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2019 DIGILAW 1188 (KAR)

Kamavva v. Ramanjini

2019-06-11

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. Patil, J. The owner and the claimants being aggrieved by the judgment and award dated 02.09.2013 passed in MVC No.1265/2012 by the MACT-II, Ballary have filed these appeals. 2. It is the case of the claimants before the Tribunal that on 06.11.2012 at about 7.00 a.m. near Megalahatty village on SH-19 road, bus stand of Molakalmur Taluk, Siddaiah, S/o of late Nalli Ningaiah was proceeding in an Auto bearing Registration No.KA-34/A-924. At that time, the respondent No.1 drove the said auto in a rash and negligent manner so as to endanger human life and turtled it by the side of the road and thereby the said Siddaiah and others sustained grievous injuries and that Siddaiah was shifted to Government Hospital at Molakalmur for treatment, where he succumbed to the injuries. 3. The deceased Siddaiah was earning Rs.400/- per day as Hamali and Gumastha and he was the only earning member in his family. Claimant No.1 is Wife, claimants No.2 to 4 are the son and daughters of the deceased. They claimed compensation of Rs.21,00,000/- against the driver, owner and insurer of the offending vehicle. 4. In response to the notice, respondents No.1 and 2 did not appear, hence they were placed ex parte. Respondent No.3 being the insurer of the offending vehicle appeared before the Tribunal and filed his written statement, wherein he denied the alleged accident and denied the age, occupation and income of the deceased-Siddaiah and further denied that Siddaiah died due to the accidental injuries. 5. Respondent No.2 being the owner of the said auto violated the terms and conditions of the policy by allowing his driver to drive the same by taking excess passengers than the permit and therefore respondent No.3 is not liable to pay compensation. 6. On the basis of the pleadings of the parties, the Tribunal framed issues. 7. Claimants No.1 and 2 got examined themselves as PW1 and PW2 and got marked 6 documents as Ex.P1 to P6. Respondent No.3 examined his official as RW1 and got marked 1 document as Ex.R.1. 8. The learned member of the Tribunal after hearing both the parties passed the impugned judgment awarding compensation of Rs.7,81,000/- with interest at 6% p.a. from the date of petition till realization. 9. Further, respondents No.1 and 2 were held jointly and severally liable to pay the compensation to the claimants/petitioners. 10. 8. The learned member of the Tribunal after hearing both the parties passed the impugned judgment awarding compensation of Rs.7,81,000/- with interest at 6% p.a. from the date of petition till realization. 9. Further, respondents No.1 and 2 were held jointly and severally liable to pay the compensation to the claimants/petitioners. 10. Respondent No.2 being the owner of the vehicle being aggrieved by the impugned judgment has filed MFA No.101722/2014 on the ground that the Tribunal erred in exonerating the liability of the insurer without appreciating the judgment of the Hon'ble Supreme Court and that the insurer is liable to indemnify the owner of the vehicle. Under the contract, the policy covers the risk of 3+1 passengers, hence the insurance company is liable to pay the compensation. 11. The claimants being dissatisfied with the impugned judgment have filed MFA No.24334/2013, seeking enhancement of the compensation on the grounds that the Tribunal has erroneously applied multiplier 14 instead of 15 and that the income of the deceased was considered at Rs.4,500/- p.m., which is on the lower side and further, the Tribunal has also not awarded 30% of the income of the deceased towards future prospects. 12. Heard the learned counsel for the parties. 13. A short question which arise for consideration in these appeals is, as to whether the appellant-owner of the vehicle has made out grounds to fasten the liability against the insurer and whether the claimants have made out grounds for enhancement in the compensation awarded. 14. The learned counsel for the appellant-owner of the vehicle vehemently submitted that the insurance policy produced at Ex.R1 covers the risk of 3 passengers in addition to the driver and the sitting capacity is shown as 3 and that only one claim out of the accident was preferred and therefore, the insurance company is liable to pay compensation and that the Tribunal has erred in exonerating the insurer and fastened the liability against the owner/appellant. 15. 15. The learned counsel for the claimants submitted that the Tribunal ought to have considered the income of the deceased at Rs.4,500/-, as per the guidelines provided for settlement of the case before the Lok Adalat and that 40% of the income of the deceased ought to have been awarded towards future prospects as per the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Limited v. Pranay Sethi and others, (2017) AIR SC 5157 and Hem Raj V. Oriental Insurance Co. Ltd. and others, (2018) ACJ 5. 16. The learned counsel for insurer further submitted that the deduction towards personal and living expenses of the deceased ought to have been made at 1/3rd instead of 1/4th. 17. The insurer himself has produced copy of the policy before the Tribunal at Ex.R1 and the policy shows that it is issued in respect of the offending vehicle and the sitting capacity of the passengers in the vehicle is shown as 3 and therefore the risk of 3 passengers is covered under the said policy. 18. However, the Tribunal proceeded to exonerate the insurer on the ground that respondent No.2-owner of the offending auto has violated the terms and conditions of the policy by allowing respondent No.1-driver to carry excess passengers in violation of the permit. This finding recorded by the Tribunal is erroneous and liable to be set aside. 19. The question of exonerating the liability of the insurer would have arisen in case there were more than 3 claims arising out of the said accident. Admittedly, in the present case, only one claim petition was filed by the claimants in respect of the death of deceased and there were no other claims. Therefore, there is no violation of the terms of the policy in Ex.R1 and the risk of the deceased passenger is covered under the said policy and as such, the insurer cannot avoid his liability on the ground that excess passengers were carried in the said vehicle. 20. Under these circumstances, this Court holds that the impugned judgment to the extent of exonerating the insurer and saddling the liability on the owner is liable to be set aside and it is held that the insurer is liable to pay the compensation being awarded in the claim petition. 21. Thus, the appeal filed by the owner of the vehicle deserved to be allowed. 22. 21. Thus, the appeal filed by the owner of the vehicle deserved to be allowed. 22. The claimants have contended before the Tribunal that the deceased was earning Rs.400/- per day as Hamali and Gumastha and he was the only earning member in the family. However, the claimants have not produced any cogent evidence in order to prove his income. Therefore, the Tribunal on the guess work has taken income of Rs.4,500/- p.m. 23. Considering the age of the deceased and his avocation and also the year of the accident, namely 2012 and the guidelines provided for settlement of the cases before the Lok Adalat, this Court holds it just and necessary to consider the income of the deceased at Rs.6,500/- p.m. for awarding compensation towards loss of dependency. 24. The claimants are also entitled for an addition of 40% of the income of the deceased towards future prospects in view of the judgment of the Hon'ble Supreme Court in the case of Pranay Sethi and Hem Raj stated supra. In addition to this, the claimants are entitled for compensation of Rs.70,000/- under conventional heads. On re-assessment of the income of the deceased and granting future prospects, the claimants are entitled for compensation towards loss of dependency at Rs.10,91,880/- (6067x12x15) and Rs.70,000/- under other conventional heads. Thus, the claimants are entitled for total compensation of Rs.11,61,880/- as against the compensation awarded by the Tribunal at Rs.7,81,000/-. 25. Therefore, it is also held that the claimants have made out grounds for enhancement of the compensation and the point for consideration is answered accordingly. In the result, this Court proceed to pass the following: ORDER MFA No.10172/2014 is allowed. The judgment and award dated 02.09.2013 passed in MVC No. 1265/2012 by the MACT-II, Bellary to the extent of exonerating the insurer-respondent No.3 is set aside. It is ordered that respondents No.1 to 3 are jointly and severally liable to pay compensation awarded in the petition. Further respondent No.3 being the insurer is directed to pay/ deposit compensation amount before the Tribunal within a period of eight weeks. MFA No.24334/2013 is partly allowed. The claimants are awarded compensation of Rs.11,61,880/- with interest at 6% from the date of petition till realization. The order as to the deposit and disbursement as passed by the Tribunal holds good. The amount of compensation amount deposited by the appellant in MFA No.101722/2014 shall be refunded to him.