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2020 DIGILAW 161 (KAR)

H. G. Govindappa And Others v. H. Damodar And Others

2020-01-20

ALOK ARADHE, RAVI V.HOSMANI

body2020
JUDGMENT Ravi V. Hosmani, J. - Today the above appeals are listed for admission before this Court. Both the claimants and insurer have filed their respective appeals challenging the very same judgment and award dated 11.10.2012 in MVC No. 5220/2010 passed by the Motor Accident Claims Tribunal-V (hereinafter referred to as 'MACT') & Court of Small Causes Bengaluru City. 2. With the consent of learned counsel for both parties, the appeals are heard and taken up for final disposal. 3. The brief facts leading to filing of these appeals are that, on 28.05.2010 at about 11.50 a.m. when Sunil Kumar G was proceeding on his TVS motorcycle bearing KA-08-K-5718 on Bangarpet - Kolar road near Hanchala gate, one tempo bearing registration No. AP.36-U-6010 came in a rash and negligent manner and dashed against the TVS moped on which deceased Sunil Kumar G was riding. As a result, he sustained grievous injuries. Immediately, he was shifted to R.L. Jalappa Hospital, where he succumbed to the injuries. The parents and an unmarried sister of the deceased filed claim petition in MVC No. 5520/2010 before the MACT under Section 166 of the Motor Vehicles Act, 1988 seeking for a total compensation of Rs. 30,00,000/-. 4. In response to the court notice, respondent No. 1 - owner of the tempo remained absent and was placed ex-parte. The respondent No. 2 - Insurer appeared through its counsel and filed written statement. It was contended therein that though a policy of insurance was issued in respect of the tempo, it was not liable to pay the compensation on account of the violation of terms and conditions of the policy and that the driver was also not holding a valid and effective driving licence. 5. In support of the claim, mother of the deceased was examined as P.W. 1 and Exhibits P.1 to 12 were marked. The respondent - insurance company also let in evidence and marked several documents. 6. The MACT after framing issues has held that the accident occurred due to the negligence of the driver of the tempo and assessed a total compensation of Rs. 3,03,000/- with interest at 6% per annum payable by respondents No. 1 and 2 jointly and severally. The heads of award are as follows: Loss of dependency Loss of dependency Rs. 2,73,000/- Loss of expectancy Rs. 10,000/- Transportation of deed body Rs. 5,000/- Funeral and obsequies Rs. 3,03,000/- with interest at 6% per annum payable by respondents No. 1 and 2 jointly and severally. The heads of award are as follows: Loss of dependency Loss of dependency Rs. 2,73,000/- Loss of expectancy Rs. 10,000/- Transportation of deed body Rs. 5,000/- Funeral and obsequies Rs. 5,000/- Loss of estate Rs. 10,000/- Total Rs. 3,03,000/- 7. The Oriental Insurance company, appellant in MFA. No. 1141/2013 has challenged the judgment and award mainly on the ground that the insured vehicle did not have permit and the driver of the tempo was not having any valid and effective driving licence. It was further contended that as per the report of the private investigator it was ascertained that the driver of the tempo did not have a driving licence to drive the particular class of vehicle, but the MACT had ignored the report of private investigator at Ex. R.3. However, as the private investigator whose report was marked as Ex. R.3 was not proved by examining the private investigator. Hence the MACT has rightly rejected the contention based on it. Further as noticed by MACT, a copy of the permit, which was produced along with the report of the private investigator at Ex. R.3 reveals that it was valid till 20.09.2014. Therefore, the contention of the appellant on that count also fails, leaving us to examine the award on the point of quantum. 8. On perusal of the impugned judgment and award of the MACT and on going through the records, it is seen that MACT has rightly ignored the evidence of PW 2 (employer of the deceased) on the ground that PW 2 did not appear for cross-examination. Therefore, ignoring the claim of monthly income of Rs. 9,000/- per month, the MACT has considered the income of the deceased on notional terms at Rs. 3,500/- per month. The same is on the lower side. A sum of Rs. 5,500/- per month is taken as income of the deceased as per the chart prepared by the High Court Legal Services Authority. To the said sum, future prospects at the rate of 40% will have to be added which comes to of Rs. 7700/- p.m. Though the deceased was a bachelor, since the claimant No. 3 was an unmarried sister, 1/3rd of the same is required to be deducted towards personal expenses, yielding a sum of Rs. To the said sum, future prospects at the rate of 40% will have to be added which comes to of Rs. 7700/- p.m. Though the deceased was a bachelor, since the claimant No. 3 was an unmarried sister, 1/3rd of the same is required to be deducted towards personal expenses, yielding a sum of Rs. 5,128/- p.m. The same would be in accordance with the decision of the Honble Supreme Court in the case of Magma General Insurance Company Ltd., v. Nanu Ram Alia Chuhru Ram and Others, reported in (2018) 18 SCC 130 . Since MACT has adopted multiplier corresponding to the age of the younger parent at 13 instead of taking proper multiplier corresponding to the age of the deceased, which is 17. Hence, the loss of dependency would be Rs. 10,46,152/- (Rs. 5128 X 12 X 17). In addition to the same, a further sum of Rs. 70,000/- towards other heads is required to be awarded as per the decision of the Honble Supreme Court in the case of National Insurance Company Limited v. Pranay Sethi & ors. reported in AIR 2017 SC 5157 . Accordingly, to the afore mentioned extent the award of MACT is modified. In all, the claimants are the entitled to a total compensation of Rs. 11,16,152/- with interest at the rate of 6% per annum as against Rs. 3,03,000/- awarded by the Tribunal. In view of the disposal of MFA No. 5850/2013, the appeal filed by the insurer in MFA No. 1141/2013 is dismissed. The amount of statutory deposit is ordered to be transmitted to the tribunal for payment.