IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21st DAY OF NOVEMBER 2019 BEFORE THE HON’BLE MR.JUSTICE H.P. SANDESH M.F.A.No.5945 OF 2012 c/w. M.F.A.No.5944 OF 2012 (MV) MFA.No.5945 of 2012 BETWEEN:
United India Insurance Co., Ltd., Regional Office, Krishi Bhavan, 5th Floor, Nrupathunga Road, Bengaluru – 560 009.
Rep. by its Manager P.Navamany. ..APPELLANT (By Sri.S.Krishna Kishore, Advocate) AND:
1. Sri.Venkatesh, Aged about 44 years, s/o.Kalasaiah, 2. Smt.Latha, Aged about 40 years, w/o.Sri Venkatesh.
Both are r/a. No.14/B, 4th ‘T’ Block, Jayanagar, Bengaluru – 560 069.
3. Sri.S.C.Ramesh, Major, S/o. Channappa, Singanahalli, Madhugiri Taluk, Tumkur District. ..RESPONDENTS (By Sri.Girimallaiah, Advocate for R1 & R2; R3 served) ---
This MFA is filed under section 173(1) of MV Act against the judgment and award dated 14.2.2012 passed in MVC.No.7746/2010 on the file of XVI Addl. Judge, Court of Small Causes, Member, MACT, Bengaluru City, awarding a compensation of Rs.4,70,000/- with interest at 6% p.a. from the date of petition till payment.
MFA.No.5944 of 2012 BETWEEN:
1. Sri.Venkatesh, Aged 44 years, s/o.Kalasaiah, 2. Smt.Latha, Aged 40 years, w/o.Sri Venkatesh.
Both are r/a. No.14/B, 36th Cross, 4th ‘T’ Block, Jayanagar, Bengaluru – 560 069. .. APPELLANTS (By Sri.Girimallaiah, Advocate) AND:
1. United India Insurance Co., Ltd., Regional Office, V & VI Floors, Krushi Bhavan, Hudson Circle, Nrupathunga Road, Bengaluru – 560 001.
2. Sri.S.C.Ramesh, Major, S/o. Channappa, Singanahalli, Madhugirihalli Taluk, Tumkur District. ..RESPONDENTS (By Sri.S.Krishna Kishore, Advocate) ---
This MFA is filed under section 173(1) of MV Act against the judgment and award dated 14.2.2012 passed in MVC.No.7746/2010 on the file of XVI Addl. Judge, MACT-14, Bengaluru City, partly allowing the claim petition for compensation and seeking enhancement of compensation.
These MFAs are coming on for admission this day, the court delivered the following:-
J U D G M E N T These two appeals are filed by the claimants and also insurance company questioning the judgment and award passed in MVC No.7746/2010 dated 14th Day of February 2012 on the file of XVI Addl. Judge, Motor Vehicles Claims Tribunal (for short ‘MACT’), Bengaluru questioning the quantum of compensation by the claimants and liability by the insurance company that erroneously fastened liability on the insurance company.
2. It is the case of the claimants that their son deceased Sri. Srinivasa was travelling in a canter bearing No.KA-06-A-7483 alongwith his cocoon bags in the goods vehicle on 30.06.2010 and when he was proceeding, due to negligence on the part of the driver of the vehicle, the vehicle turtled and the accident took place and their son Srinivasa passed away. He was earning Rs.6,000/-p.m. and he was contributing his entire income to the maintenance of his family. He was in the hospital from 30.06.2010 to 25.8.2010 and ultimately, he succumbed on that day and they have spent more money for treatment.
3. In pursuance of the claim petition, notices were issued to both respondents. Respondent No.1-Insurance company appeared through counsel and filed its written statement. Second respondent did not choose to file any written statement. Insurance company in its written statement denied the age, occupation and income of the deceased and also denied the nature of injuries sustained by him. It is contended that the petition is neither maintainable on law or on facts. It is specifically contended that the deceased was travelling as gratuitous passenger in the goods vehicle and hence, the insurance company is not liable to pay compensation to a person who travelled as passenger in the goods vehicle under section 147 of the M.V. Act and hence the insurance company is not liable to pay the compensation.
4. The claimants in order to substantiate their claim, they have examined one witness as PW-1 and also examined an eye witness as PW-2, got marked Exs-P1 to P11. Respondents did not choose to lead any evidence before the Court. The tribunal after considering both oral and documentary evidence allowed the petition-in-part granting compensation of Rs.4,70,000/- with interest at 6% p.a. from the date of petition till the date of payment. The tribunal also fastened liability on the first respondent- insurance company. Hence, these two appeals are filed by the claimants as well as insurance company.
5. The contentions of the claimants before this Court is that the tribunal has taken income of Rs.3,000/- of the deceased and the accident took place in 2010 and ought to have taken notional income of Rs.5,500/- and also the tribunal has not considered the future prospects and also the multiplier applied taking the age of the mother of the deceased is erroneous and it requires to be interfered by this Court.
6. In the appeal MFA No.5945/2012, the appellant- Insurance company would contend that the tribunal has committed an error in not observing the fact that the documents produced by the claimants itself discloses that the deceased Srinivasa was travelling in the goods vehicle as gratuitous passenger and he has been hired for transporting the cocoons from his village to Ramanagar. Therefore, the finding of the tribunal on multiplier applied and liability against the insurance company is erroneous and it requires interference by this Court.
7. Learned counsel appearing for the insurance company in support of his contention has relied upon the judgment in the case of NATIONAL INSURANCE CO. LTD., vs. CHOLLETI BHARATAMMA AND OTHERS reported in (2008) 1 SCC 423 and brought to my notice that deceased Srinivasa travelled as a passenger and hence under section 147 of the Motor Vehicles Act, 1988, insurance company is not liable to pay compensation as he was travelling as a passenger in the goods carriage and hence the liability fastened on the insurance company has to be set-aside.
8. Learned counsel appearing for the claimants in his arguments contends that Srinivasa(deceased) was not travelling as gratuitous passenger and he was travelling alongwith goods i.e., cocoons and hence, the contention of the insurance company that deceased was a gratuitous passenger cannot be accepted.
9. Having heard the arguments of learned counsel appearing for the claimants as well as insurance company and keeping in view the rival contentions of both the parties, the points that arise for consideration of this Court are:-
1. Whether the tribunal has committed an error in not awarding just and reasonable compensation and it requires interference by this Court.?
2. Whether the tribunal has committed an error in fastening liability on the insurance company as against proviso to Section 147 of the M.V. Act and it requires interference by this Court?
3. What order?
Point No.1:-
10. On perusal of the judgment and award by the tribunal, it is seen that the tribunal below has taken the income of the deceased as Rs.3,000/- and it is the case of the claimants that the deceased was earning Rs.6,000/-
p.m. and contributing entire amount for the maintenance of the family. The claimants having not produced any documentary proof with regard to income of the deceased that he was earning Rs.6,000/-, in the absence of any documentary proof with regard to his income, the tribunal ought to have taken the notional income. The tribunal has taken the income at Rs.3,000/- and the accident has taken place in 2010 and the tribunal has committed an error in taking the income of Rs.3,000/- in place of notional income of Rs.5,500/-. The other contention of the claimants’ counsel is that ‘future prospects’ has not been added and on perusal of material available on record, deceased was working as an agriculturist and he was also studying B.A.
and helping his family. When such being the case, the deceased was aged 19 years and the tribunal ought to have considered ‘future prospects’ of the deceased. Agriculture is not an organized sector and the tribunal having taken note of not getting permanent income, ought to have taken 40% towards future prospects and hence, the tribunal committed an error in not awarding future prospects. Accordingly, 40% has to be taken towards future prospects. It is also contention of the claimants’ counsel that age of the deceased ought to have been taken and hence relevant multiplier applicable to the case on hand is ‘18’. Having his income taken at Rs.5,500/- and adding 40% it comes to Rs.7,700/-. Since deceased is a bachelor, 50% is to be deducted. After deducting the same, it comes to 8,31,600/-.
11. The other contention of the appellants/claimants counsel is that only an amount of Rs.20,000/- is awarded under other conventional heads and same is also meager. On perusal of the judgment, the tribunal awarded an amount of Rs.10,000/- towards ‘loss of love and affection’ and awarded an amount Rs.10,000/- on the head ‘transportation of dead-body and funeral’. The deceased is a bachelor and hence the tribunal ought to have awarded Rs.30,000/- instead of Rs.20,000/- and same is enhanced to Rs.30,000/-. The tribunal has also considered medical expenses of Rs.1,80,000/-. The medical records reveals that the deceased was in hospital from 30.06.2010 to 25.08.2010 and medical bills are also produced which are marked as Ex-P8. Having considered the same, I do not find any reasons to either set-aside or enhance the amount on the head of medical expenses. Hence, if an amount of Rs.1,80,000/- is added, the same comes to Rs.10,41,600/-
Point No.2.
12. Now the question before the Court is whether the deceased was traveling as gratuitous passenger as contended by the Insurance company. On perusal of Ex- P1, a complaint is given by a person who has witnessed the incident at the spot and he found the person having sustained injuries. The complaint does not disclose whether the deceased was travelling as gratuitous passenger though travelling with goods. The mahazar which was marked as Ex-P2 discloses that the vehicle was loaded with iron rods and also found cocoon bags four in number and the same belongs to different persons who were in the vehicle. Hence, it is clear from the mahazar that the deceased was traveling with cocoon bags. Claimant No.1 has been examined as PW-1. PW-1 in his evidence has stated that his son deceased Srinivasa was travelling alongwith goods. He was subjected to cross- examination. In the cross-examination, it is elicited that his son deceased Srinivas was travelling sitting behind in the goods vehicle. It was suggested that he was traveling as a passenger and the same has been denied. On perusal of cross-examination of PW-1, nowhere it was suggested that he was not travelling alongwith his goods and a suggestion was made that he was travelling as a gratuitous passenger. Same has been denied specifically by PW-1. PW-2-an eye-witness who has been examined before the Court stated that he also was travelling in the Canter bearing No.KA-06-A-7483 alongwith cocoon bags from Huliyurdurga to Ramanagara. He was subjected to cross-examination. In the cross-examination, a suggestion was made that in order to help the claimants, he is giving false evidence before the Court. During the course of cross-examination of PW-2, nowhere it is suggested that they were not travelling in the canter alongwith cocoon bags. The evidence of PW-2 is not challenged as regards that they were travelling in the canter alongwith cocoon bags in order to substantiate the contention by the insurance company, since they have taken a specific defence in the written statement that the deceased was travelling as gratuitous passenger and none of the witnesses have been examined before the Court. The defence which has been taken in the written statement remains as defence only. There is no material before the Court to show that the deceased was proceeding as gratuitous passenger. The contentions taken by the insurance company remains as defence only and no document has also been placed before the Court to show that deceased was proceeding as gratuitous passenger and nothing is elicited in the cross-examination of PW-1 except making suggestion to PW-1 that his son was proceeding as a gratuitous passenger. Same was specifically denied by PW-1. Other eyewitness-PW-2 in his evidence categorically denied the suggestion that he is deposing to help the claimants. In the absence of any cogent evidence before the Court, the contention of the insurance company cannot be accepted. There is no material to come to the conclusion that deceased was proceeding as gratuitous passenger. The judgment quoted by the insurance company reported in (2008) 1 SCC 423 is not applicable to the facts on hand. There is no material before the Court to suggest that he was proceeding as gratuitous passenger.
13. In view of the discussion above, I pass the following order:-
ORDER a. MFA No.5945/2012 filed by the Insurance company is dismissed.
b. MFA No.5944/2012 filed by the claimants is allowed-in-part, modifying the judgment and award of the tribunal enhancing compensation to Rs.10,41,600/- as against Rs.4,70,000/-.
c. No modification with regard to rate of interest awarded and also order passed by the tribunal with regard to deposit of the amount.
d. Amount in deposit, shall be transmitted to the tribunal forthwith.
e. Registry is also directed to transmit the records forthwith.
Sd/- JUDGE *mn/-