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2014 DIGILAW 585 (KAR)

YASHODAMMA v. RAMESHA G.

2014-06-12

B.SREENIVAS GOWDA, N.K.PATIL

body2014
JUDGMENT : N.K. PATIL, J. 1. This appeal by the claimants is directed against the judgment and award dated 19th August, 2010, passed in MVC No. 61 of 2009, by the Senior Civil Judge and Motor Accident Claims Tribunal, Tarikere (for short, 'Tribunal') for enhancement of compensation on the ground that, the compensation of Rs. 3,56,000/- awarded in favour of the claimants as against their claim for Rs. 25,00,000/-, is inadequate. The facts in brief are that, the claimants are the wife and major children of the deceased Gopinatha. They filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 contending that, at about 10:30 p.m., on 17-3-2009, when the deceased was coming on the left side of road near Ganapathi Pendal, at B.H. Road of Tarikere, he met with an accident on account of rash and negligent driving by the driver of Mahendra pick up Van bearing Registration No. KA-15/3506. Due to the impact, he fell down and sustained severe injuries over the head and lost consciousness and was immediately shifted to Government Hospital, Tarikere, where the Doctor gave first aid and referred to higher Centre for better treatment and subsequently he was shifted to Nanjappa Hospital, Shimoga and admitted there. At the said Hospital, CT Scan was done, which revealed multiple fractures in head. Thereafter, the deceased was shifted to Mc. Gann Hospital, Shimoga, where he was treated as in-patient from 17-3-2009 to 25-3-2009. Ultimately, he succumbed to the injuries sustained in the road traffic accident. 2. It is the case of the appellants that, the deceased was aged about 45 years and a Banana Merchant, earning more than a sum of Rs. 10,000/- per month and was hale and healthy prior to the accident. On account of the untimely death of the deceased, the appellants have lost the love and affection, inspiration and guidance, apart from social, financial and moral support and therefore, they have to be compensated reasonably. 3. On account of the death of the deceased, the appellants filed the claim petition before the Tribunal, seeking compensation against the respondents. The said claim petition had come up for consideration before the Tribunal on 19th August, 2010. 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 Rs. The said claim petition had come up for consideration before the Tribunal on 19th August, 2010. 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 Rs. 3,56,000/- 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 appellants are in appeal before this Court, seeking enhancement of compensation. 4. We have gone through the grounds urged in the memorandum of appeal and heard the learned Counsel appearing for appellants and also the Insurer, for quite sometime. 5. Learned Counsel appearing for claimants/appellants vehemently submitted that, the Tribunal grossly erred in taking the income of the deceased at only Rs. 3,000/- per month. She submits that the claimants have stated that the deceased was aged about 45 years and doing banana business, earning more than a sum of Rs. 10,000/- per month and the only earning member in the family. But, disbelieving the same, the Tribunal, without any basis has assessed the income of the deceased at only Rs. 3,000/- per month. The same is liable to be reassessed. Therefore, she submitted that, reasonable compensation may be awarded, by adopting proper multiplier and deducting 1/3rd towards the personal expenses of the deceased. Further, she submitted that the compensation awarded by Tribunal under the conventional heads is also on the lower side and liable to be redetermined, by modifying the impugned judgment and award passed by Tribunal. She also vehemently submitted that the Tribunal is also not justified in directing the owner-cum-driver of the offending vehicle to indemnify the award. To substantiate the said submission, she submitted that the policy of insurance is admitted. But the only dispute by the Insurer is that the driver did not possess a valid authorization/endorsement to drive the light goods commercial vehicle/transport vehicle. Therefore, she submitted that since the policy was in force, the Insurer may be directed to indemnify the award and the impugned judgment and award be modified accordingly. 6. But the only dispute by the Insurer is that the driver did not possess a valid authorization/endorsement to drive the light goods commercial vehicle/transport vehicle. Therefore, she submitted that since the policy was in force, the Insurer may be directed to indemnify the award and the impugned judgment and award be modified accordingly. 6. As against this, learned Counsel appearing for Insurer vehemently submitted that the Tribunal, after due consideration of the oral and documentary evidence available on file has awarded just and reasonable compensation for the death of the deceased in the road traffic accident and hence, interference in the same is not called for. Further, regarding liability fixed on the owner-cum-driver of the offending vehicle, he submitted that, the Tribunal, after critical evaluation of the documentary evidence at Ex. R. 1-Insurance Policy, Ex. R. 2-'B' Register Extract, and Ex. R. 3-D.L. Extract and also other relevant documents, has come to the conclusion that the accident is caused only due to actionable negligence on the part of the owner-cum-driver of the offending vehicle. The said reasoning is just and proper and does not call for interference. In support of the said submission, he also placed reliance on the judgment of the Hon'ble Apex Court in the case of Oriental Insurance Co. Ltd. Vs. Angad Kol and Others, (2009) 11 SCC 356 . Therefore, he submitted that, the appeal filed by appellants is liable to be dismissed. 7. After hearing learned Counsel for the parties, and after careful perusal of the judgment and award passed by the Tribunal including the original records placed before us, the points that arise for our consideration in this appeal are: "(1) Whether the Tribunal is justified in directing the owner-cum-driver of the offending vehicle to indemnify the award? (2) Whether the quantum of compensation awarded by Tribunal is just and reasonable?" 8. Re: Point 1: Occurrence of accident and the resultant death of deceased Gopinatha are not in dispute. It is further not disputed that, the vehicle in question is Mahendra pick up Van bearing Registration No. KA-15/3506 and first respondent is the owner-cum-driver of the said vehicle. It is also not disputed that the owner has taken out a policy of insurance in respect of the said vehicle as per Ex. R. 1. After going through the D.L. extract produced at Ex. It is also not disputed that the owner has taken out a policy of insurance in respect of the said vehicle as per Ex. R. 1. After going through the D.L. extract produced at Ex. R. 3 by the Insurer, it is crystal clear that the vehicle in question is a goods carrying commercial vehicle, for which the driver-cum-owner of the said vehicle did not have an effective and valid Driving Licence as on the date of accident to drive the said vehicle. 9. Further, in support of the case of the Insurer, they relied upon the decision of the Hon'ble Apex Court in the case of Angad Kol, wherein it held that, if a vehicle is a light motor vehicle, but falls under the category of transport vehicle, then, the driving licence has to be duly endorsed under Section 3 of the Act and if it is not done, a person holding driving licence to ply light motor vehicle cannot ply transport vehicle. The said judgment is aptly applicable to the facts and circumstances of the case on hand. Therefore, the Tribunal came to the conclusion that the Insurer is not liable to pay any compensation and on the other hand, the first respondent-owner-cum-driver of the offending vehicle alone is liable to indemnify the award. The reasoning given by Tribunal for fixing the negligence on the part of the owner-cum-driver of the offending vehicle is just and proper and does not call for interference. Accordingly, we answer point No. 1 in the 'Affirmative'. 10. Re: Point 2: So far as quantum of compensation awarded by Tribunal is concerned, it is seen that the compensation awarded by Tribunal both towards loss of dependency as also under the conventional heads is on the lower side and liable to redetermined. Therefore, we answer point No. 2 in the 'Negative' and proceed to redetermine as follows: "Occurrence of accident and the resultant death of the deceased Gopinatha are not in dispute. It is also not in dispute that the deceased was aged about 45 years and a Banana Merchant. It is stated that he was earning more than Rs. 10,000/- per month. But, to substantiate the same, the appellants have not produced any credible documentary evidence. But, it can be seen that the Tribunal is also not justified in assessing the income of the deceased at only Rs. 3,000/- per month. It is stated that he was earning more than Rs. 10,000/- per month. But, to substantiate the same, the appellants have not produced any credible documentary evidence. But, it can be seen that the Tribunal is also not justified in assessing the income of the deceased at only Rs. 3,000/- per month. The same is on the lower side and needs to be reassessed. The accident is of the year 2009 and the deceased was aged about 45 years and sole earning member in the family. Therefore, having regard to the age, avocation and also the year of accident, we reassess the income of the deceased at Rs. 4,500/- per month, to meet the ends of justice. Further, since the claimants are three, we deduct 1/3rd towards personal expenses of the deceased. Accordingly, if 1/3rd (i.e. Rs. 1,500/-) is deducted from Rs. 4,500/- towards his personal expenses, the net income would be Rs. 3,000/- per month. Further, it is stated that the deceased was aged about 45 years as on the date of accident. Therefore, for the said age, the proper multiplier applicable is 14' as per the decision of the Hon'ble Apex Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) 6 SCC 121 , as rightly adopted by Tribunal. Thus, the compensation towards loss of dependency would work out to Rs. 5,04,000/- (i.e. Rs. 3,000/- x 12 x 14') as against Rs. 3,36,000/- awarded by Tribunal." 11. Further, the Tribunal has erred in not awarding reasonable compensation towards conventional heads also. The same is on the lower side and liable to be enhanced. As per the decision of the Apex Court in Smt. Sarla Verma's case, we award a sum of Rs. 25,000/- towards loss of consortium, Rs. 30,000/- towards loss of love and affection at the rate of Rs. 10,000/- to each claimant; Rs. 25,000/- towards loss of estate and Rs. 20,000/- towards transportation and funeral expenses as against the compensation awarded by Tribunal towards conventional heads. Further, it can be seen that the Tribunal has erred in not awarding any compensation towards medical expenses including conveyance, nourishing food and attendant charges. The deceased was hospitalised and treated for a period of more than a week from 17-3-2009 to 25-3-2009 before he succumbed to the injuries sustained in the road traffic accident. Further, it can be seen that the Tribunal has erred in not awarding any compensation towards medical expenses including conveyance, nourishing food and attendant charges. The deceased was hospitalised and treated for a period of more than a week from 17-3-2009 to 25-3-2009 before he succumbed to the injuries sustained in the road traffic accident. During this period, the claimants would have spent reasonable sum towards medical expenses including conveyance, nourishing food and attendant charges. Therefore, having regard to the facts and circumstances of the case and the period of treatment, we award a sum of Rs. 15,000/- towards medical expenses including conveyance, nourishing food and attendant charges. 12. Thus, the total compensation payable to claimants works out to Rs. 6,19,000/- with 6% interest per annum, from the date of petition till the date of realisation as against Rs. 3,56,000/- awarded by the Tribunal. There would be enhancement of compensation by a sum of Rs. 2,63,000/-. In the light of the facts and circumstances of the case, as stated above, the appeal filed by appellant is allowed in part. The impugned judgment and award dated 19th August, 2010, passed in MVC No. 61 of 2009, by the Senior Civil Judge and Motor Accident Claims Tribunal, Tarikere, is hereby modified, awarding a sum of Rs. 6,19,000/- as against Rs. 3,56,000/- awarded by the Tribunal, with interest at 6% per annum on the enhanced sum, from the date of petition till the date of realisation. Thus, there would be enhancement of compensation by a sum of Rs. 2,63,000/- with 6% interest per annum from the date of petition till the date of realisation. The respondent 1-owner is directed to deposit the enhanced compensation of Rs. 2,63,000/-, with interest thereon at 6% per annum, within three weeks from the date of receipt of copy of the judgment. Immediately on such deposit by the respondent 1-owner, a sum of Rs. 1,50,000/- with proportionate interest shall be invested in the name of first appellant-wife of deceased, in Fixed Deposit, in any scheduled/Nationalized Bank, for a period of ten years, renewable by another five years, with liberty reserved to her to withdraw the periodical interest. Remaining sum of Rs. 1,13,000/- with proportionate interest shall be released in favour of the appellants 1 to 3, in equal proportion, immediately. Office to draw award, accordingly.