IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 13TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.8116/2010 C/w MISCELLANEOUS FIRST APPEAL Nos.8117/2010, 2482/2010 & 2483/2010 (MV) In MFA No.8116/2010:
Between:
National Insurance Company Limited Branch Office, Chitradurga Now represented by its Regional Office No.144, Shubharam Complex M.G. Road Bangalore – 560 001. ... Appellant (By Sri. A.M. Venkatesh, Advocate) And:
1. Sri G.Nagaraj S/o. Gangadharachar Aged about 32 years Blacksmith & Plumber Worker Chikkobanahalli Village Molakalmuru Taluk Chitradurga District.
2. Smt. Gowdara Papamma Since dead by her LRs, (1) Kamalamma D/o. Gowdara Papamma W/o. Dodda Tipaiah Aged about 42 years (2) Patel G Papanayaka S/o. Late Sonnabanayaka Aged about 38 years (3) Govind Nayaka S/o. Late Sonnabanayaka Aged about 36 years (4) Renukamma D/o. Late Sonnabanayaka W/o. Srinivasa Aged about 32 years (5) Boramma D/o. Late Sonnabanayaka W/o. Manjanna Aged about 30 years All are R/at Konasagara Village Chitradurga District. ... Respondents (By Sri Rajkumar C. Adv. for R1 Sri Nagarajappa S.H. Adv. for R2 R 2(1)(3)(4)&(5) served R2(1), R2(3), R2(5) as LR's of Deceased R2(2) v/o dated 28.07.2015 Appeal is dismissed as abated against R2) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act against the Judgment and award dated 03.12.2009 passed in MVC No.124/2007 on the file of the Civil Judge (Sr.Dn) Challakere, awarding a compensation of Rs.68,600/-
with interest at the rate of 6% p.a. from the date of petition till deposit and etc., In MFA No.8117/2010:
Between:
National Insurance Company Limited Branch Office, Chitradurga Now represented by its Regional Office No.144, Shubharam Complex M.G. Road Bangalore – 560 001. ... Appellant (By Sri. A.M. Venkatesh, Advocate) And:
1. Smt. Mohanakumari B.T W/o. Late Mouneshwara Sharma Aged about 35 years House Hold Arasikere Taluk Hassan District Now R/o Chikkaobanahalli Village Molakalmuru Taluk 2. Trayambaka Sharma S/o. Late Mouneshwara Sharma Aged about 14 years 3. Nachiketana Sharma S/o. Late Mouneshwara Sharma Aged about 9 years Respondent Nos.2 and 3 are minors Represented by natural guardian Respondent No.1 mother 4. Smt. Bhadramma W/o. Late Kalachar Aged about 65 years House Hold R/o. Gopenahalli, Chennagiri Taluk Davanagere District Now R/o Chikkaobanahalli Village Molakalmuru Taluk.
5. Smt. Gowdara Papamma Since dead by her LRs, (1) Kamalamma D/o. Gowdara Papamma W/o. Dodda Tipaiah Aged about 42 years (2) Patel G Papanayaka S/o. Late Sonnabanayaka Aged about 38 years (3) Govind Nayaka S/o. Late Sonnabanayaka Aged about 36 years (4) Renukamma D/o. Late Sonnabanayaka W/o. Srinivasa Aged about 32 years (5) Boramma D/o. Late Sonnabanayaka W/o. Manjanna Aged about 30 years All are R/at Konasagara Village Chitradurga District. ... Respondents (By Sri H. Shanthi Bhushan Adv. for R1 to R4 R2 and R3 are minors represented by R1 Sri Nagarajappa S.H. Adv. for LR's of Deceased R5 (R1, 3, 4 & 5) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act against the Judgment and award dated 03.12.2009 passed in MVC No.125/2007 on the file of the file of the Civil Judge (Sr.Dn) Challakere, awarding a compensation of Rs.3,08,000/- with interest at the rate of 6% p.a. from the date of petition till deposit and etc.
In MFA No.2482/2010:
Between:
Sri G.Nagaraja S/o. Gangadharachar Aged 35 years Black Smith & Plumber Work R/o Chikkobenahalli Molakalmuru Taluk ... Appellant (By Sri. Rajkumar C, Advocate) And:
1. Smt. Gowdara Papamma D/o. Sooranaika Age 63 years House Hold Work Owner of Tractor Trailer Reg.No.KA.16/T 5861-5862 R/o Konasagara Molakalmuru Taluk.
Since R1 dead appeal is dismissed As abated v/o dated 13.10.2017 LRs of R1 R(1)(1) Kamalamma D/o. Gowdra Papamma W/o. Dodda Thippaiah Aged about 42 years R(1)(2) Patel G Papanayaka S/o. Late Sannabanayaka Aged about 38 years Since R1(2) dead R(1) 3 and 4 are treated as LRs of deceased R1(2) R1(3) Govinda Nayaka S/o. Late Sannabanayaka Aged about 36 years R1(4) Renukamma D/o. Late Sannabanayaka W/o. Srinivasa Aged about 32 years R1(5) Boramma W/o. Manjanna D/o. Late Sannabanayaka Aged about 30 years All are R/at Konasagara Village Molakalmuru Taluk Chitradurga District.
2. The Branch Manager The National Insurance Co. Ltd., Chitradurga. ... Respondents (By Sri Nagarajappa S.H. Adv. for R1 Sri A.M. Venkatesh. Adv. for R2 R 1(1), R1(3), R1(4) & R1(5) served v/o. dtd. 21.12.18 R1(1) (R1(3) to R1(5)) treated as LR's of deceased R1(2)) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act against the Judgment and award dated 03.12.2009 passed in MVC No.124/2007 on the file of the file of the Civil Judge (Sr.Dn) Challakere, partly allowing the claim petition for compensation and seeking enhancement of compensation and etc., In MFA No.2483/2010:
Between:
1. Smt. Mohanakumari B.T W/o. Late Mouneshwara Sharma Aged 38 years 2. Trayambaka Sharma S/o. Late Mouneshwara Sharma Aged 17 years 3. Nachikethana Sharma S/o. Late Mouneshwara Sharma Aged 12 years 4. Smt. Bhadramma W/o. Late Kalachar Aged about 68 years R/o. Gopanahalli, Channagiri Taluk Davanagere District.
Since appellant No.4 dead represented by her legal heirs i.e., Appellants No.1 to 3.
The Appellant Nos.1 to 3 are R/at Chikkaobenahalli Molakalmuru Taluk. … Appellants (Sri H. Shanthi Bhushan, Adv.) And 1. Smt. Gowdra Papamma D/o. Sooranaika Aged 63 years House Hold work Owner of Tractor, Trailer Reg.No.KA.16/T-5861-5862 R/o Konasagara Molakalmuru Taluk.
Since R1 dead appeal is dismissed As abated v/o dtd.28.07.2015.
LRs of R1 R1(1) Kamalamma D/o. Gowdra Papamma W/o. Dodda Thippaiah Aged about 42 years R1(2) Patel G Papanayaka S/o. late Sannobanayaka Aged about 38 years Since R1(2) dead R1(3) and 4 Are treated as LRs of deceased R1(2).
R1(3) Govinda Nayaka S/o. Late Sannobanayaka Aged about 36 years R1(4) Renukamma D/o. Late Sannobanayaka W/o. Srinivasa Aged about 32 years R1(5) Boramma W/o. Manjanna D/o. Late Sannobanayaka Aged about 30 years Service held sufficient Vide order dated 21.12.2018 R1(1) (3) to (5) All are R/at Konasagara Village Molakalmuru Taluk, Chitradurga District.
2. The Branch Manager The National Insurance Co. Ltd., Chitradurga. ... Respondents (By Sri S.H. Nagarajappa. for R2 R1(1), (3), (4) served v/o dtd.21.12.2018 R1(1, 3, & 4) are treated as LR's of Deceased R1 (2) Service held sufficient in respect of R1 (5) V/o dtd: 28.7.15. Appeal is dismissed as abated against R1) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act against the Judgment and award dated 03.12.2009 passed in MVC No.125/2007 on the file of the file of the Civil Judge (Sr.Dn) Challakere partly allowing the claim petition for compensation and seeking enhancement of compensation.
These Appeals are coming on for Final Hearing this day, the Court delivered the following:
J U D G M E N T MFA No.8116/2010 and MFA No.8117/2010 are filed by the insurance company and MFA No.2482/2010 and MFA No.2483/2010 are filed by the claimants. All these appeals are directed against the common judgment and award dated 03.12.2009 passed by the Senior Civil Judge & MACT, Challakere in MVC No. 124/2007 and MVC No.125/2007.
2. Heard the learned counsel appearing on both sides in the respective appeals.
3. The brief facts leading to the filing of these appeals are that:
On 24.06.2007 the marriage ceremony of G.Nagaraj (claimant in MVC No.124/2007 ) was held at Chikkabanahalli Village in Molakalmuru Taluk. On 25.06.2007 the deceased Mouneshwara Sharma wanted to book a ticket for return journey to Arasikere and requested G.Nagaraj to drop him at the Railway station at Molakalmuru. When they were proceeding on a motorcycle bearing registration No.KA-16-K-2375 belonging to one Siddeshwara M.B. and when they reached near the land of Sannaveeranna on Konasagara road, one Tractor and Trailer bearing registration No.KA-16-T-5861-5862 driven by its driver in a rash and negligent manner came from opposite direction and dashed against the said motorcycle. As a result of which, both of them were thrown out and sustained grievous injuries. Subsequently, Mouneshwara Sharma succumbed to the injuries.
4. The injured G. Nagaraj filed claim petition in MVC No.124/2007 and the wife, two children and mother of the deceased filed claim petition in MVC No.125/2007. The Tribunal awarded a total compensation of Rs.68,600/- to the injured claimant in MVC No.124/2007 with interest at 6% per annum and awarded a compensation of Rs.3,08,000/- with interest at 6% per annum to the claimants in MVC No.125/2007.
5. The contention of the learned counsel appearing for the insurance company is that the total compensation awarded in MVC No.124/2007 and MVC No.125/2007 are on the higher side. The injured in MVC No.124/2007 has suffered injuries to his mandible and since he was working as a plumber, there cannot be any loss of income due to disability. Hence, he submits that the compensation of Rs.57,600/- under the said head is uncalled for.
6. It is contended that the claimants in MVC No.125/2007 has been awarded a just and reasonable compensation and no enhancement is called for and therefore, he seeks to dismiss both the appeals filed by the claimants.
7. It is the further contention that the Tribunal has fastened the liability on insurance company, which is not proper. The driver of the offending vehicle in question is not holding a valid driving license to drive the tractor and trailer, since he was holding a driving license to drive LMV (NT). Therefore, he contends that the insurance company is not liable to pay compensation.
8. Per contra, the learned counsel appearing for the claimants in MFA No.2482/2010 would contend that the injured was aged about 32 years and he was a plumber by profession and according to the doctor, disability is to an extent of 40% in view of the fracture of right lateral mandible and loosing of teeth. Therefore, he submits that disability taken at 10% to the whole body is on a lower side. He further submits that the compensation awarded under other heads and the total compensation awarded is very meager and seeks enhancement of compensation by modifying the judgment and award passed by the Tribunal.
9. Learned counsel appearing for the claimants in MFA No.2483/2010 would contend that the deceased was aged about 48 years and he was a sculptor by profession, which has been established by producing sufficient evidence before the Tribunal and therefore, he submits that income of the deceased taken at Rs.3,000/- per month is not proper. He would contend that the deceased was looking after a family constituting his wife, two children and mother and he was the only source of income to them. As such, prays to take the income of the deceased at Rs.15,000/- per month. He would further submit that the compensation awarded under other heads and total compensation of Rs.3,08,000/- awarded by the Tribunal is on the lower side. Accordingly, he seeks to enhance the compensation. The accident involving the tractor and trailor bearing registration No.KA-16-T-5861-5862 is not disputed. The said vehicle was having a valid insurance policy at the time of accident.
In MFA No.2482/2010 10. The injured appellant was working as a plumber, aged about 32 years. Ex.P.5 – wound certificate goes to show that he sustained fracture of mandible and loss of teeth, apart from abrasion on forearm and other parts of the body. P.W.5 is the doctor, who examined him for disability and issued disability certificate as per Ex.P.8. According to P.W.5 the disability to an extent of 40% is permanent in nature to the whole body. The appellant contends that he was earning a sum of Rs.8,000/- per month working as a plumber. However, there is no satisfactory evidence to prove his income. Considering the evidence on record, the disability taken at 10% to the whole body by the Tribunal is just and proper. The Tribunal has taken the monthly income of the appellant as Rs.3,000/- per month and adopting multiplier 12, has awarded a sum of Rs.57,600/- under the head ‘Loss of income due to disability’. The same is just and reasonable.
11. The Tribunal has awarded a sum of Rs.5,000/- towards pain and suffering etc., The same needs to be enhanced to Rs.25,000/-. The compensation awarded towards medical and other incidental expenses, special diet, attendant charges etc., is enhanced from Rs.2,000/- to Rs.10,000/-. The compensation awarded towards ‘Loss of amenities to be enjoyed in life is enhanced from Rs.3,000/- to Rs.10,000/-. The Tribunal has awarded Rs.1,000/- towards ‘Loss of income during treatment period. The same is enhanced to Rs.3,000/-. Hence, claimant is entitled for an additional compensation of Rs.37,000/-.
In MFA No.2483/2010:
12. According to the claimants, the deceased was a sculptor by profession, aged about 48 years. He used to earn Rs.15,000/- per month and he was the sole bread earning member of the family. Ex.P.14 – agreement letter, Ex.P.18 – photos, Ex.P.19 – news paper cutting and Ex.P.20 – accounts list have been marked in evidence to prove that the deceased was working as a sculptor and also working as a purohit and received advance amount from various persons for doing sculpture work. The Tribunal has not accepted the said documents to arrive at a definite income of the deceased and therefore, notional income of Rs.3,000/- per month has been taken for calculating ‘Loss of dependency’. Considering the facts and circumstances and evidence on record and also the evidence of the wife and son of the deceased, income of Rs.3,000/- per month taken by the Tribunal is on a lower side. In the facts and circumstances of the case, income of the deceased is taken at Rs.5,500/- per month and additional of 25% is added to the income towards ‘Future prospects’. Considering the dependency, 1/4th of the income has to be deducted towards personal expenses. The age of the deceased is 48 years, appropriate multiplier is 13 and not 12 as adopted by the Tribunal. Hence, claimants are entitled for a compensation of Rs.8,04,336/-(5,156 x 12 x 13) as against Rs.2,88,000/- awarded by the Tribunal towards ‘Loss of dependency’. The appellants are entitled for another sum of Rs.70,000/- under the conventional heads. Hence, the appellants are entitled for a total compensation of Rs.8,74,336/- rounded off to Rs.8,75,000/- which is as against Rs.3,08,000/- awarded by the Tribunal.
13. The contention of the learned counsel for the insurance company is that the driver of the offending vehicle was not holding a driving license to drive transport vehicle and he was holding a license to drive only LMV (NT) and therefore, insurer cannot be fastened with liability to pay compensation. The said contention cannot be accepted in view of the decision of the Hon’ble Apex Court in the case MUKUND DEWANGAN V. ORIENTAL INSURANCE CO., LTD., AIR 2017 SC 3668 and therefore, the said contention is rejected.
14. For the foregoing reasons, I pass the following:
O R D E R i) MFA No.8116/2010 and MFA No.8117/2010 are dismissed.
ii) Appellant in MFA No.2482/2010* is entitled for an enhanced compensation of Rs.37,000/- with interest at 6% per annum from the date of the petition till deposit.
iii) Claimants in MFA No.2483/2010* are entitled for total compensation of Rs.8,75,000/- as against Rs.3,08,000/- awarded by the Tribunal with interest at 6% per annum from the date of the petition till date of deposit.
*Corrected Vide Court Order dated 18.06.2019 iv) The Insurance Company shall deposit the amount within four weeks from the date of receipt of a copy of this judgment.
v) The amount in deposit before this Court shall be transmitted to the jurisdictional Tribunal.
Sd/- JUDGE nms MNJ: MFA No.8116/2010 c/w 18.06.2019 MFA Nos.8117/2010, MFA No.2482/2010 & MFA No.2483/2010 ORDER ON ‘BEING SPOKEN’ In the operative portion of the judgment, MFA No.2482/2013 and MFA No.2483/2013 shall be corrected and read as MFA No.2482/2010 and MFA No.2483/2010.
Office is directed to issue corrected certified copy of the judgment to the learned counsel appearing on both sides.
Sd/- JUDGE nms