IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER, 2019 PRESENT THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA AND THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM MFA NO.7576 OF 2014 (MV-D) C/W MFA NO.4976 OF 2014 (MV-D) IN MFA NO.7576/2014 BETWEEN:
1. SMT SAROJAMMA W/O LATE RANGASWAMY, AGED ABOUT 34 YEARS 2. MASTER JAYANTH S/O LATE RANGASWAMY, AGED ABOUT 13 YEARS 3. MASTER SANTHOSH S/O LATE RANGASWAMY, AGED ABOUT 12 YEARS APPELLANTS 2 AND 3 ARE MINORS AND REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN APPELLANT NO.1 ALL ARE RESIDING AT ACHALU VILLAGE, KAILANCHA HOBLI, RAMANAGARA TALUK AND DISTRICT.
(BY SRI.S RAJU, ADVOCATE) AND:
1. SRI SRINIVAS S/O SRI.THAMMAIAH, NO.16/B, KANNIDODDI, CHANNAPATNA TALUK, RAMANAGARA DISTRICT-562159 2. THE BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD., GROUND FLOOR, NO.31, TBR TOWERS, 1ST CROSS, NEW MISSION ROAD, NEXT TO JAIN COLLEGE, J.C.ROAD, BANGALORE-560 002.
...APPELLANTS (BY SRI.O.MAHESH, ADVOCATE FOR R2; R1 SERVED) …RESPONDENTS THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:03.06.2014 PASSED IN MVC NO.430/2010 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, RAMANAGARA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO.4976/2014 BETWEEN:
THE LEGAL MANAGAR BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED, COURT FLOOR, NO.31, TBR TOWERS, 1ST CROSS, NEW MISSION ROAD, NEXT TO JAIN COLLEGE, J.C. ROAD, BANGALORE-560024.
NOW AT:
BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD, REGIONAL OFFICE, GOLDEN HEIGHTS, 4TH LEVEL, NO.1/2, 59TH CROSS, 4TH "M" BLOCK, RAJAJINAGAR, BANGALORE-560010 BY ITS MANAGER ...APPELLANT (BY SRI.O MAHESH, ADVOCATE) AND:
1. SMT.SAROJAMMA AGE: 30 YEARS, W/O LATE RANGASWAMY 2. MASTER JAYANTH 09 YEARS, MINOR, S/O LATE RANGASWAMY 3. MASTER SANTHOSH 08 YEARS, MINOR S/O LATE RANGASWAMY RESPONDENT NOS.2 AND 3 MINORS BY M/N GUARDIAN SMT.SAROJAMMA, 1ST RESPONDENT ALL ARE R/AT. ACHALU VILLAGE, KAILANCHA HOBLI, RAMANAGARA TALUK, RAMANAGARA DISTRICT 4. SRINIVAS MAJOR, S/O THAMMAIAH, NO.16/B, KANNIDODDI, CHANNAPATNA TALUK, RAMANAGARA DISTRICT (BY SRI.S RAJU, ADVOCATE FOR R1;
…RESPONDENTS (R2 & R3 ARE MINORS REPRESENTED BY R1); NOTICE TO R4 IS SERVED AND UNREPRESENTED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:03.06.2014 PASSED IN MVC NO.430/2010 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, RAMANAGARA, 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 The claimants being unsatisfied with the compensation determined by the Tribunal in MVC.No.430/2010 have filed MFA.No.7576/2014 seeking enhancement, whereas the Bajaj Allianz General Insurance Company Limited being aggrieved by the judgment of the Tribunal fastening the liability on the Insurance Company has come in MFA.No.4976/2014.
2. The brief facts leading to these appeals are as under:
One Rangaswamy, who is the husband of claimant No.1 and father of claimant Nos.2 and 3 was a pedestrian, walking on the left side of the road near Achalu factory. At about 9.30 p.m. on 12.10.2010, the driver of the offending auto rickshaw came in a rash and negligent manner and dashed against the said Rangaswamy. On account of the said accident, he suffered injuries and was immediately shifted to Ramanagara Government Hospital. The Doctors opined that he is critical and as such, he was shifted to Bangalore Victoria Hospital and thereafter, he was shifted to Nimhans, where he succumbed to the injuries. The claimants on account of death of Rangaswamy claimed compensation of Rs.40,00,000/-. In support of their contention, the claimants averred in the claim petition that deceased Rangaswamy was a Carpenter by profession and he was earning a sum of Rs.600/- per day.
3. The Insurance Company, on receipt of notice, appeared before the Tribunal and contested the proceeding by filing written statement. The Insurance Company stoutly denied the averments made in the claim petition and took a specific contention that the driver of the auto rickshaw has violated the provisions of Section 166 of Motor Vehicles Act and there is also violation of permit conditions. On these set of facts, the Insurance Company sought for dismissal of the claim petition.
4. The Tribunal based on the rival contentions, formulated the following issues for consideration:
“1) Whether the petitioner proves that on 12.10.2010 at about 9.30 p.m., deceased Rangaswamy while going by walk on the left side of Ramanagara-Kanakapura Raod, an auto bearing No.KA-42-5877 came in high speed, rash and negligent manner dashed to deceased who succumbed to the injuries on 13.10.2010?
2) Whether the 1st petitioner proves that the accident occurred due to the contributory negligence of deceased Rangaswamy?
3) Whether 2nd respondent proves that the driver of auto had no valid driving licence as on the date of the accident?
4) Whether the petitioners are entitled for compensation? If so, how much and from whom?
5) What order or award?”
5. The claimants in support of their contention, examined the widow of the deceased as PW.1 and examined one witness as PW.2. In support of their contention, they produced documentary evidence vide Exs.P-1 to P-7. The Insurance Company led in oral evidence of one Sunil Ramesh as RW.1 and relied on documentary evidence vide Exs. R-1 to R-8.
6. The Tribunal on appreciation of the evidence on record, held that the Insurance Company cannot be exonerated from paying the compensation on the ground that there is violation of terms of permit. The Tribunal was of the view that the authorities are at liberty to take steps against the owner of the vehicle for cancellation of the permit, but that cannot be a ground for the Insurance Company from denying its liability to pay compensation to the third party and accordingly, negatived the contention of the Insurance Company.
7. The Tribunal while determining the compensation perused the records and found that no material is placed by the claimants to demonstrate that deceased was a Carpenter and was earning a sum of Rs.600/- per day. In absence of cogent and clinching evidence, the Tribunal proceeded to take the notional income of the deceased at Rs.4,500/- and proceeded to award a sum of Rs.8,10,000/- under the head ‘loss of dependency’ and accordingly, awarded a total compensation of Rs.8,60,000/- to the claimants. Being aggrieved by the judgment and award of the Tribunal, the claimants as well as the Insurance Company are in these two appeals.
8. Heard learned counsel on both sides and perused the records.
9. Learned counsel for the claimants would vehemently argue and contend that the Tribunal erred in restricting the income of the deceased at Rs.4500/- and the said reasoning of the Tribunal suffers from serious infirmities and as such, calls for interference by this Court.
10. Though the Tribunal was justified in holding that the claimants have not placed any cogent evidence to establish the income of the deceased but, however, we are of the opinion that the Tribunal was also not justified in taking the income of the deceased at Rs.4500/- in absence of evidence, which appears to be on the lower side. In absence of clinching evidence, the Tribunal ought to have adopted the chart issued by the Karnataka State Legal Services Authority. As per the chart, taking into note of the fact that the accident has occurred in the year 2010, the notional income of the deceased is to be taken at Rs.5,500/-. Hence, the annual income would come to Rs.66,000/-. Having regard to the age of the deceased, who was aged 38 years, we deem it fit to add 25% towards future prospects and the total income of the deceased has to be taken at Rs.82,500/- and after deducting 1/3rd, the same would come to Rs.55,000/-. By adopting the multiplier of 15, the compensation payable under the head ‘loss of dependency’ would be Rs.8,25,000 (55,000x15). The claimants are also entitled for a sum of Rs.70,000/- towards other heads. Hence, the total compensation payable to the claimants would come to Rs.8,95,000/- with interest at the rate of 6% per annum.
11. Learned counsel for the Insurance Company would vehemently argue that the Tribunal was not justified in fastening the liability on the Insurance Company on the ground that there is violation of permit conditions. The law is settled insofar as this issue is concerned. In the light of the law laid down by the Hon’ble Apex Court in the case of AMRIT PAUL SINGH AND ANOTHER vs. TATA AIG GENERAL INSURANCE COMPANY LIMITED AND OTHERS reported in (2018) 7 SCC 558 and RANI AND OTHERS vs. NATIONAL INSURANCE COMPANY LIMITED AND OTHERS reported in (2018) 8 SCC 492, the appeal filed by the Insurance Company in MFA.No.4976/2014 is allowed in part directing the appellant /Insurance Company to pay the compensation to the claimants thereafter, to recover the same from the owner.
12. In the light of the above, the appeal filed by the claimants in MFA.No.7576/2014 is allowed-in- part and the claimants are entitled for reassessed compensation of Rs.8,95,000/- with interest at the rate of 6% per annum. The appeal filed by the Insurance Company in MFA.No.4976/2014 is allowed in part directing the appellant to pay compensation and thereafter, recover the same from the owner.
The amount in deposit, if any, shall be transmitted to the Tribunal to enable the claimants to withdraw the same.
Sd/- JUDGE Sd/- JUDGE CA