IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 5607 OF 2012 (MV) CONNECTED WITH MFA NO. 7227 OF 2012 (MV) IN MFA NO. 5607 OF 2012:
BETWEEN 1. Smt. Jayamma Aged about 51 years W/o Nagarajashetty 2. Nagarajashetty Aged about 58 years S/o Ramashetty Both are residing at No.344 Lokanayakanagar, Hebbal Main Road, Mysore – 570 016. ... Appellants (By Sri. P. Nataraju – Advocate for M/s. P. Nagaraju Associates - for Appellants) AND 1. H. P. Swamy Aged 28 years S/o Puttamariyaiah New Extension Shanthinagar Pandavapura Town Mandya District – 571 434.
2. K. Boregowda Aged about 53 years S/o Kempegowda M. Shettihalli Village Srirangapatna Taluk Mandya District-571438.
3. Reliance General Insurance Company Limited Branch Office, I Floor Opp: KSRTC Bus Stand Mysore.
Rep. by its Manager PIN-570 001.
... Respondents (By Sri. H. S. Lingaraj – Advocate for R-3; Notice to R-1 is dispensed with; R-2 - served) This MFA is filed under Section 173(1) Of MV Act against the judgment and award dated 24.02.2012 passed in MVC No. 509/2011 on the file of Presiding Officer, Fast Track Court-III and MACT, Mysore, partly allowing the claim petition for compensation and seeking enhancement of compensation.
IN MFA NO. 7227 OF 2012:
BETWEEN Reliance General Insurance Company Limited Branch Office, I Floor Opp: KSRTC Bus Stand Mysore.
Herein represented by the Regional Office: No. 18 East Wing, 5th Floor Centenary Building M.G. Road, Bangalore – 560 001 By its Zonal Legal Manager. ... Appellant (By Sri. H. S. Lingaraj - for Appellant) AND 1. Jayamma Now aged about 51 years W/o Nagaraja setty 2. Nagaraja setty Now aged about 58 years S/o Rama setty Both are residing at No.344 Lokanayakanagar Mysore – 570 001.
3 H. P. Swamy Now aged 28 years S/o Puttamariyaiah R/a New Extension Shanthinagar Pandavapura Town-571434 Mandya District.
4. K. Boregowda Now aged about 53 years S/o Kempegowda M. Shettihalli Village Srirangapatna Taluk Mandya District-571438.
... Respondents (By Sri. P. Nataraju – Advocate for M/s. P. Nataraju Associates – Advocate for R-1 and R-2;
Service of notice to R-3 held sufficient; R-4 - served) This MFA is filed under Section 173(1) Of MV Act against the judgment and award dated 24.02.2012 passed in MVC No. 509/2011 on the file of Presiding Officer, Fast Track Court-III and MACT, Mysore, awarding a compensation of Rs.3,03,000/- with interest @ 6% p.a. from the date of petition till the date of deposit.
These MFAs coming on for hearing, this day, the court delivered the following:
JUDGMENT Since both the appeals arise out of the same judgment and award rendered by the Tribunal, they are heard together and are finally disposed of by this order.
2. The appeal in MFA.No.5607/2012 is filed by the claimants – appellants who are the legal representatives of the deceased Srinivasa seeking enhancement of compensation awarded by the Tribunal and the appeal in MFA.No.7227/2012 is filed by the appellant Insurer – M/s. Reliance General Insurance Company Limited challenging the quantum of compensation awarded by the Tribunal as well as the liability. By its judgment dated 24.02.2012 in MVC No.509/2011, the Tribunal has awarded compensation in a sum of Rs.3,03,000/- to the claimants – legal representatives of deceased. Being not satisfied with the said compensation, the claimants have filed MFA No.5607/2012 seeking enhancement of compensation. The Insurer has filed MFA No.7227/2012 seeking to set aside the liability saddled on the Insurance Company.
3. Heard the learned counsel for the claimants – appellants in MFA No.5607/2012 as well as the learned counsel for the appellant in MFA No.7227/2012 – M/s. Reliance General Insurance Company Ltd. and perused the impugned judgment as well as the material on record.
4. The factual matrix is that on 5.3.2011 at about 5.00 p.m. when the deceased Srinivasa was traveling from Pandavapura Railway Station to Srirangapatna in a Maxi cab bearing Reg.No.KA-09-D-5454 along with other co-passengers, it is said that the said maxi cab was driven by its driver at a high speed and in a rash and negligent manner and near Darasaguppe village bridge, the driver in order to overtake another vehicle, had driven the maxicab into the right side canal as a result of which it turned turtle. Thereby, the deceased Srinivasa had sustained grievous injuries and had succumbed to the injuries on the way to the hospital.
Prior to the accident, he was aged 34 years and was hale and healthy and was a mason by profession earning a monthly income of Rs.6,000/-. The appellants in MFA No.5607/2012 – claimants who were the parents of the deceased had hence filed a claim petition before the Tribunal seeking compensation in view of his untimely death.
5. On receipt of notice, the driver of the offending maxicab – Respondent No.1 and the Insurer appeared through counsel and contested the petitioner. Whereas the owner of the offending maxicab – Respondent No.2 remained absent and hence was placed exparte. However, only Respondent No.3 – Insurance Company filed its objection denying all the petition averments and contending that the driver of the maxicab did not possess a valid and effective Driving Licence to drive a passenger carrying transport vehicle as on the date of the accident. They had further denied that the said vehicle had a valid fitness certificate and permit to ply on the road on the date of the accident. Hence, it contended that the owner of the vehicle had violated the provisions of the MV Act and committed breach of the terms and conditions of the policy and hence sought for dismissal of the claim petition.
The Tribunal, after evaluating the oral and documentary evidence held that the accident had occurred due to the negligence of the driver of the offending maxicab and proceeded to award compensation of Rs.3,03,000/- with interest at 6% per annum from the date of petition till the date of realisation and directed Respondent No. 3 – Insurer to pay the compensation. The appellants – legal representatives of deceased have filed MFA No.5607/2012 seeking for enhancement of compensation and the Insurance Company has filed MFA No.7227/2012 seeking to totally exonerate the Insurer of its liability.
6. Learned counsel for the claimants / appellants in MFA No.5607/2012 contends that they have been put to irreparable loss due to the death of their son. Though the deceased was a mason and earning not less than Rs.6,000/- per month, the learned counsel contends that the Tribunal erred in taking his income at a meager sum of Rs.3,000/- to award compensation towards ‘Loss of dependency’. He contends that the accident being of the year 2011, even as per the income prevailing during the said period and as per the Lok Adalath chart, the Tribunal ought to have taken his notional income at Rs.6,000/- per month. It is the further contention of the learned counsel that though the deceased was aged 34 years at the time of the accident, the Tribunal has not at all added any amount towards his ‘future prospects’. But however, the learned counsel contends that in view of the Apex Court ruling in National Insurance Company Limited –vs- Pranay Sethi (AIR 2017 Supreme Court 5157), the Tribunal ought to have added 40% of his income towards ‘future prospects’.
The learned counsel further contends that very meager amounts have been granted by the Tribunal towards conventional heads such as ‘Loss of estate’ and ‘Funeral expenses’ and hence contends that the compensation towards the said heads be enhanced suitably.
The learned counsel further contends that the Tribunal taking into consideration that fact that the deceased had left behind his mother and father as his dependants, ought to have awarded ‘filial compensation’ in respect of his parents, which aspect has not been taken into consideration by the Tribunal. On all these grounds, the learned counsel for the claimants – appellants in MFA 5607/2012 prays for allowing their appeal and enhancing the compensation awarded by the Tribunal suitably.
7. Refuting the contentions of the counsel for the claimants, the learned counsel for the Insurance Company – appellant in MFA No.7227/2012 vehemently contends that the Tribunal has failed to appreciate the fact that the driver did not possess a valid driving licence to drive a maxi cab which is a transport vehicle. He had the licence to drive LMV (NT) and not a licence with transport endorsement. The learned counsel further contends that the offending vehicle was carrying passengers in excess of the permitted seating capacity. Hence, the learned counsel contends that the Tribunal has erred in saddling the liability on the Insurer to pay the compensation and prays for dismissal of the present appeal as being devoid of any merits.
The learned counsel for the claimants – appellants in MFA No.5607/2012 contends that as far as the liability aspect is concerned, the contention of the learned counsel for the appellant in MFA 7227/2012 – Insurance Company that the driver of the offending vehicle did not possess a licence with a transport endorsement is concerned, is no longer res integra in view of the fact that the Apex Court in the case of MUKUND DEWANGAN VS. ORIENTAL INSURANCE CO.LTD., (2017) 14 SCC 663 has answered the question against the insurer and in favour of the claimant holding that the insurer cannot avoid liability only on the ground of absence of Transport Endorsement. Hence, the learned counsel contends that the Tribunal was justified in fastening in liability on the Insurer to pay the compensation.
8. In the background of the contentions taken by learned counsel for the claimants - appellants in MFA 5607/2012 and the learned counsel for the appellant – insurer in MFA No.7227/2012, as stated supra, it is relevant to state that there is no dispute with regard to the death of deceased – Srinivasa who met with an accident on 5.3.2011. In view of the decision of the Apex Court in Mukund Dewangan (supra), I find that the Tribunal was justified in fastening the liability on the Insurance Company to pay the compensation.
As regards enhancement aspect is concerned, as contented by the learned counsel for the appellants in MFA No.5607/2012 – claimants, in view of the accident being of the year 2011, even without there being any evidence for proof of income, I find that the Tribunal has erred in taking his income at a very meager sum of Rs.3,000/- to award compensation towards ‘Loss of dependency’. Hence, I am of the opinion that the income requires enhancement. As per the norms prescribed in the Lok Adalath Chart, the accident being of the year 2011, I hereby take the notional income of the deceased at Rs.6,000/- in order to compute the compensation towards ‘loss of dependency. Further, as per the decision of the Apex Court in Pranay Sethi (supra), since the deceased was aged 34 years at the time of the accident, the Tribunal ought to have added 40% of his income towards future prospects. Hence, adding 40% to Rs.6,000/-, the income comes to Rs.8,400/-. Further, the deceased being a bachelor, 50% deduction requires to be made towards his personal expenses. Hence, after deducting 50%, the income comes to Rs.4,200/-. Hence, with Rs.4,200/- as the income and with multiplier ‘16’ as adopted by the Tribunal, the compensation to be awarded towards ‘Loss of dependency’ comes to Rs.8,06,400/- (4200 x 12 x 16) as against Rs.2,88,000/- awarded by the Tribunal.
9. Further, I find that a very meager sum of Rs.10,000/- has been awarded by the Tribunal towards ‘Loss of estate’ and Rs.5,000/- has been awarded towards ‘Funeral expenses’. Compensation under conventional heads requires to be awarded reasonably. Hence, I hereby enhance the compensation towards ‘Loss of estate’ by another Rs.10,000/- and towards ‘Funeral expenses’ by another Rs.5,000/-.
10. Further, as contended by the learned counsel for the appellants - claimants, having regard to the ratio of the reliance in the case of MAGMA GENERAL INSURANCE CO. LTD. vs. NANU RAM (2018 SCC ONLINE SC 1546), I find it is just and proper to grant ‘filial consortium’ to Appellant Nos.1 and 2 in MFA No.5607/2012 who are the parents of the deceased, in view of the death of their son at an unexpected age.
11. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Particulars
Loss of dependency Loss of estate Funeral expenses Filial Compensation awarded by MACT Compensation enhanced by this Court Total consortium to claimants / Appellants 1 & 2 (40,000 each) TOTAL 3,03,000 6,13,400 9,16,400 Thus, in all, the claimants / appellants in MFA 5607/2012 are entitled to total compensation of Rs.9,16,400/- as against Rs.3,03,000/- awarded by the tribunal. The enhanced compensation would come to Rs.6,13,400/-. Accordingly, I proceed to pass the following:
ORDER MFA 5607/2012 is allowed in part. The impugned judgment and award dated 24.02.2012 passed by the Tribunal in MVC No.509/2011 is hereby modified. The claimants/appellants in MFA 5607/2012 are entitled for total compensation of Rs.9,16,400/- with interest @ 6% p.a. from the date of petition till realisation. Appellant in MFA No.7227/2012 - Insurer shall deposit the entire compensation with interest before the tribunal within six weeks from the date of receipt of a copy of this judgment and on such deposit, the same shall be disbursed to the claimants in terms of the award, on proper identification. Any amount already in deposit shall be adjusted. Further, any amount in deposit before this court shall be remitted to the concerned Tribunal. However, the impugned judgment and award, in so far as it relates to the rate of interest, deposit and apportionment is concerned shall remain unaltered.
MFA No.7227/2012 filed by the Insurance Company stands rejected.
Office to draw the decree accordingly.
Sd/- JUDGE KS