Karnataka High Court
United India Insurance Co.Ltd. vs Smt Sumitra W/O Kallappa Bistannavar on 17 December, 2018
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BEN CH
DATED THIS THE 17 T H DAY OF DECEMBER, 2018
PRESENT
THE HON'BLE MRS . J USTICE B.V. NA GARATHNA
AND
THE HON'BLE MR. JUSTICE BELLUNK E A .S.
M.F.A .NO.21555/2010 (MV)
C/W
M.F.A .CROB.N O.748/2011 (MV)
IN M.F.A.NO.21555/2010 (MV)
BETWEEN :
UNITED INDIA INS URANCE CO.LTD.,
BIJAPUR REPRESENTED THROUGH IT S
DIVISIONAL OFFICE,
LEA COMPLEX, D HARWAD,
REPRES ENTED BY ITS DIVISIONAL M ANAGER,
SHRI DR.P.M.KULK ARNI.
APPELLANT
(BY SRI N .R.K UPPELUR, ADV OCATE)
AND :
1. SMT.SUMITRA,
W/O KALLAPPA BISTANNAVAR,
AGE:39 YRS , OCC: HOUSE HOLD WORK,
2. RAVI
S/O KALA PPA BIST ANNAVAR,
AGE: 24 YEARS , OCC:STUDENT ,
3. MALASHREE,
D/O KALLAPA BIST ANNAVAR,
2
AGE:21 Y EARS, OCC: STUDENT ,
4. RAMESH,
S/O KALLAPPA BISTANNAVAR
AGE: 19 YEARS , OCC: STUD ENT,
5. SMT.DEVAKKA
W/O SHANKARA PPA BISTANNAVAR
AGE: 65 YEARS , OCC: HOUS E HOLD WORK,
ALL ARE RESIDEN T OF YAMANUR VILLAGE,
TALUK : NAVALGUND, DIST:DHARWA D.
6. SIDDARAMAPPA S/ O ADEVA PPA KOTA GI
AGE: MAJOR, OCC: BUSINESS ,
R/O RAMA MANDIRA ROAD ,
BIJAPUR.
... RES PONDENTS
(BY SRI A.M.GUND WADE & M.S.K UNK OOR, ADVOCATES
FOR R.1 TO 4 : NOTICE TO RES PONDENT N O.5 -
SERVED : NOTICE TO RESPONDENT NO.6 - HELD
SUFFICIENT.)
THIS MISCELLANEOUS APPEAL IS F ILED UNDER
SECTION 173(1) OF MOTOR VEHICLES A CT, 1988
AGAINST THE JUDGMENT AND AWARD DATED
22.12.2009 PASSED IN MVC.NO.229/ 2006 ON THE FILE
OF THE I ADDL. CIVIL JUDGE (SR.DN.) AND CJM &
MEMBER, ADDL. M.A.C.T DHARWAD SITTING AT
NAVALGUND , AW ARDING THE COMPENSATION OF
RS.3,90,000/- WI TH INTEREST AT 6% P.A FROM THE
DATE OF PETITION TILL THE DATE OF REALIZATI ON.
IN M.F.A.CROB.N O.748/2011
BETWEEN :
1. SMT.SUMITRA,
W/O KALLAPPA BISTANNAVAR,
AGE: 39 YEARS , OCC: HOUS E WIFE,
3
2. SRI RAVI
S/O KALA PPA BIST ANNAVAR,
AGE: 24 YEARS , OCC:STUDENT ,
3. KUM. MALASHREE,
D/O KALLAPA BIST ANNAVAR,
AGE: 21 YEARS , OCC: STUD ENT,
4. SRI RAMESH,
S/O KALLAPPA BISTANNAVAR
AGE: 19 YEARS , OCC: STUD ENT,
5. SMT.DEVAKKA
W/O SHANKARA PPA BISTANNAVAR
AGE: 65 YEARS , OCC: HOUS EWIFE,
ALL ARE RESIDEN T OF YAMANUR VILLAGE,
TALUK : NAVALGUND, DIST:DHARWA D.
... CROSS OBJECTORS
(BY SRI A .M.GUND AWADE & M .S.K UNKOOR,
ADVOCATES)
AND :
1. SRI SIDDARAMAPPA S/O ADEVAPPA K OTAGI,
AGE: MAJOR, OCC: BUSINESS ,
R/O RAMA NADIRA ROAD , BIJAPUR.
2. UNITED INDIAN IN SURANCE CO. LTD .,
BIJAPUR.
... RES PONDENTS
(BY SRI N .R.K UPPELUR, ADV OCATE FOR R2)
THIS CROSS OBJ ECTION IS FILED UNDER ORDER
XLI RULE 2 OF CODE OF CIVIL PROCEDURE R/ W
SECTION 173 (1) (A) OF MOTOR VEHICLES ACT , 1988
AGAINST THE JUDGMENT AND AWARD DATED
22.12.2009, PAS SED IN MVC.NO.229/2006 ON THE
FILE OF THE I AD DL. CIVIL J UDGE (SR.DN.) AND CJM
& AMACT, DHARWAD SITTING AT NAVALDUND, PARTLY
4
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
APPEAL AND CROS S OBJECTION COMING ON F OR
ADMISSION THIS DAY, NAGARATHNA, J., DELIVERED
THE FOLLOWING:
J U D G M E N T
Though the appeal and cross-objection are listed for admission, with the consent of learned counsel on both sides they have been heard finally.
2. Insurance company has preferred the appeal assailing the judgment and award passed in MVC.No.229/2005 by the Court of the I Additional Civil Judge (Sr.Dn.) & C.J.M and Additional Motor Accident Claims Tribunal ('Tribunal' for short), Dharwad sitting at Navalgund on the question of fastening of liability to satisfy the award. Respondents - claimants have filed cross-objection seeking enhancement of compensation. 5
3. For the sake of convenience, the parties shall be referred to in terms of the status before the Tribunal.
4. Claimants filed the claim petition under Sections 166 and 140 of the Motor Vehicles Act, 1988 seeking compensation on account of death of Kallappa on 14.07.2004 in a road traffic accident. According to the claimants Kallappa along with his friends Shivanand, Manjunath and Mahantesh were travelling in Maruti 800 car bearing registration No.KA.02/M-7671 on 14.07.2004 on National Highway-13. When the said car was near Kudal Sangam Cross, the driver of the said Car drove it in high speed and in a rash and negligent manner and dashed against the lorry, which was parked on the side of the road, because the driver of the Maruti car lost control over the vehicle. As a result of impact, Kallappa sustained grievous injuries and died on the spot. His dead body was taken to the 6 Primary Health Center, Kudal Sangam for postmortem and thereafter it was handedover to the relatives.
5. According to the claimants Kallappa was hale and healthy ; he was working as a driver, drawing salary of more than Rs.6000/- per month; and he was maintaining his family out of the said earnings. Contending that, they lost bread earner of the family, claimants filed the claim petition seeking compensation on various heads.
6. In response to the notice issued by the Tribunal on the claim petition, respondent No.1 owner of the vehicle appeared through counsel but did not file any statement of objections.
7. Insurance company appeared through counsel and filed statement of objections, contending that the driver of the Maruti 800 car was driving it at a moderate speed and that there was no negligence on the part of the driver of the 7 Maruti Car. That the deceased was travelling in the Maruti Car as an inmate whose risk was not covered under the insurance policy. That the insurance company was not liable to indemnify the insured by satisfying award, if any, to be passed by the Tribunal, Insurance Company sought for dismissal of the claim petition.
8. On the basis of the rival pleadings, the Tribunal framed the following issues for its consideration.
"1. Whe the r the petitioner pro ve s that on 14.07.2004 at 5.00 p.m., on N .H.13 near Kudal Sangam Cross due to the rash and negligent driving of the Maruti 800 car bearing No.KA .02 M- 7671 K allappa Bistannavar sustaine d grievous injuries and fatal inj uries and die d on the spot causing the accide nt?
2. If so, how much and from whom the petitio ners are entitle d compe nsatio n?
3. What Orde r o r award?"8
9. In support of their case, the claimants let in the evidence of PW.1 Sumitra, the wife of the deceased. She produced thirteen documents which were marked as Exs.P.1 to P.13. On behalf of the insurance company DW.1 let in his evidence. Ex.R1, copy of the insurance policy was marked in his evidence.
10. On the basis of the evidence on record, the Tribunal answered Issue No.1 in the affirmative and on issue No.2 awarded compensation of Rs.3,90,000/- with interest at the rate of 6% per annum from the date of claim petition till realization. The Tribunal directed that the owner and the insurer of the Maruti Car are jointly and severally liable to pay the compensation.
11. Being aggrieved by the fastening of the liability on the insurer, it has preferred this appeal, while respondents-claimants have sought 9 enhancement of compensation by filing memorandum of cross objection.
12. We have heard learned counsel for the insurance company and learned counsel for the claimants and perused the material on record.
13. During the course of submission, learned counsel for the insurer contended that no doubt the insurance company had issued policy in respect of Car in question bearing registration No.KA.02/M-7671, but the said policy was an 'Act Policy' covering only the statutory risk under the provisions of the Motor Vehicles Act, 1988, the risk of the passengers or inmates of the Car was not covered. Therefore, the Tribunal could not have fastened the liability on the insurance company jointly and severally along with the insured. He contended that the liability was solely on the owner of the vehicle in the absence of 10 there being any coverage of the risk of the passengers of the vehicle of the Car in question.
14. In this regard learned counsel for the insurance company placed reliance on two judgments of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd., Vs. Tilak Singh and others reported in 2006 ACJ 1441 and New India Assurance Company Limited Vs. Sadanand Mukhi and others (2009) 2 SCC 417 to contend that the risk of a pillion rider of a motorcycle as well as the inmate of a car is not covered under an act policy, and only if an additional premium is paid, that the risk of such persons are covered. Therefore he contended that the insurance company may be exonerated of its liability.
15. Learned counsel for the appellant also placed reliance on another decision of the Division Bench of this Court in the case of the Branch 11 Manager, The New India Assurance Co.Ltd Vs. Mahadev Pandurang Patil and another reported in ILR 2011 KAR 850 wherein this Court has explained the meaning of the expression 'third party' and observed that it does not include an inmate or passenger of a Car and that a third party is a person who is outside the offending vehicle. He therefore submitted that the appeal filed by the insurance company may be allowed and liability may be fastened solely on the owner of the vehicle that is the insured.
16. Learned counsel for the appellant also drew our attention to another judgment of the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Balakrishnan and another reported in 2013 ACJ 199 wherein, it has been held that risk of an occupant of a private car is not covered under an 'Act Policy'. 12
17. Per contra learned counsel for the claimants placed reliance on earlier decision of the Hon'ble Supreme Court in case of Amrit Lal Sood and another Vs. Smt.Kaushalya Devi Thaper and others reported in 1998 (1) G.L.H 842 to contend that the expression 'any person' found in the policy would include an occupant travelling gratuitously in the insured's care and therefore the risk of such a passenger is covered. He therefore contended that the liability was rightly fastened on the insurer in the instant case and therefore the appeal filed by the insurance company may be dismissed.
18. As far as the cross objection filed by the respondents - claimants is concerned, he contended that the deceased Kallappa was a professional driver of a vehicle and Ex.P.1 was produced to show the Driving Training Certificate. That the accident occurred in July, 2004. He was 13 earning salary of Rs.6,000/- per month, but the Tribunal assessed his notional income at Rs.3,000/- per month only as if he was an unskilled labour which is incorrect. He further submitted that in view of the latest judgments of the Hon'ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others reported in AIR 2017 SCC 5157 at least 40% of the monthly income of the deceased must be reckoned for the purpose of future prospects, but the same has not been done by the Tribunal in the instant case. He contended that the claimants are 5 in numbers, 1/4 t h of the monthly income must be deducted towards personal expenses of the deceased. He contended that the compensation awarded on the head of loss of dependency would have to be enhanced. He further submitted that the compensation awarded towards loss of consortium, loss of estate, loss of love and affection and 14 transportation of the dead body and towards funeral expenses are awarded in a very meager manner. The same may be enhanced by allowing the cross objection.
19. By way of reply learned counsel for the appellant - insurer contended that the decision of the Hon'ble Supreme Court in the case of Amrit Lal Sood has been considered in the subsequent decisions relied upon by him and that the latest dictum of the Hon'ble Supreme Court in the case of Balakrishnan's case may be applied to the instant case. Supporting the judgment and award of the Tribunal, he contended that the same would not call for any enhancement and that cross-objection filed by the respondents - claimants may be dismissed.
20. Having heard learned counsel for the respective parties, the following points would arise for our consideration.
15
1. Whether the Tribunal was right in fastening the liability to satisfy the award on the appellant - insurance company jointly and severally with owner of the car in question?
2. Whether the respondents - claimants are entitled to enhanced compensation?
3. What order?
21. The detailed narration of facts and contentions would not call for reiteration. The respondents- claimants established that Kallappa died in a road traffic accident that occurred on 14.07.2004, when he was traveling along with his friends in Maruti 800 car bearing registration No.KA.02/M-7671 on National-Highway-13. The car belonged to the 1 s t respondent Sidramappa. It was insured with the appellant-insurance company. Ex.R.1 is the copy of the policy issued by the insurance company in respect of the car in question.
16
22. On perusal of Ex.R.1, it is noted that it is an 'Act Policy'. The premium that has been paid on the said vehicle is Rs.500/- for third party basic insurance and the loading on TP premium (third party premium) is Rs.500/-. The total premium paid is only Rs.1,000/-. On perusal of the policy it is noted that no additional premium has been paid to cover the risk of the inmates or the passengers of Maruti-800 Car in question which is the offending vehicle. In the absence of additional premium being paid so as to cover the risk of the passengers of the car in question, it must be construed that there is no consideration paid on that aspect of the contract of insurance. In the circumstances the risk of the inmate of the Car is not covered under Ex.R.1 policy, which is a 'statutory policy' or an 'act policy'. It is not what is called a 'comprehensive policy' as no additional premium has been paid to cover the risk of the passenger of the car. Therefore, the Tribunal was 17 not right in fastening the liability to cover the risk of the passenger travelling in the Car on the insurance company, particularly having regard to the judgment of the Hon'ble Supreme Court in the case of Tilak Singh.
Therefore, liability of the insurance company does not extend to a pillion rider of a motorcycle unless the requisite premium is paid covering his/her risk. That the pillion rider on two wheelers is not treated as a third party when the accident takes place owing to the rash and negligent riding of a scooter or motorcycle and not on the part of the driver of other vehicle.
23. Similarly in Sadanand Mukhi's case the Hon'ble Supreme Court at paragraph Nos.13 and 14 held as under:
13. Contract of insurance of a motor vehicle is go verned by the provisions of the 18 Insurance Act. The terms of the policy as also the quantum of the premium payable for insuring the vehicle in question depends not only upo n the carrying capacity of the vehicle but also on the purpose for which the same was being used and the extent of the risk covered there by. By taking an "act policy", the owner o f a vehicle fulfils his statuto ry obligation as containe d in Sectio n 147 of the Act. T he liability of the insurer is e ithe r statuto ry or co ntractual. I f it is contractual its liability extends to the risk covere d by the policy of insurance. If additional risks are sought to be cove red, additional premium has to be paid. If the contention of the learned counsel is to be accepte d, then to a large extent, the provisions of the Insurance Act become otiose. By reason of such an inte rpretatio n the insurer wo uld be liable to cover risk of no t only a third party but also others who would not otherwise co me within the purview the re of. It is one thing to say that life is uncertain and the same is required to be covere d, but it is anothe r thing to say that we must re ad a statute so as to grant re lie f to a perso n not co ntemplated by the Act. It is not fo r the court, unless a statute is found to be unco nstitutio nal, to conside r the rationality thereo f. Even otherwise the pro visions of the 19 Act read with the pro visions o f the Insurance Act appe ar to be wholly rational.
14. Only because driving o f a motor vehicle may cause accident involving loss of life and pro perty not only of a third party but also the owne r of the vehicle and the insured vehicle itself, different provisio ns have bee n made in the Insurance Act as also the Act laying down different types of insurance policies. The amo unt o f premium required to be paid for each of the policy is governe d by the Insurance A ct. A statuto ry regulato ry authority fixes the norms and the guidelines.
By referring to Tilak Singh's case it observed that the risk of a pillion rider of a motorcycle is not covered under an act policy. However, in the case of Balakrishnan the vehicle involved was a car. The Hon'ble Supreme Court analyzed section 147 of the Act and on considering the case of Tilak Singh's case and other decisions such as Oriental Insurance Co. Ltd. Vs. Sudhakaran K.V. and others reported in 2008 ACJ 2045 (SC) as well as Sadanand 20 Mukhi referred to above as well as other decision held at paragraph Nos.16 as under:
"16. Thus, it is quite vivid that the Bench had made a distinction between the 'Act Po licy' and 'com prehensive policy/package'. We respectfully concur with the said distinction. The crux of the matter is what would be the liability of the insurer if the policy is a 'comprehensive/package policy' . We are absolute ly co nscious that the matter has been refe rre d to a larger Bench, but, as is evide nt, the Be nch has also obse rved that if would depend upon the view of the Tariff Adviso ry Com mittee pertaining to enforcement o f its decision to cover the liability o f an occupant in a vehicle in a 'comprehensive/package policy' regard being had to the contract of insurance."
Pursuant to the observations at paragraph No.16 that there is distinction between an 'Act Policy' and a 'Comprehensive Policy' or 'Package Policy' at paragraph No.21 it has observed as under:
21
"21. In view o f the aforesaid factual position, the re is no scintilla o f doubt that a "comprehe nsive/package po licy" wo uld co ver the liability of the insurer fo r payment of compensation fo r the occupant in a car. There is no cavil that an "Act Policy" stands on a diffe re nt footing from a "Comprehe nsive/Package Po licy". As the circulars have made the position very cle ar and the IRDA , which is presently the statuto ry autho rity, has commanded the insurance companies stating that a "Comprehe nsive/Package Policy" co vers the liability, there cannot be any dispute in that regard. We may haste n to clarify that the earlier prono unce ments were rendered in respect o f the 'Act Po licy' which admittedly canno t cove r a third party risk of an occupant in a car. But, if the po licy is a 'Comprehensive/ Package Policy' , the liability would be cove red. These aspects were no t notice d in the case of Bhagyalakshmi (2009) 7 SCC 148 and, there fore , the matter was referred to a larger Bench. We are dispose d to think that the re is no necessity to refer the present matte r to a large r Be nch as the IRDA, which is presently the statuto ry authority, has clarified the po sition by issuing circulars which have bee n re produced 22 in the judgment by Delhi High Court and we have also reproduced the same.
The Apex Court remanded the matter to the Tribunal to give a finding as to whether it was an 'Act Policy' or a 'Comprehensive Policy'.
24. In the case of Mahadev Pandurang Patil, the Division Bench of this Court (Circuit Bench at Gulbarga now Kalaburagi) observed as under :
15. There fore , the passenger of a vehicle which is no t meant fo r public service is no t covered under this Sectio n. The said passenger in the case of a two whe eler is the pillio n ride r and in the case of three wheeler and four wheele r the occupants of such vehicle who are not carried in the said ve hicle for hire or reward. There fore , the insurance policy taken in re spect o f a ve hicle , in which they are travelling as such passenge rs are not treated as third parties and such an insurance do not co ver the risk o f such pe rsons. The reason is Sectio n 147 does not require a policy to co ver the risk to passenge rs who are not carried fo r hire or reward. T he statuto ry 23 insurance does not cover inj urie s suffe red by occupants of the vehicle who are not carried for hire or reward and the insure r canno t be held liable under the Act. The o ccupants/ passengers/ inmate s of a private vehicle do not fall within the definition of the word third party. There fore , the legal obligation arising unde r Sectio n 147 of the Act canno t be extended to an inj ury or death of the owner of the ve hicle, passe ngers in such private ve hicle or a pillio n rider in the case of a two wheeler.
Gratuitous passengers who are not carried for hire or reward in a ve hicle other than a public service vehicle , canno t be construe d as third parties.
16. I f the risk of an occupant of a car, inmate of a vehicle or passe nger in a private car, is to be co ve red, additional premium has to be paid. I f no additional premium is paid, their risk is no t covered. The statutory liability under Sections 146 and 147 of the Act has to be re ad with the te rms of the insurance policy issued under Sectio n 146 o f the Act. But that does no t prevent an insurer from entering into a co ntract o f insurance covering a risk wide r than the minimum requirement of the statute , whereby the risk to gratuitous passengers could also be covere d. A third 24 party po licy do es not cover liability to gratuitous passe ngers who are not carried for hire or reward. I f a liability o the r than the limite d liability provide d for unde r the Act is to be enhanced unde r an insurance policy, additional premium is require d to be paid. The liability is restricted to the liability arising out of the statutory requirements under Section 146 o nly.
17. In view of the authoritative prono uncement of the A pex Court holding that an occupant/ inmate/passe nger in a private car, is no t a third party, the finding recorded by the tribunal that the insurance policy issued co vers the risk o f such pe rsons and there fore the insurance company is liable to pay compensatio n amount is illegal and contrary to the law declared by the Apex Court. I n fact, in the policy, no additional premium is received by the insurance company to cove r the risk of such persons. It is clear from the termino logy used in the policy which fact is not in dispute. In one of the cases, additio nal premium is co llecte d to loading the risk of third party only, as is clear from the policy that loading was no t meant to cover risk o f inmates of a private car and there fore , merely because an additio nal 25 premium is collected unde r the said policy, it canno t be inferred that the risk o f inmates o f a car are co vered. The words are specific that the loading is do ne in orde r to cover only third party risk, it is no t a case of additional premium be ing co llecte d to cove r the risk of inmates along with third parties. Therefore , in the facts of this case, we are satisfied, as the insured has not paid additional pre mium and the insurance co mpany has no t co llecte d any additional premium, the risk of the occupants of a private car was no t cove red. Therefore , liability fo iste d on the insurance company canno t be sustained and accordingly, it is hereby se t aside.
The meaning of the expression "loading on third party premium" was explained and it was held that it was only in respect of third party that the passenger of vehicle or a Car is not a third party and hence the insurer could not be fastened or foisted with the liability.
25. Learned counsel for the respondents claimants has relied upon Amrit Lal Sood and another Vs. Smt.Kaushalya Devi Thaper and 26 others to contend that the expression 'any person' would include the occupant of a Car who gratuitously travels in the Car by referring to Section II(1)(a) of the policy. The said judgment has been considered in the case of Balakrishnan at Paragraph No.15. It is also been referred to in Paragraph No.8 of Tilak Singh's and after making reference to the decision in Tilak Singh's case, analogy of the pillion rider of a motorcycle the risk of the pillion rider of a motorcycle not being covered under an act policy has been expanded to apply to a passenger or inmate of a car. In the circumstances, we place reliance on the recent dictum of the Hon'ble Supreme Court and hold that Ex.P1-policy did not cover the risk of the passengers of the Maruti 800 Car in question. Therefore, the Tribunal was not right in fastening the liability to satisfy the award on the Insurance Company. Hence, the appeal filed by the insurer is allowed.
27
26. The amount in deposit to be refunded to the appellant/Insurance Company. Accordingly, Point No.1 is answered in favour of the insurance company.
27. Before parting with this point, we note that under Section 147 of the Act only the risk of a third party is covered and it is a statutory liability or coverage of a statutory risk. The same would include the inmates of a public service vehicle. But as far as private service vehicle is concerned, there is no compulsory coverage of the passengers of a private service vehicle. That is a matter of contract between the insurer and the owner of the vehicle. In such circumstances, it is the duty of the insurer to make known to the owner of the vehicle, the different kinds of risks which could be covered apart from statutory risks. If such information is disclosed to the owner of the vehicle, it would be left to the choice of or an 28 option to the owner of the vehicle to pay additional premium to cover the risk de hors statutory coverage. We also think that having regard to the increasing number of road traffic accidents particularly on highways as well as on the bye lanes in cities and in country side, the increasing number of vehicles that are plying as well as the increase in the volume of road traffic and having regard to the deaths and serious injuries that occur on Indian roads, it is time that the coverage of the risk of a passenger of a private service vehicle is made a compulsory or a statutory coverage, in the same manner as the risk of an inmate or a passenger of public service vehicle is covered under Section 147 of the Act.
28. As far as Point No.2 is concerned, it relates to the compensation awarded by the 29 Tribunal and the enhancement sought by the respondents-claimants herein. The detailed narration of contentions need not be reiterated.
29. The grievance of the respondents- claimants is two-fold: first, is with regard to award of compensation on the head of loss of dependency and the second, is on the conventional heads.
30. As far as loss of dependency is concerned, the contention of learned counsel for the respondents-claimants is that the deceased Kallappa was earning a sum of Rs.6,000/- per month as he was working as a driver. However, it is noted that the accident has occurred on 14.07.2004. There is no evidence established that the notional income of a driver could be Rs.6,000/- per month in the year 2004. In the absence of any corroborative evidence, the notional income could be assessed at Rs.5,000/- 30 per month instead of Rs.3,000/- assessed by the Tribunal which, in our view, is on the lower side and which was normally assessed for an unskilled labourer. Having regard to the latest dictum of the Hon'ble Supreme Court in the case of Pranay Sethi at least 40% of the monthly earning has to be reckoned for the purpose of future prospects. If Rs.5,000/- is the monthly income and Rs.2,000/- is the future prospects, the total income would be Rs.7,000/-. 1/4 t h was deducted towards personal expenses of the deceased which is Rs.1,750/-. Consequently, the balance amount of Rs.5,250/- must be multiplied by '12' the and multiplier '15' which is the appropriate multiplier applicable to the case since the age of deceased was 40 years. Consequently, the award of compensation on the head of loss of dependency would be Rs.9,45,000/-. In addition, a sum of Rs.40,000/- is awarded towards loss of consortium, a sum of Rs.15,000/- each towards loss of estate and 31 transportation of the dead body and obsequies ceremony and Rs.60,000 in toto towards loss of love and affection in respect of respondent Nos.2 to 5 are concerned. Thus, the total compensation is Rs.10,75,000/- instead of Rs.3,90,000/- as assessed by the Tribunal, which is as under:-
Sl. Amount In
Particulars
No. Rs.
1 Loss of dependency 9,45,000/-
2 Loss of consortium 40,000/-
3 Loss of Estate 15,000/-
4 Transportation of dead 15,000/-
body and obsequies
ceremony
5 Loss of love and affection 60,000/-
in respect of respondent
Nos.2 to 5
TOTAL 10,75,000/-
The enhanced compensation is Rs.10,75,000
- Rs.3,90,000 = Rs.6,85,000/-.
31. The enhanced compensation shall carry interest @ 6% per annum from the date of filing of the claim petition till realization. The respondent- owner is solely responsible to satisfy the award as 32 the appeal filed by the Insurance Company has been allowed in the aforesaid terms.
32. The enhanced compensation shall be apportioned at the rate of 40:15:15:15:15 respectively to the cross-objectors. Out of the said amount, a sum of Rs.2,00,000/- shall be deposited by the first cross-objector in her name for an initial period of ten years. She shall be entitled to draw periodical interest on the said deposit and the balance amount shall be released to her. As far as the cross-objector Nos.2 to 5 are concerned, 50% of the amount awarded to them shall be deposited in the fixed deposit for an initial period of five years and the. The balance amount shall be released to them. The cross-objection is allowed in part in the aforesaid terms.
33. In the result, M.F.A. No.21555 of 2010 filed by the insurance company is allowed. The liability to satisfy the award is fastened on the 33 owner of the vehicle. M.F.A. Crob. No.748/2011 is allowed in part. The compensation now awarded, after enhancement, shall be paid by the owner of the offending vehicle i.e., respondent No.1 before the Tribunal.
34. The Additional Registrar General of this Court shall send a copy of this judgment to Insurance Regulatory and Development Authority and also to the Secretary, Department of Surface, Government of India.
Sd/-
JUDGE Sd/-
JUDGE E M/ -