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Karnataka High Court · body

2013 DIGILAW 550 (KAR)

Kempegowda v. Seena, Mandya District

2013-04-22

N.K.PATIL

body2013
Judgment 1. These two appeals, respectively by the claimants and the Insurer are directed against the same judgment and award dated 29th July 2009, passed in MVC No.40/2007 (MVC No.1037/2007), by the Civil Judge(Sr.Dn) and JMFC, K.R.Pet, (for short, 'Tribunal'). 2. While the claimants have filed the appeal seeking enhancement of compensation on the ground that, the compensation awarded by Tribunal is unjust, improper and needs to be enhanced, the Insurer has filed the appeal, seeking to set aside the direction issued by Tribunal to indemnify the award, on the ground that there is violation of the terms and conditions of policy and hence, they are not liable to indemnify the award passed by Tribunal. 3. The facts in brief are that, the claimants are the parents of the deceased Boregowda. They filed the claim petition under Section 166 of the Motor Vehicles Act, contending that, at about 4:15 P.M., on 11-06-2006, when the deceased was travelling in Hero Honda Motor cycle, bearing Registration No.KA-14/Q-6608, on Akkihebbal-K.R. Pet Road, near land of Shivananjaiah of Haripura, at that time, a Good Carrier Tempo bearing Registration No.KA-11/6058, being driven by its driver, in a rash and negligent manner, came and dashed against the Hero Honda. Due to the impact, the deceased fell down on the road and sustained multiple injuries to head and other parts of the body and died on the spot. 4. Smt. A.R. Sharadamba, learned counsel appearing for claimants, at the outset vehemently submitted that, the Tribunal has grossly erred in not assessing the reasonable income of the deceased, for the reason that the deceased was the only son of the claimants and they were entirely dependent on his income and because of the untimely death of the deceased, they are deprived of seeing his bright future and progress and have to face social and financial insecurity in future. She further submitted that the deceased was a young and energetic boy, aged about 26 years, doing milk vending business and also coolie work, earning not less than Rs.20,000/- per month. Therefore, the Tribunal ought to have assessed reasonable income of the deceased. A sum of Rs.3,000/- per month assessed by Tribunal is on the lower side and liable to be re-assessed. Therefore, the Tribunal ought to have assessed reasonable income of the deceased. A sum of Rs.3,000/- per month assessed by Tribunal is on the lower side and liable to be re-assessed. She also submitted that in the light of the decision of the Hon'ble Apex Court in Civil Appeal No.4646/2009 c/w. Civil Appeal No.4647/2009, in the case of Reshma Kumari and others Vs. Madan Mohan and another, the age of the deceased has to be taken into consideration for adopting the multiplier for calculating the compensation payable towards loss of dependency. Therefore, she submits that the impugned judgment and award passed by Tribunal is liable to be modified by awarding just and reasonable compensation for the death of the deceased in the road traffic accident. 5. As against this, learned counsel appearing for Insurer, inter alia vehemently submitted that the Tribunal grossly erred in awarding the compensation and also fastening the liability on it to indemnify the award, for the reason that the driver of the Goods Carrier Tempo bearing Registration No.KA-11/6058 did not possess the valid and effective Driving Licence for driving the said vehicle. Further, she submitted that as per oral evidence of RW1, the driver possessed only the driving licence in respect of Light Motor Vehicle (LMV) and not the Driving Licence to drive the transport/goods vehicle. Therefore, in view of violation of the terms and conditions of the insurance policy, the Insurer cannot be directed to indemnify the compensation awarded by Tribunal. This aspect of the matter has not been looked into nor considered nor appreciated by Tribunal in a proper perspective, and therefore, the direction issued by Tribunal to the Insurer to indemnify the award passed by it is liable to be set aside, by modifying the impugned judgment and award. 6. On account of the death of the deceased, the claimants filed the claim petition before the Tribunal, under Section 166 of the Motor Vehicles Act, seeking compensation of a sum of Rs.20.42 lakhs against the Insurer and owner of the offending vehicle. The said claim petition had come up for consideration before the Tribunal on 29th July, 2009. 6. On account of the death of the deceased, the claimants filed the claim petition before the Tribunal, under Section 166 of the Motor Vehicles Act, seeking compensation of a sum of Rs.20.42 lakhs against the Insurer and owner of the offending vehicle. The said claim petition had come up for consideration before the Tribunal on 29th July, 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 compensation of a sum of Rs.2,13,000/-, under different heads, with 6% interest per annum, from the date of petition till the date of realisation. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the claimants have filed the appeal before this Court, seeking enhancement of compensation and being aggrieved by the liability fastened on the Insurer, the Insurer is in appeal, seeking to set aside the same. 7. I have heard learned counsel for claimants and learned counsel appearing for Insurer for considerable length of time and gone through the memorandum of appeals filed by claimants as well as Insurer. 8. After hearing learned counsel for the claimants and Insurer and after careful perusal of the impugned judgment and award passed by the Tribunal, the points that arise for my consideration are: I] Whether the Tribunal is justified in fastening the liability on the Insurer? II] Whether the compensation awarded by Tribunal is just and reasonable? Re-point I]: The occurrence of accident and the resultant death of the deceased are not in dispute. The Tribunal, after assessing the oral evidence of PWs 1 and 2 and RW.1 on behalf of Insurer, coupled with the documentary evidence at Exs.P1 to P25 and R1 to R6, has recorded a specific finding at paragraph 9 of its judgment, holding that the Insurer has not cross examined and as per the documentary evidence such as Ex.P22-FIR, Ex.P23- charge sheet, Ex.P1-spot Mahazar, Ex.P2-IMV report, Ex.P24-P.M. Report, the police have registered the case against the driver of the Goods Carrier Tempo bearing Registration No.KA-11/6058 and fixed the responsibility on the driver of the Goods Tempo. Further, as per Ex.P2, the accident is not on account of any mechanical defects of both the vehicles. Further, as per Ex.P22- charge sheet is filed against the driver of the goods Tempo. 9. Further, as per Ex.P2, the accident is not on account of any mechanical defects of both the vehicles. Further, as per Ex.P22- charge sheet is filed against the driver of the goods Tempo. 9. Further, so far as the specific stand of the Insurer that the driver of the Goods Tempo did not possess a valid and effective Driving Licence to drive that particular type of vehicle is concerned, it can be seen that the Tribunal has dealt with the said aspect at paragraph 10 of its judgment and held that regarding the said aspect, the Insurer has not adduced any supportive evidence and thus, it answered the point answering the said issue in the negative. Further, in support of the case of the Insurer, it relied upon several decisions. But, after going through each one of the said decisions, the Tribunal held that the said decisions are not applicable to the present case on hand and held that the driver of the tempo Goods vehicle was having an effective and valid licence to drive the said particular type of vehicle and the policy conditions are not violated by the owner of the offending vehicle. Therefore, it held that the Insurer is liable to indemnify the award passed by it. The said reasoning given by Tribunal is based on the oral and documentary evidence available on file. Hence, I do not find any error or unreasonableness in the said reasoning recorded by Tribunal at paragraphs 9 to 16 of its judgment. Hence, interference in the said finding is uncalled for and I confirm the said finding, holding that the Insurer is liable to indemnify the award. Re-point II]: So far as the quantum of compensation awarded by Tribunal is concerned, it is seen that, the Tribunal seriously erred in not awarding reasonable compensation for the death of the deceased in the road traffic accident. The Tribunal erred in not assessing the monthly income of the deceased in a proper perspective. It is stated that the deceased was doing milk vending business and also working as agricultural coolie, earning a sum of Rs.20,000/- per month. The same may be exaggeration. But, the income of Rs.3,000/- per month assessed by Tribunal is also on the lower side and needs to be re-assessed. It is stated that the deceased was doing milk vending business and also working as agricultural coolie, earning a sum of Rs.20,000/- per month. The same may be exaggeration. But, the income of Rs.3,000/- per month assessed by Tribunal is also on the lower side and needs to be re-assessed. Therefore, having regard to the age, avocation of milk vending and also agricultural coolie, and the year of accident, being 2006, I re-assess the monthly income of the deceased at Rs.4,000/-, to meet the ends of justice. Since the deceased was a bachelor, 50% has to be deducted towards the personal and living expenses of the deceased. Accordingly, if 50% (i.e. 2,000/-) is deducted from the total income of Rs.4,000/-, the net income comes to Rs.2,000/- per month. As rightly pointed out by the learned counsel appearing for claimants, the age of the deceased has to be taken into consideration for adopting multiplier as per the decision of the Honb'le Apex Court in the case of Reshma Kumari and others Vs. Madan Mohan and another in Civil Appeal No.4646/2009 c/w. Civil Appeal No.4647/2009. Accordingly, the multiplier applicable to the case of deceased, he being aged 26 years, is 17' as per the decision of the Hon'ble Apex Court in Sarla Verma's case ( 2009 ACJ 1298 ). Accordingly, I re-determine loss of dependency at Rs.4,08,000/- (i.e. Rs.2,000/- x 12 x 17') as against Rs.1,98,000/- awarded by Tribunal. 10. Further, the Tribunal grossly erred in awarding only a sum of Rs.15,000/- 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 Rs.45,000/- towards conventional heads, such as loss of estate, loss of love and affection and transportation and funeral expenses as against Rs.15,000/- awarded by Tribunal. 11. Thus the total compensation would work out to Rs.4,53,000/- as against Rs.2,13,000/-. Thus, there would be an enhancement of compensation of Rs.2,40,000/- 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 claimants is allowed in part and the appeal filed by the Insurer is dismissed as devoid of merit. 12. In the light of the facts and circumstances of the case, as stated above, the appeal filed by claimants is allowed in part and the appeal filed by the Insurer is dismissed as devoid of merit. The impugned judgment and award dated 29th July 2009, passed in MVC No.40/2007 (MVC No.1037/2007), by the Civil Judge(Sr.Dn) and JMFC, K.R.Pet, is hereby modified, awarding compensation of a sum of Rs.2,40,000/-, with interest at 6% per annum, from the 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 with interest within three weeks from the date of receipt of a copy of this judgment and award. Immediately on such deposit by the Insurer, a sum of Rs.1,00,000/- each with proportionate interest shall be deposited in the names of each appellant, in Fixed Deposit, in any scheduled/Nationalized Bank, for a period of ten years, renewable by another five years, with liberty reserved to them to withdraw their respective periodical interest. Remaining sum of Rs.40,000/- with proportionate interest shall be released in favour of both the appellants, in equal proportion, immediately. The amount in deposit by the Insurer is directed to be transmitted to the jurisdictional Tribunal, forthwith. Office to draw award, accordingly.