IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.1549/2015 [MV] BETWEEN:
1. PUTTARAJEGOWDA S/O VENKATEGOWDA AGED ABOUT 49 YEARS 2. RANGAMMA W/O PUTTARAJEGOWDA AGED ABOUT 47 YEARS 3. SHYLA D/O PUTTARAJEGOWDA AGED ABOUT 29 YEARS 4. CHANDRAMMA D/O PUTTARAJEGOWDA AGED ABOUT 28 YEARS 5. LAKSHMI D/O PUTTARAJEGOWDA AGED ABOUT 27 YEARS 6. MEENAKSHI D/O PUTTARAJEGOWDA AGED ABOUT 25 YEARS 7. RAGHU S/O PUTTARAJEGOWDA AGED ABOUT 24 YEARS ALL ARE R/O KANCHANAHALLI VILLAGE KASABA HOBLI, ARAKALAGUDU TALUK HASSAN DISTRICT-573 201.
... APPELLANTS (BY SRI.GIRISH B BALADARE, ADV.) AND:
1. THE MANAGER BAJAJ ALLIANZ INSURANCE CO.LTD., G.E.PLAZA, AIR PORT ROAD YARAVADA, PUNE:411006.
2. M.MANJUNATHA S/O MURTHY AGED ABOUT 35 YEARS R/O NO.7 DHANANAYAKANAHALLI VILLAGE KENGERI HOBLI BANGALORE SOUTH TALUK BANGALORE DISTRICT-560 060.
(BY SRI. O MAHESH, ADV. FOR R1 R2- SERVED & UNREPRESENTED) ... RESPONDENTS THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.09.2014 PASSED IN MVC NO.221/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE & MACT, ARKALGUD, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The claimants are in appeal, not being satisfied with the quantum of compensation awarded and aggrieved by saddling of the liability on respondent No.1/owner of the vehicle under judgment and award dated 29.09.2014 in MVC No.221/2008 on the file of the Motor Accident Claims Tribunal, Arkalgud (hereinafter referred to as 'the Tribunal' for short) are before this Court in this appeal.
2. The claimants are parents, sisters and brother of deceased Kamala @ Jyothi. The claim petition was filed under Section 166 of the Motor Vehicles Act claiming compensation towards death of Kamala in a road traffic accident. It is stated that on 20.05.2006, when the deceased was proceeding along with others to attend the marriage reception in a Tempo Traveler bearing registration No.KA-41/940, the driver of the said vehicle drove the same in high speed and in a rash and negligent manner and caused the accident. Due to which, the deceased sustained grievous injuries and succumbed to the injuries on the way to hospital. The deceased was doing tailoring work in a Garment factory and was earning Rs.5,000/- p.m. She was aged about 19 years as on the date of accident.
3. On issuance of notice, respondent No.2 appeared before the Tribunal and filed its written statement denying the claim petition averments. It is also stated that the driver of the offending tempo traveler had no valid and effective driving license as on the date of accident. The compensation claimed is excessive and exorbitant.
4. Claimant No.1 was examined as P.W.1 and also examined one more witness as P.W.2 apart from marking the documents as Ex.P1 to Ex.P13. The respondents examined three witnesses as R.W.1 to R.W.3 and marked the documents as Ex.R1 to Ex.R11.
5. On earlier occasion, the Tribunal based on the material on record had passed the judgment and award dated 09.06.2009 rejecting the claim petition. Aggrieved by the same, the claimants had filed MFA No.6013/2009 before this Court. This Court, by judgment dated 02.11.2012 remanded the matter to the Tribunal for fresh disposal giving liberty to the parties to lead fresh evidence. Thereafter, the claimants lead fresh evidence and also placed documentary evidence on record.
6. The Tribunal, appreciating the entire material on record awarded total compensation of Rs.3,45,000/- with interest at the rate of 6% p.a., from the date of petition till realization on the following heads:
1. Loss of dependency (1750x12x15) :: Rs.3,15,000/-
2. Funeral & Obsequies expenses :: Rs. 10,000/-
3. Loss of love & affection :: Rs. 10,000/-
4. Loss of estate :: Rs. 10,000/-
Total Rs.3,45,000/-
While awarding the above compensation, the Tribunal assessed the income of the deceased at Rs.3,500/- p.m., and adopted multiplier of 15. Further, the Tribunal saddled liability on respondent No.1/owner of the offending vehicle on the ground that the driver of the vehicle had no valid and effective driving license as on the date of accident. Aggrieved by the same, the claimants are before this Court in this appeal.
7. Heard the learned counsel for the appellants and learned counsel for the respondent/Insurer. Perused the material on record.
8. Learned counsel for the appellants would submit that the assessment of income of the deceased by the Tribunal at Rs.3,500/-p.m., is on the lower side. He submits that the deceased was working as a Tailor and was earning Rs.5,000/-p.m., she was aged about 19 years as on the date of accident. As such, the Tribunal ought to have accepted the income as stated by the claimants. He further submits that the Tribunal has applied the multiplier of 15 taking the age of the younger parent of the deceased. It is settled law as on this date to apply the correct multiplier, age of the deceased will have to be taken. In the instant case, the deceased was aged about 19 years and the appropriate multiplier would be 18. Learned counsel further submits that the Tribunal failed to award any compensation on future prospects, which the claimants would be entitled for adding 40% of the assessed income, as the deceased was aged below 40 years. With regard to saddling of liability on respondent No.1/owner of the offending tempo traveler, learned counsel submits that the driver of the offending vehicle had license to drive light motor vehicle. As the tempo traveler is also a light motor vehicle which has unladen weight of 3,580 Kgs, the holder of license to drive light motor vehicle can also drive LMV transport vehicle. He relies upon a decision of the Hon'ble Supreme Court in The Hon’ble Apex Court in the case of MUKUND DEWANGAN v/s ORIENTAL INSURANCE COMPANY LIMITED reported in (2017) 14 SCC 663 in support of his contention. Thus, he prays for allowing the appeal.
9. Per contra, learned counsel for the respondent/ insurer would submit that the Tribunal has rightly saddled the liability on respondent No.1/owner of the offending vehicle. It is his submission that MUKUND DEWANGAN case is per incurium and the same is referred to larger bench. Hence, it would have no application. Further, he submits that the Tribunal has rightly applied the multiplier of 15 taking the age of the younger parent. It is his submission that the deceased was the daughter of claimants No.1 and 2 and she would have married in another 5-6 years. Therefore, the question of dependency would not be available for the claimants. Hence, he submits that the application of multiplier 15 is appropriate and correct. It is his further submission that the quantum of compensation awarded by the Tribunal is just compensation, which needs no interference. Thus, prays for dismissal of the appeal.
10. Having heard the learned counsel for the parties and on perusal of the material on record, the following questions would arise consideration:
(i) Whether the income of the deceased assessed by the Tribunal at Rs.3,500/- p.m., is proper and correct?
(ii) Whether the multiplier of 15 adopted by the Tribunal is proper and correct?
(iii) Whether the claimants would be entitled for compensation on the head ‘future prospects’?
(iv) Whether the Tribunal is justified in saddling the liability on the first respondent/owner of the offending vehicle?
(v) Whether the claimants are entitled to compensation under filial consortium?
11. The accident is of the year 2006. The accidental death of one Kamala involving the tempo traveler bearing registration No.KA-41/940 is not in the dispute in this appeal. The claimants’ appeal is for enhancement of compensation as well as shifting liability on the insurer. The Tribunal assessed the income of the deceased at Rs.3,500/- p.m., which is on the lower side. It is stated by the claimants that the deceased was doing Tailoring work and was earning Rs.5,000/- p.m. Nowadays, even a coolie would earn Rs.200/- per day, which works out to Rs.6,000/- p.m. Looking to the standard of living and the avocation that was carried on by the deceased, it is appropriate to accept the income stated by the claimants that the deceased was earning Rs.5,000/- p.m. Hence, the income of the deceased is assessed at Rs.5,000/- p.m. Thus, point No.1 is answered in the negative.
12. The Tribunal applied the multiplier of 15 taking the age of the younger parent. It is the submission of the learned counsel for the appellant that for applying the appropriate multiplier, age of the deceased will have to be taken. If the age of the deceased is considered, the appropriate multiplier to be adopted would be 18. Learned counsel for the respondent/insurer submitted that the Tribunal is justified in adopting 15 multiplier as the deceased was daughter of the claimants 1 and 2 who was aged 19 years and would have married within 5-6 years and the question of dependency would not arise thereafter. The said submission cannot be accepted without there being any evidence on record.
Whether the deceased would have been married within 5-6 years or not is a fact, which depends on the social environment in which the deceased was living. It is settled law as on this date, as per the decision of the Hon'ble Apex Court in SUBE SINGH AND ANOTHER v/s SHYAM SINGH (DEAD) AND OTHERS reported in (2018) 3 SCC 18, while adopting the correct multiplier, age of deceased will have to be taken. The deceased was aged 19 years and the appropriate multiplier would be 18. Thus, point No.2 is answered in the negative.
13. The deceased was aged 19 years. The Hon'ble Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED v/s PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680 has laid down that the claimants would be entitled for adding 40% of the assessed income towards future prospects, if the deceased was below 40 years of age. In the instant case, as the deceased was aged 19 years, the claimants would be entitled for addition of 40% of the assessed income towards future prospects. Thus, point No.3 is answered in the affirmative.
14. The Tribunal saddled the liability on the first respondent/owner of the offending vehicle on the ground that the driver of the tempo traveler had no valid and effective driving license as on the date of accident. It is not in dispute that the driver of the tempo traveler had license to drive the light motor vehicle (non- transport). Ex.R4 is the ‘B’ extract and Ex.R3 is the DL extract which would indicate that the driver of the tempo traveler had LMV non-transport license. The Hon’ble Apex Court in MUKUND DEWANGAN has held that a person who possesses LMV non-transport license also could drive LMV transport vehicle of the same category. It has come on record that as per Ex.R6, unladen weight of the tempo traveler is 3,510 Kgs., which means it is a light motor vehicle. Hence, the driver of the tempo traveler can also drive the LMV transport vehicle. The submission of the learned counsel for the Insurer that the decision in MUKUND DEWANGAN is per incurium and the same is referred to larger bench, as such, it has no application would not merit any consideration. With regard to contention that it is per incurium, would not lie before this Court. MUKUND DEWANGAN case as submitted by the learned counsel for the respondent/insurer is not referred to Full Bench, but it is placed before three Judges bench and the said bench has to take a decision with regard to referring the matter to the larger bench. The decision in MUKUND DEWANGAN (supra) holds the field as on this day. Therefore, I am of the view that the insurer is liable to compensate the claimants. The liability fixed on respondent No.1/owner of the tempo traveler is shifted on the respondent/insurer. Thus, point No.4 is answered in the negative.
15. Further, the claimants No.1 and 2 are parents of the deceased who have lost love and affection of their daughter aged 19 years. As such, they would be entitled for compensation towards filial consortium of Rs.40,000/- each, in view of the decision of the Hon'ble Apex Court reported in 2018 ACJ 2782 in the case of MAGMA GENERAL INSURANCAE COMPANY LIMITED v/s NANU RAM AND OTHERS. Thus, point No.5 is answered in the affirmative.
16. Thus the claimants would be entitled to following modified compensation:
1. Loss of dependency including future prospects 5000 + 40% = 7000-50% = 3,500
17. Accordingly, the appeal is allowed in part. The judgment and award dated 29.09.2014 in MVC No.221/2008 on the file of the Motor Accident Claims Tribunal, Arkalgud is modified to the above extent. The claimants are entitled to compensation of Rs.8,66,000/- as against Rs.3,45,000/- with interest at the rate of 6% p.a., from the date of petition till realization, thereby the claimants would be entitled to enhanced compensation of Rs.5,21,000/-.
The second respondent/insurer is liable to compensate the claimants and is directed to deposit the award amount within six weeks, from the date of receipt of a copy of this judgment.
The apportionment and deposit would be as ordered by the Tribunal.
mpk/-* CT:bms Sd/-
JUDGE