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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF NOVEMBER, 2020
PRESENT
THE HON'BLE MRS. JUSTICE S.SUJATHA
AND
THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
MFA.NO.3970 OF 2019 (MV-D) C/W MFA.NO.676 OF 2019 (MV-D)
IN MFA.NO.3970 OF 2019
BETWEEN:
THE DIVISIONAL MANAGER NATIONAL INSURANCE CO. LTD. DIV. OFF: MELAGIRI PLAZA DENTAL COLLEGE ROAD DAVANAGERE
REPRESENTED BY: THE REGIONAL MANAGER NATIONAL INSURANCE CO. LTD. REGN. OFF: SUBHARAM COMPLEX 2ND FLOOR, NO.144 M.G. ROAD BENGALURU - 560 001 (INSURER OF BUS BEARING REGISTRATION NO. KA-01-AA-5514) ....APPELLANT
(BY SRI. P.B. RAJU, ADVOCATE)
AND:
1 . SMT. SONAL JADAV S W/O DECEASED RAJESH T AGED ABOUT 25 YEARS
2 . LAKSHMI BAI W/O LATE SRI THIPPESWAMY (MOTHER OF DECEASED RAJESH T) AGED ABOUT 54 YEARS
RESPONDENT NOS.1 & 2 RESIDING AT : NO.243 BHARMOJI GALLI SHIVAJI NAGAR DEVANAGERE-577 001
3 . SANJAY KUMAR S/O D. AMBANNA, MAJOR OWNER OF BUS BEARING REG. NO. KA-01/AA-5514 R/AT SRI MAHADEVI TRANSPORT RAILWAY STATION ROAD CHALLAKERE TOWN CHITRADURGA DISTRICT
4 . S.G. PALANISWAMY S/O GOVINDAN AGED ABOUT 38 YEARS (DRIVER OF TRUCK BEARING REG. TN 36/AU-5431) R/AT : NO.149, CHINNAPULIYUR BHAVANI TALUK ERODE DISTRICT (TAMIL NADU)
5 . N. SOMASUNDARAM S/O NAGAPPAN, MAJOR (OWNER OF TRUCK BEARING
REG. TN.36/AU-5431) R/AT NO. 5/741 MAIN ROAD KALINGARAYANPALYAM BHAVANI TALUK ERODE DISTRICT (TAMIL NADU)
6 . THE MANAGER NATIONAL INSURANCE CO., LTD. POLICE ISSUING OFFICE BHAVANI, ERODE, TN (INSURER OF LORRY BEARING REGISTRATION NO. TN-36/AU-5431)
….RESPONDENTS
(BY SRI. A.K. SREEHARSHA, ADVOCATE FOR R1 & R2 SRI. H.B. NAGARAJA, ADVOCATE FOR R3 NOTICE TO R4 TO R6 IS SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 09.07.2018, PASSED IN MVC NO.396/2017, ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., & VI MACT, DAVANAGERE, AWARDING COMPENSATION OF RS.43,86,740/- WITH INTEREST AT THE RATE OF 8% P.A., FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.
IN MFA.NO.676 OF 2019
BETWEEN:
1 . SONAL JADAV. S W/O DECEASED RAJESH T AGED ABOUT 25 YEARS
2 . LAKSHMI BAI S/O LATE THIPPESWAMY (MOTHER OF DECEASED RAJESH T) AGED ABOUT 54 YEARS
BOTH ARE R/O # 243 BHARMOJI GALLI SHIVAJI NAGAR DAVANAGERE -577 001 ....APPELLANTS
(BY SRI. A.K. SREEHARSHA, ADVOCATE)
AND:
1 . NATIONAL INS CO. LTD. REP BY ITS MANAGER BRANCH OFFICE, CHITRADURGA
REPRESENTED THROUGH ITS
THE DIVISIONAL MANAGER DIVISIONAL OFFICER NATIONAL INS CO LTD. MELAGIRI PLAZA DENTRAL COLLEGE ROAD DAVANAGERE -577 001
2 . NATIONAL INS CO. LTD. REP BY ITS MANAGER POLICY ISSUING OFFICE BHAVANI, ERODE TAMILNADU-638 301 REPRESENTED THROUGH ITS THE DIVISIONAL MANAGER DIVISINAL OFFICE NATIONAL INS CO LTD. MELAGIRI PLAZA
DENTAL COLLEGE ROAD DAVANAGERE-577 002
3 . SANJAY KUMAR S/O D AMBANNA MAJOR, OWNER OF BUS BEARING REG NO.KA-01/AA-5514 R/O SRI MAHADEVI TRANSPORT RAILWAY STATION ROAD CHALLAKERE TOWN CHITRADURGA DISTRICT-577 001
4 . S G PALANISAMY S/O GOVINDAN AGED ABOUT 38 YEARS (DRIVER OF TRUCK BEARING REG TN-36/AU-5431) R/O # 149, CHINNAPULUYUR BHAVANI TALUK ERODE DISTRICT TAMILNADU-638 103
5 . N SOMASUNDRARAM S/O NAGAPPAN MAJOR (DRIVER OF TRUCK BEARING REG. TN-36/AU-5431) R/O # 5/741, MAIN ROAD KALINGARAYANPALYAM BHAVANI TALUK, ERODE DISTRICT TAMILNADU-638 301
….RESPONDENTS
(BY SRI. P.B. RAJU, ADVOCATE FOR R1 & R2 V/O DATED NOTICE TO R3 TO R5 IS D/W)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:
09.07.2018, PASSED IN MVC NO.396/2017, ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., & VI MACT, DAVANAGERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR HEARING THIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:
JUDGMENT
The Insurance Company has filed appeal in MFA No.3970/2019 questioning the judgment and award dated 09.07.2018 passed in MVC No.396/2017 by the II Additional Senior Civil Judge and VI M.A.C.T at Davanagere on the ground of valid permit as well as quantum.
The claimants have also preferred an appeal in MFA No.676/2019 seeking enhancement of compensation.
For the sake of convenience, the parties are referred as per their rank before the Tribunal.
The facts of the case are as under:
The claimants filed a claim petition by specifically contending that the husband of claimant No.1 namely Rajesh was travelling in a bus bearing Reg. No.KA-01/AA- 5514, when the bus reached Hiriyur, the driver of the offending Truck bearing Reg. No.TN-36/AV-5431 came in a rash and negligent manner and dashed against the bus. In the said accident, husband of respondent No.1 sustained grievous injuries and he was immediately shifted to the nearest hospital and later, he was shifted to Bapuji Hospital, Davanagere. The claimants further contended that later, he was shifted to Kasturba Hospital, Manipal. Inspite of the best treatment, husband of claimant No.1 did not recover and succumbed to the injuries on 27.04.2017. The claimants specifically averred in the claim petition that the deceased was a Government Servant and was drawing a salary of Rs.22,410/-. The claimants further contended that they were totally dependant on the income of the deceased and he was only
the sole bread earner of the family. On these set of contentions, the claimants filed claim petition claiming compensation of Rs.80,00,000/-.
Respondent No.2/Insurance Company on receipt of notice contested the proceedings by filing the written statement. Respondent No.2 stoutly denied entire averments made in the claim petition. Respondent No.2 specifically contended that the bus was not holding valid permit to ply on the public road, where accident has occurred. The contention of respondent No.2 was that the bus was plyed beyond the permit area and hence, there is a violation of the terms of the policy conditions. On these set of defence, respondent No.2 sought for dismissal of the claim petition.
Based on the rival contentions, the Tribunal formulated the following issues and additional issue:
Whether the petitioners prove that, on 24.04.2017 while the deceased Rajesh T was traveling in a Bus bearing Reg.No.KA-01/AA- 5514 near Tavarakere Village the driver of
Bus drove the vehicle in a rash and negligent manner and dashed against the Tractor bearing Reg.No.TN-36/AU-5431, as a result he succumbed to death?
Whether the respondent No.2 proves that the Bus bearing Reg. No.KA-01/AA-5514 was not having valid permit to ply on road on the date of accident?
Whether the petitioners are entitle for the compensation as prayed? If so, at what rate and from whom?
What order?
Additional Issue:
Whether the 1st respondent proves the contributory negligence on the part of driver of Truck bearing No.TN-36/AU-5431?
The claimants in support of their contentions examined widow of the deceased namely Smt.Sonal Jadav S as P.W.1 and the mother of the deceased as P.W.2 and in support of ocular evidence, claimants produced documentary evidence vide Exs.P1 to P23. The respondents by way of rebuttal evidence lead in ocular
evidence of two witnesses i.e., R.Ws.1 and 2 and produced documentary evidence as per Exs.R.1 to R.10.
The Tribunal having appreciated the oral and documentary evidence answered issue No.1 in the Affirmative. The Tribunal also further answered issue No.2 in the negative by holding that the respondent No.2/Insurance Company has failed to prove that the bus did not possess valid permit to ply on the road.
The Tribunal while determining the compensation, assessed the income of the deceased at Rs.22,210/- after deducting professional Tax of Rs.200/- and deducting 1/3rd towards personal expenses, the Tribunal has assessed the income at Rs.14,807/-. Further, the Tribunal added 50% towards future prospects. After adding 50% towards future prospects, the income of the deceased was assessed at Rs.22,210/-. The Tribunal by applying multiplier of 16 has awarded a sum of Rs.42,64,320/- and a sum of Rs.52,413 is awarded towards medical expenses, towards
transportation a sum of Rs.15,000/-, towards consortium Rs.40,000/- is awarded. The Tribunal in all awarded a sum of Rs.43,86,733/- (the same is rounded off to Rs.43,86,740/-) with interest at the rate of 8% p.a. from the date of petition till the date of realization. Being aggrieved by the same, both Insurance Company and the claimants have preferred these appeals.
The learned counsel for the Insurance Company would vehemently argue and contend before this Court that though the vehicle had a valid permit, but, however, owner of the offending bus allowed it to ply beyond permitted area and on this count, he would submit to this Court that there is a breach of policy conditions. Insofar as the quantum is concerned, he would submit to this Court that as per Ex.P.23, the gross salary is shown as Rs.19,425/-. Relying on this exhibit, he would submit to this Court that the Tribunal erred in assessing the income of the deceased at Rs.22,410/-, which is contrary to Ex.P.23. On these grounds, he would submit to this Court
that the compensation determined under the head "loss of dependency" is on the higher side and the same needs modification.
Per contra, learned counsel appearing for the claimants would vehemently argue and contend before this Court that the income assessed by the Tribunal is contrary to Ex.P.22, which is the salary details issued by the Registrar of Co-operative Societies. In the said document, the Authority has certified that the deceased as on the date of the accident was drawing a sum of Rs.3,07,896/- annually. Relying on this document, learned counsel appearing for the claimants would submit to this Court that the income assessed by the Tribunal is erroneous and contrary to Ex.P.22. On these set of grounds, he would submit to this Court that this is a fit case to enhance the compensation.
Heard the learned counsel for the claimants as well as the Insurance company and perused the pleadings
of the parties and reassessed the entire oral and documentary evidence on record.
Regarding Liability:
The contention raised by the Insurance Company- respondent No.2 is that the vehicle involved in the accident has violated the route permit and the accident has occurred beyond permitted area and on these grounds, the Insurance Company has prayed to exonerate liability to pay the compensation. The Tribunal has meticulously examined the materials on record and on appreciation, the Tribunal has come to the conclusion that there is absolutely no evidence lead in by the Insurance Company- respondent No.2 to establish that the vehicle was guilty of deviation of route permit. An adverse inference is drawn against the Insurance Company-respondent No.2 who has failed to examine the competent person in regard to deviation of route permit. In absence of evidence to that effect, the Tribunal has come to the conclusion that the
allegation that there is violation of route permit is not proved by the Insurance Company.
We have examined the materials on record and we have also given our thoughtful consideration to the reasons assigned by the Tribunal. We do not find any infirmity in the conclusion arrived at by the Tribunal insofar as the above said contention is concerned. In that view of the matter, the contention of the Insurance Company- respondent No.2 that it is not liable to pay the compensation as there is breach of policy conditions for deviation from the route permit is not acceptable. Accordingly, the same stands negatived by this Court.
Regarding Quantum:
On perusal of Ex.P.22, the annual income of the deceased is Rs.3,07,896/-. Ex.P.22 is the public document issued by the Competent Authority. No reasons are assigned by the Tribunal to discard the clinching evidence. In that view of the matter, we deem it fit to take note of Ex.P.22, which is issued by the Competent Authority.
Relying on this document, we would assess the income of the deceased at Rs.3,07,896/- annually. The accident is of the year 2017 and hence, up to Rs.2,50,000/-, there is an exemption and on the remaining Rs.57,896/-, 10% tax needs to be levied. If 10% tax is deducted, the same comes to Rs.5,789/-. After deducting a sum of Rs.5,789/- towards income tax and Rs.2,400/- towards professional tax, the income of the deceased is re-assessed at Rs.2,99,707/- per annum. Admittedly, the deceased was aged about 32 years and the deceased had a permanent job. Hence, by relying on the guidelines laid down by the Hon'ble Apex Court in Pranay Sethi's case [2017 ACJ 2700], we would add 50% towards future prospects. If 50% future prospects is added, the income of the deceased works out to Rs.4,49,560/- per annum. After deducting 1/3rd and appling multiplier of 16, the compensation under the head "loss of dependency" comes to Rs.47,95,312/- (4,49,560x16x2/3).
The appellants are entitled to a sum of Rs.1,10,000/- under the conventional heads i.e., claimant No.1 being the wife of the deceased is entitled for a sum of Rs.40,000/- towards spousal consortium and claimant No.2 being the mother of the deceased is entitled for a sum of Rs.40,000/- towards filial consortium and Rs.30,000/- is awarded under the head loss of estate and funeral expenses and the award of Rs.52,413/- under the head "medical expenses" is retained. Hence, total compensation re-determined by this Court comes to Rs.49,57,725/-.
Hence, the following: ORDER i) Both the appeals are partly allowed.
ii) The total compensation awarded by the Tribunal is modified and enhanced to Rs.49,57,725/- as against Rs.43,86,733/- with interest at the rate of 6% per annum from the date of the claim petition till its realization.
iii) The portion of the order of the Tribunal inasmuch as liability, apportionment and disbursement remains intact.
iv) The Insurance Company shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order.
v) The modified compensation amount shall be apportioned and disbursed in terms of the order of the Tribunal.
vi) Draw modified award accordingly.
vii) The Registry shall transfer the amount in deposit along with the original records to the jurisdictional Tribunal forthwith.
viii) All pending I.As., if any, stand disposed of.
Sd/- JUDGE
Sd/- JUDGE NBM