IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR. JUSTICE B.SREENIVASE GOWDA MFA NO.5000/2009 (MV) C/W MFA NO.619/2009 (MV) MFA NO.620/2009 (MV) MFA NO.622/2009 (MV) MFA NO.2751/2010 (MV) IN MFA NO.5000/2009 (MV) BETWEEN 1. SRI JUNJANNA S/O LATE ERA JUNJEGOWDA, AGED ABOUT 53 YEARS R/O HIKKANUR KURUBARAHALLI DHARMAPURA HOBLI, HIRIYUR TALUK NOW R/A HOSHAHALLI, GOWDAGERE HOBLI, SIRA TALUK 2. SMT. MADDAMMA W/O SRI JUNJANNA, A/A 51 YRS AGED ABOUT 53 YEARS R/O HIKKANUR KURUBARAHALLI DHARMAPURA HOBLI, HIRIYUR TALUK NOW R/A HOSHAHALLI, GOWDAGERE HOBLI, SIRA TALUK ... APPELLANTS (BY SRI. V B SIDDARAMAIAH, ADV.) AND 1. SMT VAISHALI BAI S GEETHA W/O SHAM SUNDER GEETA, AGED ABOUT 42 YRS NO.1- 870/A, LAKSHMI NIVAS, VENKATESH NAGAR, GULBARGA 2. THE ORIENTAL INSURANCE COMPANY LIMITED, 1ST FLOOR, OPP MINI VIDHANA SOUDHA, GULBARGA.
3. B. MANJUNATH S/O. SRI BASAPPA AGED ABOUT 30 YEARS R/O. JIGALA VILLAGE ATHIBELE HOBLI ANEKAL TALUK, BANGALORE DISTRICT ... RESPONDENTS (BY SRI B S UMESH, ADV. FOR R2 SRI. R BHADRINATH, ADV. FOR R3 R1 SERVED) MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 18.2.2009 PASSED IN MVC NO. 1580/2006 ON THE FILE OF THE CIVIL JUDGE (SR.DN) AND ADDL. MACT, SIRA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO.619/2009 (MV) BETWEEN M/S ORIENTAL INSURANCE COMPANY LIMITED REGIONAL OFFICE LEO SHOPPING COMPLEX, NO.44/45, RESIDENCY RAOD, BANGALORE - 1 REP. BY ITS REGIONAL MANGER ... APPELLANT (BY SRI. B S UMESH, ADV.) AND 1. SIDDASHETTY S/O DEVA SHETY AGED ABOUT 53 YEARS 2. SMT DEVAMMA W/O SIDDA SHETTY AGED AOBUT 48 YEARS BOTH THE RESPONDENTS 1 AND 2 ARE RESIDING AT ANKALLI VILLAGE BOMMALAPURA POST GUNDLU TALUK CHAMARANAGAR DSITRICT 3. SMT VAISHALI BAI S GEETHA W/O SHAM SUNDER GEETA, AGED ABOUT 42 YRS NO.1- 870/A, LAKSHMI NIVAS, VENKATESH NAGAR, GULBARGA 4. B MANJUNATHA S/O BASAPPA AGE NOT KNOWN RESIDING AT JIGALI VILLAGE ATTIBELE POST, ANEKAL TALUK BANGALORE DSITRICT ... RESPONDENTS (BY SRI K T GURUDEVA PRASAD, ADV. FOR R1 AND R2 SRI.H.S.RAMAMURTHY, ADV. FOR R4 R3 SERVED ) MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 3.7.2008 PASSED IN MVC NO. 8644/2006 ON THE FILE OF THE XVIII ADDL. JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT-4, METROPOLITIAN AREA, BANGALORE, (SCCH.NO.4), AWARDING A COMPENSATION OF RS. 3,16,500/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL DEPOSIT.
IN MFA NO.620/2009 (MV) BETWEEN M/S ORIENTAL INSURANCE COMPANY LIMITED REGIONAL OFFICE LEO SHOPPING COMPLEX, NO.44/45, RESIDENCY RAOD, BANGALORE - 1 REP. BY ITS REGIONAL MANGER ... APPELLANT (BY SRI. B S UMESH, ADV.) AND 1. SMT JAYAMMA W/O LATE RANGANNA AGED ABOUT 48 YEARS R/AT KUNDALAGURA ARANAKATTE POST, HIRIYUR TALUK CHITRADURGA DISTRICT 2. SMT VAISHALI BAI S GEETHA W/O SHAM SUNDER GEETA, AGED ABOUT 42 YRS NO.1- 870/A, LAKSHMI NIVAS, VENKATESH NAGAR, GULBARGA 3. B MANJUNATHA S/O BASAPPA AGE NOT KNOWN RESIDING AT JIGALI VILLAGE ATTIBELE POST, ANEKAL TALUK BANGALORE DSITRICT ... RESPONDENTS (BY SRI. K T GURUDEVA PRASAD, ADV. FOR R1 SRI. H.S.RAMAMURTHY, ADV. FOR R3 R2 SERVED) MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 3.7.2008 PASSED IN MVC NO. 8643/2006 ON THE FILE OF THE XVIII ADDL. JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT-4, METROPOLITIAN AREA, BANGALORE, (SCCH.NO.4), AWARDING A COMPENSATION OF RS. 2,92,500/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL DEPOSIT.
IN MFA NO.622/2009 (MV) BETWEEN M/S ORIENTAL INSURANCE COMPANY LIMITED REGIONAL OFFICE LEO SHOPPING COMPLEX, NO.44/45, RESIDENCY RAOD, BANGALORE - 1 REP. BY ITS REGIONAL MANGER ... APPELLANT (BY SRI. B S UMESH, ADV.) AND 1. SRI DINESH S/O PURADA NAYAKA AGED ABOUT 19 YEARS RESIDING AT ANANDA REDDY BUILDING, VEERASANDRA GATE ELECTRONIC CITY POST, HOSUR MAINROAD, BANGALORE 560 100 BEFORE THE TRIBUNAL HE WAS REP. BY HIS MOTHER SMT RUKKAMMA AS HE WAS MINOR 2. SMT VAISHALI BAI S GEETHA W/O SHAM SUNDER GEETA, AGED ABOUT 42 YRS NO.1- 870/A, LAKSHMI NIVAS, VENKATESH NAGAR, GULBARGA 3. B MANJUNATHA S/O BASAPPA AGE NOT KNOWN RESIDING AT JIGALI VILLAGE ATTIBELE POST, ANEKAL TALUK BANGALORE DSITRICT ... RESPONDENTS (BY SRI. K T GURUDEVA PRASAD, ADV. FOR R1 SRI. H.S.RAMAMURTHY, ADV. FOR R3 R2 SERVED) MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 3.7.2008 PASSED IN MVC NO. 8645/2006 ON THE FILE OF THE XVIII ADDL. JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT-4, METROPOLITIAN AREA, BANGALORE, (SCCH.NO.4), AWARDING A COMPENSATION OF RS. 64,500/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL DEPOSIT.
IN MFA NO.2751/2010 (MV) BETWEEN M/S ORIENTAL INSURANCE COMPANY LIMITED REGIONAL OFFICE LEO SHOPPING COMPLEX, NO.44/45, RESIDENCY RAOD, BANGALORE - 1 REP. BY ITS REGIONAL MANGER ... APPELLANT (BY SRI. B S UMESH, ADV.) AND 1. JUNJANNA S/O LATE ERA JUNJE GOWDA, AGED 54 YEARS, 2. MADAMMA W/O JUNJANNA AGED 52 YEARS, BOTH RESPONDENTS 1 AND 2 ARE R/AT HIKKANUR KURUBARAHALLI, DHARMAPURA HOBLI, HIRIYUR TALUK, NOW AT HOSAHALLI, GOWDAGERE HOBLI, SIRA TALUK.
3. SMT VAISHALI BAI S GEETHA W/O SHAMSUNDAR GEETA, AGED ABOUT 44 YRS NO.1- 870/A, LAKSHMI NIVAS, VENKATESH NAGAR, GULBARGA 4. B MANJUNATHA S/O BASAPPA AGED ABOUT 34 YEARS RESIDING AT JIGALI VILLAGE ATTIBELE POST, ANEKAL TALUK BANGALORE DSITRICT ... RESPONDENTS (BY SRI. M.B.RYAKHA, ADV. FOR R1 AND 2 R3 SERVED) MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:18.02.2009 PASSED IN MVC NO.1580/2006 ON THE FILE OF THE CIVIL JUDGE(SR.DN) AND ADDITIONAL MACT, SIRA, AWARDING A COMPENSATION OF RS.2,24,500/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION UNTIL REALIZATION.
*** THESE APPEALS COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT MFA 619/2009, 620/2009, 622/2009 and 2751/2010 are filed by the insurer of the offending vehicle challenging the judgment and award of the Tribunal on the ground of liability.
Whereas, MFA 5000/2009 is by the claimants in MVC 1580/2006 seeking enhancement of compensation awarded by the Tribunal.
2. Heard the learned counsel for the parties and perused the judgment and award passed by the Tribunal including the records.
3. For the sake of convenience, the parties are referred to as they are referred to in the claim petition before the Tribunal.
4. As there is no dispute regarding death of deceased in a road traffic accident occurred on 25.8.2016 due to rash and negligent driving of the offending quails car bearing registration No.KA-05/Z-2103 by its driver, the points that arise for consideration in these appeals are:
a) Whether the Tribunal was justified in fastening the liability on the insurer of the offending vehicle ?
b) Whether quantum of compensation awarded by the Tribunal in MVC No.1580/2006 is just and reasonable or does it call for enhancement ?
5. Sri.B.S.Umesh, learned counsel for the insurer of the offending vehicle submits that the offending vehicle is a private vehicle insured under Liability Only Policy and therefore it does not cover the risk of those who sustained injuries or those succumbed to injuries which they sustained in a road traffic accident occurred while traveling as passengers in the offending vehicle and therefore the insurer is not liable to indemnify the owner and pay compensation awarded by the Tribunal to the claimants. Without considering the same, the Tribunal has committed an error in fastening the liability on the insurer of the offending vehicle. With this, he prays for allowing the appeals preferred by the insurance company and dismiss the appeals preferred by the claimants against the insurance company.
6. Sri.V.B.Siddaramaiah, learned counsel for the claimants submits that the insurer, who contends that the offending vehicle was insured with them under ‘Liability Only Policy’ and therefore, the risk of the passengers is not covered under the said policy, has not produced the policy and therefore, the Tribunal was justified in fastening the liability on the insurer.
7. The learned counsel for the claimants was right in contending that the insurer has not produced the insurance policy in MVC 1580/2006. However the insurer has produced the original insurance policy in MVC 8643/2006 arising out of the very same accident and it was marked as exhibit and it is available in the records of the Tribunal. If that is so, it is settled position of law that ‘Liability Only Policy’ does not cover the risk of those who sustained injuries or the risk of those who succumbed to the injuries that they sustained in the road traffic accident while traveling in the offending vehicle, which is a private vehicle as passengers. Therefore, the finding of the Tribunal on liability directing the insurer to pay the compensation awarded to the claimants is liable to be set aside. Accordingly, point No.1 is answered in the negative. The owner of the offending vehicle did not challenge the judgment and award of the Tribunal either on the ground of negligence or on any other grounds. Now, in view of exonerating the insurer of the offending vehicle from liability, and liability has to be fastened on the owner of the offending vehicle and owner shall be directed to pay the compensation awarded by the Tribunal to the claimants.
8. Regarding Quantum:
The claimants, in support of their contention that the deceased by working in a Dhaba was getting salary of Rs.5,000/- per month, have examined first claimant, father of deceased as PW-1 and co-worker of deceased as PW-2 and have produced pay slip of deceased as Ex.P-8. PW-2 has stated that the deceased was drawing salary of Rs.5,000/- per month. Considering the age of the deceased as 24 years, year of accident as 2006 and his avocation as worker in a Dhaba and the statement of the co-worker, his income could be easily assessed at Rs.5,000/- per month as claimed by the claimants as against Rs.3,000/- per month assessed by the Tribunal. Since deceased was below the age of 40 years at the time of accident and having fixed salary, 40% of his earning has to be added to his income towards future prospects as per the decision of the Apex Court in the case of National Insurance Co. Ltd vs. Pranay Sethi and others. So his total income comes to Rs.7,000/- (5,000/- + 40% of 5,000/-). Deceased was bachelor at the time of accident, therefore, 50% of his income is to be deducted towards his personal expenses and remaining 50% of his income is to be taken as his contribution towards family. Multiplier of ‘18’ has to be applied based on the age of deceased. Therefore, ‘loss of dependency’ works out to Rs.7,56,000/- (7,000 x 50/100 x 18 x 12) and it is awarded as against Rs.2,16,000/- awarded by the Tribunal.
9. Claimants are the aged parents of the deceased Therefore, a sum of Rs.15,000/- is awarded towards ‘loss of estate’, Rs.15,000/- is awarded towards transportation of dead body and funeral expenses’ as per the aforesaid judgment of the Hon’ble Supreme Court.
10. Thus, the claimants are entitled for the following compensation:-
Heads Amount
11. Accordingly, MFA 5000/2009 filed by the claimants in MVC 1580/2006 is allowed in part. MFA 619/2009, 620/2009, 622/2009 and 2751/2010 filed by the insurer of the offending vehicle challenging the judgment and award of the Tribunal on the ground of liability, are allowed. The impugned judgment and awards stand modified to the extent stated herein above. The claimants in MVC 1580/2006 are entitled for an additional compensation of Rs.5,61,500/- with interest at 6% p.a. from the date of claim petition till the date of realisation. The insurer of the offending vehicle is exonerated from liability and liability is fastened on the owner of the offending vehicle.
12. The owner of the offending vehicle is hereby directed to deposit the compensation amount awarded by the Tribunal as well as the additional compensation awarded by this Court with interest at 6% p.a. from the date of claim petition till the date of realisation within two months from the date of receipt of a copy of this judgment.
13. Out of the total compensation amount, 70% with proportionate interest is ordered to be invested in fixed deposit in the name of each of the claimants in any Nationalised Bank/Scheduled Bank/Post Office for a period of 3 years renewable from time to time and with a right of option to withdraw interest periodically and remaining amount with proportionate interest is ordered to be released in favour of both the claimants in equal proportion immediately after the deposit.
14. The Tribunal while releasing 30% of the amount with proportionate interest is also directed to issue fixed deposit slips, so as to enable the claimants to withdraw the deposit amount on its maturity without approaching the Tribunal once again and Bank in which the amount will be invested in fixed deposit is directed to release the fixed deposit amount without insisting for any further order from the Tribunal. Release of amount and issuance of fixed deposit slips shall be done on the same day.
16. Registry is directed to refund the amount deposited in the appeal of the insurance company in favour of the insurance company.
No order as to costs.
SD/- JUDGE DM