Karnataka High Court
The Divisional Manager, vs Smt. Akkawwa W/O. Sangappa Madar, on 18 February, 2019
Author: B.V. Nagarathna
Bench: B.V. Nagarathna
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 18TH DAY OF FEBRUARY 2019
PRESENT
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
AND
THE HON'BLE MR. JUSTICE BELLUNKE A.S.
M.F.A.No.101405/2017
C/W M.F.A.No.101406/2017
AND M.F.A.CROB.No.100016/2019
In M.F.A.No.101406/2017 (MV)
IN M.F.A.No.101405/2017
BETWEEN:
THE DIVISIONAL MANAGER,
THE ORIENTAL INSURANCE CO. LTD.,
DO AT CLUB ROAD BELAGAVI,
NOW REPRESENTED BY ITS
AUTHORISED SIGNATORY,
DEPUTY MANAGER, REGIONAL OFFICE. ... APPELLANT
(BY SRI RAJASHEKHAR S. ARANI, ADVOCATE)
AND :
1. SMT. AKKAWWA,
W/O. SANGAPPA MADAR,
AGE: 27 YEARS, OCC: HOUSEHOLD WORK,
R/O: KHAVATAKOPPA, TQ: ATHANI,
DIST: BELAGAVI.
2. KUMARI LAXMI
D/O. SANGAPPA MADAR,
AGE: 8 YEARS, OCC: STUDENT,
R/O: KHAVATAKOPPA,
TQ: ATHANI, DIST: BELAGAVI.
2
(SINCE MINOR REPRESENTED BY
HER NATURAL MOTHER SMT.AKKAWWA
W/O SANGAPPA MADAR,
AGE:27 YEARS, OCC: HOUSEHOLD WORK
R/O: KHAVATAKOPPA, TQ: ATHANI,
DIST: BELAGAVI.
3. KUMAR SANDEEP
S/O. SANGAPPA MADAR,
AGE: 5 YEARS, OCC: STUDENT,
R/O: KHAVATAKOPPA, TQ: ATHANI,
DIST: BELAGAVI.
(SINCE MINOR REPRESENTED BY HER
NATURAL MOTHER SMT. AKKAWWA
W/O SANGAPPA MADAR, AGE:27 YEARS,
OCC: HOUSEHOLD WORK
R/O: KHAVATAKOPPA, TQ: ATHANI,
DIST: BELAGAVI.
4. KUMARI POOJA
D/O. SANGAPPA MADAR,
AGE: 2 YEARS, OCC: NIL,
R/O: KHAVATAKOPPA, TQ: ATHANI,
DIST: BELAGAVI.
SINCE MINOR REPRESENTED BY
HER NATURAL MOTHER,
SMT. AKKAWWA W/O. SANGAPPA MADAR,
AGE: 27 YEARS,
OCC: HOUSEHOLD WORK
R/O: KHAVATAKOPPA, TQ: ATHANI,
DIST: BELAGAVI.
5. SMT. SHIVABAI
W/O. NAMADEV MADAR,
AGE: 56 YEARS, OCC: HOUSE HOLDWORK,
R/O: KHAVATAKOPPA, TQ: ATHANI,
DIST: BELAGAVI.
6. SHRI NAMDEV
S/O. TIPPANNA MADAR,
3
AGE: 68 YEARS, OCC: NIL,
R/O KHAVATAKOPPA, TQ:ATHANI,
DIST:BELAGAVI .
7. SHRI ASHOK
S/O. SIDDAPPA UPPIN,
AGE: MAJOR, OCC: BUSINESS,
R/O: JAYALAKSHMI TRANSPORT,
SAHAPETH-VIJAYAPUR. ... RESPONDENTS
(BY SRI GURUKUMAR V.A., ADVOCATE FOR R1-R6:
RESPONDENT NO.7 - SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST
THE JUDGMENT AND AWARD DATED 05.01.2017 PASSED IN
M.V.C.NO.218/2016 ON THE FILE OF XI ADDITIONAL DISTRICT
AND SESSIONS JUDGE AND MEMBER ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, AWARDING
COMPENSATION OF RS.23,69,000/- WITH INTEREST AT 9%
P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
IN M.F.A.No.101406/2017
BETWEEN:
THE DIVISIONAL MANAGER,
THE ORIENTAL INSURANCE CO. LTD.,
DO AT CLUB ROAD BELAGAVI,
NOW, REPRESENTED, BY ITS
AUTHORISED SIGNATORY,
DEPUTY MANAGER,
REGIONAL OFFICE, HUBBALLI - 580 020. ... APPELLANT
(BY SRI RAJASHEKHAR S. ARANI, ADVOCATE)
AND:
1. SHRI BALAPPA
S/O. RANGAPPA DASAR,
AGE: 38 YEARS, OCC: AGRICULTURE
& KIRANA BUSINESS (NOW NIL),
R/O: KHAVATAKOPPA, TQ: ATHANI,
4
DIST: BELAGAVI.
2. SHRI ASHOK
S/O. SIDDAPPA UPPIN,
AGE: MAJOR, OCC: BUSINESS,
R/O: JAYALAKSHMI TRANSPORT,
SAHAPETH-VIJAYAPUR. ... RESPONDENTS
(BY SRI GURUKUMAR V.A., ADVOCATE FOR R-1;
RESPONDENT NO.2 - SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988 AGAINST THE
JUDGMENT AND AWARD DATED 05.01.2017 PASSED IN
M.V.C.NO.219/2016 ON THE FILE OF XI ADDITIONAL DISTRICT
AND SESSIONS JUDGE AND MEMBER ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, AWARDING
COMPENSATION OF RS.6,48,000/- WITH INTEREST AT 9% P.A.
FROM THE DATE OF PETITION TILL ITS REALISATION.
IN M.F.A.CROB.No.100016/2019
IN M.F.A.No.101406/2017
BETWEEN:
SHRI BALAPPA
S/O. RANGAPPA DASAR,
AGE: 40 YEARS, OCC: AGRICULTURE &
KIRANA STORE (NOW NIL),
R/O: KHAVATAKOPPA VILLAGE,
TQ: ATHANI,
DIST: BELAGAVI - 591 304. ... CROSS OBJECTOR
(BY SRI GURUKUMAR V.A., ADVOCATE)
AND:
1. SHRI ASHOK
S/O. SIDDAPPA UPPIN,
AGE: MAJOR, OCC: BUISNESS,
R/O: JAYALAKSHMI TRANSPORT,
SAHAPETH-VIJAYAPURA - 586 101.
5
2. THE DIVISIONAL MANAGER,
THE ORIENTAL INSURANCE COMPANY LTD.,
D.O. AT CLUB ROAD,
BELAGAVI - 590 001. ... RESPONDENTS
(BY SRI RAJASHEKHAR S. ARANI, ADVOCATE FOR R-2;
NOTICE TO R1-DISPENSED WITH)
THIS MFA CROSS OBJECTION IS FILED UNDER ORDER 41
RULE 22 OF THE CIVIL PROCEDURE CODE, 1908, AGAINST THE
JUDGMENT AND AWARD DATED 05.01.2017 PASSED IN
M.V.C.NO.219/2016 ON THE FILE OF THE XI DISTRICT AND
SESSIONS JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE APPEALS AND CROSS OBJECTION COMING ON
FOR HEARING ON IA THIS DAY, BELLUNKE A.S., J.,
DELIVERED THE FOLLOWING:
JUDGMENT
Miscellaneous First Appeal Nos.101405 and 101406 of 2017 are filed by the insurance company. Miscellaneous First Appeal Cross Objection No.100016 OF 2019 in MFA No.101406 of 2017 is filed by the injured-claimant against the judgment and award dated 05.01.2017 passed by the XI Additional District and Sessions Judge and Additional MACT, Belagavi (hereinafter referred as 'the Tribunal', for the sake of brevity) in MVC Nos.218 and 219 of 2016 respectively.
6
2. Brief facts of the case are as follows:
On 08.01.2016 at about 12.30 a.m., one Sangappa Namadev Madar along with one Balappa, who was a pillion rider, were proceeding on a motor bike bearing registration No.KA-27/S-2089. When they reached near APMC gate, Athani, the driver of Ashok Leyland truck bearing registration No.KA-28/A-6954, drove the same in a rash and negligent manner resulting in losing control over the truck by its driver and dashed to the motorcycle of Sangappa Madar. Due to which Sangappa Madar sustained grievous injuries and was shifted to Civil Hospital, Athani and thereafafter to Kumbar Hospital, Miraj wherein he succumbed to the injuries on the same day. The pillion rider on the motorbike sustained fracture injuries in the said accident. Contending that they have lost bread winner of their family, the wife, children and parents of the deceased Sangappa Madar filed a claim petition in MVC No.218 of 2016 seeking compensation of Rs.30,00,000/-. They have contended that the deceased 7 was doing coolie work and was also vending milk thereby earning Rs.20,000/- per month. The injured contending that he suffered fractured injuries in the said accident, filed MVC No.219 of 2016, seeking compensation of Rs.30,00,000/-. He contended that he was earning Rs.17,000/- per month by personally cultivating agricultural land on rent basis and by running kirana shop.
3. In response to the notice, respondents appeared through their counsel and filed their separate objections.
4. Respondent No.1 filed objections denying the contents of the petitions and further contended that the accident had occurred due to the negligent driving by the rider of the motorcycle and there is no rashness or negligence in driving the vehicle on the part of the driver of the offending vehicle. Hence, he had sought for dismissal of the petitions.
8
5. Respondent No.2-insurance company denied the averments made in the petitions contending that the driver of the truck was not holding a valid and effective driving licence as on the date of the accident; that the terms and conditions of the policy are violated by respondent No.1. The petitions are bad for non-joinder of necessary parties. Hence, the insurance company has prayed to dismiss the petitions.
6. On the basis of the aforesaid rival contentions, the Tribunal framed the following issues: "Issues in MVC No.218 of 2016
1. Whether the petitioners prove that on 08.01.2016 at about 12.30 a.m. on Athani-
Vijayapur road, one Sangappa Namadev Madar died in the accident occurred due to rash or negligent driving of the vehicle bearing regn. No.KA-28/A 6954 by its driver?
2. Whether the petitioners were the dependent of deceased Sangappa Namadev Madar?
3. Whether the petitioners are entitled for compensation? If so, what amount and from whom?
4. What order or award?
9In MVC No.219 of 2016
1. Whether the petitioner proves that on 08.12.2016 at a12.30 a.m. on Vijayapur-Athani road, he sustained fracture injuries in the accident occurred due to rash and negligent driving of the vehicle, bearing Regn. No.KA- 28/a-6954 by its driver?
2. Whether the petitioner is entitle for compensation? If so, at what amount and from whom?
3. What order or award?
7. The Tribunal considering the oral and documentary evidence on record, allowed the petitions by awarding compensation of Rs.23,69,000/- to the claimants in MVC No.218 of 2016 and Rs.6,48,000/- to the injured claimant in MVC No.219 of 2016.
8. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the legal representatives of the deceased have preferred MFA Cross Objection No.100016 of 2019 (MVC No.218 of 2016) and being aggrieved by the impugned judgment and award 10 passed in both the claim petitions, the insurance company has preferred MFA Nos.101405 of 2017 and 101406 of 2017.
9. On hearing both sides at length, we find that the controversy in all these appeals and cross objection lies in a narrow compass, because the arguments are advanced only with regard to the quantum of compensation awarded by the Tribunal and its legality, so also, as regards the challenge to rash and negligence or the liability of the insurance company to satisfy the award are not at all urged. Therefore, the following points would arise for our consideration:
1. Whether the appellant-insurance company in MFA No.101405 of 2017 and 101406 of 2017 has proved that the quantum of compensation awarded by the Tribunal to the claimants in MVC Nos.218 of 2016 and 219 of 2016 is liable to be interfered with?
2. Whether the cross-objectors in MFA Cross objection No.100016 of 2019 are entitled for enhancement of comepsnation? If yes, what is the quantum? 11
10. Points 1 and 2: These points are considered together since they are interconnected and to avoid repetition.
11. The main ground urged by the insurance company is with regard to the income of the deceased and also the injured claimant. He would submit that the legal representatives of the deceased and the injured claimant have not produced any documents to prove their income. It is important to note that the claimants in MVC No.218 of 2016 have contended that the deceased was a coolie and was doing milk vending business and the injured claimant in MVC No.219 of 2016 claims that he is cultivating an agricultural land on rent basis and is also running kirana store. Therefore, learned counsel strongly contended that some documents should have been produced.
12. No doubt, the petitioners have not produced any documentary evidence to prove the exact income of the deceased person and the injured petitioner. But, the same cannot be a ground to hold that they were income- 12 less persons. The petitioners/legal representatives of the deceased has specifically stated in their evidence that the deceased was doing coolie work and also milk vending business, though they have not produced any documents to show that the deceased was earning Rs.20,000/- per month. But at the same time the Tribunal has assessed the income of the deceased at Rs.9,000/- relying on the decision reported in I(2016) ACC 803 DB(KAR), Yashoda Vs. Driver KTC.
13. Having regard to the age of the deceased and nature of the employment and also his capacity to generate income, it cannot be said that the deceased was not at all earning any income at all.
14. Learned counsel for the insurance company, tried to contend strongly that the income of the deceased should have been assessed at Rs.6,000/- per month and not more than that. Even during the year 2015-16, the income that was taken into consideration while settling the cases before the Lok-Adalath was Rs.8,500/- per month. 13 Therefore, we are of the considered view that the income assessed by the Tribunal at Rs.9,000/- per month is just and proper based on the facts and circumstances of the case and evidence available on record. In addition to that respondent company has not led any rebuttal evidence as such. Therefore, we affirmed the said finding.
15. The deceased was aged about 32 years as on the date of accident and his death. Multiplier applicable would be "16" having regard to the law laid down in Sarla Verma and others Vs. Delhi Transport Corporation and another reported in III (2009) ACC 708 (SC).
16. As per the decision rendered in the case of National Insurance Company Limited Vs. Pranay Sethi, 2017 ACJ 2700 (SC), the petitioners are entitled for future prospects on the income of the deceased. Therefore, 40% of Rs.9,000/- would come to Rs.3,600/-. Gross income of the deceased will be 12,600/- per month. 14
17. Having regard to the number of dependants on the income of the deceased, 1/4th is to be deducted towards personal expenses. Therefore, after deducting 1/4th of Rs.12,600/-, same comes to Rs.9,450/- that was the net income of the deceased. If that is multiplied by 12 and "16" multiplier, the gross loss of dependency would come to Rs.18,14,400/- (9450 x 12 x "16" = 18,14,400/-).
18. The first petitioner/wife is entitled for Rs.40,000/- on the head of loss of spousal consortium, three children who have lost their father are entitled for Rs.40,000/- each on the head of loss of parental consortium that comes to Rs.1,20,000/-. The parents of the deceased are entitled for compensation under the head of loss of love and affection at the rate of Rs.30,000/- each, which would be Rs.60,000/-. In addition to that, the petitioners are entitled to compensation under the heads of transportation of dead body and funeral expenses at Rs.15,000/- and loss of estate at Rs.15,000/. Therefore, 15 the petitioners are entitled to total compensation as follows:
Sl.
Particulars Amount in Rs.
No.
1 Towards loss of dependency. 18,14,400/-
2 Loss of spousal consortium to the first
petitioner - wife of the deceased. 40,000/-
3 Loss of parental consortium to
petitioner Nos.2 to 4
(40,000x3=1,20,000) 1,20,000/-
4 Loss of love and affection to parents
(30,000x2=60,000) 60,000/-
5 Towards transportation of dead body
and funeral expenses. 15,000/-
6 Towards loss of estate 15,000/-
Total 20,64,400/-
19. On perusal of the paragraph No.34 of the judgment of the Trial Court, we find that the Tribunal has wrongly awarded sum of Rs.3,00,000/- on the head of loss of love and affection and it has wrongly awarded Rs.6,48,000/- on the head of loss of future prospects, Rs.1,00,000/- on the head of loss of consortium and so also Rs.25,000/- towards funeral expenses. Therefore, the total compensation awarded by the Tribunal at Rs.23,69,000/- is liable to be reduced to Rs.20,64,400/-. 16
20. The Trial Court had not assigned any special reasons to award interest at the rate of 9% per annum.
Therefore, having regard to the facts and circumstances of the case, we find that it is justifiable to award interest at the rate of 6% per annum from the date of petition till its realization.
21. So far as apportionment, disbursement and deposit in MVC.No.218/2016 is as per the judgment and award of the Tribunal. There are no grounds to interfere with the same therefore, the said finding is affirmed. In the result M.F.A.No.101405/2017 is allowed in part.
22. As regards the M.F.A.No.101406/2017 and MFA.CROB.No.100016/2019 are concerned, we have re- examined the case to find out as to whether the Tribunal has granted just compensation or not? In this case, the petitioner is injured person. He is claimed to be having income of Rs.17,000/- per month. He is said to be doing agriculture by taking rented land and also having grocery shop. However, no documents are produced to prove this 17 fact. Having regard to the facts and circumstances of the case and oral evidence that was available on record that, the Tribunal has assessed the income of the injured at Rs.9,000/- per month.
23. On perusal of the impugned judgment and award, we find that, the Tribunal has committed error in assessing the percentage of permanent disability suffered by the injured petitioner.
24. The petitioner has suffered permanent physical disability and the same is to the extent of 70% due to below knee amputation up to 8 cms of the right leg and 25% due to total amputation of the 2nd and 4th toes of the left foot. As per the evidence of the doctor available on record, it is found that the petitioner sustained crush injury of right lower limb below knee and left foot and toes, fracture of tibia and fibula with crush injury 3rd grade and right foot and amputation of left 2nd and 4th meta tarcel bones of the left foot and 2nd, 3rd and 4th meta tarcel bones of the left foot. Further he opined that 70% permanent 18 physical disability due to the below knee amputation up to 8 cms of the right leg and 25% due to total amputation of the 2nd toe of the left foot and 4th toe of the left foot and due to fracture 2nd, 3rd & 4th meta tarcel bones of the left foot.
25. Ex.P.12 discharge-card and Ex.P.8 Medico legal certificate of the petitioner reveals his age as 45 years as on the date of the accident. Hence, multiplier applicable to the case of the petitioner is "14".
26. We have also gone through the photographs produced by the appellant; they are not disputed. The right leg was amputated 8 cms below knee and there is also amputation to the left leg i.e., toes. Consequently, the injured petitioner cannot walk or do any work independently. His functionality is very much affected.
27. The doctor had opined that there is 70% permanent disability on account of amputation below the knee then 25% disability due to total amputation of 2nd 19 and 4th toes of the left foot and on account of fracture of 2nd, 3rd & 4th meta tarsal bones of the left foot. Therefore, having regard to the evidence available on record, we find that the Tribunal grossly erred in assessing the permanent disability of the injured petitioner. Having regard to the facts and circumstances and the evidence on record, we find that the permanent disability of the injured would come to 95%. As regards permanent disability is concerned we re-assess the same at 95%.
28. On perusal of the compensation awarded by the Tribunal to this injured petitioner, we find that it is totally and grossly inadequate. Having assessed the income of the deceased at Rs.9,000/- per month and after applying "14" multiplier, the petitioner was definitely entitled for higher compensation than what is awarded by the Tribunal.
29. After assessing the income of the injured at Rs.9,000/-, 30% future prospects is to be added as per the decision of the Hon'ble Supreme Court in Pranay Sethi's 20 case stated supra, it comes to Rs.11,700/-. As the disability is assessed at 95%, the net income of the deceased would be Therefore Rs.11,115/- (11,700x95% disability = 11,115). That is multiplied by 12 and "14" multiplier the, the gross loss of dependency would be come to Rs.18,67,320/- (11,115 x 12 x "14" = 18,67,320/-).
30. Even on the head of pain and suffering the compensation should have been awarded at Rs.1,00,000/- and not below that. Accordingly, we award Rs.1,00,000/- on the head of pain and suffering.
31. As per the records, the petitioner is entitled for medical expenses at Rs.1,46,459/-. Having regard to the nature of injury suffered and time spent for treatment, we find that, the petitioner is entitled for incidental charge of Rs.50,000/-. Having regard to the amputation, we also find that the petitioner is entitled for compensation on the head of loss of pleasure and amenities we assess it at Rs.1,00,000/-. Therefore, the total compensation to which 21 the petitioner is entitled to would be Rs.22,63,779/-. Having regard to the facts and circumstances of the case we find that the petitioner is entitled to compensation as follows:
Sl.
Particulars Amount in Rs.
No.
1 Towards loss of dependency. 18,67,320/-
2 Towards pain and suffering 1,00,000/-
3 Towards medical expenses. 1,46,459/-
4 Towards incidental charges 50,000/-
5 Towards loss of pleasure and 1,00,000/-
amenities
Total 22,63,779/-
Compensation awarded by the 6,48,000/-
Tribunal
Enhanced compensation 16,15,779/-
32. The appeal filed by the insurance company in M.F.A.No.101406/2017 is dismissed while MFA.CROB.No.100016/2019 is allowed in part.
Enhanced compensation shall carry interest at the rate of 6% per annum from the date of claim petition except for the period of 526 days which is the period of delay in preferring this appeal.
75% of the total compensation now awarded shall be deposited in any Post Office or Nationalized Bank deposit 22 for an initial period of ten years. He shall be entitled to draw periodical interest on such deposit.
However, we are of the view that in the interest of the claimant, if he continues to keep in deposit the compensation amount throughout his life in any Post Office or Nationalized Bank deposit and draw interest from the said deposit for the sake of his livelihood. The balance of compensation shall be released to the injured claimant.
In view of the disposal of the appeals, the pending applications stand disposed off.
Sd/-
JUDGE Sd/-
JUDGE Kmv/EM