IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE Mr. JUSTICE L. NARAYANA SWAMY M.F.A. NO. 5723 OF 2016 (MV) C/W M.F.A.NO.7523 OF 2016 IN M.F.A.NO. 5723 OF 2016 BETWEEN:
1. SMT. SUSHEELAMMA, W/O LATE HANUMANTHAPPA, @ HANUMANTHRAYAPPA T.H, AGED ABOUT 27 YEARS.
2. MADHU T.H, S/O. HANUMANTHAPPA, @ HANUMANTHRAYAPPA T.H, AGED ABOUT 9 YEARS.
3. MARUTHI T.H, S/O. HANUMANTHAPPA, @ HANUMANTHARAYAPPA T.H, AGED ABOUT 7 YEARS.
PETITIONERS 2 & 3 ARE MINORS ARE REPTD. BY THEIR MOTHER, NATURAL GUARDIAN, SUSHEELAMMA, APPELLANT NO.1 HEREIN.
4. HANUMANTHRAYAPPA, S/O LATE ANJINAPPA, AGED ABOUT 52 YEARS.
5. NINGAMMA W/O HANUMANTHRAYAPPA, AGED ABOUT 49 YEARS.
ALL ARE R/AT TAVAKADAHALLI VILLAGE, BIJAVARA POST, KASABA HOBLI, MADHUGIRI TALUK, PRESENTLY R/AT SHAGADADU VILLAGE, BUKKAPATNA HOBLI, SIRA TALUK, TUMKUR DISTRICT. ... APPELLANTS (BY SRI. H.K. SATEESHA., ADV.,) AND:
1. RCI LOGISTICS PRIVATE LTD., PLOT NO.45, BLOCK NO.35, AUTO NAGAR, RANGAREDDY, HYDERABAD-560 070, ANDHRA PRADESH STATE, REPTD. BY ITS PROPRIETOR, PAWANKUMAR GUPTA, (OWNER OF THE LORRY BEARING REGISTRATION NO.AP-29-TA-6272) 2. HDFC ERGO GENERAL INSURANCE CO. LTD, 2ND FLOOR, JEENEVA HOUSE, CUNNINGHAM ROAD, BANGALORE-560056.
(POLICY NO.2315 2003 4283 6401 000, VALID FROM 22/09/2013 TO 21/09/2014) … RESPONDENTS (BY SRI. H.S. LINGARAJ ADV. FOR R2; R1 – SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.04.2016 PASSED IN MVC NO.1452/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, ADDITIONAL MACT, SIRA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A.NO.7523 OF 2016 BETWEEN:
HDFC ERGO GENERAL INSURANCE COMPANY LIMITED, II FLOOR, JEENEVA HOUSE, CUNNINGHAM ROAD, BANGALORE-56, NOW AT NO.25/1, 2ND FLOOR, SHAKARANARAYANA BUILDING, M.G. ROAD, BANGALORE-560001.
BY ITS MANAGER(LEGAL) ... APPELLANT (BY SRI. LINGARAJ H.S, ADV.,) AND:
1. SUSHEELAMMA, NOW AGED ABOUT 27 YEARS, W/O LATE HANUMANTHAPPA @ HANUMANTHRAYAPPA T.H.
2. MADHU T.H, NOW AGED ABOUT 9 YEARS.
S/O. HANUMANTHAPPA @ HANUMANTHRAYAPPA T.H.
3. MARUTHI T.H, NOW AGED ABOUT 7 YEARS. S/O. LATE HANUMANTHAPPA @ HANUMANTHARAYAPPA T.H, (RESPONDENT NO. 2 & 3 BEING MINORS REP. BY THEIR MOTHER, RESPONDENT NO.1) 4. HANUMANTHRAYAPPA, NOW AGED ABOUT 52 YEARS. S/O LATE ANJINAPPA.
5. NINGAMMA AGED ABOUT 49 YEARS. W/O HANUMANTHRAYAPPA.
ALL R/AT TAVAKADAHALLI VILLAGE, BIJAVARA POST, KASABA HOBLI, MADHUGIRI TALUK, NOW R/A SHAGADADU VILLAGE, BUKKAPATNA HOBLI, SIRA TALUK, TUMKUR DISTRICT-572 101.
6. RCI LOGISTICS PRIVATE LIMITED, PLOT NO.45, BLOCK NO.35, AUTO NAGAR, RANGAREDDY, HYDERABAD-560070, ANDHRA PRADESH, REP. BY ITS PROPRIETOR, PAWANKUMAR GUPTA. … RESPONDENTS (BY SRI. BOPANNA B. ADV. FOR R1; R4 AND R5;
R2 AND R3 MINORS REPT. BY R1) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.04.2016 PASSED IN MVC NO.1452/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE & ADDITIONAL MACT, SIRA, AWARDING COMPENSATION OF RS.9,80,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THESE APPEALS COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Heard the learned counsel for the appellants and respondents in both the appeals.
2. The appellants in MFA No.5723/2016 are the wife, children and parents of the deceased Hanumanthappa. It is their case that on 23.07.2014 at 6.30 p.m., Hanumanthappa was proceeding along with others in Eicher lorry bearing Reg.No.KA 06 B 6418 as a labourer from Sira to Hospet to bring Hens, when they reached near Vyasanakere Railway Station, driver of the Container lorry bearing Reg.No.AP 29 TA 6272 driven the same in a rash and negligent manner with high speed and dashed against the Eicher and caused the accident, as a result of which Hanumanthappa succumbed to injuries. Hence, the appellants filed a claim petition before the Senior Civil Judge & Addl. MACT at Sira in MVC No.1452/2014 seeking compensation. The Tribunal has awarded a compensation of Rs.9,80,000/-. Aggrieved by the judgment and award dated 30.4.2016, the appellants have filed this appeal seeking enhancement of compensation.
3. In MFA No.7523/2016 the Insurance Company has filed this appeal aggrieved by the judgment and award in MVC No.1452/2014 passed by the Court of Senior Civil Judge and Addl. MACT, Sira.
4. The learned counsel for the respondent- Insurance company has urged two grounds i.e., the deceased was an employee under the employer i.e., owner and the appellants have not produced any endorsement or documents to show that they have not obtained any compensation from his employer on account of the death of the deceased. Secondly notice was issued to the owner of the lorry for the purpose of producing driving licence, but he has not responded to the notice. Hence adverse inference has to be drawn that the driver of the lorry was not having a valid and effective D.L. to drive the vehicle, and sought for dismissal of the appeal.
5. In the appeal filed by the appellants seeking for enhancement of compensation, the learned counsel for the appellants has contended that before the Tribunal the appellants have stated that the deceased was earning Rs.10,000/- p.m. as he was working as a Labour and driver. But the Tribunal has disbelieved the income of the deceased and assessed the income of the deceased at Rs.6000/- p.m. which is on the lower side. Hence the tribunal has committed error in calculating the income of the deceased. On this ground the award is liable to be modified.
6. I have heard the learned counsel for both sides and perused the judgment and award passed by the Tribunal.
7. The occurrence of the accident and death of Hanumanthappa @ Hanumanthararappa is not in dispute. The claimants are wife and minor children and parents of the deceased. It is the case of the claimant that the deceased was proceeding in a Eicher lorry from Sira to Hospet to bring Hens load as a labour and when they reached near Vyasanakere Railway Station, lorry bearing No. AP 29 TA 6272 came in a rash and negligent manner with high speed and dashed against the lorry in which the deceased was traveling. As a result of which the deceased succumbed to the injuries. The deceased was working as a loader and unloader under the employer and getting salary of Rs.10000/-
p.m. The same has been disbelieved by the Tribunal despite the fact that the appellants have placed their evidence to the effect that the deceased was earning Rs.10000/-p.m. and the Tribunal has not assigned any proper reasons and to assess the income at Rs.6000/- p.m.
8. In the appeal filed by the Insurance company the learned counsel has taken a specific ground that notice issued to the owner to state that whether the driver of the insured vehicle was having a valid and effective D.L. on the date of the accident. In case the notice is not responded by the witness, the tribunal could have taken coercive steps to summon the witness. Under these circumstances, the grounds urged by the claimant are not valid grounds.
9. Further the claimants-appellants have produced Ex.P.18 AIR Report with regard to information about D.L. and other particulars. The Tribunal has examined the said documents and having satisfied to the fact that the driver was having valid and effective D.L. proceeded to fasten the liability on the owner who is vicariously liable to pay the compensation. Under these circumstances, I do not find any error committed by the tribunal in fastening the liability.
10. In the appeal filed for enhancement of compensation, the appellants claimed the income of the deceased at Rs.10,000/- and also it was the case of the claimants that the Tribunal has assessed the income of the deceased at Rs.6000/- p.m. for the purpose of assessing loss of dependency, as the claimants have failed to prove the income of the deceased. Then it is for the tribunal to assess notional income of the deceased wherein the claimants are illiterate and not in a position to produce any documents to prove income of the deceased, avocation etc., but that itself is not a ground to assess the income which is disproportionate to his nature of work. In the facts and circumstances, though the appellants have not proved the income and avocation of the deceased, considering the year of accident as 2014, size of the family, price index, cost of living, the notional income of the deceased, has to be assessed. In similar circumstances the Hon’ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LTD. Vs. PRANAY SETHI & ORS reported in 2017 SCC Online SC 1270, wherein the Supreme Court has held that the age of the deceased is to be taken for awarding the compensation. In the above said circumstances, considering the said aspect, the notional income is to be assessed taking into consideration the size of the family of the deceased. In the present case, the family of the deceased consists of six persons and he was the only bread earner of the family. Taking into consideration the facts and circumstances of the case, a sum of Rs.10,000/- p.m. is a reasonable amount as income of the deceased, for the purpose to maintain the family and also meet the educational expenses of the children. Hence, notional income of the deceased is assessed at Rs.10,000/- p.m. Thus the loss of income is assessed by deducting 1/4th of the income towards his personal expenses. Hence, the appellants- claimants entitled for a sum of Rs.15,30,000/-(1/4th of 10000is Rs.2500/-, 7500X12X17) towards loss of dependency. The appellants are also entitled for a sum of Rs.70,000/- under other conventional heads and totally Rs.16,00,000/- as against Rs.9,80,000/- awarded by the Tribunal. The compensation amount carries interest at the rate of 6% p.a. from the date of petition till payment.
* * Deleted vide Court Order dated 7.12.2018 * After completion of 20 years, whatever interest accrued and balance remaining is to be paid to the claimant No.1 and corpus fund of Rs.4,00,000/- to be refunded to Insurance Company.
With these observations, the appeal filed by the appellants is allowed in part. The appeal filed by the Insurance company is dismissed.
The amount in deposit is to be transferred to the Tribunal for disbursement.
Sd/- JUDGE Psg* CT-ADP * Deleted vide Court Order dated 7.12.2018 LNSJ:
07th December 2018 ORDER on IA.I OF 2018 IN MFA 7523 OF 2016 This appeal was disposed of on 14th December 2017 by enhancing the compensation to Rs.16,00,000/- as against Rs.9,80,000/- awarded by the Tribunal.
IA.I of 2018 is filed by the learned counsel for the appellant-Insurance Company in MFA No.7523 of 2016 seeking modification of judgment.
The learned counsel prays for modification of the judgment. He submits that the appellant-Insurance company is not in a position to trace the progress of education of the minor respondents No.2 and 3 or can keep track of their education career and it has no apparatus to monitor the same. He also submits that the appellant would have no hold either with the Bank or the educational institution. Hence, he prays to allow the application.
Heard the learned counsel for the appellant. In the facts and circumstances of the case, I find some force in the submission made. In that view of the matter, the observation made in paragraph 11 of the judgment to the extent of depositing of Rs.2,00,000/- each in the names of appellants No.2 and 3 as corpus fund towards educational purpose in any of the nationalised banks, stand deleted. The rest of the order remains intact.
IA.I of 2018 is accordingly allowed. This order is directed to be read along with the Judgement dated 14th December 2017.
Registry to issue certified copy of this order to the parties.
Sd/- JUDGE lnn