IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MR.JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
M.F.A. NO.4869 OF 2016 (MV-D)
C/W
M.F.A. NO.3827 OF 2016 (MV-D)
IN MFA NO.4869/2016:
BETWEEN:
1. SMT.SUGUNA,
W/O LATE.BASAPPA @ BASAVARAJU,
AGED 35 YEARS,
2. KUM.PALLAVI D/O LATE.BASAPPA
@ BASAVARAJU AGED 18 YEARS,
3. B.VINAY KUMAR S/O LATE BASAPPA
@ BASAVARAJU, AGED 16 YEARS
ALL ARE R/AT KURUBARAHALLI,
KASABA HOBLI,
HOSKOTE TALUK,
BENGALURU DISTRICT-560 070.
3RD APPELLANT IS A MINOR, HENCE
HE IS REPRESENTED BY ITS MOTHER
AND NATURAL GUARDIAN, THE
2
FIRST APPELLANT
... APPELLANTS
(BY SRI. SRIDHAR.D.S, ADVOCATE)
AND:
1. M/S. INA INDIA LTD.,
R/P BY ITS MANAGING DIRECTOR,
NO.14 16TH CROSS, 6TH SECTOR,
H S R LAYOUT, BENGALURU-560 172.
2. M/S. UNITED INDIA INSURANCE CO. LTD.,
REPRESENTED BY ITS MANAGER,
5TH AND 6TH FLOORS,
KRISHI BHAVAN
BUILDING, HUDSON CIRCLE,
NRUPATHUNGA ROAD,
BENGALURU-560002.
... RESPONDENTS
(BY SRI. S.R.SREEPRASAD ADVOCATE FOR RESPONDENT NO.1;
SRI. JANARDHAN REDDY ADVOCATE FOR RESPONDENT NO.2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST
THE JUDGMENT AND AWARD DATED: 26.02.2016 PASSED IN
MVC NO.2150/2014 ON THE FILE OF THE XXI ACMM AND XXIII
ADDITIONAL SMALL CAUSES JUDGE, MACT, BENGALURU,
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO.3827/2016:
BETWEEN:
UNITED INDIA INSURANCE CO. LTD.,
REGIONAL OFFICE,
#18, 5TH & 6TH FLOORS,
KRISHIBHAVAN,
HUDSON CIRCLE,
3
BANGALORE-560 001.
REP. BY ITS MANAGER.
... APPELLANT
(BY SRI. JANARDHAN REDDY, ADVOCATE)
AND:
1. SMT. SUGUNA
W/O LATE BASAPPA @ BASAVARAJU,
AGED ABOUT 35 YEARS
2. KUMARI PALLAVI
D/O LATE BASAPPA @ BASAVARAJU,
AGED ABOUT 18 YEARS,
3. VINAY KUMAR.B,
S/O LATE BASAPPA @ BASAVARAJU,
AGED ABOUT 16 YEARS
RESPONDENT NOS.2 AND 3 ARE MINORS
REPT. BY THEIR MOTHER, RESPONDENT NO.1
RESPONDENT NOS.1 TO 3 ARE
RESIDING AT KURUBARAHALLI,
KASABA HOBLI,
HOSKOTE TALUK,
BANGALORE DISTRICT-562101.
4. M/S INA INDIA LTD.,
NO.14, 16TH CROSS,
6TH SECTOR, HSR LAYOUT,
BANGALORE-560 034.
REPT. BY ITS MANAGING DIRECTOR.
... RESPONDENTS
[BY SRI. D.S.SRIDHAR, ADVOCATE FOR RESPONDENT NOS.1
TO 3 VIDE ORDER DATED 12.10.2017
SRI. S.R.SREEPARASAD, ADVOCATE FOR RESPONDENT NO.4]
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, AGAINST THE
JUDGMENT AND AWARD DATED:26.02.2016 PASSED IN MVC
NO.2150/2014 ON THE FILE OF THE XXI ACMM, AND XXIII
4
ADDITIONAL SMALL CAUSES JUDGE, MACT, BENGALURU,
AWARDING COMPENSATION OF RS.23,39,600/- WITH
INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL THE
DATE OF DEPOSIT.
THESE APPEALS COMING ON FOR HEARING
INTERLOCUTORY APPLICATION THIS DAY, NATARAJ
RANGASWAMY, J., DELIVERED THE FOLLOWING:
JUDGMENT
This MFA No.3827/2016 is filed by the insurer challenging the quantum of compensation as well as the liability fastened on it to pay the compensation awarded by the Motor Accident Claims Tribunal, Court of Small Causes at Bangalore (hereinafter referred to as 'Tribunal') in MVC No.2150/2014.
2. MFA No.4869/2016 is filed by claimants seeking enhancement compensation awarded by the Tribunal in the aforesaid case.
3. The appellant in MFA No.3827/2016, who is respondent No.2 in MFA No.4869/2016, will henceforth be referred to as the 'insurer' of the offending vehicle involved 5 in the accident. Appellants in MFA No.4869/2016, who are respondent Nos.1 to 3 in MFA No.3827/2016, will henceforth be referred to as 'claimants'. Respondent No.1 in MFA No.4869/2016, who is respondent No.4 in MFA No.3827/2016, will henceforth be referred to as the 'owner' of the offending vehicle involved in the accident.
4. The claim petition discloses that the claimants are the legal representatives of deceased V.Basappa. On 02.04.2014 at 8:30 p.m., the said Mr. V.Basappa was traveling in an autorickshaw bearing registration No.KA- 03-4035 on Hosakote-Chinthamani road. At that time, the driver of the tanker lorry bearing registration No.KA-01- AB-1025 (henceforth referred to as the 'offending vehicle'), drove it in a rash and negligent manner and dashed against the autorickshaw, which turned turtle. The said Mr. V. Basappa sustained grievous injuries and was shifted to M.V.J. Hospital and thereafter, to Manipal Hospital, Bengaluru for further treatment, but he was declared dead at the hospital.
6
5. The driver of the offending vehicle was accused of offences punishable under Sections 279 and 304A of the Indian Penal Code in Crime No.135/2014.
6. The claimants accused actionable negligence on the part of the driver of the offending vehicle and therefore, filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act' for the sake of brevity) claiming compensation of a sum of Rs.50,00,000/- from the owner and insurer of the offending vehicle.
7. The claimants contended that the deceased was 43 years old and was employed as a shift chemist at S.F. Dyes Pvt. Ltd. and was earning Rs.20,000/- per month. They claimed that as a result of untimely death, they were put to untold hardship, suffering and were deprived of the emotional and financial support of the deceased.
7
8. The owner of the offending vehicle contested the claim petition and denied that the driver of the offending vehicle was negligent and was responsible for the accident.
9. The insurer also denied that the driver of the offending vehicle was negligent. However, it contended that the offending vehicle was classified as a hazardous vehicle and that the driver of the offending vehicle did not possess appropriate endorsement in his driving licence and therefore, contended that it was not liable to pay the compensation
10. On these rival contentions, the claim petition was set down for trial. The claimant No.1 was examined as PW.1 and she marked documents Exs.P1 to 20. She also examined PW.2 and who marked two documents as Exs.P.21 and 22. The insurer examined its officials as RWs.1 and 2.
8
11. The Tribunal on appreciation of the oral and documentary evidence in the form of Ex.P1 - complaint and FIR, IMV report at Ex.P4, charge sheet at Ex.P7 and the evidence of PWs.1 and 2 held that the driver of the offending vehicle was negligent and was responsible for the commission of the offence.
12. In so far as the quantum of compensation payable to the claimants is concerned, the Tribunal held that the deceased was 43 years old and was employed as Shift Chemist. The Tribunal noticed the evidence of the PW.2, who was the employer of the deceased who deposed before the court that the deceased was drawing Rs.18,100/- per month. The salary certificate at Ex.P8 disclosed that the total monthly salary of the deceased was a sum of Rs.18,100/- of which a sum of Rs.200/- was deducted towards professional tax and a sum of Rs.1,347/- towards Provident Fund. However, the Tribunal held that the monthly salary of the deceased was a sum of Rs.14,250/- (Basic+DA = Rs.11,225/- + HRA Rs.3,025/-). 9 The Tribunal notionally deducted 1/3rd out of the monthly income of the deceased towards his living expenses and applied the multiplier of 14 and awarded the following compensation:
Heads under which Amount
compensation awarded (in Rupees)
Loss of dependency 15,96,000
Loss of love and affection 75,000
Funeral expenses 25,000
Transportation of dead body 10,000
Loss of estate 79,800
Loss of consortium 75,000
Loss of future prospects 4,78,800
Total 23,39,600
13. In so far as the liability to pay the
compensation is concerned, the Tribunal noticed that as on the date of the accident, the offending vehicle was not transporting any hazardous goods which required a special endorsement. Even otherwise, the Tribunal noticed that the driver of the offending vehicle possessed a driving licence to drive a heavy vehicle at the time of the accident 10 and also that the during April 2014, the driver had undergone training program on Safe Transportation of Hazardous Goods on 09.04.2014 at Ashok Leyland Training School, Vallipuram and that he was entitled to get an endorsement within 30 days. The Tribunal relied upon the Judgment of this Court in MFA No.3571/2012 and connected appeals (disposed of on 11.12.2014), wherein this Court had held that a driver driving a vehicle carrying empty cylinders need not obtain special endorsement to drive the vehicle. Therefore, the Tribunal held that the owner and insurer of the offending vehicle are liable to pay the compensation.
14. The insurer has challenged the quantum of compensation as well as the liability fixed on it to pay the compensation as awarded by the Tribunal. Likewise, the claimants have challenged the quantum of compensation.
15. The insurer contended that the driver of the offending vehicle did not possess the special endorsement to drive the offending vehicle which was a petrol tanker 11 and contended that under Rules 9 and 132 of the Central Motor Vehicle Rules, 1989, the driver of the offending vehicle ought to have possessed special endorsement. He also contended that the Tribunal awarded a sum of Rs.75,000/- towards loss of love and affection and a sum of Rs.75,000/- towards loss of consortium and Rs.25,000/- towards funeral expenses and a sum of Rs.10,000/- towards transportation of the body which was in excess of the compensation payable as per the Apex court in the case of National Insurance Company Limited vs. Pranay Sethi and others reported in (2018) 2 SCC (Cri)
205. The claimants contended that the Tribunal considered the income of the deceased at Rs.14,250/- though Ex.P8 - salary certificate indicated that salary was Rs.16,553/- and PW.2 deposed that the deceased was earning Rs.18,100/- per month.
16. The learned counsel for the insurer did not dispute the fact that a sum of Rs.200/- was deducted towards Professional Tax and a sum of Rs.1,050/- was 12 deducted towards conveyance allowance which were deductible from out of the salary of Rs.18,100/-. The deceased was 43 years old and therefore, claimants were entitled to the loss of future prospects @30% of the actual income of the deceased. The deceased left behind three dependents and therefore, as per the Judgment of the Apex Court in the case of Pranay Sethi, 1/3rd of the income was to be deducted towards the living expenses of the deceased.
17. We have given our anxious consideration to the case pleaded by the learned counsel for the parties and we have perused the records of the Tribunal and its Judgment and Award.
18. The evidence on record indicates beyond doubt that the accident was due to the rash and negligent driving by the offending vehicle. It is not in dispute that the deceased was employed as a Shift Chemist in a private establishment. PW.2 was the HR executive at S.F. Dyes Pvt. Ltd., who deposed before the Court that the deceased 13 was drawing a monthly salary of Rs.18,100/- of which sum of Rs.200/- was deducted towards the Professional Tax and a sum of Rs.1347/- was deducted towards Provident Fund. A sum of 1050/- was paid towards conveyance and a sum of Rs.2,800/- was paid towards Special Allowance. The Tribunal committed an error in only considering the Basic + DA and HRA to arrive at the monthly salary of the deceased. It is now well settled that the provident fund is a contribution made by the deceased and is a part of his income and therefore, the same has to be considered as a part of his income. PW.2 deposed that the Special Allowance was towards the food and other expenses of the deceased which had to be considered as part of the salary as the living expenses of the deceased could be set-off. Neither the owner nor the insurer of the offending vehicle disputed the income of the deceased. Therefore, the income of the deceased had to be considered at a sum of Rs.17,050/-. The age of the deceased was 43 years as on the date of the accident and the deceased had a permanent job in a private establishment. He had 11 years 14 of service and therefore, it was quite probable that he had a fair chance of progressing in his career. As per the Judgment of the Apex Court in Pranay Sethi's case, the claimants were entitled to loss of future prospects at the rate of 30% of the actual income of the deceased. The deceased was 43 years old at the time of the accident and therefore, the proper multiplier would be 14. Since the deceased had left behind three dependents, 1/3rd of his income had to be deducted towards his living expenses. Hence, the compensation to which the claimants were entitled is to be reconsidered and recalculated as follows:
Heads under which Amount
compensation awarded (in Rupees)
Loss of dependency along 24,82,536/-
with loss of future prospects
@ 30%
(Rs.17050 + future prospects at 30%
Rs.17050/- + Rs.5115/-; Rs.22165/-; 1/3rd of the same deducted Rs.22165/- - Rs.7388/- = Rs.14,777/-
(Rs.14777/- x 12 x 14)
Loss of consortium to 40,000/-
claimant No.1
Loss of parental love and 80,000/-
affection to claimants 2 and
3 Rs.40000/- each
15
Loss of estate 25,000/-
Funeral expenses and 25,000/-
transportation of dead body
Total 26,52,536/-
19. In so far as the liability to pay the
compensation is concerned, RW.1 deposed that at the time of the accident, the offending vehicle was not loaded with any hazardous good. RW.1 admitted that the driver of the offending vehicle possessed licence to drive a transport vehicle, which was in force till the year 2015. RW.1 further deposed that the driver was authorized to drive a vehicle to carry hazardous material. RW.2, who was the director and the owner of the company which owned the offending vehicle, deposed that the driver of the offending vehicle had a driving licence valid up to April 2013 which authorized him to drive a vehicle carrying hazardous goods. He also deposed that at the time of the accident, the vehicle was not carrying any hazardous material. He deposed that the driver of the offending vehicle was entitled to get his licence renewed within a period of 30 16 days and that the accident was within the grace period of 30 days. He placed on record Ex.R7 to demonstrate that at the time of the accident, the vehicle was empty and was not carrying any hazardous material.
20. In view of the above, the insurer of the offending vehicle could not have escaped liability to pay the compensation on the ground that the driver of the offending vehicle did not possess special endorsement to drive a vehicle carrying hazardous goods. In that view of the matter, the insurer is liable to pay the compensation as determined by this Court.
21. Consequently, MFA No.3827/2016 filed by the insurer is dismissed and MFA No.4869/2016 filed by claimants is allowed in part and in modification of the impugned Judgment and Decree passed by the Tribunal, the compensation of Rs.23,39,600/- awarded by the Tribunal is enhanced to a sum of Rs.26,52,536/-. 17
22. The insurer is liable to pay the enhanced compensation of Rs.26,52,536/- along with interest at the prevalent rate of 7% p.a. from the date of the claim petition till the date of realization.
23. The insurer shall deposit the enhanced compensation with interest as determined by this Court within a period of one month from the date of receipt of a certified copy of this Judgment.
24. In view of disposal of these appeals, I.A. No.1/2019 in MFA No.4869/2016 does not survive for consideration and the same stands disposed of.
Sd/-
JUDGE Sd/-
JUDGE sma