IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 14TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE G.NARENDAR MISCELLANEOUS FIRST APPEAL NO.3984 OF 2015 C/W MISCELLANEOUS FIRST APPEAL NO.303 OF 2016 IN MISCELLANEOUS FIRST APPEAL NO.3984 OF 2015: BETWEEN:
M/S.ICICI LOMBARD GENERAL INSURANCE COMPANY LTD., MAIN OFFICE, ICICI LOMBARD HOUSE, VEER SAVARKAR ROAD, NEAR SIDDHI VINAYAKA TEMPLE, PRABHADEVI, MUMBAI – 400025, REPRESENTED BY ICICI LOMBARD GIC LTD., MANGALORE BRANCH, MANGALORE, NOW REPRESENTED BY MANAGER LEGAL M/S ICICI LOMBARD GENERAL INSURANCE COMPANY LTD., REGIONAL OFFICE, NO.89, 2ND FLOOR, SVR COMPELX, MADIVALA, HOSUR MAIN ROAD BANGALORE – 68. ...APPELLANT (BY SRI B C SHIVANNE GOWDA, ADV.) AND:
1. MANJULA, D/O LATE CHANNAIAH, NOW AGED ABOUT 24 YEARS, KALGANE VILLAGE, DONIGAL POST, SAKALESHPURA TALUK, HASSAN DISTRICT – 573201.
2. HARISH, S/O LATE CHANNAIAH, NOW AGED ABOUT 22 YEARS, KALGANE VILLAGE, DONIGAL POST, SAKALESHPURA TALUK, HASSAN DISTRICT – 573201.
3. PRAKASH, S/O LATE CHANNAIAH, NOW AGED ABOUT 30 YEARS, KALGANE VILLAGE, DONIGAL POST, SAKALESHPURA TALUK, HASSAN DISTRICT – 573201.
4. MALLIKA, W/O PARMESH, D/O LATE CHANNAIAH, NOW AGED ABOUT 26 YEARS, HADLALLI VILLAGE, VALALAHALLI POST, SAKALESHPURA TALUK, HASSAN DISTRICT – 573201.
5. MEENAKSHI, W/O LOKESH, D/O LATE CHANNAIAH, NOW AGED ABOUT 28 YEARS, KALGANE VILLAGE, DONIGAL POST, SAKALESHPURA TALUK, HASSAN DISTRICT – 573201.
6. LALITHA, W/O VEERUPAKSHA D/O LATE CHANNAIAH, NOW AGED ABOUT 34 YEARS, VADOOR VILLAGE, KUNIGANAHALLI POST, SAKALESHPURA TALUK, HASSAN DISTRICT – 573201.
7. SAVITHA, W/O THEJES, D/O LATE CHANNAIAH, AGED ABOUT 32 YEARS, NILUVAGILU VILLAGE, BESUR POST, SOMWARPET TALUK, KODAGU DISTRICT – 571236.
8. PAMOD.N, S/O HEMANTH KUMAR, NO.88/1, GOWRI SHANKAR NILAYA, AMRUTHA HALLI MAIN ROAD, SAKAR NAGAR, BANGALORE – 560 001. …RESPONDENTS (BY SRI H PAVANA CHANDRA SHETTY, ADVOCATE FOR R1-R7, SMT R MANJULA DEVI, ADVOCATE FOR R8) ***** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 07.03.2015 PASSED IN MVC NO.561/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MACT, AT SAKALESHPUR, AWARDING COMPENSATION OF RS.5,75,088/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
IN MISCELLANEOUS FIRST APPEAL NO.303 OF 2016: BETWEEN:
1. MANJULA, D/O LATE CHANNAIAH, NOW AGED ABOUT 25 YEARS, KALGANE VILLAGE, DONIGAL POST, SAKALESHPURA TALUK, HASSAN DISTRICT – 573201.
2. HARISH, S/O LATE CHANNAIAH, NOW AGED ABOUT 23 YEARS, KALGANE VILLAGE, DONIGAL POST, SAKALESHPURA TALUK, HASSAN DISTRICT – 573201.
3. PRAKASH, S/O LATE CHANNAIAH, NOW AGED ABOUT 31 YEARS, KALGANE VILLAGE, DONIGAL POST, SAKALESHPURA TALUK, HASSAN DISTRICT – 573201.
4. MALLIKA, W/O LATE PARMESH, D/O LATE CHANNAIAH, NOW AGED ABOUT 27 YEARS, HADLALLI VILLAGE, VALALAHALLI POST, SAKALESHPURA TALUK, HASSAN DISTRICT – 573201.
5. MEENAKSHI, W/O LATE LOKESH, D/O LATE CHANNAIAH, AGED ABOUT 29 YEARS, KALGANE VILLAGE, DONIGAL POST, SAKALESHPURA TALUK, HASSAN DISTRICT – 573201.
6. LALITHA, W/O VEERUPAKSHA D/O LATE CHANNAIAH, NOW AGED ABOUT 35 YEARS, VADOOR VILLAGE, KUNIGANAHALLI POST, SAKALESHPURA TALUK, HASSAN DISTRICT – 573201.
7. SAVITHA, W/O THEJES, D/O LATE CHANNAIAH, NOW AGED ABOUT 33 YEARS, NILUVAGILU VILLAGE, BESUR POST, SOMWARPET TALUK, KODAGU DISTRICT.
8. CHENNAMMA, W/O LATE CHANNAIAH, AGED ABOUT 68 YEARS, KALGANE VILLAGE, DONIGAL POST, SAKALESHPUR TALUK, HASSAN DISTRICT, SINCE DEAD-DELETED AS THE APPELLANTS ARE LRS OF DECEASED.
(BY SRI PAVANA CHANDRA SHETTY H, ADV.) AND:
...APPELLANTS 1. PRAMOD N, S/O HEMANTH KUMAR, NO.88/1, GOWRI SHANKAR NILAYA, AMRUTHA HALLI MAON ROAD, SAKARA NAGAR, BENGALURU-560001.
2. MAIN OFFICE, ICICI LOMBARD GNERAL INSURANCE CO.LTD., ICICI LOMBARD HOUSE, VEER SAVARKAR RAOD, NEAR SIDDHI VINAYAKA TEMPLE, PRABHADEVI, MUMBAI-400025.
RPERESENTED BY GENERAL INSURANCE CO.LTD., ICICI LOMBARD, MANGALORE BRANCH, MANGALORE – 575001. …RESPONDENTS (BY SRI B PRADEEP, ADVOCATE FOR R2 (VAKALATH NOT FILED), NOTICE TO R1 IS DISPENSED WITH) ***** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 07.03.2015 PASSED IN MVC NO.561/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, MACT, SAKALESHPUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT Heard the learned counsel for the appellant-insurer and the learned counsel for the respondents-claimants.
2. The claimants aggrieved by the quantum of compensation awarded by the tribunal have filed the connected appeal M.F.A. 303/2016.
3. The Appellant-Insurer has approached this court being aggrieved by the award of compensation and it is canvassed that in the light of the judgment of the full Bench of this court the JCB is a special category vehicle and hence a special endorsement is required to be obtained by the driver enabling him to drive the particular vehicle. That the driving license does not disclose any such special endorsement enabling the driver to drive the particular type of vehicle involved in the accident. This ground should not detain this court much longer as the appellant has not pleaded and adopted the said contention as a defense before the tribunal. The said defense having not been canvassed before the tribunal, it is not open for the appellant-insurer to canvass the same at this late stage before the appellate court. Hence, the said contention requires to be rejected. No foundation has been laid by the appellant-insurer to demonstrate that the vehicle involved is a special type of vehicle and that the same requires a special skills.
4. Learned counsel for the appellant has placed reliance on the order of the Co-ordinate Bench rendered in M.F.A. No.23085/2012 & connected matter would invite the attention of the court to paragraph 10 & 11 to contend that the onus was on the court to ascertain the nature of the vehicle and that the tribunal having failed to ascertain the nature of the vehicle, the judgment and award are vitiated by infirmities and warrants interference as stated supra. The appellant-insurer who was the second respondent before the tribunal having failed to raise any contention in this regard and no issues having been framed, it is preposterous to even contend that the onus is on the court to decide the issue which was neither agitated nor argued before it. Hence, the said reliance on the said ruling is of no assistance to the appellant. It is secondly contended that there are no eye witnesses to the occurrence of the accident and hence, it is contended that the vehicle is a planted vehicle and vehicle is not at all involved in the accident.
5. In this regard the tribunal has exhaustively discussed the material on record and the statements and has concluded that the offending vehicle was hired by the deceased for carrying out works in his estate measuring 10 acres. It has also appreciated the fact of discovery of body near the vehicle in a heap of mud and further taking into consideration the observations in the post-mortem report which details the cause of death as being on account of a head injury caused by an external force, has proceeded to hold that the claimants have probabalised their version, regarding the manner in which the death has occurred. The tribunal has also noted that the appellant-insurer has not been able to elicit anything, which would otherwise, render suspicious the circumstances leading to the death and the tribunal has exhaustively considered and rendered a finding supported by cogent reasoning and hence the said contention is required to be rejected and is accordingly rejected.
6. Per contra, the learned counsel for the appellant in connected appeal who are the claimants contends that the tribunal has failed in appreciating the material on record and erred in adopting the notional income at Rs.5,000/- per month in respect of an accident and claim that arose in 2013. He submit that the claimants have placed on record the RTCs which clearly endorses the fact that the deceased was a coffee planter and growing coffee in his estate. That even as per the lok-adalath the notional income is adopted anywhere between Rs.7,000/- to Rs.8,000/- and generally this court and the tribunals have as thumb rule, adopted the said income as the notional income while disposing off the petition and the appeals. The learned counsel for the claimant-appellant is right in contending that it is but an unwritten rule where the courts generally adopt the notional income adopted during the lok-adalaths as the notional income in the absence of any proof to demonstrate the actual income of the deceased or injured. In the instant case as rightly contended by the learned counsel for the appellant the tribunal ought to have taken into consideration the RTCs produced as Exs.P6 to P13 which clearly endorses the fact that the deceased was a planter and growing coffee in the lands held by him. Hence, it can be safely deduced that the deceased would have earned at least an average of Rs.8,000/- per month from the lands held by him. In that view of the matter, the appellant- claimants would be entitled to an additional award of Rs.2,63,912/- (8,000x12x11=10,56,000/- less 1/3rd 3,52,000/- = 7,04,000-4,40,088= 2,63,912/-) with interest at the rate awarded by the tribunal from the date of petition till the date of satisfaction of the award.
7. Learned counsel for the appellant would contend that the deduction should be at 50% as all the claimants of the deceased are major daughters and sons of the deceased. It is seen that the claimants 1 and 2 are aged mere 20 years and 22 years. Both are unmarried and no material has been placed on record by the appellant-insurer to demonstrate that they were gainfully employed and were not dependent on the deceased. The fact remains that the claimants 1 and 2 have contended that they were dependent on the deceased and have also denied the suggestion that they were not depending on the deceased. In that view of the matter, this court is of the opinion that the deduction adopted by the tribunal at 1/3rd is appropriate. Accordingly, the appeal filed by the insurer in M.F.A. No.3984/2015 stands dismissed. The appeal preferred by the claimants-appellants in M.F.A. No.303/2016 is partly allowed by enhancing the award by a sum of Rs.2,63,912/- under the head of loss of dependency.
8. Amount in deposit be transmitted to the tribunal and disbursal of the amount shall be as per the terms of the tribunal.
The Registry shall expedite the return of the lower court records.
Sd/- JUDGE Chs* CT-VN