IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MISCELLANEOUS FIRST APPEAL NO.1045 OF 2015 (MV) C/W M.F.A.CROB NO.39 OF 2015 (MV) In M.F.A.No.1045 of 2015:
BETWEEN:
THE MANAGER M/S.RELIANCE GENERAL INSURANCE COMPANY LIMITED MYSURU TRADE TOWERS OPPOSITE KSRTC BUS STAND MYSURU.
REPRESENTED BY ITS MANAGER M/S.RELIANCE GENERAL INSURANCE COMPANY LIMITED # 28, EAST WING, CENTENARY BUILDING 5TH FLOOR, M.G.ROAD BENGALURU – 560 001.
…APPELLANT (BY SRI H.N.KESHAVAPRASHANTH, ADVOCATE) AND:
1. SMT.SANNAMMA W/O LATE MOTE GOWDA AGED ABOUT 77 YEARS 2. SRI BHYRAVA N C S/O SRI CHIKKAMARI ADOPTED SON OF DECEASED JAYAMMA, W/O LATE PUTTASWAMY NOW AGED ABOUT 28 YEARS.
BOTH ARE RESIDENTS OF THYLUR VILLAGE, ATHAGUR HOBLI, MADDUR TALUK, MANDYA DISTRICT – 571 401.
3. SRI HEMUKUMAR S/O SRI PUTTAPPA AMALLIDODDI VILLAGE VIRUPAKSHIPURA HOBLI CHENNAPATNA TALUK RAMANAGARA DISTRICT – 571511.
…RESPONDENTS (BY SRI K T GURUDEVA PRASAD, ADVOCATE FOR R1 AND R2; VIDE ORDER DATED 22.06.2016 SERVICE OF NOTICE TO R3 IS HELD SUFFICIENT) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 18.10.2014 PASSED IN MVC NO.1279/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE, AND MACT, MADDUR, AWARDING COMPENSATION OF RS.5,15,000/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL REALIZATION.
* * * * In M.F.A.CROB No.39 of 2015:
BETWEEN:
1. SMT SANNAMMA S/O LATE MOTEGOWDA AGED ABOUT 77 YEARS 2. SRI BHYRAVA N.C. AGED ABOUT 28 YEARS S/O SRI CHIKKAMARI ADOPTED SON OF DECEASED JAYAMMA, W/O LATE PUTTASWAMY BOTH ARE RESIDING AT THYLUR VILLAGE, ATHAGUR HOBLI, MADDUR TALUK MANDYA DISTRICT – 571 428.
…APPELLANTS (BY SRI GURUDEVA PRASAD.K.T., ADVOCATE) AND:
1. SRI HEMUKUMAR S/O SRI PUTTAPPA, MAJOR AMALLIDODDI VILLAGE VIRUPAKSHIPURA HOBLI CHENNAPATNA TALUK RAMANAGARA DISTRICT – 573 116 2. THE MANAGER RELIANCE GENERAL INSURANCE COMPANY LIMITED, MYSURU TRADE TOWERS OPPOSITE KSRTC BUS STAND MYSURU – 570 001 …CROSS OBJECTORS (BY SRI H.N.KESHAVA PRASHANTH, ADVOCATE FOR R2; R1 - SERVED) THIS MFA CROB IN MFA NO.1045/2015 FILED U/O 41, RULE 22 OF CPC, AGAINST THE JUDGMENT AND AWARD DATED 18.10.2014 PASSED IN MVC NO.1279/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT, MADDUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
M.F.A.NO.1045 OF 2015 ALONG WITH M.F.A.CROB. NO.39 OF 2015 COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The appeal in M.F.A.No.1045 of 2015 is preferred by the Insurance Company against the judgment and award dated 18.10.2014 passed in M.V.C.No.1279 of 2013 by the Senior Civil Judge and M.A.C.T., Maddur wherein the Tribunal has awarded compensation to Respondent Nos.1 and 2 in a sum of Rs.5,15,000/- with interest at 6% p.a.
2. M.F.A.CROB.No.39 of 2015 is preferred by the claimants against the judgment and award dated 18.10.2014 passed in M.V.C.No.1279 of 2013 by the Senior Civil Judge and M.A.C.T., Maddur, seeking enhancement of compensation.
3. The brief facts of the case is as under:
It is stated in the claim petition that on 21.02.2013 at about 5.30 a.m. deceased Jayamma was crossing the road in front of Anjaneyaswamy Temple at Sheshagirihalli Village, on Bengaluru-Mysuru Road. At that time, one Eicher Mini Bus bearing Reg.No.KA-42-A-8109 being driven by its driver in a very rash and negligent manner and at high speed, came from Bengaluru side and dashed against the deceased and caused the accident. Due to the impact, the said Jayamma sustained grievous and multiple injuries and died at the spot. It is contended that deceased Jayamma was doing agricultural coolie work and was earning Rs.12,000/- per month. Prior to accident, she was hale and healthy and was aged about 40 years. Claimant Nos.1 and 2 are the mother and adoptive son of the deceased and were depending upon the income of the deceased for their livelihood. Due to the untimely death of deceased Jayamma, the legal heirs have lost the earning member of the family and they have undergone great mental depression and shock. On these grounds the claim petition was filed before the Tribunal seeking suitable compensation.
4. After service of notice, Respondent Nos.1 and 2 entered appearance through their respective counsels and filed their written statement denying the entire petition averments as well as the negligence on the part of the driver of the offending bus causing the death of the deceased. The offending vehicle has been insured with the second respondent and the policy was in force as on the date of the accident. On these grounds, they 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, Smt.Sannamma said to be the mother of the deceased Jayamma was examined as PW-1 and one Revanna was examined as PW-2. Further, claimants produced Exs.P1 to P6, in support of their claim. On behalf of the respondents, RW-1 and RW-2 were examined and Exs.R1 to R3 were got marked. After hearing the 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.5,15,000/- with interest @ 6% p.a. from the date of petition till realization. It is this judgment which is under challenge in this appeal and cross- objections.
6. Sri.H.N.Keshava Prashanth, learned counsel for the insurance company has taken me through the evidence of RWs- 1 and 2 and so also the relevant documents produced on behalf of the respondents. He contended that the Tribunal has not appreciated the evidence of RWs-1 and 2 and has not considered the documents, Exs.R1 to R3 produced on behalf of the respondents. Therefore, the impugned judgment is required to be interfered with by re- appreciating the evidence in a proper perspective manner.
7. It is further contended that the Tribunal while deciding the issue of permit has specifically held that the mini bus did not had valid permit and the insured has violated the terms and conditions of the policy. When such being the fact, the Tribunal ought to have dismissed the claim petition against the insurance company and ought to have fastened the liability on the owner of the bus. But erred in not doing so. Hence, the order of pay and recovery passed by the Tribunal is erroneous and liable to be set aside. On these grounds, learned counsel for the appellant/Insurance Company seeks for intervention of the impugned judgment and to set-aside the order dated 18.10.2014 passed in M.V.C.No.1279 of 2013.
8. Sri.Gurudeva Prasad.K.T., learned counsel for the claimants contends that the Tribunal has not considered the evidence of PW-1 Sannamma said to be the mother of deceased Jayamma as she has lost her daughter who was aged 40 years. She being the source of income and is the only bread winner of the family who was earning Rs.12,000/- per month. He further contends that the accident was of the year 2013. But the Tribunal has fixed monthly income at only Rs.4,000/- per month which is highly illegal and erroneous and therefore, in this appeal, it requires to be interfered and the income has to be raised even though there is no proof of income.
9. In the context of the contentions as taken by the learned counsel for the claimants and so also, learned counsel for the insurance company, it is not in dispute that deceased Jayamma died in a road traffic accident that occurred on 21.02.2013, due to the actionable negligence on the part of the driver of the offending vehicle. The same has been indicated in Ex.P5 – Postmortem report. Ex.P3 is the spot mahazar and Ex.P1 is the chargesheet laid against the driver of the offending vehicle. Ex.P2 is the rough sketch drawn by the Investigating Officer. During the course of investigation, it is indicated as to how the accident occurred and how the offending vehicle caused the death of deceased Jayamma. On evaluation of these documents, the Tribunal held that the accident had occurred due to the rash and negligent driving of the driver of the offending bus.
10. It is said that the deceased was doing agricultural coolie work and was earning Rs.12,000/- p.m. But in proof of the same, no documents were produced. Hence, the Tribunal assessed the income of the deceased at Rs.4,000/- p.m and the same appears to be on lower side. It is relevant to note that the accident is of the year 2013. As per the guidelines and illustration of the Lok Adalath Chart, the notional income for the year 2013 is Rs.7,000- 8,000. Having regard to the avocation of the deceased and the year of accident, the notional income is taken at Rs.7,000/-. Further, in view of the law laid down by the Hon’ble Apex Court in National Insurance Co.Ltd. vs. Pranay Sethi reported in AIR 2017 SC 5157, future prospects has to be added to her income. Accordingly, compensation under the head loss of dependency is re-worked out as under:
11. Further, keeping in view the ratio laid down by the Hon’ble Supreme Court in Pranay Sethi’s case (supra) and that deceased Jayamma is said to be the widow, therefore, under the conventional heads, the compensation is restricted to Rs.30,000/-.
12. In the case of MAGMA GENERAL INSURANCE CO. LTD. vs. NANU RAM (2018 SCC ONLINE SC 1546), the Hon’ble Apex Court has held that “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”. The family of Jayamma consisted Smt.Sannamma, mother of the deceased, aged about 75 years and Sri.Bhyrava, adopted son of the deceased, aged about 26 years. They have lost the love and affection of the deceased. Hence, in accordance with the said ruling, a sum of Rs.40,000/-, is awarded to claimants 1 and 2 towards loss of filial consortium.
13. 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
Thus, in all, the claimants are entitled to total compensation of Rs.8,57,500/- as against Rs.5,15,060/- (rounded off to Rs.5,15,000/-) awarded by the tribunal. The enhanced compensation would be Rs.3,42,500/-.
14. Further, the Tribunal while deciding on the issue as to who has to pay the compensation has fastened the liability on the insurance company. It has ordered the insurance company to pay the compensation and later to recover the same from the owner of the offending vehicle. The contention of learned counsel for the insurance company is that the Tribunal while deciding the issue of permit, has specifically held that the offending bus did not had permit and the insured has violated the terms and conditions of the policy but erred in fastening the liability on the insurance company. In that connection, it is useful to refer to the decision of the Apex Court in the case of RANI & OTHERS VS NATIONAL INSURANCE COMPANY LIMITED & OTHERS - (2018) 8 SCC 492, wherein it is held that even in case where the offending vehicle did not possess a valid permit to operate in the State concerned, the compensation determined must be first paid by the insurer, who could thereafter recover the same from the owner of the offending vehicle. Therefore, the said ratio laid down is squarely applicable to the present case. Hence, I find no infirmity or illegality in the finding given by the Tribunal while fastening the liability on the insurance company. The Insurance Company, shall first pay the compensation determined and thereafter, recover the same from the owner.
15. For the reasons and findings as stated above, I proceed to pass the following:
ORDER i) The appeal preferred by the Insurance Company in M.F.A.No.1045 of 2015 and so also, M.F.A.CROB No.39 of 2015 are allowed in part.
ii) Consequently, the claimants in MFA CROB.No.39/2015 are entitled for enhanced compensation of Rs.3,42,500/- with interest at 6% p.a. in addition to the compensation awarded by the Tribunal. The impugned judgment and award dated 18.10.2014 passed by the Tribunal in M.V.C.No.1279 of 2013 is modified, accordingly iii) The Insurance Company is directed to deposit the entire compensation along with enhanced compensation, with accrued interest, before the Tribunal, within a period of four weeks from the date of receipt of certified copy of this order 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 rate of interest, apportionment and deposit is concerned, shall remain unaltered.
iv). The amount in deposit, if any, shall be transmitted to the Tribunal.
Office to draw the decree accordingly.
Sd/- JUDGE DH