Karnataka High Court
Mrs Sherly Jeevan vs R K S Infra Tech Pvt. Ltd on 29 September, 2020
Author: Alok Aradhe
Bench: Alok Aradhe
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF SEPTEMBER 2020
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE M.I. ARUN
M.F.A. NO.5654 OF 2016
C/W
M.F.A. NO.2961 OF 2016 (MV)
M.F.A. NO.5654 OF 2016
BETWEEN:
1. MRS. SHERLY JEEVAN
W/O LATE JEEVAN PAUL
AGED ABOUT 51 YEARS.
2. MR. VIJAY JEEVAN PAUL
S/O LATE JEEVAN PAUL
AGED ABOUT 18 YEARS.
BOTH ARE R/AT. NO.973
27TH 'A' MAIN, 41ST CROSS
JAYANAGAR 9TH BLOCK
BANGALORE-560069.
... APPELLANTS
(BY SRI. NARAYANA V.S. ADV.,)
AND:
1. R.K.S. INFRA TECH PVT. LTD.
REP. BY ITS MD
SRI. R. RAVINDRA
NO.42/36, RAGINI TOWERS
3RD FLOOR, 27TH CROSS
2
7TH 'B' MAIN, 4TH BLOCK
JAYANAGAR, BANGALORE-560011.
2. RELIANCE GENERAL INSURANCE CO., LTD.,
NO.28, 5TH FLOOR, CENTENARY BUILDING
M.G. ROAD, BANGALORE-560001
REP. BY ITS MANAGING DIRECTOR.
... RESPONDENTS
(BY SRI. C. VENKATESHA, ADV., FOR R1 (ABSENT)
SRI. ASHOK N. PATIL, ADV., FOR R2)
---
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 30.1.2016 PASSED
IN MVC NO.4830/2013 ON THE FILE OF THE 7TH ADDITIONAL
JUDGE, 32ND ACMM, COURT OF SMALL CAUSES, MACT,
BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
M.F.A. NO.2961 OF 2016
BETWEEN:
RELIANCE GENERAL INSURANCE CO., LTD.,
NO.28, 5TH FLOOR, CENTENARY BUILDING
M.G. ROAD, BANGALORE-560001
NOW REP. BY ITS MANAGING LEGAL.
... APPELLANT
(BY SRI. ASHOK N. PATIL, ADV.,)
AND:
1. MRS. SHERLY JEEVAN
W/O LATE JEEVAN PAUL
AGED ABOUT 51 YEARS.
2. SRI. VINJAY JEEVAN PAUL
S/O LATE JEEVAN PAUL
AGED ABOUT 18 YEARS.
BOTH ARE R/AT. NO.973
27TH 'A' MAIN, 41ST CROSS
JAYANAGAR 9TH BLOCK
BANGALORE-560069.
3
3. R.K.S. INFRA TECH PVT. LTD.
REP. BY ITS M.D.
SRI. R. RAVINDRA
NO.42/36, RAGINI TOWERS
3RD FLOOR, 27TH CROSS
7TH 'B' MAIN, 4TH BLOCK
JAYANAGAR, BANGALORE-560011.
... RESPONDENTS
(BY SRI. V.S. NARAYAN, ADV., FOR R1 & R2
R3 SERVED AND UNREPRESENTED)
---
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 30.01.2016 PASSED
IN MVC NO.4830/2013 ON THE FILE OF THE VII ADDITIONAL
JUDGE & XXXII ACMM, MACT, COURT OF SMALL CAUSES,
BENGALURU, AWARDING COMPENSATION OF RS.17,00,000/-
WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL
DEPOSIT.
THESE M.F.As. COMING ON FOR ADMISSION, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:
COMMON JUDGMENT
M.F.A.No.5654/2016 has been filed by the claimants seeking enhancement of the amount of compensation, whereas, M.F.A.No.2961/2016 has been filed by the insurance company against judgment dated 30.01.2016 passed by the Motor Accidents Claims Tribunal (hereinafter referred to as 'the Tribunal' for short). Since, both the appeals arise out of the same accident and from the same judgment, they were heard analogously and are being decided by this common 4 judgment.
2. Facts leading to filing of these appeals briefly stated are that on 22.04.2013 deceased Sanjay was riding bullet motor bike bearing registration No.KA21- EL-6251 on Kanakapura Main Road. When he reached in front of Khoday's Factory, one concrete mixer lorry bearing registration No.KA01-AA-51177, which was being driven in a rash and negligent manner by its driver in high speed dashed against the motor bike of the deceased. As an impact of the aforesaid accident, the deceased sustained severe injuries and succumbed to the same.
3. Thereupon the claimants viz., the parents filed a petition under Section 166 of the Act inter alia on the ground that deceased was a student of Engineering College and was aged about 20 years at the time of accident. It was further pleaded that the accident took place on account of rash and negligent driving of the 5 driver of the concrete mixer lorry The claimants therefore, claimed compensation to the tune of Rs.50,00,000/-. The respondent Nos.1 and 2 filed the written statement in which inter alia it was pleaded that the accident took place due to negligent driving of the bike on the part of the deceased. The averments made in the claim petition were denied and it was pleaded that the compensation claimed by the claimant is excessive and exorbitant.
4. The Claims Tribunal on the basis of the pleadings of the parties framed issues and recorded evidence. The claimants in order to prove their case examined claimant No.1 viz., the mother as PW1 and got exhibited 25 documents viz., Ex.P1 to Ex.P25. The respondents got examined one Guruprasad as RW1 and placed on record the copy of policy of insurance as Ex.R1. The Claims Tribunal vide impugned judgment inter alia held that the accident in question took place solely on account of rash and negligent driving of the 6 driver of the concrete mixer lorry. It was further held that claimants were held entitled to a compensation of Rs.17,00,000/- along with interest at the rate of 6% per annum. Being aggrieved, these appeals have been filed.
5. Learned counsel for the claimants submitted that the deceased at the time of the accident was 2nd year student of B.E.Course in R.V.Engineering College and had a bright future. The Tribunal grossly erred in treating the monthly income of the deceased at Rs.25,000/- per month and erred in deducting half of the amount towards personal expenses. It is further submitted that the amount towards future prospects ought to have been added to the notional income of the deceased. It is also submitted that since, the parents were dependants on the deceased, therefore, 1/3rd of the amount ought to have been deducted from the income of the deceased In view of law laid down by Supreme Court in 'SARLA VERMA AND OTHERS VS. DELHI TRANSPORT CORPORATION AND ANOTHER', 7 (2009) 6 SCC 121. Reliance has also been placed on decision of the Supreme Court in 'ARVIND KUMAR MISHRA VS. NEW INDIA ASSURANCE CO. LTD. AND ORS.', (2010) 10 SCC 254. On the other hand, learned counsel for the insurance company submitted that from perusal of the charge sheet, it is evident that the vehicle was not having the fitness certificate and therefore, the insurance company be granted the liberty to pay the amount and recover the same from the owner. In support of aforesaid submission, reliance has been placed on decision of High Court of Kerala in 'PAREED PILLAI VS. ORIENTAL INSURANCE CO. LTD.', LAWS (KER) 2018 10 124. It is further submitted that the notional income of the deceased who was a student at the time of accident, which has been assessed at Rs.25,000/- per month is on the higher side.
6. We have considered the submissions made by learned counsel for the parties and have perused the record. Twin issues arise for our consideration in these 8 appeals, viz., the insurance company can be granted the liberty to pay the amount and recover the same from the owner and with regard to quantum of compensation. So far as first issue is concerned, it has been held by five Judge Bench of High Court of Kerala in PAREED PILLAI supra that a transport vehicle subject to provisions of Sections 59 & 60 shall not be deemed to be validly registered for the purpose of Section 39 unless it carried a certificate of fitness as prescribed. Therefore, it is necessary for every vehicle to carry valid certificate of fitness issued under Section 56 at all times, the absence of which will automatically lead to a situation that the vehicle will not be deemed as having a permit. The High Court of Madras by following the principles laid down by Supreme Court in 'NATIONAL INSURANCE COMPANY LTD. VS. SWARN SINGH AND OTHERS', (2004) 3 SCC 297 held that in such a case, the insurance company can be granted to pay the amount of compensation and to recover the same from the owner. 9 The first issue is accordingly answered.
7. Now we may advert to the quantum of compensation. Admittedly, the deceased at the time of accident was a student of 2nd year of B.E. course and was aged about 20 years. From perusal of documents Ex.P19 to Ex.P23 and Ex.P25, it is evident that deceased was a bright student, however, since, the deceased was only a student, therefore, his income has to be assessed notionally. The Supreme Court in 'RADHAKRISHNA VS. GOKUL', (2013) 16 SCC 585 while dealing with a case of student of Engineering course who expired in an accident and was aged about 19 years determined notional income at Rs.15,000/-. However, in the instant case, the accident has taken place on 22.04.2013, therefore, we deem it appropriate to assess the income of the deceased notionally at Rs.30,000/-. So far as reliance placed by learned counsel for the claimant in the case of ARVIND KUMAR MISHRA supra is concerned, it is pertinent to mention here that the injured claimant 10 in that case was a student of Birla Institute of Technology and suffered permanent disability to the extent of 30%. The Supreme Court by taking note of the fact that claimant in the said case was student of prestigious institute like BIT had assessed the income at Rs.60,000/-. The aforesaid case is clearly distinguishable and is not applicable to the fact situation of the case so far as assessment of monthly income of the deceased in the instant case is concerned. In view of law laid down by the constitution bench of Supreme Court in 'NATIONAL INSURANCE COMPANY LTD V. PRANAY SETHI', AIR 2017 SC 5157, 40% of the amount has to be added on account of future prospects. Thus, the monthly income of the deceased is assessed at Rs.42,000/-. Since, the deceased was a bachelor at the time of accident, therefore, half of the amount has to be deducted towards personal expenses. Thus, the monthly dependency of the claimants comes to Rs.21,000/-. The claimants are therefore, held entitled to a sum of 11 (Rs.21,000x12x18) i.e., Rs.45,36,000/- on account of loss of dependency.
8. In view of law laid down by the Supreme Court in 'MAGMA GENERAL INSURANCE CO. LTD. Vs. NANU RAM' 2018 ACJ 2782, which has been subsequently clarified by the Supreme Court in 'UNITED INDIA INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS.' IN CIVIL APPEAL NO.2705/2020 DECIDED ON 30.06.2020, each of the claimant is entitled to a sum of Rs.40,000/- towards filial consortium. Thus, the claimants are held entitled to a total compensation of Rs.80,000/- under this head. In addition, the claimants are held entitled to a sum of Rs.30,000/- on account of loss of estate and funeral expenses. Thus, in all, the claimants are held entitled to a total compensation of Rs.46,46,000/-.
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Sl. Compensation under different Amount in
No. heads Rs.
1. Loss of dependency Rs. 45,36,000/-
2. Loss of love and affection Rs. 80,000/-
3. Funeral expenses Rs. 30,000/-
Total Rs. 46,46,000/-
Needless to state that the aforesaid amount shall carry interest at the rate of 6% per annum from the date of petition till the payment is made. The amount in deposit shall be transmitted to the Tribunal for disbursement to the claimants. The insurance company is directed to deposit the amount of compensation and is granted the liberty to recover the same from the owner of the vehicle. To the aforesaid extent, the award passed by the Claims Tribunal is modified.
Accordingly, the appeals are disposed of.
Sd/-
JUDGE Sd/-
JUDGE ss