IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD M.F.A.No.10426 OF 2012(MV) C/W. M.F.A.No.10427 OF 2012(MV) MFA.No.10426/2012:
BETWEEN:
Mr. Prakash S/o Gopala Harijan Aged about 40 years R/at Ajjerubaje Hariyadka Post, Udupi Udupi District Pin-576101. … Appellant (By Sri.G.Ravishankar Shastry, Advocate) AND:
1. Praveen Ashwath Pinto S/o Thomas Pinto Aged about 33 years R/at Kattla, Idhya Grama Surathkal, Mangalore D.K. District Pin-575014.
2. The Divisional Manager ICICI Lombard General Insurance Co. Ltd., Maximus Commercial Complex 2nd Floor, Office No.22 Light House Hill Road Hampanakatta, Mangalore D.K. District Pin-575008. ... Respondents (By Sri.P.Karunakar, Advocate for R1: Sri.B.C.Shivanne Gowda, Advocate for R2.) This MFA is filed under 173(1) of MV Act, against the Judgment and Award dated: 14.03.2012 passed in MVC No.805/2009 on the file of the Principal District Judge & MACT, Dakshina Kannada, Mangalore, partly allowing the claim petition for compensation and seeking enhancement of compensation.
MFA.No.10427/2012:
BETWEEN:
1. Smt. Lathika W/o Late. Ravi Kuruvan Aged about 43 years 2. Kum. Sowmya D/o Late. Ravi Kuruvan Aged about 21 years Both are residing at Door No.37 Ambedkar Colony, Surathkal Mangalore, D.K. Pin-575014. … Appellants (By Sri.G.Ravishankar Shastry, Advocate ) AND:
1. Praveen Ashwath Pinto S/o Thomas Pinto Aged about 33 years R/at Kattla, Idhya Grama Surathkal, Mangalore D.K. District Pin-575014.
2. The Divisional Manager ICICI Lombard General Insurance Co. Ltd., Maximus Commercial Complex 2nd Floor, Office No.22 Light House Hill Road Hampanakatta, Mangalore D.K. District Pin-575008. ... Respondents (By Sri.P.Karunakar, Advocate, For R1: Sri.B.C.Shivanne Gowda, Advocate for R2) This MFA is filed under 173(1) of MV Act, against the Judgment and Award dated: 14.03.2012 passed in MVC No.806/2009 on the file of the Principal District Judge & MACT, Dakshina Kannada, Mangalore, partly allowing the claim petition for compensation and seeking enhancement of compensation.
These MFAs coming on for admission, this day, the Court, delivered the following:
J U D G M E N T These two appeals are filed by the claimants against the common judgment and award passed by the Principal District Judge and MACT, Dakshina Kannada, Mangalore dated 14.03.2012 in MVC Nos. 805/2009 and 806/2009, respectively, seeking enhancement of compensation. Since the challenge is to the common judgment, both the appeals are clubbed, heard together and are being disposed of by this common judgment.
2. The brief facts of the case are that on 03.02.2009 at about 8.40 a.m. claimant in MVC No.805/2009 was riding the scooter bearing registration No.KA-20/H-9864 from Katipalla towards Surathkal along with deceased Ravi Kuruvan. When they reached Ganeshpura near Kaikamba, driver of maxi cab bearing No.KA-20/2677 came at a high speed in a rash and negligent manner and turned to the extreme right of the tar road and dashed to the scooter. Due to the impact, rider and pillion rider fell down and sustained grievous injuries and they were shifted to Mangala Hospital, Mangalore and A.J.Hospital, Mangalore, respectively. Ravi Kuruvan died in the hospital on the next day while undergoing treatment. Afterwards, injured claimant filed MVC No.805/2009 and wife and daughter of deceased Ravi Kuruvan filed MVC No.806/2009, seeking compensation.
3. To establish their case, claimants examined three witnesses as PWs. 1 to 3 and got marked 57 documents. On the other hand, on behalf of the Insurance Company they have examined one witness and got marked five documents. On appreciation of the oral and documentary evidence, the Tribunal granted a compensation of Rs.1,57,500/- in MVC No.805/2009 and Rs.5,61,000/- in MVC No.806/2009, along with interest at 6% p.a. Not being satisfied with the quantum awarded by the Tribunal, claimants have filed these appeals.
4. Sri G.Ravishankar Shastry, learned counsel for the claimants submits that as on the date of the accident driver of the offending vehicle was having valid licence to drive light motor vehicle which was valid from 06.01.1998 to 05.01.2018. The same has been produced as Ex.R2. In view of the law laid down by the Hon’ble Supreme Court in the case of MUKUND DEWANGAN vs. ORIENTAL INSURANCE COMPANY LIMITED reported in (2017) 14 SCC 663, there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect. Hence, he submits that Insurance Company is liable to pay the compensation.
5. Per contra, Sri B.C.Shivanne Gowda, learned counsel for the Insurance Company submits that even though driver of the offending vehicle was having valid licence to drive light motor vehicle, but he was driving a transport vehicle. Therefore, the Tribunal has rightly held that Insurance Company is not liable to pay the compensation.
MFA No.10426/2012:
6. Learned counsel for the appellant submits that claimant was working as a mason and earning Rs.7,000/- per month. The Tribunal is not justified in taking Rs.4,500/- as notional income.
7. He further contended that Dr.Sudhakar, who was examined as PW3, in his deposition specifically states that there is 30% disability. But the Tribunal has not granted any compensation in the category of ‘loss of future earnings’. Hence, he sought for enhancement of compensation.
8. Per contra, learned counsel for the Insurance Company submits that even though claimant claims that he was earning Rs.7,000/- per month, he has not produced any documents to establish the income. Hence, Tribunal has rightly taken the notional income as Rs.4,500/- per month. He further submits that the Tribunal has granted just and fair compensation on all the heads. Hence, he sought for dismissal of the appeal.
9. Heard learned counsel for the parties and perused the records.
10. It is not in dispute that due to the accident occurred on 03.02.2009, claimant has suffered injury due to rash and negligent driving of the maxi-cab bearing No.KA-20/2677. Claimant was working as a mason. Even though he claimed that he was earning Rs.7,000/- per month, he has not produced any document to establish his claim. Under these circumstances, Tribunal was left with no other option but to assess the monthly income notionally. Accordingly, Tribunal fixed monthly income of the claimant as Rs.4,500/- per month, which is on the lower side. This Court in catena of decisions is following the chart prepared by Lokadalath for deciding the cases. As per the chart, for the accident of the year 2009, notional income of Rs.5,000/- has to be taken.
11. Due to the accident, claimant suffered the following injuries:
1) Lacerated wound 20 x 10 cm. at anterior-medial aspect of M/3rd of right leg with fractured bone pieces protruding out.
2) Comminuted fracture M/3rd of tibia and fibula.
3) Fracture rib right I to VIII rib.
4) Splenic injury with haemoparitoneum.
5) Multiple fracture mandible with art segment displacement.
12. The claimant examined Dr.Sudhakar as PW3, who, in his deposition, has specifically stated that there is 30% disability to the right lower limb. The Tribunal has rightly considered the disability suffered by the claimant. Accordingly, total body disability at 10% has to be taken for calculating future loss of income, which is as below:
Rs.5,000 x 12 x 10% x 15 = Rs.90,000/-.
13. For the reasons stated above, the award, dated 14.03.2012, stands modified as under:
MFA No.10427/2012:
14. Learned counsel for the appellants submits that as on the date of the accident deceased was aged about 45 years, working as a mason and earning Rs.7,000/- per month. The Tribunal is not justified in taking Rs.4,500/- as notional income.
15. He further contended that in view of the law laid down by the Hon’ble Supreme Court in the case of NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157, claimants are entitled for addition of future prospects. He further submits that in the very same judgment the Hon’ble Supreme Court has held that claimants are entitled for Rs.15,000/-, Rs.40,000/- and Rs.15,000/-, in the categories of ‘loss of estate’, ‘loss of consortium’ and ‘funeral expenses’, respectively. The compensation granted by the Tribunal on these heads is on the lower side and hence, seeks for enhancement of compensation.
16. Per contra, learned counsel for the Insurance Company submits that even though claimants have claimed that deceased was earning Rs.7,000/- per month, they have not produced any documents to establish the income. Hence, Tribunal has rightly taken the notional income as Rs.4,500/- per month. He further submits that the compensation awarded by the Tribunal on other heads is just and fair. Hence, he seeks for dismissal of the appeal.
17. Heard learned counsel for the parties and perused the records.
18. It is not in dispute that due to the accident occurred on 03.02.2009, deceased succumbed to the injuries due to rash and negligent driving of the maxi-cab bearing No.KA-20/2677. Deceased was working as a mason. Even though claimants have claimed that deceaed was earning Rs.7,000/- per month, they have not produced any document to establish his claim. Under these circumstances, Tribunal was left with no other option but to assess the monthly income notionally. Accordingly, Tribunal fixed monthly income of the deceased as Rs.4,500/- per month, which is on the lower side. This Court in catena of decisions is following the chart prepared by Lokadalath for deciding the cases. As per the chart, for the accident of the year 2009, notional income of Rs.5,000/- has to be taken.
19. In PRANAY SETHI (supra), the Hon’ble Supreme Court held that in case of self employed or fixed salary, additional 25% of the established income should be the warrant where the deceased was between 40 to 50 years. In the case on hand, the deceased was 45 years. Therefore, 25% has to be added as future prospects. Accordingly, loss of dependency is
20. In the very same judgment, the Hon’ble Supreme Court has held that under the conventional heads, the claimants are entitled for Rs.15,000/- for loss of estate, Rs.40,000/- for loss of consortium and Rs.15,000/- for funeral expenses. But the Tribunal has granted a very meagre amount under the heads loss of consortium and funeral expenses and has not granted any compensation under the head loss of estate. Accordingly, compensation is enhanced to Rs.70,000/- under the conventional heads. Second claimant is the daughter of deceased aged about 18 years. She lost her father at an young age. Hence, she is entitled for Rs.40,000/- in the category of loss of love and affection.
21. For the reasons stated above, the award, dated 14.03.2012, stands modified as under:
22. The driver of the offending vehicle was having a licence to drive light motor vehicle valid from 06.01.1998 to 05.01.2019. The extract of the driving licence is produced as Ex.R2. In view of the law laid down by the Hon‘ble Supreme Court in the case of MUKUND DEWANGAN (supra), licence to drive light motor vehicle includes licence to drive transport vehicle. In view of the above, Insurance Company is liable to pay the compensation.
23. In terms stated above, both the appeals are allowed in part. The Insurance Company is directed to deposit the compensation amount along with 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 a copy of this judgment. The amount so deposited by the Insurance Company shall be disbursed to the claimants in terms of the order of the Tribunal, after due verification of their identity.
Sd/- JUDGE Cm/-