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2020 DIGILAW 1432 (KAR)

P. l. Vanajakshi v. Rasool Sab

2020-07-17

S.G.PANDIT, V.SRISHANANDA

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JUDGMENT S.G.Pandit, J. - Both the claimants and M/s ICICI Lombard Motor Insurance Co., Ltd., the insurer of the offending vehicle, are in appeal aggrieved by the judgment and award, dated 14.09.2015 passed in M.V.C. No.1385 of 2014 on the file of the III Motor Accident Claims Tribunal at Ballari (hereinafter referred to as 'the Tribunal', for short). The claimants not being satisfied with the quantum of compensation are in appeal in M.F.A. No.100041 of 2016 praying for enhancement of the compensation, whereas the insurer has filed M.F.A. No.103249/2015 questioning the liability saddled on it. 2. The claimants are the wife, parents and brothers of one Honnur Swamy who died in a road traffic accident. A claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 (for short 'the Act') praying for compensation for the accidental death of Honnur Swamy in a road traffic accident which took place on 06/07-12-2014 involving motorcycle bearing No.KA-34/S-5008 and SRS bus bearing No.KA- 42/6007. The claimants contended that the deceased Honnur Swamy was aged 21 years as on the date of the accident and was earning Rs.500/- per day by doing coolie work, and was contributing his earnings to the family. On issuance of notice, the respondent Nos.1 and 2 remained absent, whereas respondent No.3-insurer appeared and filed its written statement. In the written statement, the entire case of the claimants was denied in toto. It is also denied the issuance of policy in respect of the offending vehicle and that respondent No.1 had no valid and effective driving licence at the time of the accident. 3. The claimants, in support of their case, got examined claimant No.1 as P.W.1, apart from marking the documents as Exs.P.1 to P.12. The respondent No.3- insurer examined R.W.1, apart from marking the documents as Exs.R.1 to R.4. The Tribunal, on scrutiny of the material placed before it, awarded a total compensation of Rs.8,85,000/- with interest at the rate of 6% per annum from the date of petition till realisation, on the following heads: 1. Loss of dependency Rs. 8,10,000-00 2. Transportation of dead body and funeral expenses Rs. 25,000-00 3. Loss of consortium to the 1st petitioner Rs. 25,000-00 4. Loss of estate Rs. 25,000-00 Total Rs. Loss of dependency Rs. 8,10,000-00 2. Transportation of dead body and funeral expenses Rs. 25,000-00 3. Loss of consortium to the 1st petitioner Rs. 25,000-00 4. Loss of estate Rs. 25,000-00 Total Rs. 8,85,000-00 While awarding the above compensation, the Tribunal assessed the income of the deceased at Rs.5,000/- per month, deducted 1/4th towards personal and living expenses of the deceased and applied multiplier of 18'. Further, the Tribunal saddled the liability to pay the compensation, jointly and severally, on respondent Nos.2 and 3 and directed respondent No.3-insurer to deposit the entire compensation. 4. The claimants not being satisfied with the quantum of compensation awarded by the Tribunal, are before this Court praying for enhancement of the compensation, whereas the insurer of the offending vehicle is before this Court aggrieved by the saddling of liability to pay the compensation. 5. Heard the learned counsel for the claimants, the learned counsel for the insurance company and the learned counsel for the owner of the offending bus. Perused the trial Court records. 6. The learned counsel for the claimants would submit that the deceased was doing coolie work earning Rs.500/- per day. The accident is of the year 2014. The Tribunal ignoring the evidence of P.W.1, the wife of the deceased, assessed the income of the deceased at Rs.5,000/- per month which is on the lower side. He would submit that the notional income of a person taken by this Court and the Lok Adalats, while settling the accident claims of the year 2014, would be on the much higher side. Hence, he prays for assessing the notional income of the deceased as would be assessed by this Court and Lok Adalats. He would submit that the Tribunal failed to award any compensation towards future prospects which the claimants would be entitled to at 40% of the assessed income as the deceased was aged 24 years as on the date of the accident. Further learned counsel also submits that claimant Nos.2 and 3 are parents of the deceased who would be entitled for a sum of Rs.40,000/- each on the head of 'filial consortium' in view of the decision of the Hon'ble Apex Court in the case of Magma General Insurance Co. Limited v. Nanu Ram and Others, (2018) ACJ 2782 . Thus, he prays for allowing the claimants' appeal (MFA No.100041/2016) and for enhancement of the compensation. 7. Limited v. Nanu Ram and Others, (2018) ACJ 2782 . Thus, he prays for allowing the claimants' appeal (MFA No.100041/2016) and for enhancement of the compensation. 7. Per contra, the learned counsel for the insurer submits that the quantum of compensation awarded by the Tribunal is proper and correct, which needs no interference. Further, he submits that, in the absence of any material to establish the income of the deceased, the Tribunal has rightly assessed the notional income of the deceased at Rs.5,000/- per month. It is also his submission that since the deceased was not having a permanent job and permanent income, the claimants would not be entitled for compensation on the head of 'future prospects'. 8. The learned counsel for the insurer in respect of the appeal filed by the insurance company argued that the Tribunal committed a grave error in saddling the liability on the insurer since the owner of the vehicle had violated the terms and conditions of the policy. It is his submission that the permit was issued to the offending vehicle to ply the vehicle within the State of Karnataka, whereas the accident had taken place outside the State of Karnataka i.e. in the Andhra Pradesh. When there is violation of terms and conditions of the policy, the Tribunal could not have saddled the liability on the insurer. The learned counsel submits that the accident had taken place on Ballari12 Bengalurui road on S.H.19, D.Hirehalla of Anantpur District in Andhra Pradesh. He further submits that the FIR was registered at D.Hirehalla Police station which comes within the jurisdiction of Anantpur of Andhra Pradesh State. Thus, he submits that the Tribunal committed an error in saddling the liability on the insurance company. He further submits that in view of the decision of the Hon'ble Apex Court in the case of Amrit Paul Singh and another Vs. TATA AIG General Insurance Co. Ltd. and others, (2018) AIR SC 2662 , the Tribunal ought to have directed the insurance company to pay the compensation, at the first instance, and to recover the same from the owner of the offending bus. Thus, he prays for allowing the appeal filed by the insurance company to the above extent. 9. Learned counsel, Sri Gode Nagaraj, appearing for the owner of the offending bus, justified the judgment and award passed by the Tribunal saddling the liability on the insurer. Thus, he prays for allowing the appeal filed by the insurance company to the above extent. 9. Learned counsel, Sri Gode Nagaraj, appearing for the owner of the offending bus, justified the judgment and award passed by the Tribunal saddling the liability on the insurer. He submits that the accident had taken place on the border of Karnataka and Andhra Pradesh States and the accident had taken place within the State of Karnataka. He further submits that SH-19 was the only route which was available to Bengaluru from Ballari. Thus, he prays for dismissal of the appeal filed by the insurer. 10. Having heard the learned counsels for the parties and on perusal of the trial Court records, the following points would arise for our consideration in both the appeals: i) Whether the Tribunal is justified in saddling the entire liability on the insurer of the offending vehicle? ii) Whether the income of the deceased assessed by the Tribunal at Rs.5,000/- per month is proper and correct? iii) Whether the claimants would be entitled for addition of 40% of the assessed income towards future prospects? iv) Whether the claimants would be entitled for enhanced compensation? 11. Answer to point No.i) would be in partly affirmative, answer to point No.ii) in the negative and the answer to point Nos.iii) and iv) would be in the affirmative, for the following reasons: Point No.i): The accident had taken place on 06/07- 12-2014 involving the motorcycle bearing No.KA-34/S- 5008 and the SRS Bus bearing No.KA-42/6007 on SH- 19, Bengaluru-Ballari Road, within the jurisdiction of D.Hirehal village Police Station of Anantpur District of Andhra Pradesh. The FIR-Ex.P.1 would indicate the place of accident as 'On SH-19, Bellary-Bengaloor Road, D.Hirehal Mandal', which comes within the jurisdiction of D.Hirehal village Police Station of Anantapur District in Andhra Pradesh. The learned counsel for owner of the offending bus contends that the owner had the permit to ply the bus from Bengaluru through out Karnataka; it was loop route and hence, the question of bus plying outside the permitted route does not arise. However, the learned counsel for the insurer invites the attention of this Court to Exs.R.3 and R.4. Ex.R.3 is the Contract Carriage Permit which would indicate that the permit holder/owner of the bus had permit to operate the bus through out the State of Karnataka. However, the learned counsel for the insurer invites the attention of this Court to Exs.R.3 and R.4. Ex.R.3 is the Contract Carriage Permit which would indicate that the permit holder/owner of the bus had permit to operate the bus through out the State of Karnataka. Ex.R.4 is the document which shows that the police had released the bus on collecting the compounding fee for entering the State of Andhra Pradesh without permit. Therefore, it is clear that the owner of the bus had no permit to ply the bus in the State of Andhra Pradesh. Ex.R.3 clearly depicts that the owner of the bus had permit to ply the bus through out Karnataka and not in Andhra Pradesh. The Hon'ble Apex Court in the case of Amrit Paul Singh's case (supra) has held that wherever there is violation of permit condition, it is for the insurer to pay the compensation amount at the first instance and the insurer is at liberty to recover the same from the owner of the vehicle. Following the above said judgment, we are of the view that, in the present case also, the insurer of the offending bus is to be directed to pay the compensation amount with liberty to recover the same from the owner of the bus in the same proceedings. Accordingly, we answer Point No.i). Point No.ii): The learned counsel for the claimants submitted that the notional income of the deceased assessed by the Tribunal at Rs.5,000/- per month is on the lower side. He submits that the accident is of the year 2014 and this Court and Lok Adalats, would normally assess the notional income of a person, while settling the accidental claims of 2014, at Rs.7,500/- per month. The claimants have not made available any document or record to establish the income of the deceased. In the absence of any material to establish the income of the deceased, the Tribunal will have to assess the income of a person notionally. The notional income of the deceased assessed by the Tribunal at Rs.5,000/- per month is on the lower side. Therefore, in the instant case also, in the absence of any material to establish the income of the deceased, taking note of the year of the accident, we deem it appropriate to assess the notional income of the deceased at Rs.7,500/- per month. Therefore, in the instant case also, in the absence of any material to establish the income of the deceased, taking note of the year of the accident, we deem it appropriate to assess the notional income of the deceased at Rs.7,500/- per month. Point No.iii): The deceased was aged 24 years as on the date of the accident. The Hon'ble Apex Court in Pranay Sethi's case (supra), has held that the claimants would be entitled for addition of 40% of the assessed income towards future prospects wherever the deceased was below the age of 40 years and was not having any permanent employment or permanent/fixed income. In the instant case, the deceased was below the age of 40 years. Therefore, the claimants would be entitled for addition of 40% of the assessed income towards future prospects. In the present case, the dependants are five in numbers and as such, the deduction made by the Tribunal at 1/4th of the income of the deceased towards his personal and living expenses is just and proper and the same needs no interference. So also, the multiplier 18' adopted by the Tribunal is proper and correct. On taking the notional income of the deceased at Rs.7,500/- per month, adding 40% of the assessed income towards future prospects, deducting 1/4th of the income towards personal and living expenses of the deceased and applying the multiplier 18', the claimants would be entitled to a total compensation of Rs.17,01,000/- (Rs.7,500 + 40% = Rs.10,500 minus 1/4 = Rs.7875 x 12 x 18) towards 'loss of dependency' (including future prospects). 12. Claimant Nos.2 and 3 are the parents of the deceased who have lost the love, affection and care of their son at the evening of their life. Hence, in view of the decision of the Hon'ble Apex Court in Magma General Insurance Co. Ltd's case (supra), claimant Nos.2 and 3 would be entitled for Rs.40,000/- each towards filial consortium. 13. The claimants would be entitled to a sum of Rs.70,000/- on the conventional heads. 14. On reassessment, the claimants would be entitled for the following modified compensation: S. No. Heads Amount 1. Loss of dependency (including future prospects) Rs. 17,01,000/- 2. Conventional Heads Rs. 70,000/- 3. Filial consortium (to claimant Nos. 2 and 3 at Rs. 40,000 each) Rs. 80,000/- Total Rs. 14. On reassessment, the claimants would be entitled for the following modified compensation: S. No. Heads Amount 1. Loss of dependency (including future prospects) Rs. 17,01,000/- 2. Conventional Heads Rs. 70,000/- 3. Filial consortium (to claimant Nos. 2 and 3 at Rs. 40,000 each) Rs. 80,000/- Total Rs. 18,51000/- Thus, in all, the claimants would be entitled to a total compensation of Rs.18,51,000/-, as against Rs.8,85,000/- awarded by the Tribunal, along with interest at 6% per annum from the date of petition till the date of realization. Accordingly, both the appeals are allowed in part. The judgment and award dated 14.09.2015 passed in M.V.C. No.1385/2014 passed by the Tribunal is hereby modified. The claimants are entitled to a total compensation of Rs.18,51,000/-, as against Rs.8,85,000/- awarded by the Tribunal, along with interest at 6% per annum from the date of petition till the date of realization. The insurer of the offending Bus is directed to deposit the entire compensation amount with liberty to recover the same from the owner of the offending bus. The apportionment and deposit of the compensation among the claimants shall be in the proportion as ordered by the Tribunal. The amount in deposit before this Court be transmitted to the concerned Tribunal.