IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE S.R.KRISHNA KUMAR
M.F.A.NO. 2437 OF 2018
C/W
M.F.A. NO. 897 OF 2018(MV-D)
IN M.F.A.NO.2437/2018 BETWEEN 1. SMT.LAKSHMAMMA W/O LATE KABBALE GOWDA AGED ABOUT 46 YEARS.
2. SMT.JAYASHEELA.A D/O LATE KABBALE GOWDA AGED ABOUT 31 YEARS BOTH ARE R/AT DYAVARASE GOWDANA DODDI WARD NO.1 RAMANAGARA TOWN – 562 159.
PERMANENT R/AT DUNNASANDRA BHUTHA HUNASE POST MARALAVADI HOBLI, KANAKAPURA TALUK.
(BY SRI. SHANTHARAJ.K, ADVOCATE) AND 1. SRI.MOHAMMED MUZAMIL KHAN S/O BASHA KHAN MAJOR R/AT NO.8, 2ND FLOOR SHEIKH NATHAD LANE PAYAPPA GARDEN TUSKER TOWN SHIVAJINAGAR BENGALURU – 562 051.
…APPELLANTS 2. BHARATHI AXA GENERAL INSURANCE COMPANY LTD., REPRESENTED BY ITS MANAGER 3RD FLOOR, NO.30, BELLARY ROAD BENGALURU – 560 037.
3. ERAMMA D/O LATE PUTTE GOWDA AGED ABOUT 78 YEARS R/AT NO. DYAVARASE GOWDANA DODDI WARD NO.1, RAMANAGARA TOWN – 562 159.
(BY SRI. B.PRADEEP, ADVOCATE FOR R-2 NOTICE TO R-1 & R-3 D/W.) …RESPONDENTS THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 24.11.2017 PASSED IN MVC NO. 169/2015 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, RAMANAGARA, PARLTY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENCHANCEMENT OF COMPENSATION AND ETC.
IN M.F.A.NO.897/2018 BETWEEN THE MANAGER BHARATHI AXA GIC LTD., 3RD FLOOR, NO.30, BELLARY ROAD BENGALURU NOW REPRESENTED BY ITS LEGAL MANAGER BHARATHI AXA GIC LTD., 1ST FLOOR, FERNS ICON SURVEY NO.28, DODDANEKUNDI BENGALURU – 560 037.
(BY SRI. PRADEEP.B, ADVOCATE) …APPELLANT AND 1. SMT.LAKSHMAMMA W/O LATE KABBALE GOWDA AGED ABOUT 46 YEARS.
2. SMT.JAYASHEELA D/O LATE KABBALE GOWDA NOW AGED ABOUT 31 YEARS.
3. ERAMMA D/O LATE PUTTEGOWDA NOW AGED ABOUT 78 YEARS.
ALL ARE R/AT DYAVARASE GOWDANA DODDI WARD NO.1 RAMANAGARA TOWN.
PERMANENT R/AT DUNNASANDRA BHUTHA HUNASE POST MARALAVADI HOBLI, KANAKAPURA TALUK PIN – 560 062.
4. SRI.MOHAMMED MUZAMIL KHAN S/O BASHA KHAN MAJOR R/AT NO.8, 2ND FLOOR SHEIKH NATHAD LANE PAYAPPA GARDEN TUSKER TOWN SHIVAJINAGAR BENGALURU – 560 068.
…RESPONDENTS (BY SRI. K.SHANTHARAJ, ADVOCATE FOR R-1 & R-2 R-3 SERVED, R-4 D/W V/O/DTD: 27.11.2019.) THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 24.11.2017 PASSED IN MVC NO. 169/2015 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, RAMANAGARA, AWARDING COMPENSATION OF RS. 9,11,100/- WITH INTEREST AT 7% P.A., FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION AND ETC.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Both these appeals arise out of the same impugned judgment and award dated 24.11.2017 passed by the learned Senior Civil Judge and Addl.MACT, Ramanagara (for short’ the Tribunal’), in M.V.C.No.169/2015, allowing the claim petition by awarding a compensation in a sum of Rs.9,11,079/- with interest at 7% p.a. from the date of claim petition till realization.
2. M.F.A.No.2437/2018 has been preferred by the claimants while M.F.A.No.897/2018 has been preferred by the Insurance company.
3. For the sake of convenience, the parties are referred to by their rank before the Tribunal.
4. Though the appeals are listed for admission, with the consent of learned counsel for the parties, the same are taken up for final disposal.
5. Both the counsels submit that the occurrence of accident as well as the coverage of the policy of the offending vehicle by the Insurance company are not in dispute.
6. The learned counsel for the Insurance company in MFA No.897/2018 submits that the Tribunal committed an error in fastening the liability on the Insurance company despite the undisputed fact that the driver of the offending vehicle did not possess a valid and effective driving licence. It is therefore contended that the Insurance company was not liable to pay compensation as held by the Tribunal and the entire liability is to be fastened upon the owner of the offending vehicle.
7. Insofar as the compensation claimed by the claimants in MFA No.2437/2018 is concerned, the learned counsel for the Insurance company submits that the impugned judgment and award is just and proper and that the same does not warrant interference by this Court. Insofar as it relates to awarding of compensation under the conventional heads is concerned, it is contended that the same is highly excessive and the same requires reduction by this Court.
8. Per contra, learned counsel for the claimants in MFA No.2437/2018 submits that in the light of the judgment of the Apex Court in the case of Pappu & Others vs. Vinod Kumar Lamba and Another (AIR 2018 SC 592), the Tribunal was fully justified in fastening the liability upon the Insurance company who would be at liberty to recover the amount paid by them from the owner of the offending vehicle. It is also contended that the notional income of the deceased was wrongly taken as Rs.7,000/- as against Rs.9,000/- per month as per the Lok Adalat guidelines.
The learned counsel for the claimants also submits that the Tribunal committed an error in coming to the conclusion that the age of the deceased was 58 years based on the stray admission in the cross-examination of PW-1 without taking into account the primacy or evidentiary value of the P.M. report Ex.P6 which conclusively established that the age of the deceased was 55 years as on the date of the accident and consequently, the proper multiplier to be applied was 11 instead of 9 as wrongly applied by the Tribunal. It is also contended that the compensation awarded under the conventional heads requires enhancement by this Court.
9. I have given my anxious consideration to the submissions made by the learned counsel for both the parties and perused the material on record including the impugned judgment and award passed by the Tribunal.
10. As rightly contended by the learned counsel for the appellants, the Tribunal committed an error in placing reliance upon a stray admission in the cross-examination of PW-1 without considering/appreciating the primacy or evidentiary value of the undisputed documentary evidence at Ex.P6 – the P.M. report and other evidence which would conclusively establish that the deceased was aged about 55 years as on the date of the accident. So also, the Lok Adalat guidelines which stipulated that in respect of an accident that occurred in the year 2015, the notional income ought to be taken as Rs.9,000/- per month and as such, Tribunal committed an error in coming to the conclusion that the notional income was taken as Rs.7,000/- per month. However, as rightly contended by the learned counsel for the Insurance company, the Tribunal committed an error in adding 15% of future prospects to the notional income without appreciating the judgment of the Apex Court in the case of National Insruance Company Limited vs. Pranay Sethi and others (2017) 16 SCC 680, wherein, it is held that in respect of a self-employed person between the age 50-60 years, 10% of future prospects should be added for the computation of ‘loss of dependency’.
11. Thus, taking the age of the deceased as 55 years, notional income as Rs.9,000/- per month and adding 10% of future prospects to the notional income, the total compensation towards ‘loss of dependency’ is reworked as hereunder:-
Rs.9,000 x 10% = Rs.900 = Rs.9,900/3 = Rs.3,300/- Rs.9,900-Rs.3,300 = Rs.6,600 x 12 x 11= Rs.8,71,200/-
13. Further, in view of the discrepancy in the compensation awarded under the conventional heads, the total compensation would have to be reworked as hereunder:-
1 Loss of dependency Rs.8,71,000/-
2 Loss of consortium & loss of love and affection Rs.1,20,000/-
3 Loss of estate Rs.20,000/-
4 Funeral expenses and transportation of dead body Rs.25,000/-
5 Medical expenses Rs.1,47,879/-
Total Rs.11,84,079/-
14. Since the Tribunal has awarded a compensation of Rs.9,11,079/-, the appellants – claimants would be entitled to an additional enhanced compensation of Rs.2,73,000/- (Rs.11,84,079/- - Rs.9,11,079/-) with interest at 6% p.a.
14. In view of the aforesaid discussions made above, I pass the following order:-
(i) Both the appeals are allowed in part.
(ii) The impugned judgment and award passed by the Tribunal is modified to the above extent.
(iii) The appellants-claimants are entitled to an additional enhanced compensation of Rs.2,73,000/- which shall carry interest at 6% p.a. from the date of petition till realization.
(iv) The apportionment and disbursement to be done as per the impugned judgment and award passed by the Tribunal.
(v) The Insurance company shall pay the entire compensation amount to the claimants and liberty is reserved to them to recover the same from the owner of the offending vehicle namely, Mohammed Muzamil Khan.
(vi) The amount in deposit be transferred to the Tribunal.
(vii) The lower court records be transferred to the Tribunal forthwith.
Sd/- JUDGE
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