Karnataka High Court
Smt Kamakshi vs Sri T R Kumar on 22 November, 2012
Author: N.K.Patil
Bench: N.K. Patil
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22ND DAY OF NOVEMBER, 2012,
: BEFORE :
THE HON'BLE MR. JUSTICE N.K. PATIL
M.F.A.NO.7381 OF 2010 (MV)
C/W
M.F.A.NO. 8806 OF 2009 (MV)
M.F.A.NO.7381 OF 2010 (MV)
Between:
1. Smt. Kamakshi,
W/o. Late Shankaregowda,
Aged about 40 years.
2. Dinesh,
Aged 23 years,
S/o. Late Shankaregowda.
3. Divya,
(died on 23/01/2010,
Therefore not impleaded)
4. Smt. Laxmamma,
W/o. Late Shakegowda,
Aged about 63 years.
All are permanent R/o. Niluvagilu,
Ramenahalli Village,
Hunsur Taluk,
Kiragunda Village, Nanjangud Taluk,
And also R/at. C/o. Putta,
S/o. Chikkamadaiah,
R/at. Kergalli Village, Bogadi P.O,
2
Mysore Taluk.
... Appellants
(By Smt. Suma Kedilaya, for
Shri. V. Padmanabha Kedilaya)
And:
1. Sri. T.R.Kumar,
S/o. Rajegowda,
R/o. Thippalapura Village,
Gavadagere Hobli, Hunsur Taluk,
(Owner and insurer of goods tempo
No.KA-45/62)
2. The Oriental Insurance Co., Ltd.,
D.O.I, Tejas Complex,
I Floor, Sayyaji Rao Road,
Mysore-1.
... Respondents
(By Shri. V.Narayana Swamy, Advocate for R2;
Notice to R1 dispensed with v/o. dated 22/11/2011)
******
This MFA is filed U/S 173(1) of MV Act against the
Judgment and Award dated: 03/09/2009 passed in MVC No.
139/2007 on the file of the Presiding Officer, Fast Track
Court, Member, Additional Motor Accident Claims Tribunal,
Mysore, partly allowing the claim petition for compensation
and seeking enhancement of compensation.
M.F.A.NO. 8806 OF 2009 (MV)
Between:
Oriental Insurance Co., Ltd.,
D.O.I, Tejas Complex,
I Floor, Sayyaji Rao Road,
Mysore-1.
By Oriental Insurance Co., Ltd.,
Regional Office, No.144,
No.44/45, Leo Shopping Complex,
3
Residency Cross Road,
Bangalore-25.
By its Manager.
... Appellant
(By Sri. O.Mahesh, Advocate)
And:
1. Smt. Kamakshi,
W/o. Late Shankaregowda,
Aged about 39 years.
2. Dinesh,
Aged 22 years,
S/o. Late Shankaregowda.
3. Divya,
Aged 18 years,
D/o. Late Shankaregowda.
4. Laxmamma,
W/o. Late Shenkaegowda,
Aged about 62 years.
All R/o. Niluvagilu,
Ramenahalli Village,
Hunsur Taluk,
And also C/o. Seetharamegowda,
Near milk Dairy,
Koorgalli Village,
Belavadi Post, Mysore Taluk.
5. T.R.Kumar,
Major,
S/o. Rajegowda,
R/o. Thippalapura Village,
Gavadagere Hobli, Hunsur Taluk.
... Respondents
(By Smt. Suma Kedilaya, for Shri. V. Padmanabha Kedilaya,
Advocate for R1, R2 & R4;
R5 served)
*****
4
This MFA is filed U/S 173(1) of MV Act against the
Judgment and Award dated: 03/09/2009 passed in MVC No.
139/2007 on the file of the Presiding Officer, Fast Track
Court-I, Member, Additional Motor Accident Claims
Tribunal, Mysore, awarding a compensation of `4,70,000/-
with interest at 6% p.a. from the date of petition till
payment.
These MFAs. coming on for Hearing, this day,
the Court delivered the following:
JUDGMENT
These two appeals respectively by the claimants and the Insurer are directed against the same judgment and award dated 3rd September 2009, passed in MVC No.139/2007, by the Presiding Officer, Fast Track Court-I, Member, Additional Motor Accident Claims Tribunal, Mysore, (for short, 'Tribunal').
2. While the claimants have filed the appeal seeking enhancement of compensation on the ground that, the compensation awarded by Tribunal in their favour is inadequate and needs to be enhanced; the Insurer has filed the appeal seeking to set aside the liability fastened on it and for reduction of compensation, on the ground that the quantum of 5 compensation awarded by Tribunal is on the higher side.
3. The facts in brief are that, the claimant No.1 is the wife, claimant Nos.2 and 3 are the children and claimant No.4 is the mother of deceased Shankaregowda. They filed the claim petition under Section 166 of the Motor Vehicles Act, contending that, at about 9:10 P.M, on 19-01-2007, when the deceased had carried Tobacco bales by his bullock cart to Katttemalavadi Tobacco Board, after unloading tobacco bales, and returning to his village by bullock cart and proceeding on Hanagodu road, between Niluvagilu and Ramenahally village, at that time, a vehicle bearing Registration No.KA-45/62 came in a rash and negligent manner and dashed against his bullock cart, which resulted in the death of both the bullocks, complete damage to the bullock cart and grievous injuries to the rider of the bullock cart on vital parts of the body. Immediately, he was shifted to General Hospital, Hunsur, for first-aid and thereafter on medical advise, 6 shifted to B.G.S. Apollo Hospital, Mysore, where he took treatment as in-patient for about two days and thereafter for better treatment, shifted to Holds Worth Memorial Hospital, Mysore. Unfortunately, in spite of the best medical treatment, he could not recover and he succumbed in the said Hospital on 08-03-2007 after about one and half months.
4. It is the case of the claimants that, the deceased was aged about 46 years and was running the bullock cart on hire basis and was hale and healthy prior to the accident. On account of the untimely death of the deceased, the first claimant has lost her life partner, the children have lost the love and affection, inspiration and guidance and the mother has lost the social, financial and moral support and therefore, they have to be compensated reasonably.
5. On account of the death of the deceased, the claimants filed the claim petition before the Tribunal, seeking compensation against the Owner and Insurer of the offending vehicle. The said claim petition had come 7 up for consideration before the Tribunal on 3rd September, 2009. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding a sum of `4,70,000/- under different heads, with 6% interest per annum, from the date of petition till the date of payment. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the claimants are in appeal before this Court, seeking enhancement of compensation; whereas the Insurer is in appeal seeking to set aside the liability fastened it, on the ground that the driver of the Goods Tempo did not possess a valid Driving Lincence and there was no authorization to drive a transport vehicle as required under Section 3 of the Motor Vehicles Act.
6. I have gone through the grounds urged in the memorandum of appeal filed by both claimants and Insurer and also the impugned judgment and award passed by Tribunal and heard the learned counsel appearing for the claimants and the insurer. 8
7. After hearing learned counsel for the parties, after careful perusal of the judgment and award passed by the Tribunal and after going through the original records made available, the points that arise for my consideration in these two appeals are:
I] Whether the Tribunal is justified in fastening the liability on the Insurer?
II] Whether the quantum of compensation awarded by Tribunal is just and reasonable?
Re-Point I] : It is seen that the occurrence of accident and the resultant death of the deceased are not in dispute. In this case, the grievance of the Insurer is that, the driver of the offending vehicle did not possess a valid driving licence as on the date of accident and that he had no authorization to drive a Transport vehicle as stipulated under Section 3 of the Motor Vehicles Act. Further, he submits that in spite of service of notice on the owner he remained absence and treated ex-parte and did not even comply with the 9 provision of Section 158(6) of the Act, wherein the owner is liable to forward the copy of the report received from the concerned Police Officer within thirty days to such Claims Tribunal and Insurer. Therefore, he vehemently submits that, in the absence of such compliance, the Tribunal is not justified in fastening the liable on the Insurer to satisfy the award.
The said submission and stand of the Insurer cannot be accepted for the simple reason that it is not in dispute that as on the date of accident, the driver of the vehicle was in fact holding a valid Driving licence, but did not have licence to drive a light goods/transport vehicle. As held by the Apex Court in catena of decisions and also this Court, including the decisions of the Gowhathi High Court reported in 2005 (3) TAC 627 and 2006(1)TAC 923, 2009 Kar.MAC 229, 2209 (3) TAC 118 (Madhya Pradesh), it can be seen that, the driver who had valid licence to drive the light motor vehicle was authorized to drive light goods vehicle as well. The Tribunal, after critical evaluation of the oral and 10 documentary evidence coupled with the citations referred above, has dealt with the said aspect in detail and recorded a finding of fact that the decisions cited supra are squarely applicable to the case on hand and came to the conclusion that in the light of the aforesaid decision, the Insured has contravened no conditions of insurance policy and the insurance company is jointly and severally liable to indemnify the compensation to the claimants. I find no infirmity or illegality in the said decision of the Tribunal, in fastening the liability on the Insurer and I uphold the same.
Re-Point II] : So far as the quantum of compensation awarded by Tribunal is concerned, it can be seen that the Tribunal has erred in not assessing reasonable income of the deceased. As sum of `3,000/- per month assessed by Tribunal is on the lower side and liable to be re-assessed. The deceased was aged about 46 years and running the bullock cart on hire basis, earning quite a reasonable sum. The accident is of the year 2007. Therefore, having regard 11 to the age, avocation, number of dependents and also the year of accident, I re-assess the income of the deceased at `4,500/- per month.
8. Further, as per the decision of the Hon'ble Apex Court in the case of Santosh Devi Vs. National Insurance Company Limited and others (Civil Appeal No.3723/2012, arising out of S.L.P.(C)No.24489/2010), I have to add 30% to the income of the deceased towards future prospects.
9. In the case on hand, admittedly, the deceased was running a bullock cart. I have re-assessed the monthly income at `4,500/-, to meet the ends of justice. Therefore, in view of the judgment of the Hon'ble Apex Court in Santosh Devi Vs. National Insurance Company Ltd. and others (supra), I add 30% to the monthly income of the deceased, towards future prospects. Accordingly, the total monthly income would be `5,850/- (`4,500/- + `1,350/-). As the deceased was aged about 46 years, the proper multiplier applicable is '13' as per the decision of the Hon'ble Apex Court Sarla 12 Verma's case (2009 ACJ 1298) as rightly adopted by Tribunal. Even though the number of dependents are four, the son is a major. Therefore, I treat the number of dependents as three and deduct 1/3rd (i.e. `1,950/-) towards the personal expenses of the deceased. Accordingly, if 1/3rd (i.e. `1,950/-) is deducted from `5,850/- towards his personal expenses, the net income would be `3,900/- per month. Thus, the compensation towards loss of dependency would work out to `6,08,400/- (i.e. `3,900/- x 12 x'13') as against `3,12,000/- awarded by Tribunal.
10. Further, the Tribunal has erred in awarding a sum of `43,000/- towards conventional heads. The same is on the lower side. As per the decision of the Apex Court in Sarla Verma's case (supra), I award a sum of `45,000/- towards conventional heads, such as loss of consortium, loss of estate, loss of love and affection and transportation and funeral expenses as against `43,000/- awarded by Tribunal. 13
11. Further, it can be seen that the Tribunal has awarded a sum of `1,00,000/- towards medical expenses and a sum of `15,000/- towards conveyance, nourishing food and attendant charges, as the deceased survived for a period of more than fifty days before succumbing to the grievous injuries sustained in the road traffic accident. The same is just and proper and I uphold the same. Thus, the total compensation would work out to `7,68,400/- as against `4,70,000/- awarded by Tribunal, with interest at 6% per annum, from the date of petition till the date of realization.
12. In the light of the facts and circumstances of the case, as stated above, the appeal filed by the Insurer is disposed of and the appeal filed by claimants is allowed in part. The impugned judgment and award dated 3rd September 2009, passed in MVC No.139/2007, by the Presiding Officer, Fast Track Court-I, Member, Additional Motor Accident Claims Tribunal, Mysore, is hereby modified, awarding a sum of `2,98,400/-, with interest at 6% per annum, from the 14 date of petition till the date of realization, in addition to the compensation awarded by Tribunal.
The Insurer is directed to deposit the enhanced compensation of `2,98,400/-, with interest thereon at 6% per annum, within three weeks from the date of receipt of copy of the judgment.
However, liberty is reserved to the Insurer to recover the compensation from the owner of the offending vehicle, if there is breach of the terms and conditions of the policy, if it is so advised or need arise, in accordance with law.
Immediately on deposit by the Insurer, a sum of `1,00,000/- with proportionate interest shall be deposited in the name of the first claimant-wife of deceased, in Fixed Deposit, in any scheduled/ Nationalized Bank, for a period of ten years, renewable by another ten years, with liberty reserved to her to withdraw the periodical interest.
A sum of `1,00,000/- with proportionate interest shall be deposited in the name of the fourth claimant- 15 mother of deceased, in Fixed Deposit, in any scheduled/ Nationalized Bank, for a period of three years, renewable by another three years, with liberty reserved to her to withdraw the periodical interest.
Remaining sum of `98,400/- with proportionate interest shall be released in favour of the claimants No.1, *2 and 4, in equal proportion, immediately.
Office to draw award, accordingly.
The statutory amount in deposit by the Insurer is directed to be transmitted to the jurisdictional Tribunal, forthwith.
SD/-
JUDGE BMV* *corrected vide chamber order dated 01/03/2013