Partly allowed

Basamma W/O Kyasara Giddaiah @ Kyasara Boraiah v. Siddaruda S/O Bangarappa

Karnataka HC4 Sept 2019MFA/22358/2012

Case brief

AI extract

What is this about?

The High Court allowed the appeal partly, setting aside the Tribunal's decision to absolve the insurer. Fastening liability on the insurer was based on Mukund Dewangan. Compensation was enhanced from Rs.4.8L to Rs.7L by recalculating notional income and applying relevant multipliers and vehicle accident principles.

What did the court decide?

Compensation enhanced to Rs. 7,00,000/- with interest. Liability fastened on insurer and owner/driver. Insurer to deposit amount within four weeks.

Basamma W/O Kyasara Giddaiah @ Kyasara Boraiah Vs Siddaruda S/O… — Insurance | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 4^TH DAY OF SEPTEMBER, 2019

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BEFORE

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THE HON’BLE MR.JUSTICE K. NATARAJAN

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MISCELLANEOUS FIRST APPEAL NO.22358/2012 (MV)

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BETWEEN:

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SMT.BASAMMA, W/O KYASARA GIDDAIAH @ KYASARA BORAIAH AGE: 41 YRS, RESIDING AT BASEDEVARAHATTY VILLAGE, CHALLAKERE TALUK, CHITRADURGA DIST., NOW COME OVER TO KAPPAGAL ROAD, BELLARY

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... APPELLANT

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(BU SRI. Y. LAKSHMIKANT REDDY, ADVOCATE)

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AND:

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SIDDARUDA, S/O BANGARAPPA MAJOR, OWNER OF THE AUTO BEARING NO.KA-16/B-732, R/O NO.20, NAYAKANAHATTI, UPPARAHATTI,

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T.NELAGEETHANAHATTY, CHELLAKERE TALUK, CHITRADURGA DIST.

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THE BRANCH MANAGER, M/S CHOLAMANDALAM MS GENERAL INSURANCE CO. LTD., DOUBLE ROAD, BELLARY

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... RESPONDENTS (BY SRI. R. R. MANE, ADVOCATE FOR R2; R1 – SERVED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 04.01.2012 PASSED IN MVC NO.943/2011 ON THE FILE OF THE MEMBER, MACT-II, BALLARI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR HEARING ON INTERLOCUTORY APPLICATION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Though this appeal came up for hearing on I.A.1/2018 for early hearing, with the consent of

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the learned counsel for both the parties, it is heard finally.

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This appeal is preferred by the claimant assailing the judgment and award dated 04.01.2012 passed by the Motor Accidents Claims Tribunal – II, Ballari (hereinafter referred to as ‘the Tribunal’, for short) in MVC No.943/2011.

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Heard the arguments of the learned counsel for both the parties.

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The rankings of the parties before the Tribunal is retained for brevity.

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The claimant filed petition under

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Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short), claiming compensation of Rs.30,00,000/-, inter alia contending that on 19.07.2011 at about 9.00 am, near Tar road, Kuri Bangaraiah’s land, when the husband of the petitioner – Kyasara Giddaiah was proceeding in an auto rickshaw bearing registration No.KA-16/B-732 as a passenger, the vehicle was driven by its driver in a rash and negligent manner, due to which the auto rickshaw turned turtle on the road and the husband of the 1^st claimant sustained injuries and he was shifted to the Primary Health Centre, Nayakanahatti and later shifted to the Government District Hospital, Chitradurga and he succumbed to the injuries while under treatment. Due to the untimely death of her husband, she lost the earning member and

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dependency and hence she claimed

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compensation under various heads.

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In pursuance of notice, respondents No.1 and 2 –owner and driver of the auto rickshaw remained absent and they have been placed exparte. The 3^rd respondent - Insurer appeared through their counsel and filed statement of objection denying the rash and negligent driving of the auto rickshaw by its driver and also denying the age, occupation and income of the deceased. However, it is contended that the vehicle in question was insured with the Insurer and if there is any liability, the same shall be subject to the terms and conditions of the policy. They have also taken a contention that the driver of the auto rickshaw did not possess any valid and effective driving licence as on the date of accident and hence prayed for dismissal of the petition.

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Based upon the rival pleadings, the

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Tribunal framed the following issues:

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i. Whether the petitioner proves that death of her husband Kyasara Giddayya @ Kyasara Borayya due to the actionable negligence of driver of Auto bearing No.KA-16/B732 on 19.7.11 at 9.00 am near Tar road, Kuri Bangarayya’s land 1^st respondent?

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ii. Whether petitioner is entitled compensation? If so, what amount and from whom?

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iii. What order or decree?

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To substantiate her contention, the

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claimant examined herself as PW1 and got marked seven documents as per Exs.P1 to P7.

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On behalf of the respondent No.3 – Insurance Company, they examined RW1 – Suresh and got marked two documents as per Exs. R1 and R2.

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After considering the evidence on record,

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the Tribunal answered issue No.1 in the affirmative, issue No.2 partly in the affirmative and awarded compensation of Rs.4,80,000/- as

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under:

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Loss of dependency	Rs.4,48,000.00
Loss of consortium	Rs.10,000.00
Loss of estate	Rs.10,000.00
Transportation	Rs.2,000.00
Funeral &	Rs.5,000.00
Obsequious Ceremony
Total	Rs.4,80,000.00

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The Tribunal absolved the Insurer and

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fastened the liability on respondents No.1 and 2 – the driver and owner of the vehicle. Assailing

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the judgment and award passed by the Tribunal, the claimant filed this appeal.

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Learned counsel for the

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appellant/claimant contended that the Tribunal committed error in absolving the Insurer and

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fastening the liability on the owner and driver of the auto rickshaw, on the ground that the driver of the auto rickshaw was not holding the driving licence for driving three wheeler auto rickshaw, but the same was covered under the policy. Even then the Tribunal fastened the liability on respondents No.1 and 2 which is not legal. Even otherwise, a separate transport endorsement is not required for the person who drove the vehicle in question. This question of law has been clarified by the Hon’ble Apex Court in the case of Mukund Dewangan Vs. Oriental Insurance Co. Ltd., reported in (2017) 14 SCC 663 . Therefore, the learned counsel for the appellant contended for fastening of liability on the Insurer.

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Further, on the quantum of compensation, the learned counsel contended that the deceased was earning Rs.15,000/- per month by doing

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agricultural work and having lands in his name. But the Tribunal considered only Rs.4,000/- per month which is very meager. Even the Tribunal has not awarded any compensation towards future prospects as per the judgment of the Hon’ble Apex Court in the case of National Insurance Company Vs. Pranay Sethi reported in (2017) 16 SCC 680. Further, no compensation is awarded in respect of loss of consortium and other conventional heads as per the decision in Magma General Insurance Co.

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Ltd., Vs. Nanu Ram Alias Chuhru Ram

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reported in (2018 SCC Online SC 1546). Hence he prayed for allowing the appeal.

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Per contra, learned counsel for the respondent-Insurer – Sri. R. R. Mane, though supported the judgment and award passed by the Tribunal in fastening the liability on the owner and driver of the vehicle, but in view of

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the judgment of the Hon’ble Supreme Court in Pranay Sethi’s case (supra), he admitted for fastening of the liability on the Insurer.

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Further, on the quantum of compensation, learned counsel argued that the Tribunal has rightly considered Rs.4,000/- as monthly income in the absence of any document for loss of income from the agricultural field. Except producing some RTC, there is no other document produced by the claimant to prove the income. Further the learned counsel also argued that the widow of the deceased is the only one dependent on the deceased. The Tribunal has committed error in deducting 1/3^rd of the income towards personal expenses of the deceased. As per the judgment of the Hon’ble Supreme Court in Sarala Verma and others Vs. Delhi Transport Corporation and Others reported in 2009 (6) SCC 121, the dependents must be 2-3 in order

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to deduct 1/3^rd of the income, but the Tribunal

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wrongly deducted 1/3^rd of the income towards personal expenses even when there is only one dependent and hence prayed for deducting 50% of the income towards personal expenses of the deceased. Hence he prayed for dismissing the appeal.

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Upon hearing the arguments of the learned counsel for both the parties and perusal of the records, the points that arise for my consideration are that:

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i. Whether the Tribunal is not justified in fastening the liability on the respondents No.1 and 2 by absolving the Insurer?

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ii. Whether the claimant is entitled for enhancement of compensation?

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iii. What order?

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The claimant has established the

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factum of accident that was occurred due to rash and negligent driving of the driver of the auto rickshaw – respondent No.1. Admittedly, respondent No.2 is the owner of the vehicle in question. The driver of the auto rickshaw was holding the driving licence for driving the three wheeler vehicle as per Ex.R2. Though there was no separate endorsement in respect of the transport or non-transport vehicle, but in view of the judgment passed by the Hon’ble Apex Court in Mukund Dewagan’s case, a separate transport endorsement is not required and in view of the amendment to Section 10 (2) of the Act, fastening of liability on the point of not holding transport endorsement is required to be set aside and liability shall be fastened on the Insurer. Therefore I answer point No.1 in favour of the claimant and as against the Insurer.

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9. With regard to the quantum of

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compensation, the Tribunal has considered the income of the deceased at Rs.4,000/- per month, even though this Court used to consider the income of the unskilled labour for the accident of the year 2011 as Rs.6,000/- per month. Even the learned counsel for the claimant contended that, as per the judgment of the Division Bench of this Court in MFA No.102680/2018 c/w. MFA No.102093/2018, in the case of Sri. Boyineni Narasimhulu @ Narasimhulu @ Venkata Vs. Sri. P. Sidda and Others , this Court considered the income of Rs.3,000/- per acre for the deceased who was having 19 acres of land in the said case. Here in this case, the learned counsel though relied upon Ex.P7 - the RTC, it shows that he is having two acres of land and there is no document produced before this Court what was the income from the agricultural

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land prior to the date of the accident and what was the income of or loss after the accident, which affected the petitioner for calculating Rs.3,000/- per acre. In the absence of any such document, the contention of the learned counsel for the appellant cannot be accepted. On the other hand, even if Rs.3,000/- is considered as income per acre, the deceased has only two acres of land. Therefore, even without considering the income from the agricultural land, a notional income of Rs.6,000/- per month can be taken for an unskilled labour, who died in the accident during the year 2011. Therefore, I propose to consider Rs.6,000/- per month as notional income.

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As per the judgment of the Hon’ble Apex Court in Sarla Verma (supra), 1/3^rd of the income has to be deducted for personal expenses when the deceased was a married man and

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having 2-3 dependents. The same was

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considered by this Court in the Division Bench in MFA No.20630/2013 and connected appeal

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in the case of The Divisional Manager Vs. Smt.

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Laxmi and Others. Even otherwise, the Hon’ble Apex Court in the case of Pranay Sethi (supra) upheld the deduction made in Sarla Verma’s case that, if dependents are 2-3, 1/3^rd of the income shall be deducted and for a bachelor 50% shall be deducted. The Division Bench of this Court in this case deducted 50% as the claimant is only one sole dependent. Therefore, I propose to deduct 50% of the income towards personal expenses of the deceased. As per the Pranay Sethi’s case (supra), 25% of the income shall be considered towards future prospects. Hence the total income would be Rs.6,000 + Rs.1,500 (25% of Rs.6,000) = Rs.7,500/-. If 50% is deducted, the compensation towards ‘loss of

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dependency’ would be Rs.3,750 x 12 x 14 (appropriate multiplier for the age group 40-45 years) = Rs.6,30,000/- . The claimant alone is the dependent, who is the wife. Hence she is entitled for Rs.40,000/- towards ‘loss of spousal consortium’. Rs.15,000/- is awarded towards ‘funeral expenses’ and Rs.15,000/- is awarded towards ‘loss of estate’.

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