IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MAY, 2017 BEFORE:
THE HON’BLE MR. JUSTICE B.MANOHAR MFA.NO.6164/2011 (MV) BETWEEN THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE VI, NO.89/11, II FLOOR, 11TH CROSS, SAMPIGE ROAD MALLESWARAM, BANGALORE – 560 003.
BY REGIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD., 5TH FLOOR, KRISHI BHAVAN, NRUPATHUNGA ROAD, HUDSON CIRCLE, BANGALORE – 560 001.
BY ITS MANAGER. ... APPELLANT (BY SRI.O.MAHESH, ADV.) AND:
1. LEELAMBHIKA, W/O B BASAVARAJU, AGED ABOUT 46 YEARS, 2.KUM SHEELA, AGED ABOUT 24 YEARS, D/O B BASAVARAJUU 3. B.MAHESH KUMAR AGED ABOUT 21 YEARS, S/O B BASAVARAJUU ALL ARE R/A NO.222, WARD NO.1, NEAR GIRIJASHANKAR KALYANA MANATAPA, DEVANAHALLI ROAD, VIJAYPURA TOWN, DEVANAHALLI TALUK – 562 110, BANGALORE RURAL DISTRICT.
4. RAVIKUMAR, AGED 41 YEARS, R/A MYLAPANAHALLI VILLAGE, CHIKKABALLAPURA TALUK & DISTRICT – 562 101. ... RESPONDENTS (BY SRI.B.SHARATH KUMAR, ADV. FOR R1 TO R3, R.4 NOTICE DISPENSED WITH V/O. DTD: 6-12-2016) +++++ THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 08.04.2011 PASSED IN MVC NO.58/2010 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, DEVANAHALLI, AWARDING A COMPENSATION OF Rs.8,34,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL PAYMENT.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: -
J U D G M E N T The United India Insurance Company Limited has filed this appeal challenging the legality and correctness of the judgment and award dated 08-04-2011 made in MVC No.58/2010 passed by the Fast Track Court, Devanahalli fastening liability on them to compensate the claimants.
2. Respondents 1 to 3 herein filed a claim petition contending that the husband of first claimant and father of claimants 2 and 3 deceased Basavaraju was proceeding in a bus bearing Registration No.KA-40/2409 from Chikkajala to Vijayapura on 10-09-2008. While he was alighting the bus at Vijayapura from the front door, the driver without observing the same moved the bus in a rash and negligent manner. Due to that, the deceased Basavaraju fell down from the bus and rear wheel of the bus ran over him. However, he died on the way to hospital due to accidental injuries. In the claim petition, it was contended that at the time of death, the deceased was aged about 52 years, owning 15 acres of agricultural land, raising mulberry crops, rearing cocoons and he was also running Sree Sangameshwara Silk Industries in Vijayapura and earning Rs.3,00,000/- p.a. Due to untimely death of the deceased, the family has lost the bread earner. The accident occurred due to rash and negligent driving of the offending bus which was owned by the first respondent and insured with the second respondent therein. Hence, both the respondents are liable to compensate the claimants to the tune of Rs.30,00,000/-.
3. The insurance company defended the case by filing the written statement and contended that due to negligence on the part of the deceased, he fell down from the bus. No document has been produced to show that the deceased was earning a sum of Rs.3,00,000/- p.a. Further, the driver of the offending bus was not having valid and effective driving license at the time of accident and hence sought for dismissal of the claim petition as against the insurance company.
4. On the basis of pleadings of the parties, the Fast Track Court framed necessary issues.
5. In order to prove the case of the claimants, the 3rd claimant got examined himself as P.W.1 and one of the eye- witnesses to the incident was examined as P.W.2 and got marked the documents as Ex.P1 to Ex.P34. On behalf of the respondents, none of the witnesses were examined; however the insurance policy was marked as Ex.R1.
6. The Fast Track Court after appreciating the oral and documentary evidence let in by the parties, taking into consideration spot panchanama, IMV report, copy of the complaint and charge sheet, held that due to the actionable negligence on the part of the driver of the offending bus, the deceased fell down from the bus and succumbed to injuries. The claimants are none other than the wife and children of the deceased and hence they are entitled for compensation.
7. With regard to quantum of compensation is concerned, though the claimants claimed that the deceased was earning Rs.3,00,000/- per annum, no document has been produced to substantiate the same. Since the deceased was owning 15 acres of agricultural land, raising mulberry crops and also rearing cocoons, taking the income of deceased as Rs.9,000/- p.m., applying the multiplier 11, as he was aged about 54 years at the time of death, the Fast Track Court awarded a sum of Rs.7,92,000/- towards loss of dependency and a sum of Rs.42,000/- towards conventional heads. In all, the Fast Track Court has awarded compensation of Rs.8,34,000/- with interest at the rate of 6% p.a. Since the driver of the offending bus was having valid driving license, the liability was fastened on the insurance company to compensate the claimants. The insurance company, being aggrieved by the said judgment and award fastening liability on them to compensate the claimants, has filed this appeal.
8. Sri.O.Mahesh, learned counsel appearing for the appellant contended that the judgment and award passed by the Fast Track Court is contrary to law. No document has been produced to show that the deceased was earning Rs.9,000/- p.m. by raising mulberry crops and rearing cocoons. Even after the death of the deceased, raising mulberry crops and rearing cocoons was continued by his son. Hence, there is no loss of income. The monthly income of Rs.9,000/- taken by the Fast Track Court for the accident occurred in the year 2008 is on higher side. Further there is negligence on the part of the deceased, since he was trying to get down from the moving bus. The Fast Track Court has not taken into consideration the negligence on the part of the deceased. Hence, the judgment and award passed by the Fast Track Court cannot be sustained and sought for setting aside the same.
9. On the other hand, Sri.B.Sharath Kumar, learned counsel appearing for Respondent Nos.1 to 3 argued in support of the judgment and award passed by the Fast Track Court and contended that the deceased Basavaraju was a businessman doing silk reeling business from 1981 itself. He had obtained license to run Sree Sangameshwara Silk Industries and he owns 15 acres of agricultural land. The main crops he was raising were Ragi and mulberry for the purpose of rearing cocoons. Though the claimants claimed that the deceased was earning Rs.3,00,000/- p.a., the Fast Track Court has taken only Rs.9,000/- p.m., which is on the lower side. Further the 3rd claimant is the student studying Engineering course. Unless the deceased being well to do person, he cannot send his son to prosecute Engineering Course. In order to avoid further litigations, they have not challenged the income reckoned by the Fast Track Court. Though the insurance company has taken a contention that there is negligence on the part of the deceased, no document has been produced to substantiate the same by leading evidence. Hence, sought for dismissal of the appeal.
10. I have carefully considered the arguments addressed by the learned counsel appearing for the parties. Perused the judgment and award, oral and documentary evidence adduced by the parties.
11. The dispute in this appeal is with regard to quantum of compensation and also negligence on the part of the deceased.
12. It is the case of the claimants that while the deceased Basavaraju was proceeding in a private bus from Chikkajala to Vijayapura, near Girija Kalyana Mantapa, while he was getting down from the bus without any signal, the driver moved the bus in a rash and negligent manner, due to which, the deceased fell down and rear wheel of the bus ran over him. and he succumbed to the injuries. Though the appellant has taken the contention with regard to the negligence on the part of deceased, the same is not proved in accordance with law by leading evidence. Hence the issue regarding negligence has to be rejected.
13. With regard to quantum of compensation is concerned, it is the specific case of the claimants that the deceased owned 15 acres of agricultural land, raising mulberry crops and rearing cocoons and also established Sree Sangameshwara Silk Industries. Further he had obtained license to purchase silk worms, cocoons, and had also obtained license to rear silk worms, and he was one of the members of Marketing Co-operative Society, supplying the materials and he had obtained license for reeling of the silk. All these documents show that the deceased was not only raising mulberry crops but also doing reeling of silk and rearing the cocoons. Though the claimants claimed that the deceased was earning a sum of Rs.3,00,000/- per annum, no document has been produced to substantiate the same.
14. The 3rd claimant is aged about 20 years and is studying Engineering course. The monthly income of Rs.9,000/- taken by the Fast Track Court is not on higher side. The second claimant got married after the death of the deceased, the wife and son of the deceased are the dependants of the deceased and they are entitled for compensation. The evidence on record clearly disclose that deceased was owning 15 acres of agricultural land and also doing sericulture business. In view of death of the deceased, nobody is looking after the silk rearing business since the son of the deceased is studying Engineering course. Hence, reckoning income of the deceased at Rs.9,000/- p.m., is in accordance with law. The Fast Track Court taking into consideration the documents produced by the parties with regard to owning of agricultural land by the deceased and also rearing of cocoons, license regarding purchase of cocoons and other business, reckoned the monthly income of the deceased at Rs.9,000/-. The Fast Track Court, deducting 1/3rd towards his personal expenditure, taking into consideration the age of the deceased as 54 years awarded a sum of Rs.7,92,000/- towards loss of dependency. Taking into consideration all these aspects of the matter, I am of the considered opinion that the Fast Track Court has awarded just and fair compensation 15. The appellant has not made out a case to interfere with the judgment and award passed by the Fast Track Court. Accordingly, I pass the following:
ORDER The appeal is dismissed. The judgment and award dated 08-04-2011 made in MVC No.58/2010 passed by the Fast Track Court, Devanahalli is confirmed.
The amount in deposit before this Court is directed to be transmitted to the Civil Judge (Sr.Dn.), Devanahalli for disbursement.
Sd/- JUDGE mpk/-*