Karnataka High Court
Chikkanarasamma W/O Late Pattabiram vs Sadashivanaik Rep By Madukar on 22 March, 2013
Author: N.K.Patil
Bench: N. K. Patil
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22nd DAY OF MARCH, 2013
BEFORE
THE HON'BLE MR. JUSTICE N. K. PATIL
M.F.A. No.5910 of 2010 (MV)
C/W.
M.F.A. No.9747 of 2010 (MV)
IN M.F.A. No.5910 of 2010 (MV)
BETWEEN:
1. CHIKKANARASAMMA W/O LATE PATTABIRAM
AGED 39 YEARS, HOUSE WIFE
2. R SAVITHRA @ SUMITHRA R
AGED 22 YEARS OCCU: HOUSE WIFE
3. KIRAN S/O PATTABIRAMA
AGED 21 YEARS, OCCU - NIL
ALL ARE R/AT SUNKADAKATTE,
NEAR ASHRAYA HOSPITAL
MAGADI ROAD,
BANGALORE
.... APPELLANTS
(BY SMT : N.S.ASHTALAKSHMI FOR
SMT. M C UMADEVAMMA, ADV.)
A N D:
1. SADASHIVANAIK REP. BY MADUKAR
S/O C M SADASHIVANAIK
AGE MAJOR, 350, 5TH A MAIN ROAD,
RENKO LAYOUT, VIJAYANAGAR,
2
BANGALORE
2. THE MANAGER, BAJAJ ALLIANZ GENERAL
INSURANCE COMPANY LTD, CEARS PLAZA,
RESIDENCY ROAD,
BANGALORE - 1
3. HANUMANTHAIAH S/O DODDAGANGAIAH
AGE 72, 159, RGI LAYOUT, 7TH CROSS,
LAKSHMINARAYANPURA, SIRAMPURA
BANGALORE 21
... RESPONDENTS
(BY SRI : A N KRISHNASWAMY, ADV. FOR R2
NOTICE TO R1 AND R3 - DISPENSED WITH
V/O. DATED 14.06.2012)
THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD
DATED:05.06.2010 PASSED IN MVC NO.8438/2007
ON THE FILE OF THE CHIEF JUDGE AND PRINCIPAL
MACT, COURT OF SMALL CAUSES, BANGALORE,
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION AND ETC.
IN M.F.A. No.9747 of 2010 (MV)
BETWEEN:
BAJAJ ALLIANZ GENERAL
INSURANCE CO LTD
CEARS PLAZA, I FLOOR, RESIDENCY
ROAD, BANGALORE-1, NOW SITUATED AT
BAJAJ ALLIANZ GENERAL INSURANCE
CO. LTD., # 31, GROUND FLOOR,
TBR TOWER, I CROSS, NEW MISSION
ROAD, ADJACENT TO JAIN COLLEGE,
BANGALORE-560027
.... APPELLANT
(BY SRI : A N KRISHNA SWAMY, ADV.)
3
A N D:
1. SMT. CHIKKANARASAMMA
W/O LATE PATTABIRAMA
AGED ABOUT 40 YEARS,
2. R SAVITHRA @ SUMITHRA R
D/O LATE PATTABIRAMA
W/O PRAKASH
NOW AGED ABOUT 23 YEARS,
3. KIRAN
S/O LATE PATTABIRAMA
NOW AGED ABOUT 22 YEARS,
ALL ARE R/A SUNKADAKATTE,
NEAR ASRAYA HOSPITAL,
MAGADI ROAD, BANGALORE
4. SADASHIVANAIK
REPRESENTED BY LR. BY MADHUKAR
S/O C M SADASHIVANAIK,
350, 5TH A MAIN ROAD,
REMKO LAYOUT, VIJAYANAGAR,
BANGALORE
5. HANUMANTHAIAH
S/O DODDAGALAIAH
NOW AGED ABOUT 73 YEARS,
# 159, RGI LAYOUT,
7TH CROSS, LAKSHMINARAYANAPURA,
SRIRAMPURA, BANGALORE-23
... RESPONDENTS
(BY SMT : N.S.ASHTALAKSHMI FOR
SMT. M C UMADEVAMMA, ADV. FOR R1 TO R4)
4
THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD
DATED:05.06.2010 PASSED IN MVC NO.8438/2007
ON THE FILE OF THE CHIEF JUDGE AND COURT OF
SMALL CAUSES, PRINCIPAL MACT, BANGALORE,
AWARDING A COMPENSATION OF Rs.3,90,000/- WITH
INTEREST @ 6% P.A. FROM THE DATE OF PETITION
TILL REALIZATION AND ETC.
THESE APPEALS COMING ON FOR FINAL
HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
These two appeals are by the claimants and the Insurance Company respectively directed against the impugned judgment and award dated 05.06.2010 passed in MVC No.8438/2007 on the file of the Chief Judge, Court of Small Causes, Principal MACT, Bangalore (hereinafter referred to as 'Tribunal' for brevity). The Tribunal by its judgment and award awarded compensation of Rs.3,90,000/- with interest at 6% per annum from the date of petition till the date of realisation as against the claim of Rs.20,00,000/- on account of the death of late Pattabiram in the road traffic accident. The appellants filed MFA.No.5910/2010 seeking enhancement of compensation, whereas the Insurance Company has 5 filed MFA.No.9747/2010 for setting aside the judgment and award of the Tribunal on the ground that the driver did not possess any valid Driving license as on the date of the accident to drive the vehicle and the same cannot be sustained.
2. The Brief facts of the case in hand are:
Appellant No.1 is the wife and appellant Nos.2 and
3 are the daughter and son of the deceased, who had filed claim petition under Section 166 of the M.V.Act seeking compensation on account of the untimely death of Pattabiram in the road traffic accident, which occurred on 16.11.2007. On the fateful day, deceased Pattabiram succumbed to injuries sustained in the accident which was caused due to rash and negligent riding by the rider of Honda Scooter bearing registration No.KA-02/EX-6428.
3. Claimants contend that the deceased was aged about 40 years and had a transport business. Claimant No.1 has lost her husband in her young age. He was the only earning member in the family and was the 6 source and security for the future life and due to the death of the deceased, they are under severe social and economical crisis and their future has been jeopardised. The children of the deceased have lost the inspiration and guidance of their father. On account of the death of the deceased, wife and children filed a claim petition under Section 166 of Motor Vehicles Act claiming compensation of Rs.20,00,000/- against the Insurer and others. The said claim petition had come up before the Tribunal and the Tribunal in turn after assessing the oral and documentary evidence and other relevant material available on record assessed the income of the deceased at Rs.3,000/-p.m. and awarded a compensation of Rs.3,90,000/- with interest at 6% p.a. from the date of claim petition till the date of realization. Aggrieved by the said compensation awarded, the claimants have presented the instant appeal seeking enhancement of compensation and the Insurance Company prays for setting aside the judgment and award on the ground that the rider did not possess valid driving license and in view of non production of any 7 documents there is absolutely no evidence forthcoming to assess the income of deceased at Rs.3,000/- p.m. and to award Rs.3,90,000/-.
4. Heard the learned counsel for the claimants and the learned counsel for the Insurance Company for considerable length of time.
5. Learned Counsel for the claimants at the outset submits that the Tribunal has erred in assessing the income of the deceased at only Rs.3,000/- p.m., as the accident has occurred in the year 2006. It is the specific case of the claimants that the deceased was earning Rs.10,000/- p.m., and doing transport business and reasonable income of the deceased might have been taken by the Tribunal and the deceased was the only bread earner in the family. Therefore, he prays this Court to re-determine the income of the deceased. He further contended that as per Santhosh Devi's case, 30% of the income may be added to income of the deceased towards future prospects and 1/3rd may be deducted and the age of the deceased was 40 years. 8 Hence, he prays that the judgment and award be modified by awarding reasonable compensation.
6. Per contra, learned Counsel for the Insurance Company interalia contended that the Tribunal has erred in not noticing that it is mandatory on the part of the insurer to know the particulars of the deceased as envisaged under the relevant provisions of the motor vehicles Act. The rider of the offending vehicle had no driving license as on the date of accident. The copy of the license was not at all produced before the police and the charge sheet also does not reflect the license details. Hence, the police have made a note in the charge sheet. Further he submits that he also failed to call upon the claimants to give a representation of the insurer particularly, on two occasions, and deliberately the same would have drawn a presumption that the driving license was not at all there as on the date of the accident. Hence, claimants did not produce the documents which are mandatory. The Tribunal has failed to notice that the claimants have not produced the documents and the judgment is not a speaking one 9 and is opposed to law laid down by the Apex Court. Therefore, the liability fastened on the Insurance Company is illegal and also that the quantum of the compensation awarded by the Tribunal deserves to be reduced considerably.
7. After considering the submission of both the parties, careful perusal of the impugned judgment and award and also critical evaluation of the material available on record.
8. The undisputed facts are that the occurrence of the accident and the death of the deceased on account of the accident that occurred on 16.11.2007 at about 06.45 p.m., due to rash and negligent driving by the rider of the offending vehicle. The deceased was aged about 40 years, as per the post mortem report. It is stated that he has a license to do transport business. To prove the business transaction and the income, the claimants ought to have produced pass book or any financial transactions or examined any independent witness. Therefore, the Tribunal could not accept the 10 submission to the effect that the deceased was getting Rs.10,000/- to Rs.12,000/- p.m. However, the Tribunal has erred in assessing the income of the deceased. The accident has occurred in the year 2007 and the deceased was aged 40 years. The claimants who is none other than the wife and children have lost the earning member. Hence, the income can be safely re- assessed at Rs.4,500/- p.m. As rightly pointed out by the learned Counsel for the claimants, if 30% is added to Rs.4,500/-, the total comes to Rs.5,850/- p.m. The dependents are three in number and 1/3rd should be deducted towards the personal expenses of the deceased which comes to Rs.3,900/- and the multiplier applicable is '15'. The compensation towards loss of dependency comes to Rs.7,02,000/- (Rs.3,900/- x 15 x 12) as against Rs.3,36,000/- awarded by the Tribunal and it is just and proper to award Rs.45,000/- towards conventional heads. In all the claimants are entitled to a total compensation of Rs.7,47,000/- as against Rs.3,90,000/- awarded by the Tribunal. 11
9. It is suffice to note that the Insurance Company has taken a stand that the driver of the offending vehicle had no license at the time of the accident but the said stand has not been taken before the Tribunal. Though upon the service of notice, detailed objections were filed, denying all the averments made by the claimants with regard to the age of the deceased, monthly income and contribution towards his family, the occurrence of accident due to rash and negligent driving of the Honda Activa scooter bearing registration No.KA-02/EX-6438, the said stand is not forthcoming in the objections. However, the claimants have admitted that the insurance policy was in force for the period from 16.01.2007 to 15.01.2008 and in fact, as on the date of the accident, the policy was in force. As observed in paragraph No.8 of the judgment, the Tribunal has recorded the finding that the claimants have produced documentary evidence in order to establish negligence on the part of the rider of the Honda Active Scooter. Ex.P.1 is the FIR registered against the rider of the Scooter at the instance of the 12 complaint lodged by one Sri Nagaraju Hanumanthayya, which clearly attributes negligence on the part of the rider of the Honda Activa Scooter. Ex.P.4 is the Report of the Motor Vehicles Inspector, which goes to show that the accident has not occurred on account of any mechanical defect of the vehicle. Ex.P.5 is the certified copy of the sketch, which gives clear idea that the accident has occurred at the extreme side of the road. Ex.P.6 is the spot mahazar. Ex.P.7 is the charge sheet filed against the rider of the Scooter by Police after investigation under Section 279 and 304A of the IPC. It is significant to note that the Insurer has not lead any evidence. In the absence of any rebuttal evidence, it is sufficient to hold that the accident and the resultant death of Pattabiram is due to rash and negligent riding by the rider of the Honda Activa Scooter belonging. The judgment of the Tribunal is well reasoned and well founded hence, interference by this Court is not called for. It is clear from the objections that the Insurance Company has not pleaded the ground before the Tribunal but has raised the said ground for the first 13 time in the instant appeal, before this court. The fresh grounds urged before this Court should be urged before the Tribunal and not before this Court.
10. Having regard to the facts and circumstances of the case stated above, the instant appeal filed by the claimants is allowed in part. The appeal filed by Insurer is dismissed as devoid of merits. The impugned judgment and award passed by the Tribunal, dated 05.06.2010 passed in MVC No.8438/2007 on the file of the Chief Judge, Court of Small Causes & Principle MACT, Bangalore, is hereby modified The claimants are entitled for a total compensation of Rs.7,47,000/- as against Rs.3,90,000/- awarded by the Tribunal. The enhanced compensation comes to Rs.3,57,000/- with interest at 6% p.a. from the date of petition till the date of realization.
The Insurance Company is directed to deposit the enhanced compensation of Rs.3,57,000/- with interest 14 within a period of three weeks from the date of receipt of a copy of this judgment.
Out of enhanced of Rs.3,57,000/-, Rs.2,50,000/- with proportionate interest shall be invested in F.D. in the name of claimant No.1 (wife) in any nationalised or scheduled bank for a period of 10 years and renewable for another 10 years. Claimant No.1 (wife) is permitted to withdraw periodical interest on the F.D. Remaining compensation of Rs.1,07,000/- with proportionate interest shall be released in favour of all the claimants after deposit of the same by the Insurance Company.
The amount deposited by the Insurance Company in the appeal filed by it shall be transmitted to the jurisdictional Tribunal, forthwith.
Office is directed to draw the award accordingly.
SD/-
JUDGE nvj