Karnataka High Court

Smt Ratnamma vs Sri M Palani on 2 July, 2021

Author: H.P.Sandesh

                            1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 2ND DAY OF JULY, 2021

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                 M.F.A.NO.10744/2013 (MV)

BETWEEN:

1.   SMT. RATNAMMA,
     W/O LATE MAHESHWARAPPA,
     AGED 42 YEARS,
     BETTADAHALLI VILLAGE,
     KASABA HOBLI,
     TARIKERE TALUK - 577228.
     CHIKMAGALUR DISTRICT.

2.   MASTER B.M. SIDDESH,
     S/O LATE SRI B.S. MAHESHWARAPPA,
     AGED 13 YEARS,
     REPRESENTED BY HIS NATURAL
     GUARDIAN MOTHER APPELLANT NO.1
     SMT. RATHNAMMA,
     R/AT BETTADHALLI VILLAGE,
     KASABA HOBLI,
     TARIKERE TALUK -577228.
     CHIKMAGALUR DISTRICT.

3.   SMT. NAGAMMA,
     W/O LATE SHIVALINGAPPA,
     AGED 73 YEARS,
     HOUSEHOLD WORK,
     BETTADAHALLI VILLAGE,
     AMRUTHAPURA HOBLI,
     TARIKERE TALUK - 577228,
     CHIKMAGALUR DISTRICT.                  ... APPELLANTS

   (BY SRI S.P. SHANKAR, SENIOR COUNSEL ALONG WITH
 SRI G. LAKSHMEESH RAO, ADVOCATE - PHYSICAL HEARING)
                              2



AND:

1.     SRI M. PALANI,
       S/O MUNISWAMY,
       AGED 44 YEARS,
       OWNER CUM DRIVER OF 407
       VEHICLE BEARING REG No.KA-02-B-2442,
       NO.37, 2ND CROSS,
       ANJANAPPA GARDEN,
       NEW LAYOUT,
       BENGALURU-560 053.

2.     THE BRANCH MANAGER,
       THE ORIENTAL INSURANCE CO. LTD.,
       CITY BRANCH OFFICE,
       NO.16, 401/27100,
       SWASTIK NANDI ARCADE,
       OPP: SHESHADRIPURAM POLICE STATION,
       SUBEDHARCHATRAM ROAD,
       BENGALURU-560020.
       (COVER NOTE No.410801).
                                        ... RESPONDENTS

(BY SRI A.M. VENKATESH, ADVOCATE FOR R-2 (THROUGH V.C.),
               VIDE ORDER DATED 06.02.2017
             NOTICE TO R-1 IS HELD SUFFICIENT)

     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 27.12.2006
PASSED IN MVC.NO.103/2001 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT CUM MACT, TARIKERE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.


    THIS M.F.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                                     3



                          JUDGMENT

Though this matter is listed for admission today, with the

consent of both the learned counsel it is taken up for final

disposal.

2. This appeal is filed challenging the judgment and

award dated 27.12.2006 passed in M.V.C.No.103/2001 on the

file of the Fast Track Court Cum MACT, Tarikere (the Tribunal' for

short) questioning the quantum of compensation.

3. The parties are referred to as per their original

rankings before the Tribunal to avoid the confusion and for the

convenience of the Court.

4. The factual matrix of the case is that the deceased

met with an accident on 08.09.2001 when he was proceeding

along with goods in a goods vehicle and as a result, he

succumbed to the injuries. Hence, the claim petition was filed

before the Tribunal. The Insurance Company took the defence

that he was travelling in the offending vehicle as a passenger.

The claimants in order to substantiate their contentions,

examined claimant No.1 as P.W.1 and got marked the

documents at Exs.P.1 to 7. On the other hand, the respondents

have not led any evidence. The Tribunal after considering both

oral and documentary evidence placed on record, awarded

compensation of Rs.2,19,000/- with 6% interest. Hence, the

present appeal is filed by the claimants before this Court.

5. The main contention of the learned counsel for the

appellants before this Court is that the Tribunal has committed

an error in taking the income of the deceased as Rs.1,500/- per

month and the quantum of compensation awarded by the

Tribunal is also very meagre. The learned counsel would submit

that the Tribunal has not awarded any amount towards future

prospects. The learned counsel would submit that the deceased

was an agriculturist and was earning more than Rs.6,000/- per

month. The learned counsel would submit that the Tribunal has

committed an error in answering issue No.2 inferring that the

deceased was a fare paid passenger in a goods carriage without

any material on record. The respondents have not led any

evidence and only took the defence that he was a passenger and

the Tribunal presumed the same and answered issue No.2

erroneously. The learned counsel brought to the notice of this

Court that while answering issue No.2, the Tribunal comes to the

conclusion that respondent No.2 has not placed any evidence to

show that he was a fare paid passenger. Inspite of the said

finding given by the Tribunal, the Tribunal comes to the

conclusion that he was a fare paid passenger in a goods

carriage.

6. In support of his arguments, the learned counsel

relied upon the Division Bench judgment of this Court passed in

M.F.A.No.2875/2005 c/w M.F.A.Nos.2876/2005 and 11108/2005

dated 07.03.2011 in respect of the very same accident. In the

said judgment, the Division Bench has categorically held that

they were proceeding in the goods vehicle as owner of the goods

and dismissed the appeal filed by the Insurance Company. The

learned counsel would submit that the above appeals were filed

against M.V.C.Nos.1/2002, 2/2002 and 42/2002.

7. Per contra, the learned counsel for respondent No.2

would contend that the deceased was not travelling along with

the goods and he was a passenger and the Tribunal rightly came

to the conclusion that he was a passenger. Hence, it does not

require any interference of this Court.

8. Having heard the arguments of the respective

learned counsel and also on perusal of the records, the points

that arise for the consideration of this Court are:

(i) Whether the Tribunal has committed an error in not awarding just and reasonable compensation?

(ii) Whether the Tribunal has committed an error in exonerating the liability of the Insurance Company in coming to the conclusion that the deceased was a fare paid passenger in a goods vehicle?

Point No.(i):

9. On perusal of the records, it is clear that the accident

was taken place in 2001 and the Tribunal has taken the income

of the deceased as Rs.1,500/- per month and the claimants have

not placed any material before the Court with regard to the

income. Though they claim that he was an agriculturist, no RTC

is produced before the Tribunal. In the year 2001, as per the

Minimum Wages Act, the minimum wages is Rs.2,000/- per

month. Hence, it is appropriate to take the minimum wages of

Rs.2,000/- per month for calculating the loss of dependency.

The Tribunal has also not considered the future prospects. The

deceased was aged about 31 years as on the date of the

accident. The date mentioned in the admission register discloses

his date of birth as 11.02.1971. Hence, the relevant multiplier

applicable would be '16'.

Now the 'loss of dependency' is calculated as under:

      Monthly income                 -   Rs.2,000/-

      Add: 40% towards
           Future prospects          -   Rs.800/-
                                         --------------
                                     -   Rs.2,800/-
               rd
      Less: 1/3 towards
             Personal expenses       -   Rs.933/-
                                         --------------
                                     -   Rs.1,867/-
                                         --------------
      Loss of dependency             =   Rs.3,58,464/-
      (Rs.1,867/- x 12 x 16)             --------------

10. The claimants are also entitled for an amount of

Rs.70,000/- towards conventional heads in view of the principles

laid down by the Apex Court in the judgment in the case of

NATIONAL INSURANCE COMPANY LIMITED v. PRANAY

SETHI AND OTHERS reported in (2017) 16 SCC 680. The

Apex Court has also observed that after expiry of every three

years from the date of that judgment, 10% is to be added to

Rs.70,000/-, which comes to Rs.7,000/-. Hence, the claimants

are entitled for Rs.77,000/- towards conventional heads.

In all, the claimants are entitled to a compensation of

Rs.4,35,464/- as against Rs.2,19,000/-.

Point No.(ii):

11. The second count of argument is that the Tribunal

erroneously exonerated the liability of the Insurance Company in

coming to the conclusion that the deceased was a fare paid

passenger in a goods vehicle. This aspect has been dealt with

by the Division Bench of this Court in M.F.A.No.2875/2005 c/w

M.F.A.Nos.2876/2005 and 11108/2005 dated 07.03.2011,

wherein this Court came to the conclusion that all of them were

travelling in goods vehicle along with the goods. The learned

counsel for the appellants brought to the notice of this Court the

spot mahazar, which clearly indicates that they were carrying

copra and 50 bags of copra were found at the spot. Though the

Insurance Company would contend that the deceased was a fare

paid passenger, in order to substantiate the same, no material is

placed and though specific defence was taken in the written

statement, no evidence has been adduced before the Tribunal.

The Tribunal committed an error while answering issue No.2

though rightly comes to the conclusion that respondent No.2 has

not placed any evidence to show that the deceased was a fare

paid passenger. Inspite of the said finding is given in paragraph

No.20 of the judgment, the Tribunal inferred that the deceased

was a fare paid passenger in a goods carriage vehicle even

though no material was placed before the Tribunal. The very

finding of the Tribunal is erroneous. Hence, the very direction to

pay the amount against the owner is erroneous. The Tribunal

ought to have directed the Insurance Company to pay the

compensation amount. I have already pointed out that the

Division Bench of this Court has already dismissed the appeals

filed by the Insurance Company urging the very same ground.

Hence, I do not find any force in the contention of the Insurance

Company. The judgment and award of the Tribunal has to be

modified fastening the liability on the Insurance Company.

12. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal is allowed in part.

(ii) The impugned judgment and award of the Tribunal dated 27.12.2006 passed in M.V.C.No.103/2001 is modified granting

compensation of Rs.4,35,464/- as against Rs.2,19,000/- with interest at 6% per annum from the date of petition till deposit.