Mr Ashok Bhagat @ Ashok Kumar Vs Mr M Shankarappa

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED04.08.2014 PASSED IN MVC NO.1026/2011 ON THE FILE OF THE MEMBER, PRINCIPAL MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO.7697/2014

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BETWEEN:

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M/S. UNITED INDIA INSURANCE COMPANY LIMTED NO.484/2, 2^ND FLOOR, SADHU CHINNAMMA BUILDING, SDM TEMPLE ROAD, KUMBARA STREET CROSS, OPP SYNDICATE BANK, K R PURAM, BANGALORE-560 036. NOW REP BY ITS REGIONAL OFFICE, 6^TH FLOOR, KRISHI BHAVAN, NRUPATHUNGA ROAD, BANGALORE-560 001, REP BY ITS ADMINISTRATIVE OFFICER.

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...APPELLANT

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(BY SRI K.S. LAKSHMINARASAPPA, ADVOCATE FOR SRI A.M. VENKATESH, ADVOCATE)

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HC-KAR

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AND:

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SMT.SAMANJAN DEVI, W/O LATE ASHOK BHAGAT, AGED ABOUT 31 YEARS, OCC : NIL

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NEETHU KUMARI D/O LATE ASHOK BHAGAT, AGED ABOUT 13 YEARS, OCC : STUDENT

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GOWTHAM KUMAR S/O LATE ASHOK BHAGAT, AGED ABOUT 11 YEARS, OCC : STUDENT,

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BITTU KUMAR S/O ALTE ASHOK BHAGAT, AGED ABOUT 8 YEARS, OCC : STUDENT,

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KHUSHBU KUMAR D/O LATE ASHOK BHAGAT, AGED ABOUT 6 YEARS, OCC : NIL,

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ANJALI KUMARI D/O ALTE ASHOK BHAGAT, AGED ABOUT 4 YEARS,

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RESPONDENT NOs.2 TO 6 ARE MINORS, REP. BY THEIR MOTHER - RESPONDENT NO.1

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ALL ARE R/A NO.66, GOWDANAPALYA, BHCS LAYOUT, 12^TH MAIN ROAD, BANGALORE-560 061.

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NATIVE PLACE NO.107, GAUSPUR, IJRA VILLAGE NAD POST, HAJIPUR, VAISHALI DISTRICT, BIHAR STATE.

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MR. BINDA BHAGAT @ VINDA BHAGAT S/O LATE AKULA BHAGAT,

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HC-KAR

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AGED ABOUT 73 YEARS, OCC : NIL

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SMT. SITA DEVI, S/O MR BINDA BHAGAT @ VINDA BHAGAT AGED ABOUT 68 YEARS, OCC: NIL BOTH ARE R/AT NO.107, GAUSPUR, IJRAVILLAGE AND POST HAJIPUR, VAISHALI DISTRICT,BIHAR STATE.

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MR M SHANKARAPPA S/O MALLAPPA, AGE MAJOR, OCC: BUSINESS R/AT C.R.D CIRCLE, KADUGODI POST, BANGALORE-562 119 (OWNER OF LORRY NO.KA-13/875)

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S.B. VENKATSWAMY, S/O BACHANNA, AGE MAJOR, OCC : BUSINESS, R/AT NO.43, SIDDANNAHALLI, MALUR TALUK, KOLAR DISTRICT-563 130, (OWNER OF LORRY NO.KA-13/875).

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...RESPONDENTS

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(BY SRI. V MAHESH, ADVOCATE FOR R1, R7 & R8; R2 TO R6 ARE MINORS REP. BY R1; R9 & R10 ARE SERVED & UNREPRESENTED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 4.8.2014 PASSED IN MVC NO.1026/2011 ON THE FILE OF THE MEMBER, PRINCIPAL MACT, BANGALORE, AWARDING A COMPENSATION OF Rs.13,12,000/WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL REALIZATION.

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HC-KAR

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THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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These appeals arise out of common judgment and award dated 04.08.2014 passed by the Principal Member, Motor Accident Claims Tribunal (SCCH-1), Bangalore (for short 'Tribunal'), in MVC.No.1026/2011.

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For the sake of convenience, the parties are referred to as per their ranking before the Tribunal.

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The claimants filed MFA No.262/2015 seeking enhancement of compensation, whereas, respondent No.2 - Insurer of the offending vehicle filed MFA.No.7697/2014 challenging fastening the liability on it to pay the compensation. Both the appeals arising out of common judgment, therefore, they are taken up together for final disposal.

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The brief facts are that, on 24.11.2010, at about 5:30 p.m., deceased Ashok Bhagat met with an accident due to rash and negligent driving of the lorry bearing registration

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HC-KAR

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No.KA-13-875 by its driver, near Shetihalli Gate, Attibele - Anekal Road, Bengaluru. As a result of the impact, said Ashok Bhagat sustained grievous injuries and succumbed to the same at the spot. The deceased was aged about 34 years, working as a granite fitting contractor and earning Rs.20,000/- per month. The claimants were parents, wife and children of the deceased. They were dependent upon his income. They prayed to award compensation.

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Respondent No.1 and 3 are owners and Respondent No.2 is insurer of the offending vehicle. Respondents No.1 and 3 were exparte before the Tribunal.

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Respondent No.2 - Insurer of the offending vehicle in its written statement denied the contents of the claim petition and also denied its liability to pay the compensation on the ground of violation of terms and conditions of the insurance policy. With these reasons, it prayed to dismiss the claim petition.

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From the rival contentions of the parties, the Tribunal framed necessary issues in both the appeals.

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HC-KAR

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The claimants to prove their case, examined two witnesses as PWs.1 and 2 and got marked Exs.P1 to P15. On behalf of respondent No.2, two witnesses were examined as RWs.1 and 2 and marked Exs.R1 to R.5.

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The Tribunal after hearing both the parties, taken the age of the deceased as 34 years, his income at Rs.5,000/per month, applied multiplier '16', added 50% of the income towards future prospects, deducted 1/5^th towards personal expenses and awarded following compensation:

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Sl.No.	Head of Compensation	Amount/Rs.
1.	Loss ofdependency	11,52,000.00
2.	Compensation to the family members (children and family members other than wife) for loss of love and affection, deprivation of protection, socialsecurity etc.	1,00,000.00
3.	Compensation to the widow of the deceased for loss of love and affection, pain and sufferings, loss of consortium, deprivation of protection, social security etc.	50,000.00
4.	Cost incurred on account of funeral and ritual expenses.	10,000.00
	TOTAL	13,12,000.00

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The claimants have filed this appeal seeking

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enhancement of the amount of compensation. The insurer challenged the same on the ground that the said vehicle had no permit as on the date of the accident. Although the

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materials were placed on record, the Tribunal failed to consider them and, by disbelieving the documents as well as the evidence of RW.2, erroneously held that the said vehicle had a valid permit which was not cancelled, thereby fastening the liability on the insurer to pay the compensation.

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Heard the arguments of learned counsel for both the parties.

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On re-appreciation of the evidence available on record, the contentions of both parties require to be considered. Undisputedly, deceased was not a permanent employee in any concern and he was said to be a contractor, earning Rs.20,000/- per month. Claimants were unable to prove the same. Therefore, the Tribunal had taken the income of the deceased at Rs.5,000/- per month, which is on the lower side. Following the notional income chart prepared by the Karnataka State Legal Services Authority, notional income of the deceased is taken at Rs.5,500/- per month.

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The Tribunal added 50% of the income towards future prospects, since he was not a permanent employee in any concern, it ought to have added 40% of the income

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HC-KAR

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towards future prospects. There is no dispute in respect of the deductions or application of multiplier.

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In the case of National Insurance CO. LTD., Vs. Pranay Sethi reported in (2017) 16 SCC 680 as well as Magma General Insurance Company LTD. Vs. Nanu Ram @ Chuhru Ram reported in (2018) 18 SCC 130 , guidelines are given to award compensation under conventional heads. Accordingly, the claimants are entitled to following compensation:

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Sl.No.	Head of Compensation	Amount/Rs.
1.	Loss of dependency (Rs.5,500+40%X12X16X4/5)	11,82,720.00
2.	Loss of consortium (Rs.40,000 X 8)	3,20,000.00
3.	Loss ofestate	15,000.00
4.	Funeral and ritual expenses	15,000.00
	TOTAL	15,32,720.00
	Compensation awarded by tribunal	13,12,000.00
	Enhanced and rounded off to Rs.2,21,000/-	2,20,720.00

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The insurer contended that as on the date of the accident the said vehicle had no permit and said permit was cancelled. To prove the said fact, respondent No.2 examined two witnesses and produced documents pertaining to cancellation of the permit marked as Exs.R1 to R3. It is for the

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HC-KAR

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owners of the vehicle to appear before the Court and produce permit to ply the said vehicle. However, both owners remained ex-parte . The Tribunal, based on the overwriting in the register and the absence of a cancellation order by the competent authority, held that the offending vehicle had a valid permit to ply and, accordingly, fastened the liability on the insurer. Undisputedly, the offending vehicle had valid insurance at the time of accident.

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On re-considering the said material, it appears that said permit was cancelled but a separate order was not passed, however, this does not mean that said vehicle had permit to ply. However, this contention can be proved and disproved in any proceedings initiated by the insurer to recover the amount from the owners of the offending vehicle. For the sake of discussion, even if it is assumed that the vehicle did not have a valid permit, then the insurance company is liable to satisfy third parties. This principle is held in following decisions:

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(i) In the decisions of the Hon'ble Supreme Court in National Insurance Co. Ltd., Vs. Challa Upendra Rao and Ors. reported in AIR 2004 SC 4882 and,

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HC-KAR

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(ii) Oriental Insurance Co., Ltd Vs. Nanjappan & Ors., reported in (2004) 13 SCC 224,

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Therefore, the insurer remains liable to pay the

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compensation to the claimants with a liberty to recover the same from the owner of the vehicle in an appropriate proceedings by virtue of this award. Accordingly, I proceed to pass the following:

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ORDER

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(i) MFA No.262/2015 and MFA No.7697/2014 are partly allowed.

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(ii) Impugned judgment and award dated 04.08.2014 passed by the Principal Member, Motor Accident Claims Tribunal (SCCH-1), Bangalore, in MVC.No.1026/2011 is modified and claimants are held entitled to enhanced compensation of Rs.2,21,000/- with interest at 6% per annum from the date of the petition till realization.

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(iii) Respondent No.2 shall pay the said amount within six weeks from the date of the award with interest @ 6% p.a. from the date

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