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2019 DIGILAW 64 (KAR)

Sunita v. Abdul Samad

2019-01-07

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. PATIL, J. 1. Though the matter was posted for admission, with the consent of learned counsel for the parties, the appeal was heard on merits and taken up for final disposal. 2. This appeal is directed against the judgment and award dated 09.07.2013 passed by the learned Member, MACT, Kalaburagi in MVC No.857/2007. 3. It is the case of the claimants that on 06.06.2007 at about 4.00 p.m. the deceased Rajendra was proceeding on his Hero Honda motorcycle bearing registration No.MH-25-E-8845 on NH-9. When he was so proceeding, near Datta Mandir, another motorcycle bearing No.KA-38-TR-118 Pulsar came from opposite direction in high speed and in a rash and negligent manner trying to overtake a truck and dashed against the motorcycle of the deceased, thereby, the deceased sustained severe injuries and succumbed to the said injuries in the hospital. The deceased was hale and healthy and he was aged about 37 years, he was a teacher by profession at Kadar Tanda, Tq. Omerga, Dist. Osmanabad and he was getting salary of Rs.13,000/- per month. Due to untimely death of the deceased the claimants who are wife, mother and children of the deceased are put to great loss and they have lost their dependency. Therefore, they claimed compensation of Rs.16,00,000/-. 4. In pursuance of the notice, respondent Nos.1 and 2 appeared before the Tribunal. Respondent No.1 did not file any written statement. Respondent No.2 filed written statement contending that the claim petition is not maintainable. It was specifically contended that the rider of the Bajaj Pulsar vehicle had no driving licence. Two motorcycles are involved in the accident and it is a case of head on collision. Therefore, the petition is bad for non-joinder of necessary parties. It has also contended that Bajaj Pulsar motorcycle was not insured with it as on the date of accident. Therefore, the respondent No.2 prayed for dismissal of the claim petition. 5. On the basis of the pleadings of the parties, the Tribunal framed issues. Claimant No.1 wife of deceased was examined as PW.1 and got marked 6 documents. Thereafter, respondent No.2 examined its witness as RW.1 and got marked two documents. The learned Member of the Tribunal after hearing the parties, passed the impugned judgment and award awarding compensation of Rs.7,11,015/- with interest against the respondent No.1, the owner of the vehicle. The petition against respondent No.2 was dismissed. 6. Thereafter, respondent No.2 examined its witness as RW.1 and got marked two documents. The learned Member of the Tribunal after hearing the parties, passed the impugned judgment and award awarding compensation of Rs.7,11,015/- with interest against the respondent No.1, the owner of the vehicle. The petition against respondent No.2 was dismissed. 6. Being aggrieved by the said judgment and award, the claimants are before this Court contending that the compensation awarded by the Tribunal is on lower side. The Tribunal has not awarded compensation towards loss of future prospects as per the decision of the Hon'ble Supreme Court in the case of National Insurance Co. Ltd., Vs. Pranaya Sethi reported in, (2017) AIR SC 5157. The compensation awarded on other heads is also on lower side. 7. The learned counsel for the appellants claimants submitted that the insurer may be made liable to pay compensation and recover the same in view of the decision of the Hon'ble Supreme Court in the case of Shamanna and another Vs. The Divisional Manager, Oriental Insurance Co. Ltd. and others reported in AIAR (Civil) 805. He further submitted that the compensation may be enhanced as per the decision of the Hon'ble Supreme Court in the case of National Insurance Co. Ltd., Vs. Pranaya Sethi, (2017) AIR SC 5157. 8. Per contra, the learned counsel for the respondent No.2 - insurer supported the impugned judgment and award. 9. The insurer has taken a specific contention before the Tribunal that Bajaj Pulsar motorcycle which is the offending vehicle in the case is owned by the original respondent No.1. The Tribunal has held that the accident in question has occurred due to rash and negligent riding of said Bajaj Pulsar motorcycle. Further, the Tribunal has framed issue No.2 placing burden on respondent No.2 to prove that the rider of the Bajaj Pulsar motorcycle was not holding valid driving licence. Therefore, there is violation of terms and conditions of the policy. This issue was held in the affirmative on the basis of the evidence produced by respondent No.2. The insurer has got examined his witness as RW.1. He has deposed before the Tribunal that the rider of the offending motorcycle was not holding a valid driving licence. Therefore, there is violation of terms and conditions of the policy. This issue was held in the affirmative on the basis of the evidence produced by respondent No.2. The insurer has got examined his witness as RW.1. He has deposed before the Tribunal that the rider of the offending motorcycle was not holding a valid driving licence. Further, it is also proved by the insurer that the three persons were travelling on the motorcycle and that even the said motorcycle was having only temporary registration, thereby violation of section 128 of the M.V. Act is also made out. Respondent No.1 the owner of the vehicle though appeared before the Tribunal through his counsel neither filed the written statement nor produced the driving licence. Even respondent No.2 has got issued notice to respondent No.1 to produce the driving licence of the rider of the motorcycle. Despite such notice having been served, respondent No.1 failed to produce the driving licence. On the basis of this evidence, the Tribunal has come to the conclusion that the rider of the offending vehicle was not having valid driving licence and that the insurer has discharged his burden to prove the same and accordingly, the issue No.2 was answered in favour of the insurer and the insurer was exonerated. 10. The submission of the learned counsel for the appellants-claimants that insurer may be directed to pay the compensation and recover the same from the owner cannot be accepted. In the above referred decision, the Hon'ble Supreme Court has held in para- 12 as under: "Since the reference to the larger bench in Parvathneni case has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently the decision in Swaran Singh case followed in Laxmi Narain Dhut and other cases hold the field." 11. Therefore, where the insurer is able to prove the breach of policy conditions, no liability can be saddled on him, the question of passing an order for pay and recover does not arise. Under these circumstances, the submission made on behalf of the claimants in this regard is liable to be rejected. 12. The Tribunal has considered the income of the deceased at Rs.12,467/- in view of the salary certificate produced at Ex.P.6. There is no dispute regarding the income of the deceased being correctly considered. Under these circumstances, the submission made on behalf of the claimants in this regard is liable to be rejected. 12. The Tribunal has considered the income of the deceased at Rs.12,467/- in view of the salary certificate produced at Ex.P.6. There is no dispute regarding the income of the deceased being correctly considered. The age of the deceased was 40 years and proper multiplier applicable for assessing the loss of dependency is 15 as per the principles laid down in the decision of Sarla Verma (Smt) and Others Vs. Delhi Transport Corporation and Another reported in, (2009) 6 SCC 121 . Monthly income of the deceased is taken at Rs.12,467/- and 50% of the same has to be added towards future prospects as laid down in the decision in the case of National Insurance Co. Ltd., Vs. Pranaya Sethi, (2017) AIR SC 5157. Thus, if Rs.6233/- is added to Rs.12,467/-, it comes to Rs.18,700/-. Out of which 1/4th (Rs.4,675/-) is deducted towards personal and living expenses of the deceased, then the net income comes to Rs.14,025/-. The same is multiplied by 12 and further multiplied by proper multiplier of 15 which comes to Rs.25,24,500/- (Rs.14,025 x 12 x 15). This amount is awarded towards loss of dependency. As per the principles stated in the above referred decision, a sum of Rs.15,000/- towards loss of estate, Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral expenses are awarded. Thus, the claimants are entitled for a total compensation of Rs.25,94,500/- as against Rs.7,11,015/- awarded by the Tribunal. Therefore, the claimants are entitled for enhanced compensation of Rs.18,83,485/- with interest @ 6% p.a. from the date of petition till final realization. Thus, the appeal deserves to be partly allowed. 13. Accordingly, the appeal is allowed in part. The claimants are entitled for enhanced compensation of Rs.18,83,485/- with interest @ 6% p.a. from the date of petition till realization from respondent No.1.