IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.4201 OF 2015 (MV) BETWEEN:
1. KRISHNAPPA @ KRISHNAYYA, S/O. MUNIRANGAPPA, AGED ABOUT 52 YEARS, 2. KANTHAMMA, W/O. KRISHNAPPA @ KRISHNAYYA, AGED ABOUT 43 YEARS, 3. VIJAYAKUMAR, S/O. KRISHNAPPA @ KRISHNAYYA AGED ABOUT 22 YEARS, ALL ARE RESIDING AT KARUKONDAPALLI, BAIRAMANAGALAM POST, DENKANIKOTTAI TALUK, DHARMAPURI DIST, TAMILNADU-635107.
... APPELLANTS (BY SRI. MAHADEVASWAMY.P, ADVOCATE) AND:
1. THE MANAGER, CHOLAMANDALAM MS GEN. INS. CO. LTD, NO.135/5, 2ND FLOOR, 15TH CROSS, J.P. NAGAR, 3RD STAGE, BANGALORE-78.
2. K. VENUGOPAL, S/O. KRISHNAPPA, MAYASANDRA VILLAGE, ANEKAL TALUK, ATTIBELE HOBLI, BANGALORE DISTRICT-560100.
... RESPONDENTS (BY SRI. B. PRADEEP, ADVOCATE FOR R1 R2 – SERVED UNREPRESENTED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 27.11.2014 PASSED IN MVC NO.2014/2013 ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE, & XXXIV ACMM, MEMBER, MACT-7, COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The claimants are in appeal under Section 173(1) of the Motor Vehicles Act, not being satisfied with the quantum of compensation awarded under the judgment and award dated 27/11/2014 in M.V.C.No.2014/2013 on the file of the IX Additional Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
2. The claimants, parents and brother of one late Hemanthkumar, filed claim petition under Section 166 of the Motor Vehicles Act, claiming compensation for the death of Hemanthkumar in a road traffic accident. It is stated that the deceased was working as a cleaner in a TATA 1109 Lorry bearing Reg.No.KA-01-B-2731 and on 24-12-2012, the deceased was travelling in the said lorry from Bangalore to Hosur. The driver of the lorry drove the same in a rash and negligent manner and dashed to a KSRTC Bus bearing Reg.No.KA-42-F-094. Due to which, the deceased sustained grievous injuries. Immediately, he was shifted to Sparsh Hospital, where he succumbed to the injuries. It is stated that the deceased was aged 18 years as on the date of accident and was earning Rs.6,000/- per month as salary.
3. On issuance of notice, respondent No.1-Insurer appeared before the Tribunal and filed its statement of objections disputing territorial jurisdiction. Further denied the claim petition averments and contended that the driver of the lorry was not holding a valid and effective driving license as on the date of accident. It was also stated that the lorry in question was not possessing valid permit to ply in the State of Karnataka. Further, it was contended that the deceased was travelling in a lorry as gratuitous passenger. The policy did not cover the risk of gratuitous passenger. It is further stated that there is violation of policy condition as well as permit.
4. The first claimant-father of the deceased examined himself as PW-1 and got marked documents Exs.P-1 to P-11. Respondents examined RW-1 and got marked Exs.R-1 to R-6.
5. The Tribunal on appreciating the material placed before it, awarded total compensation of Rs.5,74,000/- with interest at the rate of 6% per annum from the date of petition till payment, on the following heads:
Amount in (Rs.)
While awarding the above compensation, the Tribunal assessed the income of the deceased at Rs.4,000/- per month and saddled the liability on respondent No.2-owner. Aggrieved by the same, the claimants are before this Court in this appeal.
6. Heard the learned counsel for the appellants and learned counsel for the respondent-insurer. Perused the material on record including the lower court records.
7. Learned counsel for the appellants would submit that the assessment of the income of the deceased at Rs.4,000/- per month is on the lower side. The deceased was working as a cleaner and was receiving salary of Rs.6,000/- per month. He further submits that the Tribunal committed an error in adopting multiplier of ‘14’ taking the age of younger parent. It is his further submission that while awarding compensation on the head of ‘Loss of dependency’, the age of the deceased will have to be taken for adopting correct multiplier. As the deceased was aged 18 years as on the date of accident, multiplier of ‘18’ would be applicable. Further it is submitted that the Tribunal failed to award any compensation on the head of ‘Future prospects’. In view of the decision of the Hon’ble Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED vs. PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680, the claimants would be entitled for adding 40% of the assessed income towards ‘Future Prospects’ as the deceased was aged below 40 years. Further, claimant Nos.1 and 2-parents of the deceased would be entitled for Rs.40,000/- each on the head of ‘Filial consortium’ as per the decision in the case of MAGMA GENERAL INSURANCE CO. LTD. vs. NANU RAM reported in 2018 SCC ONLINE SC 1546. Learned counsel further submits that the Tribunal committed an error in saddling the liability on respondent No.2-owner of the lorry and relied on the decision of the Hon’ble Supreme Court in the case of AMRIT PAUL SINGH AND ANOTHER vs. TATA AIG GENERAL INSURANCE COMPANY LIMITED AND OTHERS (2018) 7 SCC 558 and submits that the present case is of pay and recovery. Hence, prays for a direction to the insurer-respondent No.1 to pay the compensation at the first instance with liberty to recover the same from respondent No.2-owner. Thus, prayed to allow the appeal.
8. Per contra, learned counsel for respondent No.1– Insurer would submit that the quantum of compensation awarded by the Tribunal is just compensation, which needs no interference. Further he submits that the Tribunal rightly saddled the liability on respondent No.2-owner. The lorry did not possess a valid permit as on the date of accident since it had expired on 05-9-2012. Thus, he prays for dismissal of the appeal.
9. Having heard the learned counsels for the parties and on perusal of the material on record, the following points would arise for consideration in the facts and circumstances of the case.
1) Whether the Tribunal is justified in saddling the liability on respondent No.2-owner?
2) Whether the claimants would be entitled for enhanced compensation?
Answer to the above points is in the affirmative for the following reasons.
10. The accident occurred on 24-12-2012 involving TATA 1109 Lorry bearing Reg.No.KA-01-B-2731, KSRTC Bus bearing Reg.No.KA-42-F-094 and the accidental death of one Hemanthkumar are not in dispute in this appeal. The claimants’ appeal is for enhancement of compensation.
The appellants submit that the Tribunal committed an error in saddling the liability on respondent No.2-owner and further contended that it is a case of pay and recovery. The insurer is to be directed to pay the compensation at the first instance with liberty to recover the same from respondent No.2-owner. Respondent- insurer contended that the accident had taken place on 24-12-2012 and as on the date of accident, the offending TATA 1109 Lorry bearing Reg.No.KA-01-B-2731, did not possess a valid permit. The permit had expired on 05-09-2012 and the same was not renewed as on the date of accident. The insurer had placed on record Ex.R-5, the permit relating to the offending Lorry bearing Reg.No.KA-01-B-2731. On perusal of the same, it is seen that the permit had expired on 05-09-2012 and as on the date of accident, there was no permit to ply the lorry. The Hon’ble Apex Court in the case of AMRIT PAUL SINGH AND ANOTHER vs. TATA AIG GENERAL INSURANCE COMPANY LIMITED AND OTHERS (2018) 7 SCC 558 at paragraph No.24 has held as follows:
“24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh and other cases pertaining to pay and recover principle.”
11. Following the principles laid down in the above decision, I am of the view that the insurer is liable to pay the compensation at the first instance with liberty to recover the same from respondent No.2-owner. Accordingly, the insurer to deposit the compensation amount.
12. The Tribunal assessed the income of the deceased at Rs.4,000/- per month. The accident is of the year 2012. The claimants have stated that the deceased was working as a cleaner in the offending lorry and was receiving a salary of Rs.6,000/- per month. This Court and the Lok Adalath while determining the compensation in Motor Vehicles Accident cases would normally take notional income for the accidents of the year 2012 at more than Rs.6,000/- per month. In the instant case, as the claimants themselves have stated that the income of the deceased was Rs.6,000/- per month, it would be appropriate to assess Rs.6,000/- as notional income of the deceased for determination of the compensation on the head of ‘Loss of dependency’. As per the decision of the Hon’ble Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED vs. PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680, the claimants would be entitled for adding 40% of the assessed income towards ‘Future Prospects’ as the deceased was aged below 40 years. The Tribunal adopted multiplier of ‘14’ taking the age of the younger parent, but as on this day, it is settled law that while applying multiplier, the age of the deceased will have to be taken. In the instant case, the deceased was aged 18 years as on the date of accident, therefore the multiplier to be adopted is ‘18’. Claimant Nos.1 and 2-parents of the deceased have lost the son of aged 18 years and lost love, affection and care. Hence, they would be entitled for Rs.40,000/- each on the head of ‘Filial consortium’ as per the decision in the case of MAGMA GENERAL INSURANCE CO. LTD. vs. NANU RAM reported in 2018 SCC ONLINE SC 1546. Since the deceased was bachelor, deduction towards personal expenses to be taken at 50%. Thus, the claimants would be entitled for modified enhanced compensation as follows:
1. Loss of Dependency Amount in (Rs.) 9,07,200
13. Thus, the claimants would be entitled for enhanced modified compensation of Rs.10,17,200/- as against Rs.5,74,000/- with interest at the rate of 6% per annum from the date of petition till its realization as awarded by the Tribunal.
The judgment and award passed by the Tribunal is modified to the above extent. Accordingly, the appeal is allowed in part. The apportionment and deposit would be as ordered by the Tribunal.
Sd/- JUDGE SMJ