Karnataka High Court
The Manager vs Puttalingamma on 14 March, 2018
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF MARCH 2018
BEFORE
THE HON'BLE MR. JUSTICE B.A. PATIL
M.F.A.No.6486/2017 (MV-D)
BETWEEN:
The Manager,
The Oriental Insurance Co. Ltd.,
TGMC Building, 1st Floor,
J.C.Road, Tumkur.
Now Represented by its
Regional Manager,
Leo Shopping Complex,
44/45, Residency Road,
Bangalore - 560025. ... Appellant
(By Smt. Harini Shivananda, Advocate)
AND:
1. Puttalingamma,
W/o. Late Arasappa,
Aged about 31 years.
2. Kirankumar,
S/o. Late Arasappa,
Aged about 5 years.
3. Lakshmi,
D/o. Late Arasappa,
Aged about 3 years.
4. Kenchamma,
W/o. Late Ramaiah,
Aged about 61 years.
2
Respondent Nos.2 and 3 are minors,
Represented by their mother Respondent No.1.
All are R/at Vengalammanahalli Village,
Kolala Hobli, Koratagere Taluk,
Tumkur District - 572140.
Now R/a. C/o. Veerabhadraiah,
2nd Cross, Adarsha Nagar,
Tumkur - 577132.
5. M.N. Kishan,
Proprietor,
M/s. Arpitha Enterprises,
3rd Main, APMC Yard,
Batawadi,
Tumkur City - 572 102. ... Respondents
(By Sri Ramesh K. R., Advocate for C/R1 to R-3)
This M.F.A. is filed under Section 173(1) of MV Act against
the judgment and award dated 30.05.2017 passed in
M.V.C.No.823/2016 on the file of the Principal District and
Sessions Judge, Tumakuru, awarding a compensation of
Rs.20,11,000/- with interest @ 8% p.a. from the respondent
Nos.1 and 2 jointly and severally from the date of petition till
realization of the entire amount.
This M.F.A. coming on for admission this day, the Court
delivered the following:
JUDGMENT
The present appeal has been preferred by the appellant - insurer assailing the judgment and award passed by the Principal District Judge, Tumakuru in M.V.C.No.823/2016 dated 30.5.2017.
2. Heard the learned counsel for the parties. 3
3. Appeal is admitted. With the consent of the learned counsel appearing for the parties, the same is taken up for final disposal.
4. Brief facts of the case are that on 6.7.2016 at about 10.00 a.m., Sri Arasappa was coming back to home to have his breakfast on his motorcycle bearing registration No.KA-04-H- 7492. When he came near Narasimhaiah's land, a lorry bearing registration No.KA-06-C-0744 came in a rash and negligent manner and dashed to the motorcycle on which the said Arasappa was proceeding. As a result of the same, he sustained grievous injuries and died on the spot. It is the contention of the petitioners that the deceased Sri Arasappa was hale and healthy before the accident and was doing carpentry work along with milk vending and areca nut business and was earning `25,000/- per month. For having lost the bread-earner, wife, children and mother of the deceased filed the claim petition under Section 166 of the Motor Vehicles Act, 1988.
5. In response to the notice, respondent No.1 has not appeared and was placed exparte. Respondent No.2 - insurer appeared and filed his objections by denying the contents of the 4 petition. He further contended that the said vehicle was insured and the policy was in force as on the date of the accident but denied that the driver of the said lorry was holding a valid and effective driving license. He has also breached the policy conditions and as such the insurer is not responsible to pay any compensation. On these grounds, he prayed for dismissal of the said petition.
6. On the above pleadings, the Tribunal framed the following issues:
(1) Whether the petitioners prove that, the accident dated 6.7.2016 occurred on Vengalammanahalli -
Motagondanahalli Road at 10-00 a.m., involving the bike bearing Reg.No.KA-04-H-7492 and lorry bearing Reg.No.KA-06-C-0744 is because of actionable negligence on the part of the driver of the lorry bearing Reg.No.KA-06-C-0744?
(2) Whether the petitioners prove that, the deceased Arasappa S/o late Ramaiah succumbed because of the injuries sustained in the above said accident? (3) Whether the petitioners being legal-heirs of the deceased, are entitled for compensation? If so, at what rate and from whom?
(4) What order or award?
5
7. In order to prove the case of the petitioners, petitioner No.1 examined herself as PW-1 and one more witness came to be examined as PW2 and got marked Ex.P1 to P13. The respondents have not led any evidence.
8. After hearing the parties to the lis, the impugned judgment and award came to be passed by the Tribunal. Assailing the same, the appellant - insurer is before this Court.
9. The only ground urged by the learned counsel for the appellant - insurer is that the Tribunal has erred in adding 50% income towards the future prospects, though the deceased had no fixed avocation and was not having any permanent income or salary. He also contended that the Tribunal has erroneously passed the impugned judgment and award by graciously adding 50% towards future prospects and has awarded the compensation on the higher side. On these grounds, he prayed for the allowing of the appeal by reducing the compensation.
10. Per contra, the learned counsel appearing on behalf of the respondent - claimants justifies the judgment and award passed by the Tribunal. He further contends that the deceased was working as a carpenter and was doing milk vending and 6 areca nut business. The Tribunal by taking the notional income and by adding 50% towards the future prospects has awarded just compensation. The same requires to be confirmed by dismissing the appeal. On these grounds, he prayed for the dismissal of the appeal.
11. The accident in question is not in dispute, so also the involvement of the offending vehicle insured with the appellant - insurer. As could be seen from the judgment and award passed by the Tribunal, it is the contention of the petitioners that the deceased was working as a carpenter and was doing milk vending and areca nut business and was earning `25,000/- per month. But in order to substantiate the said fact, they have not produced any documents. In the absence of documents, the Tribunal by taking the notional income at the rate of `8,000/- per month, after adding 50% towards future prospects and after deducting 1/3rd towards the personal expenses and applying the multiplier '16' has awarded an amount of `15,36,000/- towards the 'loss of dependency'. Though under the normal circumstances the compensation awarded appears to be justifiable, but as could be seen from the judgment and award, 7 there are four dependents. Under these circumstances, the Tribunal ought to have deducted 1/4th of the income towards the personal expenses instead of 1/3rd. While taking the notional income, the Tribunal ought to have kept into view the year of the accident, wages prevailing during the said period. Admittedly, the accident in question has taken place on 6.7.2016 and during that particular period notional income of `11,000/- is the yardstick which used to be adopted for settlement of cases before the Lok Adalat. After deducting 1/4th towards personal expenses and after applying the multiplier '16' the respondent - claimants are entitled to an amount of `15,84,000/- towards the 'loss of dependency'. As could be seen from the judgment and award passed by the Tribunal, the Tribunal has awarded an amount of `4,75,000/- under the conventional head. The compensation awarded under the conventional head appears to be on the higher side. In view of the decision of the Hon'ble Apex Court in the case of NATIONAL INSURANCE COMPANY LTD. v. PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157, the claimants are entitled to an amount of `70,000/- under the conventional head. Though the learned counsel for the respondent - claimants would contend that the Tribunal has 8 rightly awarded the compensation by adding 50% towards the future prospects, but in view of the decision quoted supra, in order to grant the future prospects, the claimants have to establish that either the deceased was self-employed or was having a fixed income or salary or settled income. In the instant case, no such documents have been produced. In the absence of any documents, no future prospects can be awarded.
12. In the light of the discussion held by me above, the respondent - claimants are entitled to a total compensation of `16,54,000/- with interest at 8% per annum, as against `20,11,000/- awarded by the Tribunal. Accordingly, the appeal is allowed-in-part. The judgment and award passed in M.V.C.No.823/2016 dated 30.5.2017, is modified as indicated above. The appellant - insurer is directed to deposit the compensation awarded by this Court, within a period of six weeks from the date of the receipt of the certified copy of this order. The amount in deposit may be transmitted to the jurisdictional Tribunal, forthwith.
13. The Registry is directed to draw the award accordingly.
9
14. In view of the disposal of the main appeal, I.A.No.1/2017 does not survive for consideration.
Sd/-
JUDGE MD