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2020 DIGILAW 1437 (KAR)

Rekha @ Geetha v. Gudansab

2020-07-20

S.G.PANDIT, V.SRISHANANDA

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JUDGMENT S.G. Pandit, J. - The claimants are before this Court not being satisfied with the quantum of compensation awarded under judgment and award dated 6.8.2015 passed in MVC No.903/2013 on the file of the Principal Senior Civil Judge and Member, MACT, Ranebenur (for short, 'the Tribunal'), praying for enhancement of compensation. 2. The claimants are wife, children and mother of the deceased Kumar Pujar respectively. A claim petition came to be filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the accidental death of Sri. Kumar Pujar involving motor cycle bearing registration No.KA-15/S-6727 and Appe Goods Auto bearing registration No.KA-27/A-9279. It is stated that the deceased was earning a sum of Rs.21,750/- per month by working as a tiller driver. It is further stated that he was aged about 32 years as on the date of the accident. 3. On issuance of notice, respondent No.2- insurer appeared and filed its statement denying the entire claim petition averments. Further, it was contended that the driver of the offending vehicle had no effective and valid driving license as on the date of the accident. The claimants in support of their case, examined the claimant No.1 as PW1 and another witness as PW2, apart from marking the documents as Exs.P1 to P11. On behalf of the respondents, two witnesses examined as RW1 and RW2, apart from marking the documents as Exs.R1 to R4. The Tribunal on appreciating the material placed before it, awarded total compensation of Rs.11,70,000/- with interest at the rate of 6% per annum from the date of petition till the date of realization on the following heads: Loss of dependency Rs.10,80,000/- Loss of love and affection Rs.40,000/- Towards funeral expenses Rs.10,000/- Loss of consortium Rs.10,000/- Transportation of dead body Rs.5,000/- Loss of estate Rs.25,000/- Total Rs.11,70,000/- While awarding the above compensation, the Tribunal assessed the income of the deceased at Rs.5,000/- per month, applying multiplier of 16 and added 50% of the assessed income towards future prospects apart from deducting 1/4th towards personal and living expenses of the deceased. The claimants not being satisfied with the quantum of compensation awarded by the Tribunal are before this Court praying for enhancement of compensation. 4. Heard the learned counsel for the appellants and learned counsel for the respondent No.2-Insurance Company through Video Conferencing. Perused the trail Court records. 5. The claimants not being satisfied with the quantum of compensation awarded by the Tribunal are before this Court praying for enhancement of compensation. 4. Heard the learned counsel for the appellants and learned counsel for the respondent No.2-Insurance Company through Video Conferencing. Perused the trail Court records. 5. Learned counsel for the appellants would submit that the income assessed by the Tribunal at Rs.5,000/- per month is on the lower side. Since the accident is of the year 2013, the Tribunal ought to have assessed the income of the deceased more than what is assessed. Further, it is his submission that the claimants 2 to 5, who are children and mother of the deceased are entitled for parental and filial consortium of Rs.40,000/- each, apart from Rs.70,000/- on the conventional heads. Thus, he prays for enhancement of compensation. 6. With regard to saddling of liability on respondent No.1-owner of the offending vehicle, learned counsel for the appellants would submit that the Tribunal committed an error in saddling the liability on respondent No.1 on the ground that the driver of the offending vehicle had no valid and effective driving licence as on the date of the accident. He submits that the driver of the offending vehicle had valid licence to drive light motor vehicle as on the date of the accident. Since the driver of the offending vehicle possessed licence to drive light motor vehicle, in view of the decision of the Hon'ble Apex Court in the case of Mukund Dewangan Vs. Oriental Insurance Company Limited and Others, (2017) AIR SC 3668 , the insurer of Appe goods vehicle is liable to indemnify the owner. The Hon'ble Apex Court in the above said case has held that a driver who possesses a licence to drive the light motor vehicle (non-transport), could drive the light motor vehicle (transport). Thus, he prays for allowing the appeal. 7. Per contra, learned counsel for the respondent No.2-Insurer would submit that the compensation awarded by the Tribunal is more than entitlement of the claimants. Further, he submits that the Tribunal committed an error in adding 50% of the assessed income towards future prospects. The claimants would be entitled for adding 40% of the assessed income towards future prospects in view of the decision of the Hon'ble Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi, (2017) ACJ 2700 . Further, he submits that the Tribunal committed an error in adding 50% of the assessed income towards future prospects. The claimants would be entitled for adding 40% of the assessed income towards future prospects in view of the decision of the Hon'ble Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi, (2017) ACJ 2700 . Further, it is his submission that the claimants would be entitled for a sum of Rs.70,000/- on the conventional heads. It is also his submission that in the absence of any material to establish the income of the deceased, the Tribunal has rightly assessed the income of the deceased at Rs.5,000/- per month which needs no interference by this Court. 8. Learned counsel further submits that the Tribunal is justified in saddling the liability on respondent No.1-owner of the offending vehicle. It is his submission that the driver of the offending vehicle had driving license to drive the LMV non-transport vehicle as on the date of the accident and there was no endorsement on the license to drive the LMV transport vehicle. Hence, the Tribunal is justified in saddling the liability on respondent No.1. Thus, he prays for dismissal of the appeal filed by the claimants. 9. Having heard the learned counsel for the parties and on perusal of the trial Court records, the following points would arise for consideration in this appeal: i) Whether the income of the deceased assessed by the Tribunal at Rs.5,000/- per month is proper and correct? ii) Whether the Tribunal is justified in adding 50% of the assessed income towards future prospects? iii) Whether the claimants would be entitled for enhancement of compensation? iv) Whether the Tribunal is justified in saddling the liability on respondent No.1-owner of the offending vehicle? Our answer to the points No.1, 2 and 4 in the negative and point No.3 in the affirmative for the following reasons: 10. The accident which occurred on 18.4.2013 involving motor cycle bearing registration No.KA-15/S- 6727 and Appe Goods Auto bearing registration No.KA- 27/A-9279 and the accidental death of Kumar Pujar are not in dispute in this appeal. The claimants are before this Court praying for enhancement of compensation. The accident is of the year 2013. The notional income of the deceased assessed by the Tribunal is Rs.5,000/-. The claimants are before this Court praying for enhancement of compensation. The accident is of the year 2013. The notional income of the deceased assessed by the Tribunal is Rs.5,000/-. The claimants have stated that the deceased was a tiller driver and earning a sum of Rs.21,750/- per month. Even though Ex.P11-salary certificate is placed on record, author of the said salary certificate is not examined and the document is not proved in accordance with law, hence, the same cannot be looked into. In the absence of cogent material or document on record to establish the exact income of the deceased, it is for the Court or Tribunal to assess the income of the deceased notionally. Normally, this Court and Lok Adalaths for the accident claims of the year 2013, would assess the notional income at Rs.7,000/- per month. Hence, in the present case, in the absence of any cogent material, it would be appropriate for this Court to assess the notional income of the deceased at Rs.7,000/- per month. 11. The Tribunal added 50% of the assessed income towards future prospects, the same is not in consonance with the decision of the Hon'ble Apex Court in the case of Pranay Sethi (supra). In the above said decision, it is held that the claimants would be entitled for adding 40% of the assessed income towards future prospects, wherever the deceased was aged below 40 years. In the instant case, the deceased was aged 32 years as on the date of the accident. Hence, the claimants would be entitled for adding 40% of the assessed income towards future prospects instead of 50% added by the Tribunal. Multiplier of 16 and deduction of 1/4th towards personal and living expenses of the deceased taken by the Tribunal is proper and correct which needs no interference by this Court. 12. The claimants 2 to 5 are the minor children and mother of the deceased. The children have lost their father at very young age and also his love and affection, guidance and protection throughout their life. Hence, they would be entitled for Rs.40,000/- each towards parental consortium. The claimant No.5-mother of the deceased, who has lost her son at the evening of her life, would be entitled for Rs.40,000/- on the head filial consortium in view of the decision of the Hon'ble Apex Court in the case of Magma General Insurance Co. Hence, they would be entitled for Rs.40,000/- each towards parental consortium. The claimant No.5-mother of the deceased, who has lost her son at the evening of her life, would be entitled for Rs.40,000/- on the head 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, the claimants would be entitled for the following modified compensation: Loss of dependency: Rs.7000 + 40% = Rs.9,800 = Rs.9,800=1/4th = Rs.7,350 x 12 x 16 = Rs.14,11,200 Conventional heads = Rs.70,000/- Parental and filial consortium = Rs.1,60,000/- Total = Rs.16,41,200/- 13. Thus, the claimants would be entitled for total compensation of Rs.16,41,200/- as against Rs.11,70,000/- with interest at the rate of 6% per annum from the date of petition till the date of realization. 14. The Tribunal saddled the liability on respondent No.1-owner of the offending vehicle observing that the driver of the offending vehicle had no valid and effective driving license as on the date of the accident. The said saddling of liability on respondent No.1 is not proper and same is erroneous. It is not in dispute that the driver of the Appe Goods Auto had licence to drive light motor vehicle, which is established by placing Ex.R3 on record. Ex.R3 is the driving licence of driver of the Appe Goods Auto which would indicate that the driver had possessed licence to drive the light motor vehicle (non-transport). The Hon'ble Apex Court in Mukund Dewangan's case (supra), considering the legal provisions and the earlier decision, has laid down that a person holding licence to drive light motor vehicle (non-transport) could also drive light motor vehicle (transport) of the same category. In the case on hand also, the driver of the Appe Goods Auto had licence to drive light motor vehicle (non-transport), whereas, at the time of the accident, he was driving the light motor vehicle (transport) of the same category, which he could drive, as held by the Hon'ble Apex Court in the Mukund Dewangan's case referred to above. As such, we are of the view that respondent No.2, the insurer of the Appe Goods Auto, is liable to indemnify respondent No.1- owner of the Appe Goods Auto. As such, respondent Nos.1 and 2 are jointly and severally held liable to pay the compensation. As such, we are of the view that respondent No.2, the insurer of the Appe Goods Auto, is liable to indemnify respondent No.1- owner of the Appe Goods Auto. As such, respondent Nos.1 and 2 are jointly and severally held liable to pay the compensation. Consequently, respondent No.2 is directed to deposit the compensation amount within a period of six weeks from the date of receipt of a certified copy of this order. 9. Accordingly, the appeal is allowed in part. The judgment and award of the Tribunal is hereby modified to the extent that the claimants shall be entitled for total compensation Rs.16,41,200/-, as against Rs.11,70,000/- awarded by the Tribunal, along with interest at 6% per annum from the date of petition till the date of realization. Respondent No.2-insurer is directed to deposit the compensation amount within a period of six weeks from the date of receipt of a certified copy of this order. 15. Out of the enhanced compensation amount, Rs.1,00,000/- each shall be kept in fixed deposit in any nationalized bank in the name of claimant Nos.2 to 4 till they attain the age of majority, with liberty to the claimant No.1-wife of the deceased to withdraw the accrued interest periodically. Remaining amount shall be released in favour of the claimant No.1 and 5 equally with proportionate interest on proper identification. Draw the modified award accordingly.