entitled to Rs.16,01,464/-. Accordingly, point No.2 is answered in favour of the Insurance Company. The reassessed compensation is as under:
HEADS Compensation awarded by this Court (in Rs.) Loss of dependency 15,31,464.00 Loss of consortium 40,000.00 Loss of estate 15,000.00 Towards funeral expenses 15,000.00 Total 16,01,464.00 21. Said re-assessed compensation shall carry interest at the rate of 6% per annum from the date of claim petition till realization.
22. Out of the total compensation, 80% shall be deposited in a Fixed deposit for ten years in any Post office or Nationalized Bank with liberty to withdraw interest thereon. Remaining amount shall be released in favour of the claimant – wife of the deceased, after due identification. The Insurance Company shall deposit the balance compensation amount within a period of four weeks from the date of receipt of a certified copy of the judgment.
23. In the result, MFA No.2780/2017 filed by the insurance company is allowed-in-part, while MFA No.1795/2017 filed by the claimant is dismissed.
24. Parties to bear their respective costs.
25. The amount in deposit shall be transmitted to the Tribunal forthwith.
26. Office is directed to transmit the original records to the concerned Tribunal forthwith.
In view of disposal of the appeals, I.A.No.2/2017 stands dismissed.
Sd/- JUDGE Sd/- JUDGE VMB