Research › Search › Judgment

Karnataka High Court · body

2017 DIGILAW 1236 (KAR)

Cholamandalam Ms Gen. Ins. Co. Ltd. v. Mariyamma

2017-09-07

R.S.CHAUHAN

body2017
JUDGMENT : 1. Both the Appeal, and the Cross-Objection, arise out of the judgment and award dated 11.06.2014, passed by the V Additional District Judge and MACT., My sore, whereby for the death of Mr. Basavasetty, the learned Tribunal has granted the claimants, a compensation of Rs.5,41,000/-, along with interest @ 8% per annum, from the date of filing of the petition till the date of realization. Therefore, the appeal filed by the Insurance Company, and the cross-objection filed by the claimants are being decided by this common order. 2. According to the claimants, on 12.08.2012, around 1.45 p.m., Mr. Basavasetty was traveling in an auto-rickshaw, bearing registration No.KA-45-3707, along with other passengers. While the auto-rickshaw was going on the K.R. Nagar Hosahalli Road, near K.E.B. Iswara Nagar, the driver of the auto-rickshaw drove the auto in a rash and negligent manner. When the driver suddenly applied the brakes, the auto-rickshaw turned turtle; Mr. Basavasetty sustained severe head injuries; he died on the spot. 3. Since the claimants lost the sole bread earner of the family, they filed a claim petition before the learned Tribunal. In order to support their case, Basavasetty’s wife, Mrs. Mariyamma, examined herself as P. W. 1, and examined her brother-in-law, Mahadevasetty, as P. W. 2. She also submitted twelve documents. On the other hand, the Insurance Company also examined two witnesses, and submitted eleven documents. After appreciating the evidence produced by both the sides, the learned Tribunal granted the compensation as aforementioned. Hence, the Appeal by the Insurance Company, and the Cross-objection by the claimants. M.F.A. NO.6356/2014 4. Sri. Y. P. Venkatapathi, the learned counsel for the Insurance Company, has raised the following contentions before this Court: Firstly, the driver of the auto-rickshaw did not have a valid driving license as the driving license was not endorsed for the specific kind of vehicle being driven by him. Thus, the liability of having to pay the compensation could not be fastened upon the Insurance Company. Secondly, the respondent Nos. 2, 3 and 4 happened to be the married daughters of the deceased. Hence, while calculating the loss of dependency, their existence cannot be taken into account. For, after their marriage, they would be financially dependent on their husband, and not on their father. Secondly, the respondent Nos. 2, 3 and 4 happened to be the married daughters of the deceased. Hence, while calculating the loss of dependency, their existence cannot be taken into account. For, after their marriage, they would be financially dependent on their husband, and not on their father. Hence, the learned Tribunal was not justified in calculating that the deceased would have spent only 1/4th of his income upon his personal expenses. In fact, it should have been taken as 1/3rd. Therefore, the ‘loss of dependency’ needs to be recalculated by this Court. 5. On the other hand, the learned counsel for the claimants-respondents has raised the following pleas before this Court: Firstly, the driver of the auto-rickshaw had a valid LMV driving license. The issue whether a specific endorsement with regard to driving a particular kind of vehicle is legally required or not, is no longer resintegra. For recently, in the case of Mukund Dewangan Vs. Oriental Insurance Company Limited ( AIR 2017 SC 3668 ) the Hon'ble Supreme Court has opined that there is no such legal requirement of having a specific endorsement on a valid driving license for driving a LMV vehicle. Thus, the Insurance Company cannot escape its liability of paying the compensation ostensibly on the ground that the driver did not have a specific endorsement on his valid LMV driving license. 6. As far as the second contention with regard to the financial dependency of the three daughters is concerned, the learned counsel for the claimants has frankly conceded, and in the opinion of this Court rightly so, that they cannot be considered as dependents on the finances of their father. Thus, the learned Tribunal could not have considered them as financially dependent on their father. 7. Heard the learned counsel for the parties, and perused the impugned award. 8. The issue in the present appeal is with regard to the liability of the Insurance Company to pay the compensation or not in the absence of specific endorsement in the valid LMV license. However, the said issue now stands authoritatively settled by the decision of Hon’ble Supreme Court in the case of Mukund Dewangan (supra). 8. The issue in the present appeal is with regard to the liability of the Insurance Company to pay the compensation or not in the absence of specific endorsement in the valid LMV license. However, the said issue now stands authoritatively settled by the decision of Hon’ble Supreme Court in the case of Mukund Dewangan (supra). In the said case, the Hon’ble Apex Court has clearly opined that if the driver of the offending vehicle has a valid driving license for driving a LMV, there is no legal requirement that the driving license should also contain a specific endorsement for driving a particular kind of vehicle. Therefore, the Insurance Company cannot escape its liability to pay the compensation on the spurious plea that the valid driving license for LMV did not bear any specific endorsement for a particular kind of vehicle. 9. In the present case, the driver of the auto-rickshaw did have a valid driving license for driving a LMV. Therefore, the driving license need not have contained a specific endorsement authorizing the driver to drive an auto-rickshaw. Hence, the first contention raised by the learned counsel for the Insurance Company is clearly unacceptable. 10. However, the learned counsel for the Insurance Company is certainly justified in claiming that the three daughters could not have been taken into account while assessing the personal expenses of the deceased. Therefore, the learned Tribunal was not justified in concluding that since the deceased was supporting a large family, he would have spent only 1/4th of his salary upon himself. Instead, considering the fact that the deceased had a wife, and a mother to look after, it can be safely presumed that he would have spent 1/3rd of his salary on his personal expenses, and would have spent 2/3rd upon his wife and mother. Therefore, the ‘loss of dependency’ deserves to be recalculated by this Court. The learned Tribunal has taken the salary of the deceased as Rs.6,000/-. Hence the ‘loss of dependency’ is reduced to 4,32,000/- [6,000 x 2/3 x 12 x 9] from Rs.4,86,000/-, granted by the learned Tribunal. M.F.A. CROB NO.38/2015 11. Therefore, the ‘loss of dependency’ deserves to be recalculated by this Court. The learned Tribunal has taken the salary of the deceased as Rs.6,000/-. Hence the ‘loss of dependency’ is reduced to 4,32,000/- [6,000 x 2/3 x 12 x 9] from Rs.4,86,000/-, granted by the learned Tribunal. M.F.A. CROB NO.38/2015 11. While arguing the Cross-Objection, the learned counsel for the claimants has raised the following pleas: Firstly, despite the fact that the three daughters had lost their father, the learned Tribunal has granted a compensation of merely Rs.25,000/- for the ‘loss of love and affection’ suffered by the three daughters. According to the learned counsel, the compensation should be enhanced to Rs.50,000/- under the said category. Secondly, the wife has been granted merely Rs.20,000/- for the ‘loss of consortium’ although she had lost her husband in her midlife. Despite the fact, she has many years to go, a mere compensation of Rs.20,000/- has been granted to the widowed wife for the ‘loss of consortium’. Relying on the case of Rajesh And Others v. Rajbir Singh And Others [ (2013) 9 SCC 54 ], the learned counsel has pleaded that the compensation in this category should be enhanced to Rs.1,00,000/-. Thirdly, even for the ‘funeral expenses’, a compensation of only Rs.10,000/- has been granted. Therefore, the compensation deserves to be enhanced. 12. On the other hand, the learned counsel for the Insurance Company has raised the following counter-contentions: Firstly, a compensation awarded is not meant to be a bonanza. Since respondent Nos.2 to 5 happen to be married, they could not be dependent on their father for love and affection. After their marriage, their love and affection is more inclined towards their husband, than towards their father. Therefore, the compensation paid in the category of ‘loss of love and affection’ need not be enhanced to Rs.50,000/-. Secondly, even for the loss of consortium, in the year 2012, an amount of Rs.20,000/- seems to be sufficient. Similarly, the compensation of Rs.10,000/- for the ‘funeral expenses’ is a reasonable amount. Hence, the learned counsel for the Insurance Company has supported this part of the impugned award. 13. So far as the ‘loss of love and affection’ is concerned, considering the fact that respondent Nos.2 to 4 happen to be major daughters, who were already married, it cannot be said that they were wholly and emotionally dependent upon their father. Hence, the learned counsel for the Insurance Company has supported this part of the impugned award. 13. So far as the ‘loss of love and affection’ is concerned, considering the fact that respondent Nos.2 to 4 happen to be major daughters, who were already married, it cannot be said that they were wholly and emotionally dependent upon their father. After their marriage, it can be safely presumed that they are emotionally dependent more on their husband, than on their father. Therefore, the compensation under the category of ‘loss of love and affection’ does not deserve to be enhanced to the tune of Rs.50,000/-. But nonetheless, considering the fact that three daughters have lost their father, the ‘loss of love and affection’ should be enhanced from Rs.25,000/- to 40,000/-. 14. In the case of Rajesh And Others (supra) the Hon’ble Supreme Court has elaborately dealt with the concept of ‘loss of consortium’, and has granted a compensation of Rs.1,00,000/- for the ‘loss of consortium’. Considering the fact that Mrs. Mariyamma was only 48 years old when she lost her husband, considering the fact she has many more years to live without the benefit of the company of her husband, the compensation in the category of ‘loss of consortium’ certainly needs to be enhanced from Rs.20,000/- to 1,00,000/-. 15. It is, indeed, true that the funeral expenses cannot be limited only to performing of the cremation or burying of the deceased. For, other ceremonies need to be performed by the family of the deceased as the last rites for the departed soul. Therefore, the compensation of Rs.10,000/- is certainly on the meager side. Hence, the compensation is enhanced from Rs.10,000/- to 25,000/- towards ‘funeral expenses’. Thus, the compensation payable to the claimants needs to be recalculated by this Court, and is as under: Sl.No. Heads Amount awarded by the Tribunal Amount awarded by this Court 1 Loss of Dependency Rs. 4,86,000/- Rs. 4,32,000/- 2 Loss of love and affection Rs. 25,000/- Rs. 40,000/- 3 Funeral Expenses Rs. 10,000/- Rs. 25,000/- 4 Loss of consortium Rs 20,000/- Rs 1,00,000/- Total Rs 5,41,000/ Rs 5,97,000/ 16. Hence, the claimants-respondents are entitled to a total compensation of Rs.5,97,000/- along with interest @ 8% per annum from the date of filing of the claim petition to the date of realization. The amount deposited by the insurance company shall be returned to the learned Tribunal. Hence, the claimants-respondents are entitled to a total compensation of Rs.5,97,000/- along with interest @ 8% per annum from the date of filing of the claim petition to the date of realization. The amount deposited by the insurance company shall be returned to the learned Tribunal. The learned Tribunal is directed to disburse the compensation amount to the claimants-respondents within a period of one month. The appeal filed by the insurance company is partly-allowed-and the cross objection filed by the cross objectors-claimants is also partly allowed.