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2019 DIGILAW 1098 (KAR)

Shriram GEN. INS. CO. Ltd. v. Reshma

2019-06-04

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. Patil, J. The insurer Shriram General Insurance Company Limited and the claimants being aggrieved by the judgment and award dated 20.4.2013, passed in MVC No.103/2012, by the District Judge and MACT, Gadag, have filed these appeals. 2. It is the case of the claimant before the tribunal that her husband aged about 24 years was working as a welding mestri in his own garage. On 18.3.2012 at about 8.30 p.m. the deceased Adamsab along with his friend Manjunath @ Mallappa was proceeding on motorcycle bearing registration No.KA-37/J- 7481. After completing their personal work, they were returning to their homes; when they were going slowly and cautiously on the correct side of the road and when they reached near third petrol pump on Gadag Hubballi road, a TATA tanker bearing registration No.KA-25/B-6264 came from opposite side in a high speed and in a rash and negligent manner and dashed to the motorcycle and due to the said impact the rider of the motorcycle was thrown out and he sustained grievous injuries on his head and died on the spot. The body was shifted to KIMS hospital for postmortem examination. Thereafter the petitioner performed the funeral and other obsequies. The petitioner spent Rs. 1,50,000/- towards funeral and other religious obsequies. Prior to the accident the deceased was hale and healthy and working as welding mestri at Shiraguppi. He was specialist in welding and he was having his own garage and earning Rs. 15,000/- per month and contributing the entire earnings for his family. The petitioner is the wife of the deceased. She has undergone deep mental shock and agony, which cannot be compensated in terms of money. There is no other persons in the family to earn for them. The accident took place solely due to the rash and negligent driving of the tanker. Respondent No.1 is the owner and respondent No.2 is the insurer and they are jointly and severally liable to pay the compensation. Therefore, the petitioner claimed compensation of Rs. 25,00,000/- against respondents No.1 and 2. 3. In pursuance of the notice, respondents No.1 and 2 appeared before the tribunal and only respondent No.2 has filed the written statement. He has denied the age, occupation and income of the deceased. He has denied that the accident took place between the motorcycle and the tanker as alleged. He has also denied that the petitioner has spent Rs. 3. In pursuance of the notice, respondents No.1 and 2 appeared before the tribunal and only respondent No.2 has filed the written statement. He has denied the age, occupation and income of the deceased. He has denied that the accident took place between the motorcycle and the tanker as alleged. He has also denied that the petitioner has spent Rs. 1,50,000/- towards transportation of dead body and funeral expenses etc., He further contended that the accident took place due to hasty decision and negligence on the part of the rider of the motorcycle who was also not having valid and effective driving licence. Therefore liability of the respondent No.2 is limited to 50% only that too subject to terms and conditions of the insurance policy. The owner of the vehicle has violated the permit conditions. Therefore the claim petition is liable to be dismissed for non compliance of section 134(c) and 158(R) of the M.V.Act. 4. On the basis of the pleadings of the parties, the tribunal framed issues. It is seen from the records that during the course of the said proceedings, respondents No.3 to 5 got impleaded in the claim petition claiming compensation for the death of the deceased Adamsab as his parents and minor brother. In support of the claim petition, the petitioner got examined herself as PW.1 and got marked 9 documents as Exs.P.1 to P.9. Respondent No.2 produced four documents and got marked them as Exs.R.1 to R.4. However no oral evidence is adduced on its behalf. Learned member of the tribunal , after hearing both the parties, passed the impugned judgment awarding compensation of Rs. 13,10,000/- to the petitioner and respondents No.3 and 4 together with costs and interest at 6% p.a. from the date of petition till realization. The claim of respondent No.5 was dismissed. The tribunal has also ordered that, out of the compensation amount, 70% shall be paid to the petitioner and 15% each shall be paid to the respondents No.3 and 4. Respondent No.2 insurer was directed to deposit the compensation amount. 5. The insurer being aggrieved by the impugned judgment and award has filed MFA No.23789/2013, on the ground that the income of the deceased considered by the tribunal is on the higher side. Respondent No.2 insurer was directed to deposit the compensation amount. 5. The insurer being aggrieved by the impugned judgment and award has filed MFA No.23789/2013, on the ground that the income of the deceased considered by the tribunal is on the higher side. The tribunal has failed to consider the contention of the negligence on the part of the rider of the motorcycle and that the driver of the offending vehicle had no valid and effective driving licence to drive the vehicle. 6. Respondents No.3 to 5 before the tribunal have filed MFA No.23161/2013 on the ground that the tribunal failed to give opportunity to them after impleading them as respondents in the claim petition and hurriedly passed the impugned judgment. The dismissal of the claim petition of respondent No.5 is erroneous and further apportioning 70% of the compensation awarded in favour of the wife and 30% in favour of the parents is also erroneous. They have further contended that the claimants are entitled for 40% of the income towards future prospects and that the income of the deceased considered by the tribunal is on the lower side. 7. The claimant wife of the deceased has filed MFA No.100378/2014 contending that the tribunal has considered the income of the deceased as Rs. 7,500/-, which is on lower side as against her contention that the deceased was earning Rs. 15,000/- per month. 8. Heard the learned counsels appearing for the parties. 9. Having heard the learned counsel for the parties, the following points are arise for consideration before this Court:- (i) Whether the insurer has made out grounds to apportion the liability due to contributory negligence on the part of the rider of the motorcycle? (ii) Whether the insurer has made out grounds to set aside the liability saddled against him in view of the breach of policy condition as the driver of the offending vehicle was not holding the valid driving licence? (iii) Whether the claimants have made out grounds for enhancement of compensation? 10. Learned counsel for the claimants submitted relying on the decision of the Hon'ble Supreme Court in the case of Mukund Dewangan Vs. (iii) Whether the claimants have made out grounds for enhancement of compensation? 10. Learned counsel for the claimants submitted relying on the decision of the Hon'ble Supreme Court in the case of Mukund Dewangan Vs. Oriental Insurance Company Ltd, (2017) AIR SC 3668, that the contention as to breach of policy condition in view of not holding valid and effective driving licence by the driver of the offending vehicle does not survive and as such this contention is liable to be rejected. 11. Admittedly, the driver of the offending vehicle was holding a valid and effective driving licence to drive the LMV and in view of the judgment of the Hon'ble Supreme Court in the case of Mukund Dewangan stated supra, the driver who holds a valid and effective driving licence to drive LMV need not obtain special endorsement to drive the transport vehicle. As such, in view of the judgment in the case of Mukund Dewangan, the driver in the present case need not obtain special endorsement for driving the transport vehicle involved in the accident. Therefore, this contention does not survive for consideration. 12. Further, contention of the insurer is that there is a contributory negligence on the part of the rider of the motorcycle and the same was not considered by the Tribunal properly. The material on record goes to show that the police had registered the criminal case against the driver of the offending vehicle and he was charge sheeted and there is no charge sheet against the rider of the motorcycle involved in the accident. 13. Respondent-Insurer has also not produced any evidence before the Tribunal in respect of his contention that there was a contributory negligence on the part of the rider of the motorcycle. Therefore, the contention of the insurer that there was contributory negligence on the part of the rider of motor cycle and the Tribunal ought to have considered the same and fixed some liability against the rider of the motorcycle has no merits and the same is liable to be rejected. 14. Therefore, the contention of the insurer that there was contributory negligence on the part of the rider of motor cycle and the Tribunal ought to have considered the same and fixed some liability against the rider of the motorcycle has no merits and the same is liable to be rejected. 14. Learned counsel for the claimant wife and also parents and the brother of the deceased vehemently contended that the Tribunal has considered monthly income at Rs.7,500/-p.m. which is on lower side and that the deceased being a skilled labour, his income ought to have been considered at Rs.15,000/- p.m. The learned counsel also submitted that in view of the judgment of the Hon'ble Supreme Court in the case of National Insurance Ltd. Vs. Pranay Sethi and Others, the claimants are entitled for 40% of the income towards future prospects and further the parents of the deceased are entitled for compensation towards loss of love and affection. 15. Though the claimants-appellants contended that the deceased was a skilled labour and working as welding mestri at Shirapuggi, and he was having his own garage and earning Rs.15,000/- p.m. no acceptable evidence was produced in order to prove the same. Absolutely, there is no documentary evidence to prove that the deceased was working as a welding mestri and was having his own garage. If at all deceased was running his own garage, the appellants ought to have produced some documents to show, like the licence issued by Municipal Panchayat Authorities to run the garage. Therefore, in the absence of cogent and acceptable evidence to prove the actual income of the deceased, the Tribunal proceeded to consider the income of the deceased at Rs.7,500/-p.m. The Tribunal has properly assessed the material on record and has properly considered the income of the deceased at Rs.7,500/-p.m. in the absence of the evidence to prove the actual income. Therefore, the contention of the claimants that the income of the deceased may be considered as Rs.15,000/-p.m. in order to award compensation cannot be accepted. There is no ground to interfere with the findings of the Tribunal sofaras considering the income of the deceased at Rs.7,500/- p.m. 16. In the judgment of the Hon'ble Supreme Court in the case of National Insurance Ltd. Vs. There is no ground to interfere with the findings of the Tribunal sofaras considering the income of the deceased at Rs.7,500/- p.m. 16. In the judgment of the Hon'ble Supreme Court in the case of National Insurance Ltd. Vs. Pranay Sethi and Others, (2017) AIR SC 5157 in para 61( iv) it is held as follows:- "In case the deceased was self-employed or on a fixed salary an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component." 17. However, in the present case, the claimants have failed to prove that the deceased was self employed or having fixed salary and income of the deceased is assessed on notional basis. In such event, whether the claimant is entitled for addition of 40% of the income of the deceased towards future prospects has to be considered. The Hon'ble Supreme Court in the case of Hem Raj Vs. Oriental Insurance Co. Ltd. and others, (2018) ACJ 5 has considered this aspect. In paragraph 13, the Hon'ble Supreme Court has observed as under:- "We are of the view that there cannot be distinction where there is positive evidence of income and where minimum income is determined on guesswork in the facts and circumstances of a case. Both the situations stand at the same footing. Accordingly, in the present case, addition of 40 per cent to the income assessed by the Tribunal is required to be made. The Tribunal made addition of 50 per cent while the High Court has deleted the same." 18. Therefore, where the income of the deceased is determined on guesswork, situation stand on the same footing as that of the positive evidence regarding the income and the claimants are entitled for addition of the income towards future prospects. 19. The Tribunal made addition of 50 per cent while the High Court has deleted the same." 18. Therefore, where the income of the deceased is determined on guesswork, situation stand on the same footing as that of the positive evidence regarding the income and the claimants are entitled for addition of the income towards future prospects. 19. In the present case, the age of the deceased is stated as 24 years, as such the claimants are entitled for addition of 40% of his income towards future prospects and the income of the deceased is considered as Rs.7,500/-p.m. Further, the parents of the deceased are entitled for compensation towards love and affection at Rs.40,000/- each in view of the judgment of the Hon'ble Supreme Court in the case of Magma General Insurance Co. Ltd. Vs. Nanu Ram Alias Chuhru Ram and Others. 20. The claimants are also entitled for compensation of Rs.70,000/- under conventional head as held in the case of National Insurance Ltd. Vs. Pranay Sethi and Others as stated supra. 21. It was contended by the learned counsel for the insurer that the Tribunal has deducted 1/4th towards personal expenses of the deceased which ought to have been deducted at 1/3rd as there are only 3 dependents. 22. Learned counsel for the claimants submitted that including minor brother, there are four dependants and therefore, deduction of 1/4th towards personal expenses is proper. The claimant-minor brother of the deceased cannot be held as dependent, since his parents are alive and they are also claimants and dependents on the deceased. Therefore, 1/3rd of the income of the deceased has to be deducted towards his personal and living expenses. 23. Under these circumstances, after reassessment of the entire material on record, in view of the decisions referred above just compensation is assessed as follows:- Loss of dependency (7000X12X18) 15,12,000.00 Loss of love and affection 80,000.00 Conventional head 70,000.00 Total 16,62,000.00 24. Therefore, the impugned award needs to be modified accordingly. 25. The learned counsel for the appellant for the brother of the deceased submitted that 50% of the compensation may be apportioned to the parents and brother of the deceased. 26. The brother of the deceased is though minor is not depending on the deceased and therefore, he is not entitled for any compensation and the Tribunal has rightly dismissed his claim. 27. 26. The brother of the deceased is though minor is not depending on the deceased and therefore, he is not entitled for any compensation and the Tribunal has rightly dismissed his claim. 27. Therefore, only the wife and parents of the deceased are entitled to share the compensation being awarded. Under the facts and circumstances of the case, it is just and proper to apportion the compensation in the ratio of 60:40, 60% in favour of the wife and 40% in favour of the parents. This Court answer the points for consideration accordingly. In the result, this Court proceed to pass the following: ORDER All the appeals are partly allowed. The claimant-wife and parents of the deceased are entitled to compensation of Rs.16,62,000/-with interest at the rate of 6% from the date of petition till the date of its realization. The compensation amount is ordered to be apportioned in the ratio of 60:40 among the wife and parents of the deceased. The order as to deposit and disbursement is as passed by the Tribunal. The amount of compensation deposited by the insurer shall be transmitted to the concerned Tribunal.