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2019 DIGILAW 1540 (KAR)

Susheelamma v. Tata Aig Gen Insurance Co Ltd

2019-07-03

K.SOMASHEKAR

body2019
JUDGMENT : K. Somashekar, J. Though this appeal is listed for admission, with the consent of the learned counsel for the appellants and the learned counsel for respondent No.1, it is taken up for final disposal. 2. This appeal is filed by the appellants, who are the legal heirs of deceased Hanumantharayappa, challenging the judgment and award dated 10.04.2014 rendered by the Motor Accident Claims Tribunal (hereinafter referred to as 'the Tribunal') in MVC No.1936/2011, wherein the Tribunal has awarded compensation in a sum of Rs.7,46,000/- with interest at 6% per annum from the date of petition till the date of payment, on the ground that the compensation awarded by the Tribunal is inadequate inasmuch as the Tribunal has taken the income of the deceased in a sum of Rs.4,500/- per month, which is on the lower side and therefore, in this appeal, the judgment and award rendered by the Tribunal is required to be intervened with by appreciating the evidence of PWs.1 to 3 as well as documents as per Exs.P1 to P19 produced by the claimants in order to establish their case for seeking suitable compensation. 3. It is evident from the claim petition that claimant Nos.1 to 3 are the wife, son and mother, respectively, of deceased Hanumantharayappa. It is stated that on 03.11.2010, at about 4:45 p.m., Hanumantharayappa was proceeding as a pillion rider along with one Jagadish on the motorcycle bearing registration No.KA-50-E-640 and when the aforesaid motorcycle was parked by the side of the road near RMC yard in Doddaballapura town, at the relevant point of time, a luggage Auto bearing registration No.KA-06-B-903 came from the opposite direction in a very high speed and hit Hanumantharayappa, as a result of which, he fell down and sustained grievous injuries. The injured, Hanumantharayappa, was shifted to Deeksha hospital in Yelahanka, Bengaluru, wherein he was treated as an inpatient. However, in spite of the better treatment provided to him by Doctors, Hanumantharayappa succumbed to the injuries on 12.01.2011 at about 2:45 p.m. Subsequently, the dead body was sent to the hospital for conducting post mortem examination. It is stated that huge amount was incurred by claimants for providing medical treatment to Hanumantharayappa. Pursuant to filing of complaint before Doddaballapur Police, case in Crime No.119/2010 was registered against the driver of the luggage Auto bearing registration No.KA- 06-B-903. It is stated that huge amount was incurred by claimants for providing medical treatment to Hanumantharayappa. Pursuant to filing of complaint before Doddaballapur Police, case in Crime No.119/2010 was registered against the driver of the luggage Auto bearing registration No.KA- 06-B-903. The deceased Hanumantharayappa was aged about 55 years as on the date of the accident and he was an agriculturist by avocation and also doing vegetable vending business and earning a sum of Rs.9,500/- per month. 4. In pursuance of the summons issued to the respondents in the claim petition, the first respondent - Insurance Company put its appearance through the counsel and filed its written statement resisting the claim petition. However, the second respondent did not participate in the proceedings all throughout. 5. The first respondent - Insurance Company contended that the driver of the offending vehicle i.e., three - wheeler transport Auto was not holding a valid and effective driving licence at the time of the accident as he was licenced to drive light motor vehicle (non-transport) only and he was not authorized to drive the light motor vehicle (transport) involved in the accident. It was further contended that there was no rash and negligence on the part of the driver of the offending vehicle leading to the death of deceased. The aforesaid contentions were taken on behalf of the first respondent and they sought for dismissal of the claim petition. 6. Based on the pleadings of the parties, the Tribunal framed the issues. On behalf of the claimants, claimant No.2 - Sri Vishwanath T.H. examined himself as PW.1 and two other witnesses were examined as PWs.2 and 3. Several documents were got marked as per Exs.P1 to P19. On behalf of the respondents, two witnesses, RWs.1 and 2 were examined and they got marked documents as per Exs.R1 to R6. However, the Tribunal on evaluating the evidence of PWs.1 to 3 and the relevant documents such as certified copy of mahazar at Ex.P3, I.M.V. report at Ex.P4, post mortem report as per Ex.P5, inquest report as per Ex.P6 and X-ray of injured Hanumantharayappa as per Ex.P19, has awarded compensation in a sum of Rs.7,46,000/- with interest at 6% per annum from the date of the petition till the date of payment, to the claimants. 7. 7. Learned counsel for appellants has taken me through the deposition of PW.1, who has given evidence in conformity with the averments made in the claim petition. It is contended by the learned counsel that the Tribunal has erroneously given a finding in exonerating the first respondent - Insurance Company from payment of the compensation awarded by the Tribunal. Merely because the driver of the offending vehicle i.e., luggage auto was having licence to drive light motor vehicle (non-transport) and not LMV (transport) vehicle at the time of the accident, the Tribunal was not justified in exonerating Insurance Company from payment of the compensation. It is further contended that deceased was an agriculturist by avocation and he was also doing vegetable and milk vending business and having earning capacity in a sum of Rs.9,500/- per month. But, the Tribunal has considered the income of the deceased in a sum of Rs.4,500/- per month and it has resulted in gross miscarriage of justice as there are some norms prescribed for consideration of income. Learned counsel for appellants submits that the impugned judgment and award passed by the Tribunal is required to be intervened with and suitable compensation is to be awarded to the appellants by re-appreciating the evidence of PW.1 coupled with the evidence of PWs.2 and 8. Learned counsel for respondent No.1 - Insurance Company has taken me through the evidence of PW.1, who is claimant No.2 in the claim petition and also the son of deceased Hanumantharayappa. Learned counsel submits that though claimant No.2 got examined himself and gave evidence in conformity with the averments made in the claim petition, he did not produce any specific material to show that the income of his father was Rs.9,500/- per month. In the absence of any material to show that Hanumantharayappa during his lifetime was earning Rs.9,500/- per month, appellants are not entitled to enhancement of compensation under the head 'loss of dependency'. Learned counsel further submitted that the Tribunal has considered the evidence available on record and has rightly come to the conclusion that the liability to pay compensation is to be saddled on the owner of the offending vehicle and not on respondent No.1 - Insurance Company. Therefore, in this appeal, the finding of the Tribunal with regard to liability does not call for any interference. Therefore, in this appeal, the finding of the Tribunal with regard to liability does not call for any interference. It is further contended that the appellants are not entitled for enhancement of compensation and respondent No.1 - Insurance Company is not liable to pay compensation. Hence, learned counsel sought for dismissal of this appeal by confirming the judgment and award rendered by the Tribunal in MVC No.1936/2011. 9. I have carefully considered the strenuous submissions made by the learned counsel for the appellants as stated supra and counter arguments of learned counsel for respondent No.1. There is no dispute that Hanumantharayappa died as a result of the injuries sustained by him in the accident involving the offending vehicle i.e., three-wheeler luggage Auto bearing registration No.KA-06-B-903, which fact is indicated in the post mortem report - Ex.P5. The deceased was a pillion rider along with one Jagadish on the motorcycle bearing No.KA.50-E-640 and when the aforesaid vehicle was parked by the side of the road near RMC yard in Doddaballapura town, the offending vehicle came in a high speed and hit the said Hanumantharayappa and as a result, he fell down and sustained grievous injuries. He was shifted to Deeksha hospital, Yelahanka, Bengaluru, where he was treated as an inpatient. Despite the best efforts made by Doctor to save his life, Hanumantharayappa succumbed to the injuries on 12.01.2011 at around 2:45 p.m. The same has been revealed in the post mortem report and also in the claim petition made by the claimants against the respondents seeking suitable compensation. 10. It is relevant to state that the Tribunal has taken income of the deceased in a sum of Rs.4,500/- per month, but the accident occurred on 03.11.2010 and Hanumantharayappa died on 12.01.2011. According to claimants, Hanumantharayappa was an agriculturist by avocation. Apart from that, he was doing milk and vegetable vending business and having income in a sum of Rs.9,500/- per month as per the averments made in the claim petition. But, that requires to be re-appreciated in the evidence of PW.1, the son of the deceased. However, claimants have not produced any material to show the income of Hanumantharayappa for the year 2010-11. Having regard to the wage that prevailed during the relevant period, his income has to be considered in between Rs.5,000/- and Rs.6,500/- per month. But, that requires to be re-appreciated in the evidence of PW.1, the son of the deceased. However, claimants have not produced any material to show the income of Hanumantharayappa for the year 2010-11. Having regard to the wage that prevailed during the relevant period, his income has to be considered in between Rs.5,000/- and Rs.6,500/- per month. Keeping in view the fact that Hanumantharayappa died while he was undergoing treatment in the hospital on 12.01.2011, it is appropriate to take his income as Rs.5,500/- per month instead of Rs.4,500/- held by the Tribunal. Keeping in view the judgment rendered by the Hon'ble Supreme Court in the matter of National Insurance Company Limited v. Pranay Sethi and others, (2017) AIR SC 5157 relating to future prospects and considering the fact that deceased was aged about 55 years as on the date of the accident, future prospects at 10% is to be added to the monthly income of the deceased (Rs.5500/- + 550 = Rs.6,050/-) and 1/3rd of the same (Rs.6,050/- - Rs.2017) is to be deducted towards personal expenses of deceased. Accordingly, compensation to which appellants would be entitled towards 'loss of dependency' is worked out as Rs.4,033/- x 12 x 11 = Rs.5,32,356/- as against Rs.3,96,000/- awarded by the Tribunal. 11. The Tribunal has awarded compensation in a sum of: Rs.10,000/- towards transportation of dead body and funeral expenses; Rs.10,000/- towards loss of consortium payable to petitioner No.1 and Rs.10,000/- towards loss of love and affection. Appellants are entitled to additional compensation of Rs.5,000/-, Rs.5,000/- and Rs.30,000/- under the aforesaid heads keeping in view the ratio laid down by the Apex Court in Pranay Sethi's case referred supra, wherein it is held that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. 12. The Tribunal based on the medical bills produced by claimants with regard to expenses incurred for treatment of Hanumantharayappa, has awarded compensation in a sum of Rs.3,00,000/- under the head 'medical bills' and the same is just and proper and does not need interference. Similarly compensation of Rs.10,000/- each awarded under the heads: 'food and nourishment', 'conveyance' is just and proper and does not need interference. 13. Similarly compensation of Rs.10,000/- each awarded under the heads: 'food and nourishment', 'conveyance' is just and proper and does not need interference. 13. The Apex Court in its judgment rendered in the case of Magma General Insurance Company Limited vs. Nanu Ram, 2018 SCConlineSC 1546 has elaborately discussed the issues relating to compensation under the head 'loss of consortium'. In legal parlance 'Consortium's a compendious term which encompasses 'spousal consortium', 'parental consortium' and 'filial consortium'. 14. In the instant case, claimant No.1 is the wife of deceased Hanumantharayappa. Compensation of Rs.10,000/- awarded by the Tribunal towards spousal consortium has already been enhanced to Rs.40,000/- keeping in view the ratio laid down in Pranay Sethi's case (supra). So far as the compensation under the head 'parental consortium' is concerned, it is granted to a child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training." Appellant No.2, Sri Vishwanath T.H, is the son of deceased Hanumantharayappa and he is entitled to compensation of Rs.40,000/- under the head 'parental consortium'. 15. It is pertinent to note that 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 present case, appellant No.3 - Smt. Muniyamma is the mother of deceased Hanumantharayappa and she has lost her son as a result of the injuries sustained in the accident and she deserves compensation in a sum of Rs.40,000/- under the head 'filial consortium'. 16. 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 Rs. Compensation enhanced by this Court Rs. Total Rs. 16. 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 Rs. Compensation enhanced by this Court Rs. Total Rs. Loss of dependency 3,96,000/- 1,36,356/- 5,32,356/- Medical bills 3,00,000/- Nil 3,00,000/- Food and nourishment 10,000/- Nil 10,000/- Conveyance 10,000/- Nil 10,000/- Transportation of dead body and funeral expenses 10,000/- 5,000/- 15,000/- Loss of consortium payable to 1st petitioner - appellant 10,000/- 30,000/- 40,000/- Loss of love and affection 10,000/- 5,000/- 15,000/- Filial consortium to appellant No.3 Nil 40,000/- 40,000/- Parental consortium to appellant No.2 Nil 40,000/- 40,000/- TOTAL 7,46,000/- 2,56,356/- Rounded off to Rs.2,56,400/- 10,02,356/- 17. Thus, the claimants/appellants are entitled to total compensation of Rs.10,02,356/- as against Rs.7,46,000/- awarded by the Tribunal. The enhanced compensation would come to Rs.2,56,356/- rounded off to Rs.2,56,400/-. 18. The Tribunal has proceeded on the basis that since the driver of the offending vehicle did not have valid licence to drive Light Motor Vehicle (transport) and had licence to drive Light Motor Vehicle (non-transport), there was breach of condition of the policy and hence, the first respondent - Insurance Company was not liable to pay compensation. The Tribunal has erroneously saddled the liability to pay compensation on the second respondent, who is owner of the offending vehicle. Learned counsel, Sri S.V. Hegde Mulkhand, for respondent No.1, contended that respondent No.1 - Insurance Company is not liable to pay the compensation. There is no merit in the said contention in the light of the judgment rendered by the Apex Court in the case of MUKUNDA DEWANGAN V. ORIENTAL INSURANCE COMPANY LIMITED, (2017) 14 SCC 663 . Consequently, the finding of the Tribunal that respondent No.2, the owner of the offending vehicle, is liable to pay compensation to claimants, is to be set aside and liability to pay compensation is to be fastened on respondent No.1- Insurance Company. Respondent No.1 is liable to pay the enhanced compensation with accrued interest at 6% per annum from the date of petition till the date of realization. Accordingly, I proceed to pass the following: ORDER The appeal is hereby allowed in part. The judgment and award dated 10.04.2014 passed by the Motor Accident Claims Tribunal, Bengaluru City, in MVC No.1936/2011 is hereby modified. The compensation payable to the claimants - appellants is enhanced from Rs.7,46,000/- to Rs.10,02,356/-. Accordingly, I proceed to pass the following: ORDER The appeal is hereby allowed in part. The judgment and award dated 10.04.2014 passed by the Motor Accident Claims Tribunal, Bengaluru City, in MVC No.1936/2011 is hereby modified. The compensation payable to the claimants - appellants is enhanced from Rs.7,46,000/- to Rs.10,02,356/-. The total enhanced compensation would come to Rs.2,56,356/- rounded off to Rs.2,56,400/-. The enhanced compensation shall carry interest at the rate of 6% per annum from the date of the petition till the date of payment. The finding of the Tribunal that respondent No.2, the owner of the offending vehicle, is liable to pay compensation, is set aside and liability to pay compensation to the claimants - appellants is fastened on the first respondent. Accordingly, respondent No.1 - TATA AIG General Insurance Company Limited shall deposit the enhanced compensation with interest as stated above before the Tribunal within four weeks from the date of receipt of certified copy of this judgment. On such deposit, the same shall be disbursed to the appellants / claimants on proper identification. Any amount already in deposit shall be adjusted. However, the impugned judgment and award, in so far as it relates to the rate of interest, deposit and apportionment is concerned shall remain unaltered. There shall be no order as to the costs. Office to draw the decree accordingly.