IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2019 PRESENT THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA AND THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM MFA NO.3994/2012(MV) C/W MFA NO.630/2012(MV) IN MFA NO.3994/2012 BETWEEN:
RELIANCE GENERAL INSURANCE COMPANY LIMITED, NO.3, I FLOOR, NORTH WING, MAHANANDI PLAZA, ST. MARKS ROAD, NOW AT NO.28, 5TH FLOOR, EAST WING, CENTENARY BUIDLING, M G ROAD, BANGALORE-560 001 REPRESENTED BY ITS LEGAL ZONAL MANAGER.
...APPELLANT (BY SRI.H.S.LINGARAJU, ADVOCATE) AND:
1. D KAVITHA NOW AGED ABOUT 27 YEARS, W/O LATE ANBU 2. A ANUSHA NOW AGED ABOUT 12 YEARS, D/O LATE ANBU 3. POOVARASAN NOW AGED ABOUT 10 YEARS, D/O LATE ANBU 4. A SANJAY NOW AGED ABOUT 8 YEARS, S/O LATE ANBU (RESPONDENT NOS.2 TO 4 SINCE MINOR REPRESENTED BY THEIR MOTHER/SMT D.KAVITHA/ RESPONDENT NO.1 HEREIN) ALL ARE R/O NO.756-2, MUNESHWARANAGAR, LAGGERE, BANGALORE-560008 5. ANWAR BAIG, MAJOR S/O PYAARYSAB NO.9/1, 1ST MAIN, NEXT TO HUSNA MASJID SRK GARDEN, JAYANAGAR BANGALORE-560 041 ...RESPONDENTS (BY SRI.K R MURALIKRISHNA, ADVOCATE FOR R1-R4; V/O DATED 10.04.2015, NOTICE TO R5 IS HELD SUFFICIENT) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:28.09.2011 PASSED IN MVC NO.3251/2010 ON THE FILE OF XVI ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT, BANGALORE, AWARDING A COMPENSATION OF RS.7,55,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL PAYMENT.
IN MFA NO.630/2012 BETWEEN:
1. SMT. D.KAVITHA W/O LATE ANBU, AGED ABOUT 26 YEARS 2. KUM A ANUSHA, D/O LATE ANBU, AGED ABOUT 11 YEARS 3. MASTER. A. POOVARASAN, S/O LATE ANBU, AGED ABOUT 9 YEARS 4. MASTER. A.SANJAY, S/O LATE ANBU, AGED ABOUT 7 YEARS SINCE APPELLANT 2 TO 4 ARE MINORS THEY ARE REPRESENTED BY THEIR NATURAL GUARDIAN & MOTHER THE FIRST APPELLANT HEREIN ALL ARE RESIDING AT #756-2, MUNESHWARA, LAGGERE, BANGALORE – 560008.
...APPELLANTS (BY SRI.K.R.MURALI KRISHNA, ADVOCATE) AND:
1. M/S RELIANCE GENERAL INSURANCE CO.LTD., NO.3, I FLOOR, NORTH WING, MAHANDI PLAZA, ST. MARK’S ROAD, BANGALORE – 560001.
REPRESENTED BY ITS MANAGER.
2. MR. ANWAR BAIG, S/O PYAARY SAAB, NO.9/1, I MAIN, NEXT TO HUSNA MASJID, SRK GARDEN, JAYANAGARA, BANGALORE – 560041.
…RESPONDENTS (BY SRI.H.S.LINGARAJ, ADVOCATE FOR R1;
V/O DTD: 10.04.2015 NOTICE TO R2 DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF THE MV ACT AGAINST THE JUDGMENT AND AWARD DATED:28.09.2011 PASSED IN MVC NO.3251/2010 ON THE FILE OF THE XVI ADDITIONAL JUDGE, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the judgment and award dated 28.9.2011 passed by the Motor Vehicles Accident Claims Tribunal, Bengaluru City (SCCH-14), in MVC.No.3251/2010, both the Insurance Company and the claimants have preferred these appeals.
2. Though these matters are listed for admission, with the consent of the learned counsel appearing for the respective parties, the matters are taken up for final disposal.
3. The claimants filed the claim petition before the Tribunal contending that on 27.3.2010 at about 11.00 p.m., the deceased Anbu, who was working as an additional driver in a lorry bearing No.MH-04-DK-377 on the instructions of respondent No.2 was unloading the jelly stones. At that time, the driver of the offending lorry without giving any signal or not caring to the fact of the deceased standing behind the lorry to assist the driver to park it in a convenient place to unload jelly, proceeded to unload the jelly without taking due care and caution. As a result of the same, the deceased Anbu was struck under the heap of uploaded jelly stones and died out of suffocation. The claimants claimed that the deceased was earning Rs.10,000/- per month and as such claimed compensation of Rs.20 lakhs.
4. The Insurance company-first respondent before the Tribunal contested the claim petition and stoutly denied the averments made in the claim petition and took a specific contention that the death of the deceased was on account of suffocation and not on account of road traffic accident and hence prayed to dismiss the same. They also specially denied the age, avocation and income of the deceased.
The Tribunal on appreciation of evidence on record proceeded to record finding that the petitioners proved the accident in question and that the deceased Anbu succumbed to the injuries sustained in the said accident. Further, though there is no evidence to indicate that the deceased was working as an additional driver, the Tribunal by taking the notional income of the deceased at Rs.6,000/- per month proceeded to award 7,20,000/- towards loss of dependency and Rs.30,000/- towards other conventional heads. Thus, awarded total compensation of Rs.7,55,000/- with interest at 6% per annum from the date of petition till the date of payment and directed respondents 1 and 2 before the Tribunal to pay the compensation amount jointly and severally. Being aggrieved by the same, the insurance company has preferred appeal in MFA.No.3994/2012 and the claimants have preferred appeal in MFA.No.630/2012.
5. The counsel for the Insurance Company contended that the Tribunal has erred in fastening the liability on it since the risk of the additional driver is not covered under the policy in question. He would further argue that the Tribunal had no jurisdiction to decide the claim and it was the Commissioner for Workmen’s Compensation who had jurisdiction to adjudicate the claim.
6. Per contra, the counsel for the respondents- claimants would support the judgment and award of the Tribunal insofar as the jurisdiction of the Tribunal in entertaining the claim petition and fastening the liability on the insurance company is concerned. Insofar as quantum of compensation awarded is concerned, he would argue that the compensation determined by the Tribunal is inadequate and warrants interference by this Court to enhance the same.
7. Having heard learned counsel appearing for the respective parties and on re-appreciation of the entire material on record we are of the view that the finding of the Tribunal that it had jurisdiction to adjudicate the claim petition does not warrant any interference by this Court and as such the contention of the counsel appearing for the Insurance company in this regard is not sustainable. The Tribunal having examined the material on record has not accepted the contention of the claimants that the deceased was proceeding in the lorry as an additional driver. Having negatived the above said contention, the Tribunal has proceeded to hold that the deceased has to be treated as a Coolie who was trying to unload the jelly. The Tribunal having meticulously examined the policy issued by the Insurance Company as Ex.P1 has observed that the Insurance Company has collected the additional premium covering the risk of two persons other than the driver. In this background, the Tribunal having examined the material on record and the policy produced by the Insurance company has rightly proceeded to hold that in view of the premium collected to cover the additional risk under the policy, the Insurance company is liable to pay the compensation. This finding does not suffer from any infirmities and hence the contentions in regard to liability raised by the Insurance company are not sustainable. Accordingly, the appeal filed by the Insurance Company is liable to be dismissed.
8. Insofar as the quantum of compensation determined by the Tribunal, the counsel for the appellant argued that the deceased was earning Rs.10,000/- per month and as such the Tribunal was not justified in taking the income of the deceased at Rs.6,000/- per month. To substantiate the same the claimants have not adduced any clinching evidence. In the absence of the documentary evidence, the Tribunal was justified in treating the deceased as Coolie and the income taken at Rs.6,000/- per month by the Tribunal is just. In that view of the matter, the compensation determined under the head loss of dependency at Rs.7,20,000/- is fair and just and would not warrant any interference by this Court. Further, the amount awarded under other conventional heads is also just and reasonable. On re-appreciation of the evidence on record, we are of the view that the compensation determined by the Tribunal is fair and just as such the appeal filed by the claimants also deserves to be dismissed.
9. In the light of the aforesaid conclusion arrived at, the appeals filed by the claimants and the Insurance Company in MFA.No.630/2012 and MFA.No.3994/2012 are dismissed. No orders as to costs.
Sd/- JUDGE Sd/- JUDGE *alb/