Karnataka High Court
The Divisional Managder vs Mrs.Jayashree W/O Kedari on 24 June, 2020
Bench: S G Pandit, V.Srishananda
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 24TH DAY OF JUNE 2020
PRESENT
THE HON'BLE MR. JUSTICE S.G. PANDIT
AND
THE HON'BLE MR. JUSTICE V. SRISHANANDA
MFA NO.100950/2019
C/W.
MFA NO.100276/2019 (MV)
IN MFA NO.100950/2019
BETWEEN
THE DIVISIONAL MANAGER
ICICI SHRIKRISHNA TOWER,
4TH FLOOR, KHANAPUR ROAD,
NEAR RPD CROSS,
TILAKWADI, BELAGAVI
NOW REPRESENTED BY ITS
AUTHORIZED SIGNATURE
... APPELLANT
(BY SRI.SURESH S GUNDI, ADV.)
AND
1. MRS.JAYASHREE W/O KEDARI
AMATE AGE: 21 YEARS,
OCC: HOUSEHOLD,
R/O SIDAPURWADI FARM HOUSE,
TQ: CHIKODI, DIST: BELAGAVI
PRESENTLY AT PLOT NO.337
SCHEME NO. 40 1 FLOOR,
HANUMAN NAGAR BELAGAVI
2
2. SHRI. ANNAPPA DUDAPPA AMATE
AGE: 62 YEARS, OCC: NIL,
R/O SIDDAPURWADI FARM HOUSE
TQ: CHIKODI, DIST: BELAGAVI,
PRESENTLY AT PLOT NO. 337 SCHEME
NO.40 1 FLOOR, HANUMAN NAGAR
BELAGAVI-590019
3. SMT. KASTURI W/O ANAPPA AMATE
AGE: 57 YEARS, OCC: HOUSEHOLD,
R/O SIDDAPURWADI FARM HOUSE,
TQ: CHIKODI, DIST BELAGAVI
PRESENTLY AT PLOT NO. 337,
SCHEME NO.40 1 FLOOR HANUMAN NAGAR,
BELAGAVI 590019
4. KUMARI JOTIKA D/O DEDARI AMATE,
AGE:2 YEARS, SINCE MINOR REP
BY MINORS GUARDIAN NATURAL MOTHER,
PETITIONER NO.1
5. MRS. ANUSUYA MAHARUDRAPPA
DUMBAR AGE: MAJOR, OCC: BUSINESS
R/O NAGARMUNNOLLI, TQ: CHIKODI
DIST: BELAGAVI-591222
6. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD
D.O. 1568, MARUTI GALLI, BELAGAVI
7. SHRI. SHRINATH PRAKASH MANE
AGE: MAJOR, OCC: BUSINESS
R/O DAMBAL PLOT, CHIKODI,
DIST: BELAGAVI-591201
... RESPONDENTS
(BY SRI.ASHOK A NAIK, ADV. FOR C/R1-R4,
SRI.VITTHAL S TELI, ADV. FOR R5,
SRI.S.S.KOLIWAD, ADV. FOR R6,
NOTICE TO R7 SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD
DATED 14.11.2018 PASSED IN MVC NO.124/2017 ON THE FILE
OF THE I ADDITIONAL DISTRICT AND JUDGE AND MACT-II,
3
BELAGAVI, AWARDING COMPENSATION OF RS.18,32,000/-
WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL
PAYMENT.
IN MFA NO.100276/2019
BETWEEN
1. SMT.JAYASHREE W./O KEDRARI AMATE
AGE:21 YEARS, OCC:HOUSEHOLD,
R/O. SIDDAPURWADI FARM,.
TQ:CHIKKODI, DIST:BELAGAVI.
PRESENTLY AT PLOT NO.337,
SCHEME NO.40,I FLOOR,
HANUMAN NAGAR,
BELAGVI.
2. SHRI ANNAPPA DUDAPPA AMATE
AGE:62 YEARS, OCC:NIL,
R/O. SIDDAPURWADI FARM,.
TQ:CHIKKODI, DIST:BELAGAVI.
PRESENTLY AT PLOT NO.337,
SCHEME NO.40,I FLOOR,
HANUMAN NAGAR,
BELAGVI.
3. SMT KASTURI W/O. ANNAPPA AMATE
AGE:57 YEARS,
OCC:HOUSEHOLD,
R/O. SIDDAPURWADI FARM,.
TQ:CHIKKODI, DIST:BELAGAVI.
PRESENTLY AT PLOT NO.337,
SCHEME NO.40,I FLOOR,
HANUMAN NAGAR,
BELAGVI.
4. KUMARI JOTIKA D/O. KEDARI AMATE
AGE:2 YEARS,
(SINCE THE APPELLANT NO.4 MINOR REPRESENTED BY
HER N/G MOTHER APPELLANT NO.1)
... APPELLANTS
(BY SRI.ASHOK A NAIK, ADV.)
4
AND
1. MRS.ANUSUYA MAHARUDRAPPA KUMBAR
AGE:MAJOR, OCC:BUSINESS,
R/O. NAGARMUNNOLLI,
TQ:CHIKODI,
DIST:BELAGVI-590123.
2. THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE COMPANY LTD.,
D.O1568, MARUTI GALLI,
BELAGAVI-590020.
3. SHRI SRINATH PRAKASH MANE
AGE:MAJOR,
OCC:BUSINESS,
R/O. DAMBAL PLOT,
CHIKODI, DIST:BELAGVI.
4. THE DIVISIONAL MANAGER
ICICI SHRIKRISHNA TOWER,
4TH FLOOR,
KHANAPUR ROAD,
NEAR RPD CROSS,
TILAKWADI,
BNELAGVI-590021.
... RESPONDENTS
(BY SRI.RAJASHEKAR BURJI, ADV. FOR R1,
SRI.S.S.KOLIWAD, ADV. FOR R2,
SRI.SANTOSH S HATTIKATAGI, ADV. FOR R3,
SRI.SURESH S GUNDI, ADV. FOR R4)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES
ACT, AGAINST THE JUDGMENT AND AWARD DATED 14.11.2018
PASSED IN MVC NO.124/2017 ON THE FILE OF THE I
ADDITIONAL DISTRICT JUDGE AND MOTOR ACCIDENT CLAIMS
TRIBUNAL-II, BELAGAVI, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THESE MFA'S COMING ON FOR ADMISSION THIS DAY,
S.G. PANDIT, J DELIVERED THE FOLLOWING:
5
COMMON JUDGMENT
Even though the appeals are listed for admission and as both the appeals arise out of the same judgment and award, with the consent of the learned counsels for the parties, the appeals are heard together and disposed of by this common judgment.
2. Both these appeals are against the judgment and award dated 14.11.2018 passed in MVC No.124/2017 on the file of the I Additional District Judge and MACT-II, Belagavi (for short, 'the Tribunal'). MFA No.100950/2019 is by the insurer of TATA ACE goods vehicle bearing No.KA-23/A-9742 challenging the liability as well as the quantum of compensation awarded by the Tribunal. Whereas, the claimants are before this Court in MFA No.100276/2019 praying for enhancement of compensation.
3. The claimants are the wife, daughter and parents of the deceased Kedari Annappa Amate. Claim 6 petition was filed under Section 166 of the Motor Vehicles Act claiming compensation for the death of Kedari Annappa Amate in a road traffic accident involving TATA ACE goods vehicle (for short, 'TATA ACE') bearing No.KA-23/A-9724 and tractor and trailers (for short, 'tractor') bearing Nos.KA-23/TA-6418, KA- 23/TB-2282, KA-23/TB-2283 and KA-23/A-9742. It is stated that on 10.12.2016 at about 11.30 p.m. when the deceased was proceeding in TATA ACE goods vehicle, one tractor loaded with sugarcane was proceeding ahead in a zig zag and rash and negligent manner. Due to the rash and negligent driving of the tractor, the trailer attached to it dashed to the TATA ACE goods vehicle on its left side, due to which the deceased sustained fatal injuries to his head and vital parts of the body and died on the spot.
4. On issuance of notice, respondents appeared before the Tribunal and filed their objections. 7 Respondents No.1 and 2 owner and insurer of the tractor denied the claim petition averments. Respondent No.1 owner of the tractor further contended that the vehicle was insured with respondent No.2-insurer and the driver of the tractor trailer was holding effective driving license to drive the vehicle. Respondent No.2 insurer specifically contended in its objection that the deceased was traveling as an unauthorized passenger in the TATA ACE goods vehicle and hence, respondents No.3 and 4 being the owner and insurer of the TATA ACE vehicle are liable to pay compensation. Further, it also contended that there is violation of the terms and conditions of policy by respondent No.1 owner of the tractor. Respondent No.3-owner of the TATA ACE goods vehicle denied the question of liability contending that the alleged accident occurred due to the rash and negligent driving of the tractor and also contended that the TATA ACE goods vehicle is falsely implicated. Respondent No.4 insurer of the TATA ACE goods vehicle 8 denied the claim petition averments and also contended that the TATA ACE goods vehicle is falsely implicated and the same is not involved in the alleged accident. It also contended that the liability would be subject to proving its driver holding valid and effective driving license to drive the vehicle as on the date of the accident.
5. The claimant No.1 wife of the deceased examined herself as PW.1 and marked documents as Exs.P.1 to P.18, whereas respondents examined RWs.1 and 2 and got marked Exs.R.1 to R.6.
6. The Tribunal on appreciation of the evidence on record, awarded total compensation of Rs.18,32,800/- on the following heads with interest at the rate of 9% p.a.:
Amount in Rs.
Loss of dependency : 11,52,000
Loss of consortium : 40,000
Loss of estate and :
Funeral expenses : 30,000
Loss of love and affection : 1,50,000
9
Loss of future prospects : 4,60,800
TOTAL : 18,32,800
7. While awarding the compensation, the
Tribunal assessed the income of the deceased at Rs.8,000/- p.m. and saddled liability on respondent No.4-insurer of the TATA ACE goods vehicle. The insurer of the TATA ACE goods vehicle aggrieved by saddling of the liability and questioning the quantum of compensation, is before this Court in this appeal.
8. Heard the learned counsels for the appellant-insurer of TATA ACE goods vehicle, learned counsel for the claimants and the learned counsel for the insurer of the tractor and perused the trial Court records.
9. The learned counsel for the appellant-
insurer of the TATA ACE goods vehicle would submit that the deceased was traveling in the goods vehicle i.e. TATA ACE as an unauthorized passenger. Policy was 10 issued in respect of TATA ACE as goods vehicle. The deceased was not transporting any goods or carrying any goods along with him and was traveling as a passenger in the goods vehicle. Thus, the owner of the TATA ACE goods vehicle violated the terms and conditions of the policy. Hence, it is stated that the appellant-insurer is not liable to pay any compensation. The learned counsel submits that the Tribunal has failed to properly appreciate the same. Looking into Ex.R.1 insurance policy, he also further submits that the permitted sitting capacity of TATA ACE goods vehicle was two i.e. driver and cleaner. No extra premium is collected towards additional sitting capacity. Further, the learned counsel alternatively contends that if the above contention is not accepted, there is contributory negligence on the part of the driver of the tractor and as such the same is to be determined. It is submitted that the tractor was having two trailers and it was proceeding with loaded sugarcane. 11
10. Further, the learned counsel for the appellant-insurer submitted that the compensation awarded by assessing the income of the deceased at Rs.8,000/- p.m. is on the higher side and prays for reduction of the quantum of compensation awarded by the Tribunal. The learned counsel for the appellant further submitted that the rate of interest i.e. 9% p.a. awarded by the Tribunal is on the higher side and he submits that the Tribunal ought to have granted 6% interest p.a. which needs to be revised from 9% p.a. to 6% p.a.
11. Per contra, the learned counsel for the claimants, who have filed an appeal praying for enhancement of compensation submits that the deceased was not an unauthorized passenger and he was proceeding in TATA ACE goods vehicle to bring brinjal saplings which would be clear from Ex.P.5 statement of claimant No.1-wife of the deceased. Thus, 12 he submits that when the deceased was proceeding to bring the brinjal saplings, it cannot be said that he is an unauthorized or gratuitous passenger. Further, with regard to the quantum, the learned counsel for the claimants would submit that the accident is of the year 2016 and the income assessed by the Tribunal at Rs.8,000/- p.m. of the deceased is on the lower side. He submits that the deceased was doing agricultural work and milk vending business from which he was earning Rs.5 lakh p.a. and Rs.20,000/- p.m. respectively. Hence, he prays for revising the monthly income on the higher side. It is also his submission that the compensation awarded by the Tribunal on the other heads are also on the lower side and prays for enhancing the compensation.
12. The learned counsel for respondent No.7 submits that there is no violation of policy condition and submits that the Tribunal has rightly saddled the 13 liability on the appellant-insurer of the TATA ACE goods vehicle since the policy was valid as on the date of the accident. Thus, he pays for dismissal of the appeal filed by the appellant-insurer. Further, he also submits that the claimants would not be entitled for enhancement of compensation. The compensation awarded by the Tribunal is just compensation which needs no interference.
13. Having heard the learned counsels for the parties and on perusal of the material on record including the trial court records, the following points would arise for consideration in both the appeals:
1. Whether the Tribunal is justified in saddling the liability on the appellant-insurer of the TATA ACE goods vehicle by rejecting the contention that deceased was traveling as unauthorized or gratuitous passenger?14
2. Whether the claimants would be entitled for enhanced compensation? If so, from whom?
14. The answer to the above point No.1 would be in the negative and point No.2 is in the affirmative for the following reasons:
15. The appellant-insurer is in appeal challenging the liability stating that the deceased was an unauthorized passenger in a goods vehicle; that the Tribunal failed to assess the contributory negligence; quantum of compensation awarded by the Tribunal is on the higher side including interest. Whereas, the claimants are in appeal praying for enhancement of compensation. Owner of TATA ACE goods vehicle nor any other person is in appeal against the impugned judgment and award. If the first ground i.e. the deceased was proceeding in TATA ACE goods vehicle as an unauthorized passenger is answered in favour of the 15 appellant-insurer. No other ground urged by the appellant-insurer needs consideration.
16. The appellant-insurer of the TATA ACE goods vehicle has taken up a specific contention that at the time of the accident the TATA ACE goods vehicle was not transporting any goods and the deceased was not carrying any goods along with him. The deceased was traveling as a passenger in goods vehicle. Carrying of a passenger in a goods vehicle would amount to violation of terms and conditions of the policy. The case of the claimants was that the deceased was proceedings in TATA ACE goods vehicle and tractor-trailer loaded with sugarcane which was proceeding ahead driven by its driver in a rash and negligent manner with zig zag manner, the trailer of the tractor dashed to the TATA ACE goods vehicle, due to which the deceased who was traveling in TATA ACE sustained grievous injuries and succumbed to the injuries.
16
17. The claimants in their claim petition have not stated as to whether the deceased was traveling in TATA ACE goods vehicle with any goods or otherwise. PW.1 evidence affidavit is also silent with regard to deceased traveling with any goods. To a suggestion by the counsel for respondent No.4, PW.1 has denied the suggestion that the deceased was proceeding in TATA ACE goods vehicle as a passenger, but she has volunteered that the deceased husband was proceeding in the vehicle to bring the brinjal saplings. Ex.P.1 is complaint lodged by one Shivanand Annappa Amate which would also not disclose as to whether the deceased was traveling with his goods. Ex.P.5 statement of PW.1 recorded by police on 12.12.2016 discloses that her husband had gone to Mahalingapur to bring brinjal saplings. Ex.P.3 mahazar would indicate that the deceased was traveling along with the driver and cleaner of the TATA ACE goods vehicle without any goods. The claimants have not placed on record any material to 17 suggest that the deceased was traveling in TATA ACE goods vehicle with his goods. If the deceased was traveling in the TATA ACE goods vehicle without any goods then definitely the deceased would be an unauthorized or gratuitous passenger. Except statement of claimant No.1-PW.1, there is no corroborative evidence to say that the deceased was traveling with his goods. Thus, the insurer of the TATA ACE goods vehicle i.e. appellant herein cannot be made liable to pay the compensation as the owner of the TATA ACE goods vehicle insured has violated the terms and conditions of the policy. Ex.R.1 is insurance policy. We have gone through the contents of the policy. Sitting capacity of the vehicle is two, whereas, the policy covers driver and cleaner. No extra premium is paid to cover any other person. As the owner of TATA ACE goods vehicle has violated the terms and conditions, he would be liable to compensate the claimants. But, Full Bench of this Court in M.F.A. No.30131/2010 decided on 12.05.2020 18 after examining the legal position with regard to pay and recovery and provisions of Sections 147 and 149 of the Act has held as follows:
"62. It is worth reiterating here that the insurance policy between the insurer and insured is a contract which is purely binding upon the parties to the contract. The parties on a consensus can enter into any type of legal agreement between themselves which is recognized as a valid contract. On an offer and acceptance of consideration, if the contract is entered into between the parties, it will create a binding contract between the parties. Under the provisions of the Act, the policy should contain all the statutory liabilities of the insurer irrespective of other conditions that may be agreed upon by the parties incorporated in the contract. So far as on "Act policy" is concerned, or a policy which should contain the statutory liabilities and requirements there is no problem in interpreting the same, because the statute itself imposes the liability on the insurer to incorporate those legal requirements as per the provisions of the Act. Apart from incorporating those requirements, the Insurance Company may also incorporate other 19 conditions which are legally recognized under Section 147 (2) of the Act. Therefore, it goes without saying that the contract of insurance may contain conditions as recognized under Section 147 (2) of the Act and any other conditions which are mutually agreed upon by the parties.
63. In this background, it can be safely understood that the policy of insurance may also contain conditions otherwise than the conditions which are recognized under Section 147 (2) of the Act. But breach of only those conditions, which are recognized under Section 149(2) of the Act, can be permitted to be raised by the insurer against third parties. The other conditions though incorporated in the insurance policy cannot be pressed into service in order to resist a claim before the Tribunal because the other conditions, even though mutually agreed upon between the parties, can only be enforced between the insurer and the insured but it will not have any effect so far as the third parties are concerned. So, those conditions which are within the statutory purview of Section 149 (2) of the Act are considered as defendable conditions by the insurer. However, all those conditions can be enforced between the insurer and insured inter se exclusively between 20 themselves if they are not void or voidable at the instance of the said parties.
65. The above are general concept of breach of contract. But, in the context of fundamental breach of a contract of insurance, it is necessary to explain the expression fundamental breach with reference to the Act. Of course, insurance companies would not draw up a separate contract with every individual but they will prepare a standard form contract containing various conditions whereby a standard form with a large number of terms and conditions are imposed on the insured, restricting the liability of the insurer to the contract. Therefore, the individual can hardly bargain with the insurers which are mighty organizations and third parties may also suffer due to such conditions. Thus, the only option available to the insured is either to accept or reject the terms of insurance except what are stipulated in Section 147 of the Act.
72. Therefore, the main purpose recognized under the statute is that no third party should suffer despite breach of any condition in the insurance policy between insurer and insured. Though such breach of condition is proved by the insurer 21 against the insured, it should be treated as an inter se dispute between the insurer and the insured and the same should not affect the right of a third party, unless, there is a contribution by the third party himself in causing the breach of any condition of the policy. This is the main object and purpose of the Act and the provisions of the Act under consideration. Therefore, the purpose for which the conditions have been imposed in the policy as recognized under Section 149 (2) of the Act and the breach of those conditions are to be tested, as to, whether, the breach is referable to the cause of the accident so as to exonerate the insurer. If not, any condition imposed in the policy and breach of such a condition will not exonerate the Insurance Company so far as a third party risk is concerned. Thus, the first main test, if on ascertaining breach of a condition in the policy by the Court as to, whether the said breach is referable to the cause of accident in which case it would become a fundamental breach, then, the second test would be, whether, the victim or third party, in any manner contributed or was responsible for such breach of the condition by the insured and only thereafter, the Courts have to examine whether the Insurance Company could be directed to pay the compensation and 22 recover from the insured or be completely absolved of its liability. This is how we understand the expressions regarding "fundamental breach" and main purpose rule.
75. As we have stated above, the interpretation of a provision of a statute in the present context must be to protect the interest of the innocent third parties who are not responsible for the cause of the accident or who have not contributed in any way to the accident or towards breach of conditions of the policy by the insured in any manner; those persons should not suffer for any reason. Therefore, in all such circumstances, the insurer has to indemnify the third party with reference to the payment of compensation. Hence, the breach of conditions in such cases should be treated as a fundamental breach only insofar as the insured is concerned. It would not affect the right of a third party from recovering compensation awarded by the Courts, jointly or severally from the insurer or the insured.
77. Therefore, looking to the aforesaid well settled principles in the rulings referred above, the law is abundantly clear as laid down by the Apex Court in Swaran Singh's case, which has been consistently adopted and followed in various 23 subsequent judgments. The same clarifies the position that the Tribunal or the High court, under the peculiar and special facts and circumstances of each case, could ascertain whether there was any fundamental breach of condition, referable to the cause of accident and depending upon the circumstances, may order for 'pay and recover'. However, the guiding principle that has to be adopted is either absolving the liability of the insurer in toto or fastening the liability on the insured and ordering to insurer to pay and recover the award amount accordingly.
83. With the above said observations, we answer the questions 1 and 2 which are referred for our consideration, in the following manner:
Questions referred:-
I) If it is shown the insurance policy is not 'Act' policy in terms of Sections 145 and 147 of the Motor Vehicles Act, but a contractual policy issued collecting extra premium indicating insurance company has enlarged its liability, will not the insurance company be liable to pay and recover even if there is any breach by the insurer?
II) In such cases, is not the rule to 'pay and recover' applicable in view of the mandate in 24 Section 149, M.V.Act that upon issuance of policy, the insurer is bound to discharge the award as if it were a judgment debtor?
Answers:
i) The Insurer is liable to pay the third party and recover from the insured even if there is breach of any condition recognized under Section 149(2), even if it is a fundamental breach (that is breach of condition which is the cause for the accident) and the insurer proves the said breach, in view of the mandate under Section 149(1) of the Act. But no such order can be passed against the insurer, if, on the facts and circumstances of a case, a finding is given by the court that the third party (injured or deceased) had played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss to the insurer.
ii) The Court can also fasten the absolute liability on the insurer, if there is any breach of condition which is enumerated under Section 149(2) of the Act or any other condition of the policy if the Insurance Company has waived breach of any such condition or has taken the special responsibility to pay by collecting extra premium 25 by covering any type of risk depending upon facts of each case.
iii) Before passing any order on the Insurance Company to pay and recover, the Court has to examine the facts and circumstances of each case and if it finds that the victim, injured or the deceased, in a particular case, was solely or jointly responsible for breach of such fundamental condition by playing fraud or in collusion with the insured, the Court may exercise its discretion not to fasten the liability on the insurer.
iv) However, the court should not adopt the above guideline as a general rule in all cases, but only under peculiar facts and circumstances of each case and on giving appropriate reasons."
18. A reading of the above principles laid down by the Full Bench of this Court, we are of the view that it is a case of pay and recovery. Hence, we direct the appellant-insurer to pay the compensation as determined in these appeals and to recover the same from the owner of the TATA ACE goods vehicle i.e. respondent No.7 herein. In view of the above finding, we 26 need not examine the other grounds urged by the appellant-insurer.
19. With regard to the claimants appeal for enhancement of compensation, the learned counsel submitted that the income assessed by the Tribunal at Rs.8,000/- p.m. of the deceased is on the lower side. The accident is of the year 2016. The claimants have stated that the deceased was working as an agriculturist and also doing milk vending business. It is stated that the deceased was earning Rs.5 lakhs p.a. from agriculture and Rs.20,000/- p.m. from milk vending business, who was aged 26 years as on the date of the accident. The claimants have placed on record Ex.P.12-records of rights and Ex.P.13-milk vending statement to establish the income of the deceased. But the same would not indicate the income earned by the deceased. In the absence of any material to establish the income earned by the deceased, the income will 27 have to be assessed notionally. The notional income assessed by the Tribunal at Rs.8,000/- p.m. is on the lower side. This Court and Lok-adalat's while settling the accident claims of the year 2016 would normally assess the notional income at Rs.8,750/-. In the instant case also, in the absence of any material to establish the income of the deceased, we deem it appropriate to assess the notional income at Rs.8,750/- p.m. Thus, the claimants would be entitled for compensation on the head of loss of dependency including future prospects by taking Rs.8,750/- as monthly income of the deceased. The compensation awarded on the other heads is proper and correct taking note of the decision of the Hon'ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and others reported in AIR 2017 Supreme Court 5157 and Magma General Insurance Company Limited vs. Nanu Ram and others reported in 2018 ACJ 2782. Thus, the compensation awarded under other heads is 28 not disturbed. The Tribunal has awarded 40% of the assessed income towards future prospects. Relying upon the decision of the Hon'ble Apex Court in Pranay Sethi's case (supra) awarding of 40% of assessed income by the Tribunal also needs no interference. Hence, the claimants would be entitled for the following modified compensation:
1. Towards loss of dependency including future prospects : Rs.17,64,096 (8,750 + 3,500 (40% of 8,750) =12,250-3,062 (1/4th of 12,250) =9,188 x 12 x 16 = 17,64,096/-)
2. Towards loss of consortium : Rs. 40,000
3. Towards loss of estate and Funeral expenses : Rs. 30,000
4. Towards loss of love and affection : Rs. 1,50,000 Total : Rs.19,84,096
20. Thus, the claimants would be entitled for total compensation of Rs.19,84,096/- as against Rs.18,32,800/- awarded by the Tribunal with interest at the rate of 9% p.a. from the date of petition till realization.
29
21. The apportionment and deposit would be as ordered by the Tribunal in the same proportion.
22. Appellant-Insurance Company is directed to pay the compensation at the first instance and to recover the same from the owner of the TATA ACE goods vehicle i.e. respondent No.7 herein without initiating any further proceedings but by filing execution.
23. The amount in deposit, if any, by the Insurance Company before this Court be transmitted to the concerned Tribunal forthwith for disbursement.
24. Draw modified award accordingly.
25. With the above, both the appeals stand disposed of.
Sd/-
JUDGE Sd/-
JUDGE SH