IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ MFA.No.7085 OF 2013 Between:
1. Sri. Gangaraju, S/o. Muniyappa, Aged about 34 years.
2. Kum. Nirmala, D/o. Gangaraju, Aged about 11 years.
3. Master G. Manoj Kumar, S/o. Gangaraju, Aged about 8 years.
Since the petitioner Nos.2 & 3 are minors being represented by their father cum natural guardian Sri. Gangaraju.
All are residing at Ayyappalli Village, Bethamangala Hobli, Bangarpet Taluk – 563114. …Appellants (By Sri. K. Vishwanatha, Advocate) And:
1. Mr. Ravi B.S., Major, S/o. Seeme Gowda, R/at Ghattakamadenahalli Village, Bangarpet Taluk -563114.
2. M/s. IFFCO-TOKIO General Insurance Co., Ltd., Branch Office No. 41, 2nd Floor, Cristu Complex, Levelle Road, Bengaluru -560 001. ... Respondents (By Dildar Shiralli, Advocate for R1; Sri. B. Pradeep, Advocate for R2) This MFA filed under Section 173(1) of MV Act against the Judgment and award dated 23.03.2013 passed in MVC No.23/2011 on the file of the Presiding Officer, Fast Track Court, Additional MACT, KGF, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This appeal coming on for admission this day, the Court delivered the following:
JUDGMENT Though this appeal is listed for admission, with the consent of both the learned counsel, the appeal is taken up for final disposal.
2. This appeal is preferred by the claimants in MVC No.23/2011 on the file of Presiding Officer, Fast Track Court and Additional MACT at KGF seeking enhancement of compensation awarded for the death of one Smt. Kalavathi. The appellants are the husband and minor children of the deceased.
3. I have heard the learned counsel appearing for the appellant and the learned counsel appearing for respondent No.2-Insurance Company.
4. The case of the appellants/claimants is that, on 12.07.2011 the deceased Kalavathi after attending her tailoring work at Benganur village, boarded an auto rikshaw bearing registration No. KA-08/5105 and she was proceeding towards Ayyapalli village. At about 5.30 p.m., when the auto reached near M.V. Nagar, Aladamara – Krishnapuram Road, BEML Nagar, driver of the said vehicle drove it with excess speed and in a rash and negligent manner, due to which Kalavathi lost balance and fell down from the vehicle and sustained multiple injuries. Immediately, she was shifted to Government Hospital, Bangarpet wherein first aid treatment was given to her and she was referred to R.J. Jalappa Hospital, Kolar, where, medical officers referred her to NIMHANS hospital, Bangalore and she was admitted in the said hospital and during the course of treatment, she died on 16.07.2011 without responding to the treatment. .
5. It is the case of the appellants that the deceased was working as tailor in M/s. Carnival Clothing Company – II and was earning Rs.153.50 per day (As per claim petition). The claim petition was filed seeking a compensation of Rs.15.00 lakhs. The husband of the deceased was examined as PW-1 and Ex. P1 to P15 were got marked on behalf of the claimants and Ex.R1 to R5 were got marked on behalf of the respondents. The Tribunal, after considering the evidence and material on record, awarded a total compensation of Rs. 6,38,750/- with interest at the rate of 6% per annum and fixed the liability on respondent No.1-owner cum driver of the offending vehicle, holding that he had license to drive a non-transport vehicle and not commercial vehicle as on the date of accident thereby the Insurance Company was exonerated from paying the compensation.
6. The learned counsel appearing for the appellants contended that the deceased was a tailor by profession and she was earning Rs.163.50/- per day by doing tailoring work and before the Tribunal, the claimants have produced Ex-P-10 demand slip in support of the income of the deceased. However, the Tribunal has erred in taking only Rs.125/- per day as income of the deceased which is not proper. It is further submitted that no compensation has been awarded towards future prospects and the compensation awarded towards loss of consortium, funeral and obsequies is on the lower side. It is also contended that the liability which was fastened on respondent No.1 by exonerating the Insurance Company from paying the compensation is also not proper since no separate endorsement is required in the driving license to drive a transport vehicle as the driver of the vehicle was holding a driving license to drive a light motor vehicle which is sufficient. Accordingly, the learned counsel seeks to allow the appeal.
7. Per contra, the learned counsel for the respondent- Insurance Company contended that the judgment and award passed by the Tribunal is just and reasonable and even otherwise, the Tribunal has deducted ¼th of the income of the deceased towards personal expenses instead of deducting 1/3. He would submit that the driver of the vehicle in question was not holding a valid driving license and therefore, the Tribunal has rightly fastened the liability on the driver-cum- owner of the offending vehicle by exonerating the Insurance Company from paying the compensation. Accordingly, he prayed for dismissal of the appeal.
8. The case of the claimants is that the deceased while travelling in an auto-rikshaw bearing registration No. KA-08/5105, the driver of the said auto drove the same in a rash and negligent manner and with excess speed, on account of which, the deceased lost balance and fell down and sustained injuries and subsequently, succumbed to the injuries on 16.07.2011. The deceased was aged about 29 years and she was a tailor by profession, earning Rs.163.50 per day.
9. There is no dispute with regard to the accident in question and involvement of the said auto rikshaw bearing registration No. KA-08/5105 and the negligence of the driver in causing the accident. However, it is the contention of the learned counsel for the appellants that the Tribunal committed an error in fastening the liability on respondent No.1 on the ground that he was not having a valid driving license. It is contended that the vehicle involved in the accident is an auto-rikshaw and Ex.R1- the driving license reveals that the driver was having a license for driving auto rikshaw (NT) which was valid till 20.10.2023 and for the transport vehicle, valid up to 20.10.2006. Therefore, holding that the vehicle involved in this accident is a transport vehicle and the driver had a valid license to drive only LMV (NT) and not a transport vehicle and thereby exonerating the Insurance Company from paying compensation is not justified.
10. The findings recorded by the Tribunal exonerating the Insurance Company from paying the compensation may not be proper in view of the decision of the Hon’ble Apex Court in the case of Mukund Dewangan Vs. Oriental Insurance Company Ltd., reported in AIR 2017 Supreme Court 3668. In view of the said decision, fixing the liability on the owner and exonerating the Insurance Company from paying the compensation is liable to be set aside.
11. The evidence on record goes to show that the deceased was earning a sum of Rs.153.50 per day which is evident from the payment slip, Ex. P-10. The Tribunal has taken the income at Rs.125/- per day, which is not justifiable. An addition of 40% has to be made towards future prospects and 1/3rd of the income has to be deducted towards personal expenses. Therefore the calculation would be 153.50 x 30 = Rs.4,605 + 40% of the income i.e., Rs.1,842/- = Rs.6,447/-, deducting 1/3rd towards his personal expenditure, the income is arrived at Rs.4,298/- per month. The deceased was aged about 29 years and the appropriate multiplier to his age is ‘17’. Therefore, the claimants are entitled for a total sum of Rs.8,76,792/- (Rs.4,298x12x17) as against Rs.5,73,750/- awarded by the Tribunal towards loss of dependency. The compensation awarded under other heads namely Medical Expenses, Travelling charges, attendant and other miscellaneous expenses and loss of love and affection are just and reasonable.
12. The Tribunal has awarded a sum of Rs.25,000/- towards loss of consortium, loss of estate, funeral & obsequies. The same is enhanced to Rs.70,000/-. In all, the claimants are entitled for a total compensation of Rs.9,86,792/- as against Rs.6,38,750/- awarded by the Tribunal The break-up is as under:
AMOUNT Towards loss of dependency Rs.8,76,792-00 Medical expenses Rs. 12,000-00 Travelling charges, attendant and Other miscellaneous expenses Rs. 8,000-00 Loss of consortium, loss of estate and funeral expenses Rs. 70,000-00 Loss of love and affection Rs. 20,000-00 TOTAL Rs.9,86,792-00 13. Hence I pass the following:
ORDER The appeal is allowed in part.
The judgment and award dated 23.03.2013 passed by the Fast Track Judge and Additional MACT at KGF in MVC No.23/2011 is hereby modified.
The claimants/appellants are entitled for a total compensation of Rs.9,86,792/- with interest @ 6% per annum.
The enhanced amount of Rs.3,48,042/- shall carry interest @ 6% per annum from the date of petition till its deposit. The respondent Nos.1 and 2 are jointly and severally liable to pay the compensation.
Respondent No.2 is directed to deposit the amount within four weeks from the date of receipt of copy of the judgment.
Sd/- JUDGE BVK