IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF FEBRUARY 2019 PRESENT THE HON’BLE MR. JUSTICE ARAVIND KUMAR AND THE HON’BLE MR. JUSTICE K. NATARAJAN MISCELLANEOUS FIRST APPEAL Nos.8548/2013 c/w 8547/2013 AND 1127/2014 (MV) MFA No.8548/2013:
BETWEEN:
ORIENTAL INSURANCE CO LTD., SHIMOGA GARDEN AREA I CROSS, SHIMOGA NOW REPRESENTED BY ITS REGIONAL MANAGER ORIENTAL INSURANCE CO LTD., REGIONAL OFFICE SUMANGALA COMPLEX, II FLOOR LAMINGTON ROAD, HUBLI – 580 020. ... APPELLANT (BY SRI. A.N. KRISHNA SWAMY., ADVOCATE) AND:
1. KUM. VISMITHA D D/O LATE B. DINESH KUMAR NOW AGED ABOUT 12 YEARS SINCE MINOR REPTED BY HER NEXT FRIEND/GUARDIAN & GRANDFATHER K. HARISCHANDRA S/O RAMAKRISHNA NAIK NOW AGED ABOUT 82 YEARS R/O VISHAKA, I MAIN, IV CROSS III STAGE, VINOBANAGAR SHIMOGA CITY – 577 201.
2. SMT. VISHWAS K W/O B. DINESH KUMAR NOW AGED ABOUT 41 YEARS R/O 4TH CROSS, III STAGE I MAIN, VINOBANAGAR SHIMOGA CITY – 577 201.
3. DENNI J S/O JOSEPH NOW AGED ABOUT 36 YEARS DRIVER OF BUS R/O KANABUR VILLAGE MUTINAKOPPA N.R. PURA TALUK – 575 001.
4. SMT. SHALINI JAIN W/O RATNAKARA JAIN, MAJOR OWNER OF BUS, R/O "UPASANA" KADRI TEMPLE ROAD MANGALORE – 575 001.
5. NATIONAL INSURANCE CO LTD., MANGALORE. ... RESPONDENTS (BY SRI. B.S. PRASAD., ADVOCATE FOR R-1; SRI. P.N HARISH., ADVOCATE FOR R-2;
SRI. SHIVARAJ PATIL., ADVOCATE FOR R-5;
R-3 AND 4 ARE SERVED AND UNREPRESNTED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT 1988, THIS FILE HAS BEEN NOTIFIED FOR COMPLIANCE OF OFFICE OBJECTION/S ON 14.11.2013. THE COUNSEL FOR THE APPELLANT HAS NOT COMPLIED WITH THE OFFICE OBJECTION/S EVEN AFTER EXPIRY OF 6 WEEKS AS REQUIRED U/RULE 14(1) OF CHAPTER 12 OF THE HIGH COURT OF KARNTAKA RULES 1959.
MFA No.8547/2013:
BETWEEN:
ORIENTAL INSURANCE CO LTD., SHIMOGA GARDEN AREA I CROSS, SHIMOGA NOW REPRESENTED BY ITS REGIONAL MANAGER ORIENTAL INSURANCE CO LTD., REGIONAL OFFICE SUMANGALA COMPLEX, II FLOOR LAMINGTON ROAD, HUBLI – 580 020.
... APPELLANT (BY SRI. A.N. KRISHNA SWAMY., ADVOCATE) AND:
1. KUM. VISMITHA D D/O LATE B. DINESH KUMAR NOW AGED ABOUT 12 YEARS SINCE MINOR REPTD BY HER NEXT FRIEND/GUARDIAN & GRANDFATHER K. HARISCANDRA S/O RAMAKRISHNA NAIK NOW AGED ABOUT 82 YEARS R/O VISHAKA, I MAIN, IV CROSS III STAGE, VINOBANAGAR SHIMOGA CITY – 577 201.
2. SMT. VISHWAS K W/O B. DINESH KUMAR NOW AGED ABOUT 41 YEARS R/O 4TH CROSS, III STAGE I MAIN, VINOBANAGAR SHIMOGA CITY – 577 201.
3. DENNI J S/O JOSEPH NOW AGED ABOUT 36 YEARS DRIVER OF BUS R/O KANABUR VILLAGE MUTTINAKOPPA N.R. PURA TALUK – 575 134.
4. SMT. SHALINI JAIN W/O RATNAKARA JAIN, MAJOR OWNER OF BUS, R/O "UPASANA" KADRI TEMPLE ROAD MANGALORE – 575 001.
5. NATIONAL INSURANCE CO LTD., MANGALORE.
... RESPONDENTS (BY SRI. B.S. PRASAD., ADVOCATE FOR R-1; SRI. SHIVARAJ PATIL., ADVOCATE FOR R-5;
R-2 TO 4 ARE SERVED AND UNREPRESNTED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:15.07.2013 PASSED IN MVC NO.433/2010 ON THE FILE OF THE 2ND ADDITIONAL DISTRICT JUDGE, ADDITIONAL MACT-2, C/C FAST TRACK COURT, SHIMOGA, AWARDING A COMPENSATION OF RS.98,600/- WITH INTEREST @ 6% P.A. FROM THE DATE OF RESPECTIVE PETITIONS.
MFA No.1127/2014: BETWEEN:
VISMITHA D D/O LATE B. DINESH KUMAR AGE 13 YEARS SINCE MINOR REPTD. BY HER NEXT FRIEND GUARDIAN AND GRAND FATHER, K. HARISCHANDRA S/O K. RAMAKRISHNA NAIK AGE 83 YAERS R/O VISHAKA, 1ST MAIN, 4TH CROSS 3RD STAGE, VINOBANAGAR SHIMOGA CITY – 577 201. ... APPELLANT (BY SRI. PRASAD B.S., ADVOCATE) AND:
1. SMT. VISHWAS K W/O B. DINESH KUMAR AGE 42 YEARS OCC: CHARTERED ACCOUNTANT R/O 4TH CROSS, 3RD STAGE 1ST MAIN, VINOBA NAGAR SHIMOGA CITY – 577 201.
2. THE MANAGER THE ORIENTAL INSURANCE CO. LTD., GARDEN AREA, 1ST CROSS SHIMOGA – 577 201.
3. DENNI J S/O JOESPH AGED 36 YEARS OCC:DRIVER R/O K KANABUR VILLAGE MUTTINAKOPPA N.R. PURA TALUK CHIKKAMAGALORE DISTRICT 4. SMT. SHALINI JAIN W/O RATNAKARA JAIN R/O UPASANA KADRI TEMPLE ROAD MANGALORE – 575 702.
5. THE MANAGER THE NATIONAL INSURANCE CO. LTD., MANGALORE – 575 002.
... RESPONDENTS (BY SRI. A.N. KRISHNASWAMY., ADVOCATE FOR R-2; SRI. SHIVARAJ PATIL., ADVOCATE FOR R-5;
NOTICE TO R-1, 3 AND 4 IS DISPENSED WITH V/O DATED:25.06.2015) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173 OF MOTOR VEHICLE ACT, THIS FILE HAS BEEN NOTIFIED FOR COMPLIANCE OF OFFICE OBJECTION/S ON 14.03.2014 THE COUNSEL FOR THE APPELLANT HAS NOT COMPLIED WITH THE OFFICE OBJECTION/S EVEN AFTER EXPIRY OF 6 WEEKS AS REQUIRED U/RULE 14(1) OF CHAPTER 12 OF THE HIGH COURT OF KARNATAKA RULES 1959.
THESE APPEALS COMING ON FOR HEARING THIS DAY, ARAVIND KUMAR J., DELIVERED THE FOLLOWING:
JUDGMENT These three appeals arise out of judgment and award passed in MVC Nos.433/2010 and 434/2010 whereunder claim petition filed by the daughter of the deceased has been allowed in part by awarding a compensation of Rs.24,40,000/- with interest @ 6% p.a. from the date of petition till date of payment and directing the insurer of the car to indemnify the insured by satisfying the award..
2. MFA Nos.8548/2013 and 8547/2013 have been preferred by the insurer of the car bearing registration No.KA-14-MC-5331 challenging the judgment and award passed in MVC No.434/2010 and MVC No.433/2010 respectively whereunder insurer of the car has been directed to indemnify the award. Whereas MFA No.1127/2014 is filed by the claimant in MVC No..434/2010 not being satisfied with the quantum of compensation awarded.
3. We have heard the arguments of Sri B S Prasad, learned Advocate appearing for claimants, Sri A.N.Krishnaswamy, learned Advocate appearing for the insurer, Sri Shivaraj Patil, learned Advocate appearing for insurer of the bus bearing registration No.KA-19/AC-6969.
4. Claimant - minor daughter of the deceased filed claim petitions Nos.MVC Nos.433/2010 and 434/2010 claiming compensation for the injuries sustained in the accident that took place on 29.04.2009 and to award compensation for death of her father - Sri B.Dinesh Kumar in the said accident. Said claim petitions came to be allowed in part by judgment and award dated 15.07.2013. Wife of the deceased and mother of the minor daughter had also filed a claim petition in MVC No.458/2010 claiming compensation for the injuries sustained in the said road traffic accident which came to be dismissed by the common judgment and award dated 15.07.2013. However, claimants in MVC No.458/2010 have not challenged the said judgment and award and it has become final.
5. As noticed herein above, insurer has filed MFA Nos.8548/2013 & 8547/2013 contending interalia that charge sheet has been filed against driver of the car (who was the claimant in MVC No.458/2010) and liability had been fixed on the insurer of the car erroneously. He would contend that inspite of she having been acquitted of the charge of negligent driving, appellant - insurer could not be made liable to indemnify the insurer by relying upon the evidence of the driver of the bus. Sri A.N.Krishnaswamy has also vehemently contended that liability to indemnify the award by fixing negligence on the part of the driver of the bus also and negligence has to be apportioned atleast to the extent of 50% on the driver of the bus and as such, he prays for modifying the judgment and award passed by the Tribunal. He would also submit that compensation awarded to the claimant in MVC No.434/2010 is on the higher side and loss of dependency ought to have been taken at 50% since mother of the claimant is a practising Chartered Accountant and has continued with her practice and as such, there is no loss of income.
6. Per contra, Sri B S Prasad, learned Advocate appearing for appellant – claimant in MFA No.1127/2014 would contend that Tribunal erred in not considering the material evidence available on record particularly, Exs.P-19 & P-20 which indicated that apart from deceased being employed and getting salary, he was also engaged in the partnership business and as such, Tribunal ought to have construed his additional income of Rs.30,000/- per month apart from the salary. He would also submit that compensation awarded by the Tribunal under other heads is abysmally on the lower side and prays for enhancement of compensation.
6. Having heard the learned Advocates appearing for parties and on perusal of the records as also judgment and awards in question, it is noticed that accident in question occurred on 29.04.2009 at about 10.15 a.m. at Thirthahalli Agumbe road. Spot sketch - Ex.R-17 when read along with spot mahazar Ex.P-3 and photographs of the accident taken at the spot of the accident which is at Exs.P-37 to P-49, the only irresistible conclusion which is to be drawn is that accident had occurred on account of the negligent driving of the car namely, Smt Vishwas K (claimant in MVC No.458/2010). A perusal of these three documents would clearly go to show that bus was on the extreme left side of the road and car had gone on extreme right side of the road and dashed against the bus to its left side and thereby it cannot be construed or held that it was a head on collision or any negligence can be attributed to the driver of the bus. It is because of these cogent evidence available on record, learned trial Judge has rightly arrived at a conclusion that there is no negligence on the part of the driver of the bus and as such, had fastened the liability on the driver of the car and consequently, has called upon the insurer of the car to indemnify the claim i.e., insured since policy issued to the car is a package policy.
7. That apart, contention raised by Mr.A.N.Krishnaswamy, learned Advocate appearing for appellant i.e., insurer of car by relying upon the evidence of R.W.1 – driver of the bus to contend that he has deposed in his examination-in-chief itself that he had seen the oncoming car and as such he could have avoided the accident by itself would not change the nature of factual matrix or the manner, method and mode in which accident had occurred. In fact, R.W.2 – Police Officer who filed charge sheet against Smt.Vishwas has deposed that bus was going on the left side and driver of the car failed to proceed on the left side and had come to the extreme right side of the bus and dashed to the left side of the bus which is also evident from the photograph –Ex.R-8. Even IMV Report – Ex.P-6 produced in MVC No.458/2010 discloses that left side of the bus had been damaged and the front side of the car had been fully damaged. In the light of the said evidence available on record, we have to necessarily hold that negligence for the cause of accident is solely attributable to the driver of the car and no percentage of negligence can be fastened on the driver of the bus, as such, finding recorded by the Tribunal would not call for interference insofar as negligence is concerned.
8. With regard to quantum of compensation awarded by the Tribunal, we find that minor daughter who had filed claim petition seeking compensation towards ‘loss of dependency’ (loss of income due to death of her father) has been assessed by the Tribunal by taking into consideration that deceased was working as an Engineer as per Exs.P-17 and P-18 and he was drawing a salary of Rs.1,59,227/- p.a. and pay slip for the month of May, 2008 disclosed that his income was Rs.12,250/- per month. A sum of Rs.1,800/- is deducted towards professional tax and after deducting said amount, ‘loss of dependency’ has been determined at Rs.1,57,427/- per annum. Taking into consideration that deceased had a permanent job and was aged below 40 years, 50% of the actual salary has been added to his income i.e., Rs.78,713/- for computing ‘loss of dependency’. Thus, annual loss of income comes to Rs.2,36,140/- which is rounded off to Rs.2,36,000/-. After deducting 1/3rd of the salary towards personal and living expenses of the deceased, Tribunal adopted appropriate multiplier of 15 (as applicable to the age group of 36 to 40) and had determined the ‘loss of dependency’ at Rs.23,60,000/- which is just and reasonable and same does not call for interference.
9. Hence, we proceed to pass the following:
JUDGMENT (i) Appeals are hereby dismissed.
(ii) Registry is directed to transmit the records to the jurisdictional Tribunal forthwith.
(iii) Amount in deposit in MFA Nos.8548/2013 and 8547/2013 is ordered to be transmitted to the jurisdictional Tribunal forthwith by the Registry of this Court.
SD/- JUDGE SD/- JUDGE *sp