IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22nd DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. L. NARAYANA SWAMY, ACTING CHIEF JUSTICE MISCELLANEOUS FIRST APPEAL No.765 OF 2010 (MV) BETWEEN:
1. SMT. MANJULA W/O LATE CHANDRE GOWDA @ CHANDRA AGED ABOUT 31 YEARS 2. MASTER NOOTHAN S/O LATE CHANDRE GOWDA @ CHANDRA AGED ABOUT 9 YEARS 3. MASTER JEEVAN S/O LATE CHANDRE GOWDA @ CHANDRA AGED ABOUT 7 YEARS SINCE 2ND AND 3RD APPELLANTS ARE MINORS THEY ARE REPRESENTED BY THEIR MOTHER AND NATURAL GUARDAIN I.E. 1ST APPELLANT ALL ARE RESIDING AT HENTAGERE ROAD ARAKALGUD TOWN ARAKALGUD TALUK HASSAN DISTRICT ...APPELLANTS (BY SRI. RAVIKUMAR N.R., ADV.) AND:
1. SRI MAHESH S/O SIDDALINGEGOWDA MAJOR IN AGE RESIDING AT HEMAGIRI ROAD AGRAHARA STREET, K.R. PET MANDYA DISTRICT 2. THE MANAGER THE NEW INDIA INSURANCE CO. LTD. BRANCH OFFICE HEMA MANSION GANDHI BAZAR HASSAN TOWN, HASSAN (BY SRI A M VENKATESH, ADVOCATE FOR R2) ...RESPONDENTS THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:28.05.2009 PASSED IN 204 OF 2008 ON THE FILE OF CIVIL JUDGE (SR.DN.) AND MACT, ARKALGUD, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T In the case of death of a breadwinner of the family in the road traffic accident, wife and children of the deceased, made a claim petition. The case of the claimants is that the deceased succumbed to the road traffic accident that took place on 18th June 2006 at 8:30 PM when the victim was travelling in a goods vehicle bearing registration number KA 11 4826 with his vegetables to Somwarpete. It was claimed that the deceased was an agriculturist and was earning about Rs.5,000/- per month; and secondly, he was proceeding in the goods vehicle with his goods viz. vegetables. The learned counsel appearing for the appellants submits that the Tribunal has committed an error in assessing income of the deceased at Rs.3,000/- per month. It is also his submission that the Tribunal has disbelieved case of the claimants that the deceased was carrying the goods as owner thereof and has fastened the liability on the owner of the vehicle, which is also an error. Hence, this appeal is preferred.
2. I have gone through the judgement and award passed by the Tribunal. There is a discussion with respect to the income. The claimants have stated that the deceased was earning about Rs.5,000/- per month as an agriculturist and by vending vegetables, but have not produced any document to prove the same. In this regard it is to be observed that when a claim is made to the effect that the deceased is either an agriculturist or a coolie, it cannot be expected that the claimants should produce documentary evidence proving the income. It is also to be presumed that as a sole earning member of the family he must have earned some definite income to take care of the family members. The Tribunal should have taken the notional income by applying its mind. While assessing the notional income relevant factors like the year of accident, number of dependents, place of residence, etc. are to be taken note of. In the facts and circumstances, the income, as claimed at Rs.5,000/- per month for the accident of 2008, is to be accepted and the same should have been considered without expecting the claimants to produce documentary proof. Accordingly, the income of the deceased is assessed at Rs.5,000/- per month.
3. Next aspect to be considered is with respect to liability.
The claimants have stated that the deceased was travelling in the goods vehicle along with vegetables as owner of goods. It has been discussed by the Tribunal that the second respondent who had been examined as RW-1 who has got marked Exhibits R1 to R10 has contended that the vehicle is a goods vehicle and there is violation of terms and conditions of the policy. The deceased was travelling in the goods vehicle with many other co- passengers. The documents exhibits R5 to R10 disclose that many other passengers who were travelling in the vehicle were injured and there is a case of death also. The deceased was also travelling along with other passengers. No documents have been produced to show that the deceased was exclusively travelling as owner of the goods. The deceased was travelling as a gratuitous passenger. The provisions of Motor Vehicles Act make it clear that the "goods" includes live-stock, and anything (other than equipment ordinarily used with the vehicle) carried by a vehicle except living persons, but does not include luggage or personal luggage of passengers travelling in the vehicle. Though claimants state that the deceased was travelling with vegetables, but nothing is produced to show as to what was the quantity of goods he was carrying? Whether it is goods or vegetables for the supply to the market, or was it to the extent as personal effect? In this regard, with regard to liability, I hold that it is the owner who has to satisfy the award and not the insurer. The submission of the appellant that in respect of the goods, if the vehicle is a transport vehicle, it is the insurer who has to pay the compensation. If there is violation of insurance policy, liberty is to be reserved to the insurer to recover the same from the owner, cannot be accepted. As per judgement of the Hon’ble Supreme Court travelling in a goods vehicle without being owner of the goods is impermissible and contrary to law. Hence, when there is a bar to travel in the goods vehicle and, in case, if there is an accident and the inmates of the vehicle are injured or if there happens to be a death, claiming compensation from the insurer with liberty to recover the same from the owner does not arise. The said submission of the learned counsel is liable to be rejected, accordingly rejected.
4. Further, in the instant case, since it is to be held that the income of the deceased is to be taken at Rs.5,000/- per month, the loss of dependency comes to Rs.5,000/- x 12 x 2/3 x 13=Rs.5,20,000/- and the same is to be awarded as against Rs.3,12,000/- awarded by the Tribunal. Even under conventional heads, all put together Rs.70,000/- is required to be awarded. An amount of Rs.5000/- awarded by the Tribunal towards love and affection is retained. Thus in all, the claimants are entitled to compensation of Rs.5,95,000/- which shall carry interest at 5% per annum from the date of petition till payment. The first respondent is directed to pay the compensation amount.
In the result, appeal stands partly allowed.
Sri A M Venkatesh, the learned is permitted to file his memo of appearance within a period of four weeks.
Sd/-
ACTING CHIEF JUSTICE lnn