Karnataka High Court
Prajwal vs Ningappa on 7 January, 2020
Author: S.G.Pandit
Bench: S.G.Pandit
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
M.F.A.NO.733 OF 2015 (MV)
c/w
M.F.A.NO.6343 OF 2014
IN MFA.NO.733/2015
BETWEEN
1. PRAJWAL S/O LATE VIJAYAKUMAR,
AGED ABOUT 22 YEARS,
B.D.S. STUDENT,
BAPUJI DENTAL COLLEGE,
DAVANAGERE.
2. GANGAMMA W/O LATE
MANJUNATH, D/O LATE
VIJAYAKUMAR, AGED ABOUT 34 YEARS,
R/AT HOSAKUNDUR VILLAGE,
KASABA HOBLI,
HOSADURGA TALUK.
CHITRADURGA DISTRICT.
3. GOWRAMMA W/O RAVI
D/O LATE VIJAYAKUMAR,
AGED ABOUT 32 YEARS,
WARD NO.10, DAVANAGERE.
4. SRIDEVI, K/O LATE
VIJAYAKUMAR,
AGED ABOUT 26 YEARS.
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5. AMRUTHA D/O LATE
VIJAYAKUMAR,
AGED ABOUT 24 YEARS.
APPELLANTS NO.4 AND 5 ARE PRESENTLY
R/AT BASAVESHWARA NILAY,
MUNICIPAL COLONY, 4TH MAIN,
KELAGOTE CHITRADURGA TOWN.
... APPELLANTS
(BY SRI. N.D.MANJUNATH, ADVOCATE)
AND:
1. NINGAPPA,
S/O MALLAPPA
MAJOR, R/O HOUSE NO.76,
GARAGA, SRIRAMPURA HOBLI,
HOSADURGA TALUK,
CHITRADURGA DISTRICT-577505.
2. THE BRANCH MANAGER,
THE NEW INDIA ASSURANCE CO.,
LTD., 6, VIJAY SHREE, OPP:
NANJUNDESHWARA PETROL BUNK,
NEAR UNION PARK, DAVANAGERE ROAD,
CHITRADURGA - 577504.
... RESPONDENTS
(BY SRI. A.N. KRISHNA SWAMY, ADVOCATE FOR R2)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
06.05.2014 PASSED IN MVC NO.307/2013 ON THE FILE OF
THE II ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL
MACT-5, CHITRADURGA, PARTLY ALLOWING THE CLAIM
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PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
IN MFA.NO.6343/2014
BETWEEN
THE BRANCH MANAGER,
THE NEW INDIA ASSURANCE CO LTD.,
NO.6, VIJAYA SHREE,
OPP: NANJUNDESHWARA PETROL BUNK,
NEAR UNION PARK, DAVANGERE ROAD,
CHITRADURGA 577 504,
NOW REPRESENTED BY ITS
REGIONAL MANAGER,
NEW INDIA ASSURANCE CO LTD.,
REGIONAL OFFICE, 2-B, UNITY
BUILDING ANNEXE,
P. KALINGA RAO ROAD,
BANGALORE 560 027.
... APPELLANT
(BY SRI. A.N. KRISHNA SWAMY, ADVOCATE)
AND:
1. PRAJWAL S/O LATE VIJAYAKUMAR,
NOW AGED ABOUT 21 YEARS,
B.D.S. STUDENT,
BAPUJI DENTAL COLLEGE,
DAVANAGERE-577530.
2. SMT. GANGAMMA W/O LATE
MANJUNATH, D/O LATE
VIJAYAKUMAR, NOW AGED ABOUT 33 YEARS,
R/AT HOSAKUNDUR VILLAGE,
KASABA HOBLI,
HOSADURGA-577501.
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3. SMT. GOWRAMMA W/O RAVI
D/O LATE VIJAYAKUMAR,
NOW AGED ABOUT 31 YEARS,
WARD NO.10, DAVANAGERE-577501.
4. SRIDEVI, D/O LATE
VIJAYAKUMAR,
AGED ABOUT 25 YEARS.
5. AMRUTHA D/O LATE
VIJAYAKUMAR,
AGED ABOUT 23 YEARS.
ALL PRESENTLY
R/AT BASAVESHWARA NILAYA,
MUNICIPAL COLONY, 4TH MAIN,
KELAGOTE CHITRADURGA TOWN - 577501.
6. NINGAPPA, S/O MALLAPPA,
AGE: MAJOR, HOUSE NO.76,
GARAGA SRIRAMPURA HOBLI,
HOSADURGA TALUK 577527.
... RESPONDENTS
(R1, R2, R6 - SERVED V/O DATED 20/3/2017
SERVICE OF NOTICE TO R3 TO R5 IS HELD SUFFICIENT)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
06.05.2014 PASSED IN MVC NO.307/2013 ON THE FILE OF
THE II ADDITIONAL SENIOR CIVIL JUDGE AND
ADDITIONAL MACT-5, CHITRADURGA, AWARDING
COMPENSATION OF RS.8,85,500/- WITH INTEREST @ 6%
PER ANNUM FROM THE DATE OF PETITION TILL DEPOSIT
THESE MFAs COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
Both the claimants and Insurer are in appeal assailing the judgment and award dated 06/05/2014 in M.V.C.No.307/2013 on the file of the II Additional Senior Civil Judge & Additional MACT-V, Chitradurga. MFA.No.733/2015 is by the claimants praying for enhancement of compensation. Whereas, MFA.No.6343/2014 is by the Insurer challenging the quantum of compensation on the ground that the driver of the offending vehicle had no license to drive the Transport vehicle as on the date of accident.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the death of one Smt. Renukamma, mother of the claimant Nos.1 to 5. The claimants are children of the deceased Renukamma who was aged 49 years as on the date of accident and was carrying petty business, from which she was earning a sum of Rs.10,000/- per month. On 30-11-2011, when the deceased along with her son-in-law were waiting for Bus 6 near Hosakunduru Gate to proceed to Hosadurga, TATA Sumo bearing Reg.No.KA-02/AA-2272 came in a rash and negligent manner and dashed to the deceased. Due to which, the deceased sustained grievous head injuries and also other injuries. Immediately, she was shifted to Hosadurga Government Hospital and thereafter to S.S.Hospital, Davanagere, where the said Renukamma died.
3. On issuance of notice, both the respondents appeared before the Tribunal and filed their independent objections. Respondent No.1-owner of the offending vehicle stated that the vehicle is covered by insurance policy issued by respondent No.2, which was in force as on the date of accident. Respondent No.2-Insurer denied the claim petition averments and the accident itself. Further the Insurer contended that the driver of the offending vehicle had no valid driving license to drive the offending vehicle.
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4. Claimant No.1-son of the deceased examined himself as PW-1 and also examined one more witness Rudrappa as PW-2 apart from marking documents Exs.P-1 to P-13. Respondent-insurer examined RW-1 and got marked documents Exs.R-1 & R-2.
5. The Tribunal on appreciating the material on record, awarded total compensation of Rs.8,85,500/- with interest at the rate of 6% per annum from the date of petition till the date of deposit, on the following heads:
Amount in (Rs.)
1. Towards loss of 7,60,500 dependency
2. Towards love and affection 1,00,000
3. Towards transportation of 25,000 dead body, cremation and obsequies ceremonies Total 8,85,500 While awarding the above compensation, the Tribunal assessed the income of the deceased at Rs.5,000/- per month, applied '13' multiplier and deducted 1/4th towards personal expenses of the deceased.8
6. Heard the learned counsel for the claimants and learned counsel for the respondent-Insurer. Perused the material on record.
7. Learned counsel for the claimants would submit that the income of the deceased assessed by the Tribunal at Rs.5,000/- per month is on the lower side and it ought to have assessed at Rs.10,000/- per month since the deceased was earning Rs.10,000/- per month from her petty business. Further the learned counsel submits that the compensation awarded by the Tribunal is on the lower side and prays for enhancement of compensation. It is his further submission that the liability is rightly saddled on the Insurer and relies on the decision of the Hon'ble Apex Court in the case of MUKUND DEWANGAN Vs. ORIENTAL INSURANCE CO. LTD., reported in (2017) 14 SCC 663 and submits that a person who possesses license to drive LMV(Non Transport) could also drive LMV- Transport vehicle of the same category. Further the learned counsel would submit that the claimants would be 9 entitled for Rs.40,000/- each in view of the decision of the Hon'ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LTD. vs. NANU RAM reported in 2018 SCC ONLINE SC 1546.
8. Per contra, learned counsel for the Insurer would submit that the Insurer would not be liable to pay the compensation as the driver of the offending vehicle had no valid and effective driving license to drive the vehicle in question as on the date of accident. Further he submits that the compensation awarded by the Tribunal is on the higher side and contended that the Tribunal could not have awarded 30% of the assessed income towards 'Future Prospects'. It is his further submission that the Tribunal also committed an error in awarding a sum of Rs.1,25,000/- on 'Conventional Head'. Thus, prays for allowing the appeal of the Insurer.
9. Having heard the learned counsels for the parties and on perusal of the material on record, the following 10 points would arise for consideration in the facts and circumstances of the case.
a) Whether the Tribunal is justified in saddling the liability on the Insurer?
b) Whether the income of the deceased assessed by the Tribunal at Rs.5,000/- per month is just and proper?
c) Whether the claimants would be entitled for compensation towards 'Future prospects' and if yes at what rate?
Answer to the above points would be in the affirmative, negative and partly affirmative respectively for the following reasons.
10. The accident occurred on 30-11-2011, involving TATA Sumo bearing Reg.No.KA-02/AA-2272 and the accidental death of one Renukamma, mother of the claimants are not in dispute in these appeals. The claimants are before this Court praying for enhancement of compensation. Whereas, the Insurer is before this Court questioning the liability saddled on it as well as quantum of compensation awarded by the Tribunal.
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11. Learned counsel for the Insurer contends that the driver of the offending vehicle had no valid and effective driving license as on the date of accident. But from the material on record, it is seen that the driver of the offending vehicle had license to drive LMV(NT) but as on the date of accident, the driver of the offending vehicle was driving Transport vehicle. A person who possesses license to drive LMV(NT) could also drive LMV-Transport vehicle of the same category as held by the Hon'ble Apex Court in the case of MUKUND DEWANGAN Vs. ORIENTAL INSURANCE CO. LTD., reported in (2017) 14 SCC 663. As such, the Tribunal is justified in saddling the liability on respondent No.2-Insurer.
12. The Tribunal assessed the income of the deceased at Rs.5,000/- per month. The accident is of the year 2011. The claimants state that the deceased was doing petty business and was earning Rs.10,000/- per month. But to substantiate the exact income of the deceased, the claimants have not placed on record any 12 material/document. In the absence of any material/document to establish the exact income of the deceased, the Tribunal assessed the income of the deceased notionally at Rs.5,000/- per month, which is on the lower side. This Court and the Lok Adalath while settling the accident claims of the year 2011, would normally assess the notional income at Rs.6,500/- per month. In the instant case also in the absence of any material/document to establish the exact income of the deceased, it would be appropriate to take the notional income of the deceased at Rs.6,500/- per month for determination of the compensation.
13. The deceased was aged 49 years as on the date of accident and the Tribunal added 30% of the assessed income towards 'Future prospects'. The Hon'ble Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED vs. PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680, has held that wherever the deceased was between the age of 40 to 50 years, the 13 claimants would be entitled for adding 25% of the assessed income towards 'Future prospects'. In the instant case, the deceased was aged 49 years as on the date of accident. Thus, the claimants would be entitled for adding 25% of the assessed income towards 'Future prospects'. The Tribunal had taken 1/4th deduction towards personal expenses of the deceased. Claimant No.1 is son of the deceased, aged 20 years who is said to have been studying BDS course as on the date of accident. Claimant Nos.4 & 5 are unmarried daughters, whereas claimant Nos.2 & 3 are married daughters of the deceased. If the claimant Nos.2 & 3/married daughters are excluded, then claimant Nos.1, 4 & 5 could be considered as dependents of the deceased. Thus, the Tribunal ought to have taken 1/3rd deduction towards personal expenses of the deceased. The Tribunal committed an error in taking 1/4th as deduction towards personal expenses of the deceased. The Tribunal has awarded Rs.1,25,000/- towards love and affection, transportation of dead body, cremation and obsequies ceremonies. The Hon'ble Apex 14 Court in the case of NATIONAL INSURANCE COMPANY LIMITED vs. PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680, has held that the claimants would be entitled for Rs.30,000/- towards funeral expenses and obsequies. The contention of the learned counsel for the claimants that the claimants would be entitled for Rs.40,000/- each in view of the decision of the Hon'ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LTD. vs. NANU RAM reported in 2018 SCC ONLINE SC 1546, is liable to be rejected solely on the ground that the claimants are major children of the deceased, whereas claimant Nos.2 & 3 are married daughters. Thus, the claimants would be entitled for modified compensation as follows:
Amount in (Rs.)
1. Loss of dependency 8,45,052 including future prospects (6500+1625(25%)=8125-
2708(1/3)=5417 5417x12x13=845052
2. Conventional Head 30,000 (Transportation, cremation and obsequies ceremony) Total 8,75,052 15
14. Thus, the claimants would be entitled for modified compensation of Rs.8,75,052/- as against Rs.8,85,500/- with interest at the rate of 6% per annum from the date of petition till its realization. The apportionment and deposit would be as ordered by the Tribunal.
15. The appeal of the claimants in MFA.No.733/2015 is allowed in part, enhancing the monthly income of the deceased from Rs.5,000/- per month to Rs.6,500/- per month. The appeal of the Insurer in MFA.No.6343/2014 is allowed in part, reducing the future prospects from 30% to 25% and reducing the compensation awarded on 'Conventional Head' and taking deduction at 1/3rd instead of 1/4th towards personal expenses of the deceased.
The amount deposited by the Insurer be refunded to the Insurer.
Sd/-
JUDGE SMJ