IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.3138/2011 [MV] BETWEEN:
G N SHIVANNA S/O NANJAPPA AGED ABOUT 36 YEARS R/O GONDHIHALLY GRAMA K R PETE TALUK NOW R/AT DODDANOOR GRAMA HALLYMYSORE HOBLI HOLENARASIPURA TALUK DISTRICT HASSAN.
... APPELLANT (BY SRI.SYED AKBAR PASHA, ADV. FOR SRI. MAHANTESH S HOSMATH, ADV.) AND:
1. K NANJUNDAPPA S/O KARIYAPPA AGED ABOUT 61 YEARS R/O HERETHALU GRAMA HALLYMYSORE HOBLI TQ. HOLENARASIPURA DISTRICT HASSAN.
2. BAJAJ ALIANZ GENERAL INSURANCE CO. LTD., REGISTRAR OFFICE G E PLAZA, AIRPORT ROAD ERVADE POST, PUNE R/BY BAJAJ ALIANZ GENRAL INSURANCE CO. LTD., SRI LAKSHMI COMPLEX IN FRONT OF B.S.N.L. BUILDING B M ROAD, HASSAN.
(BY SRI.H S LINGARAJU, ADV. FOR R2 R1-SERVED AND UNREPRESENTED) ... RESPONDENTS THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 02.02.2011 PASSED IN MVC NO.1146/2010 ON THE FILE OF THE FAST TRACK JUDGE, MEMBER MACT, HOLENARASIPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The claimant who is the father of deceased 7 years old boy is before this Court, not being satisfied with the quantum of compensation awarded under the judgment and award dated 02.02.2011 passed in MVC No.1146/2010 on the file of the Fast Track Court and Motor Accident Claims Tribunal, Holenarasipura (hereinafter referred to as 'the Tribunal' for short).
2. The claimant is the father of the deceased Mohankumar who was aged about 7 years, died in a road traffic accident which occurred on 11.06.2010. It is stated that when the deceased was walking on the left side of the road with his grandfather, a goods auto rickshaw bearing registration No.KA-13/A-4634 driven in a rash and negligent manner came and dashed against the said Mohankumar. Due to which, the deceased suffered grievous injuries and subsequently succumbed to the injuries. It is stated that the deceased was the only son of the claimant, studying in I Standard and he had a bright future.
3. On issuance of notice, respondent No.2 appeared before the Tribunal and filed statement of objections denying the claim petition averments. It is also contended that the claim made is exorbitant and excessive. It was further contended that the driver of the goods auto rickshaw had no valid and effective driving licence as on the date of accident. There is breach of terms and conditions of the policy.
4. On behalf of the claimant, two witnesses were examined as P.W.1 and P.W.2 apart from marking documents Ex.P1 to Ex.P17. The respondent examined R.W.1 and marked the documents as Ex.R1 and Ex.R2.
5. The Tribunal, on examination of the material on record taking the notional income of the deceased minor at Rs.15,000/- p.a. applying the multiplier of 15 awarded total compensation of Rs.2,25,000/- with interest at the rate of 6% p.a. The claimants being not satisfied with the quantum of compensation are before this Court seeking enhancement of compensation.
6. Heard the learned counsel for the appellant and learned counsel for the respondent/Insurance Company. Perused the lower court records.
7. Learned counsel for the claimant would submit that the compensation awarded by the Tribunal is on the lower side. He submits that the deceased was aged about 7 years and he was the only son to the claimant. Further, the deceased had a bright future. Taking the notional income of Rs.15,000/- p.a. by the Tribunal is on the lower side. Learned counsel for the appellant relies upon decision of the Hon'ble Apex Court reported in (2014) 1 SCC 244 in the case of KISHAN GOPAL AND ANOTHER v/s LALA AND OTHERS to contend that Rs.30,000/- p.a. is to be taken for determination of compensation. Thus, he prays for enhancement of compensation.
8. Per contra, learned counsel for the respondent/Insurance Company would submit that the compensation awarded by the Tribunal is just and appropriate, which needs no interference.
9. On hearing the learned counsel for the parties and on perusal of the material on record, I am of the view that the claimant would be entitled for enhanced compensation. The accident involving auto rickshaw bearing registration No.KA-13/A-4634 and the accidental death of the minor Mohankumar aged about 7 years is not in dispute in this appeal. The claimant is before this Court claiming enhanced compensation. The Tribunal observing that the deceased is a non- earning person and he was only 7 years at the time of death, assessed the income at Rs.15,000/- p.a. and applied the multiplier of 15 and awarded compensation of Rs.2,25,000/-.
10. The claimant has lost their only son who was aged 7 years. Hence, the father of the deceased is entitled for just compensation. The Hon'ble Apex Court in the case of KISHAN GOPAL (supra) taking note of the fact that the Act is of the year 1998 and the standard of living of the year in which the accident had taken place was of the view that Rs.30,000/- p.a. would be the appropriate income for determination of compensation by applying the multiplier 15. In the present case also, by following the above said decision, I am of the view that the claimant would be entitled to global compensation of Rs.5,00,000/- with interest at the rate of 6% p.a.
11. Further, the Tribunal has fastened the liability on the owner/driver of the offending vehicle on the ground that the driver of the goods auto rickshaw had no valid and effective driving license as on the date of accident. It is not in dispute that the driver of the auto rickshaw had licence to drive LMV. Ex.R-2 is extract of driving licence, which indicates that the driver had licence to drive LMV non-transport which is valid till 25.02.2030. Thus it is clear that the driver had valid licence to drive LMV non-transport. The Hon'ble Apex Court in the case of MUKUND DEWANGAN V/S ORIENTAL INSURANCE COMPANY LIMITED reported in (2017) 14 SCC 663 has held that the person holding LMV non-transport licence would be entitled to drive transport vehicle of the same class. Following the above said decision, liability is fastened on the insurer.
12. Accordingly, the appeal is allowed in part. The judgment and award dated 02.02.2011 in MVC No.1146/2010 on the file of the Fast Track Court and Motor Accident Claims Tribunal, Holenarasipura is modified and the claimant is entitled to compensation of Rs.5,00,000/- as against Rs.2,25,000/- with interest at the rate of 6% p.a. .
The insurer is directed to deposit the compensation amount of Rs.5,00,000/- with interest at the rate of 6% p.a. , within four weeks from today before the concerned Tribunal.
Sd/- JUDGE mpk/-* CT:bms