IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 427 OF 2016 (MV) CONNECTED WITH MFA NO. 587 OF 2016 (MV) IN MFA NO.427/2016: BETWEEN 1. KAMALAMMA W/O. LATE PAPANNA AGED ABOUT 41 YEARS 2. REKHA D/O. LATE PAPANNA AGED ABOUT 16 YEARS 3. KANTHA S/O. LATE PAPANNA AGED ABOUT 13 YEARS APPELLANTS NO.2 AND 3 ARE MINORS REPRESENTED BY THEIR NATURAL GUARDIAN MOTHER APPELLANT NO. 1.
ALL ARE R/O. JCR EXTENSION JAGALUR TOWN-577 528.
... APPELLANTS (BY SRI. SHASHIDHARA. R - ADVOCATE) AND 1. MAHABBOD S/O. MAHABOOB SAB MAJOR DRIVER OF BUS BEARING NO.KA-16/A-3825 R/O. BILICHODU VILLAGE JAGALUR TALUK NOW R/O. ANAJI VILLAGE DAVANAGERE DISTRICT-577 001.
2. G.P. VIJAYAKUMAR S/O. G.P. PARAMESHWARAPPA, MAJOR, OWNER OF BUS BEARING NO.KA-16/A-3825 R/O. PALLAGATTE VILLAGE JAGALUR TALUK-577 528.
3. THE LEGAL MANAGER ICICI LAMBORD GENERAL INSURANCE COMPANY LIMITED ABOVE HERO HONDA SHOW ROOM 2ND FLOOR, NEAR BANNIGIDA GOKUL ROAD, HUBLI-850 020.
4. H.C. MAHESH S/O. LATE CHANNAPPA AGED ABOUT 47 YEARS OWNER OF BUS BEARING NO.KA-06/A-5205 R/O. PALLAGATTE VILLAGE JAGALUR TALUK-577 528.
5. THE LEGAL MANAGER BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD., KALBURGI MANSON LAMINGTON ROAD HUBLI-850 020.
... RESPONDENTS (BY SRI. M. R. HIREMATHAD – ADVOCATE FOR R4; SRI A.N. KRISHNA SWAMY – ADVCORE GOR R-5; SRI B. PRADEEP FOR R-3;
NOTICE TO R-1 DISPENSED WITH VIDE COURT ORDER DATED 12.03.2018; R-2 SERVED) MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:18/08/2015 PASSED IN MVC NO.99/2012 ON THE FILE OF COURT OF I ADDITIONAL SENIOR CIVIL JUDGE & MEMBER, MACT-V, DAVANAGERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO. 587/2016 BETWEEN H. C. MAHESH S/O LATE CHANNAPPA AGED ABOUT 44 YEARS, OWNER OF BUS NO. KA-06/A-5205 R/O PALLAGATTE VILLAGE JAGALUR TALUK-577513.
... APPELLANT (BY SRI. M. R. HIREMATHAD - ADVOCATE) AND 1. SMT KAMALAMMA W/O LATE PAPANNA, AGEDA BOUT 42 YEARS OCC-COOLIE, 2. KUMARI REKHA D/O LATE PAPANNA, AGED ABOUT 17 YEARS, 3. KANTHA S/O LATE PAPANNA, AGED ABOUT 14 YEARS, ALL ARE RESIDENTS OF JCR EXTENSION JAGALURU TOWN DAVANAGERE DISTRICT-577528.
(RESPONDENTS NO.2 & 3 ARE MINORS REPRESENTED BY THEIR NATURAL GUARDIAN I.E., APPELLANT NO.1) 4. MAHABOOB S/O MAHABOOB SAB, DRIVER OF BUS OF KA-16/A-3825 R/O BILICHODU VILLAGE JAGALUR TALUK NOW R/O ANAJI VILLAGE DAVANGERE DISTRICT-583125.
5. G. P. VIJAYKUMAR S/O G.S.PARAMESHWARAPPA OWNER OF BUS NO.KA-16/A-3825 R/O PALLAGATTE VILLAGE JAGALUR TALUK-577513.
6. THE LEGAL MANAGER ICICI LOMBARD GENERAL INSURANCE CO.LTD., ABOVE HERO HONDA SHOW ROOM 2ND FLOOR, NEAR BANNIGIDA GOKUL ROAD, HUBLI-580028.
7. THE LEGAL MANAGER BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD., KALABURGI MANSON LAMINGTON ROAD HUBLI-580028.
... RESPONDENTS (BY SRI. R. SHASHIDHARA ADVOCATE FOR R1 TO R3; R-4 SERVED; SRI B. PRADEEP ADVOCATE FOR R-6; SRI. A.N. KRISHNA SWAMY –ADVOCATE FOR R-7;
R-1 AND R-3 MINORS REP. BY R-1) MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:18.08.2015 PASSED IN MVC NO. 99/2012 ON THE FILE OF THE 1ST ADDITIONAL SENIOR CIVIL JUDGE & MEMBER, MACT-5, DAVANGERE, AWARDING COMPENSATION OF RS.4,93,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though these matters are set down for admission, with the consent of learned counsel on both sides, the same are taken up for final disposal.
2. These appeals are preferred against the judgment and award dated 18.08.2015 passed by the Tribunal in MVC No.99/2012.
3. MFA No.427/2016 is filed by the claimants seeking enhancement of compensation and MFA No.587/2016 is filed by the owner of the offending vehicle on the question of liability.
4. The factual matrix of the appeals are as under: It is stated in the claim petition that on 22.10.2010 at about 6.15 p.m. one Nagamma D/o Papanna was traveling as passenger in Bus bearing Reg.No.KA-16/A-3825 from Giddanakatte to Jagalur after completion of her coolie work in the land of Mahalingappa, near KEB circle Jagalur Town, the first respondent drove the said bus in rash and negligent manner in high speed, due to which Nagamma who was standing near back door of said bus, fell down on the ground and sustained grievous injuries to her head and other injuries all over the body. She was shifted to Government Hospital, Jagalur for necessary treatment, but she died in the hospital due to the accidental injuries. Post mortem was conducted by the Medical Officer of the Government Hospital. At the time of accident, the deceased was aged 20 years and was hale and healthy and was earning Rs.8000/- per month and she was the only earning member of the family and the petitioners were depending upon the deceased. Petitioner No.1 being the mother and Petitioner No.2 and 3 being the sister and brother of deceased Nagamma, filed the claim petition seeking compensation.
5. On issuance of notice, respondents 1 and 2 remained exparte. Respondent no.3 ICICI Lombard General insurance company appeared before the Tribunal and filed objections denying the petition averments. Respondent No.3 admitted the insurance policy in respect of bus bearing Reg.No.KA-16/A-3825 but denied the liability stating that as per the charge sheet, Nagamma while traveling in the bus bearing Reg.No.KA-06/A-5205 fell down from the door/foot board and sustained injuries. Hence, respondent no.3 is not liable to pay any compensation. It was contended that the bus bearing Reg.No.KA-16/A-3825 was not at all involved in any accident and the petitioners in collusion with respondent no.4 has given false complaint against the bus bearing Reg.No.KA-16 A 3825. After detail investigation, the Deputy Superintendent of police, Jagalur Tq., Harapanalli Division has filed charge sheet against the bus bearing Reg.No.KA-06 A 5205 which was really involved in the accident. Hence, sought for dismissal of the petition as against respondents 2 and 3.
6. Respondent No.4 being the owner of bus bearing Reg.No.KA-6/A 5205 filed objections denying the petition averments. It is stated in the objection statement that the alleged bus bearing Reg.No.KA-6/A 5205 has not caused any accident, the investigation officer has falsely included the said bus by filing charge sheet only in order to harass this respondent. On these grounds, sought for dismissal of the petition with costs.
7. Respondent No.5 – Bajaj Allianz Gen.Ins. Co. insurer of the bus bearing Reg.No.KA-6/A 5205 also filed objections denying the material allegations made in the petition and contended that the accident was only due to rash and negligent act on the part of the driver of bus bearing Reg.No.KA.16/A-3825 and after registering the case, the police have recorded the statements of the eye witness and drawn the panchanama. As per these records, the accident was mainly due to rash and negligent act on the part of the respondent no.1 in driving the bus bearing Reg.No.KA-16/A-3825. But however, the charge sheet is filed against the bus bearing Reg.No.KA-6/A 5205 insured with this respondent which was not at all involved in the accident and only in order to get compensation by wrongful claim the petition has been filed. On these grounds, sought for dismissal of the petition.
8. Based upon the pleadings, the Tribunal framed the issues and also an additional issue. In order to substantiate their claim, petitioner no.3 was examined as PW.1 and documents as per Exs.P1 to P11 were got marked. Petitioners also examined PW.2. The Area Manager Legal Claims of respondent No.3 was examined as RW.1. Respondent No.4 was examined as RW.2. Respondent No.4 examined one witness as RW.3. The Assistant Manager of respondent No.5 Company was examined as RW.4 and got marked Exs.R1 to R12. The Tribunal after hearing learned counsel for the parties and on evaluation of the oral and documentary evidence on record, passed the impugned judgment awarding compensation of Rs.4,93,000/- with interest @ 6% p.a. from the date of petition till realisation and fastened the liability to pay compensation on respondent No.4. It is this judgment which is challenged by the claimants seeking enhancement of compensation and the owner of the offending bus, on the question of liability by urging various grounds.
9. Learned counsel for the claimants contends that the compensation awarded by the Tribunal is on lower side and the same needs to be enhanced. Further, the Tribunal has erred in fixing the liability on the owner of the vehicle though as on the date of accident, the policy was in force. Further, the Tribunal has taken lower income while awarding compensation under loss of dependency and the Tribunal has not at all awarded compensation under future prospects. The multiplier applied by the Tribunal is also not proper and the compensation awarded under the conventional heads is also on lower side. On these grounds, learned counsel for the appellant prays for allowing the appeal by enhancing the compensation awarded by the Tribunal.
10. Learned counsel for the appellant/owner of the offending vehicle contends that the order passed by the Tribunal is arbitrary in so far as fixing the liability on the appellant and exonerating the respondent no.3 from the liability of making payment of compensation. Further, the Tribunal erred in holding that the vehicle bearing Reg.No.KA-6/A-5205 owned by the appellant has caused the accident and erred in fixing the liability to pay compensation. Further, the Tribunal erred in considering that after the accident, the vehicle bearing Reg.No.KA-16/A-3825 was seized on the same day and IMV report was given on the next day of the accident. It is contended that the Tribunal erred in fastening the liability only based on the ground that the charge sheet is filed against the vehicle owned by the appellant. Even the Tribunal has failed to notice that the driver of the vehicle has not been charge sheeted for having committed the offence of rash and negligent driving. The Tribunal also erred in fastening the liability inspite of production of Ex.R-11 - permit of the bus, so as to show that the alleged offending vehicle owned by the appellant has not at all plied on the date of accident. Further, he contends that the Tribunal has erred in awarding exorbitant compensation and no evidence is adduced by the claimants in proof of income of the deceased. On all these grounds, the learned counsel seeks for intervention of this court and prays to set aside the judgment and award of the Tribunal in so far as it relates to fastening the liability to pay the compensation to the claimants.
11. Learned counsel for the – ICICI Lombard General Insurance Co. Ltd., which is the insurer of bus bearing Reg.No.KA-16/A-3825 contends that in the complaint, petitioner no.1 in collusion with the respondent No.4 has given the number of this vehicle but after detail enquiry the Dy.SP, Jagalur has filed the charge sheet against the bus bearing Reg.No.KA-06/A- 5205 and the Tribunal has rightly fastened the liability on the owner of the said bus. The compensation awarded by the Tribunal is just and reasonable and it does not call for interference of this Court. Hence, prays for dismissal of the appeal.
12. Learned counsel for the Bajaj Allianz General Insurance Co.Ltd., contends that the accident was due to rash and negligent act on the part of driving of the bus bearing Reg.No.KA-16/A-3825 and initially the police had registered the case against the driver of the said bus in Cr.No.234/2010 and also had recorded the statements of the eye witness and drawn the panchanama. But, thereafter, the police have filed charge sheet on the bus bearing Reg.No.KA-06/A-5205 which is insured with this insurance company with an ulterior motive. The bus bearing Reg.No.KA-06/A-5205 was not at all involved in the accident but is wrongly impleaded police only for the purpose of getting compensation by wrongful claim. The owner of the vehicle has violated the terms and conditions of the permit conditions and also provisions of the MV Act, 1988. As such this respondent is not liable to indemnify the owner of the vehicle and not liable to pay any compensation to the claimants. The Tribunal has rightly fastened the liability on the owner of the offending bus. The judgment and award passed by the Tribunal does not call for interference. Accordingly, sought for dismissal of the appeal.
13. In the backdrop of the contentions as taken by the learned counsel for the parties, it is relevant to go through the evidence of PW.1 who has stated that on 22.10.2010 at about 6.15 p.m. Nagamma was traveling as passenger in Bus bearing Reg.No.KA-16/A-3825 from Giddanakatte to Jagalur after completion of her coolie work, at that time, respondent no.1 was driving the said bus in a rash and negligent manner, in high speed, as a result of it, Nagamma who was standing near the back door had fallen to the ground and sustained grievous injuries to her vital parts of head and other injuries caused all over the body and succumbed to injuries later. In support of her evidence, documents such as Ex.P1 – FIR, Ex.P2 – complaint, Ex.P3 –charge sheet, Ex.P4 – P.M.Report, Ex.P5 – IMV report, Ex.P6 – Mahazar, Ex.P7 – seizure mahazar, Ex.P8 – inquest report were produced.
14. Respondent No.1 is the driver, Respondent No.2 is the owner and Respondent No.3 is the insurer of bus bearing Reg.No.KA-16/A-3825. RW.1 is the Legal Manager of the respondent no.3 – insurance company. He has stated in his evidence, that petitioner no.1 in collusion with respondent no.4 has given complaint against bus Reg.No.KA-16/A-3825 but after detail enquiry, the Deputy Superintendent of police, Jagalur has filed charge sheet against the bus bearing Reg.No.KA-06/A-5205.
15. Respondent No.4 is the owner and Respondent No.5 is the insurer of bus bearing Reg.No.KA-06/A-
5205. RW.2/respondent No.4 has stated in his evidence that on the alleged date of accident on 22.10.2010 Sri H.K.Ravi Kumar was driving the said vehicle and he has not committed any accident and not liable to pay the compensation. The said Ravi Kumar is examined as RW.3 and he has stated that he was the driver of the said bus and that no accident had taken place as on the said date. But as per Ex.P3 the charge sheet, one Mahaboob was the driver of bus bearing Reg.No.KA- 06/A-5205 and on 22.10.2010 due to his rash and negligent driving the accident took place and Nagamma died sin the said accident. Against this Mahaboob, the IO has filed the charge sheet but the said person has not challenged this charge sheet. If at all he was not the driver of the said bus on the date of alleged accident he ought to have challenged the said charge sheet and no materials was placed on record to deny the said allegation. The Tribunal has held that as per Ex.P3 on 22.10.2010 the accused Mahaboob was driving the bus bearing Reg.No.KA-06/A-5205 in rash and negligent manner and without having valid permit to ply the vehicle on the area where the accident took place and he has violated the permit conditions. The contention of respondent no.5 that the accident took place due to the rash and negligent driving of bus bearing Reg.No.KA- 16/A-3825 by respondent no.1 is not supported by any materials and respondent no.5 has not made out clear whether they have challenged the charge sheet filed by the IO before the competent court. Respondents 4 and 5 have not produced any permit relating to the vehicle bearing Reg.No.KA-06/A-5205.
16. On perusal of Ex.P1 and P2 FIR and complaint, it is noticed that initially the complaint was filed against bus bearing Reg.No.KA-16/A-3825 on 22.10.2010 and as per Ex.P6 – spot panchanama the same vehicle number was mentioned. But in Ex.P7 – seizure panchanama the IO had seized the bus bearing Reg.No.KA-06/A 5205 and the same bus is inspected by the Motor Vehicle Inspector as Ex.P5 – IMV report. Further the said vehicle was got released by respondent no.4 being the owner, by executing the indemnity bond as per Ex.R10. The Tribunal after evaluating all these oral and documentary evidence on record, held that respondent no.1, driver of the vehicle bearing Reg.No.KA-16/A-3825, the respondent no.2 being the owner and respondent no.3 being the insurer of the said vehicle are not liable to pay any compensation. Further, it held that since, respondent no.4 being the owner of the bus bearing Reg.No.KA-06/A-5205 has not produced permit of the said bus as on the date of the accident to ply the vehicle on the area, he was held liable to pay the entire compensation and respondent no.5 – insurance company is not liable to pay any compensation.
17. With regard to the finding of the Tribunal in fastening the liability on respondent No.4 to pay the compensation, the Tribunal has held so based on the fact that the offending vehicle did not possess a valid permit to the ply the vehicle in the area where the accident took place. In that connection, it is useful to refer to the decision of the Apex Court in the case of RANI & OTHERS VS NATIONAL INSURANCE COMPANY LIMITED & OTHERS - (2018) 8 SCC 492, wherein it is held that even in case where the offending vehicle did not possess a valid permit to operate in the State concerned, the compensation determined must be first paid by the insurer, who could thereafter recover the same from the owner of the offending vehicle. Therefore, the said ratio laid down is squarely applicable to the present case, and therefore, respondent No.5 – Bajaj Allianz General Insurance Co. Ld., shall first pay the compensation determined and thereafter, recover the same from the owner.
18. While assessing the compensation payable to the petitioners, the Tribunal has taken Rs.3,500/- p.m. as the notional income of the deceased Nagamma and after deducting 1/3rd towards personal expenses and ascertaining age as 20 years, awarded compensation of Rs.4,48,000/- towards loss of dependency. But having regard to the age of the deceased and year of the accident, the notional income taken by the Tribunal is on lower side and the same needs to enhanced to Rs.6,500/-. The Tribunal has adopted multiplier of 16. But having regard to the age of deceased who was aged 20 years at the time of the accident, the proper multiplier would be 18 as per Sarla Verma’s case. Further, in view of the law laid down by the Hon’ble Apex Court in National Insurance Co.Ltd. vs. Pranay Sethi reported in AIR 2017 SC 5157, future prospects is to be added to his income. Accordingly, compensation under the head loss of dependency is re-worked out as under:
Tribunal has awarded in all a sum of Rs.35,000/-. But as per the ratio of reliance in Pranay Sethi’s case as stated supra, under the conventional heads, petitioners are entitled to a sum of Rs.70,000/-. Accordingly, another sum of Rs.35,000/- is awarded under conventional heads.
20. In so far as loss of consortium is concerned, the Tribunal has awarded Rs.10,000/-. But 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), filial consortium is the right of the parents to compensation in the case of an accidental death of a child. In accordance with the said ruling, a sum of Rs.40,000/- is awarded in addition to Rs.10,000/- awarded by the Tribunal.
In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Thus, in all, the claimants are entitled to total compensation of Rs.14,30,472/- as against Rs.4,93,000/- awarded by the tribunal. The enhanced compensation would be Rs.9,37,472/-
For the reasons and findings as stated above, I proceed to pass the following:
ORDER MFA No.427/2016 filed by the claimants is allowed in part. The appellants/claimants are entitled for enhanced compensation of Rs.9,37,472/- with interest @ 6% p.a. from the date of petition, till realisation.
MFA No.587/2016 filed by appellant/owner of the offending vehicle is allowed in part and the liability is shifted on respondent No.7/Bajaj Allianz General Insurance Co. Ltd., to pay the compensation as awarded by the Tribunal.
The impugned judgment and award dated 18.08.2015 passed by the Tribunal in MVC No.99/2012, is modified accordingly.
Respondent/Bajaj Allianz General Insurance Co.Ltd. shall deposit the entire amount awarded by the Tribunal as well as the compensation enhanced by this Court, along with interest accrued, within a period of four weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be disbursed to the claimants, on proper identification. However, the impugned judgment and award, in so far as it relates to rate of interest, apportionment and deposit is concerned, shall remain unaltered.
The amount in deposit, if any, before this court, shall be transmitted to the concerned Tribunal along with the lower court records, forthwith.
There shall be no order as to the costs. Office to draw the decree accordingly.
SD/- JUDGE DKB