IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Miscellaneous First Appeal No. 12075 of 2011 C/W Miscellaneous First Appeal No. 8395 of 2011 in mfa no. 12075 of 2011 Between:
ICICI LOMBARD MOTOR INSURANCE COMPNAY LIMITED ZENITH HOUSE, KESHAVA RAO KATTADE MARG MEHALAXMI, MUMBAI-400 034.
REP BY ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED, NO.89, 2ND FLOOR SVR COMPLEX, MADIWALA, HOSUR MAIN ROAD BANGALORE – 68.
... APPELLANT (BY SRI. D. MANJUNATH., ADVOCATE) And:
1. R SUBHASH SON OF LATE RAMASWAMY AGED ABOUT 53 YEARS.
2. SMT. N. SHIVAMMA WIFE OF R. SUBHASH AGED ABOUT 47 YEARS.
BOTH ARE R/AT NO.42/2 RAMASWAMY GARDEN NO. 42/2, RAMASWAMY GARDEN KONANAKUNTE CROSS CHUNCHANAGHATTA MAIN ROAD, KANAKAPURA ROAD, BANGALORE-62.
3. THE CHAIRMAN JAIN VIDYANIKETHAN JAKKASANDRA POST KANKAPURA TALUK BANGALORE RURAL DISTRICT BANGALORE – 560 062.
... RESPONDENTS (BY SRI.N. GOPALA KRISHNA., ADVOCATE FOR R1 & R2) THIS MISCELLENEOUS FIRST APPEAL IS FILED UNDER SEC. 173(1) MV ACT AGAINST THE JUDGMENT AND AWARD DATED 25.05.2011 PASSED IN MVC NO. 9271 OF 2008 ON THE FILE OF THE 6TH ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MACT, BENGALURU CITY, AWARDING COMPENSATION OF RS. 2,82,000/- WITH INTEREST AT 6% P.A. FORM THE DATE OF PETITION TILL REALIZATION.
in mfa no. 8395 of 2011 Between:
1. SRI SUBHASH. R SON OF LATE RAMASWAMY AGED ABOUT 53 YEARS.
2. SMT. N. SHIVAMMA WIFE OF SUBASH. R AGED ABOUT 45 YEARS.
BOTH ARE R/AT NO. 42/2, RAMASWAMY GARDEN KONANAKUNTE CROSS, CHUNCHANAGHATTA MAIN ROAD, KANAKAPURA ROAD, BANGALORE – 62.
... APPELLANTS (BY SRI. N GOPALKRISHNA., ADVOCATE) AND:
1. THE CHAIRMAN JAIN VIDYANIKETHAN JAKKASANDRA POST, KANAKAPURA TALUK, BANGALORE RURAL DISTRICT BANGALORE - 560 062.
2. ICICI LOMBARD MOTOR INSURANCE CO LTD., ZENITH HOUSE, KESHAVA RAO KATTADE MARG, MAHALAKSHMI MUMBAI 400 034, REP BY ITS ZONAL OFFICE, ICICI LOMBARD INSURANCE CO LTD., II FLOOR, PRESTIGE CORNICHE, RICHMOND ROAD, BANGALORE 25 REP BY ITS MANAGER.
... RESPONDENTS (SRI. D. MANJUNATH., ADVOCATE FOR R-2; VIDE ORDER DATED 14.02.2012 NOTICE DISPENSED WITH TO R-1) THIS MISCELLENEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 25.05.2011 PASSED IN MVC NO.9271OF 2008 ON THE FILE OF THE VI ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MISCELLENEOUS FIRST APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment Heard the learned counsel for the parties, and the appeal is taken up for final disposal with the consent of the learned counsel.
2. The appeal in MFA No.8395/2011 is filed by the claimants for enhancement in compensation, and the appeal in MFA No.12075/2011 is filed by the Insurer of the offending vehicle viz., a school bus bearing registration No.KA-05-A-2833 (for short, ‘offending vehicle’). These appeals are filed calling in question the judgment and award dated 25.03.2011 in MVC No.9271/2008 on the file of the VI Additional Judge, Court of Small Causes and Motor Accident Claims Tribunal, Bangalore (for short, “the tribunal”).
3. The undisputed facts are that the deceased, Miss Gayathri, aged about 19 years, was travelling on her two wheeler on 21.10.2008, when the offending vehicle dashed against her from behind. The deceased sustained head injuries and died at the spot. The offending vehicle is insured with the insurer-appellant and the insurer – appellant is obliged to pay compensation to the claimants, who are parents of the deceased. The claimants filed the claim petition in MVC No.9271/2008 seeking compensation. The Tribunal has awarded the aforesaid sum under following heads:
4. The Tribunal has concluded that the accident was because of the rash and negligent driving of the driver of the offending vehicle and as such, the insurer of the offending vehicle would be liable to pay compensation. Insofar as loss of dependency, the Tribunal assessed the income of the deceased notionally at Rs.3,000/- per month because the deceased was pursuing graduation in computer application. The Tribunal after deducting 50% of such amount towards personal expenses of the deceased, capitalized the multiplicand taking the multiplier of ‘14’ based on the age of the younger parents. Insofar as conventional heads, a total sum of Rs.30,000/- is awarded.
5. The learned counsel for the Insurer arguing in support of the appeal by the Insurer in MFA No.12075/2011 contended that the offending vehicle, a school bus, was being plied by the insured without a valid permit, and in the absence of a valid permit, the Insurer would not be liable to pay compensation. Further, the Tribunal could not have, in the facts and circumstances of the case, concluded that the accident was solely because of the rash and negligent driving of the driver of the offending vehicle, and some portion of the negligence had to be apportioned to the deceased. The learned counsel elaborated his submission stating that undisputedly as borne out of the sketch of the place of the occurrence, the accident occurred in the middle of the road, and the accident would not have occurred in the middle of the road if the deceased herself was not negligent. Lastly, the Tribunal could not have taken the income of the deceased at Rs.3,000/- per month because the deceased was only a student pursuing graduation in computer application.
6. The learned counsel for the claimants rebutted the submissions by the learned counsel for the Insurer while arguing in support of the appeal in MFA No.8395/2011 for enhancement. The learned counsel for the claimants, firstly contended that the Insurer cannot dispute its liability to pay compensation to the claimants on the ground that the offending vehicle did not have valid permit in view of the decision of the Hon’ble Supreme Court in Amrit Paul Singh vs. Tata AIG General Insurance Co. Ltd. and others1. The learned counsel submitted that even if the insurer – appellant were to establish that the offending vehicle was being plied without a valid permit, the insurer – appellant will have to pay compensation and recover the same under the “pay and recovery policy”. The Tribunal has already permitted the Insurer to recover from the insured the amount paid as compensation and as such, no interference would be called for on this ground.
7. Secondly, the learned counsel emphasized that it is undisputed that the deceased breathed her last in the accident brought about by the driver of the offending vehicle by hitting the deceased from behind while she was travelling on her two wheeler. The fact that the accident was caused by the driver of the offending vehicle hitting the 1 (2018) 7 SCC page 558 two wheeler from behind itself suggests that the driver of the offending vehicle was solely negligent.
8. Thirdly, the learned counsel for the claimants relies upon the decision of the Hon’ble Supreme Court in Nagar Mal and Others vs. Oriental Insurance Co. Ltd. and Others2 to buttress his argument that the Tribunal has erred in taking the notional income at Rs.3,000/- per month and the appropriate income would be at the rate of Rs.6,000/- per month. The learned counsel also relies upon this decision to bolster his argument for grant of future prospectus at the rate of 40% emphasizing that the deceased, who was not in actual employment, was pursuing graduation in computer application and as such, had greater employment possibility.
9. Fourthly, the Tribunal has capitalized the multiplicand applying the multiplier of ‘14’ based on the 2 2018 ACJ 971 age of the younger parents of the deceased. But, it is now settled that the multiplicand will have to be capitalized by the multiplier based on the age of the deceased. It is undisputed that the deceased was aged 19 years as of the date of the accident. Therefore, appropriate multiplier will be ‘18’.
10. In rejoinder, the learned counsel for the Insurer submits that the claimants would not be entitled for any accretion towards future prospectus because the future prospectus can be awarded only when the deceased is in actual employment whether in permanent employment with an established organization or otherwise, but not in the circumstances of the present case where, undisputedly, the deceased was only a student. The learned counsel for the Insurer submits that this question has not been considered by the Hon’ble Supreme Court in the decision of Nagar Mal’s case (supra).
11. In the light of the rival submissions, the following questions arise for consideration in this appeal are:
a) Whether the tribunal has erred in calling upon the insurer-appellant to pay compensation and to recover the same from the insured, b) Whether the tribunal’s finding as regards the driver of the offending vehicle being solely responsible for the accident, is perverse or contrary to the evidence.
c) Whether the claimants are entitled for enhancement in the compensation with the notional income of the deceased being taken at more than Rs.3,000/- per month, and for addition towards future prospectus with capitalization of the multiplicand with the multiplier of ‘18’.
12. The Hon’ble Supreme Court in the decision of Amrit Paul Singh’s case, after a detailed discussion on whether an Insurer can avoid its liability if it is able to establish breach of a policy condition by the insured in plying the vehicle without a valid permit, has directed the insurer to pay the compensation to the third party, claimants/dependents with liberty to the Insurer to recover the same from the insured. In the present case, the claimants do not challenge the finding that the offending vehicle did not have valid permit, but contend that the parents of the deceased who was brought down by the driver of the offending vehicle when he hit the two wheeler from behind, would be a third party. The right of the parents of the deceased viz., the claimants to receive just and reasonable compensation cannot be frustrated because there was breach of the policy conditions by the insured. The proposition extracted by the Hon’ble Supreme Court in Amrit Paul Singh’s case would apply in all force.
Therefore, the first question is answered accordingly, and it is concluded that no interference is called for with the Tribunal’s direction to the Insurer to pay compensation to the claimants and to recover the same from the insured.
13. The tribunal on appreciation of the evidence, including the police records viz., the sketch of the place of the accident, has concluded that the accident was because of rash and negligent driving of the driver of the offending vehicle. The Tribunal has also considered the fact that though the Insurer contended that the accident was because of the rash and negligent driving of the driver of the offending vehicle, did not take any measure to examine the driver. The circumstances considered by the Tribunal are not contested by the Insurer. But, it is canvassed that the Tribunal, because the place of the accident is in the middle of the road, should have apportioned the negligence on the part of the deceased as well. However, this Court is not impressed with this argument essentially for two reasons. The deceased undisputedly, was brought down when the offending vehicle hit the deceased, who was traveling on two wheeler, from behind. The accident is between a heavy vehicle like the offending vehicle and a light motor vehicle driven by the deceased. The assertion that the accident is in the middle of the road is also not established on the scale of prudence of law inasmuch as no effort is taken to examine the author of the sketch or to place any other material on record that would substantiate that the accident was in the middle of the road. Therefore, no interference is called for with the tribunal’s finding even as regards the reason for the accident.
14. It is undisputed that the deceased was aged 19 years and pursuing graduation in computer application. The argument is that the deceased was not in actual employment and because she was not in actual employment, notional income will have to be taken without addition towards future prospectus. The Insurer contends that Rs.3,000/- is on the higher side. It is undisputed that even according to the schedule evolved for settlement in Lok-Adalath, in cases where the evidence of actual income is not available, notional income is taken at Rs.4,500/- in cases arising out of the accidents in the year 2008. This schedule evolved for settlement in Lok Adalath is generally applied unless it is justified in the facts and circumstances of the case. In this case, there is no such circumstances and the undisputed evidence is that the deceased was pursuing graduation in computer application. It is not denied that because she was pursuing graduation in Computer Application, on completion of her graduation, she would have been employed very gainfully.
15. In the case of Nagar Mal’s case (supra), the Hon’ble Supreme Court has taken the income at Rs.6,000/- per month in the case of a person who was pursuing Chartered Accountant. In the present case, the deceased was pursuing, as aforesaid, graduation in Computer Application. This Court is of the considered view that it would be just and proper to take notional income at Rs.5,000/- per month. It is now settled that accretion towards future prospectus cannot be denied on the ground that the deceased was not in actual employment when it is established that the deceased who was pursuing education, on completion of education could have secured employment. If these twin are satisfied, the accretion towards future prospectus has to be made. In the Nagar Mal’s case, the accretion of 40% is made towards future prospectus. In the considered view of this Court, the future prospectus at the rate of 40% of the income cannot be denied in the circumstances of the present case.
16. The learned counsel for the Insurer is unable to seriously contest that the multiplier should be based on the age of the deceased even when the deceased was a bachelor or a spinster. The deceased was admittedly aged about 19 years as of the date of the accident. Therefore, proper multiplier would be ‘18’. If the compensation is recomputed with these changes, the claimants would be entitled for total sum of Rs.7,86,000/ including a sum of Rs.30,000/- awarded towards conventional heads. As such, the claimants are entitled for enhancement in the compensation as follows:-
Head Compensation in Rupees Future Prospectus Rs.2,000/- (40% x Rs.5,000) Deduction towards personal expenses Rs.3,500/- (Half of (Rs.5,000 + Rs.2,000) Total Income Rs.3,500 (Rs.5,000 + Rs.2,000 - Rs.3,500) Loss of Dependency Rs.7,56,000/- (Rs.3,5000 x12x18) Funeral Expenses Rs.10,000/-
Loss of Estate Rs.10,000/-
Loss of love and affection Rs.10,000/-
Total Compensation Rs.7,86,000/-
Tribunal Awarded Rs.2,82,000/-
Enhanced Rs.5,04,000/-
For the foregoing reason, the following order:
a) The appeal by the insurer-appellant in MFA No.2075/2011 is dismissed and the appeal in MFA No.8395/2011 by the claimants is allowed in part modifying the trial court’s judgment in MVC No.9271/2008 on the file of the VI Additional Judge, Court of Small Causes and MACT, Bengaluru, granting to the claimants an enhanced compensation in a sum of Rs.5,04,000/-. along with the interest at the rate of 6% per annum.
b) The amount in deposit in the appeal in MFA No.12075/2011 be transmitted to the Tribunal for disbursal and the enhanced compensation shall be deposited by the insurer – appellant within six weeks from the date of receipt of certified copy of this judgment.
The office to draw the decree accordingly.
SA Ct:sr Sd/- Judge