IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 15TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MFA NO.7603 OF 2010 CONNECTED WITH MFA NO.7604 OF 2010 MFA NO.7603/2010 BETWEEN 1. SRI. RASHMI SHARMA, W/O. LATE AGNI DAHAL, AGED ABOUT 28 YEARS, 2. MASTER BISAL DAHAL, S/O. LATE AGNI DAHAL, AGED ABOUT 7 YEARS, 3. MASTER RAJAN SHARMI, S/O. LATE AGNI DAHAL, AGED ABOUT 3 YEARS, (SINCE THE PETITIONERS 2 & 3 ARE MINORS, DULY REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN THE 1ST PETITIONER) ALL ARE RESIDING AT:
DIMOW VALO (V) DIMOW CHARALI POST, DHEMAJI DIST.
THANE SILAPATHAR, ASSAM-787 059.
(BY SRI. K.N. HARISH BABU, ADVOCATE) ... APPELLANTS AND 1. SRI. AKRAM ALI S. S/O. ABDUL RASHEED, NO.2181, DARAGAPETA, PENUKONDA ANANTHAPYRA, DIST.(AP) 2. THE DIVISIONAL MANAGER BAJAJ ALLIANZ GEN INS CO LTD., 105-A, I FLOOR, CERAS PLAZA, 136, RESIDENCY ROAD, BANGALORE.
... RESPONDENTS (BY SMT. H.R. RENUKA, ADVOCATE FOR R-2; SRI. M.K. SHARIFF, ADVOCATE FOR R-1) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 06.04.2010 PASSED IN MVC NO.7871/2008 ON THE FILE OF THE VI ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
MFA NO.7604 OF 2010 BETWEEN:
1. SRI. HOMENATH SHARMA,(DAHAL) S/O. LATE KOPIRAMAN SHARMA,(DAHAL) AGED ABOUT 65 YEARS, 2. NARMAYA DEVI, W/O. SRI. HOMENATH SHARMA,(DAHAL) AGED ABOUT 52 YEARS, BOTH ARE RESIDING AT:
DIMOW VALO(V), DIMOW CHARALI POST, DHEMAJI DIST., THANE SILAPATHAR, ASSAM-787059.
(BY SRI. K.N. HARISH BABU, ADVOCATE) AND:
1. SRI. AKRAM ALI S., S/O. ABDUL RASHEED, NO.2181, DARAGAPETA, PENUKONDA, ANANTHAPURA DIST.(AP) 2. THE DIVISIONAL MANAGER, BAJAJ ALLIANZ GEN INS CO LTD., 105-A, I FLOOR, CEARS PLAZA, 136, RESIDENCY ROAD, BANGALORE-560 025.
... APPELLANTS ... RESPONDENTS (BY SRI. H.R. RENUKA, ADVOCATE FOR R-2; SRI. M.K. SHARIFF, ADVOCATE FOR R-1) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 06.04.2010 PASSED IN MVC NO.9749/2008 ON THE FILE OF VI ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFAs COMING ON FOR FINAL HEARING, THIS DAY THE COURT MADE THE FOLLOWING:
JUDGMENT These two appeals are filed by the claimants seeking enhancement of compensation awarded by the Tribunal, for the death of one Agni Dahal in a road traffic accident, wherein the Tribunal awarded a total compensation of Rs.4,82,000/- with interest at 6% per annum.
MFA No.7603/2010 is filed by the wife and two minor children of the deceased, who are the claimants in MVC No.7871/2008 and MFA No.7604/2010 is filed by the parents of the deceased, the claimants in MVC No.9749/2008.
2. I have heard the learned counsel appearing for the appellants-claimants and the learned counsel appearing for the Respondent No.2-Insurance Company.
3. The brief facts of the case are that on 13.07.2008, at about 7.00 p.m., when the deceased was walking on Bangalore-Mysore Road, near Mangala Enterprises, Jindal Gowdown, Sheshagirihalli, Bidadi Hobli, Ramanagara Taluk, the driver of the lorry bearing registration No.AP-02-V-0004 by driving the said lorry in a rash and negligent manner, dashed against the deceased, due to which he fell down and sustained injuries and during the course of treatment in the hospital, he succumbed to the injuries.
4. The wife and two minor children of the deceased filed MVC No.7871/2008 and parents of the deceased filed MVC No.9749/2008. The Tribunal after clubbing both the petitions, partly allowed the same and awarded a total compensation of Rs.4,82,000/- with interest at 6% per annum from the date of petition till realization.
5. The learned counsel appearing for the claimants would contend that the deceased was working as a security guard and earning a sum of Rs.5,000/- per month and he was hale and healthy prior to the accident. Due to the sudden death, the claimants who were depending on the earnings of the deceased have suffered mental shock and hardship. He submits that the Tribunal has taken the income of the deceased at Rs.3,000/- per month, which is not justified and the compensation awarded under different heads are also on the lower side. He further submits that the Tribunal has erroneously fixed the liability on the owner of the vehicle on the ground that as on the date of the accident, the driver of the vehicle was not having a driving license. In this regard, he submits that the deceased being the 3rd party, the claimants are entitled for compensation as there was a valid insurance policy and therefore, the Insurer is liable to pay the compensation. Accordingly, he seeks to allow the appeals filed by the claimants.
6. Per contra, the learned counsel appearing for the Insurance Company vehemently contended that there is absolutely no evidence with regard to the income of the deceased and therefore, the Tribunal was justified in taking the income of the deceased at Rs.3,000/- per month. It is also submitted that the total compensation awarded is just and reasonable and does not call for any interference. The learned counsel would further contend that the driver of the offending vehicle had no driving license since the license had been expired on 03.06.1991, long before the date of accident and therefore, the Insurer can not be held liable to pay the compensation. Accordingly, she seeks to dismiss the appeal.
7. Accident in question involving the lorry bearing registration No.AP-02-V0004 resulting in the death of one Agni Dahal is not in dispute. The Tribunal has held that the accident is on account of the rash and negligent driving by the driver of the lorry in question. The said finding is based on the evidence and material on record. Even otherwise, the actionable negligence on the part of the driver of the said lorry is not in dispute.
8. The material on record goes to show that immediately after the accident, the deceased was shifted to BGS Global Hospital, wherein he took first aid treatment and thereafter shifted to Sanjaygandhi Hospital wherein the doctors examined and declared him as brought dead.
9. The Tribunal has taken the notional income of the deceased at Rs.3,000/- per month. According to the claimants, the deceased was working as a security guard and earning a sum of Rs.5,000/- per month. Apart from the oral evidence of the wife of the deceased who was examined as PW-1, there is no other evidence to substantiate the income of the deceased. However, considering the fact that the accident has occurred in the year 2008 and also considering that the deceased was working as a security guard, I am of the considered view that the income of the deceased can be taken at Rs.4,000/- per month. Adding 40% to the income towards future prospects and after deducting 1/4th of the income towards personal expenses, the same is arrived at Rs.4,200/- per month. The deceased being aged about 33 years, the appropriate multiplier applicable to his age is 16. Hence, the claimants are entitled for a total compensation of Rs.8,06,400/- (Rs.4,200x12x16) towards loss of dependency. A sum of Rs.70,000/- is awarded under the conventional heads. The Tribunal has awarded a sum of Rs.15,000/- towards medical expenses and transportation charges, the same is maintained. Therefore, the claimants are entitled for a total compensation of Rs.8,91,400/- as against Rs.4,82,000/- awarded by the Tribunal.
10. It is the contention of the learned counsel for the appellants that the Tribunal was not justified in absolving the Insurance Company from paying the compensation on the ground that the driver of the offending vehicle was not having a driving license. Ex.R-3 is the driving license extract. The license was expired on 03.06.1991. The accident has taken place on 13.07.2008. The Hon’ble Apex Court in the case of Pappu and others vs. Vinod Kumar Lumba and another reported in AIR 2018 SCC 592 has held that:
“Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid license by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving license is/ are so fundamental as are found to have contributed to the cause of the accident”.
In the said case, the Insurer was saddled with the liability and directed to pay the compensation in the first instance with liberty to recover the same from the owner of the vehicle. Hence, the direction issued by the tribunal that the insured alone is liable to pay the compensation is set aside. For the foregoing reasons, I pass the following:
ORDER The appeals are allowed in part.
The judgment and award dated 06.04.2010 passed by the VI Addl. Judge, Court of Small Causes and MACT, Bengaluru in MVC Nos.7871/2008 and 9749/2008 is hereby modified.
The appellants-claimants are entitled for a total compensation of Rs.8,91,400/- as against Rs.4,82,000/- awarded by the Tribunal.
The compensation awarded shall carry interest at 6% per annum from the date of petition till its realization.
The Insurer shall pay the compensation amount as quantified herein to the claimants in the first instance. Liberty is reserved to recover the same from the owner of the vehicle i.e., Respondent No.1.
The apportionment and disbursement of the compensation under the award among the claimants shall be in terms of the Order passed by the Tribunal in the ratio of 50:20:20:10.
Sd/- JUDGE snc