Karnataka High Court
The Divisional Manager, vs Kavita & Ors on 14 January, 2019
Author: S.G.Pandit
Bench: S.G.Pandit
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 14TH DAY OF JANUARY, 2019
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
MISCELLANEOUS FIRST APPEAL NO.200743/2018 (MV)
C/W
MISCELLANEOUS FIRST APPEAL NO.201203/2018 (MV)
IN MFA NO.200743/2018
BETWEEN:
The Divisional Manager
Divisional Officer
The National Insurance Company Ltd.
Dr. Jawali Complex, First Floor
Super Market, Kalaburagi-585101
The Divisional Manager
National Insurance Company Ltd.
1st Floor, Bilgundi Complex
Opp: Mini Vidhan Soudha
Main Road, Kalaburagi
Through its Authorised Signatory
... Appellant
(By Sri Sharanabasappa M. Patil, Advocate)
AND:
1. Kavita W/o Late Devindra
Age : 26 Years
Occ : Household, now nil
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2. Kartik S/o Late Devindra
Age : 4 Years, Minor
3. Nagamma W/o Late Revansiddappa
Age : 48 Years
Occ : Household, now nil
Respondent No.2 is minor U/g of his
Natural Mother i.e., respondent No.1
All R/o Teranalli, Tq. Sedam
Dist : Kalaburagi now at H.No.1/10
Banashankari Layout, Brahampur
Kalaburagi
4. Kamalakar S/o Ganapatrao Patil
Age : 62 Years
Occ : Owner of Tractor
R/o Teranalli, Tq : Sedam
Dist. Kalaburagi
... Respondents
(Sri Sanjeev Patil, Advocate for R1 and R3;
R2 is minor represented by R1;
R4-Served)
This Miscellaneous First Appeal is filed under
Section 173(1) of Motor Vehicles Act, praying to modify
the order of the Tribunal and set aside the order dated
01.02.2018 passed by the II Additional Senior Civil
Judge and MACT at Kalaburagi in MVC No.136/2016.
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IN MFA NO.201203/2018
BETWEEN:
1. Kavita W/o Late Devindra
Age : 26 Years
Occ : Household
2. Kartik S/o Late Devindra
Age : 4 Years, Minor
3. Nagamma W/o Late Revansiddappa
Age : 48 Years
Occ : Household, Now nil
Appellant No.2 is minor U/g of his
Natural Mother i.e., appellant No.1.
All R/o Teranalli, Tq. Sedam
Dist : Kalaburagi now at H.No.1/10
Banashankari Layout, Brahampur
Kalaburagi
... Appellants
(By Sri Sanjeev Patil, Advocate)
AND:
1. Kamalakar S/o Ganapatrao Patil
Age : 62 Years
Occ : Owner of Tractor
R/o Teranalli, Tq : Sedam
Dist. Kalaburagi
2. The Divisional Manager,
Divisional Officer,
The National Insurance Company Ltd.
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Dr. Jawali Complex, 1st Floor
Super Market, Kalaburagi-585101
...Respondents
(Sri Sharanabasappa M. Patil, Advocate for R2 ;
V/o dated 14.01.2019, notice to R1 is dispensed with)
This Miscellaneous First Appeal is filed under
Section 173(1) of Motor Vehicles Act, praying to allow
this appeal and enhance the compensation to
R.15,00,000/- along with interest by modifying the
judgment and award of the II Addl. Senior Civil Judge
and MACT, Kalaburagi dated 01.02.2018 in MVC
No.136/2016.
These appeals are coming on for Orders, this day,
the Court delivered the following:
JUDGMENT
The insurance company/appellant is before this Court in MFA No.200743/2018 assailing the judgment and award dated 01.02.2018 in MVC No.136/2016 passed by the II Additional Senior Civil Judge and MACT, Kalaburagi, by which the liability is fastened on the insurance company.
2. The brief facts of the case are that the wife, child and mother of the deceased filed claim petition 5 before the Tribunal claiming compensation of Rs.35,00,000/- towards death of one Devindra in a road traffic accident on 15.12.2015. On 15.12.2015 when the deceased Devindra along with his friend proceeding on motorcycle bearing No.KA-32/Y-1311, a tractor bearing No.KA-32/TA-7880/7881 came in a rash and negligent manner, dashed to Devindra, the deceased. As a result, the deceased sustained head injury and died on the spot.
3. Respondent No.2-Insurance Company before the Tribunal filed objections denying the contents of the petition and also contended that the driver of the offending vehicle was not holding valid driving licence as on the date of the accident.
4. The Tribunal on assessing the material on record both oral and documentary awarded total compensation of Rs.8,88,000/- with 6% interest from the date of petition till realization and directed 6 respondent No.2-Insurance Company to deposit the amount awarded.
5. Being aggrieved by the said judgment and award the insurance company is before this Court assailing the judgment and award on the ground that the finding of the Tribunal is wholly perverse and erroneous.
6. The learned counsel for the appellant/insurance company submits that as on the date of the accident, the driver of the tractor and trailer had only licence to drive light motor vehicles and he had no licence to drive tractor and trailer. He submits that the insurance company has produced Ex.C.1 to indicate that the driver of the tractor has no licence as on the date of accident i.e., on 15.12.2015. Further it is stated that, he possessed licence to drive tractor and trailer only from 18.04.2016.
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7. Further the learned counsel for the appellant/insurance company submits that the Tribunal could not have awarded a sum of Rs.50,000/- towards 'love and affection' as the claimants are entitled compensation on convention heads totally a sum of Rs.70,000/-, whereas the Tribunal on convention heads has awarded a sum of Rs.1,20,000/-.
8. The claimants have also filed MFA No.201203/2018 seeking enhancement of compensation. The claimants submit that the deceased was running flourmill and to indicate that he was running flourmill Ex.P.7, licence of flourmill is produced. The income taken by the Tribunal to determine the compensation is lesser. It is the submission of the learned counsel for the claimants that the deceased was earning Rs.15,000/- per month and the Tribunal ought to have taken Rs.15,000/- per month as income of the deceased.
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9. Further he submits that holding of light motor vehicle licence would be sufficient and the Tribunal has rightly held that the licence to drive light motor vehicle would be sufficient and relied upon the decision of the Division Bench of this Court dated 08.03.2018 passed in MFA No.21210/2013 and connected matters. Further with regard to the compensation awarded on the head of 'love and affection', the learned counsel for claimants/respondents relies upon the decision of this Court reported in ILR 2018 Karnataka 3715, United India Insurance Co. Ltd., rep. By its Deputy Manager vs. Sri Siddalingaiah @ Siddalingappa and Others, wherein the Division Bench of this Court has held that on the head of 'love and affection' compensation could be granted.
10. The learned counsel for the insurance company submitted that the driver of the tractor and 9 trailer had no licence to drive tractor and trailer as on the date of accident i.e., on 15.12.2015. With regard to deal the said contention, it is useful to refer to Ex.C.1 produced before the Tribunal. Ex.C.1 indicates that the driver of the tractor and trailer had licence to drive light motor vehicle from 28.10.2013 and to drive tractor from 18.04.2016. From Ex.C.1 it cannot be disputed that the driver of the tractor and trailer had licence to driver light motor vehicle from 28.10.2013, whereas the accident had taken on 15.12.2015. As on the date of the accident the driver of the offending vehicle, tractor and trailer had licence to drive light motor vehicle. The Division Bench of this Court relying on the decision of Hon'ble Supreme Court in Mukund Dewangan vs. Oriental Insurance Company Limited, reported in AIR 2017 Supreme Court 3668 has held in the case of Basavaraja P.B. vs. G. Veeranna and others in MFA No.21210/2013 and connected matters disposed of on 08.03.2018 at Paragraph No.10 as follows:- 10
"10. In so far as the next contention on behalf of the appellant insurance company relating to the driver of the tractor-trailer not possessing the licence to drive the tractor- trailer as composite transport vehicle, the same need not detain us for long in as much the Division Bench of this Court in the case of Vanajakshi vs. K.G. Hanumanthappa, MFA Nos.2044 and 10852 of 2012 had at an earlier point held that the licence possessed to drive the tractor would be sufficient. In any event the Hon'ble Supreme Court in the case of Mukund Dewangan vs. Oriental Insurance Company Limited, AIR 2017 Supreme Court 3668 has reiterated this position and the said aspect is no more res- integra so as to consider the matter in that regard. Therefore insofar as the Tribunal holding the insurer of the tractor-trailer liable for payment of the compensation we find no error.'
11. Hence, I am of the view that the contention of the appellant/insurance company that the driver of 11 the offending vehicle had no licence to drive tractor and trailer as on the date of accident is liable to be rejected and the Tribunal had rightly rejected the appellant's contention, which needs no interference.
12. With regard to the contention that the Tribunal had granted more than what is entitled by the claimants under conventional heads is also liable to be rejected. On conventional heads, the Tribunal has rightly awarded Rs.70,000/-, and on the head of 'loss of love and affection', the Tribunal has awarded a sum of Rs.50,000/-, which the learned counsel for the appellant/insurance company submits that the Tribunal could not have awarded. The Division Bench of this Court in a decision reported in ILR 2018 Karnataka 3715 has held as follows:-
"8. As far as the issue whether the claimants- respondents are entitled to receive any compensation for 'loss of love and affection' suffered by them due to the sudden demise of 12 their son is concerned, the interpretation placed by the learned counsel for the appellant, is clearly untenable for the following reasons:
Firstly, in the case of Pranay Sethi (supra), while the Hon'ble Supreme Court has dealt with the other conventional heads, the Hon'ble Supreme Court has mentioned only three conventional heads, namely "loss of estate", "loss of consortium", and "funeral expenses". The Hon'ble Supreme Court has not expressed any opinion, and has not fixed any maximum limit for the category of "loss of love and affection". Since the Apex Court is silent about the said category, it cannot be inferred that the Apex Court is negating the very existence of the said conventional head.
Further, since no bar has been fixed with regard to the compensation payable under the category of "loss of love and affection", a prohibition cannot be inferred by this Court.
In catena of cases, the Hon'ble Supreme Court has held that a decision should not be read 'by inference'. What is not clearly stated 13 as a ratio of a case, cannot be read as the ratio by implication. Thus, the silence about an upper limit to be prescribed for the conventional head of "loss of love and affection" speaks volumes that there is no maximum limit for the said category. But nonetheless, the compensation payable under the said category should be just and reasonable, and not a bonanza.
Secondly, the sudden loss of a son, or a daughter, that, too, a death caused in the prime of youth, is a terrible blow to the parents. According to folk wisdom, one of the most painful moments of one's life is to be the pall bearer of a deceased son, or a daughter. Even, Medical Science finds that a large number of parents tend to go into deep depression due to the sudden loss of their children. Thus, the emotional vacuum left by the sudden departure of the child, cannot be filled by monetary compensation. But still, in order to ameliorate the emotional vacuum left by the child, a monetary compensation is paid to the parents. Therefore, the contention 14 raised by the learned counsel for the appellant that not a single penny needs to be paid to the bereaved parents, such an argument is clearly unacceptable.
Thirdly, the Motor Vehicle Act is a social beneficial piece of legislation; it is enacted in favour of the claimants. One merely needs to place oneself in the shoes of the bereaved parents in order to imagine their emotional and psychological plight. Considering the fact that the parents are left emotionally starved, as they cannot possibly find even psychological substitute for their children, for this reason, no upper limit of compensation can possibly be prescribed by a court of law. Hence, this court rejects the contention raised by the learned counsel for the appellant."
13. The Division Bench of this Court taking note of the decision of the Hon'ble Supreme Court in Pranay Sethi's case has held that one is entitled for compensation for 'loss of love and affection'. Therefore, I am of the view that the Tribunal has rightly awarded a 15 sum of Rs.50,000/- under the head 'loss of love and affection'. Since respondent No.2/claimant No.2 Kartik who was aged about 2 years as on the date of accident has lost love and affection of his father at very young age. Any amount of compensation would not bring back the love and affection of a father. Hence, I am of the view that the Tribunal has rightly awarded a sum of Rs.50,000/- towards 'loss of love and affection'.
14. The claimants have filed appeal seeking enhancement of compensation contending that the deceased was running flourmill and to substantiate that the deceased was running a flourmill, Ex.P.7 flourmill licence is produced. The claimants contended that the deceased was earning more than Rs.15,000/- per month and the Tribunal was not right in taking only Rs.6,000/- per month as income of the deceased. It is true that the claimants have produced flourmill licence Ex.P.7, but no piece of document is produced to 16 indicate that the deceased was earning more than Rs.15,000/- per month. Mere production of flourmill licence would not be sufficient to say that the deceased was earning more than Rs.15,000/- per month. In the absence of any material to indicate the exact income of the deceased, we have to fall back to determine the notional income of the deceased for determination of the compensation. This Court and the Lok Adalath while settling the claims arising out of the Motor Accident cases, would take notional income of the deceased persons for the accidents of the year 2015 at the rate of Rs.8,000/- per month. In the case on hand also, in the absence of any material to indicate the exact income of the deceased, I deem it appropriate to take the notional income of the deceased at Rs.8,000/- per month for determination of the compensation. Thus, the claimants would be entitled for modified compensation on the head of 'loss of dependency' as follows; 17
LOSS OF DEPENDENCY:
Rs.8,000/- - 1/3rd = Rs.5,333/- x 12 x 16 = Rs.10,23,936 /-.
Thus, the claimants are entitled for enhanced compensation of Rs.1,35,936/-. In respect of compensation awarded by the Tribunal under other heads remains undisturbed.
15. Out of the enhanced compensation, claimant No.2, minor would be entitled for Rs.75,000/-, which shall be kept in fixed deposit in any Nationalized Bank till he attains the age of majority and he is entitled to receive interest accrued thereon. Balance amount shall be distributed equally among claimant Nos.1 and 3.
Accordingly, MFA No.200743/2018 is rejected and MFA No.201203/2018 is partly allowed. 18
The amount in deposit before this Court shall be transmitted to the concerned Tribunal.
Since the amount in deposit is ordered to be transmitted to the concerned Tribunal, consideration of I.A.No.2/2018 for withdrawal of deposited amount at this stage does not arise, accordingly same stands disposed of.
Sd/-
JUDGE RSP/BL