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Karnataka High Court · body

2019 DIGILAW 1534 (KAR)

Sunanda v. S. Ravikumar

2019-07-02

K.SOMASHEKAR

body2019
JUDGMENT : K SOMASHEKAR, J. 1. The matters though coming on for admission, since they arise out of the same common judgment passed by the Tribunal, with the consent of learned counsel for both parties, these appeals are taken up for final disposal and are disposed of by this common order. 2. Mfa 551/2014 is preferred by the appellants / legal representatives of the deceased M. Srinivas against the judgment and award dated 26.08.2013 passed by the Tribunal in MVC No.2104/2012 seeking enhancement of compensation. 3. Mfa 552/2014 is preferred by the appellant / injured V. Ananda against the judgment and award dated 26.08.2013 passed by the Tribunal in MVC No.2105/2012 seeking enhancement of compensation. 4. Mfa 9452/2013 is preferred by the Insurance Company against the judgment and award dated 26.08.2013 passed by the Tribunal in MVC No.2104/2012 questioning the liability as well as the quantum of compensation awarded by the Tribunal to the claimants - appellants in MFA No.551/2014. 5. Mfa 9455/2013 is preferred by the Insurance Company against the judgment and award dated 26.08.2013 passed by the Tribunal in MVC No.2105/2012 questioning the liability as well as the quantum of compensation awarded by the Tribunal to the claimant - appellants in MFA No.552/2014. 6. The factual matrix of the appeals is as under: It is stated in the claim petition that on 10.10.2011 at about 12.30 p.m. when the deceased M. Srinivas was riding a motor cycle bearing Regn.No.KA- 53-E-1683 towards Muthsandra from Varthur slowly and carefully along with V. Ananda - injured as the pillion rider, when they reached near Madduramma Dinne, Muthsandra Road, Valepura Cross Junction, Bangalore, a truck bearing Reg.No.KA-05-C-3879 driven by its driver in a rash and negligent manner, had dashed the motor cycle and caused the accident. As a result, the rider M. Srinivas suffered grievous injuries and was immediately admitted to City Hospital, Varthur and later to Mallya Hospital, Bangalore, for better treatment. But however, though he was an in-patient for a period of four months and was provided best treatment, he died. Hence, the legal representatives of deceased M. Srinivas preferred a claim petition before the Tribunal claiming compensation. The pillion rider V. Ananda - appellant in MFA No.551/2014 also suffered grievous injuries and was admitted to City Hospital, Varthur and later to Brookfield Hospital wherein he took treatment and underwent operation. Hence, the legal representatives of deceased M. Srinivas preferred a claim petition before the Tribunal claiming compensation. The pillion rider V. Ananda - appellant in MFA No.551/2014 also suffered grievous injuries and was admitted to City Hospital, Varthur and later to Brookfield Hospital wherein he took treatment and underwent operation. However, he had not recovered completely and suffers from permanent physical disability. Since he was unable to do his work as before and support his family, he filed a claim petition before the Tribunal seeking compensation. 7. Upon service of notice of the claim petition, owner of the offending truck as well as its Insurer filed their written statements but however the driver of the offending truck did not prefer to file written statement though he appeared through counsel. The owner of the offending truck in his written statement resisted the claim petition contending that the petition was not maintainable against him as he was not the registered owner of the vehicle bearing Reg.No.KA-05-C-3879 as on the date of the accident. The said vehicle was transferred to one Sri. V. Nanda Kumar with effect from 1.8.2005. Therefore, it was contended that the owner was not liable to pay any compensation. The Insurance Company in turn filed its written statement admitting that the offending vehicle was duly insured but however, the liability, if any, was restricted to the terms and conditions of the policy issued. It was contended that the accident had not occurred due to the fault of the driver of the truck but it occurred due to the fault of the deceased Srinivas himself who was riding it negligently. It was further contended that the driver of the truck bearing Reg.No.KA-05-C-3879 did not have a valid driving licence to drive the said truck and therefore the Insurance Company was not liable to pay the compensation. Based on the pleadings of the parties, the Tribunal framed the issues. On behalf of the claimants in MVC No.2104/2012 - legal representatives of deceased Srinivas, the claimant No.1 examined herself as PW-1 and got marked documents at Ex.P1 to Ex.P15. On behalf of the claimant in MVC No.2105/2012 - injured V. Ananda, the claimant examined herself as PW-2 and three witnesses as PW-3 to PW-5 and got marked documents at Ex.P16 to Ex.P23. In all, 27 documents were got marked. On behalf of the claimant in MVC No.2105/2012 - injured V. Ananda, the claimant examined herself as PW-2 and three witnesses as PW-3 to PW-5 and got marked documents at Ex.P16 to Ex.P23. In all, 27 documents were got marked. The Insurance Company examined its Legal Retainer as RW-1 and got marked 8 documents and closed its side. 8. On evaluating the entire oral and documentary evidence placed on record, the Tribunal awarded compensation in a sum of Rs.12,97,500/- with interest at 6% per annum from the date of petition till the date of payment in respect of the claimants in MVC No.2104/2012 - appellants in MFA 551/2014 and compensation in a sum of Rs.2,55,000/- with interest at 6% per annum from the date of petition till the date of payment in respect of the claimant in MVC No.2105/2012 - appellants in MFA 552/2014. It is this judgment which is under challenge in these appeals by the claimants in MFA No.551/2014 and MFA No.552/2014 seeking enhancement of compensation and by the Insurer in MFA No.9452/2013 and MFA No.9455/2013 questioning the liability as well as the quantum, by urging various grounds. 9. Learned counsel for the claimants / appellants in MFA No.551/2014 contends that they have been put to irreparable loss due to the death of the deceased M. Srinivas. The claimants had incurred huge amounts towards his medical expenses for the treatment of injuries. He was hospitalized for a period of four months after the accident, but the huge amounts spent towards his treatment has gone in vain. The learned counsel contends that the deceased was a young mason earning Rs.350/- to Rs.400/- per day. But however, since there was no material produced to evidence his income, the Tribunal has taken his income at Rs.4,500/-. But however, the accident being of the year 2011, as per the settled norms in the Lok Adalath, the learned counsel pleads that his income be taken at Rs.6,500/- and compensation be re-assessed accordingly. But however, since there was no material produced to evidence his income, the Tribunal has taken his income at Rs.4,500/-. But however, the accident being of the year 2011, as per the settled norms in the Lok Adalath, the learned counsel pleads that his income be taken at Rs.6,500/- and compensation be re-assessed accordingly. Learned counsel further contends having regard to the fact that the deceased was aged just 29 years and was a young and energetic man, being a mason, in the years to come his income would have increased manifold, in view of the decision of the Apex Court in National Insurance Company Limited -vs- Pranay Sethi, (2017) AIR SC 5157, learned counsel seeks that 40% be added to his income towards 'future prospects'. Further, the learned counsel contends that since the Tribunal has granted only Rs.45,000/- in respect of all the conventional heads put together, in view of the very same judgment in Pranay Sethi, an additional sum of Rs.25,000/- be awarded towards 'conventional heads' so that the total sum comes to Rs.70,000/-. The learned counsel further contends that the Tribunal taking into consideration that fact that the deceased had left behind his wife, three minor children and parents as his dependants, ought to have awarded 'parental compensation' in respect of his children, and 'filial compensation' in respect of his parents, which aspect has not been taken into consideration by the Tribunal. On these grounds, learned counsel for appellants in MFA No.551/2014 prays for allowing the appeal and enhancing the compensation awarded by the Tribunal suitably. 10. The learned counsel for the injured - appellant in MFA No.552/2014 contends that in view of the accident, the injured had sustained head injury and fracture of proximal one-third of left femur and other multiple injuries, as disclosed from the Wound Certificate at Exhibit P.16 and was treated at Brookefield Hospital as an in-patient and had undergone surgery. PW-5 Dr. S. Ramachandra, Orthopaedic Surgeon had assessed the whole body disability of the injured at 17.8%. He had also opined that another surgery was required for removal of implants after complete union of fracture. Further, his Discharge Summary coupled with the oral evidence of PW-5 revealed that the appellant was operated by closed reduction and interlocking nail on 19.10.2011 and his head injury was treated conservatively and he was discharged on 24.10.2011. He had also opined that another surgery was required for removal of implants after complete union of fracture. Further, his Discharge Summary coupled with the oral evidence of PW-5 revealed that the appellant was operated by closed reduction and interlocking nail on 19.10.2011 and his head injury was treated conservatively and he was discharged on 24.10.2011. The learned counsel contends that the deceased was an Electrician and is unable to perform his work due to the injuries sustained in the accident. But however, since there was no material produced to evidence his income, the Tribunal has taken his income at Rs.4,500/-. But however, the accident being of the year 2011, as per the settled norms in the Lok Adalath, the learned counsel pleads that his income be taken at Rs.6,500/- and compensation be re-assessed accordingly. It is his further contention that the injured had sustained fracture proximal one-third of left femur apart from suffering other multiple injuries. As a result, he could not attend to his work for a minimum period of three months. However, the Tribunal has just awarded a sum of Rs.4,500/- towards 'Loss of income during laid up period', i.e., for one month, which is wholly unjust. Hence, he contends that compensation under the said head requires to be awarded for a minimum period of three months. Further, the learned counsel contends that the compensation towards 'Attendant charges', 'Conveyance', towards 'Food, nourishment, diet etc' and 'Loss of future amenities of life' have been granted by the Tribunal at a lower side and hence seeks that the compensation under the above heads as well be suitably enhanced. On all these grounds, the learned counsel for the appellant in MFA 552/2014 - injured prays for allowing his appeal and enhancing the compensation awarded by the Tribunal. 11. The learned counsel for the appellant in MFA No.9452/2013 and MFA No.9455/2013 - Insurance Company vehemently opposes the contentions put forth by the counsel for the claimants and contends that the vehicle involved in the accident is a goods vehicle coming under the category of medium goods vehicle and the gross weight of the vehicle is more than 7500 kgs., i.e., it weighs 10,500 kgs. and is a transport vehicle. In order to drive a transport vehicle, the driver should possess a valid and effective driving licence with proper transport endorsement. and is a transport vehicle. In order to drive a transport vehicle, the driver should possess a valid and effective driving licence with proper transport endorsement. However, the driver had licence to drive only light motor vehicle as on the date of the accident. Hence, the learned counsel contends that the Tribunal has erred in fastening the liability on the Insurer. In support of his contention, the learned counsel places reliance on a recent judgment of the Apex Court rendered on 01.07.2019 in Civil Appeal No.5123/2019 in the case of Parminder Singh vs. New India Assurance Company Ltd., pertaining to invalid driving licence. The relevant portion of the said judgment reads as under: "7. On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent - Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. 7.1. This Court in Shamanna & Ors. V. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of 'pay and recover' can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.4 4 (2018) 9 SCC 650 ." (emphasis supplied) It is the further contention of the learned counsel that the Tribunal has erred in holding that the entire accident has occurred due to the rash and negligent driving of the truck in question and hence is liable to be set aside. It is seen from the sketch of scene of occurrence of the accident that the lorry in question coming from the left side of the motorcycle has almost taken turn to its right, during that time, the deceased Srinivas who was riding the motorcycle had dashed against the front portion of the lorry and caused the accident. It is seen from the sketch of scene of occurrence of the accident that the lorry in question coming from the left side of the motorcycle has almost taken turn to its right, during that time, the deceased Srinivas who was riding the motorcycle had dashed against the front portion of the lorry and caused the accident. This proves the fact that the accident has in fact occurred due to the contributory negligence of the deceased Srinivas as well. Hence, the Tribunal erred in holding that the accident was due to the rash and negligence of the driver of the offending lorry and has thereby erred in fixing the liability on the Insurance Company to pay the compensation and hence the learned counsel contends that his appeal in MFA 9452/2013 be allowed and the Insurance Company be exonerated of its liability. Further, he contends that the compensation awarded by the Tribunal may also be suitably reduced. The learned counsel for the appellant - Insurance Company in MFA No.9455/2013 as well contends that the compensation awarded by the Tribunal under various heads to the injured V. Ananda as well is on the higher side and hence contends that the compensation awarded to the injured may be reduced suitably. Thus, the learned counsel contends that the Insurance Company be exonerated of its liability to pay the compensation awarded by the Tribunal in respect of the appellants in MFA 551/2014 as well as the appellant in MFA 552/2014. 12. In the backdrop of the contentions taken by the learned counsel for the parties, I find that there is no dispute with regard to the accident that occurred on 19.10.2011 and with regard to the death of M. Srinivas as well as the injuries suffered by V. Ananda in the accident. It is evident from Exhibit R1 which is the sketch of the scene of occurrence of the accident that the offending lorry coming from the left side of the motorcycle had almost taken turn to its right, during which time the rider of the motorcycle - deceased M. Srinivas had dashed against the front portion of the lorry and caused the accident. Hence, I find that the accident had occurred due to the negligence of the deceased Srinivas as well. I hereby fix 20% contributory negligence on the deceased Srinivas for the occurrence of the accident. Hence, I find that the accident had occurred due to the negligence of the deceased Srinivas as well. I hereby fix 20% contributory negligence on the deceased Srinivas for the occurrence of the accident. Further, in view of the decision of the Apex Court in the case of Parminder Singh vs. New India Assurance Company Ltd. in Civil Appeal No.5123/2019, it is just and proper to direct the Insurance Company to pay the compensation to the claimants in the first instance and then to recover it from the owner of the offending vehicle in respect of both the appeals filed by the claimants. 13. Now, coming to the question of enhancement of compensation in respect of the appellants in MFA No.551/2014 is concerned, as rightly contended by the learned counsel for the claimants, the accident being of the year 2011, the Tribunal has erred in taking the notional income of the deceased at Rs.4,500/- per month. As per the settled norms in the Lok Adalath Chart, I hereby assess the monthly notional income of the deceased at Rs.6,500/- to compute the compensation. Further, in view of the decision in National Insurance Company Limited -vs- Pranay Sethi, (2017) AIR SC 5157, since the deceased was aged 29 years, I find it proper to add 40% of his income towards 'future prospects'. Hence, adding 40% of Rs.6,500/- towards his 'future prospects', the income is arrived at Rs.9,100/-. Then deducting one-fourth out of the said Rs.9,100/- towards his personal expenses, the income is finally arrived at Rs.6,825/-. However, the multiplier adopted by the Tribunal at 17' remains undisturbed. Hence, with Rs.6,825/- as the income and 17' multiplier, the compensation towards 'Loss of dependency' would come to Rs.13,92,300/- (6825 x 12 x 17) as against Rs.6,88,500/- awarded by the Tribunal. Further, since the Tribunal has granted only Rs.45,000/- in respect of all the conventional heads put together, in view of the very same judgment in Pranay Sethi, an additional sum of Rs.25,000/- is hereby awarded towards 'conventional heads' so that the total sum granted under conventional heads comes to Rs.70,000/-. Having regard to the ratio of the reliance in the case of MAGMA GENERAL INSURANCE CO. LTD. Having regard to the ratio of the reliance in the case of MAGMA GENERAL INSURANCE CO. LTD. vs. NANU RAM,2018 SCCONLINESC 1546, it is just and proper to grant 'parental consortium' to Appellants 2, 3, and 4 in MFA 551/2014 who are the children of the deceased, in view of the death of their father at an unexpected age. In the said judgment, the Apex Court has held thus: "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." In accordance with the said ruling, I hereby grant a sum of Rs.40,000/- each to Appellants 2, 3 and 4, in all amounting to Rs.1,20,000/- under the head "Loss of Parental consortium to Appellants 2, 3 & 4". In the same judgment in MAGMA GENERAL INSURANCE CO. LTD. (supra), it is further held thus: "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." Hence, 'Filial consortium' is required to be granted to the parents of the deceased, i.e., appellants 5 and 6. In accordance with the said ruling, I hereby grant a sum of Rs.40,000/- each to Appellants 5 and 6, in all amounting to Rs.80,000/- under the head "Loss of filial consortium to Appellants 5 & 6". However, the compensation granted by the Tribunal in respect of the other heads requires no interference. In view of the discussion made above and with the altered factors, the compensation in respect of the appellants in MFA No.551/2014 is re-worked out as under:- Particulars Compensation awarded by MACT Compensation enhanced by this Court Total Loss of dependency 6,88,500 7,03,800 13,92,300 Medical expenses 5,44,000 Nil 5,44,000 Funeral expenses 10,000 25,000 70,000 Transportation of dead body 5,000 Loss of estate 5,000 Loss of consortium 25,000 Loss of love and affection to appellants 2 to 4 (Parental consortium) 20,000 1,00,000 1,20,000 Filial Consortium to Appellants 5 & 6 Nil 80,000 80,000 TOTAL 12,97,500 9,08,800 22,06,300 Liability of Insurer - 80% Contributory negligence of deceased - 20% 14. In so far as the appeal in MFA No.552/2014 filed by the claimant Ananda - injured is concerned, the accident being of the year 2011, the Tribunal has erred in taking the notional income of the injured at Rs.4,500/- per month. As per the settled norms in the Lok Adalath Chart, I hereby assess the monthly notional income of the injured at Rs.6,500/- to compute the compensation towards 'Loss of future income'. However, the whole body disability adopted by the Tribunal at 10% and the multiplier adopted at 18' remains undisturbed. Hence, with Rs.6,500/- as the income and 18' multiplier, the compensation towards 'Loss of future income' would come to Rs.1,40,400/- (6500 x 12 x 18 x 10/100) as against Rs.97,200/- awarded by the Tribunal. Further, in view of the fact that the injured was under treatment for a period of three months, I hereby award compensation towards 'Loss of income during laid up period', for a period of three months, which comes to Rs.19,500/- as against Rs.4,500/- awarded by the Tribunal. Further, the compensation towards 'Attendant charges', 'Conveyance', towards 'Food, nourishment, diet etc' and 'Loss of future amenities of life' granted by the Tribunal at Rs.28,000/- totally being on a lower side, I hereby enhance the compensation under all the above heads put together by another Rs.12,000/-. As a result, the total compensation towards 'Attendant charges', 'Conveyance', 'Food, nourishment, diet etc' and 'Loss of future amenities of life' put together comes to Rs.40,000/-. However, I am of the opinion that the compensation awarded by the Tribunal under other heads requires no interference. In view of the discussion made above and with the altered factors, the compensation in respect of the injured - appellant in MFA No.552/2014 is re-worked out as under:- Particulars Compensation awarded by MACT Compensation enhanced by this Court Total Loss of future income 97,200 43,200 1,40,400 Pain and suffering 60,000 Nil 60,000 Medical expenses 50,000 Nil 50,000 Loss of income during laidup period 4,500 15,000 19,500 Attendant charges 3,000 12,000 40,000 Conveyance charges 5,000 Food and nutrition 10,000 Loss of amenities 10,000 Future medical expenses 15,000 Nil 15,000 TOTAL 2,54,700 70,200 3,24,900 Accordingly, I proceed to pass the following: ORDER MFA No.551/2014 filed by the appellants - legal representatives of M. Srinivas is allowed in part. The impugned judgment and award dated 26.08.2013 passed by the Tribunal in MVC No.2104/2012 is hereby modified. The impugned judgment and award dated 26.08.2013 passed by the Tribunal in MVC No.2104/2012 is hereby modified. The compensation payable to the appellants in MFA No.551/2014 is enhanced from Rs.12,97,500/- to Rs.22,06,300/-. The enhanced compensation comes to Rs.9,08,800/-. However, since contributory negligence of the deceased is fixed at 20% by this Court, the Insurer is liable to pay 80% of the compensation instead of the entire compensation. The enhanced compensation shall carry interest at 6% from the date of petition till the date of realisation. However, the rate of interest ordered by the Tribunal shall remain unaltered. The Insurer - ICICI Lombard General Insurance Company Ltd. is directed to deposit the enhanced compensation with interest before the Tribunal within a period of six weeks from the date of receipt of a copy of this order. MFA No.552/2014 filed by the appellant - injured V. Ananda is allowed in part. The impugned judgment and award dated 26.08.2013 passed by the Tribunal in MVC No.2105/2012 is hereby modified. The compensation payable to the appellant in MFA No.552/2014 is enhanced from Rs.2,54,700/- to Rs.3,24,900/-. The enhanced compensation comes to Rs.70,200/-, which shall carry interest at 6% from the date of petition till the date of realisation. However, the rate of interest ordered by the Tribunal shall remain unaltered. The Insurer - ICICI Lombard General Insurance Company Ltd. is directed to deposit the enhanced compensation with interest before the Tribunal within a period of six weeks from the date of receipt of a copy of this order. MFA No.9452/2013 and MFA 9455/2013 both filed by the Insurer are also allowed in part. The Insurer - ICICI Lombard General Insurance Company Ltd. is directed to deposit the compensation in respect of the appellants in MFA 551/2014 and MFA 552/2014 at the first instance and thereafter they are granted liberty to recover the compensation so paid to the claimants, from the owner of the offending lorry, in accordance with law. The amounts in deposit in MFA 9452/2013 and MFA 9455/2013 shall be transmitted to the concerned Tribunal forthwith. On such deposit, the same shall be disbursed to the respective appellants in MFA No.551/2014 and MFA No.552/2014 in terms of the award, on proper identification. LCR shall be returned to the concerned Tribunal forthwith. Office to draw the decree accordingly.