IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A.No.903/2012 (MV) BETWEEN:
1. RAJASHEKAR C.R. AGED ABOUT 47 YEARS S/O. RAJANNA 2. PUTTALAKSHMAMMA AGED ABOUT 40 YEARS W/O. RAJASHEKAR BOTH ARE RESIDENTS OF 4TH CROSS, BASAVESHWARA EXTENSION KYATHASANDRA TUMKUR. … APPELLANTS (BY SRI. N. KRISHNOJI RAO, ADVOCATE FOR SRI. B. PRAMOD, ADVOCATE) AND:
1. SHAKEER HUSSAIN AGED ABOUT 47 YEARS S/O. IBRAHIM KYAR R/AT GUNDI HOUSE KODANGAL MUDABIDARE MANGALURU DISTRICT.
2. THE BRANCH MANAGER SRI RAM GENERAL INSURANCE COMPANY LIMITED BRANCH OFFICE NO.5 3RD FLOOR, MONARCH CHAMBERS OPP: INFANTRY WEDDING HALL INFANTRY ROAD BENGALURU-560 001. ... RESPONDENTS (BY SRI. B.C. SHIVANNE GOWDA, ADVOCATE FOR R2 R1 NOTICE HELD SUFFICIENT VIDE ORDER DATED 09.04.2014) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 21.11.2011 PASSED IN MVC.NO.1004/2010 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT-II, TUMKUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This Miscellaneous First Appeal is filed challenging the judgment and award passed in MVC No.1004/2010 dated 21.11.2011, questioning the fastening of the liability on the insured and also the quantum of compensation, on the file of II Fast Track Court, Tumkur.
2. Brief facts of the case:
It is the case of the claimants that the son of the claimants was riding bicycle on the left side of Hagalavadi Road and when he reached Doddaiahnakatte of C.N.Hally Taluk, at that time a Lorry bearing Registration No.KA-20- 9242, driven by its driver in a rash and negligent manner dashed against the deceased. As a result, the deceased fell down on the road and the wheel of the lorry ran over his head and he died on the spot. It is the claim of the claimants that the deceased was aged 19 years and was doing a Coolie work by earning Rs.6,000/- per month. They spent for funeral obsequies and for transportation and on account of death of the deceased, they suffered monetary loss. Hence, they claimed the compensation of Rs.10,00,000/- with interest at the rate of 12% per annum.
3. In pursuance of the service of notice, both respondents appeared through their counsel and filed separate written statements. The first respondent in his written statement contended that the address, age, occupation and also the income of the deceased is not known to him. Hence, the claimants have to prove the same. The second respondent in the written statement has contended that the vehicle was insured and the insurance was in force as on the date of the alleged accident, but the liability to pay the compensation would be subject to the terms and conditions of the policy. The second respondent further denied the involvement of the vehicle in the accident and contended that the compensation claimed is exorbitant. The second defendant also took the defense that there is a carelessness and negligence on the part of the deceased in moving his bicycle in a zigzag manner and hence, prayed the Court to dismiss the claim petition.
4. The claimants, in order to substantiate their claim, have examined one witness as PW.1 and got marked documents Exs.P1 to P10 and also examined another witness as PW.2. On the other hand, the respondents have examined RWs.1 and 2 and marked documents Exs.R1 and R2. The Tribunal, after considering both oral and documentary evidence, allowed the claim petition and granted a compensation of Rs.6,65,000/- with interest at the rate of 6% per annum. The Tribunal has fastened the liability on the first respondent-insured and dismissed the claim petition against the Insurance Company on the ground that there was no permit.
5. Being aggrieved by the judgment and award passed by the Tribunal, the claimants in the appeal have contended that the Tribunal has committed an error in taking the income of the deceased at Rs.3,000/- per month and also in not taking the future prospects. Hence, the compensation awarded by the Tribunal is very meager. It is the further contention of the appellants that the compensation awarded under the other conventional heads is also very meager. Hence, it requires interference of this Court. It is further contended by the appellants’ counsel that the Court below has committed an error in fastening the liability on the insured instead of Insurance Company. Hence, the same has to be modified.
6. On the other hand, learned counsel appearing for the respondents would contend that though the Tribunal has rejected the claim of the claimants that the income of the deceased was Rs.6,000/- per month, but while calculating the ‘loss of dependency’ has taken his monthly income at Rs.3,000/- and awarded a compensation of Rs.6,48,000/- towards ‘loss of dependency’. Learned counsel would further contend that the income taken by the Tribunal is on the higher side. Since the accident is of the year 2010, the notional income would be less than Rs.6,000/- per month and the same has to be reconsidered. It is further contended that the Tribunal has not awarded any compensation towards ‘future prospects’ and also not considered the principles laid down in the recent judgment of the Hon’ble Apex Court, the deceased is not a permanent employee and he was working as a Coolie in an unorganized sector and the same has to be taken note of.
7. Having heard the appellants’ counsel as well as counsel appearing for the respondents, the points that arise for consideration of this Court are:-
1. Whether the Tribunal has committed an error in fastening the liability on the insured instead of Insurance Company and it requires interference of this Court?
2. What order?
8. Point Nos.1 and 2:- There is no dispute with regard to the accident is concerned and the only dispute before this Court is with regard to the quantum of compensation and also the liability. The claim of the claimants before the Tribunal is that the deceased was working as a Coolie and was drawing an amount of Rs.6,000/- per month. On perusal of the judgment and award of the Tribunal, the Tribunal did not accept the evidence of the claimant that he was earning Rs.6,000/- per month, but while calculating and awarding the compensation, has taken 50% of the income at Rs.3,000/- and arrived at a sum of Rs.6,48,000/- towards ‘loss of dependency’. It is to be noted that in the absence of any documentary proof with regard to the occupation and income of the deceased, it is settled law that the Court has to take notional income. Admittedly, the accident has taken place in the year 2010 and the notional income for the year 2010 is Rs.5,500/-per month and the same has to be taken into consideration. The Tribunal, while calculating the ‘loss of dependency’ did not take into consideration the future prospects and hence, the same has to be considered. By taking the income of the deceased at Rs.5,500/- per month and by adding 40%, it comes to Rs.7,700/-. Since the deceased is a bachelor, 50% has to be deducted and after deducting the same, it comes to Rs.3,850/- (Rs.3850X12X18=Rs.8,31,600/-). Hence, the loss of dependency is Rs.8,31,600/- as against Rs.6,48,000/-.
9. On perusal of the judgment and award of the Tribunal, an amount of Rs.10,000/- has been awarded towards love and affection and an amount of Rs.2,000/- has been awarded towards transportation and an amount of Rs.5,000/- has been awarded towards funeral expenses, in all granted only an amount of Rs.17,000/-. In view of decision of the Hon’ble Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680, since he is a bachelor, an amount of Rs.30,000/- is to be awarded against Rs.70,000/-.
10. The other contention of the claimants is that the Tribunal has committed an error in fastening the liability on the insured but ought to have fastened the liability on the Insurance Company. There is a force in the contention of the appellants’ counsel and it is also the settled law that even in the absence of permit, the liability has to be fastened on the Insurance Company in view of the decision of the Hon’ble Apex Court in the case of AMRIT PAUL SINGH & OTHERS VS. TATA AIG INSURANCE COMPANY LTD., & OTHERS reported in AIR 2018 SC 2662. Hence, the same has to be modified.
11. In view of the discussion made above, the judgment and award passed by the Tribunal requires interference of this Court and accordingly, the same is modified. Hence, I pass the following :-
ORDER (i) The appeal is allowed in part.
(ii) The judgment and award of the Tribunal passed in MVC No.1004/2010 dated 21.11.2011 on the file of the Fast Track Court-II, Tumkur is modified granting a compensation of Rs.8,61,600/- with interest at the rate of 6% per annum as against Rs.6,65,000/-.
(iii) The liability is fastened on the Insurance Company instead of insured.
(iv) The Insurance Company is directed to pay the compensation awarded within 8 weeks from today and the Insurance Company is given liberty to pay and recover the amount.
Sd/- JUDGE PYR