Karnataka High Court
Smt Rathnamma vs Sanjay Shivaji Kolekar on 27 July, 2018
Author: Krishna S Dixit
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JULY, 2018
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
M.F.A. NO. 8055 OF 2017 C/W M.F.A. NO. 4359 OF
2017 C/W M.F.A. NO. 8054 OF 2017 C/W M.F.A. NO.
4355 OF 2017 C/W M.F.A. NO. 4590 OF 2015 C/W
M.F.A. NO. 3088 OF 2015 C/W M.F.A. NO. 3862 OF
2016
IN M.F.A. NO. 8055 OF 2017:
BETWEEN:
1. SMT RATHNAMMA
W/O LATE A. ESAIAH
@ ANDRA PULLAIAH
AGED ABOUT 53 YEARS
2. SANTHOSHI @ SANTHOSHAMMA
D/O LATE A. ESAIAH @ ANDRA PULLAIAH
AGED ABOUT 27 YEARS
3. SWATHI
S/O LATE A. ESAIAH @ ANDRA PULLAIAH
AGED ABOUT 22 YEARS
4. RAJESH
S/O LATE A. ESAIAH @ ANDRA PULLAIAH,
AGED ABOUT 20 YEARS
ALL ARE RESIDING AT NO.13/2,
3RD CROSS, VIJANAPURA,
SUBRAMANI LAYOUT,
BENGALURU - 560 016
2
... APPELLANTS
(BY SRI. SURESHA M, ADVOCATE)
AND:
1. SANJAY SHIVAJI KOLEKAR
S/O SHIVAJI KOLEKAR
APT POST, ZEDKEY TALUK
BHIWANDI DISTRICT, THANE,
MAHARASTRA 421 302.
(R.C. OWNER OF LORRY BEARING
REG. NO MH-04-EY-4452)
2. THE NEW INDIA ASSURANCE
CO.LTD.,
MAHALAXMI CHAMBERS,
NO.9, 2ND FLOOR
BENGALURU - 560 001.
(POLICY NO.11190031120100004807
VALID FROM 27-12-2012 TO 26-12-2013)
... RESPONDENTS
(BY SRI. K.S. LAKSHMINARASAPPA FOR
SRI. B.C. SEETHARAMA RAO, ADVOCATE FOR R2
NOTICE TO R1 DISPENSED WITH )
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 24.12.2016 PASSED IN
MVC NO.30/2014 ON THE FILE OF THE SENIOR CIVIL
JUDGE NELAMANGALA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
IN M.F.A. NO. 4359 OF 2017:
BETWEEN:
THE NEW INDIA ASSURANCE CO LTD
REGIONAL OFFICE,
MAHALAKSHMI CHAMBERS,NO.9,II FLOOR
3
M.G.ROAD, BENGALURU-560 001
REP BY ITRS MANAGER
MR. A R LAKSHMINARAYAN
... APPELLANT
(BY SRI.LAKSHMINARASAPPA FOR
SRI. B C SEETHARAMA RAO, ADVOCATES )
AND:
1. SMT. RATHNAMMA
AGED ABOUT 53 YEARS
W/O LATE ESAIAH @ ANDRA PULLAIAH
2. SANTHOSHI @ SANTHOSHAMMA
AGED ABOUT 28 YEARS
D/O LATE ESAIAH @ ANDRA PULLAIAH
3. SWATHI
AGED ABOUT 23 YEARS
S/O LATE ESAIAH @ ANDRA PULLAIAH
4. RAJESH
AGED ABOUT 21 YEARS
S/O LATE ESAIAH @ ANDRA PULLAIAH
ALL ARE R/AT NO.12/2, 3RD CROSS,
VIJINAPURA, SUBRAMANI LAYOUT,
BENGALURU - 560 016
5. SRI SANJAY SHIVAJI KOLEKAR,MAJOR
S/O SHIVAJ KOLEKAR,
R/AT APT POST,
ZEDKEY TALUK,
BHIWANDI DISTRICT,
THANE, MAHARASTRA-421 202
(OWNER OF LORRY BEARING
NO.MH-04-EY-4452)
... RESPONDENTS
(BY SRI. SURESHA M, ADVOCATE FOR R1 TO R4
NOTICE TO R5 IS DISPENSED WITH)
4
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 24.12.2016 PASSED IN
MVC NO.30/2014 ON THE FILE OF THE SENIOR CIVIL
JUDGE, NELAMANGALA, AWARDING COMPENSATION
OF RS.12,49,000/- WITH INTEREST AT 9% P.M. FROM
THE DATE OF PETITION TILL DEPOSIT.
IN M.F.A. NO. 8054 OF 2017:
BETWEEN:
1. SMT PRAMILA
W/O LATE SRINIVASA @ SEENAPPA
AGED ABOUT 28 YEARS,
2. SHASHI KUMAR
S/O LATE SRINIVAS @ SEENAPPA
AGED ABOUT 17 YEARS
3. NAGARAJUNA
S/O LATE SRINIVAS @ SEENAPPA
AGED ABOUT 16 YEARS,
4. RATHNAMMA
W/O MUNIVENKATAPPA
AGED ABOUT 63 YEARS,
SINCE APPELLANT 2 AND 3 ARE MINORS,
REPRESENTED BY THEIR MOTHER AND NATURAL
GUARDIAN SMT. PRAMILA, APPELLANT NO.1
ALL ARE RESIDING AT NO.4TH CROSS,
VIJANAPURA, SUBRAMANI LAYOUT,
BENGALURU - 560 016
... APPELLANTS
(BY SRI. SURESHA M, ADVOCATE)
AND:
1. SANJAY SHIVAJI KOLEKAR
5
S/O SHIVAJI KOLEKAR
APT POST ZEDKEY TALUK
BHIWANDI DISTRICT. THANE
MAHARASTRA-421 302
(R.C. OWNER OF LORRY
BEARING REG NO.MH-04-EY-4452)
2. THE NEW INDIA ASSURANCE
CO LTD.,
MAHALAXMI CHAMBERS
NO.9, 2ND FLOOR,
BENGALURU - 560 001
(POLICY NO.11190031120100004807
VALID FROM 27-12-2012 TO 26-12-2013)
... RESPONDENTS
(BY SRI.LAKSHMINARASAPPA FOR
SRI. B C SEETHARAMA RAO, ADVOCATES FOR R2
NOTICE TO R1 DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 24.12.2016 PASSED IN
MVC NO.29/2014 ON THE FILE OF THE SENIOR CIVIL
JUDGE, NELAMANGALA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
IN M.F.A. NO. 4355 OF 2017:
BETWEEN:
THE NEW INDIA ASSURANCE CO LTD
REGIONAL OFFICE,,
MAHALAKSHMI CHAMBERS,
NO.9, II FLOOR, M.G.ROAD,
BENGALURU-560001.
REP. BY ITS MANAGER
MR.A.R.LAKSHMINARAYAN
... APPELLANT
(BY SRI. K.S. LAKSHMINARASAPPA FOR
6
SRI. B.C. SEETHARAMA RAO, ADVOCATES)
AND:
1. SMT. PRAMILA
AGED ABOUT 28 YEARS,
W/O LATE SRINIVASA @ SEENAPPA,
2. MR SHASHIKUMAR,
AGED ABOUT 17 YEARS,
S/O LATE SRINIVASA @ SEENAPPA,
3. MR NAGARAJUNA
AGED ABOUT 16 YEARS,
S/O LATE SRINIVASA @ SEENAPPA,
4. SMT RATNAMMA
AGED ABOUT 63 YEARS,
W/O LATE MUNIVENKATAPPA,
RESPONDENTS NO.2 &3 ARE MINORS
REPRESENTED BY THEIR MOTHER
AND NATURAL GUARDIAN , RESPONDENT NO.1
ALL ARE RESIDING AT 4TH CROSS,
VIJINAPURA, SUBRAMANI LAYOUT,
BENGALURU - 560016
5. SRI SANJAY SHIVAJI KOLEKAR, MAJOR,
S/O SHIVAJ KOLEKAR,
RESIDING AT APT POST,
ZEDKEY TALUK, BHIWANDI DISTRICT,
THANE, MAHARASHTRA-421 202
(OWNER OF LORRY
BEARING NO.MH-04-EY-4452)
... RESPONDENTS
(BY SRI. SURESH M, ADVOCATE FOR R1 TO R4
NOTICE TO R5 IS DISPENSED WITH )
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 24.12.2016 PASSED
IN MVC NO.29/2014 ON THE FILE OF THE SENIOR
7
CIVIL JUDGE AT NELAMANGALA, AWARDING
COMPENSATION OF RS.13,75,000/- WITH INTEREST AT
THE RATE OF 9% P.M. FROM THE DATE OF PETITION
TILL DEPOSIT.
IN M.F.A. NO. 4590 OF 2015:
BETWEEN:
SMT. PAPAMMA @
CHIKKAPAPPAMMA
W/O LATE VENKATESH GOWDA.,
AGED ABOUT 45 YEARS,
NO.170, 1ST CROSS, & 117,
AMBEDKAR NAGARA, VIJINAPAURA,
BENGALURU - 560016.
... APPELLANT
(BY SRI. SURESHA.M, ADVOCATE)
AND:
1. SANJAY SHIVAJI KOLEKAR,
S/O SHIVAJI KOLEKAR
APT POST, ZEDKEY TALUK,
BHIWANDI DISTRICT, THANE,
MAHARASTRA - 421302.
(R.C. OWNER OF LORRY
BEARING REG NO. MH-04-EY-4452)
2. THE NEW INDIA ASSURANCE
CO.LTD., MAHALAXMI CHAMBERS,
NO.9,2ND FLOOR,
M.G. ROAD, BENGALURU - 560001.
REPRESENTED BY DIVISIONAL MANAGER
(POLICY NO. 11190031120100004807
VALID FROM 27-12-2012 TO 26-12-2013)
... RESPONDENTS
(BY SRI. K.S. LAKSHMINARASAPPA FOR
SRI. B.C. SEETHARAMA RAO, ADVOCATE FOR R2
8
NOTICE TO RI IS DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 29.01.2015 PASSED IN
MVC NO.1677/2014 ON THE FILE OF THE 5TH
ADDITIONAL SMALL CAUSES JUDGE, 24TH ACMM,
MEMBER, COURT OF SMALL CAUSES, MACT,
BENGALURU, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN M.F.A. NO. 3088 OF 2015:
BETWEEN:
THE NEW INDIA ASSURANCE CO LTD
REGIONAL OFFICE,,
MAHALAKSHMI CHAMBERS,
M.G. ROAD, BENGALURU-560001.
REP. BY ITS MANAGER
MR.A.R.LAKSHMINARAYAN
... APPELLANT
(BY SRI.K.S. LAKSHMINARASAPPA FOR
SRI.B.C. SEETHARAMA RAO, ADVOCATES)
AND:
1. SMT. PAPAMMA @ CHIKKA PAPAMMA,
AGED ABOUT 48 YEARS,
W/O LATE VENKATESHGOWDA,
NO.170, I CROSS, &177,
DR. B. R. AMBEDKAR NAGAR,
VIJINAPURA, RAMAMURTHY NAGAR,
BENGALURU - 560016.
2. SRI. SANJAN SHIVAJI KOLEKAR, MAJOR
S/O SRI SHIVAJ KOLEKAR,
APT POST, ZEDKEY TALUK,
BHIWANDI DISTRICT, THANE,
MAHARASHTRA - 421302.
9
(OWNER OF LORYY NO.MH-04-EY-4452)
... RESPONDENTS
(BY SRI. SURESHA.M, ADVOCATE FOR R1
NOTICE TO R2 IS DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 29.01.2015 PASSED IN
MVC NO.1677/2014 ON THE FILE OF THE V ADDITIONAL
SMALL CAUSES, & XXIV ACMM, MEMBER, MACT, COURT
OF SMALL CAUSES, MAYO HALL UNIT, BENGALURU ,
AWARDING COMPENSATION OF RS.7,42,088/- WITH
INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL
REALIZATION.
IN M.F.A. NO. 3862 OF 2016:
BETWEEN:
THE NEW INDIA ASSURANCE CO LTD
REGIONAL OFFICE,,
MAHALAKSHMI CHAMBERS,
M.G. ROAD, BENGALURU-560001.
REP. BY ITS MANAGER
MR.A.R.LAKSHMINARAYAN
... APPELLANT
(BY SRI. K.S. LAKSHMINARASAPPA FOR
SRI. B.C. SEETHARAMA RAO, ADVOCATES)
AND:
1. SHRI KIRAN KUMAR @ KIRAN BABU,
AGED ABOUT 24 YEARS,
S/O LATE SRINIVAS V, 3RD CROSS,
NO.2263, SUBRAMANYA LAYOUT,
RAMAMURTHY NAGAR,
BENGALURU - 560016
2. SRI. SANJAN SHIVAJI KOLEKAR,
S/O SRI. SHIVAJ KOLEKAR
10
APT POST, ZEDKEY TALUK
BHIWANDI DISTRICT, THANE
MAHARASHTRA - 421302.
(OWNER OF LORRY NO.MH-04-EY-4452)
3. MRS. BERGGUREN CAR RENTALS PVT.LTD.,
NO.16, GAJENDRA NAGAR, 18TH CROSS,
ANEPALYA MAIN ROAD, BENGALURU - 30.
(OWNER OF CAR BEARING NO.KA-01-AA-7251)
4. M/S.ICICI LOMBARD GENERAL
INSURANCE CO.LTD.,
S.V.R COMPLEX, NO.89, II FLOOR,
HOSUR ROAD, BENGALURU - 560068.
... RESPONDENTS
(BY SRI. K.P. SHANMUKHA, ADVOCATE FOR C/R1
(CP 777/16) R3 & R4 SERVED,
NOTICE TO R2 IS DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 11.04.2016 PASSED IN
MVC NO. 874/2014 ON THE FILE OF THE XIII DDITIONAL
SMALL CAUSES JUDGE, MEMBER, MACT, AWARDING
COMPENSATION OF RS. 4,55,520/- WITH INTEREST @
9% P.A. FROM THE DATE OF PETITION TILL
REALIZATION.
THESE APPEALS COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
The appeals in M.F.A.No.3088/2015, MFA No.3862/2016, MFA No.4355/2017, and MFA No.4359/2017 by the insurer, and the appeals in M.F.A. No.4590/2015, M.F.A.No.8054/2017 and 11 M.F.A.No.8055/2017 by the claimants lay a challenge to the common judgment and multiple awards dated 24.12.2016 made by Senior Civil Judge, Nelamangala ie., M.A.C.T., Nelamangala allowing the respective claim petitions, whereby separate sums of compensation have been awarded in favour of the claimants with interest at the uniform rate of 9% per annum.
2. The brief facts of the case are that:
a) On 01.10.2013 at around 11.30 p.m. (night), a lorry bearing Registration No.MH-04-EY-4452 stood parked on the left side of NH-4 ie., Express P.B. Road near Madanayakanahalli; the Ford Fiesta car bearing Registration No. KA-01-AA-752 moving from Bengaluru towards Tumkur had hit the parked lorry from behind with enormous speed and consequently three inmates of the car sustained fatal injuries and later succumbed to the same in the hospital, and one more inmate was grievously injured. In the claim petitions filed by the L.Rs. of the deceased and by the injured 12 independently, for compensation, the insurer had filed the Written Statement resisting the claim on several grounds.
b) To prove their claim, the claimants Smt. Pramila and Smt. Ratnamma, being the widows of the deceased got examined themselves as PW-1 and PW-2.
In their evidence 21 documents came to be marked as per Ex.P-1 to P-21, which included the police papers, R.T.O. papers and the post-mortem report amongst others. From the side of the insurer one Mr. H.R.Manjunatha was examined as RW-1 and no documents were marked in his evidence.
c) The M.A.C.T. after looking to the pleadings of the parties and after weighing the evidence borne out by record, both oral and documentary has made this common impugned judgment and awards, as tabulated herein below:
Death/ Compensation Appeal No. M.V.C.No. Injury awarded MFA No.8054/2017 MVC No.29/2014 Death 13,75,000-00 c/w MFA No.4355/2017 13 MFA No.8055/2017 MVC No.30/2014 Death 12,49,000-00 c/w MFA No.4359/2017 MFA No.4590/2015 MVC 1677/2014 Death 7,42,088-00 c/w MFA 3088/2015 MFA No.3862/2016 MVC 874/2014 Injury 4,55,520-00 3. The learned counsel for the insurer firstly
contended that the M.A.C.T. has not adverted to the contention of composite negligence, though two vehicles were involved in this accident and the lorry in question having been parked on the extreme left of the P.B. Road, obviously the negligence is attributable to the offending car in question, more specially when about 24 ft. of road was still remaining on the right hand side of the parked lorry, through which, with due attention the said car could have passed. Secondly, he contends that the M.A.C.T. has awarded compensation in far too excess of what is awardable under the notional heads, even going by the decision of the Apex Court in the case of "National Insurance Company vs. Pranay Sethi and others" reported in AIR 2017 SC 5157. Thirdly, the counsel argues that the 14 M.A.C.T. grossly erred in awarding interest at the rate of 9% p.a. qua the admissible rate of 6%. Lastly, he submits that even otherwise also, the quantum of compensation is too much on the higher side under other heads and in particular M.F.A.No.3862/2016 arising from M.V.C.No.874/2014, he submits the M.A.C.T. has awarded compensation under duplication of heads in favour of the injured claimants.
4. The learned counsel appearing for the claimants, per contra, submits that the ground of composite negligence in the circumstances does not avail to the insurer; the compensation awarded under the notional heads is just and reasonable; the overall compensation awarded even otherwise also is just and reasonable, regardless of alleged excesses under some heads; the rate of interest at 9% was justified in the peculiar facts of the case and in any event 6% interest is not a thumb rule; the compensation awarded is much on the lower side and therefore the indulgence of this Court is warranted in the claimants appeals.
15
6. Since all these claim petitions arose from the very same accident and all these appeals arise from the very same judgment and awards, the same are heard and disposed of together by this common judgment and order, as requested by the learned counsel appearing on either side. I have heard the learned counsel for the insurer and the learned counsel for the claimants. I have perused the appeal papers and the certified copies of the L.C.R. made available by the learned counsel on either side.
7. The first contention of the learned counsel for the insurer that an accident arising from the collision of two motor vehicles necessarily involves a question of composite negligence and therefore the M.A.C.T. ought to have framed an issue with regard to the same and such an issue not having being framed, the impugned judgment and award are vitiated, does not gain acceptance. It is the consistent view of the Apex Court that the defence of composite negligence does not avail to the insurer unless the pleadings are filed 16 with the leave of the M.A.C.T. u/s. 170 of the Motor Vehicles Act, 1988, in the given circumstances. In these cases, the records do not disclose grant of such leave to the insurer nor any prayer for such leave having been made, and therefore this contention does not merit consideration. Even otherwise also, the evidentiary material is insufficient to make out a case of composite negligence.
8. The next contention of the learned counsel for the insurer that the M.A.C.T. has awarded highly excessive compensation under the conventional heads when the Apex Court in Pranay Sethi's case (supra) has limited the same to Rs.70,000/-, merits acceptance, inasmuch as, the learned counsel points out:
(a) In M.F.A.No.4359/2017 ie., M.V.C.No.30/2014, the M.A.C.T. has awarded a total sum of Rs.4.30 lakh as compensation under the conventional heads,
(b) In M.F.A. No. 3088/2015 ie., M.V.C.No.1677/2014, the M.A.C.T. has awarded compensation of Rs.1,70,000/- under the conventional heads;17
(c) In M.F.A.No.4355/2017 ie., M.V.C.No.29/2014, the M.A.C.T. has awarded compensation of Rs.4.3 lakh under the conventional heads.
[The details of the split-ups of compensation under various conventional heads are furnished by the appellant-insurer in a tabular form in each of the appeals. ]
9. The Apex Court in Pranay Sethi's case has held that the maximum amount of compensation payable under the conventional heads ordinarily cannot exceed Rs.70,000/- in the case of married persons. Special reasons are not forthcoming as to why such heavy sums have been awarded by the M.A.C.T. in the claim petitions. Therefore the award of compensation under the conventional heads made by the Tribunal in these three appeals stands scaled down to Rs.70,000/- each.
10. The contention of the learned counsel for the insurer in M.F.A.No.3088/2015 arising from 18 M.V.C.No.1677/2014, that the Tribunal ought to have made deduction of 50% from the notional income of the deceased, whereas the Tribunal has given a deduction of 1/3rd which again is wrong, has also substance. The learned counsel for the claimants, although opposes the said contention, I am of the considered view that a deduction of 50% ought to have been given by the M.A.C.T. in awarding compensation under the head 'loss of dependency' since the widow of the deceased was the sole dependent and 50% of the notional income can be assumed to be the likely personal expenses, which the deceased would have spent.
11. Lastly, the learned counsel for the insurer submits that the M.A.C.T. grossly erred in awarding interest at the rate of 9% p.a. when the legally admissible rate is 6% p.a., as consistently held by this court in a catena of decisions. The learned counsel for the claimants although opposes the same, is not in a position to justify the award of interest at the higher 19 rate. The counsel points out that this Court in similar matters has scaled down the rate of interest to 6%. There is a lot of force in this submission and therefore the rate of interest stands reduced from 9% to 6% p.a. in all these matters.
12. Now coming to the appeals of the claimants, the learned counsel vehemently contends that some modification is being made in the awards downwardly revising the amount of compensation paid under the conventional heads and other heads on the basis of the judgment of the Apex Court in the case of Pranay Sethi and therefore the claimants too are entitled to avail the benefit under the very same judgment; so contending the learned counsel points out from the impugned awards that the benefit of addition to the notional income at the rate of 40% in the case of the claimants in M.F.A.No.8054/2017, 10% in the case of the claimants in M.F.A.No.8055/2017 and also in M.F.A.No.4594/2015 has not been given by the M.A.C.T. and therefore the said additions have to be 20 made to the notional income. He also points out that the very notional income itself is understated by the M.A.C.T., inasmuch, as going by the Notional Income Chart (NIC) of the Lok Adalat for the accident year 2013. The monthly notional income has to be taken at Rs.8,000/-, whereas the Tribunal has taken in three M.F.As. at Rs.7,000/- and in M.F.A.No.4590/2015 only Rs.6,500/-. The learned counsel for the insurer although opposes such a contention on the basis of the evidentiary material on record, I find there is force in the submission of the learned counsel for the claimants. Therefore in all these claimants appeals, the notional monthly income of the deceased/injured is taken at Rs.8,000/- instead of what is taken by the M.A.C.T. To the said notional income, 40% is added in M.F.A.No.8052/2017 and 10% is added in M.F.A.No.4590/2015. However, in M.F.A.No.3088/2015 the claimant being the sole dependent widow, 50% deduction is affected from the notional income of the deceased.
21
13. With these altered values the compensation has been re-worked out as under:
Loss of Conventional Enhancement
Appeal No. Dependency Heads of award
MFA 8000X40%FP= 70,000-00 2,07,000-00
8054/2017 11200-2800=8400 Plus 6% p.a.
(8400X12X15)=
Rs.15,12,000/-
MFA Partly allowed by scaling down rate of interest
4355/2017 from 9% to 6% p.a.
MFA 8000X10%FP= 70,000-00 1,49,400-00
8055/2017 8800-2200=6600 Plus 6% pa.
(6600X12X13)=
Rs.10,29,600/-
MFA Partly allowed by scaling down rate of interest
4359/2017 from 9% to 6% p.a.
MFA 4000+400=4400 70,000-00 Reduced by
4590/2015 (Lone claimant) Rs.91,288-00
(4400X12X11)=
Rs.5,80,800/-
MFA Partly allowed by scaling down rate of interest
3088/2015 from 9% to 6% p.a.
MFA Compensation and rate of interest are reduced :
3862/2016 Rs.4,55,520 minus Rs.75,000/-
= Rs.3,80,520-00 with 6% p.a. interest (Rs.75,000/- being awarded towards physical impairment)
14. The learned counsel for the insurer taking me through the judgment of the Apex Court in Pranay Sethi's Case submits that the addition principle is invocable only if there is an established income from a permanent job and therefore no addition could be made in these cases, since the notional income factor has been operated by the M.A.C.T. He further submits 22 that the later decision of the Apex Court in HEMRAJ vs. ORIENTAL INSURANCE COMPANY LTD., reported in 2018 ACJ 5, is liable to be ignored inasmuch as the Bench did not correctly appreciate the ratio in Pranay Sethi's Case. He hastens to add that the judgment in Pranay Sethi's Case is by a Bench of 5 Judges, whereas the judgment in Hemraj's Case is by a Bench of 2 Judges, and there being conflict between these two judgments, and therefore the later is to be ignored. He further submits that if there is conflict between the two judgments of the Apex Court rendered by the Benches comprising different strength of Judges, the one given by the larger Bench should prevail and therefore the decision in Hemraj's case does not correctly lay down the law.
15. The learned counsel for the insurer further submits that the judgment in Hemraj's Case is to be treated as per incuriam or as a judgment sub silentio inasmuch as a smaller Bench cannot read down a ratio of a judgment rendered by a Larger Bench, and therefore Hemraj's Case is bereft of any precedential 23 force. Firstly, the case of conflict of ratios as sought to be made out by the counsel for the insurer does not arise when the ratio of a judgment of a Larger Bench is referred to by the Smaller Bench in a subsequent decision. The ratio in Pranay Sethi's Case is specifically adverted to in Hemraj's Case. Secondly, in such situation the doctrine of per incuriam is not at all invocable and therefore the ratio in Hemraj's Case cannot be defied. Therefore this contention too fails.
16. The learned counsel for the insurer banking upon paragraph 18 of the judgment in RAJA RANI AND OTHERS vas. ORIENTAL INSURANCE COMPANY LIMITED AND OTHERS reported in (2009) 13 Supreme Court Cases 654, submits that in the said case the liability was apportioned in the ratio of 50:50 because of the involvement of two vehicles, and therefore in this case too, the facts being similar, the ratio squarely applies. Paragraph 18 of the judgment of the said case does not disclose as to the availability of such a defence in a fact situation of this case. 24 Therefore this decision does not come to the aid of the insurer.
17. Secondly, nowhere in the evidentiary material it is pointed out that the parked lorry had the parking lights/flickering lights put on, at the time of accident; not even a whisper is made with regard to the same by the Highway Patrolling Police when they filed the F.I.R. Nor is there any other evidentiary material to draw any inference as to the parking lights being put on. The road in which the accident took place is NH- 4 and it is a 'Chatushpatha' ie., a four-lane road. The said road is barricaded on either side and no vehicle is supposed to be parked in any circumstances on the road which is marked for movement of heavy traffic. Therefore there is no sufficient substratum supportive of the contention of the insurer.
18. Except the aforesaid, no other ground is urged by either side.
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19. For the above reasons, the appeals filed by the insurer and the claimants are partly allowed. The impugned judgment & awards are modified as under:
(i) In M.F.A.No.8054/2017 the compensation is enhanced by a sum of Rs.2,07,000/-;
(ii) In M.F.A.No.8055/2017 the compensation is enhanced by a sum of Rs.1,49,400 in;
(iii) In M.F.A.No.4590/2015, the compensation is reduced by Rs.91,288/- ; and
(iv) In M.F.A.No.3862/2016 the compensation is reduced by a sum of Rs.75,000/-.
The Registry is directed to transmit the amount in deposit to the jurisdictional Tribunal for immediate disbursal of the compensation to the respective claimants and for the refund of residue/remainder to the appellant-insurer.
Sd/-
JUDGE Snb/