IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL MISCELLANEOUS FIRST APPEAL No.7843/2011 (MV) C/W MISCELLANEOUS FIRST APPEAL No.7801/2011 (MV) IN MFA No.7843/2011:
BETWEEN:
SMT.RAJALAKSHMI W/O LATE SUDHARSHAN SHASTRI AGED ABOUT 46 YEARS R/AT SHANKARMUTH ROAD MALEBENNUR, HARIHAR TALUK DAVANAGERE DISTRICT – 577 530 … APPELLANT (BY SRI PRABHUSWAMY N., ADVOCATE FOR SRI V.B.SIDDARAMAIAH, ADVOCATE) AND:
1. THE DIVISIONAL MANAGER THE RELIANCE GENERAL INSURANCE CO. LTD., NO.56, 1ST FLOOR, MISSION ROAD BANGALORE – 560 027 REP. BY ITS DIVISIONAL MANAGER 2. SRI SRINATH @ T.SRINATHA RAO S/O T.MOHAN RAO AGED ABOUT 37 YEARS 4TH CROSS VINOBHANAGAR DAVANAGERE – 577 001 … RESPONDENTS (BY SRI H.C.BETSUR, ADVOCATE FOR R1;
SERVICE OF NOTICE TO R2 IS HELD SUFFICIENT VIDE ORDER DATED 11.01.2016) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 03.06.2011 PASSED BY THE COURT OF SENIOR CIVIL JUDGE & MACT, HARIHARA IN MVC NO.655/2008 AND SEEKS ENHANCEMENT OF COMPENSATION.
IN MFA No.7801/2011:
BETWEEN:
1. SMT.RAJALAKSHMI W/O LATE SUDHARSHAN SHASTRI AGED ABOUT 46 YEARS 2. SMT.VENKAMMA W/O H.ANANTARAM SHASTRI AGED ABOUT 68 YEARS BOTH ARE R/AT SHANKARMUTH ROAD MALEBENNUR, HARIHAR TALUK DAVANAGERE DISTRICT – 577 530 …APPELLANTS (BY SRI PRABHUSWAMY N., ADVOCATE FOR SRI V.B.SIDDARAMAIAH, ADVOCATE) AND:
1. THE RELIANCE GENERAL INSURANCE CO. LTD., NO.56, 1ST FLOOR, MISSION ROAD BANGALORE – 560 027 REP. BY ITS DIVISIONAL MANAGER 2. SRI SRINATH @ T.SRINATHA RAO S/O T.MOHAN RAO AGED ABOUT 34 YEARS 4TH CROSS VINOBHANAGAR DAVANAGERE – 577 001 … RESPONDENTS (BY SRI H.C.BETSUR, ADVOCATE FOR R1; R2 SERVED AND UNREPRESENTED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 03.06.2011 PASSED BY THE COURT OF SENIOR CIVIL JUDGE AND MACT, HARIHAR IN MVC NO.657/2008 AND SEEKS ENHANCEMENT OF COMPENSATION.
THESE MFAs COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T These two claimants appeal arise out of common judgment and award dated 03.06.2011 passed by the Senior Civil Judge, MACT, Harihar in MVC No.655/2008 and MVC No.657/2008.
2. Appellant in MFA No.7843/2011 was claimant in MVC No.655/2008 and appellants in MFA No.7801/2011 were claimants in MVC No.657/2008. Respondent No.1/Insurer was respondent No.2 and respondent No.2/owner was respondent No.1 in those claim petitions.
3. For the purpose of convenience, parties will be henceforth referred to with their ranks before the Tribunal.
4. On 13.05.2008 at about 12.30 p.m. when claimant Rajalakshmi and her husband Sudharshan Shastri were proceeding on motor cycle of Sudharshan Shastri near Khargi Estate on Horanadu Balehonnur Road, N.R.Pura Taluk, Indica car bearing No.KA-17-A-2986 driven by respondent No.1 hit the motor cycle of Sudharshan Shastri and caused the accident. In the accident Sudharshan Shastri and Rajalakshmi suffered injuries. Sudharshan Shastri was shifted to Government hospital, Balehonnur and thereafter to Apoorva Hospital, Davanagere. He succumbed to the said injuries on 21.05.2008.
5. MVC No.655/2008 was filed by Rajalakshmi claiming compensation for personal injuries suffered by her in the accident. MVC No.657/2008 was filed by Rajalakshmi and Venkamma the wife and mother of deceased Sudharshan Shastri claiming compensation for his death in accident.
6. Respondent Nos.1 and 2 contested the petition.
On trial, the Tribunal held that the accident was due to rash and negligent driving of the vehicle by respondent No.1. None of the respondents have challenged the said findings. Therefore, findings with regard to rashness and negligence of respondent No.1 and occurrence of accident has attained finality.
7. The Tribunal further held that at the time of accident, respondent No.1 was holding licence to drive light motor vehicle non transport and therefore, there is breach of policy condition and respondent No.2 insurer is not liable to pay compensation and passed award against respondent No.1-owner. Claim petitions against insurer-respondent No.2 were rejected.
8. The Tribunal in MVC No.655/2008 held that the injured Rajalakshmi did not examine the doctor to prove fracture or disability and awarded following compensation:
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No.
Particulars Amount in Rs.
9. In MVC No.657/2008, the Tribunal relying upon Ex.P4-Inquest mahazar and Ex.P6 post mortem report held that deceased was aged 47 years at the time of accident and in the absence of actual proof of income, notionally fixed his income at Rs.3,000/- per month. The Tribunal applied 13 multiplier and granted compensation as follows:
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No.
Particulars Amount in Rs.
10. Learned Counsel for the appellants-claimants relying upon the judgment of Hon’ble Supreme Court in Mukund Dewangan v. Oriental Insurance Company Limited [AIR 2017 SC 3668] submits that if person holding light motor vehicle non transport causes accident by driving vehicle of similar class insurer is liable to indemnify the damages.
11. Further, relying upon the judgment of the Hon’ble Supreme Court in National Insurance Company Limited vs. Pranay Sethi and others [AIR 2017 SC 5157] he submits that the Tribunal has not considered the future prospects while computing income. He further submits that compensation awarded towards loss of estate, consortium is on lower side. He further submits that computing the income of the deceased is on lower side.
12. Per contra, learned Counsel for insurer submits that owner of the vehicle has not challenged the award and therefore, award cannot be reversed so far as liability is concerned. So far as quantum of compensation, he submits that in MVC No.655/2008 claimant did not examine the doctor to prove any fracture or disability. Therefore, compensation awarded in that case is just and appropriate.
13. So far as claim in MVC No.657/2008 relating to death of Sudharshan Shastri, he submits that accident occurred in the year 2008, therefore, income considered by the Tribunal at that point of time is just and appropriate. He further submits that deceased was not having any permanent employment and therefore, no compensation for future prospects was granted. He seeks to justify the compensation awarded under other heads.
14. Regarding liability:
As per the evidence adduced by respondent No.2- insurer itself at the time of accident, respondent No.1 was holding licence to drive light motor vehicle non transport. Vehicle involved in the accident was Indica car i.e. light motor/transport vehicle. Respondent No.1 was not holding an endorsement to drive transport vehicle.
15. In Mukund Dewangan’s case referred to supra, the Hon’ble Supreme Court on reference held that if driver of offending vehicle has licence to drive a particular class of vehicle and vehicle driven by him fell into same class with only difference of not being transport vehicle, insurer is liable to indemnify the compensation. It was further held that there is no requirement to obtain separate endorsement to drive the 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.
16. In view of the ratio laid down by Hon’ble Supreme Court, the Tribunal committed error in absolving insurer of its liability to indemnify the compensation.
17. Regarding quantum of compensation in MVC No.655/2008 [MFA No.7843/2011] Claimant-Rajalakshmi contended that she suffered fracture of 4th right rib and she was hospitalized for 16 days. However, no x-ray report was produced and doctor was not examined to prove fracture or any disability. Still relying on evidence of claimant, the Tribunal granted compensation under the following heads:
Sl.
No.
Particulars Amount in Rs.
1. Pain and sufferings 15,000/-
2. Medical expenses 5,500/-
18. In absence of medical evidence, no proof of alleged fracture or disability, compensation awarded by the Tribunal to the personal injuries of the claimant in MVC No.655/2008 is just and appropriate. It does not call for interference by this Court in that regard.
19. Regarding quantum of compensation in MVC No.657/2008 [MFA No.7801/2011) At the time of accident, deceased was aged 47 years. Accident occurred in May 2008. According to claimants, deceased was working as bill collector. Even in the absence of examination of his employer, income considered at Rs.3,000/- is on lower side. It should have been at Rs.4,500/- per month. Out of said income 1/3rd of the income of the deceased has to be deducted for personal expenses.
20. Future prospects was not awarded to the claimants. As per judgment of Supreme Court in Pranay Sethi’s case referred to supra, the Tribunal ought to have added 30% to the income of the deceased towards future prospects.
21. Applying 13 multiplier, compensation payable under the head of loss of dependency comes to (Rs.4,500 x 12 x 13 x 1/3rd = 4,68,000 + 1,17,000/-
future prospects) Rs.5,85,000/-. Compensation on other heads has to be by following Pranay Sethi’s case. Therefore, it is just and proper to award compensation in MVC No.657/2008 as follows:
Sl.
No.
Particulars Amount in Rs.
1. Loss of dependency including future prospectus (4,68,000 + 1,17,000) 5,85,000/-
2. Loss of estate 15,000/-
3. Consortium 40,000/-
4. Medical expenses 30,250/-
5. Funeral Expenses 15,000/-
Total 6,85,250/-
Less -3,67,250/-
Total enhanced Compensation 3,18,000/-
22. The claimants in the said case are entitled to enhanced compensation of Rs.3,18,000/-. Therefore, both the appeals are partly allowed.
Insurer respondent No.1 in these two cases shall pay compensation of Rs.27,500/- to the claimant in MFA No.7843/2011 (MVC No.655/2008) and enhanced compensation of Rs.3,18,000/- to the claimants in MFA No.7801/2011 (MVC No.657/2008) with interest thereon at 6% per annum from the date of petition till its realization.
Award with regard to investment in fixed deposit and apportionment are maintained. Insurer shall deposit the said amount within two months from the date of receipt of copy of the award.
KSR Sd/- JUDGE