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2023 DIGILAW 81 (KAR)

ICICI Lombard Ins. co. ltd v. Rayavva

2023-01-12

J.M.KHAZI

body2023
JUDGMENT/ORDER 1. While MFA No.201195/2016 is filed by respondent No.2/insurance company to exonerate it from the liability of paying the compensation, MFA Crob No.200019/2018 is filed by the by the petitioners to enhance the compensation. 2. Since these two appeals are arising out of a common judgment and award, they are clubbed together and disposed of by this common judgment. 3. For the sake of convenience, the parties are referred to by their rank before the Tribunal. 4. It is the case of the petitioners that they are the wife, daughter and parents of deceased-Tippanna Totad. On 27/2/2012 deceased and his son-Vishwaradhya were proceeding in Tum-Tum Auto Rickshaw bearing Reg.No.KA33-6910 from the Abbe Tumkur to Yadgiri. On Abbe Tumkur - Mudanal road near the land of Ishwarapa, another Tum-Tum Auto Rickshaw bearing Reg.No.KA-33-9715 (hereinafter referred to as 'offending vehicle') driven by one Mallu @ Mallikarjun came from the opposite side, in a rash or negligent manner and dashed against the auto rickshaw in which deceased and his son were travelling. Due to the impact, deceased sustained grievous injuries. Initially he was taken to Government Hospital, Yadgiri and on the advise of doctors shifted to Government Hospital, Gulbarga. He died on the same day. Deceased was aged 45 years, earning Rs.10, 000.00 per month, petitioners were dependents on him. As the owner and insurer of the offending vehicle respondents are jointly and severally liable to pay the compensation. 5. Respondent Nos.1 and 2 filed separate written statements denying the age, occupation, income of the deceased and that deceased sustained injuries in the accident. The driver of the Tum-Tum auto rickshaw bearing Reg.No.KA-33-6910 was also rash or negligent and responsible for causing the accident. Respondent No.2 has further contended that since there is violation of permit condition, it is not liable to indemnify respondent No.1- owner. 6. Based on these pleadings, the Tribunal framed necessary issues. 7. On behalf of petitioners, petitioner No.1 is examined as PW.1 and they have relied upon Exs.P1 to 8. 8. Respondent No.1 has examined himself as RW.1 and got marked Exs.R1 to 3. 9. On behalf of respondent No.2, RWs.2 and 3 are examined and Exs.R4 to 9 are marked. 10. Vide the impugned judgment and award the Tribunal has partly allowed the claim petition and granting compensation in a sum of Rs.8, 21, 000.00 with interest at 6% per annum as detailed below: 11. 9. On behalf of respondent No.2, RWs.2 and 3 are examined and Exs.R4 to 9 are marked. 10. Vide the impugned judgment and award the Tribunal has partly allowed the claim petition and granting compensation in a sum of Rs.8, 21, 000.00 with interest at 6% per annum as detailed below: 11. The Tribunal directed respondent No.2 to pay the compensation with interest. 12. During the course of argument, learned counsel representing respondent No.2 submitted that the Ex.R5/permit was issued to ply the offending vehicle within radius of 8kms from Shahapur and since the accident took place beyond the permit limit, respondent No.2 is not liable to pay the compensation. Without there being any evidence, the Tribunal has erred in presuming that the accident occurred within the limits of the residence of respondent No.1 and prays to allow the appeal. 12.1 He has relied upon the decision of Coordinate bench of this Court in MFA No.200104/2014 c/w MFA No.200088/2014 dtd. 22/1/2018 in Ningappa vs. Lions Comprehensive Eye Care Foundation and Anr. (Ningappa's case) and prays to atleast direct respondent Nos.2 to pay the compensation and recover the same from respondent No.1-owner. 13. On the other hand, learned counsel representing claimants submitted that the income of the deceased ought to have been taken at Rs.10, 000.00 per month. Loss of future prospects is also required to be granted. The compensation granted under other heads is also on the lower side and requires enhancement. 13.1 Relying upon the decision of the Division Bench of this Court in MFA No.201648/2015 c/w MFA Nos.200325/2015 and 201533/2015 and MFA Crob No.200025/2016 dtd. 26/11/2020 in Abdul Rouf s/o Mohd. Rasool vs. Megharaj Mehdole s/o Khuchand and Others (Abdul Rouf's case), he submitted that violation of permit condition if any is not a ground to exonerate respondent No.2/insurance company and prays to dismiss the appeal filed by it. 14. Heard arguments and perused the records. 15. From the evidence placed on record, it is proved that at the time of accident deceased was travelling in TumTum auto rickshaw bearing Reg.No. KA-33/6910 and accident occurred due to rash or negligent driving of the offending vehicle. Through the testimony of RWs.2 and 3, respondent No.2 has proved that as per permit at Ex.R5 the offending vehicle was supposed to ply within a radius of 8 kms of Shahapur town limits and the accident has occurred beyond the said limit. Through the testimony of RWs.2 and 3, respondent No.2 has proved that as per permit at Ex.R5 the offending vehicle was supposed to ply within a radius of 8 kms of Shahapur town limits and the accident has occurred beyond the said limit. 16. In Ningappa's case referred to supra relied upon by the respondent No.2/insurance company, for violation of permit condition, the Co-ordinate Bench of this Court directed insurance company to pay the compensation and recover the same from the owner of the offending vehicle. 17. However, in Abdul Rouf's case referred to supra relied upon by petitioners, the Division Bench of this Court held that since the offending vehicle was having valid permit and violation of the condition of the permit is not a ground to permit the insurance company to pay and recover the compensation. At the most the violation of permit condition may be an offence under Sec. 192A of the Motor Vehicles Act. In the light of this decision of the Hon'ble Division Bench, Ningappa's case referred to supra is not applicable. Despite violation of permit condition respondent No.2/insurance company is liable to pay the compensation. 18. Now coming to the quantum compensation granted by the Tribunal and whether it requires any enhancement as sought by the petitioners under the following heads. 19. Loss of dependency: Based on the post mortem report, the Tribunal has taken the age of the deceased as 45 years and as such multiplier 14' taken is correct. In the absence of evidence that the deceased was earning Rs.10, 000.00 per month, the Tribunal has taken his income on notional basis at Rs.6, 000.00. Since the accident is of the year 2012, based on minimum wages the income ought to have been taken at Rs.6, 500.00 per month. As wife, daughter and parents, petitioners are dependents on deceased and therefore deduction 1/4th towards his personal and living expenses is correct. However, the Tribunal has not considered loss of future prospects. Since the deceased was aged 45 years as per the decision of the Hon'ble Supreme Court in Magma General Insurance Company Limited Vs. Nanu Ram Alias Chuhru Ram And Others, (2018) 18 SCC 130 . (Magma Insurance Company case) 25% is required to be added to the notional income. 25% of Rs.6, 500.00 comes to Rs.1, 625.00. Therefore, the total income required to be taken is Rs.8, 125.00. Nanu Ram Alias Chuhru Ram And Others, (2018) 18 SCC 130 . (Magma Insurance Company case) 25% is required to be added to the notional income. 25% of Rs.6, 500.00 comes to Rs.1, 625.00. Therefore, the total income required to be taken is Rs.8, 125.00. With these components the loss of dependency is Rs.8, 125.00 x 12 x 14 x 3/4 = Rs.10, 23, 750.00 as against Rs.7, 56, 000.00 granted by the Tribunal. 20. Loss of consortium: The Tribunal has granted compensation in a sum of Rs.15, 000.00 under this head to petitioner No.1. However, as per National Insurance Company Limited vs. Pranay Sethi and others, (2017) 16 SCC 680 . (Pranay Sethi's case), and (Magma Insurance Company case) supra, as the wife, daughter and parents of the deceased, petitioners are entitled for compensation in a sum of Rs.40, 000.00 each i.e. Rs.1, 60, 000.00 under this head. The same is enhanced to Rs.1, 60, 000.00 and Rs.20, 000.00 granted under the head loss of love and affection is disallowed. 21. Towards loss of estate and funeral expenses: As held by the Hon'ble Supreme Court in (Magma Insurance Company case) supra, the Tribunal has rightly granted compensation in a sum of Rs.15, 000.00 each under these heads and it requires no interference. 22. Thus, in all the petitioners are entitled for a total compensation in a sum of Rs.12, 13, 750.00 as against Rs.8, 21, 000.00 granted by the Tribunal as detailed below: 23. To this extent the cross objection filed by the petitioners deserves to be allowed. However, the appeal filed by the respondent No.2/insurance company is liable to be dismissed and accordingly, I proceed to pass the following: ORDER (i) MFA No.201195/2016 filed by respondent No.2/insurance company is dismissed. (ii) MFA Crob No.200019/2018 filed by the petitioners is allowed in part. (iii) Cross objectors/petitioners are entitled for compensation in a sum of Rs.12, 13, 750.00 as against Rs.8, 21, 000.00 granted by the Tribunal together with interest at 6% per annum on the enhanced compensation. (iv) Respondent No.2/insurance company is directed to pay the compensation together with accrued interest within a period of six weeks from the date of this order (minus the compensation already paid/deposited). (v) The registry is directed to transmit the statutory amount in deposit, if any, to the Tribunal. (iv) Respondent No.2/insurance company is directed to pay the compensation together with accrued interest within a period of six weeks from the date of this order (minus the compensation already paid/deposited). (v) The registry is directed to transmit the statutory amount in deposit, if any, to the Tribunal. (vi) Registry is directed to return the TCR along with copy of this order to the Tribunal