IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 13TH DAY OF DECEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MS. JUSTICE JYOTI MULIMANI M.F.A. No.1117/2018 C/W M.F.A. No.7283/2018, M.F.A. No.1116/2018 & M.F.A. No.1118/2018 (MV-D) M.F.A. No.1117/2018(MV-D) BETWEEN:
THE MANAGER TATA MOTORS INSURANCE NATIONAL INSURANCE CO. LTD., NEAR KSRTC BUS STAND P.B. ROAD, CHITRADURGA BY NATIONAL INSURANCE CO. LTD., REGIONAL OFFICE, NO.144 SUBHARAM COMPLEX, M.G ROAD BENGALURU - 560 001.
BY IT’S MANAGER (BY SRI. O.MAHESH, ADVOCATE) AND:
1. SMT. M. C. SOWBHAGYA AGED ABOUT 42 YEARS W/O LATE C. THIPPESWAMY HOUSE WIFE 2. KUM. T NAMITHA AGED ABOUT 59 YEARS D/O LATE C. THIPPESWAMY ... APPELLANT BOTH R/O TARALUBALU NAGARA TAMATAKALLU ROAD CHITRADURGA TOWN & DISTRICT.
3. SRI. RAVICHANDRA S.M.
MAJOR, SON OF CHIDANANDAIAH R/O # 165, MITRA BADAVANE MEDEHALLY VILLAGE CHITRADURGA TALUK & DIST.
... RESPONDENTS (BY SRI. R. SHASHIDHARA, ADVOCATE FOR R1 AND R2 SRI. SPOORTHY HEGDE NAGARAJA., ADVOCATE FOR R3.) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:23.08.2017 PASSED IN MVC NO.411/2016 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., CHITRADURGA, AWARDING COMPENSATION OF RS.23,35,000/- WITH INTEREST @ 9% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
M.F.A. No.7283/2018(MV-D) BETWEEN:
1. SMT. S. POORNIMA W/O. G ESWARAN AGED ABOUT 45 YEARS, HOUSEHOLD WORK 2. SRI. G. ESWARAN S/O GURUSIDDAPPA AGED ABOUT 57 YEARS BOTH ARE R/O ARALIKATTE VILLAGE HIRIYUR TALUK, NOW R/O DAVALAGIRI BADAVANE CHITRADURGA TOWN AND DISTRICT – 577 501.
... APPELLANTS (BY SRI. R. SHASHIDHARA, ADVOCATE) AND:
1. SRI. RAVICHANDRA S.M. S/O. CHIDANANDAIAH MAJOR, OWNER OF CAR BEARING NO. KA-16/C-1681 R/O. # 165, MITRA BADAVANE MEDEHALLY VILLAGE CHITRADURGA TALUK – 577 501.
2. THE DIVISIONAL MANAGER NATIONAL INSURANCE CO. LTD., BAPUJI DENTAL COLLEGE ROAD MCC-B-BLOCK, DAVANAGERE PIN – 577 001.
... RESPONDENTS (BY SRI. O. MAHESH, ADVOCATE FOR R2 SRI. SPOORTHY HEGDE NAGARAJA, ADVOCATE FOR R1) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGEMENT AND AWARD DATED:23/08/2017, PASSED IN MV NO.314/2016, ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSION AND SEEKING ENHANCEMENT OF COMPENSATION.
M.F.A. No.1116/2018(MV-D) BETWEEN:
THE DIVISIONAL MANAGER NATIONAL INSURANCE CO. LTD., BAPUJI, DENTAL COLLEGE ROAD M.C.C ‘A’ BLOCK, DAVANAGERE TOWN BY NATIONAL INSURANCE CO. LTD., REGIONAL OFFICE, NO.144 SUBHARAM COMPLEX, M G ROAD, BENGALURU - 560 001 B IT’S MANAGER ... APPELLANT (BY SRI. O. MAHESH, ADVOCATE) AND:
1. SMT. S. POORNIMA W/O G. ESWARAN AGED ABOUT 45 YEARS HOUSEHOLD WORK 2. SRI. G ESWARAN S/O GURUSIDDAPPA AGED ABOUT 57 YEARS BOTH ARE R/O ARALIKATTE VILLAGE HIRIYURU TALUK NOW R/O DAVALAGIRI BADAVANE CHITRADURGA TOWN & DISTRICT -577 501 3. SRI. RAVICHANDRA S.M. MAJOR, SON OF CHIDANANDAIAH R/O # 165, MITRA BADAVANE MADEHALLY VILLAGE CHITRADURGA TALUK & DIST – 577 501 ... RESPONDENTS (BY SRI. SPOORTHY HEGDE NAGARAJA, ADVOCATE FOR R3 SRI. R. SHASHIDHARA, ADVOCATE FOR R1 & R2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:23.08.2017 PASSED IN MVC NO.314/2016 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE & JMFC., CHITRADURGA, AWARDING COMPENSATION OF RS.23,35,000/-WITH INTEREST @ 9% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
M.F.A. No.1118/2018 (MV-D) BETWEEN:
THE MANAGER TATA MOTORS INSURANCE NATIONAL INSURANCE CO. LTD., NEAR KSRTC BUS STAND P.B. ROAD, CHITRADURGA BY NATIONAL INSURANCE CO. LTD., REGIONAL OFIFCE, NO.144 SUBHARAM COMPLEX, M.G. ROAD BENGALURU - 560 001.
BY IT’S MANAGER (BY SRI. O. MAHESH., ADVOCATE) AND:
1. SMT. M. C. SUJATHA AGED ABOUT 44 YEARS ... APPELLANT W/O K. MURUGENDRA HOUSEHOLD WORK.
2. SRI. K.M. MURUENDRA AGED ABOUT 52 YEARS S/O K.S. MAHADEVAPPA AGRICULTURIST 3. KUM. ROJA K.M.
D/O K.M. MURUGENDRA B.E. STUDENT [C.S] 4. SRI. K.S. MAHADEVAPPA AGED ABOUT 85 YEARS S/O SHIVALILNGAPPA AGRICULTURIST ALL R/O HODIGERE VILLAGE CHANNAGIRI TALUK NOW R/O DAVALAGIRI BADAVANE HOLALKERE ROAD CHITRADURGA TOWN - 577 501.
5. SRI. RAVICHANDRA S.M.
MAJOR, SON OF CHIDANANDAIAH R/O #165, MITRA BADAVANE MEDEHALLY VILLAGE CHITRADURGA TALUK & DIST – 577 501.
... RESPONDENTS (BY SRI. SPOORTHY HEGDE NAGARAJA., ADVOCATE FOR R5 SRI. R. SHASHIDHARA., ADVOCATE FOR R1 TO R4) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGEMENT AND AWARD DATED:23.08.2017 PASSED IN MVC NO.539/2016 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., CHITRADURGA, AWARDING COMPENSATION OF RS.22,15,000/-WITH INTEREST @ P.A. FROM THE DATED OF PETITION TILL REALIZATION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-
J U D G M E N T Though these appeals are listed for admission, with the consent of learned counsel on both sides, they are heard finally.
2. MFA.Nos.1117/2018, 1116/2018 and 1118/ 2018 are filed by the insurance companies, while MFA. No.7283/2018 is filed by the claimants in MVC.No.314/2016. All these appeals assail the judgment and awards passed in MVC.No.314/2016 c/w. MVC. Nos.411/2016 and 539/2016, dated 23/08/2017, by the II Addl. Senior Civil Judge & JMFC at Chitradurga (hereinafter referred to as “the Tribunal” for the sake of brevity).
3. For the sake of convenience, the parties shall be referred to in terms of their status and ranking before the Tribunal.
4. MVC.Nos.314/2016, 411/2016 and 539/2016 were filed by the legal representatives of deceased E.Harsha (MVC.No.314/2016), T. Pavan Kumar (MVC.No.411/2016)and Rakesh K.M.(MVC.No.539/2016) under Section 166 of the Motor Vehicles Act, 1988 seeking compensation on account of their death in a road traffic accident that occurred on 08/10/2015 at about 3.30 p.m.
5. It is the case of the claimants that on the fateful day, the deceased were proceeding in Indigo CS car bearing registration No.KA-16-C-1681 from Chitradurga to Kurugodu, in order to visit Kurugodu Sri Basaveshwara Temple. At about 3.30 p.m., when the said car came near Booklurahalli Gate in between the Booklurahalli -B.G.Kere on NH-150(A), Talaku-Bellary Road, at that time the driver of the car drove the same in a rash and negligent manner and at a high speed without following traffic rules and dashed against the road side bridge. As a result, Harsha, Pavan Kumar and Rakesh died on the spot. Post-mortem examination on the dead bodies were conducted and handed over to the respective families who conducted cremation and funeral ceremonies.
6. The facts in each of the cases are as under:
(a) In MVC.No.314/2016, the parents of the deceased, Harsha, contended that he was 23 years of age and he was hale and healthy. He was studying in B.E. (Civil), 4th semester and was also an agriculturist. He would have earned atleast Rs.15,00,000/- per annum and that after completion of his Engineering, he had good prospects in his career. His death has caused great financial loss and misery to the family.
(b) In MVC.No.411/2016, the petitioners/mother and younger sister of the deceased, Pavan Kumar, contended that he was studying in B.E. 7th semester at SJMIT College, Chitradurga and he was a very intelligent student. He would have earned atleast Rs.15,00,000/- per annum after completion of his Engineering. He had a bright future and due to his death, his family members lost an earning member and were suffering great financial loss and misery.
(c) Similarly, MVC.No.539/2016, the parents of the deceased, younger sister and grand-father of the deceased, Rakesh K.M., contended that he was studying in B.E.(Electronic & Communication) at SJMIT College in Chitradurga in 7th semester. That he was an intelligent student and would have earned atleast Rs.20,00,000/- per annum. That on account of his sudden death, the family was in misery and penury. They contended that the accident occurred due to rash and negligent driving of the car bearing No.KA-16-C-1681 by respondent No.1 being the RC owner and the insurer of the car were liable to pay compensation to the claimants.
7. In response to the notices issued by the Tribunal, respondent No.1/driver of the offending car in MVC.No.411/2016 did not appear and was placed ex parte. The owner and insurer of the car appeared through their respective counsel and filed their separate statement of objections and denied the material averments in the claim petition and contended that there was no negligence on the part of the driver of the car. That the compensation claimed was exorbitant and there was no merit in the claim petitions. The owner of the car sought for dismissal of the claim petitions.
8. Similarly, the insurance company, by denying the averments made in the claim petition contended that any liability to satisfy the award would be subject to the terms and conditions of the policy.
9. On the basis of the rival pleadings, the Tribunal framed the following issues in each of the cases as under:
ISSUES IN MVC.NO.314/2016 (i) Whether the petitioner proves that E. Harsha S/o. Eswarappa sustained fatal injuries in the RTA on 08/10/2015 at about 03.30p.m. near Booklarahally Gate, due to rash and negligent driving of driver of car bearing registration No.KA-16-C-1681?
(ii) Whether the petitioners are entitled for compensation? If so, at what quantum and from whom?
(iii) What order or award?
ISSUES IN MVC.NO.411/2016 (i) Whether the petitioner proves that T. Pavan Kumar, son of C.Thippeswamy sustained fatal injuries in the RTA on 08/10/2015 at about 03.30p.m. near Booklarahally Gate, B.G.Kere, NH-150 Road, Challakere Taluk due to rash and negligent driving of driver of car bearing registration No.KA-16-C-1681?
(ii) Whether the petitioners are entitled for compensation? If so, at what quantum and from whom?
(iii) What order or award?
ISSUES IN MVC.NOS.539/2016 & 411/2016 (i) Whether the petitioner proves that K.M.Rakesh, S/o.K.M.Murugendra sustained fatal injuries in the RTA on 08/10/2015 at about 03.30p.m. near Booklarahally Gate, B.G.Kere, NH-150 Road, Challakere Taluk due to rash and negligent driving of driver of car bearing registration No.KA-16-C-1681?
(ii) Whether the petitioners are entitled for compensation? If so, at what quantum and from whom?
(iii) What order or award?
10. In order to prove their case, the claimants examined three witnesses as PWs.1 to 3. They produced thirty-six documents, which were marked as Exs.P-1 to P- 36, while the respondent examined three witnesses as RWs.1 to 3 and they produced ten documents marked as Exs.R-1 to R-10.
11. On the basis of the evidence on record, the Tribunal answered issue Nos.1 in all the cases in the affirmative, issue No.2 partly in the affirmative and awarded compensation of Rs.23,35,000/- in MVC.Nos.314/2016 and 411/2016, and Rs.22,15,000/- in MVC.No.539/2016 with interest at the rate of 9% per annum from the date of the claim petitions till realization and directed the owner and insurer of the car to satisfy the awards jointly and severally.
12. Being aggrieved by the judgment and awards and the directions issued to the insurance company to satisfy the awards jointly and severally with the owner of the car, the insurance companies have preferred MFA.Nos.1117/2018, 1116/2018 and 1118/2018, while the claimants in MVC.No.314/2016 have preferred MFA.No.7283/2018 seeking enhancement of compensation. Since these appeals arise out of a common judgment and awards passed by the Tribunal, they have been connected and heard together and disposed of by this common judgment.
13. We have heard Sri O.Mahesh, learned counsel for the appellant insurer and Sri R. Shashidhara, learned counsel for the respondent/claimants and Sri Spoorthi Hegde Nagaraja, learned counsel for the owner of the car and perused the material on record as well as the original record.
14. Appellant’s counsel made a two-fold submission: firstly, he contended that the driver of the car did not possess a transport endorsement on his Driving Licence. Though the car is a light motor vehicle and the driver possessed licence to drive such a vehicle, but in the absence of there being a transport endorsement, there was a clear breach of the terms and conditions of the insurance policy. The said aspect has been established by the respondent/insurance company by letting in both oral and documentary evidence, but the Tribunal has ignored the said evidence and directed the appellant/insurer to satisfy the awards jointly and severally with the insured. He contended that the insurance company may be exonerated of its liability to satisfy the awards.
15. He next contended that the quantum of compensation awarded in each of the cases is exorbitant as the deceased were not earning members. They were only students and therefore, a notional income had to be assessed. But the Tribunal has assessed the notional income at Rs.10,000/- per month, which is on the higher side. Moreover, they were all bachelors. Therefore, 50% of the said amount had to be deducted towards personal expenses of the deceased. Hence, the compensation awarded is on the higher side and the same may be scaled down on re-assessment. Learned counsel for the appellant/insurance company further contended that the award of interest at 9% per annum on the compensation determined in each of the cases is exorbitant and without any reason. That normally, this Court as well as the Tribunal would award interest at the rate of 6% per annum only having regard to the fact that the rate of interest that is awarded by the Tribunal has reduced considerably. He contended that in the instant case, if the liability is fastened on the insurance company, the rate of interest has to be reduced to 6% per annum.
16. Per contra, learned counsel for the claimants contended that the award of compensation in MVC.No.411/2016 and MVC.No.539/2016 would not call for any interference, but the award of compensation of Rs.23,35,000/- in MVC.No.314/2016 may be enhanced. He contended that the deceased were Engineering students and they would have had good career prospects, but for their premature death. That this Court would normally assess the notional income in the case of death of an Engineering student at Rs.15,000/- per month. The same may be taken into consideration and the compensation may be re-assessed and enhanced in the instant case. He submitted that the appellants are also entitled for compensation towards future prospects of the deceased as enunciated by the Hon’ble Supreme Court in its recent judgment reported in the case of National Insurance Company Limited vs. Pranay Sethi [(2017)16 SCC 680] (Pranay Sethi). He further submitted that having regard to another dictum of the Hon’ble Supreme Court in the case of Magma General Insurance Company Limited vs. Nanu Ram [2018 ACJ 2782](Magma General Insurance Company), the claimants are entitled to enhanced compensation on the conventional heads.
17. Learned counsel for the claimants further submitted that there is no merit in the contention of appellant’s counsel with regard to the liability of the insurance company to satisfy the awards on account of the recent dictum of the Hon’ble Supreme Court in the case of Mukund Dewangan vs. Oriental Insurance Company Limited [AIR 2017 SC 3678] (Mukund Dewangan). He submitted that the Tribunal has rightly fastened the liability jointly and severally on the owner as well as the insurance company and the same would not call for any interference.
18. On the question of rate of interest awarded by the Tribunal at 9% per annum, learned counsel for the claimants contended that the same also would not call for any interference since the deceased were young students and for the unfortunate accident, they would have had a long life and bright future. He submitted that there is no merit in the appeals filed by the insurance company and the same may be dismissed and that the appeal filed by the claimants in MFA.No.7283/2018 may be allowed.
19. Learned counsel for the respondent/owner of the vehicle supported the judgment and award of the Tribunal on the issue of fastening of liability on the owner and insurer jointly and severally and he contended that the driver of the offending vehicle had the skill and qualification to drive the car in question, which is a light motor vehicle and there is no merit in the appeals filed by the insurance company and the same may be dismissed.
20. By way of reply, learned counsel for the insurance company fairly submitted that in view of the judgment of the Hon’ble Supreme Court in the case of Mukund Dewangan, he would not press the aspect of liability of the insurance company to satisfy the awards. That even in the absence of there being any endorsement on the driving licence of a person, who has the skill to drive a light motor vehicle as defined under Section 2(21) of the Act, he is not disqualified from driving such a vehicle. He therefore contended that the liability to satisfy the award is joint and several. He, however, submitted that there is no merit in MFA.No.7283/2018 filed by the claimants in MVC.No.314/2016 seeking enhancement of compensation.
21. Having heard learned counsel for the respective parties and on perusal of the material on record, the following points would arise for our consideration:
(i) Whether the insurance company is liable to satisfy the awards jointly and severally with the respondent/insurer?
(ii) Whether the claimants in MVC.No.314/2016 are entitled to additional compensation?
(iii) What order?
22. The fact that Harsha, Pavan Kumar and Rakesh were proceeding in Indigo CS car bearing registration No.KA-16-C-1681 from Chitradurga to Kurugodu, in order to visit Kurugodu Sri Basaveshwara Temple on 08/10/2015 at about 3.30 p.m. and at that time, the driver of the car drove the same at high speed and in a rash and negligent manner and dashed against road side bridge leading to the death of three persons on the spot, has been established. The Tribunal awarded compensation of Rs.23,35,000/- in MVC.Nos.314/2016 and 411/2016 and Rs.22,50,000/- in MVC.No.539/2016 with interest at the rate of 9% per annum and directed that the owner and insurer of the car are jointly and severally liable to satisfy the award.
23. The contentions of learned counsel for the insurance company and learned counsel for the owner of the vehicle as well as the claimants need not call for reiteration. Having regard to the dictum of the Hon’ble Supreme Court in the case of Mukund Dewangan, point No.1 raised in this appeal would have to be answered against the insurer and in favour of the claimants and the insurer. Consequently, the direction issued to the insurance company to satisfy the awards jointly and severally along with the owner of the car would not call for any modification. Hence, the appellant/insurance company is liable to satisfy the awards in the instant case.
24. The award of compensation in each of the cases is having regard to the fact that the deceased were prosecuting their studies in Bachelor of Engineering Course (B.E.) in different branches. The Tribunal has assessed the notional income at Rs.10,000/- per month. It has added future prospects to an extent of 50% and deducted 50% of the said sum towards personal expenses of the deceased and thereafter by annualizing the same and applying appropriate multiplier, awarded compensation on the head of loss of dependency as well as functional heads. However, we find that the assessment of notional income in each of the cases is on the lower side. It has to be at Rs.15,000/- per month since the deceased were prosecuting a professional course i.e., Bachelor of Engineering in different branches and therefore, they were not students who were prosecuting an ordinary degree course. In the circumstances, if Rs.15,000/- is considered to be the notional income per month, 40% of the same would have to be added towards future prospects having regard to the dictum of the Hon’ble Supreme Court in the case of Pranay Sethi. Thereafter, 50% would have to be deducted towards personal expenses of the deceased since they were bachelors. The resultant sum is Rs.15,000 + 40% of Rs.15,000 = Rs.6,000 and Rs.15,000 + Rs.6,000 = Rs.21,000. The same have to be halved, which is Rs.10,500; Rs.10,500 x 12 x 18 = Rs.22,68,000, which is the compensation to be assessed on the head of loss of dependency.
25. In addition, parents of the deceased would have to be awarded a sum of Rs.30,000/- each on the head of loss of filial consortium and love and affection and a sum of Rs.15,000/- is awarded towards loss of estate and Rs.15,000/- towards funeral expenses.
26. Thus, the total compensation in MVC.No.314/2016 is Rs.23,28,000/-.
27. Similarly, in MVC.No.411/2016, wherein the claimants are mother and sister of the deceased, are also entitled for Rs.30,000/- each. The compensation re- assessed is Rs.23,28,000/-. However, the Tribunal has awarded Rs.23,35,000/-, the difference is very minimal i.e., only Rs.7,000/-,we do not propose to lower the said amount. However, on the said compensation, the interest is reduced to 6% per annum instead of 9% as awarded by the Tribunal.
28. Insofar as MVC.No.539/2016 is concerned, the claimants are parents, sister and grand father of the deceased, Rakesh. The Tribunal has awarded Rs.22,15,000/-. In the said case, taking into consideration Rs.15,000/- as notional monthly income and adding 40% to the same, the total would be Rs.21,000/-. 50% of the same has to be deducted towards personal expenses of the deceased which would be Rs.10,500/-. The same has to be annualized and the appropriate multiplier of “17” has to be applied, in which case, the compensation would be Rs.21,42,000/-.
29. The claimants are his parents who are together entitled to Rs.60,000/- towards loss of filial consortium. His sister is entitled to Rs.30,000/- towards loss of love and affection and the grand father of the deceased is entitled to Rs.15,000/- towards loss of love and affection. Further, a sum of Rs.15,000/- is awarded towards loss of estate and another sum of Rs.15,000/- towards funeral expenses. Thus, the total compensation is Rs.22,77,000/-. However, since no appeal has been filed in the said case, the compensation is retained as Rs.22,15,000/- only as awarded by the Tribunal and the interest is also retained at 9% per annum as awarded by the Tribunal. Since, on re- assessment of the compensation, we find that the claimants are entitled to a higher compensation than what has been awarded by the Tribunal. But we hasten to add that the rate of interest in the other two claim petitions is scaled down to 6% per annum only. Accordingly, point No.2 is answered.
30. In the result, MFA.Nos.1117/2018 and 1116/2018 are allowed in part by reducing the rate of interest from 9% per annum to 6% per annum and by directing the insurance company to satisfy the awards. However, MFA.No.1118/2018 is dismissed for the aforesaid reasons. Similarly, MFA.No.7283/2018 which arises out of MFA.No.314/2016, the appeal is dismissed.
31. The appellant/insurer to deposit the compensation amount in terms of the aforesaid directions within a period of four weeks from the date of receipt of certified copy of this judgment.
The directions issued by the Tribunal with regard to apportionment and for release are affirmed.
Parties to bear their respective costs.
The registry to transmit the original record to the concerned Tribunal forthwith.
Sd/- JUDGE Sd/- JUDGE S*