IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY M.F.A.No.4903 /2012 c/w M.F.A.No.11611 /2012(MV) IN MFA No.4903/2012 BETWEEN:
Oriental Insurance Company Ltd, No.1/1 Cannaught Road, Queens Road Cross, Bengaluru -560 052 Represented by its Branch Manager.
Through the Regional Office, The Oriental Insurance Company Ltd., Leo Shopping Complex, 44/45, Residency Road, Bengaluru -560 025 Represented by its Authorised Signatory. ... Appellant (By Sri. K.K.Vasanth, Advocate) AND:
1. Sri. Y.C. Mariswamy, Aged about 50 Years, S/o Channaveera Devaraj, R/o Anemada Village, Sidlaghatta Taluk, Chickballapura District.
2. Smt. T. Jayamma, Aged about 51 Years, W/o Late Thammaiah, 3. Smt. Mangala T., Aged about 34 Years, D/o Thammaiah, W/o Chandra R.B., 4. Sri. K.T. Narasimhamurthy, Aged about 32 Years, S/o Late Thimmaiah 5. Smt T.Nagarathna, Aged about 30 Years, D/o Late Thimmaiah W/o Ramachandra All are R/at No.20, 6th Cross, Nandini Layout, 4th Block, Bengaluru -560 096. ... Respondents (By Sri. R. Chandrashekar, Advocate for R2 to R5; R1-Service of notice held sufficient vide order dated 24.08.2015) This MFA is filed Under Section 173(1) of MV Act against the judgment and award dated:6.1.2012 passed in MVC No.5323/2010 on the file of XXI A.C.M.M. & XXIII A.S.C.J., Bangalore, awarding a compensation of Rs.2,42,400/- (75% of RS.3,23,200/-) with interest @ 6% p.a. from the date of petition till actual deposit.
IN MFA No.11611/2012 BETWEEN:
1. T.Jayamma, 52 years, W/o. Late Thammaiah, 2. Mangala T., Aged about 35 Years, D/o Thammaiah W/o Chandru R.B., 3. K.T. Narasimhamurthy, 33 Years, S/o Late Thimmaiah 4. T.Nagarathna, 31 Years, D/o Late Thimmaiah, W/o Ramachandra All are Residing at No.20, 6th Cross, Nandini Layout, 4th Block, Bengaluru -560 096 … Appellants (By Sri R.Chandrashekhar, Advocate) AND:
1. Y.C.Mariswamy, Major, S/o Channaveera Devaraj, R/at Anemada Village, Shidlagatta Taluk, Chikkaballapura District-562 118.
2. The Branch Manager, Oriental Insurance Company Ltd, No.1/1 Connaught Road, Queens Road Cross, Bengaluru -560 052. …Respondents (By Sri K.K.Vasanth, Advocate for R2;
R1-Notice dispensed with vide order dated 14/08/2015) This MFA is filed Under Section 173(1) of MV Act against the judgment and award dated:6.1.2012 passed in MVC No.5323/2010 on the file of XXI A.C.M.M. & XXIII A.S.C.J, Bengaluru, partly allowing the claim petition for compensation and seeking enhancement of compensation.
These MFAs coming on for hearing this day, the Court delivered the following:
JUDGMENT Both these appeals are filed challenging the judgment and award dated 06.01.2012 passed in MVC No.5323/2010 by the XXI Additional Chief Metropolitan Magistrate and XXIII Additional Small Causes Judge, Bengaluru (henceforth for brevity referred to as ‘the Tribunal’). The Tribunal while allowing the claim petition, has awarded compensation to claimant No.1 therein however, fixed the liability upon the second respondent-Insurance Company therein to pay award amount to the claimant and recover the same from the first respondent-owner of the offending vehicle.
In MFA No.4903/2012, the respondent-Insurance Company has challenged the impugned award limiting to the fixation of liability to pay the award amount upon it and permitting it to recover thereafter.
MFA No.11611/2012 is filed by the claimants before the Tribunal below for enhancement of compensation.
Since both matters have arisen out of the single judgment of the Tribunal, both are taken up together for disposal.
2. Heard arguments on both sides.
3. Learned counsel for the appellant in MFA No.4903/2012, wherein the appellant is Insurance Company, submitted that the Tribunal below was in error in directing the Insurance Company to pay the award amount and recover it from the owner of the vehicle even after observing that the owner of the offending vehicle did not possess valid and effective driving licence as on the date of accident. He further submitted, the quantum of compensation awarded by the Tribunal under all heads is just and reasonable and does not warrant any interference at the hands of this Court.
4. Learned counsel for the appellant in the connected matter-MFA No.11611/2012 submitted that even though the driver of the offending vehicle did not possess a valid and effective driving licence at the time of accident but in view of the judgment of the Hon’ble Apex Court in Pappu & Ors. – vs – Vinod Kumar Lamba and Anr. reported in AIR 2018 SUPREME COURT 592, the insurer cannot absolve its liability, however, after making the payment of award amount to the claimants, it can recover the same from the owner of the vehicle. Learned counsel further submitted that the income of the deceased taken by the Court below is on the lower side and the compensation awarded under ‘conventional head’ is also on the lower side.
5. The summary of the case of the claimants in the Tribunal is that on 15.02.2010 at about 4.00 p.m. deceased Thammaiah while was waiting to cross a road in front of Marish hotel of Nandini Layout ring road, a motor car bearing registration No.KA-40 3617, being driven by its driver in a rash and negligent manner came and dashed to him, due to which accident he sustained grievous head injuries and succumbed to the same while under treatment on 06.04.2010 in ESI hospital.
Claimants have stated that deceased was aged about 53 years as on the date of accident and was working as loader and unloader with an earning of `400/- per day and the claimants were depending upon him. The Insurance Company appeared and contested the matter. The Tribunal, after recording the evidence led before it and appreciating the materials placed before it, observed that claimant No.1 being the wife of deceased, alone was dependent upon the deceased Thammaiah. Though it held that the accident in question has occurred in the manner canvassed by the claimants but also held that there was contributory negligence on the part of the deceased also and fixed the contributory negligence on the part of the deceased at 25%. Even after observing that the driver of the offending vehicle was not possessing a valid driving licence, it proceeded to direct the insurer to pay the award amount to the claimant and then to recover it from the owner of the vehicle.
The Tribunal awarded compensation under the following heads with the amount shown against them:-
6. It is the contention of the learned counsel for the claimants that the income of the deceased was taken at a lower side. It is not seriously disputed that the deceased was working as a loader and unloader. Though the claimants claimed that he had daily income of `300/- to `400/- per day but in the absence of any document in this regard, the same cannot be accepted. However, considering the submission made from both sides and the circumstance of the case and also the prevailing notional income during the relevant year, I am of the view that taking the income of the deceased at `5,000/- would be reasonable and appropriate. The age of the deceased and deduction to be made towards personal expenses, as opined by the Tribunal, is not in dispute. As such, towards ‘loss of dependency’ the claimant No.1-wife of the deceased is entitled for a sum calculated at `5,000 p.m. x 12 months x 9 multiplier x 2/3rd = `3,16,000/-. As per the judgment of the Hon’ble Apex court in National Insurance Company Ltd. – vs – Pranay Sethi and Others reported in (2017) 16 SCC 680 towards conventional head which includes loss of estate, loss of consortium and funeral expenses, the claimant No.1 being the wife of the deceased is entitled to compensation of `15,000 + `40,000/- + `15,000/- = total `70,000/-. However, under the conventional heads since the Tribunal has awarded a lesser amount of `20,000/-, the same requires to be enhanced by `50,000/-.
Medical expenses awarded by the Tribunal based on the actuals after considering the medical bills by the Tribunal, the same does not warrant interference at the hands of this Court. Thus, in total, the claimant is entitled to compensation of `4,45,200/-. After deducting 25% to it towards contributory negligence, contributed by the deceased, which comes to a sum of `1,11,300/-, the claimant i.e., the appellant in MFA No.11611/2012 is entitled for a total compensation of `3,33,900/-. After deducting compensation of `2,42,400/- awarded by the Tribunal below, the said claimant No.1 is entitled for a difference amount of `91,500/- in the form of enhancement. This amount is in addition to `2,42,400/- awarded by the Tribunal.
7. The contention of the appellant-Insurance Company in MFA No.4903/2012 is that when admittedly it was observed by the Tribunal that the driver of the offending vehicle did not possess valid driving licence and even after observing that there is violation of condition of policy, as such Insurance company was not liable to pay the compensation still, it committed an error by directing the Insurance Company to pay the award amount to the claimants and then to recover the same from the first respondent/owner of the offending vehicle.
8. No doubt, in the instant case, the Tribunal has observed that the driver of the offending vehicle was not holding valid and effective driving licence. However, it observed that the Insurance policy was in force as on the date of accident and proceeded to direct the Insurance company to pay the awarded amount to the claimant and then to recover the same from the first respondent/owner of the offending vehicle.
The Hon’ble Apex Court in Pappu’s case (supra) had directed the Insurance Company to pay the award amount to the claimants in the first instance and in turn recover the same from the owner of the vehicle. In the light of the said judgment, the argument of the learned counsel for the Insurance Company that the Insurance Company is not liable to pay the awarded amount is not acceptable.
As such, the finding of the Tribunal that respondent No.2-Insurance Company (Appellant in MFA No. 4903/2012) at the first instance to pay the awarded amount along with interest ordered and accrued thereupon to the claimants and then it would be at liberty to recover the same from respondent No.1 (owner of the alleged offending vehicle) does not warrant any interference or modification at the hands of this Court.
9. Accordingly, I proceed to pass the following :-
ORDER i) MFA No.4903/2012 is dismissed; MFA No. 11611/2012 is allowed in part;
ii) The judgment and award dated 06.01.2012 passed in MVC No.5323/2010 by the XXI Additional Chief Metropolitan Magistrate and XXIII Additional Small Causes Judge, Bengaluru, is modified to the extent that the total compensation awarded by the Tribunal which is at `2,42,400/- is enhanced by a sum of `4,45,200/- thus making the total amount of compensation for which the appellant is entitled to at `3,33,900/- (Rupees Three Lakh Thirty Three Thousand Nine Hundred only).
The rest of the terms of the award with respect to fixing the liability upon the respondents and directing the Insurance Company to pay and recover the same from respondent No.1, the owner of offending vehicle, and the terms regarding deposit of the awarded amount, awarding the interest, its rate, terms regarding release of the amount awarded, shall remain unaltered.
Draw modified award accordingly.
Registry to transmit a copy of this judgment to the Tribunal without delay.
The amount deposited by the appellant in MFA No.4903/2012 be transmitted to the Tribunal without delay.
Sd/- JUDGE rs