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2019 DIGILAW 1172 (KAR)

Oriental Insurance Co Ltd v. Mary

2019-06-10

K.SOMASHEKAR

body2019
JUDGMENT : K. Somashekar, J. Though these appeals are listed for admission, with the consent of learned counsel on both sides, the matters are taken up for final disposal. 2. These appeals are preferred against the judgment and award rendered by the Tribunal in MVC No.5327/2013 dated 30.10.2014. MFA No.8093/2014 is filed by the appellants/claimants seeking enhancement of compensation and MFA No.1711/2015 is filed by the appellant/insurance company on the question of liability. 3. The factual matrix of the appeals is as under: It is stated in the claim petition that on 10.08.2013 at about 1.30 p.m. when deceased John Basco, was crossing the Hosur Road, near Krishna Theatre at Bommanahalli Bus Stop, Bengaluru, with all care and caution and observing movement of traffic and when the deceased almost reached other end of the road, at that time a Tata Sumo bearing No.KA-02-C-1407 driven by its driver came in high speed, in a rash and negligent manner and dashed against the deceased. As a result of the forced impact, the deceased was knocked to the ground and suffered head and bodily injuries. On the way to Nimhans Hospital, he succumbed to the injuries. At Victoria Hospital, Bengaluru, the post mortem was conducted and after that the funeral and obsequies ceremonies were performed by the claimants by spending Rs.50,000/-. It is contended that the deceased was hale and healthy prior to death, he was aged about 58 years and by avocation was a Carpenter and earning Rs.12,000/- per week and his entire income was contributed to his family for maintenance. Having lost the bread winner of their family, the claimants being wife and children of deceased, filed the claim petition seeking compensation. 4. Upon issuance of summons, respondent Nos.1 and 3 did not choose to appear before the Court. Respondent No.2 entered appearance and filed written statement denying the petition averments and sought for dismissal of the appeal. 5. Based upon the pleadings of the parties, the Tribunal framed the issues. In order to prove their case, petitioner no.1 examined herself as PW.1 and got examined one witness as PW.2 and got marked documents as per Exs.P1 to P10. On behalf of the respondents, RW.1 was examined and Exs.R1 to R6 were got marked. 5. Based upon the pleadings of the parties, the Tribunal framed the issues. In order to prove their case, petitioner no.1 examined herself as PW.1 and got examined one witness as PW.2 and got marked documents as per Exs.P1 to P10. On behalf of the respondents, RW.1 was examined and Exs.R1 to R6 were got marked. The Tribunal after hearing arguments of learned counsel for the claimants and so also, the insurance company, and on evaluation of entire materials on record, passed the impugned judgment, awarding compensation of Rs.5,80,000/- with interest @ 6% p.a. from the date of petition till realisation. It is this judgment challenged by the claimants seeking enhancement and insurance company on the question of liability. 6. Learned counsel for the claimants contends that the judgment and award passed by the Tribunal is contrary to evidence and materials available on record and just compensation has not been awarded to the claimants. The Tribunal failed to notice that the deceased by avocation as a Carpenter was earning Rs12,000/- per week and the family consisting of 6 members, all were depending on the sole income of the deceased. The Tribunal has not properly assessed the income of the deceased while awarding the compensation. Further, the Tribunal erred in deducting 1/3rd instead of 1/4th wherein it is clear that when the family members are exceeding three and limited to 6, the Tribunal ought to have deduced 1/4th instead of 1/3rd. Further, the compensation awarded by the Tribunal towards conventional heads is on lower side. Further, he contends that the Tribunal has grossly erred in passing the impugned judgment and award without following procedure as prescribed under law and by the Hon'ble Apex Court and this Court. On these grounds, learned counsel for the appellants seeks for enhancement of the compensation awarded by the Tribunal. 7. Per contra, Sri S.V.Hegde Mulkhand, learned counsel for the insurance company contends that at the time of accident the driver of the offending vehicle had no valid and proper driving licence to drive the transport vehicle. He contends that the order of the Tribunal directing the insurance company to pay the compensation awarded and recover the same from the owner is illegal, arbitrary and not sustainable. He contends that the order of the Tribunal directing the insurance company to pay the compensation awarded and recover the same from the owner is illegal, arbitrary and not sustainable. Further, the offending vehicle was insured under the category of passenger carrying commercial vehicle and is a transport vehicle within the meaning of MVC Act, 1988, but the driver of offending vehicle, at the time of accident, held driving licence authorizing him to drive motor vehicle other than transport vehicle. He was not having licence authorizing him to drive a transport vehicle as required under law. The Tribunal ought to have dismissed the claim petition against the insurance company since the material placed on record clearly proves that the owner of the offending vehicle had deliberately violated the terms and conditions of the policy. Further, the Tribunal has erred in not considering the provisions of Sections 3, 5, 9, 10 and 149 of the MV Act, 1988 in proper perspective manner and erred in fastening the liability to pay the compensation awarded on the insurance company. Further, the decisions relied on by the Tribunal while fastening the liability to pay the compensation awarded on the insurance company is not applicable to the facts and circumstances of the case. On all these grounds, learned counsel for the insurance company sought for setting aside the impugned judgment and award passed by the Tribunal. 8. In the backdrop of the contentions as taken by the learned counsel for the claimants as well as learned counsel for the insurance company, it is not in dispute that deceased John Bosco succumbed to the injuries due to the actionable negligence on the part of the driver of the offending Tata Sumo bearing No.KA-02-C- 1407 in a road traffic accident. The claimants being the wife and children of deceased John Bosco have filed the claim petition seeking compensation. PW.1 Smt.Mary in her evidence has reiterated the averments made in the petition itself. In support of her claim, she has produced documents such as Ex.P1 Police crime report, Ex.P2 FIR, Ex.P2(a) Complaint, Ex.P3 spot mahazar, Ex.P3(a) spot sketch, Ex.P4 inquest report, Ex.P5 PM report, Ex.P6 charge sheet. On evaluation of these documents, the Tribunal held that the accident had occurred due to the rash and negligent driving of the driver of the Tata Sumo. 9. On evaluation of these documents, the Tribunal held that the accident had occurred due to the rash and negligent driving of the driver of the Tata Sumo. 9. It is said that the deceased by avocation was a Carpenter and was earning Rs.12,000/- per week. But in proof of the same, no documents were produced. Hence, the Tribunal assessed the income of the deceased at Rs.6,000/- p.m. It is relevant to note that the accident is of the year 2013. As per the guidelines and illustration of the Lok Adalath Chart, the notional income for the year 2013 is Rs.7,000-8,000. Having regard to the avocation of the deceased as a Carpenter, and the year of accident, the notional income is taken at Rs.8,000/-. Further, the Tribunal committed an error in deducting 1/3rd instead of 1/4th towards personal expenses and also committed an error in adopting multiplier of 10 instead of 9 according to the decision of the Hon'ble Supreme Court reported in (Sarla Varma and others Vs. Delhi Transport Corporation and another, (2009) ACJ 1298). Further, in view of the law laid down by the Hon'ble Apex Court in National Insurance Co.Ltd. vs. Pranay Sethi, (2017) AIR SC 5157, future prospects has to be added to his income. Accordingly, compensation under the head loss of dependency is re-worked out as under: Income per month 8,000 Add: future prospects @ 10% 800 8,800 Less: 1/4 personal expenses 2,200 6,600 Rs.6,600 x 12 x 9 7,12,800/- 10. Further, under the conventional heads, the Tribunal has awarded in all a sum of Rs.40,000/-. But as per the ratio of reliance in Pranay Sethi's case as stated supra, under the conventional heads, petitioners are entitled to a sum of Rs.70,000/-. Accordingly, another sum of Rs.30,000/- is awarded under conventional heads. 11. In the case of MAGMA GENERAL INSURANCE CO. LTD. vs. NANU RAM, 2018 SCCONLINE(SC) 1546, the Hon'ble Apex Court has held that: "In legal parlance, "consortium" is a compendious term which encompasses 'spousal consortium', 'parental consortium', and 'filial consortium'. The right to consortium would include the company, care help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse. The right to consortium would include the company, care help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse. Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of "company, society, co-operation, affection, and aid of the other in every conjugal relation." Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training". Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit. 12. In the instant appeal, the deceased has left behind his children who are claimants no.2 to 6. They have lost love and affection of their father, his companionship and role in the family and there is a reciprocity in between the family and deceased. Hence, in accordance with the above said ruling, a sum of Rs.40,000/- each, is awarded to claimants 2 to 6 towards loss of filial consortium totaling to Rs.2,00,000/-. 13. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:- Particulars Compensation awarded by MACT Compensation by this Court Loss of dependency 4,80,000 7,12,800 Loss of love and affection 60,000 60,000 Funeral and obsequies 20,000 70,000 Loss of consortium 10,000 Loss of estate 10,000 Filial consortium - 2,00,000 Total 5,80,000 10,42,800 Thus, in all, the claimants are entitled to total compensation of Rs.10,42,800/- as against Rs.5,80,000/- awarded by the Tribunal. The enhanced compensation would be Rs.4,62,800/-. 14. The contention of Sri S.V.Hegde Mulkhand, learned counsel for the insurance company is that the driver of the offending vehicle did not possess driving licence to drive a transport vehicle as on the date of accident and hence, the order of the Tribunal directing the insurance company to pay the compensation is arbitrary and not sustainable. 14. The contention of Sri S.V.Hegde Mulkhand, learned counsel for the insurance company is that the driver of the offending vehicle did not possess driving licence to drive a transport vehicle as on the date of accident and hence, the order of the Tribunal directing the insurance company to pay the compensation is arbitrary and not sustainable. Similar issue has been considered by the Apex Court in the case of Mukund Dewangan Vs. Oriental Insurance Co.Ltd., (2017) 14 SCC 663 wherein it is held that the absence of transport endorsement per se cannot be a ground to absolve the insurer from the award liability. The Hon'ble Apex Court has answered the question against the insurer and in favour of the claimant holding that the insurer cannot avoid liability only on the ground of absence of Transport Endorsement. Therefore, the issue is no more res integra. The present case is clearly covered by the judgment of Mukund Dewangan's case as stated supra. Hence, the Tribunal has rightly fastened the liability on the insurer and I find no justifiable ground to interfere with the same. For the reasons and findings as stated above, I proceed to pass the following: ORDER MFA No.8093/2014 filed by the appellants/claimants is allowed in part. MFA No.1711/2015 filed by the appellant/insurance company is dismissed. The appellants/claimants are entitled for enhanced compensation of Rs.4,62,800/- with interest @ 6% p.a. from the date of petition, till realisation. The impugned judgment and award dated 30.10.2014 passed by the Tribunal in MVC No.5327/2013, is modified accordingly. The Oriental Insurance Company Co. Ltd., shall deposit the entire compensation along with the compensation enhanced by this Court and interest accrued thereon, within a period of six weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be disbursed to the claimants, on proper identification. However, the impugned judgment and award, in so far as it relates to rate of interest, apportionment and deposit is concerned, shall remain unaltered. The amount in deposit, if any, shall be transmitted to the Tribunal, forthwith. Office to draw the decree accordingly.