IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER, 2017 BEFORE:
THE HON’BLE MR. JUSTICE B. SREENIVASE GOWDA M.F.A. No.2922/2014 (MV) BETWEEN:
M/S. UNITED INDIA INSURANCE COMPANY LIMITED BRANCH OFFICE-I NO.2, 1ST FLOOR, HOSUR MAIN ROAD, MADIWALA, BANGALORE-560068 NOW REPRESENTED BY ITS REGIONAL OFFICE, 6TH FLOOR, KRISHI BHAVAN, NRUPATHUNGA ROAD, BANGALORE-560001 REP.BY ITS AUTHORIZED SIGNATORY. ... APPELLANT (BY SRI A.M.VENKATESH, ADV.) AND:
1. SMT MANJULA W/O LATE YALAKKI AGED ABOUT 25 YEARS 2. CHANNAMASTHAIAH S/O LATE CHANNAIAH AGED ABOUT 57 YEARS BOTH ARE R/AT UJJANAHALLI VILLAGE VIRUPAKSHIPURA HOBLI CHANNAPATNA TALUK RAMANAGAR DISTRICT – 571 511 3. RADHA KRISHNA RAO S/O BALAPPA MAJOR NO. 416, 4TH CROSS CHANNAKESHAVANAGAR BANGALORE-560010 ... RESPONDENTS (BY SRI C.PUTTASWAMY, ADV. FOR C/R1& R2 NOTICE NOT ORDERED IN RESPECT OF R3) * * * THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:07.08.2013 PASSED IN MVC NO.126/2007 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, RAMANAGARA, AWARDING COMPENSATION OF RS.10,12,000/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL REALIZATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T This appeal is by the insurer of the offending vehicle challenging the judgment and award passed by the Tribunal on the ground of liability as well as quantum.
2. With the consent of learned counsel appearing for the parties, the appeal is heard and disposed of finally. Perused the judgment and award passed by the Tribunal.
3. For the sake of convenience, the parties are referred to as they are referred to in the claim petition before the Tribunal.
4. As there is no dispute regarding death of one Yalakki in a road traffic accident occurred on 10.07.2006 due to rash and negligent driving of the offending lorry bearing registration No.KA-05-AC-7189 by its driver, the points that arise for consideration in the appeal are:
“1. Whether the Tribunal was justified in fastening liability on the insurer of the offending vehicle?
2. Whether quantum of compensation awarded by the Tribunal is just and reasonable or does it call for reduction? And
compensation for the death of her husband in a road traffic accident?”
5. Sri.A.M.Venkatesh, learned counsel appearing for the appellant/insurer of the offending vehicle submits that since the driver had license to drive Heavy Transport Vehicle valid upto 28.02.2002 and had license to drive Light Motor Vehicle valid upto 25.12.2013 and did not have a valid and effective driving license to drive the offending vehicle which is a Heavy Transport Vehicle as on 10.07.2006, the date on which the accident had occurred, the Tribunal was not justified in fastening liability on the appellant/insurer of the offending vehicle. Regarding quantum, learned counsel submits that since claimant No.1, wife of the deceased got married another person during the pendency of the claim petition, she is no longer the dependent of the deceased. Therefore, she is not entitled for any compensation under the head ‘loss of dependency’. He submits that in view of the fact that she got re-married, she has not entered witness box and proved her case that she was depending on the income of the deceased. The Tribunal without considering this has committed an error in awarding compensation under the head ‘loss of dependency’ and therefore, he prays for allowing the appeal both on the ground of liability and quantum.
6. Sri.C.Puttaswamy, learned counsel appearing for the respondents/claimants submits that the driver of the offending vehicle had license to drive both Light Motor Vehicle as well as Heavy Transport Vehicle as on the date of accident as evident from Ex.R1. He submits that the appellant-Insurance Company deliberately did not produce either the Permit or the Insurance Policy of the offending vehicle to know whether the offending vehicle is a Light Motor Vehicle or Heavy Transport Vehicle. However, the Tribunal considering the oral and documentary evidence on record was justified in fastening the liability on the appellant-insurer of the offending vehicle. Regarding quantum, learned counsel submits that re-marriage of widow after the death of her husband in a road traffic accident does not disentitle her from claiming compensation for the death of her husband in a road traffic accident and he submits that the Tribunal referring to various decision of several High Courts was justified in holding re-marriage of claimant No.1 does not disqualify her from claiming compensation under the head ‘loss of estate’ or ‘loss of dependency’.
Regarding liability:
7. The Driving Licence of the driver of the offending vehicle was produced through RW.1-Development Officer (Admin), United India Insurance Company Limited (appellant herein) and marked as Ex.R1.
Perusal of Ex.R1 would show that the Driving Licence bearing No.TN29Y-19980001369 was issued by the Assistant Licencing Authority, RTO Hosur on 31.08.1998. As per column No.5, the deceased was authorized to drive Light Motor Vehicle (transport) with effect from 31-08- 1999. The Driving Licence endorsement was issued for Heavy Transport Vehicle on 28.02.2002. The Driving licence badge number was issued on 26.12.2001. It is mentioned against column No.4 that the Driving Licence is valid upto 25.12.2013 (transport).
8. According to the learned counsel for the claimants, license of both Light Motor Vehicle (TR) as well as Heavy Transport Vehicle were renewed and they were valid upto 25.12.2013.
9. The statement made by RW.1 in his evidence that the Driving Licence for Heavy Transport Vehicle was valid till 28.02.2002 and the contention of the learned counsel for the insurer that it was valid upto 28.02.2002 is falsified by perusal of Ex.R1. As per Ex.R1, 28.02.2002 is the date on which a “Driving Licence Endorsement For Heavy Transport Vehicle” was issued. It is mentioned against column No.4 that the Driving Licence (Transport Vehicle) is valid upto 25.05.2013. Though RW.1 has stated in his evidence that if Permit or Insurance Policy of the offending vehicle is produced, nature of vehicle will be known, no such documents have been produced. Therefore, the finding of the Tribunal that Driving Licence to drive Heavy Transport Vehicle is not renewed and it was not valid as on the date of accident is contrary to the material evidence on record.
10. As per the judgment of Hon’ble Supreme Court in the case of ‘Rukmani And Ors. vs New India Assurance Co. And Ors. reported in ‘1999 ACJ 171’, it is the duty of the Insurance Company to prove and establish that the driver did not have a valid driving licence. The insurer who is confident that the driving licence of the driver of the offending vehicle in respect of Heavy Transport Vehicle is not renewed and was not valid as on the date of the accident could have summoned the relevant documents from the concerned RTO Officer. In the absence of such evidence, the Tribunal was justified in fastening the liability on the appellant/insurer.
Regarding quantum:
11. It is not in dispute that husband of claimant No.1 and son of claimant No.2 namely Yalakki died in a road traffic accident occurred on 10.07.2006. The claimant Nos.1 and 2 being wife and father of the deceased filed claim petition seeking compensation from the owner and insurer of the offending vehicle. During pendency of the petition, claimant No.1, wife of the deceased remarried another person.
12. It is needless to say that whatever properties including assets already accrued upon the death of deceased, claimants being class one heirs of deceased are entitled to succeed to such properties and estate available in the hands of deceased. The re-marriage of claimant No.1 subsequent to filing of claim petition does not in any way disqualify her from claiming compensation.
13. Regarding quantum, learned counsel for the insurer of the offending vehicle submits that the claimants in support of their contentions that the deceased was working as a driver and earning Rs.6,000-00 p.m., have not adduced any evidence. Therefore, the Tribunal was not justified in assessing the income of the deceased at Rs.4,500-00 p.m. and adding 50% of the said amount i.e., Rs.2,250-00 to his income towards future prospects and taking his total income at Rs.6,750-00 p.m. He further submits that the 1st claimant-wife of deceased during the pendency of the claim petition got re-married another person and she is no longer dependent on the income of the deceased. The 2nd claimant being the father of deceased is also not dependent on the income of the deceased. Therefore, the Tribunal was not justified in deducting 1/3rd of the income of the deceased towards his personal expenses and taking 2/3rd of his income as his contribution towards family. However, he submits that reasonable compensation may be awarded towards loss to estate.
14. Whereas, Sri. C.Puttaswamy, learned counsel appearing for the claimants submits that re-marriage of the 1st claimant does not disqualify her from claiming compensation. He submits that the 2nd claimant is the aged father of the deceased and he was depending upon the income of the deceased. Therefore, the Tribunal was justified in deducting 1/3rd of the income of the deceased towards his personal expenses and taking 2/3rd of his income as his contribution to the family.
15. The claimants in support of their contentions that the deceased by working as a driver was earning Rs.6,000-00 p.m. have examined the 2nd claimant i.e., father of the deceased as D.W.1. In column 4 of the claim petition, occupation of the deceased was mentioned as driver. In column No.5 of the claim petition, against the name and address of the employer, it is mentioned as M/s.
Udaya Wines, whole sale distributors, 6th cross, Channapatna and nobody from M/s. Udaya Wines, whole sale distributors was examined. In the Police records such as inquest mahazar, the nature of work of the deceased was described as driver. Therefore, in the absence of proof of income of the deceased, considering his age as 26 years at the time of the accident, year of accident as 2006 and avocation as driver, his income could be assessed at Rs.5,000-00 p.m. as against Rs.4,500-00 p.m. assessed by the Tribunal. Since the income of the deceased is not proved, nothing can be added to his income towards future prospects.
16. As on the date of filing of the claim petition, the 1st claimant was a widow. It was during the pendency of the claim petition, she got re-married. Re-marriage of the 1st claimant does not disqualify her from claiming compensation as per various decisions referred to by the Tribunal in the course of its Judgment. Apart from the wife of the deceased, father of the deceased is arrayed as 2nd claimant and there are two claimants. Considering this, the Tribunal was justified in deducting 1/3rd of the income of the deceased towards his personal expenses and taking 2/3rd of his income as his contribution to the family. Multiplier applicable to the age group of the deceased is ‘17’ instead of ‘18’ applied by the Tribunal. So, loss of dependency would be; Rs.5,000 x 12 x 17 x 2/3 = Rs.6,80,000-00. Thus, the claimants are entitled to a sum of Rs.6,80,000-00 towards loss of dependency as against the sum of Rs.9,72,000-00 awarded by the Tribunal.
17. A sum of Rs.15,000-00 is awarded towards loss to estate as against Rs.10,000-00 awarded by the Tribunal and a sum of Rs.15,000-00 is awarded towards transportation of dead body and funeral expenses as against Rs.10,000-00 awarded by the Tribunal.
18. Hence, the compensation awarded by the Tribunal is reassessed as under:
PARTICULARS Rs.
Hence, the claimants are entitled to a total compensation of Rs.7,10,000–00 as against the sum of Rs.10,12,000-00 awarded by the Tribunal.
Thus, the appeal is allowed in part. The impugned Judgment and Award is modified. The claimants are entitled to a total compensation of Rs.7,10,000-00 as against Rs.10,12,000-00 with interest at 6% p.a. from the date of the claim petition till the date of realization.
The insurance company is directed to deposit the balance of compensation amount together with interest, if not already deposited, within a period of 2 [two] months from the date of receipt of copy of this Judgment.
The apportionment, deposit and release of the compensation amount payable among the claimants shall be in the ratio of the Judgment and Award of the Tribunal.
The amount in deposit is ordered to be transferred to the Tribunal for disbursement.
In view of disposal of the appeal, I.A. No.2/2014 filed for stay does not survive for consideration and the same is rejected.
No order as to costs.
Sd/- JUDGE.
CT-HR Ksm*