Karnataka High Court
Smt. Manjula, W/O. Parashram vs Shri. Elumalai G S/O. Ganesan on 18 March, 2014
Bench: A.S.Bopanna, B.Sreenivase Gowda
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 18th day of March 2014
Present
THE HON'BLE MR.JUSTICE A.S. BOPANNA
and
THE HON'BLE MR.JUSTICE B. SREENIVASE GOWDA
Miscellaneous First Appeal No.25016/2013 C/w
Miscellaneous First Appeal No.24544/2013 (MV)
In M.F.A. No.25016/2013
Between:
1. Smt. Manjula, W/o Parashram
Madivalar, Age: 36 years,
Occ: Household work,
R/o: H.No.289, Jamboti Road,
Piranwadi, Tal. & Dist: Belgaum.
2. Manikanth, S/o Parashram
Madivalar, Age: 11 years,
Occ: Student,
R/o: H.No.289, Jamboti Road,
Piranwadi, Tal. & Dist: Belgaum.
3. Ganesh, S/o Parashram
Madivalar, Age: 8 years,
Occ: Student,
R/o: H.No.289, Jamboti Road,
Piranwadi, Tal. & Dist: Belgaum.
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4. Shrishti, D/o Parashram
Madivalar, Age: 5 years,
Occ: Student,
R/o: H.No.289, Jamboti Road,
Piranwadi, Tal. & Dist: Belgaum.
Appellants No.2 to 4 being minors
Represented by M/G mother
Appellant No.1 ...Appellants
(By Smt. Geetha K.M. @ Pawar, Advocate)
And:
1. Shri. Elumalai G., S/o Ganesan,
Age: Major, Occ: Business,
R/o: 3/361, Bharathiyar Street,
Puliyankannu Ranipet,
District: Vellore,
Tamilnadu-632403.
(Owner of Truck bearing
No.TN-73/B 6904)
2. ICICI Lombard General Insurance
Co. Ltd., Reptd. by its
General Manager,
Building No.14, R.P.D. Cross,
Khanapur Road, Tilakwadi,
Belgaum. (Insurer of Truck bearing
No.TN 73/B 6904 Pollicy No.3003/
64461697/00/000, valid from
20/04/2011 to 19/04/2012) ...Respondents
(By Sri. Suresh S.Gundi, Advocate for R2)
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This appeal is filed under Section 173(1) of the
Motor Vehicles Act, 1988, against the judgment and
award dated 29.08.2013 passed in MVC No.2419/2011
on the file of the II Additional District and Sessions
Judge at Belgaum, partly allowing the claim petition for
compensation and seeking enhancement of
compensation.
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In MFA No.24544/2013
Between
ICICI Lombard General Insurance
Co. Ltd., Reptd. by its
General Manager,
Building No.14, R.P.D. Cross,
Khanapur Road, Tilakwadi,
Belgaum, now represented
By its Manager Legal,
ICICI Lombard General Insurance
Co. Ltd., Gokul Road, Hubli. ...Appellant
(By Sri. Suresh S.Gundi, Advocate)
And:
1. Smt. Manjula, W/o Parashram
Madivalar, Age: 36 years,
Household work, R/o: H.No.289,
Jamboti Road, Piranwadi,
Taluka & District: Belgaum.
2. Manikanth, S/o Parashram
Madivalar, Age: 11 years,
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Student, R/o: H.No.289,
Jamboti Road, Piranwadi,
Taluka & District: Belgaum.
3. Ganesh, S/o Parashram
Madivalar, Age: 8 years,
Student, R/o: H.No.289,
Jamboti Road, Piranwadi,
Taluka & District: Belgaum.
4. Shrishti, D/o Parashram
Madivalar, Age: 5 years,
Student, R/o: H.No.289,
Jamboti Road, Piranwadi,
Taluka & District: Belgaum.
5. Elumalai G., S/o Ganesan,
Major, Business,
R/o: 3/361, Bharathiyar Street,
Puliyankannu Ranipet,
District: Vellore,
Tamilnadu-632403. ...Respondents
(By Smt. Geetha K.M. @ Pawar, Advocate for R1 to R4)
This appeal is filed under Section 173(1) of the
Motor Vehicles Act, 1988, against the judgment and
award dated 29.08.2013 passed in MVC No.2419/2011
on the file of the II Additional District and Sessions
Judge at Belgaum, awarding compensation of
Rs.17,66,000/- with interest at the rate of 6% p.a. from
the date of petition till the date of realisation.
These appeals coming on for orders this day,
A.S. Bopanna, J, delivered the following:
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JUDGMENT
The appeal in M.F.A. No.25016/2013 is by the claimants/appellants. The appeal in M.F.A. No.24544/2013 is by the insurance company. Since the appellants in both these appeals are assailing the judgment and award dated 29.08.2013 passed in M.V.C. No.2419/2011, we have heard both these appeals together and are being disposed of by this common judgment.
2. Even on the issue relating to quantum of compensation as awarded, the claimants as well as the insurance company have disputed with regard to the manner in which the income of the deceased has been assessed, though for different reasons. In that view, we have heard the learned counsel for the parties and perused the appeal papers including the judgment passed by the Tribunal.
3. The brief facts are that the claimants are the wife and minor children of the deceased Parshuram Mallappa :6: Madiwalar who succumbed to the injuries in the accident which occurred on 10.10.2011. The deceased was the owner-cum-driver of the goods vehicle bearing registration No. KA-22/A-9188. With regard to the findings rendered by the Tribunal relating to the nature of the accident and the liability of the insurance company, there is no dispute. The Tribunal, while assessing the compensation under the head 'loss of dependency', has reckoned the income of the deceased at Rs.12,000/- per month, which is in dispute.
4. The learned counsel appearing for the claimants/appellants would contend that taking note of the fact that three minor children are studying and their educational expenses were also being incurred, the Tribunal should have taken an higher income, more particularly, in a circumstance, where the vehicle used was having national permit, certainly, the income would have been much more than the same. It is her contention that the claimants had contended that a sum of Rs.50,000/- :7: per month is the income, but the Tribunal was not justified in not reckoning the same for the purpose of calculation of the compensation under the head 'loss of dependency'.
5. Learned counsel appearing for the insurance company, on the other hand, would contend that the income reckoned at Rs.12,000/- per month itself is without basis whatsoever and such an exorbitant income without the support of the documents was not justified. It is contended that when the deceased was required to pay the EMI of Rs.14,625/-, as claimed, over and above the same, such high income could not have been reckoned by the Tribunal. It is, therefore, contended that the compensation requires to be reduced and the appeal filed by them is to be allowed.
6. In the light of the rival contentions, having noticed that the issue rests on the nature of the consideration relating to the income of the deceased, a perusal of the findings rendered by the Tribunal, more explicitly in para :8: 12 of the judgment, would disclose that insofar as the documents which were available on record, the Tribunal has referred to the same at Ex.P.37(i) to Ex.P.37(24) and also at Ex.P.29 and Ex.P.38(1) to Ex.P.38(6). The said documents, no doubt, does not refer to the income of the deceased. Despite the same, we have made reference to the nature of consideration made by the Tribunal to the said documents only to take note of the fact that the said documents disclose the nature of expenses that was being incurred by the deceased towards education of the children and towards payment of the EMI in respect of the loan secured for purchasing the vehicle under the Hire Purchase Agreement. If the said documents are kept in view and, in the circumstance, if it is noticed that the financial institution viz., Cholamandalam D.B.S. Finance Ltd., had provided financial assistance to the deceased to purchase the vehicle and in respect of the same when the loan was granted, and the EMI was worked out at Rs.14,625/-, certainly, the financial institution should :9: have been satisfied with the financial position of the borrower and his capacity to repay the loan and only thereafter would have sanctioned the loan. If that aspect of the matter is kept in view, and when it cannot be in dispute that the EMI payable was in a sum of Rs.14,625/- and when the same was being paid to the financial institution and the other documents relating to the school receipts indicated the expenses that was being incurred towards the educational expenses, what cannot also be lost sight of by us is, in addition to the same, he should have had much more income apart from EMI amount to maintain four dependants, incur the educational expenses. In addition to payment of EMI, the deceased would have also incurred certain expenses for running the vehicle on day-to-day basis as it was also the case of the claimants that a cleaner had also been engaged and salary was paid to him.
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7. If all these aspects are kept in view, notwithstanding the fact that there was no documentary evidence to indicate the exact income of the deceased, certainly, the attendant circumstances and the other documents, which relate to the manner in which the deceased and his family were leading their life, would indicate that a seizable amount was required for the expenses of the family which would have to be earned by the deceased as he was the only earning member. In such circumstances, we are of the opinion that the Tribunal, in the present facts, has not committed any error in coming to the conclusion that the income of the deceased could be assessed at Rs.12,000/- per month, even if there is no documentary evidence to specifically indicate the income. While taking note of this aspect of the matter, what is also to be kept in view is that the vehicle, of which the deceased was the owner-cum-driver, had the national permit and also the goods carriage permit and when such permits were held and the vehicle was being run, the income : 11 : certainly could be assessed at the rate as has been done by the Tribunal. Therefore, when we are of the said opinion, we are convinced that the Tribunal has not committed any error. Hence, neither the contention of the claimants/appellants praying that the income should be taken at a higher rate nor the contention of the learned counsel for the insurance company that the income should be taken at a lower rate can be accepted by us.
8. One other aspect, which we have also kept in view to maintain the award passed by the Tribunal, is to take note of the fact that, in the instant case, after taking into consideration the income, the deduction that was required to be made keeping in view that there were four dependants should have been 1/4th. However, the Tribunal has deducted 1/3rd. Since we have arrived at the conclusion that, in the absence of any documentary evidence, the income taken was justified, even if the contention of the learned counsel for the insurance : 12 : company is kept in view, the said deduction made would enure to their benefit and, therefore, if that amount which the claimants would have been entitled to if such deduction was made would off-set if there is any marginal error in taking a slightly higher amount as income. Therefore, for the said reason also we find that the judgment and award of the Tribunal does not call for interference.
Therefore, both the appeals being devoid of merits stand disposed of. In view of disposal of the appeal, the amount in deposit before this Court be transmitted to the Tribunal.
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