1 ® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 5545 OF 2015 (MV) BETWEEN 1. R. Saraswathi @ Saraswathamma W/o Late L Balaraj Aged about 30 years 2. Master B. Puneeth Kumar S/o Late L Balaraj Aged about 11 years 3. Kumari B. Bhagyalakshmi D/o Late L Balaraj Aged about 9 years 4. Smt. Neelamma @ Neelammal W/o Lakkappa Aged about 52 years 5. Lakkappa @ Lakkappan S/o Late Balappa Aged about 57 years Appellant Nos. 1 to 3 are residing at Iggalur Village, Anekal Taluk Bangalore District.
Appellant Nos.4 and 5 are residing at No.1/28 A, Rathanagiri (P) & (V) Dharmapuri, Tamilnadu.
Since the Appellants No.2 and 3 are Minors rept. By their mother 1st Appellant as Natural guardian.
... Appellants (By Sri. N. Gopalkrishna for Sri Sreenivasaiah. A – Advocates for Appellants) AND 1. M. Shivakumar S/o Muthu No. 1055, Munireddy Building Raghavendra Layout, Yadavanahalli Bommasandra Indl. Estate Anekal Taluk Bangalore – 562158.
2. The Manager The New India Assurance Co. Ltd., D.O.:3, No.9/2 Mahalakshmi Chambers 2nd Floor, M.G. Road Bangalore – 560 001.
... Respondents (By Sri. S.V. Hegde Mulkhand - Advocate for R-2;
Vide order dated 16.02.2018, notice to R-1 held sufficient) This MFA is filed u/s 173(1) of MV Act against the judgment and award dated 29.06.2015 passed in MVC No. 649/2013 on the file of the VIII Additional Small Causes Judge and XXXIII ACMM, Member-MACT, Bangalore, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA coming on for final hearing this day, the court delivered the following:
JUDGMENT Though this appeal is listed for admission, with the consent of learned counsel on both sides, the matter is taken up for final disposal.
2. This appeal is directed against the judgment and award dated 29.06.2015 rendered by the MACT, Bangalore, in MVC No.649/2013 seeking enhancement of compensation, wherein the Tribunal has awarded compensation of Rs.11,80,000/- with interest @ 6% p.a.
3. The factual matrix of the appeal is that on 30.12.2012 at about 8.30 a.m., when deceased L.Balaraj was proceeding as a pedestrian from Thirumagondanahalli Village, Hosur – Bangalore NH Service Road, at that time, JCB Crane bearing Reg.No.KA-51-N-9005 being driven by its driver in a rash and negligent manner, had struck him. Due to the said impact, deceased – L.Balaraj fell down and sustained fatal injuries and succumbed at the spot. The accident occurred due to rash and negligent driving of JCB crane driver. The deceased was earning Rs.500/- to Rs.600/- per day by working as a Mason and due to his untimely death, the petitioners being the dependants have lost their bread earner of the family. The jurisdictional police have registered case in Cr.No.685/2012. On all these grounds, the petitioners filed the claim petition before the Tribunal seeking compensation.
4. After service of notice, first respondent – owner did not appear and he was placed exparte throughout the proceedings. Second respondent – insurer entered appearance through its counsel and filed objections, denying the petition averments and sought for dismissal of the claim petition.
5. Based upon the pleadings of the parties, the Tribunal framed the issues for its consideration. In order to substantiate their case, first claimant got examined herself as PW.1, the retired DSP at Wilson Garden was examined as PW.2 and documents as per Ex.P1 to P11 were marked. On behalf of respondents, RW.1 and RW.2 were examined and Exs.R1 to R6 were got marked. After hearing arguments advanced by learned counsel for the parties and on appreciation of oral and documentary evidence on record, the Tribunal passed the impugned judgment, awarding compensation of Rs.11,80,000/- with interest @ 6% p.a. from the date of petition till realisation. The petition against second respondent – insurer was dismissed and the entire liability was fastened on the first respondent being the owner. Hence, this appeal by the claimants on various amongst other grounds.
6. Learned counsel for the appellants contends that the Tribunal ought to have fastened the liability on the insurer holding that there is valid and effective driving licence to drive the offending vehicle. Further, he contends that the Tribunal has erred in considering that the burden is heavily on the insurance company to prove that there is violation of policy condition. But the Tribunal considered the contention of the insurance company as a gospel truth and failed to notice that there is a transport authority which is authorised to say about the validity of the driving licence.
7. Further, it is contended that the Tribunal ought to have taken higher multiplier than 16, since the age of deceased was 30 years. Further, the Tribunal ought to have considered the future prospects considering the age of deceased as 30 years and was managing his family with wife, children and parents. On all these grounds, learned counsel for the appellants seeks for enhancement of compensation by allowing the present appeal.
8. Per contra, Sri S.V.Hegde Mulkhand, learned counsel for the insurance company contends that the accident did not occurred due to the negligence of the driver of the offending vehicle, but only due to the fault of the deceased. However, the issuance of policy is admitted. He further contends that the driver had no valid driving licence to drive the Crane and the insured has violated the policy conditions, hence, the insurance company is not liable to pay the compensation.
9. It is further contended that PW.2 – Venkat shetty, was the IO, and he has registered crime. He has specifically deposed about the incident and conducting investigation after obtaining further investigation of his sub-ordinate. PW.2 admits that he has filed charge sheet as per Ex.P.3(a) but not as per Ex.P.3. For this he has offered explanation that the printout has been obtained in the office without verifying the particulars of this case about Ex.P3, but submitted charge sheet as per Ex.P3(a). It is contended that RW.2 in his evidence has deposed that the vehicle itself was not involved in the incident, it has been falsely implicated only in order to make false claim.
As per Ex.P3, the IO has filed charge sheet which is a fabricated one, though some other person was accused as per Ex.P3. Even as per Ex.P10 – driving licence was not effective as on the date of the accident. Further, learned counsel contends that there is inconsistency and contradictions relating to the charge sheet filed by the IO as per Ex.P3 and Ex.P3(a). PW.2 – IO who conducted the investigation about the incident, in his evidence has stated that Ex.P3 is a mistake which is not actual charge sheet and Ex.P3(a) is the charge sheet filed before the Court. But in the cross-examination he admits his signature on Ex.P3(a) but denies his signature on Ex.P3. In his evidence he states that Ex.P3 is pertaining to the same crime number but he is not aware of the driver and one Shankar s/o Saravana is the driver but as per Ex.P3(a) one Shivakumar who is the owner cum driver of the offending vehicle is arraigned as respondent. Under the circumstances, the Tribunal has accepted the evidence of IO and that he filed charge sheet only as per Ex.P3(a).
Further, learned counsel contends that the charge sheet filed by the IO is a false one, concocted just to make the claim and the IO has facilitated by implicating the accused. He further contends that on considering all these grounds, the Tribunal has rightly fastened the liability on the owner of the offending vehicle and awarded just and fair compensation which does not call for interference of this Court. .
10. Learned counsel for the insurer in support of his contention has relied on a decision of this Court reported in Bajaj Allianz General Insurance Co.Ltd. vs. B.C.Kumar and another (2010 ACJ 1667) wherein it is held that “transformation of self accident of hitting roadside tree to an accident involving another insured vehicle in order to claim compensation from insurance company – driver of insured vehicle pleaded guilty before the criminal court and was convicted. Further it was held that the Tribunal has to assess the evidence before it independent of any finding of the criminal court and the claim petition was dismissed.”
11. Having regard to the strenuous contentions as taken by the learned counsel for the appellants and so also, learned counsel for the respondent - insurer, it is relevant to state that it is not in dispute that deceased L.Balaraj succumbed to the fatal injuries in a road traffic accident due to the actionable negligence on the part of the driver of the offending JCB Crane bearing Regn.No.KA-51- N-9005. Claimants are the wife, children and parents of deceased L.Balaraj. PW.1 being the wife deceased, in her evidence has reiterated the petition averments. In support of her claim she has produced Ex.P1 – FIR with complaint, Ex.P2 – Mahazar, Ex.P3 – Spot sketch, Ex.P3 – charge sheet, Ex.P3(a) – charge sheet, Ex.P4 – IMV report, Ex.P5 – PM report, Ex.P6 – inquest panchanama, Ex.P6(a) – copy of inquest, Ex.P10 – driving licence. Respondents in support of their contentions have produced Ex.R-1 – authorization letter, Ex.R2 – policy, Ex.R3 - charge sheet, Ex.R4 – B extract.
12. PW.2 is the Investigating Officer who conducted investigation. He has stated that he obtained P.M. report of the deceased and recorded statement of family members and issued notice under Section 133 of IMV Act, and on receiving the reply, he filed charge sheet as per Ex.P3(a). But this witness states that Ex.P3 is a mistake which is not actual charge sheet and he has not signed Ex.P3 but Ex.P3(a) is the charge sheet which is filed before the Court. Ex.P3(a) is disputed by the insurance company stating that it is created for the purpose of claiming compensation and the investigating officer has facilitated by the implicating the accused. As per Ex.P3(a) one Shivakumar, the owner cum driver of the vehicle has been arraigned as accused. Two charge sheets have been produced by the petitioner and among that Ex.P3 is the charge sheet which is not signed by the IO and Ex.P3(a) is the charge sheet which bears the signature of the IO. Though there were some inconsistencies and contradictions as contended by the learned counsel for the respondent insurer, but however, the Tribunal has rightly considered Ex.P3(a) which is signed by the IO and accordingly, held that the petitioners have proved the accident in question which occurred due to the actionable negligence on the part of the driver of offending JCB Crane, as a result of which deceased L.Balaraj succumbed to the fatal injuries sustained on his person. The facts and circumstances in the decision relied on by the learned counsel for the insurer is entirely different from the case on hand and the same cannot be made applicable, since that case was a transformation of self accident of hitting roadside tree to an accident involving another insured vehicle in order to claim compensation from insurance company where the petitioner was injured. But the present claim petition is filed for death of one L.Balaraj and, the petitioners are the claimants. The dispute is only regarding to the filing of charge sheet. PW.2 being the investigating officer has specifically stated that Ex.P3(a) is the charge sheet filed by him and not Ex.P3 and he also offers explanation that the printout has been obtained in the office without verifying the particulars of this case about Ex.P3 and the same has been accepted by the Tribunal. On going through inquest mahazar and also relevant documents placed by both sides, it is evident from spot sketch that L.Balaraj succumbed due to the actionable negligence on the part of the driver of the offending Crane. I find no justifiable ground to interfere with the findings given by the Tribunal on this issue.
13. Deceased – L.Balaraj is said to be working as a Mason and earning Rs.500/- to 600/- per day. Having regard to the avocation of the deceased and so also the year of accident, the Tribunal has rightly assessed the notional income of the deceased at Rs.7,000/- p.m. and multiplier of ‘16’ has been rightly applied. Further, as per the decision of Hon’ble Apex Court in National Insurance Co.Ltd vs. Pranay Sethi (AIR 2017 SC 5157), 40% of future prospects is to be added to the income of the deceased. Accordingly, the compensation towards loss of dependency is re-worked out as under:
Rs.14,11,200/- towards loss of dependency as against Rs.9,60,000/- awarded by the Tribunal.
14. Further, as per the law laid down by the Hon’ble Apex Court in Pranay Sethi’s case as stated supra, the compensation under the conventional heads shall not exceed Rs.70,000/-. But the Tribunal has awarded compensation in all a sum of Rs.2,20,000/- under the conventional heads. Accordingly, the same is scaled down to Rs.70,000/-.
15. In a judgment rendered by the Hon’ble Apex Court in Magma General Insurance Co.Ltd v. Nanu Ram reported in 2018 SCC Online SC 1546, it is held as under:
“8.7 A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is Loss of Consortium.
In legal parlance, “consortium” is a compendious term which encompasses ‘spousal consortium’, ‘parental consortium’, and ‘filial consortium’.
The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse.
Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of “company, society, co-operation, affection, and aid of the other in every conjugal relation.
Parental consortium is granted to the child upon the premature death of a parent, for loss of “parental aid, protection, affection, society, discipline, guidance and training.”
Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. an accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.
Consortium is a special prism reflecting changing norms about the status and worth of actual relationships.
Modern jurisdictions world-over have recognized that the value of a child’s consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. the amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.
The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial consortium.
Parental consortium is awarded to children who lose their parents in motor vehicle accidents under the Act.”
16. Keeping in view the observations made in the said ruling, it is relevant to state that in the present appeal, the claimants are the wife, two minor children and parents of deceased L.Balaraj. The deceased was aged 32 years at the time of accident. The minor children have lost the aid, protection, affection, society, discipline, guidance and training of their father at their tender age. Therefore, a sum of Rs.40,000/- each is awarded to claimant nos.2 and 3 towards parental consortium and a sum of Rs.40,000/- each, is awarded to claimant nos.4 and 5, being the parents of the deceased towards filial consortium for having lost love, affection and companionship of their son and it is the greatest agony for a parent to lose their son during their lifetime.
17. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Particulars Compensation awarded by MACT Compensation by this Court
Funeral, rituals and conveyance Loss of filial consortium Loss of parental consortium Total 11,80,000 16,41,200 Thus, in all, the claimants are entitled to total compensation of Rs.16,41,200/- as against Rs.11,80,000/- awarded by the Tribunal and the enhanced compensation would be Rs.4,51,200/-.
18. The Tribunal on the issue relating to liability, has dismissed the petition against respondent- insurance company and fastened the entire liability on the owner of the offending vehicle, holding that there is violation of policy condition and thereby, the insurer does not become liable to indemnify the owner of the offending vehicle in making payment of the compensation.
19. This issue has been answered by the Apex Court against the insurer in the case of Pappu and Others Vs. Vinod Kumar Lamba and Another (AIR 2018 SC 592) wherein it is held that as under:
“S.149 – Insuser’s liability – Accident occurred due to rash and negligent driving of truck – insurer taking plea that driver of offending truck had no valid licence – except copy of driving licence of person, owner of offending truck not producing any evidence establishing that it was driven by authorised person having valid driving licence – fact that offending truck was duly insured – would not per se make insurance company liable – however, insurance company directed to pay award amount to claimants in first instance and in turn, recover same from owner of vehicle.”
20. In view of the judgment of Hon’ble Apex Court in Pappu’s case referred to supra, the liability has to be fastened on the insurer subject to the principle of pay and recover. The Apex Court in the said judgment has held that insurance company can be fastened with liability on the basis of valid insurance policy and negatived the contention of insurer that no liability can be levied on it, when the driver of the offending vehicle lacks a valid driving licence. Insurance company was directed to pay award amount to the claimants in first instance and in turn, recover the same from the owner of the vehicle.
For the reasons and findings as stated above, I proceed to pass the following:
ORDER The appeal filed by the appellants/claimants is allowed in part. The appellants/claimants are entitled for enhanced compensation of Rs.4,61,200/- with interest @ 6% p.a. from the date of petition, till realisation. The impugned judgment and award dated 29.06.2015 passed by the Tribunal in MVC No.649/2013, is modified accordingly.
Respondent - Insurance Company shall deposit the entire compensation along with the compensation enhanced by this Court and the interest accrued thereon, within a period of four weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be disbursed to the claimants, on proper identification. However, the impugned judgment and award, in so far as it relates to apportionment and deposit is concerned, shall remain unaltered.
It is open to the respondent – insurer to execute this judgment for recovering the amount of compensation from the insured – owner of the offending vehicle after depositing the award amount in terms of the decisions of the Apex Court stated supra.
Office to draw the decree accordingly.
Sd/- JUDGE DKB