1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF MAY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 488 OF 2015 (MV) CONNECTED WITH MFA NO. 6174 OF 2016 (MV) MFA NO.488 OF 2015: BETWEEN 1. Thimmamma W/o Late Machaiah Aged about 55 Years 2. Bhagya D/o Late Machaiah W/o Late Shashikumar Aged about 33 Years 3. Dhanalakshmi D/o Late Shashikumar Aged about 14 Years Since Minor Represented by her Natural Guardian and Mother Appellant No.2 All are residing at Nilikere Gollarahatti Nonavinakere Hobli Tiptur Taluk Now residing at C/o Jayakrishna S/o Siddappa Mallasandra Gollarahatti Tumkur Taluk 572 101.
... Appellants (By Sri. Shantharaj K., Advocate) AND 1. Mudalagiriyappa S/o Late Krishnappa Aged about 51 Years R/at Rajathadripura Kibbanahalli Post Tiptur Taluk Tumkur District 572 201 2. Tata AIG General Insurance Company Limited Rep. by its Manager II Floor, J.P And Devi Jambukeshwara Arcade No.69, Millers Road Bangalore 560 052.
... Respondents (By Sri. M. V. Maheswarappa, Adv. for R-1; Sri. S. V. Hegde Mulkhand, Adv. for R-2) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 07.03.2014 passed in MVC No.742/2012 on the file of the II Additional District and Sessions Judge, MACT, Tumkur, partly allowing the claim petition for compensation and seeking enhancement of compensation.
MFA NO.6174 OF 2016: BETWEEN Smt. Thayamma W/o Kempanarasaiah Aged about 41 years R/o Rajathadripura Kibbanahalli Hobli Tiptur Taluk Tumkur District - 572 201.
... Appellant (By Sri. Rudrappa P., Advocate) AND 1. Mudalagiriyappa S/o Late Krishnappa R/o Rajathadripura Kibbanahalli Hobli Tiptur Taluk Tumkur District - 572 201.
2. Tata AIG General Insurance Co., Ltd., 2nd Floor J.P and Devi Jambakeswara Arcade No. 69, Millers Road Bangalore - 560 052.
... Respondents (By Sri. M. V. Maheswarappa, Adv. For R-1; Sri. S. V. Hegde Mulkhand, Adv. For R2) This MFA is filed under section 173(1) of MV Act against the judgment and award dated 29.06.2015 passed in MVC No.161/2013 on the file of the Senior Civil Judge, & XIV MACT, Tiptur, partly allowing the claim petition for compensation and seeking enhancement of compensation.
These MFAs’ coming on for admission, this day, the court delivered the following:
JUDGMENT Though these matters are listed for admission, with the consent of the learned counsel for both the parties, the same are heard for final disposal.
2. Heard learned counsel for the appellants/claimants in both the appeals and learned counsel for the Insurance Company and perused the records.
3. MFA No.488/2015 is preferred by the appellants/claimants against the judgment and award dated 07.03.2014 rendered by the Tribunal in MVC No.742/2012. MFA No.6174/2016 is preferred against the judgment and award dated 29.06.2015 rendered by the Tribunal in MVC No.161/2013. Both the appeals arise out of the same accident.
4. The factual matrix of the appeals is that:
It is stated in the claim petitions that on 05.01.2012 at about 6.00 p.m., deceased Machaiah and injured Thayamma were proceeding in an auto bearing Regn.No.KA-44-4058 on K.B.Cross-Hosahalli road, when they reached Mayura Hotel, the driver of the said auto drove the same in a rash and negligent manner and with a high speed. As a result, the auto capsized and caused the accident, due to which Machaiah sustained grievous injuries and died at the spot. Machaiah was earning Rs.10,000/- p.m. as an agriculturist. Due to the untimely death of Machaiah, claimants being the LRs of the deceased having suffered loss of income and having put to great hardship and mental agony, filed claim petition in MVC No.742/2012 before the Tribunal, seeking compensation.
5. In the said accident, Smt.Thayamma also sustained grievous injuries and she took treatment for more than one month at Hemavathi Hospital, Tiptur. She had spent huge amount towards treatment and due to the injuries sustained in the said accident, she is unable to do any work and has suffered loss of income. On these grounds, she filed claim petition in MVC No.161/2013 seeking compensation before the Tribunal.
6. On service of notice, the respondents entered their appearance and filed written statements denying the petition averments.
7. Thereafter the Tribunals framed issues. In order to prove their respective claims, the second petitioner in MVC No.742/2012 was got examined as PW-1 and got marked Exhibits P1 to P9. On behalf of respondents, RW.1 was examined and Exs.R.1 to R.4 were got marked. The Tribunal after evaluation of the oral and documentary evidence on record awarded compensation of Rs.2,64,000/- to the claimants with interest at 8% per annum from the date of petition till the date of realisation.
8. In MVC No.161/2013, Thayamma who is the injured was examined as PW.1 and got marked Exs.P1 to P35. On the other hand, respondent examined 3 witnesses as RW.1 to RW.3 and got marked Exs.R1 to R9. The Tribunal after evaluation of the oral and documentary evidence on record awarded compensation of Rs.61,343/- to the claimant with interest at 6% per annum from the date of petition till the date of realisation.
9. Further, in both claim petitions, the liability was fastened on respondent No.1 being the owner of the offending vehicle and petition against the insurer was dismissed in both the claim petitions. Being not satisfied with the compensation awarded by the Tribunal, the claimants / appellants have preferred the present appeals by urging various grounds.
10. Learned counsel for the appellants in MFA No.488/2015 contends that the Tribunal has failed to note that when the policy itself speaks it is for the passenger carrying vehicle and the policy was in force at the time of the accident, the respondents cannot escape from paying the compensation and the Tribunal could not have exonerated the insurance company from paying the compensation. Further, it is contended that as held by the Hon’ble Apex Court that if a person is holding license to drive a particular vehicle, the insurance company ought to have pay the compensation and the decision in the case of Iyappan is squarely applicable to the facts of the present case and the apex court judgment cannot be held to be a per inquirium and the decision relied upon by the Tribunal in exonerating the insurance company are not applicable to the facts of the present case. Further, it is contended that monthly income assessed by the Tribunal as against the year of accident and avocation of the deceased is on lower side and the needs to be modified. Further, he contends that the compensation awarded under the conventional heads is also on lower side and the same needs enhancement.
11. Learned counsel for the appellant in MFA No.6174/2016 contends that the quantum of compensation awarded by the Tribunal is on lower side, and the Tribunal, without considering the materials placed on record, erred in awarding meager compensation and the same requires enhancement. Due to the accident, the appellant has suffered grievous injuries and spent huge amount towards medical expenses. The appellant was hale and healthy prior to the accident and she was doing milk vending and agriculture work and was earning Rs.15,000/- pm. The Tribunal has awarded a very meager compensation under different heads without appreciating the evidence properly. Further, it is contended no compensation has been awarded towards loss of future income due to the disability suffered by the appellant.
12. Further, learned counsel for the claimants in both the appeals vehemently contended that the Tribunal erred in absolving the Insurer of its liability on the ground that driver of the vehicle involved in the accident had no valid and effective driving license i.e., he had driving license to drive LMV without transport endorsement. This finding of the Tribunal is contrary to law declared by the Hon’ble Apex Court. In support of this contention reliance is placed on a decision of the Apex Court in the case of MUKUND DEWANGAN VS. ORIENTAL INSURANCE CO.LTD., ((2017) 14 SCC 663). On all these grounds, learned counsel for the appellants prays for interference of this Court and seek for enhancement of compensation by allowing the appeals.
13. Per contra, Sri S.V.Hegde Mulkhand, learned counsel for the Insurance Company has denied all the material averments made out in both the claim petitions. Further, he has denied the negligence attributed against the driver of the offending vehicle. The policy condition being violated by the owner, the liability of the insurer does not arise and the Tribunal has rightly fastened the liability on the owner of the vehicle. Further, he vehemently contends that the driver of the offending auto rickshaw had no valid and effective driving license as on the date of accident. The driver had license to drive only a non-transport vehicle.
But the vehicle involved in the accident is an auto which is used for commercial purpose.
14. He further contends that appellants in MFA No.488/2015 have not produced any documents in proof of income of deceased – Machaiah. Further, as on the date of accident, deceased – Machaiah was 60 years old. The Tribunal has rightly held Rs.3,000/- as his monthly income. Similarly, in MFA No.6174/2016, no documents has been produced relating to loss of future income. Further, the claimant has not examined the concerned doctor to prove the fact that she suffered from permanent disability. Hence, the Tribunal by considering the age and occupation and the status of the claimant – Thayamma, has rightly awarded a sum of Rs.61,343/- with interest @ 6% p.a. which is just and reasonable and there is no justifiable ground for this Court to interfere with the impugned judgment and award. It is further contended that the Tribunal, on appreciation of oral and documentary evidence on record, has rightly assessed the income and awarded just and fair compensation, and the same does not call for any interference and prays for dismissal of the appeals.
15. Keeping in view the submissions made by learned counsel for the appellants and learned counsel for the respondent/insurance company in both the appeals, it is relevant to state that the accident occurred on account of rash and negligent driving of the offending auto rickshaw bearing Regn.No.KA-44-4058 due to which one Machaiah died. The Tribunal in MVC No.742/2012 on appreciation of the evidence on record held that the death of Machaiah was due to the accident because of the rash and negligent driving of the said Autorickshaw.
16. In MVC No.742/2012 claimants are the wife, daughter and grand daughter of deceased - Machaiah. Ex.P1 is the FIR, Ex.P2 is the spot Mahazar, Ex.P3 is the inquest mahazar, Ex.P4 is the PM report and Ex.P5 is the IMV report. In her evidence, PW.1 – Bhagya being the daughter of deceased Machaiah, has stated that her father was an agriculturist and earning Rs.10,000/- pm and the said amount was utilized for eaking out livelihood of the family. Ex.P9 is the RTC extract, but the Tribunal held that the land was not belong to deceased Machaiah. Except the oral testimony of PW.1 there is nothing on record with regard to the income of deceased Machaiah. Hence, the Tribunal assessed the monthly income at Rs.3,000/- p.m. and after deducting 1/3 towards personal expenses, the income was taken at Rs.2,000/- p.m.
17. Having regard to fact that the accident is of the year 2012 and as per the guidelines and illustration in the Lok Adalath chart and in the absence of proof of income, the notional income taken for the relevant year is 7000-8000. Therefore, it will be appropriate if Rs.7,000/- is taken as the monthly income of the deceased. Further, the Tribunal has not considered the aspect of future prospects as held by the Hon’ble Apex Court in National Insurance Co.Ltd vs. Pranay Sethi (AIR 2017 SC 5157) and the same needs to be considered in this appeal. Accordingly, the compensation under the head loss of dependency is re- worked out as under:
Rs.7,700 x 12 x 9 x 2/3 = 5,54,400/-
Thus, under the head ‘loss of dependency’ the claimants are entitled for Rs.5,54,400/- as against Rs.2,16,000/- awarded by the Tribunal and the enhanced compensation would be Rs.3,38,400/-.
18. In so far as compensation to be awarded under the conventional heads with reference to Pranay Sethi’s case as stated supra, it should not be more than Rs.70,000/-. But the Tribunal under the conventional heads has awarded in all a sum of Rs.48,000/-. Therefore, another sum of Rs.22,000/- is awarded under this head.
19. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Particulars Compensation awarded by MACT Compensation by this Court
Thus, in all the claimants in MFA No.488/2015 are entitled for enhanced compensation in a sum of Rs.3,60,400/- with interest @ 6% p.a.
20. In MFA No.6175/2016 – Smt.Thayamma had filed MVC No.161/2013 claiming compensation due the accident that occurred on 05.01.2012 wherein she after completion of her work at Kibbanahalli and in order to go her native place Rajathadripura, herself and her neighbour Jayasheela was sitting in auto at Kibbanahalli cross. When the said auto reached Hindiskere gate and Mayura hotel, at that time the driver of the said auto drove the same in a rash and negligent manner with high speed, due to the said act, the auto capsized on left side and all the members fell down, as a result she sustained injuries. In order to prove her claim, she was examined as PW.1. Ex.P1 is the copy of the FIR, Ex.P2 is the complaint, Ex.P3 is the spot mahazar, Ex.P4 is the IMV report, Ex.P5 is the wound certificate, Ex.P6 is the charge sheet.
21. It is not dispute that the accident occurred due to the rash and negligent act of the driver of the offending auto rickshaw. In her evidence, PW.1 has stated that her age was 38 years and she was doing milk vending business with agriculture work and was earning Rs.30,000/- p.m. She has not examined the concerned doctor to prove the fact that she has suffered permanent disability. Ex.P5 is the wound certificate which reveals that she has tenderness and swelling over right shoulder region and tenderness and swelling over posterior aspect of right side rib region. X-ray shows fracture of right clavicle and fracture of 5th rib right side. The doctor has opined that above injuries are grievous in nature. Considering the nature of injuries suffered by the claimant and her avocation, and in the absence of evidence of concerned Doctor, the Tribunal awarded Rs.15,000/- each in respect of injury 1 and 2 under the head pain and agony and the medical bills amounting to Rs.31,343/- was also awarded. In all claimant was awarded a sum of Rs.61,343/- with interest @ 6% p.a.
22. Having regard to the fact that the claimant has not produced any document to prove the income and loss of income after accident and the fact that the concerned Doctor has not been examined to prove the disability suffered by the claimant, it would be just and proper, if a global compensation of Rs.50,000/- is awarded to the claimant in the interest of justice.
23. Further, as regards the liability aspect, it is relevant to refer to the judgment rendered in MUKUND DEWANGAN VS. ORIENTAL INSURANCE CO.LTD., (2017) 14 SCC 663 wherein Hon’ble Apex Court has answered the question against the insurer and in favour of the claimant holding that the insurer cannot avoid liability only on the ground of absence of Transport Endorsement. Therefore, the issue is no more res integra. Following the judgment passed in the Mukund Dewangan stated supra the entire liability has to be fastened on the respondent – Tata AIG General Insurance Co. Ltd.
For the aforesaid reasons and findings stated above, I proceed to pass the following:
O R D E R The appeal in MFA No.488/2015 relating to MVC No.742/2012 is hereby allowed in part. Consequently, the judgment and award dated 07.03.2014 rendered by the Tribunal is hereby modified. The appellants/claimants are entitled for enhanced compensation of Rs.3,60,400/- with interest at 6% p.a. from the date of petition, till realisation.
The appeal in MFA No.6174/2016 is allowed in part. The judgment and award passed by the Tribunal in MVC No.161/2013 is hereby modified. The appellant/claimant is entitled for a global compensation of Rs.50,000/- in addition to Rs.61,343/- awarded by the Tribunal. The global compensation awarded shall not carry any interest.
The liability saddled on the owner of the offending vehicle is set aside and the entire liability is fastened on Respondent – Tata AIG General Insurance Co. Ltd. in view of ratio of reliance in Mukund Dewangan stated supra.
The Respondent-insurer shall deposit the entire compensation with accrued interest, before the concerned Tribunal, within four weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be released to the claimants, on proper identification.
Office to draw the decree accordingly.
Sd/- JUDGE DKB