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Karnataka High Court · body

2019 DIGILAW 1502 (KAR)

H. Dadapeer v. Francies Montairo

2019-07-01

K.SOMASHEKAR

body2019
JUDGMENT : K. SOMASHEKAR, J. 1. 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 dated 14.10.2014 rendered by the Tribunal in MVC No.762/2013. MFA No.936/2015 is filed by the appellants/claimants seeking enhancement of compensation and MFA No.1127/2015 is filed by the appellant/insurance company on the question of quantum and also on liability. 3. The factual matrix of the appeals is as under: It is evident in the claim petition that on 30.10.2013 at about 3.15 p.m., deceased Nagma and her husband were moving on motor cycle bearing Reg.No.KA-02/EQ 5871, petitioner no.1 as a rider and deceased as a pillion rider. Near Tharikere Gate in front of Murugendraiah land, Hosadurga Taluk, the driver of lorry bearing Regn.No.KA-18/8377 drove the same in a rash and negligent manner and dashed against the motor cycle. Due to the said impact, Nagma sustained grievous injuries to head and all over body. She was also carrying seven months' foetus in her womb. As a result of the accident, they died at the spot. Thereafter, the deceased was shifted to Government Hospital, Hosadurga for post mortem. Prior to the accident, the deceased was hale and healthy and she was getting Rs.8,000/- p.m. by doing tailoring work. The petitioners' family were entirely depending upon the income of the deceased. As the accident occurred due to rash and negligent driving of the driver of the offending lorry, and the respondents being owner and insurer are liable to pay compensation. On these grounds, the claim petition was filed before the Tribunal seeking compensation. 4. After service of notice, respondents entered appearance before the Tribunal. Respondent No.2 filed objections, denying the petition averments and sought for dismissal of the petition. 5. Based upon the pleadings, the Tribunal framed the issues. In order to prove their case, Petitioner No.1 filed affidavit in lieu of his evidence as PW.1 and got marked Exs.P1 to P8. On behalf of respondents, RW.1 was examined and Exs.R1 and R2 were got marked. 5. Based upon the pleadings, the Tribunal framed the issues. In order to prove their case, Petitioner No.1 filed affidavit in lieu of his evidence as PW.1 and got marked Exs.P1 to P8. On behalf of respondents, RW.1 was examined and Exs.R1 and R2 were got marked. After hearing the arguments advanced by learned counsel for the petitioners and so also, learned counsel for respondents and on evaluation of entire oral and documentary evidence on record, the Tribunal passed the impugned judgment, awarding compensation of Rs.5,99,000/- with interest @ 6% p.a. from the date of petition till the date of payment. Further, respondent no.2 being the insurer, was directed to deposit the compensation amount. Hence, the present appeals are filed by the claimants seeking enhancement of compensation and the insurance company on the ground of liability and so also, quantum of compensation awarded by the Tribunal. 6. Heard Sri R.Shashidhara, learned counsel for the appellants and Sri S.Srishaila, learned counsel for the insurance company and perused the entire records. 7. Learned counsel for the claimants while taking me through the evidence of PW.1 - Dadapeer, who is none other the husband of deceased - Nagma, contends that the Tribunal has erred in assessing the income of deceased Rs.4,000/- p.m. who was doing tailoring work and the Tribunal has grossly erred in only awarding a sum of Rs.5,44,000/- towards loss of dependency by taking the said income. Therefore, the same requires to be enhanced taking into consideration the year of accident and so also, the avocation of the deceased as a Tailor. Further, he contends that the Tribunal has failed to consider the future prospects of the deceased. The Tribunal has committed an error in awarding lesser compensation towards the conventional heads such as, transportation of dead body, funeral expenses, obsequies, loss of consortium, love and affection and loss of estate. Under these circumstances, he seeks for enhancement of compensation under all these heads by re-appreciating and re-assessing the entire oral and documentary evidence on record and prays for allowing the appeal. 8. Per contra, Sri S.Srishaila, learned counsel for the insurance company vehemently contends that the Tribunal has failed to analyse and appreciate the pleadings and so also the evidence adduced by the insurance company. 8. Per contra, Sri S.Srishaila, learned counsel for the insurance company vehemently contends that the Tribunal has failed to analyse and appreciate the pleadings and so also the evidence adduced by the insurance company. It is contended that as on the date of accident, the offending vehicle did not had a valid permit as required under Section 66 of the Motor Vehicles Act, 1988. In this regard, notice was issued to the owner of the vehicle and so also, to the claimants and RW.1 was also examined. But they failed to comply with the terms of the notice. Therefore, the Tribunal ought to have drawn adverse inference against the insured-owner of the offending lorry and dismissed the claim against the insurer. He further contends that the Tribunal has erred in fastening liability on the insurance company to pay the compensation even when the claimant and the insured have failed to prove that the offending lorry had a valid permit to ply the same, as required under Section 66 of the M.V.Act. He further contends that the rider of motor bike, at the time of accident, was not holding the driving licence and he has also contributed negligence in the commission of accident. On all these grounds, he sought for setting aside the impugned judgment passed by the Tribunal by re-appreciating the entire oral and documentary evidence available on record. 9. 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 - Nagma succumbed to the injuries due to the actionable negligence on the part of the driver of the offending lorry bearing No.KA-18/3377 in a road traffic accident that occurred on 30.10.2013. At the time of accident, deceased - Nagma was carrying a seven months old male foetus in her womb which also died at the spot. PW.1 - being the husband of deceased - Nagma has stated in his evidence that at the time of accident, deceased was aged 25 years, tailor by profession and use to earn Rs.8,000/- p.m. He states that the driver of offending vehicle lorry was holding valid licence and the vehicle was covered with insurance policy and holding permit. In support of his claim, he has produced, Ex.P1 - complaint, Ex.P2-FIR, Ex.P3-spot mahazar, Ex.P4-seizure mahazar, Ex.P5-inquest mahazar, Ex.P6-P.M.report, Ex.P7-IMV report and Ex.P8-charge sheet. In support of his claim, he has produced, Ex.P1 - complaint, Ex.P2-FIR, Ex.P3-spot mahazar, Ex.P4-seizure mahazar, Ex.P5-inquest mahazar, Ex.P6-P.M.report, Ex.P7-IMV report and Ex.P8-charge sheet. On appreciation of these documents, the Tribunal has held that respondent no.2 has not challenged the accident in the objections and there is no contrary evidence in this regard. Accepting the contentions of claimants, the Tribunal held that the accident occurred on account of actionable negligence of driver of the offending lorry. 10. It is said that the deceased by avocation was a Tailor and was earning Rs.8,000/- per month. But in proof of the same, no documents were produced. Hence, the Tribunal assessed the income of the deceased at Rs.4000/- p.m. It is relevant to note that the accident is of the year 2013. As per the guidelines and illustrations in 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 Tailor, and keeping in view the year of accident, the notional income is taken at Rs.8,000/-. Further, keeping in view 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 her income. Accordingly, compensation under the head loss of dependency is re-worked out as under: Income per month 8,000 Add: Future prospects @ 40% 3,200 Total 11,200 Rs.11,200 x 12 x 17 x 2/3 = 15,23,200/- 11. Further, under the conventional heads, the Tribunal has awarded in all a sum of Rs.55,000/-. 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.15,000/- is awarded under conventional heads. 12. In the case of MAGMA GENERAL INSURANCE CO. LTD. vs. NANU RAM,2018 SCC ONLINE SC 1546, the Hon'ble Apex Court has held as follows: "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. In the instant appeal, deceased - Nagma has left behind her son - Afshan, who is claimant no.2 and he is minor aged two years. The child has lost the love and affection of his mother, parental aid, protection, affection, society, discipline, guidance and training, the companionship and her role in the family and there is a reciprocity in between the family and the deceased. Further, at the time of accident, there was premature termination of a seven month's old male foetus which was carried by deceased - Nagma in her womb. The claimant No.2 - Afshan has not only lost his mother, but also lost the sentimental attachment and expectation of his younger brother which was a seven month's old foetus in her mother's womb. Hence, in accordance with the above said ruling, a sum of Rs.40,000/-, is awarded to claimant- 2 towards loss of parental consortium. Further, claimant No.1 - Dadapeer being the husband of deceased - Nagma who died in the accident, having lost his wife and so also being the father of the seven month's old male foetus which was carried by his wife being terminated ahead of time, had caused great shock and agony to him and his family. The greatest agony for a parent is to lose their child. The greatest agony for a parent is to lose their child. Hence, for the aforesaid loss of the seven month's old male foetus, he is awarded a sum of Rs.40,000/- towards loss of filial consortium, in accordance with the above said ruling of Magma's case. 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 awarded by this Court Towards loss of dependency 5,44,000 15,23,200 Towards Funeral 5,000 70,000 Towards obsequies 5,000 Towards Transportation of dead body etc. 5,000 Towards loss of estate 5,000 Towards loss of love and affection 10,000 Towards loss of consortium 25,000 Towards filial consortium - 40,000 Towards parental consortium - 40,000 Total 5,99,000 16,73,200 Thus, in all, the claimants are entitled to total compensation of Rs.16,73,200/- as against Rs.5,99,000/- awarded by the Tribunal. The enhanced compensation would be Rs.10,74,200/-. 14. On the question of fastening liability, Sri S. Srishaila, learned counsel for the insurance company contends that the offending lorry bearing Regn.No.KA 18 /8377 did not had a valid permit as required under Section 66 of the Motor Vehicles Act, 1988 as on the date of the alleged accident. In this regard, the company had issued notice to the owner of the vehicle and the claimant under Order 12, Rule 8 CPC for production of the permit, if any, and the officer of the company was also examined as RW.1 in this regard. Inspite of issuing notice, the insured and the claimant failed to the comply with the terms of the notice. He further contends that the Tribunal has failed to appreciate that the insurance company has established that the insured lorry in question did not had valid permit as on the date of alleged accident, as required under Section 66 of the Act. Hence, fastening liability on the insurer is bad in law, even when the claimant/insured cum owner of the lorry has failed to prove that the lorry had a valid permit to ply the same on public road. This issue has been extensively dealt with by the Hon'ble Apex Court in Amrit Paul Singh vs. TATA AIG General Insurance Co. Hence, fastening liability on the insurer is bad in law, even when the claimant/insured cum owner of the lorry has failed to prove that the lorry had a valid permit to ply the same on public road. This issue has been extensively dealt with by the Hon'ble Apex Court in Amrit Paul Singh vs. TATA AIG General Insurance Co. Ltd and others, (2018) 7 SCC 558 wherein it is held as under: "In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the MV Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. The Supreme Court is disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or for that a matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down by the Supreme Court in Swaran Singh, (2004) 3 SCC 297 and Lakhmi Chand (2016) 3 SCC 100 in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the "Tripitaka", that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation the onus cannot be cast on the insurer. Therefore, Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. In such a situation the onus cannot be cast on the insurer. Therefore, Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh and other cases pertaining to pay and recover principle." 15. The principles laid down in the above case, are squarely applicable to the case on hand. Hence, the impugned judgment of the Tribunal in fastening the liability on the insurance company is just and proper and I do not find any justifiable reason to interfere with the same. The respondent insurance company is liable to pay the compensation at the first instance and thereafter, to recover the same from the owner of the vehicle and also in the light of the decision of Hon'ble Supreme Court reported in Oriental Insurance Co. Ltd vs Shri Nanjappan and Ors, (2004) 13 SCC 224 wherein it is held that for the purpose of recovering the amount from the insured, the insurer shall not be required to file a suit. For the aforesaid reasons and findings, I proceed to pass the following: ORDER MFA No.936/2015 filed by the appellants/claimants is allowed in part. The appellants/claimants are entitled for enhanced compensation of Rs.10,74,200/- with interest @ 6% p.a. from the date of petition till realisation. MFA No.1127/2015 filed by the appellant/National Insurance Company Ltd., is hereby dismissed. The impugned judgment and award rendered by the Tribunal in MVC No.762/2013 is modified accordingly. The National Insurance Company Ltd. being the insurer of the offending vehicle, shall deposit the entire compensation awarded by the Tribunal as well as the enhanced compensation, with accrued interest, before the Tribunal, within 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. It is open to the respondent - insurer to execute this judgment for recovering the amount of compensation from the insured - owner of the offending vehicle after depositing the award amount in terms of the decisions of the Apex Court stated supra. The amount in deposit, if any, shall be transmitted to the Tribunal, forthwith. Office to draw the decree accordingly.