IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 29TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H P SANDESH MISCELLANEOUS FIRST APPEAL No.8224 OF 2012 (MV) BETWEEN:
The Oriental Insurance Co. Ltd., Do. 11, 663, 1st Floor, Defence Colony, 100 feet Road, Indira Nagar 1st Stage, Bengaluru-560038.
(Policy No.423100/31/2010/13679 Validity from 25.02.2010 to 24.02.2011) And also The Oriental Insurance Co. Ltd., 44/45, Residency Road, Leo Shopping Complex, Bengaluru-560025.
By its Regional Officer, ... Appellant (By Sri E.S.Indiresh, Advocate) AND:
1. Smt. Lakshmi, W/o. Late Chinnaswamy, Aged about 51 years, 2. Malliga, D/o. Late Chinnaswamy, Aged about 32 years, 3. Bhaskar, S/o. Late Chinnaswamy, Aged about 30 years, 4. Radha, D/o. Late Chinnaswamy, Aged about 27 years, All are R/at 1st Main, 2nd Cross, Pillareddy Road, Near Karimaramma Temple, Kavery Nagar, Mahadevapur Post, Bengaluru-560048.
5. N.Devaraju, Saneeshwar Temple Road, Opp. Lalitha Poultry Farm, Akshyanagar 2nd Block, Ramamurthy Nagar, Bengaluru-560016.
(R.C.Owner of the Tipper Lorry, Bearing No.KA-28-2742) ... Respondents (By Sri. Muniyappa D. Naveen, Advocate for R1 to R4-Absent, Sri. K.Shivashankar, Advocate for R5 - Absent) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act against the judgment and award dated 17.03.2012 passed in MVC No.5518/2010 on the file of the XX Additional Judge & XVIII ACMM, MACT, Bengaluru, awarding a compensation of Rs.5,15,500/- with interest @ 6% P.A. from the date of petition till deposit in court.
This MFA coming on for final hearing this day, the Court delivered the following:-
J U D G M E N T This Miscellaneous First Appeal is filed by the insurance company challenging the judgment and award passed in MVC No.5518/2010 on the file of Motor Vehicles Accident Claims Tribunal, Bengaluru, questioning fastening liability on the insurance company and also on the ground of quantum of compensation awarded by the Tribunal is exorbitant.
2. Brief facts of the case are that:
On 04.08.2010, deceased Chinnaswamy was pushing the cycle for crossing Bengaluru-Kolar NH-4 road in front of RTO Office Cross, Bhattarahalli and at that time, at about 7.00am, the driver of the Tipper lorry bearing Reg.No.KA-28/2742 drove the same in a rash and negligent manner and dashed against him, as a result he sustained injuries and immediately he was shifted to Bowring and Lady Curzon Hospital, where he succumbed to injuries. It is also contended by the claimants that deceased was hale and healthy and working as mason and earning Rs.6,000/- per month and contributing the same to the family.
3. In pursuance of the claim petition, notice was ordered and respondent No.2/Insurance Company appeared through the counsel and filed written statement contending that the policy was valid as on the date of the accident, however the liability is subject to terms and conditions of the policy. Further contended that the driver was not having driving license to drive the vehicle involved in the accident.
4. The claimants in order to substantiate their claim, examined the first claimant as PW-1 and got marked documents as Exs.P.1 to P.9. The second respondent got examined one witness as RW-1 and got marked documents as Exs.R.1 to R.4.
5. The Tribunal after considering both oral and documentary evidence, allowed the claim petition in part granting compensation of Rs.5,15,500/- and fastening the liability on the insurance company. Hence the present appeal is filed.
6. The appellant/insurance company on three grounds questioned the judgment and award of the Tribunal. His contention is that the accident was taken place on 04.08.2010 and the driving license was expired on 12.11.2006, which shows that as on the date of the accident there was no driving license. The other contention of the insurance company is that the Tribunal ought to have deducted 1/3rd towards personal expenses and not 1/4th and committed an error in deducting 1/4th and hence, the compensation amount also to be modified. The insurance company also raised other contentions that the driving license was in the name of one R.Segar and the charge sheet has been filed against one Shekar and the driving license which is marked as ExR.4 not pertains to the driver of the vehicle and on that ground also liability on the insurance company is to be set-aside. Hence prayed this Court to set aside the judgment and award of the Tribunal.
7. Counsel appearing for the respondents 1 to 4 and also respondent No.5 are absent when this matter is taken up for final disposal. Hence, the arguments on behalf of respondent Nos.1 to 4 and 5 is taken as nil.
8. Having heard the arguments of the appellant’s counsel and also in keeping the rival contentions of the appellant, the points that arise for my consideration are:
1. Whether the Tribunal has committed an error in fastening the liability on the insurance company and whether it requires interference of this Court?
2. Whether the Tribunal has committed any error in adopting deduction of 1/4th towards personal expenses of the deceased instead of 1/3rd?
3. What Order?
9. POINT NO.2:- On perusal of the records, claimants 2 to 4 are the major daughters and son of the deceased and the claimant No.1 is the wife. There is a force in the contention of the appellant’s counsel that instead of deducting 1/3rd towards personal expenses, the Tribunal has deducted 1/4th. The details furnished in the cause title itself discloses that claimants 2 to 4 are majors and they are not the dependants and hence the Tribunal has committed an error in deducting 1/4th towards the personal expenses and the same is to be deducted 1/3rd.
10. On perusal of the award, it is noticed that the Tribunal while calculating the income and while arriving loss of dependency, did not consider the future prospects of the deceased. It is settled law that in a case of death as well as in a case of permanent disability, Court has to add future prospects. The Tribunal has taken the income as Rs.4,500/- and this accident was taken place in the year 2010 and not added any future prospects. Hence, even though the claimants have not filed appeal, in view of the judgment of the Apex Court reported in (2018)8 SUPREME COURT CASES 492 in the case of RANI AND OTHERS VS. NATIONAL INSURANCE COMPANY LIMITED AND OTHERS, the Apex Court held that even in the absence of the appeal by the claimants, the Court has to award just and reasonable compensation. Having considered the principles laid down in the said judgment, this Court has to modify the quantum of compensation. If the income is taken as Rs.4,500/- and the deceased was aged about 55 years and relevant multiplier applicable is 11 and 10% of future prospects has to be added and if it is added, it comes to Rs.4500+450=4950-1/3 = 3300x12x11 = Rs.4,35,600/-. The Tribunal awarded an amount of Rs.65,000/- on the other conventional heads and the same is to be modified as Rs.70,000/-. In all the award amount is to be modified as Rs.5,05,600/- as against Rs.5,15,600/-.
11. POINT NO.1:-The other contention with regard to liability is concerned, the accident has taken place on 04.08.2010 and as on the date of accident the driver was not having driving license to drive such vehicle and the HTV driving license was expired on 12.11.2006 itself. However, he was having license to drive non transport vehicle and hence in view of the judgment of the Apex Court in the case of Mukund Dewangan vs. Oriental Insurance Company Ltd., (AIR 2017 SC 3668) the insurance company cannot avoid the liability. The contention of the insurance company that the insurer is not liable to pay the compensation as the driver was not having driving license to drive such vehicle as on the date of the accident cannot be accepted. Having considered all these aspects into consideration, I am of the opinion that the liability fastened against the insurance company cannot be set aside.
12. The other contention urged by the appellant’s counsel that the driving license was not standing in the name of the driver Shekar and the police filed charge sheet against one Shekar and the document which is produced before the Court shows that it is in the name of R.Segar. On perusal of the evidence of RW-1 no such evidence led before the Tribunal, however, this contention urged by the appellant’s counsel only before this Court. When such being the case, said contention is not available to the insurance company. In view of the discussion made above, I pass the following:-
ORDER (i) The appeal is allowed in part. The judgment and award dated 17.03.2012 in MVC No.5518/2010 on the file of the MACT, Bengaluru is modified granting compensation of Rs.5,05,600/- as against Rs.5,15,500/- awarded by the Tribunal.
(ii) Office is directed to transmit the amount in deposit, if any, along with LCR to the concerned Tribunal forthwith.
Sd/- JUDGE Kmv/-