Karnataka High Court
The Branch Manager - Claims vs Smt Shakunthala K V on 9 October, 2020
Author: S.Sujatha
Bench: S.Sujatha
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF OCTOBER, 2020
PRESENT
THE HON'BLE MRS. JUSTICE S.SUJATHA
AND
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
MFA.NO.7 OF 2014(MV-D)
C/W
MFA.NO.1538 OF 2014(MV-D)
IN MFA.NO.7 OF 2014
BETWEEN:
THE BRANCH MANAGER - CLAIMS
CHOLAMANDALAM MS GENERAL
INSURANCE COMPANY LIMITED
BRANCH OFFICE, OPP:TO
GURUNANAK MANDIR, ULSOOR
BANGALORE - 560 038
BY THE CLAIMS MANAGER
CHOLAMANDALAM MS GENERAL
INSURANCE COMPANY LIMITED
UNIT NO.4, NINTH FLOOR (LEVEL-06)
"GOLDEN HEIGHTS" COMPLEX
59TH 'C' CROSS
INDUSTRIAL SUBURB
RAJAJINAGAR, 4TH 'M' BLOCK
BENGALURU - 560 010
BY IT'S CLAIMS MANAGER
....APPELLANT
(BY SRI. O. MAHESH, ADVOCATE)
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AND:
1 . SMT SHAKUNTHALA K V
AGED ABOUT 44 YEAR
W/O LATE NALLAPPA REDDY V
2 . KUM N DEEPIKA
AGE 20 YEAR
D/O LATE NALLAPPA REDDY V
3 . KUM N SUKANYA, MINOR
AGED ABOUT 17 YEAR
D/O LATE NALLAPPA REDDY V
SINCE THE RESPONDENT NO.3
IS MINOR REPRESENTED BY HER
MOTHER-CUM-NATURAL
GUARDIAN, SMT.SHAKUNTHALA
4 . SRI PATEL VENKATAREDDY
S/O LATE KRISHNAPPA
AGED ABOUT 72 YEAR
ALL ARE R/AT. PEDDAPALLI VILLAGE
HOGALAGERE POST
SRINIVASAPURA TALUK
KOLAR DISTRICT - 563 101
5 . MR.G.MANJUNATHA, MAJOR
S/O GANGAPPA, R/O NO.12
AMBLIKAL VILLATE AND POST
MULBAGAL TALUK
KOLAR DISTRICT - 563 101
....RESPONDENTS
(SRI. SUGUNA .R REDDY, ADVOCATE FOR R1 TO R4
SRI. Y.H. VIJAY KUMAR, ADVOCATE FOR R5)
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THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:25.07.2013 PASSED IN MVC NO.6478/2011 ON
THE FILE OF THE VII ADDITIONAL SMALL CAUSES JUDGE,
MEMBER, MACT, COURT OF SMALL CAUSES, BANGALORE,
AWARDING COMPENSATION OF RS.20,77,800/- WITH
INTEREST @ 8%P.A. FROM THE DATE OF PETITION TILL
RELIZATION.
IN MFA.NO.1538 OF 2014
BETWEEN:
1 . SMT. SHAKUNTHALA .K .V
W/O LATE NALLAPPAREDDY .V
AGED ABOUT 44 YEARS
2 . KUM. N. DEEPIKA
D/O LATE NALLAPPA REDDY .V
AGED ABOUT 20 YEARS
3 . KUM. N. SUKANYA
D/O LATE NALLAPPA REDDY .V
AGED ABOUT 17 YEARS
4 . SRI. PATEL. VENKATAREDDY
S/O LATE KRISHNAPPA
AGED ABOUT 72 YEARS
SINCE APPELLANT NO.3 IA A MINOR
REPTD. BY HER MOTHER-CUM-NATURAL
GUARDIAN SMT. SHAKUNTHALA
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ALL ARE R/AT. PEDDAPALLI VILLAGE
HOGALAGERE POST
SRINIVASAPURA TALUK
KOLAR DISTRICT
....APPELLANTS
(BY SRI. SUGUNA .R REDDY, ADVOCATE)
AND:
1 . SRI G MANJUNATHA
S/O GANGAPPA
MAJOR IN AGE
R/AT NO.12, AMBLIKAL VILLAGE & POST
MULBAGAL TQ, KOLAR DISTRICT
2 . THE MANAGER
M/S CHOLAMANDAMALAM GENERAL INS. CO. LTD.
BRANCH OFFICE, OPP TO GURUNANAK MANDIR
ULSOOR, BANGALORE
....RESPONDENTS
(SRI. O. MAHESH, ADVOCATE FOR R2
NOTICE TO R1 IS SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:25.07.2013 PASSED IN MVC NO.6478/2011 ON
THE FILE OF THE VII ADDITIONAL SMALL CAUSES JUDGE,
MEMBER, MACT, COURT OF SMALL CAUSES, BANGALORE,
(SCCH.NO.3), PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
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THESE APPEALS COMING ON FOR FINAL HEARING,
THIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED
THE FOLLOWING:
JUDGMENT
These appeals are directed against the judgment and award dated 25.7.2013 passed in MVC.No.6478/2011 by the VII Additional Small Causes Judge and Member, MACT-III, Bengaluru. The Insurance Company has filed the appeal in MFA.7/2014 on the ground of negligence and also on quantum. The claimants have filed the appeal in MFA.1538/2014 seeking enhancement of compensation.
2. For the sake of convenience, the parties are referred to as per their ranks before the Tribunal.
3. The facts leading to the case are as under:
The claimants filed the claim petition contending that on 13.8.2011 at about 2.45 p.m. the husband of 6 the first claimant namely Nallappa Reddy was proceeding on Hero Honda Splendor bearing Regn.No.KA-05/EF-8964 along with his aunt Naremma. When they reached Vammasandra Village, Mulbagal Taluk and were waiting on the left side of the road, the driver of the offending Mahindra Goods Jeep bearing Regn.No.KA-07/A-389 driven by its driver in a rash and negligent manner came and dashed against the motor bike. In the said accident, the deceased-husband of first claimant sustained fatal injuries and was shifted to Government Hospital, Mulbagal, then to R.L.Jalappa Hospital, Kolar and thereafter to Hosmat Hospital, Bengaluru, where he succumbed to the injuries on 22.08.2011. The claimants contended that the deceased was working as a Driver in KSRTC and was drawing salary of Rs.13,073/- per month. He was the sole earning member of the family and they were totally dependant on the income of the deceased. Hence, they 7 filed claim petition claiming compensation of Rs.50,00,000/-.
The first respondent-owner on receipt of notice had appeared and filed written statement contending that the vehicle was duly insured with the second respondent-Insurance Company.
The Insurance company who was arrayed as second respondent on service of summons appeared and filed written statement specifically contending that the claim petition is bad for non-joinder of necessary parties. The driver of the offending jeep did not possess valid and effective driving licence. Further, it specifically disputed the age, income and avocation of the deceased and contended that the claim made is excessive and exorbitant.
Based on rival contention, the Tribunal framed the following issues:
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"1. Whether the petitioners prove that Nallappa Reddy. V, succumbed to injuries in an accident occurred on 13.8.2011 at about 2.45pm in Ramasandra - Mulbagal road, due to the rash and negligent driving of driver of the Mahindra Goods Jeep bearing registration No.KA-07-A-389 as alleged in the petition?
2. Whether respondent No.2 proves that driver of the Mahindra Goods Jeep bearing registration No.KA-07-A-389 did not possess valid driving licence on the date of accident?
3. Whether respondent No.2 proves that the owner of the Mahindra Goods Jeep bearing registration No.KA-07-A-389 violated the policy conditions?
4. Whether petitioners are entitled for compensation? If so, at what quantum and from whom?
5. What Order or Award?"
The claimants in support of their case, examined claimant No.1 as P.W.1 and relied on documentary evidence vide Exs.P1 to P90. The Insurance company 9 examined two witnesses as R.Ws.1 and 2 and produced documentary evidence vide Exs.R1 to R3.
The Tribunal having appreciated the material on record has answered issue No.1 in the affirmative holding that the accident occurred on account of rash and negligent driving of the driver of the offending jeep.
The Tribunal while determining the compensation relied on the salary certificate as per Ex.P13 and assessed the income at Rs.12,872/-. By adding 30% towards future prospects, deducting 1/4th towards personal expenses of the deceased and applying the multiplier of 13 has awarded Rs.19,57,800/- under the head of loss of dependency. Under conventional heads, the Tribunal has awarded 1,20,000/-. The Tribunal in all awarded a sum of Rs.20,77,800/- with interest at the rate of 8% per annum from the date of petition till its realization. Being aggrieved by the same, the above 10 mentioned appeals are filed by both the claimants and the Insurance Company.
4. The learned counsel for Insurance company would vehemently argue and contend that the Tribunal erred in not considering the negligence on the part of the deceased who was also responsible for the accident. He would further contend that the Tribunal was not justified in fastening the liability on the insurance company since the driver of the offending vehicle did not possess valid and effective driving licence and in this background, he would submit that the proposition laid in Magma General Insurance Co. Ltd., vs Nanu Ram (2018) 18 SCC 130 is referred to Larger Bench and if this Court were to come to the conclusion that the Insurance company is liable to pay and then recover, the same shall be subject to the result of the pending case before the Larger Bench of the Apex Court. This contention cannot be considered in the light of the 11 decision rendered by the Hon'ble Apex Court in The Oriental Insurance Company Limited .vs. Smt. Rinku Devi and others and connected matters disposed of on 7.9.2020.
5. Per contra, learned counsel for claimants would contend that the compensation determined by the Tribunal is on the lower side. She would contend that the deceased was hospitalized and the claimants have incurred medical expenses and accordingly, the bills are produced which are part of the record as per Ex.P14 to 37 and 38 to 90. She would submit that the Tribunal has erred in rejecting the claim towards medical expenses on the ground that the claimants being dependants cannot claim medical bill and it is the deceased alone who would have been entitled had he survived in the accident.
6. Heard the learned counsel for the Insurance company and the claimants.
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7. On re-appreciation of oral and documentary evidence, insofar as grounds urged by the counsel for Insurance company in regard to transport endorsement in the driving licence is concerned, it is no more res integra in view of the law laid down by the Hon'ble Apex Court in Mukund Dewangan .vs. Oriental Insurance Company Limited [(2017) 14 SCC 663] wherein it is held that light motor vehicle include a transport vehicle as per the weight prescribed in Section 2(21) read with Sections 2(15) and 2(48) of Motor Vehicle Act, 1988 (as amened by Amendment Act 54 of 1994). A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 Kg would be a light motor vehicle and would also include motor car or tractor or a roadroller, "unladen weight" of which does not exceed 7500 Kg. and holder of a driving licence to drive class of "light motor vehicle", as provided in Section 10(2)(d) is competent to drive a transport vehicle 13 or omnibus, the gross vehicle weight of which does not exceed 7500 Kg. without any endorsement to that effect. Admittedly, the offending vehicle is Mahindra Goods Jeep, which is a light goods transport vehicle. The driver of the offending vehicle was possessing licence to drive light motor vehicle and as such there was no breach of any policy conditions. In that view of the mater, the contention of the Insurance Company in regard to transport endorsement cannot be considered.
8. Insofar as negligence is concerned, the records clearly indicate that the driver of the offending vehicle was rash and negligent and there is clinching evidence to that effect. And as such the finding recorded on Issue No.1 would not warrant any interference by this Court.
9. Insofar as quantum is concerned, we are of the view that the Tribunal has granted fair and just compensation under the head of loss of dependency. 14 The income is assessed by the Tribunal on the basis of the salary certificate relied on by the claimants. Hence, the award under loss of dependency would remain undisturbed. However, under conventional heads, the Tribunal has awarded meager amount. By following the guidelines laid down by the Apex Court in National Insurance Company .vs. Pranay Sethi and others[2017 ACJ 2700] the claimant No.1 is entitled to Rs.40,000/- towards loss of spousal consortium, claimants 2 and 3 are entitled to Rs.40,000/- each towards parental consortium and claimant No.4 being the father is entitled to Rs.40,000/- towards filial consortium and Rs.30,000/- is awarded under the head of funeral expenses and loss of estate. Hence, the total compensation reassessed comes to 24,35,514/-, to which the claimants are entitled with interest at 6% per annum from the date of petition till its realization. 15
10. Hence, the following:
ORDER
i) The total compensation awarded by the Tribunal is modified and enhanced to Rs.24,35,514/- (Rupees Twenty four lakhs thirty five thousand five hundred fourteen only) as against Rs.20,77,800/-
which shall carry interest at the rate of 6% per annum from the date of the claim petition till its realization.
ii) The portion of the order of the Tribunal inasmuch as liability, apportionment and disbursement remains intact, however subject to the result of the decision of the Hon'ble Apex Court in an appeal pending before the larger Bench of the Apex Court.
iii) The insurance company shall deposit the amount determined as aforesaid before 16 the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order.
iv) The modified compensation amount shall be apportioned and disbursed in terms of the order of the Tribunal.
v) Appeals stand disposed of in terms of the above.
vi) Draw modified award accordingly.
Sd/-
JUDGE Sd/-
JUDGE *alb/-.