IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD MFA No.23/2015 (MV) C/W MFA No.616/2015(MV) IN MFA 23/2015 BETWEEN:
THE ORIENTAL INSURANCE CO. LTD. REGIONAL OFFICE LEO SHOPPING COMPLEX #44/45, RESIDENCY ROAD BANGALORE-560025 REP BY ITS DEPUTY MANAGER SMT B S PADMAJA.
... APPELLANT (BY SRI. SEETHARAMA RAO B.C., ADV.) AND 1. SMT NAZIMA AGED ABOUT 24 YEARS W/O LATE ZAHEER PASHA 2. MASTER ZAID PASHA AGED ABOUT 5 YEARS S/O LATE ZAHEER PASHA 3. KUM MISBA PATHIMA AGED ABOUT 4 YEARS D/O LATE ZAHEER PASHA RESPONDENT NOs.2 & 3 ARE MINORS REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN THE FIRST RESPONDENT.
4. SMT JAHARABI AGED ABOUT 61 YEARS W/O MR PYARAJAN 5. MR PYARAJAN AGED ABOUT 69 YEARS S/O LATE HUSSAIN SAB ALL ARE RESIDENTS OF ANJANAPURA GOLLAHALLI, UTTARAHALLI HOBLI BANGALORE SOUTH TALUK BANGALORE-560062.
6. SRI MAHESH A C AGED ABOUT 28 YEARS R/AT ANEPALYA VILLAGE R GOLLAHALLI POST KENGERI HOBLI BANGALORE SOUTH TALUK BANGALORE-560 060 (OWNER OF TATA SUMO NO KA 41/5260) ... RESPONDENTS (BY SRI. RAJANNA, ADV. FOR R1-R5, SRI. J.M. VIJAY KUMAR, ADV. FOR R6.) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:15.07.2014 PASSED IN MVC NO.1327/2013 ON THE FILE OF THE II ADDITIONAL SMALL CAUSES JUDGE, & XXVIII ACMM, MACT, BENGALURU, AWARDING COMPENSATION OF Rs.14,46,000/- WITH INTEREST @ 6% FROM THE DATE OF PETITION TILL DEPOSIT.
IN MFA 616/2015 BETWEEN:
1. SMT NAZEEMA W/O LATE ZAHEER PASHA AGED ABOUT 24 YEARS 2. ZAID PASHA S/O LATE ZAHEER PASHA AGED ABOUT 5 YEARS 3. MISBA PATHIMA D/O LATE ZAHEER PASHA AGED ABOUT 4 YEARS APPELLANT 2 & 3 ARE MINORS REPRESENTED BY THEIR NATURAL GUARDIAN SMT. NAZEEMA.
4. SMT JAHARABI W/O PYAREJAN AGED ABOUT 61 YEARS 5. SRI PYARAJAN W/O LATE HUSSAIN SAB AGED ABOUT 69 YEARS ALL ARE RESIDENTS OF ANJANAPURA GOLLAHALLI, UTTARAHALI HOBLI BANGALORE SOUTH TALUK BANGALORE-560062 ... APPELLANTS (BY SRI.RAJANNA, ADV.) AND 1. ORIENTAL INSURANCE CO., NO.540, SHASHANK COMPLEX I FLOOR, OPP:SUB REGISTRAR OFFICE MYSORE ROAD KENGERI-560060 REP BY ITS MANAGER 2. SRI MAHESH A C S/O CHIKKANNA AGED ABOUT 28 YEARS R/A ANEPALYA VILLAGE K GOLLAHALLI POST, KENGERI HOBLI BANGALORE SOUTH TALUK BANGALORE-560060 ... RESPONDENTS (BY SRI.B C SEETHARAMA RAO, ADV. FOR R1, SMI. J.M.VIJAYKUMAR, ADV. FOR R2) MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:15.07.2014 PASSED IN MVC NO.1327/2013 ON THE FILE OF THE II ADDITIONAL SMALL CAUSES JUDGE & XXVIII ACMM, MACT, BENGALURU, PARTLY HEATING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
*** THESE APPEALS ARE COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT MFA 23/2015 is filed by the Insurance Company and MFA 616/2015 is filed by the claimants challenging the judgment and award dated 15.7.2014 passed by the MACT, Bengaluru in MVC 1327/2013.
2. Brief facts of the case:
On 31.10.2012 at about 10 p.m. when the deceased was riding his Bajaj Scooter bearing Registration No.KA-05-V-7625 on Agara Gangasandra Road in front of new petrol bunk, Uttaranalli, at that time, the driver of Tata Sumo bearing Registration No.KA-41-5260 came in a rash and negligent manner and dashed against the scooter of the deceased. As a result, the deceased sustained grievous injuries and immediately, the deceased was shifted to Rajarajeshwari Hospital and later succumbed to injuries. Hence, his family members filed a claim petition before the Tribunal. In order to support their case, they examined wife of the deceased as PW-1, and submitted 13 documents. On the other hand, the Insurance Company has examined one witness as RW-
1 and produced 4 documents. After appreciation of the evidence, the Tribunal has awarded compensation of Rs.14,46,000/- with interest at 6% p.a. Being aggrieved by the same, the Insurance Company and claimants have filed these appeals respectively.
3. The learned counsel for the Insurance Company submits that as on the date of accident, the driver of the offending vehicle was not having valid driving licence and hence, the Insurance Company is not liable to pay compensation. He further contended that the Tribunal while calculating the "loss of dependency", the loss of future prospects is taken at 50%, which is on the higher side. As per the decision of the Hon’ble Supreme Court in the case of NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS [AIR 2017 SC 5157], in case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. Further, the compensation granted under the conventional heads is also contrary to the decision of the Hon’ble Supreme Court in the said case. Therefore, he prays for allowing the appeal filed by the Insurance Company.
4. Per contra, the learned counsel for the claimants submits that at the time of the accident, the deceased was aged 32 years. He was a car driver and earning Rs.9,000/- per month. But the Tribunal has taken the monthly income as merely as Rs.6,000/- per month, which is on the lower side. Further, the compensation granted under the conventional heads is just and reasonable. Therefore, the learned counsel for the claimants prays for allowing the appeal.
5. Heard the learned counsel for the parties, and perused the records.
6. It is not in dispute that deceased died due to the rash and negligent driving of the offending vehicle by its driver. The Hon’ble Supreme Court in the case of Mukund Dewangan vs. Oriental Insurance Company Limited [(2017) 14 SCC 663], has held that a holder of a driving licence to drive class of light motor vehicle is competent to drive a transport vehicle.
7. In the instant case, the driver of the offending vehicle was possessing driving licence to drive Non-transport (LMV) and hence, the driver had valid and effective licence to drive the vehicle in question at the time of accident. Therefore, it is held that the Insurance Company is liable to pay compensation to the claimants. Hence, the contention of the learned counsel for the Insurance Company that the driver of the offending vehicle did not possess valid driving licence at the time of accident, is rejected.
8. This Court in catena of cases has relied upon the chart prepared by this Court for assessing the notional income of the injured or the deceased as a guideline. According to the chart, for an accident of the year, 2012, the income should be taken notionally as Rs.7,000/- per month. Therefore, the learned Tribunal is unjustified in assessing the deceased’s income as merely as Rs.6,000/- per month, rather than Rs.7,000/- per month. Therefore, this Court enhances the income of the deceased from Rs.6,000/- to Rs.7,000/- per month.
As per the decision of the Hon’ble Supreme Court in the case of Pranay Sethi (stated supra), in case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. Hence, the "loss of dependency" needs to be recalculated.
9. A bare perusal of the impugned award clearly reveals that the learned Tribunal has granted Rs.50,000/- towards ‘loss of consortium’, Rs.10,000/- towards ‘loss of estate’ and Rs.25,000/- towards ‘funeral expenses’.
Keeping in mind, the law established by the Hon’ble Supreme Court in the case of Pranay Sethi (supra), the compensation granted under the conventional heads needs to be recalculated by this Court. Accordingly, a sum of Rs.40,000/- is awarded towards ‘loss of consortium’, Rs.15,000/- towards ‘loss of estate’ and Rs.15,000/- towards ‘funeral expenses’. The compensation granted by the Tribunal under the head "loss of love and affection" and “loss of care and guidance for minor children” remains undisturbed.
10. Thus, the claimants are entitled to the
Insurance Company is dismissed. MFA 616/2015 filed by the claimants is allowed in part. The judgment and award dated 15.7.2014 passed by the MACT, Bengaluru in MVC 1327/2013, stands modified.
12. The Insurance Company is directed to deposit, with the learned Tribunal, the entire compensation amount, along with an interest @ 6% per annum, from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of the certified copy of this judgment.
13. The apportionment shall be made in terms of the award of the Tribunal.
14. The amount deposited by the Insurance Company before this court shall be transferred to the concerned Tribunal forthwith.
Sd/- JUDGE DM