Karnataka High Court
Legal Manager vs Sri Yallappa Linga Basappa Totad on 24 November, 2023
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NC: 2023:KHC:42495
MFA No. 1097 of 2018
C/W MFA No. 1495 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE C.M.JOSHI
M.F.A. NO. 1097 OF 2018 (MV-D)
C/W
M.F.A NO. 1495 OF 2018 (MV-D)
IN M.F.A. NO.1097 OF 2018
BETWEEN:
LEGAL MANAGER,
SHRIRAM GENERAL INS. CO. LTD.,
NO.5/4, 3RD FLOOR,
S.V. ARCADE, BELEKALHALLI MAIN
ROAD, OPP BANNERGHATTA ROAD,
LIMB POST, BANGALORE 76.
...APPELLANT
(BY SRI PRADEEP B, ADVOCATE)
AND:
Digitally signed 1. SRI YALLAPPA LINGA BASAPPA TOTAD,
by T S
NAGARATHNA S/O. LINGA BASAPPA TOTAD,
Location: High NOW AGED ABOUT 65 YEARS.
Court of
Karnataka 2. GIRIJAVVA TOTAD,
W/O. YALLAPPA LINGA BASAPPA TOTAD,
NOW AGED ABOUT 57 YEARS,
BOTH ARE R/AT NO.463,
AT BELUR, BADAMI, BELUR,
BAGALKOT-587 114.
3. NEW INDIA ASSURANCE CO. LTD.,
T.P. CLAIMS HUB,
2ND FLOOR, MAHALAKSHMI CHAMBERS,
M.G. ROAD, BENGALURU-01.
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NC: 2023:KHC:42495
MFA No. 1097 of 2018
C/W MFA No. 1495 of 2018
4. T.K. SRINIVASAN,
MAJOR, NO.73/3, 1ST CROSS,
OILMILL ROAD,
AYYAPPA TEMPLE STREET,
ARIVIND NAGAR, BANGALORE 84.
5. NAGARAJU.A,
S/O. KARIBASAPPA,
MAJOR, D.NO.5-101, MAIN ROAD,
KANEKAL (M), ANANTHAPURA DIST,
ANDRA PRADESH STATE-515 124.
AND
NAGARAJU.A, S/O KARIBASAPPA,
MADAKARIYAPPA (V) POST,
CHITRADURGA-577 597.
...RESPONDENTS
(BY SRI K.T GURUDEVA PRASAD, ADVOCATE FOR R1 & R2;
SRI A RAVISHANKAR, ADVOCATE FOR R3;
R4 SERVED AND UNREPRESENTED
SERVICE OF NOTICE TO R5 IS HELD SUFFICIENT V/O DATED
12-12-2022)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 09.11.2017 PASSED IN MVC
NO.5279/2014 ON THE FILE OF THE VIII ADDITIONAL SMALL
CAUSES JUDGE, & XXXIII ACMM, MEMBER, MACT, BENGALURU,
(SCCH-5), AWARDING COMPENSATION OF RS.11,30,000/- WITH
INTEREST @9% P.A. FROM THE DATE OF PETITION TILL
REALIZATION.
IN M.F.A NO. 1495 OF 2018
BETWEEN:
THE NEW INDIA ASSURANCE COMPANY LIMITED,
TP CLAIMS HUB, 2ND FLOOR,
MAHALAKSHMI CHAMBERS,
M.G.ROAD, BEGNALURU-560 001.
REPRESENTED BY ITS MANAGER.
...APPELLANT
(BY SRI A RAVISHANKAR, ADVOCATE)
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NC: 2023:KHC:42495
MFA No. 1097 of 2018
C/W MFA No. 1495 of 2018
AND:
1. SHRI YALLAPPA LINGA BASAPPA TOTAD,
S/O. SHRI LINGA BASAPPA TOTAD,
AGED ABOUT 65 YEARS.
2. SMT. GIRIJAVVA TOTAD,
W/O. SHRI YALLAPPA LINGA BASAPPA TOTAD,
AGED ABOUT 53 YEARS.
BOTH ARE PARENTS OF THE DECEASED
SHRI PRAKASH TOTAD AND ARE
R/AT: NO.463, BELUR, BADAMI,
BAGALKOTE DISTRICT-587 114.
3. SHRI T. K. SRINIVASAN,
MAJOR,NO.73/3, 1ST CROSS,
OIL MILL ROAD-AYYAPPA TEMPLE STREET,
ARAVINDANAGAR, BENGALURU-560 084.
4. SHRIRAM GENERAL INSURANCE COMPANY LIMITED,
3RD FLOOR, SV ARCADE,
NO.5/4, BELLIKALI MAIN ROAD,
IMM POST, BENGALURU-560 076.
5. SHRI A.NAGARAJU,
S/O. SHRI KARIBASAPPA,
MAJOR, NO.5-101, MAIN ROAD,
KANEKAL (M) POST,
ANANTHAPUR DISTRICT,
ANDHRA PRADESH-515 871.
ALSO AT
MADAKARIPURA (V) POST,
CHITRADURGA-577 501.
...RESPONDENTS
(BY SRI K.T GURUDEV PRASAD, ADVOCATE FOR R1 & R2;
R3 SERVED AND UNREPRESENTED;
SRI B. PRADEEP, ADVOCATE FOR R4)
SERVICE OF NOTICE TO R5 IS HELD SUFFICIENT V/O DATED
12-12-2022)
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NC: 2023:KHC:42495
MFA No. 1097 of 2018
C/W MFA No. 1495 of 2018
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 09.11.2017 PASSED IN MVC
NO.5279/2014 ON THE FILE OF VIII ADDITIONAL SCJ & XXXIII
ACMM MEMBER-MACT, BENGALURU, AWARDING A
COMPENSATION OF RS.11,30,000/- WITH INTEREST @ 9% P.A.
FROM THE DATE OF PETITION TILL ITS REALIZATION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THROUGH VIDEO CONFERENCING AT KALABURAGI,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals by the Insurance Companies are directed against the judgment and award dated 09.11.2017 passed in MVC No.5279/2014 by the learned VIII Additional SCJ and XXXIII ACMM and Member-MACT, Bengaluru, awarding a compensation of Rs.11,30,000/- with interest @ 9% p.a. from the date of petition till its realization on account of the death of one Prakash Totad in the road traffic accident, fastening liability on both the insurance companies in the ratio of 50:50.
2. The parties would be referred to as per their rankings before the Tribunal for the sake of convenience.
3. It is the case of the petitioners, who are parents of one Prakash Totad, who died in the road traffic accident -5- NC: 2023:KHC:42495 MFA No. 1097 of 2018 C/W MFA No. 1495 of 2018 that occurred on 21.10.2014 at about 5.45 a.m., that when their deceased son was proceeding in Eicher Canter bearing Reg.No.KA-03-D-8891 as a Travel Co-ordinator in Professional Courier, near Marulappanahalli on Sira-Tumkur Road, NH-48, the driver of the above said Canter drove it in rash and negligent manner with high speed and dashed against Lorry bearing Reg.No.KA-16-B-1091, which was parked on the right side of the road due to tire burst resulting in his death at the spot. Further it is the case of the petitioners that the body was shifted to General Hospital, Sira and they have performed funeral and obsequies by spending an amount of Rs.50,000/- and also spent a sum of Rs.50,000/- towards transportation of dead body. It is the case of the Petitioners that, deceased was working as Travel Co-ordinator (OTC) and getting a salary of Rs.12,000/- p.m. and therefore, they sought for compensation of Rs.25,00,000/- from respondents.
4. After service of summons, respondents No.1 and 3 have appeared before the Tribunal through counsels and -6- NC: 2023:KHC:42495 MFA No. 1097 of 2018 C/W MFA No. 1495 of 2018 filed their respective objection statements. In spite of service of summons, Respondent No.2 and 4 remained absent, hence they were placed exparte.
5. Respondent No.1-New India Assurance Company Limited, insurer of Eicher canter, in its objection statement denied petition averments but admitted issuance of policy of insurance in favour of Respondent No.2 in respect of Eicher Canter bearing Reg.No.KA-03-D-8891 and if there is any liability to pay the compensation, it is subject to terms and conditions of the policy. It also contended that, the driver of the above said vehicle did not possess valid and effective driving licence and deceased was traveling as unauthorized occupant and not as a cleaner or representative of owner of goods or during the course of employment and prayed to dismiss the claim petition filed against it.
6. Respondent No.3-Shriram General Insurance Company Limited, insurer of the lorry in its objection statement admits that, it had issued Goods Carrying Commercial Vehicle Package Policy bearing -7- NC: 2023:KHC:42495 MFA No. 1097 of 2018 C/W MFA No. 1495 of 2018 No.10003/31/14/538594 valid from 05.12.2014 till 04.12.2015 and if there is any liability to pay the compensation, it is subject to terms and conditions of the policy. Further it denied all other petition averments and prayed to dismiss the claim petition filed against it.
7. On the basis of the above pleadings, the Tribunal framed appropriate issues and petitioner No.1 examined himself as PW1 and Exs.P1 to P14 were marked. He examined one witness as PW2. On behalf of respondents, 3 witnesses were examined as RWs 1 to 3 and Exs.R1 to R10 were marked.
8. The Tribunal after hearing both the parties, awarded compensation of Rs.11,30,000/- (Rs.10,00,000/- towards loss of dependency, Rs.1,00,000/- towards loss of love and affection and Rs.15,000/- each towards loss of estate and funeral expenses) and directed respondent Nos. 1 and 3 to deposit the same in the ratio of 50:50. -8-
NC: 2023:KHC:42495 MFA No. 1097 of 2018 C/W MFA No. 1495 of 2018
9. Being aggrieved by the said judgment and award, the respondent Nos. 1 and 3, Insurance Companies of both the vehicles are before this Court in appeals.
10. MFA No.1097/2018 is filed by respondent No.3- Shriram General Insurance Company Limited, contending that the Tribunal committed an error in taking the Future prospects at 40% though deceased was not on a stable job. It is submitted that the Tribunal committed an error in fixing negligence of both the vehicles at 50% and in fact the driver of the Eicher Canter vehicle was the sole contributor of the negligence. It is contended that the rate of interest awarded by the Tribunal is also on the higher side and it should have granted interest at 6% p.a. and therefore, the appeal be allowed.
11. MFA No.1495/2018 is filed by respondent No.1- New India Assurance Company Limited, contending that, the Tribunal had failed to appreciate that the vehicle insured by the appellant i.e., Eicher Canter Goods vehicle was owned by one Srinivasan and it was not the case of the -9- NC: 2023:KHC:42495 MFA No. 1097 of 2018 C/W MFA No. 1495 of 2018 petitioners that it was owned by or hired by M/s. Professional Couriers. It is contended that the Tribunal failed to appreciate that there was no employer and employee relationship between the deceased and the owner of the vehicle and that the Tribunal failed to appreciate that the deceased Prakash was not an authorised passenger on the said vehicle. It is contended that a gratuitous passenger in a goods vehicle is not covered under the policy under Section 147(2) of the Motor Vehicles Act and the Tribunal failed to appreciate the evidence of PW2-Rangaswamy. It is contended that PW2 never stated that as on the date of the accident, the deceased was working in the said Professional Couriers and there is no documentary evidence available to show that he was an employee of Professional Couriers. It is contended that all the evidence that was led was in the year 2011, the deceased Prakash was working at Professional Couriers, if at all if he was working as on the date of the accident it could have produced the salary certificate as well as pay slip etc. It is contended that the deceased was not traveling as a representative of goods the police papers
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NC: 2023:KHC:42495 MFA No. 1097 of 2018 C/W MFA No. 1495 of 2018 produced by the petitioners as well as the statement of the brother of the deceased made before the police show that deceased had left the job six months prior to the date of accident. Therefore, it is contended that the Tribunal has failed to appreciate that the deceased was a gratuitous passengers on the goods vehicle and the documents produced by the petitioners themselves show that he was a gratuitous passenger.
12. In the light of the above contentions raised by both the Insurance Companies, it is necessary to look into the question as to whether the deceased was gratuitous passenger or he was an employee of Professional Couriers travelling with the goods as a representative of the owner of goods?
13. The perusal of the testimony of PW2 Rangaswamy show that the deceased Prakash was working in his company as OTC as a Travel Coordinator since 2011. He also states in his affidavit that the deceased was drawing the salary of Rs.8,000/- with Rs.500/- as daily conveyance,
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NC: 2023:KHC:42495 MFA No. 1097 of 2018 C/W MFA No. 1495 of 2018 food and other expenses and Rs.600/- per month towards the phone charges. It is relevant to note that nowhere in his affidavit, PW2 states that as on the date of the accident, the deceased was working as a Travel Coordinator at Professional Couriers. In cross-examination by the learned counsel for respondent No.1-New India Assurance Company Limited, he states that he is working in Professional Couriers HR department, and the salary to the employees will be credited to their bank accounts. He admits that he has not produced any document to show that the deceased was working in said Company as on the date of the accident. It is also elicited that they have both biometric and manual Attendance register and those particulars are available in the Company. He also states that there will be entry in trip sheet and log sheet regarding the timings of the vehicle used to leave the company premises and reach their destination. He also states that there will be records to show as to at what time the vehicle had left to its destination etc. He admits that no such documents are produced by him. It is interesting to note that though it was
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NC: 2023:KHC:42495 MFA No. 1097 of 2018 C/W MFA No. 1495 of 2018 suggested to him that the deceased was traveling in an unknown lorry as a passenger, there is no suggestion to the effect that the deceased was not working in Professional Couriers as on the date of the accident. Nevertheless, the burden was on the petitioners.
14. In Ex.P9 is the Appointment Order issued by Professional Couriers to the deceased Prakash Totad. Curiously, it is dated 31-12-2011, but it does not mention what is the salary. The monthly gross remuneration is stated to be 'as mentioned in the Welcome Letter'. The said Welcome Letter is not produced by the petitioners. It is also relevant to note that the bank account details of deceased Prakash are also not produced by the petitioners. Therefore, there is no positive evidence on behalf of the petitioners to establish that as on date of the accident deceased Prakash Thotad was working at Professional Couriers. So also there was no positive evidence to show that Eicher Canter Vehicle was on contract with Professional Couriers from respondent No.2-T.K.Srinivasan and that the
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NC: 2023:KHC:42495 MFA No. 1097 of 2018 C/W MFA No. 1495 of 2018 deceased was traveling in the said vehicle as representative of the owner of the goods.
15. The learned counsel appearing for the respondent No.1-New India Assurance Company Limited, has pointed out that Ex.R8 is the statement made by the brother of the deceased before the police on 21-10-2014. In the said statement, he had stated that the deceased Prakash was working for last 5-6 years at Professional Couriers and about 7-8 months prior to the accident, Prakash had left Professional Couriers and was staying in a room of his brother Eerappa. He had stated that about 2 months prior to the accident, the deceased had been to his village Belur of Badami Taluka. Thus, the statement made by brother of the deceased show that the deceased had left the Professional Couriers about 7-8 months prior to the incident.
16. In addition to the above documents, the inquest mahazar produced by the petitioners at Ex.P4 discloses that the Investigating Officer had recorded the statement of one
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NC: 2023:KHC:42495 MFA No. 1097 of 2018 C/W MFA No. 1495 of 2018 Parappa Shivaputrappa wherein, he had stated that deceased had left the job at Professional Couriers and on 20-10-2014 at about 11.45 p.m. he had boarded the Eicher Canter vehicle belonging to Professional Couriers at Haveri to go to Bengaluru. It is also relevant to note that another witness Basavaraj has also stated that the deceased has boarded the said Eicher Canter Vehicle belonging to Professional Couriers from Haveri to go to Bengaluru. None of these witnesses have stated that the deceased was working at Professional Couriers as on the date of the accident. Both these witnesses have also stated that the deceased had left the job and about 2 months back he had returned to his village at Beluru, Badami Taluk. Therefore, there is specific evidence which show that deceased was not working at Professional Couriers as on the date of the accident.
17. Thus, this explains as to why petitioners could not produce any documents to show that deceased was working in Professional Couriers as on the date of the accident and
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NC: 2023:KHC:42495 MFA No. 1097 of 2018 C/W MFA No. 1495 of 2018 why they did not produce the pay particulars, salary certificate etc., issued by Professional Couriers. Curiously, PW2 also does not say in his affidavit evidence that as on the date of the accident deceased was working at Professional Couriers. He also does not mention in his affidavit that the deceased was traveling in the vehicle belonging to his Company/Employer as a representative of the goods. He also does not mention that the deceased was on duty as on the date of the accident. All these aspects clearly establish that the deceased was not under the employment of Professional Couriers even though the said vehicle was used by Professional Couriers. Perhaps, the deceased boarded the Eicher Canter Vehicle at Haveri to go to Bengaluru, with the acquaintance of the driver of the said vehicle. Obviously, the deceased was not the representative of the goods as on the date of the accident. Under these circumstances, this Court holds that the evidence on record show that the deceased was not an employee of Professional Couriers as on the date of the accident and he was a gratuitous passenger in the said vehicle.
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NC: 2023:KHC:42495 MFA No. 1097 of 2018 C/W MFA No. 1495 of 2018
18. The Tribunal had not bestowed its attention on Ex.R8 and inquest panchanama produced by the petitioners. It is evident that the Tribunal had not critically analyzed the evidence of the petitioners and also that of PW2, where there was no positive evidence to show that deceased was an employee of the professional couriers as on the date of accident.
19. The learned counsel appearing for respondent No.1-New India Assurance Company submits that in view of the decision in the case of National Insurance Co. Ltd. v. Cholleti Bharatamma 1, wherein, it is observed as below:
"11. The effect of the 1994 Amendment came up for consideration in National Insurance Co. Ltd. v. Baljit Kaur [(2004) 2 SCC 1] wherein this Court following Asha Rani [(2003) 2 SCC 223] opined that the words "injury to any person" would only mean a third party and not a passenger travelling on a goods carriage whether gratuitous or otherwise. The question came up for consideration again in National Insurance Co. Ltd. v. Bommithi Subbhayamma [(2005) 12 SCC 243] wherein upon taking into consideration a large number of decisions, the said view was reiterated.
12. Yet again in New India Assurance Co. Ltd. v. Vedwati [(2007) 9 SCC 486] this Court held:1
(2008) 1 SCC 423
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NC: 2023:KHC:42495 MFA No. 1097 of 2018 C/W MFA No. 1495 of 2018 "9. ... The difference in the language of 'goods vehicle' as appearing in the old Act and 'goods carriage' in the Act is of significance. A bare reading of the provisions makes it clear that the legislative intent was to prohibit goods vehicle from carrying any passenger. This is clear from the expression 'in addition to passengers' as contained in the definition of 'goods vehicle' in the old Act. The position becomes further clear because the expression used 'goods carriage' is solely for the carriage of 'goods'. Carrying of passengers in a goods carriage is not contemplated in the Act. There is no provision similar to Clause (ii) of the proviso appended to Section 95 of the old Act prescribing requirement of insurance policy. Even Section 147 of the Act mandates compulsory coverage against death of or bodily injury to any passenger of 'public service vehicle'. The proviso makes it further clear that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in goods vehicle would be limited to liability under the Workmen's Compensation Act, 1923 (in short 'the WC Act'). There is no reference to any passenger in 'goods carriage'.
10. The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefor."
Xxxx xxxx xxxx Xxxx xxxx xxxx
20. In this case, the High Court had proceeded on the basis that they were gratuitous passengers. The admitted plea of the respondents themselves was that the deceased had boarded the lorry and paid an amount of Rs 20 as transport charges. It has not been proved that the deceased was travelling in the lorry along with the driver or the cleaner as the
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NC: 2023:KHC:42495 MFA No. 1097 of 2018 C/W MFA No. 1495 of 2018 owner of the goods. Travelling with the goods itself does not entitle anyone to protection under Section 147 of the Motor Vehicles Act."
20. The Apex Court has held that the Insurance Company need not cover the risk of a gratuitous passenger as it is not statutorily covered. A perusal of the insurance policy produced at Ex.R5 show that only cleaner and driver are covered under the policy. Thus viewed from any angle, the liability cannot be fastened on the Insurance company.
21. The decision of Apex Court of Khenyei v. New India Assurance Co. Ltd.,2 lays down as below:
"22. What emerges from the aforesaid discussion is as follows:
22.1. In the case of composite negligence, the plaintiff/claimant is entitled to sue both or any one of the joint tortfeasors and to recover the entire compensation as liability of joint tortfeasors is joint and several.
22.2. In the case of composite negligence, apportionment of compensation between two tortfeasors vis-à-vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.
22.3. In case all the joint tortfeasors have been impleaded and evidence is sufficient, it is open to the court/Tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tortfeasors is only for the purpose of their 2 (2015) 9 SCC 273
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NC: 2023:KHC:42495 MFA No. 1097 of 2018 C/W MFA No. 1495 of 2018 inter se liability so that one may recover the sum from the other after making whole of the payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/extent of their negligence has been determined by the court/Tribunal, in the main case one joint tortfeasor can recover the amount from the other in the execution proceedings.
22.4. It would not be appropriate for the court/Tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tortfeasors. In such a case, impleaded joint tortfeasor should be left, in case he so desires, to sue the other joint tortfeasor in independent proceedings after passing of the decree or award.
22. In a case on hand, it is to be noted that deceased Prakash Totad had nothing to do with the negligence. Deceased Prakash was travelling in the Eicher Canter as gratuitous passenger and therefore, for petitioners, it is a case of composite negligence. Under these circumstances, the liability has to be fastened upon tortfeasers.
23. The petitioners contended that the accident occurred due to the negligence of both the vehicles. A perusal of the FIR, chargesheet and other police papers produced at Ex.P1 and spot mahazar produced at Ex.P2 show that the accident had occurred on the National
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NC: 2023:KHC:42495 MFA No. 1097 of 2018 C/W MFA No. 1495 of 2018 Highway and the lorry belonging to respondent No.2 insured by respondent No.1 had parked on the right side of the lane leading to Sira. It is pertinent to note that the lorry was parked by the side of the median. Obviously, the lorry should have been parked with the indicators so as to caution the drivers of the vehicles coming from behind. After investigation, the chargesheet has been filed by the police against both the drivers. It is relevant to note that the accident had occurred at about 5.45 a.m. Thus, it is evident that the lorry driver as well as the Eicher Canter driver had not exercised caution while driving the vehicle. The Tribunal after examining all the material on record has come to the conclusion that each of the drivers contributed 50% towards the negligence. This Court also does not find any reason to differ with the conclusions reached by the Tribunal in this regard. Hence, the negligence on the part of each of the tortfeaser, i.e., the drivers of both the vehicles is held to be 50% each.
24. The learned counsel appearing for respondent No.3-Sriram General Insurance Company Limited contended
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NC: 2023:KHC:42495 MFA No. 1097 of 2018 C/W MFA No. 1495 of 2018 that the quantum of the compensation awarded by the Tribunal is on the higher side. The decision in the case of National Insurance company Limited vs. Pranay Sethi and others3 rendered by the Constitution Bench of the Apex Court lays down that in a case of persons having a stable job, the future prospects is to be considered at 50% and for self employed, it is to be considered at 40%. Evidently, as on the date of the accident, deceased was not working with the Professional Couriers and there is no evidence to show his salary. Therefore, notional income has to be considered. By applying the guidelines issued by the Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others referred supra, 40% has to be added towards future prospects and loss of dependency has to be calculated. The Tribunal has considered all these aspects and has awarded a sum of 3 AIR 2017 SC 5157
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NC: 2023:KHC:42495 MFA No. 1097 of 2018 C/W MFA No. 1495 of 2018 Rs.9,99,600/- which is rounded off to Rs.10,00,000/- under the head of 'loss of dependency'.
25. The Tribunal has also awarded a sum of Rs.1,00,000/- towards loss of love and affection, which appears to be on the higher side. Therefore, the said amount under the head of 'loss of love and affection' is restricted to Rs.50,000/-. Hence, the total compensation entitled by the petitioners is calculated as below:
1 Loss of dependency Rs. 10,00,000/-
2 Loss of Love and Affection Rs. 50,000/-
3 Loss of Estate Rs. 15,000/-
4 Funeral Expenses Rs. 15,000/-
Total Rs.10,80,000/-
26. Coming to the question of liability, as discussed supra, it is a case of composite negligence for the petitioners. Therefore, all the tortfeasers are liable to pay the compensation to the petitioners jointly and severally.
Since both the tortfeasers are arrayed as respondents in the present case, the interse liability has to be decided and as
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NC: 2023:KHC:42495 MFA No. 1097 of 2018 C/W MFA No. 1495 of 2018 such this Court found that each of the tortfeasers has contributed 50% each. Respondent No.1 has established that the deceased Prakash Totad was gratuitous passenger on the vehicle and therefore, it did not cover the risk of the injury suffered by gratuitous passenger as a statutory liability. There being no specific coverage for a gratuitous passenger travelling in a goods vehicles as laid down by the Apex Court in the case of Cholleti Bharatamma referred supra, the respondent No.1 has to be absolved from the liability to indemnify the owner of the Eicher canter goods vehicle.
27. In the result, the respondent Nos. 2, 3 and 4 are liable to pay the compensation to the petitioners. The respondent No.3 has to indemnify the liability of respondent No.4, for, the policy was in force and valid. Therefore, it is the respondent Nos. 2 and 3 who have to satisfy the award. In view of the decision in the case of Khenyei v. New India Assurance Co. Ltd., referred supra, the petitioners are at liberty to recover the compensation amount from respondent Nos. 2 or 3. In case, respondent No.3 pays the
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NC: 2023:KHC:42495 MFA No. 1097 of 2018 C/W MFA No. 1495 of 2018 entire compensation amount to the petitioners, it will be at liberty to recover the same from respondent No.2.
28. In that view of the matter, the appeal filed by respondent No.1 deserves to be allowed. Since the compensation is reassessed and reduced by Rs.50,000/-, the appeal filed by the respondent No.3 is to be allowed in part.
29. Sofar as interest is concerned, the Tribunal has relied on several decisions of the Apex Court and therefore, no interference is required in the same. Hence, the following:
ORDER
(i) MFA No.1097/2018 is allowed and MFA No.1495/2018 is allowed in part.
(ii) The petitioners are entitled for
compensation of Rs.10,80,000/- along with
interest at the rate 9% p.a., from the date of petition till its deposit before the Tribunal.
(iii) The petition as against the respondent No.1 -New India Assurance Company stands dismissed. Respondent Nos.2 to 4 are jointly and
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NC: 2023:KHC:42495 MFA No. 1097 of 2018 C/W MFA No. 1495 of 2018 severally liable to pay the compensation to the petitioners.
(iv) Respondent No.3 is liable to indemnify the respondent No.4.
(v) The interse liability between the respondent Nos. 2 and 3 is held to be 50% each. In case, the respondent No.3 pays the entire compensation amount, it is at liberty to recover the same from respondent No.2 by executing the award.
(vi) The apportionment and the fixed deposit as ordered by the Tribunal remain unaltered.
(vii) The deposit if any, made by the appellant-New India Assurance Company Limited is ordered to be refunded to it and the deposit made by the Shriram General Insurance Company Limited is ordered to be transmitted to the Tribunal forthwith.
Sd/-
JUDGE tsn* List No.: 19 Sl No.: 3