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2011 DIGILAW 1215 (KAR)

Alamelamma v. H. M. Aananda Reddy

2011-12-15

N.K.PATIL, V.SURI APPA RAO

body2011
Judgment :- N.K. PATIL J. 1. This appeal by the appellant claimant is directed against the impugned judgment and award dated 08/12/2006 passed in MVC No.1856/2005 by the 14th Additional Judge, court of small Causes and Member, Motor Accident Claims Tribunal, Metropolitan Area, Bangalore (SCCH-10), (Hereinafter referred to as ‘Tribunal’ for short]. 2. The Tribunal by its Judgment and award has awarded a sum of Rs.2,24,000/- under different heads with interest at 6% per annum from the date of petition till the date of deposit fastening the liability on the first respondent, as against the claim of the claimants for a sum of Rs.12,00,000/-, on account of the death the deceased Sri Raghu @ Raghavendra, in the road traffic accident. 3. In brief, the facts of the case are: The appellant No.1 is the mother of the deceased Sri. Raghu @ Raghavendra and she filed a claim petition before the Tribunal under Section 166 of M.V. Act. claiming compensation of Rs.12,00,000/- against the respondents. On account of the death of the deceased in the road traffic accident, contending that, on 24.12.2003 at about 7.30 p.m. when the deceased was travelling in a minidoor goods auto bearing No.KA.04.A.7336 on Kolar-Bangalore Road and when it came near Mettubande Gate, at the time, the driver of the said vehicle drove the same in a rash and negligent manner, due to which, the vehicle fell down on left side of the road, deceased also fell down and caused injuries all over his body and he succumbed to the injuries. It is the further case of the appellant that, deceased was aged about 24 years, he was hale and healthy prior to the accident, working as Delivery boy and earning Rs.6,000/- per month and looking after the welfare of the family and due to his untimely death she has undergone mental shock and agony as she has lost her only son and she has no other source of income. 4. The said claim petition had come up for consideration before the Tribunal after appreciating the oral and documentary evidence and other material available on file, has allowed the claim petition in part and awarded the compensation of Rs.2,24,000/-under different heads with interest at 6% p.a., from the date of petition till the date of deposit, fastening the liability on the first respondent. 5. 5. Being dis-satisfied with the quantum of compensation awarded by the Tribunal and for not fastening the liability on the Insurer, the appellant has presented this appeal. 6. We have heard the learned counsel appearing for the appellants and learned counsel for second respondent-Insurance Company. 7. Learned counsel for the appellant, at the outset submitted that, the Tribunal has erred in assessing the income of the deceased at Rs.3,000/- per month instead of Rs.6.000/-as claimed by the appellant. Further, He submitted that, the Tribunal has erred in placing the reliance on the judgment of the Supreme Court reported in 2005 ACJ 572 (M.V. Jayadevappa and others Vs. Oriental Fire & General Insurance Co., Ltd., and others), wherein, the claimant was an unauthorized passenger in the said Vehicle and therefore, the Apex Court has held that, the good vehicle could not have carried passengers and exonerated the Insurance Company. To substantiate the said submission, he placed reliance on the judgment of this Court in the case ofthe Divisional Manager, the new India Insurance Co., Ltd., Vs Sri Shashidhara and another Reported in ILR 2008 Karnataka 4414, wherein, this Court has held that Rule clearly says that one person other than the driver can be carried in the vehicle, the claimant was accompanying the vehicle as the hirer, and there was no infirmity in the claim having been allowed. Therefore, he submitted that the impugned judgment and award is liable to be modified by enhancing just and reasonable compensation and the Insurer may be directed to indemnify the award amount and by exonerating the liability fastened on the owner of the offending vehicle, 8. As against this, learned counsel for the Insurer, submitted, the Tribunal after considering the oral and documentary evidence available on file has awarded just and reasonable compensation and therefore, interference by this Court is not called for. 9. After hearing the learned counsel appearing for both the parties, after careful perusal of the material available on file, including the impugned judgment and award passed by the Tribunal, the points that arise for our consideration are: (i) Whether the quantum of compensation awarded by the Tribunal is just and reasonable? (ii) Whether the Tribunal is justified in fastening the liability on the owner of the offending vehicle? Regarding Point No. 1: 10. The occurrence of the accident and the resultant death of the deceased are not in dispute. (ii) Whether the Tribunal is justified in fastening the liability on the owner of the offending vehicle? Regarding Point No. 1: 10. The occurrence of the accident and the resultant death of the deceased are not in dispute. It is also not in dispute that, deceased was aged about 24 years, working as Delivery Boy in a goods vehicle and when he was returning from Kolar to Bangalore he met with an accident and died due to the injuries sustained by him. It is the case of the appellant that, deceased was her only son and he was earning Rs.6,000/- per month and looking after her. Further, it emerges that the Tribunal has assessed the income of the deceased at Rs.3,000/-per month, which is on lower side and therefore, it needs to be modified. Having regard to the age and occupation of the deceased and the year of the accident, we re-asses his income at Rs.4,000/- per month. Out of which, if 50% (Rs.2,000/-) is deducted towards the personal expenses of the deceased since he was a bachelor at the time of his death, his net income comes to Rs.2,000/- month. Accepting the Multiplier of ‘11’ adopted by the Tribunal taking the age of the appellant-mother was aged about 55 years at the time of the death of the deceased, we redetermine the loss of dependency at Rs.2,64,000/- (Rs.2,000/- x 12 x 11) instead of Rs.1,98,000/- awarded by the Tribunal and accordingly, it is awarded. 11. Having regard to the facts and circumstances of the case, we award a sum of Rs.45,000/- towards conventional heads, such as, loss of love and affection, loss of estate and towards transportation and funeral expenses. In all, the appellant is entitled to a total compensation of Rs.3,09,000/- instead of Rs.2,24,000/- awarded by the Tribunal. There would be an enhancement of Rs.85,000/- with interest at 6% p.a., from the date of petition till its realization. Regarding Point No.2: 12. After evaluation of the original records available on file, it emerges from Ex.R2-Insurance policy produced by the Insurer that, the policy covers only two persons i.e. one driver and one passengers and as rightly pointed out by the learned counsel for the claimant, this court in the case of the Divisional Manager, the New India Insurance Company Limited Vs. After evaluation of the original records available on file, it emerges from Ex.R2-Insurance policy produced by the Insurer that, the policy covers only two persons i.e. one driver and one passengers and as rightly pointed out by the learned counsel for the claimant, this court in the case of the Divisional Manager, the New India Insurance Company Limited Vs. Shashidharan and another reported in ILR 2008 Karnataka 4414, has held that, Rule clearly says that one person other than the driver can be carried in the vehicle and the claimant was accompanying the vehicle as the hirer and there was no infirmity in the claim having been allowed. Taking into consideration the ratio of the law laid down by this Court and also having regard to the terms and conditions of the policy, we are of the considered view that, it is the specific case of the appellant that, deceased was working as delivery boy in the goods vehicle and he was returning to Bangalore after delivering the Bengal Gram flour at Kolar and Bangarpet along with owner cum driver of the goods vehicle. Further, it emerges from the policy that Insurer has collected Rs. 100/- towards Compulsory PA to owner-Driver and Rs.50/- towards legal liability for paid driver/cleaner. In this case, deceased was traveling as a delivery boy and therefore, insurer is liable to indemnify the award amount. Therefore we are of the considered view that, the Tribunal is not justified in fastening the liability on the owner of the offending vehicle exonerating the insurer and therefore, it is liable to be modified. Further, it is significant to note that, the Tribunal has erred in placing reliance on the judgment of the Apex Court in M.V. Jayadevappa’s case stated supra. There is no dispute regarding the law laid down by the Apex Court in the said case, but the facts and circumstances of the said case is entirely different from the facts and circumstances of this case. 13. For the forgoing reasons, the appeal filed by the appellant is allowed in part and the impugned judgment and award dated 8/12/2006 passed by the Tribunal in MVC No.1856/2005 is hereby modified, fastening the liability on the insurer of the vehicle and awarding the compensation of Rs.3,09,000/- instead of Rs.2,24,000/- awarded by the Tribunal. 13. For the forgoing reasons, the appeal filed by the appellant is allowed in part and the impugned judgment and award dated 8/12/2006 passed by the Tribunal in MVC No.1856/2005 is hereby modified, fastening the liability on the insurer of the vehicle and awarding the compensation of Rs.3,09,000/- instead of Rs.2,24,000/- awarded by the Tribunal. There would be an enhancement of Rs.85,000/- with interest at 6% p.a., from the date of petition till its realization. The insurer is directed to deposit the entire compensation amount of Rs.3,09,000/- with interest at 6% p.a. from the date of petition till the date of realisation, within a period of three weeks from the date of receipt of a copy of this judgment and award. Out of the compensation of Rs.3,09,000/-, a sum of Rs.2,00,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled Bank, in the name of appellant for a period of five years and renewable by another five years, with liberty to her to withdraw the interest accrued on it, periodically. The remaining sum of Rs.1,09,000/-, with proportionate interest shall be released in favour of the appellant immediately, on deposit by the insurer. Office is directed to draw the award, accordingly.