IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A.No.4190/2017 C/W M.FA.No.2781/2017 (MV) IN M.F.A.No.4190/2017 BETWEEN:
1. SRI NARASIMHAPPA R/O KODIHALLI AGED ABOUT 55 YEARS.
2. SMT.SHANKARAMMA W/O NARASIMHAPPA AGED ABOUT 47 YEARS.
3. SRI K N GIRISHA S/O NARASIMHAPPA AGED ABOUT 26 YEARS.
4. SRI K N PANDURANGA S/O NARASIMHAPPA AGED ABOUT 24 YEARS.
ALL ARE R/O KODIHALLI DHARMAPURA HOBLI HIRIYUR TALUK CHITRADURGA DISTRICT – 577 511. (BY SRI RAMESH K R, ADVOCATE) …APPELLANTS AND:
1. SRI NARAYAN M S/O LATE MANJAIAH ANTHARASANAHALLI ARAKERE POST TUMKUR TALUK TUMKUR – 572 106.
2. THE BRANCH MANAGER THIRD PARTY HUB M/S.UNITED INDIA INSURANCE CO. LTD., 5TH & 6TH FLOOR KRISHI BHAVAN HUDSON CIRCLE BANGALORE – 560 001.
(BY SRI LAKSHMINARASAPPA, FOR ...RESPONDENTS SRI B C SEETHARAMA RAO, ADVOCATE FOR R2 R1 IS SERVED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:27.01.2017 PASSED IN MVC No.2407/2016 ON THE FILE OF THE XXI ADDITIONAL SMALL CAUSES JUDGE & XIX ACMM AND MEMBER MACT (SCCH-23) AT BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A.No.2781/2017 BETWEEN:
UNITED INDIA INSURANCE CO. LTD., REGIONAL OFFICE, 5TH & 6TH FLOOR KRISHI BHAVAN BUILDING HUDSON CIRCLE, NRUPATHUNGA ROAD BENGALURU – 560 001.
REP. BY ITS DEPUTY MANAGER MR.AJAY KUMAR SINHA.
(BY SRI LAKSHMINARASAPPA, FOR …APPELLANT SRI B C SEETHARAMA RAO, ADVOCATE) AND:
1. SRI NARASIMHAPPA S/O KODIHALLA AGED ABOUT 56 YEARS.
2. SMT.SHANKARAMMA W/O NARASIMHAPPA AGED ABOUT 48 YEARS.
3. SRI K N GIRISHA S/O NARASIMHAPPA AGED ABOUT 27 YEARS.
4. SRI K N PANDURANGA S/O NARASIMHAPPA AGED ABOUT 25 YEARS.
ALL ARE RESIDENTS OF KODIHALLI DHARMAPURA HOBLI HIRIYUR TALUK CHITRADURGA DISTRICT – 577 511.
5. SRI NARAYAN M, MAJOR S/O LATE MANJAIAH ANTHARASANAHALLI ARAKERE POST, TUMKUR TALUK, TUMKUR – 572 106.
(OWNER OF BUS No.KA.06/D-1429) …RESPONDENTS (BY SRI K R RAMESH, ADVOCATE FOR R1 & 2 R3 TO 5 ARE SERVED AND UNREPRESENTED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:27.01.2017 PASSED IN MVC No.2407/2016 ON THE FILE OF THE XXI ADDITIONAL SENIOR CIVIL JUDGE AND XIX ACMM, MEMBER-MACT,BENGALURU,AWARDING COMPENSATION OF Rs.8,15,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DEPOSIT.
THESE MFA’s COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though these matters are posted for Admission, with the consent of learned counsel for both the parties, they are taken up for final disposal.
These are the two appeals directed against the judgment and award dated 27-01-2017 passed by the XXI Additional Small Causes Judge and XIX ACMM and Member, MACT, Bengaluru, (SCCH-23) in MVC No.2407/2016, wherein, the claim petition filed by the claimants therein under Section 166 of M.V. Act came to be allowed in part and an amount of Rs.8,15,000/- was awarded together with interest at the rate of 6% p.a. from the date of petition till its deposit holding that respondents 1 and 2 are jointly and severally liable to payment compensation and directing the 2nd respondent to deposit the same.
2. M.F.A.No.4190/2017 is filed by the claimants seeking enhancement of compensation and M.F.A.No.2781/2017 is filed by the Insurance Company seeking to set aside the award passed by the learned Member and to dismiss the claim petition.
3. In order to avoid confusion and overlappings, parties hereinafter are referred to with reference to their rankings as it stood before the Tribunal.
4. The proceedings were initiated by the claimants claiming dependency on K.N.Govindaraju because of his death due to injuries sustained by him in a road traffic accident dated 26.10.2015 at about 10.30 p.m. near Obalapura Gate on Tumkur-Madhugiri Road.
5. As per the claim petition, the accident happened when a bus bearing registration No.KA.06.D.1429 owned by 1st respondent Narayan M, was driven in a rash and negligent manner endangering the human life and in the sense the abrupt movement of the bus by the driver when he was in process of boarding the bus after alighting the passengers at Obalapura Gate. As a result, K.N.Govindaraju fell down from the bus and sustained head injuries and succumbed to them on the way to hospital. The claimants 1 and 2 are said to be the parents and claimant Nos. 3 and 4 are said to be the brothers of said K.N.Govindaraju. They claimed loss of dependency and in their petition they claimed compensation of Rs.30,00,000/-.
6. The claim petition was resisted by the Insurance Company stating that there is no provision for the Insurer to compensate in respect of the cleaner in a bus who is excluded from the ambit of liability and even additional premium for cleaner is not collected at the time of collecting subscription for the policy.
7. The learned Member of the Tribunal was accommodated with the oral evidence of PW1 and RW1 and documentary evidence of Exs.P1 to P13 and Ex.R1.
8. The learned Member after hearing the parties considered the case on the basis of the oral and documentary evidence and other materials available on record and partly allowed the petition and granted the compensation of Rs.8,15,000/- together with interest at 6% p.a., from the date of petition till its deposit fastening liability jointly and severally on the respondent Nos.1 and 2 and directed the Insurance Company to deposit the same. The said judgment and award is challenged in these appeals both by the claimants and by the Insurance Company.
9. The learned counsel Sri. Lakshminarasappa, appearing for the Insurance Company would submit that even additional premium for cleaner is not collected at the time of collecting subscription for the policy. In this regard, he has relied upon the decision of the Apex Court in the case of Ramashray Singh Vs. New India Assurance Company Limited and others (AIR 2003 Supreme Court 2877).
10. Per contra learned counsel for the claimants Sri. K.R.Ramesh, would submit that the very policy includes the liability in respect of the cleaner also. Further, he submits that the question of excluding the cleaner cannot be accepted. He would further focus on the grounds urged in his appeal and submits that the compensation awarded by the Tribunal is unreasonably on the lower side and in all practical angles it requires to be enhanced.
11. The moot question for consideration would be, whether the Insurance Company, appellant in MFA No.2781/2017 is entitled for exclusion from liability to compensate the claimants.
12. Regard being had to the fact that it is the claim of the claimants that Insurance Company is not only liable to compensate the compensation awarded by the Tribunal, but also to pay additional compensation. In the background of the said facts, it is necessary to consider the case of the claimants for compensation.
13. Insofar as the death of K.N.Govindaraju is concerned, it is admitted that he was traveling in the bus bearing Registration No.KA.06.D.1429 and the said bus met with an accident by sudden push forward made by the driver.
14. It is established principles that even a stationed vehicle can cause accident if negligence or rash operation is made.
15. Insofar as quantum of compensation is concerned, the monthly income of the deceased considered by the Tribunal is Rs.7,500/- per month. It is the submission of the learned counsel for the claimants that, the said amount is unreasonably low.
16. The accident is dated 26.10.2015 and deceased was a cleaner. Therefore, I do not find the amount of Rs.7,500/- per month considered by the Tribunal as an income for a cleaner is very low. Hence, it does not require any enhancement.
17. Another ground urged by the learned counsel for the claimants is that, future prospects is not considered by the Tribunal. In this connection, though the deceased was not a recognized or permanent employee, he cannot be thrown out from the ambit of earning the income as it can be considered as self employment. In this connection, though not 50% of the income, the learned Member should invariably have considered 40% of the monthly income as future prospects. Failure of the same is considered by this court as a serious error and that has to be made good in the claimants’ appeal. Thus, income of the deceased is considered at Rs.7,500/- per month. To that 40% (Rs.3,000/-) is added towards future prospects. Hence, the total income would be Rs.10,500/-. Out of which, if 50% (Rs.5,250/-) is deducted towards his personal and living expenses and remaining income would be Rs.5,250/- per month.
At the same time, the learned Member has awarded Rs.50,000/- towards conventional heads (Rs.25,000/- towards loss of love and affection and Rs.25,000/- towards transportation of dead body land funeral expenses) which is considered as low. It is just and proper to enhance it to Rs.70,000/- and accordingly, it is done.
In the circumstances, the comparative observation of compensation granted by the Tribunal and what should have been granted by this Court are reflected as under:
The compensation granted by the Tribunal:
body and funeral expenses Total Rs.8,15,000/-
The just and fair compensation according to this Court is:
Loss of dependency (Rs.5,250/- x 12 x 17) Towards conventional heads Rs. 10,71,000/- Rs. 70,000/-
Total Less: Amount awarded by Tribunal Enhancement Rs.11,41,000/-
Rs. 8,15,000/-
Rs. 3,26,000/-
Thus, the claimants are entitled for enhanced compensation of Rs.3,26,000/-. Hence, insofar as the quantum of compensation is concerned, the judgment and award passed by the learned Member is liable to be set aside for the purpose of modification.
In the result, the appeal filed by the Insurance Company is liable to be dismissed as devoid of merits and the appeal filed by the claimants is liable to be allowed in part.
Hence, I pass the following ORDER (i) M.F.A.No.2781/2017 filed by the Insurance Company is dismissed as devoid of merits;
(ii) M.F.A.No.4190/2017 filed by the claimants is allowed in part and Rs.11,41,000/- with interest at 6% p.a. from the date of petition till its deposit is fixed as compensation payable by the Insurance Company to the claimants that includes the enhanced compensation of Rs.3,26,000/- and to that extent the judgment and award dated 27.01.2017 passed by the Tribunal in MVCNo.2407/2016 is modified.
(iii) The Insurance Company is hereby directed to pay the total compensation of Rs.11,41,000/- which includes enhanced compensation of Rs.3,26,000/- with interest at 6% p.a. from the date of petition till its deposit within 30 days from the date of receipt of the certified copy of this judgment.
The amount already deposited by the Insurance Company in M.F.A.No.2781/2017 shall be transmitted to the concerned Tribunal forthwith.
tsn* Sd/- JUDGE