IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT M.F.A. NO.2835/2011 (MV) BETWEEN:
Nanjundegowda @ Gowdaiah S/o. Ningegowda – dead by LRs 1a. Mahalingegowda S/o. Late Nanjundegowda Aged 49 years 1b. Ningegowda S/o. Late Nanjundegowda Aged 47 years 1c. Shankaregowda S/o. Late Nanjundegowda Aged 44 years 1d. Nagaraja S/o. Late Nanjundegowda Aged about 40 years.
Petitioner Nos. 1(a) to 1(d) are All residents of Thenkanahalli Village, Nuggehalli Hobli C.R. Patna Taluk Hassan District.
1e. Parvathamma W/o. Jayaramegowda Aged about 46 years R/o. Haralapura Village Kasaba Hobli C.R. Patna Taluk Hassan District.
1f. Bhagya W/o. Hoovegowda @ Puttaraju Aged 34 years R/o. Madaba Village Bagoor Hobli C.R. Patna Taluk.
1g. Meenakshi W/o. Nagesh Aged about 23 years R/o. Nuggehalli Village and Hobli Channarayapatna Taluk Hassan District. ... Appellants (By Smt. A.R. Sharadamba, Advocate) AND 1. K.R.Nagaaju S/o K.C.Raju. House No.1346, B Kathihalli, Timmegowdanakoppalu, Hassan District.
2. M.Shanthi W/o Nalluswamy, R.C.Complex, 206 261, S.G.Mutt Road, Chamarajapet, Bangalore District.
3. The Oriental Insurance Co. Ltd., Retyped and Replaced page no. 2 & 3 vide chamber order dated 29.03.2019 Divisional Office, S.V.Nilaya, Hassan.
4. The Divisional Officer, United India Insurance Co., Ltd., No.2, Shankaran Road, Namakkal-637001. ... Respondents (By Sri.P.B.Raju, Advocate for R2 Vide order dated 25.01.2012 service of notice to R1 is held sufficient; Appeal against R3 dismissed as not pressed By Sri.A.M.Venkatesh, Adv., for R4) This Miscellaneous First Appeal is filed under Section 173 (1) of MV Act against the judgment and award dated 08.11.2010 passed in MVC No.73/2007 on the file of the Presiding Officer, Fast Track Court, MACT, Channarayapatna, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This appeal coming on for final hearing this day, the court delivered the following:
J U D G M E N T This appeal filed by the legal representatives of the deceased Kempamma calls in question the judgment and award dated 08.11.2010 made by the Fast Track Court and MACT, Channarayapatna, allowing the claim petition in M.V.C.No.73/2007 whereby, a compensation of Rs.1,69,204/- has been awarded with interest at the rate of 6% per annum against the owners of both the vehicles, in the ratio of 50:50.
2. The challenge is on the ground of inadequacy of compensation and also for levying the liability on the insurer as well.
3. The brief facts of the case are:-
(a) On 27.04.2005, at about 1.30 pm, one Smt. Kempamma was traveling in a lorry bearing Reg.No.KA-03-A-5062 having got into the same near Chamadihalli Gate with three baskets of vegetables. The accident happened because of rash and negligent driving of the two vehicles namely Lorry bearing Reg. No.KA-03-A-5062 and the colliding Gas Tanker bearing Reg.No.KA-01- AC-9459, as a result whereof Smt.Kempamma sustained fatal injuries and later succumbed to the same. The legal representatives of the deceased had laid a claim petition for compensation in M.V.C.No.73/2007 which was resisted by the insurers of these two vehicles by filing the written statements.
(b) To prove their claim, the legal representatives of the deceased had got examined one Nagaraja @ T.N.Naganna as PW.1. In his evidence 18 documents came to be marked as exhibits P1 to P18 which included police papers, post mortem report, genealogical tree and salary certificate of deceased Kempamma. From the side of the respondents-insurers, none was examined nor any document was got marked.
(c) The MACT, having adverted to the pleadings of the parties and after appreciating the evidentiary material placed on record, has entered the impugned judgment and award fastening the liability on the owners of the vehicles in the ratio of 50:50 and letting the insurers go free.
4. The learned counsel for the claimants Smt.A.R.Sharadamba vehemently contends that the impugned judgment and award of the Tribunal are bad because compensation awarded is on the basis of Rs.3,000/- per month when the deceased being in the public employment, was drawing a monthly salary of Rs.5,443/- as evidenced by salary certificate that was part of record. MACT is not justified in letting the insurer go free when the goods transport lorry bearing Reg.No.KA-03-A-5062 had a valid insurance policy notwithstanding, the absence thereof in respect of Gas Tanker bearing Reg.No.KA-01-AC-9459.
5. Learned panel advocates for the respondent insurance companies make submission in justification of the judgment and award together contending that the vehicle in question not being a passenger transport vehicle, Smt. Kempamma had no right to travel in the said vehicle; therefore, the liability of the insurer does not concomitantly arise at all. So arguing, both the advocates sought for dismissal of the appeal.
6. I have heard the learned counsel for the claimants and the learned panel advocates for the respondents insurance companies and perused the appeal papers and also original papers from the LCR.
7. The first contention of the learned counsel for the claimants that the MACT has awarded a lesser compensation by taking into consideration the monthly income of the deceased at Rs.3,000/-, is substantiated by the evidentiary material on record. Deceased Kempamma was in the public employment; she was drawing salary in the prescribed pay scale which fact is evidenced by Ex.P.5-salary certificate. No reason is assigned by the MACT for not believing the salary certificate and other evidentiary material. Therefore, MACT is not justified in taking only Rs.3,000/- as and to be the monthly income of deceased Kempamma.
Therefore, same ought to have been taken at Rs.5,443/- plus 10% (Rs.5,443X10/100=5,987.3/-) i.e., at around Rs.6,000/-.
8. In view of the Apex Court decision in the case of National Insurance Company Ltd V/s Pranay Sethi and Others, AIR 2017 SC 5157, more particularly para 61, there has to be 10% addition made to the income of the deceased which therefore would be Rs.5,443/- plus Rs.544/- which works out to Rs.5,987/-, and this is to be rounded off to Rs.6,000/- from which 1/4th is to be deducted towards personal expenses of the deceased in view of decision of the Apex Court in Sarla Verma’s Case.
9. With the above altered values, the compensation for loss of dependency is worked out as :
(6000-1500) X 9 X 12 = 4,86,000/- plus Rs.70,000/-
being the compensation payable under the conventional heads vide Pranay Sethi Case. Thus, the total compensation amount now payable is Rs.5,56,000/-.
10. The contention of the claimants side that the liability ought to have been fastened on the insurer of the said goods transport vehicle bearing Registration No.KA-03-A-5062 inasmuch as Smt.Kempamma was traveling with three baskets of vegetables in the said lorry, gains acceptance both factually and legally, regard being had to the evidentiary material on record. Consequently, the insurer of the said lorry is liable to make good the same with liberty to recover 50% thereof from the Gas Tanker bearing Registration No.KA-01-AC- 9459 by putting this judgment in execution vide decision of the Apex Court in National Insurance Company Limited Vs. Challa Upendra Rao and others (2004) 8 SC 517, there being no need of fresh adjudication.
11. For the reasons stated above, this appeal succeeds; the impugned judgment and award of the Tribunal dated 08.11.2010 are modified by enhancing the compensation from Rs.1,69,204/- to Rs.5,56,000/- (Rupees five lakh fifty six thousand only), with interest at the rate of 6% per annum, all other terms and conditions thereof having been left intact.
Further, the liability is fastened on the 3rd respondent-Oriental Insurance Company Limited, with the right of contribution from the Tanker Lorry as observed above.
The appeal against 4th respondent-United India Insurance Company Limited is negatived.
Costs made easy.
Sd/- JUDGE JS/-