The Manager Vs Smt.Jayamala

NOW REPRESENTED BY ITS M/S SHRIRAM GENERAL INSURANCE COMPANY LTD., NO.5/4, 3RD FLOOR, S V ARCADE, BILAKAHALLI, BANNERUGHATTA MAIN ROAD, IIMB POST, BANGALORE REPTD BY ITS ASSIT MANAGER …APPELLANT (BY SRI. B C SHIVANNE GOWDA., ADVOCATE)

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AND:

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SMT.JAYAMALA W/O LATE MALLIKARJUNA AGED ABOUT 44 YEARS, R/O KORANAHALLI VILLAGE TARIKERE TALUK

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CHIKKAMAGALUR DISTRICT

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HARSHA S/O LATE MALLIKARJUNA AGED ABOUT 25 YEARS,

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TEJAS S/O LATE MALLIKARJUNA AGED ABOUT 23 YEARS,

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CHANDRAPPA S/O BASAPPA

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AGED ABOUT 78 YEARS

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(RESPONDENT NO.1 TO 3 AND 5^TH RESPONDENT IS LR OF DECEASED R4)

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RUDRAMMA W/O CHANDRAPPA AGED ABOUT 68 YEARS,

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R/O KORANAHALLI VILLAGE TARIKERE TALUK CHIKKAMAGALUR DISTRICT

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KIRAN

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S/O OBALANIKA AGED ABOUT 28 YEARS, R/O JAYANAGARA, HOLEHONNUR, BHADRAVATHI TALUK, SHIVAMOGGA DISTRICT

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M SHANKAR S/O MANTHRIGOUNDER AGED ABOUT 40 YEARS, R/O DOOR NO. 310-A, SRIRAMANAGARA, BHADRA COLONY POST, BHADRAVATHI TALUK SHIVAMOGGA DISTRICT

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…RESPONDENTS

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(BY SMT. B.N.MANJULA FOR SRI. NAGARAJA R C., ADVOCATE FOR R1 TO R3 AND R5; SRI. JAGNITH.S, FOR

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SRI. SUYOG HERELE.E, ADVOCATE FOR R7; SRI. SATISH.V, ADVOCATE FOR R6; R1-R3 AND R5 ARE TREATED AS LRS OF R4 V/O DTD 22.02.2024)

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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.11.2020 PASSED IN MVC NO. 546/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND PRINCIPAL J.M.F.C., TARIKERE, AWARDING COMPENSATION OF RS. 13,00,000/- ALONG WITH INTEREST AT THE RATE OF 6 PERCENT P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT OF THE AWARD AMOUNT.

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IN MFA.CROB NO. 147/2021

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BETWEEN:

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SMT JAYAMALA W/O LATE MALLIKARJUNA AGED 44 YEARS, R/O KORANAHALLI VILLAGE TARIKERE TALUK CHIKKAMAGALUR DISTRICT

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SRI HARSHA

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S/O LATE MALLIKARJUNA AGED 25 YEARS, R/O KORANAHALLI VILLAGE TARIKERE TALUK CHIKKAMAGALUR DISTRICT

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TEJAS S/O LATE MALLIKARJUNA AGED 23 YEARS, R/O KORANAHALLI VILLAGE TARIKERE TALUK CHIKKAMAGALUR DISTRICT

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SRI RUDRAMMA W/O LATE CHANDRAPPA, AGED 68 YEARS, R/O KORANAHALLI VILLAGE, TARIKERE TALUK, CHIKKAMAGALUR DISTRICT.

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...CROSS OBJECTORS

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(BY SMT. B.N.MANJULA FOR SRI. NAGARAJA R C., ADVOCATE)

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AND:

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SRI KIRANA S/O OBALANIKA 28 YEARS, R/A JAYANAGARA HOLEHONNUR, BHADRAVATHI TALUK, SHIVAMOGGA

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SRI M SHANKAR S/O MANTHRIGOUNDER 41 YEARS R/O NO.310 A SRIRAMANAGARA BHADRA COLONY POST BHADRAVATHI TALUK, SHIVAMOGGA DISTRICT

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THE MANAGER SRIRAM GENERAL INSURANCE COMPANY E-8, RII CO INDUSTRIAL AREA, SEETHAPURA, JAIPURA RAJASTHAN, RAJASTHAN STATE.

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...RESPONDENTS

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(BY SRI. JAGNITH.S FOR SRI. SUYOG HERELE.E., ADVOCATE FOR R2; SRI. B.C.SHIVANNE GOWDA, ADVOCATE FOR R3; R1- SERVICE OF NOTICE D/W V/O DTD 03.02.2025)

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THIS MFA CROB FILED UNDER ORDER 41 RULE 22 R/W SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.11.2020 PASSED IN MVC.NO.546/2016 ON THE FILE OF THE SENIOR CIVIL

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JUDGE AND PRL. JMFC, TARIKERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL AND MFA CROB, COMING ON FOR ORDERS, 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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Both these appeals arises out of judgment and award dated 17.11.2020 passed in MVC No.546/2016 by the Senior Civil Judge and Prl. JMFC, MAMACT, Tarikere (for short ‘the Tribunal’). The insurer has preferred MFA No.2915/2021 challenging its liability to pay the compensation and the claimants filed MFA.CROB No.147/2021 for enhancement of the compensation.

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With consent of both the sides matters are taken up for final disposal and common orders are passed.

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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 brief facts of the case are that, one Mallikarajuna, husband of the claimant No.1, father of the claimant Nos.2 and 3 and son of claimant Nos.4 and 5, died in

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a vehicle accident, which was occurred on 13.10.2015, due to rash and negligent driving of a lorry bearing registration No.KA18-A-3325, near Kodicamp cross road. The claimants being the legal representatives and dependents of the deceased filed the claim petition seeking compensation.

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The respondents in their respective written

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statements denied averments of the petition and respondent No.3 denied its liability to pay the compensation and prayed to dismiss the claim petition.

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From the rival contentions of the parties, the

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Tribunal framed necessary issues, for its determination.

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The claimants to prove their case examined one witness as PW-1 and marked 19 documents, as per Exs.P-1 to P-19. Respondents examined three witnesses as RW-1 to RW-3 and marked documents as Exs.R-1 to R-9.

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The Tribunal, after hearing both the parties, held that the accident occurred due to rash and negligent driving of the lorry by its driver. The Tribunal also held that the driver of the lorry had valid and effective driving license to drive the said

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class of vehicle. The Tribunal has assessed the income of the deceased as Rs.8,000/- per month, added 25% of the income towards future prospects, deducted 1/4^th income of the deceased towards his personal expenses, applied multiplier as

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'13' and awarded the following amount of compensation:

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Particulars	Amount in Rs.
Loss of dependency	11,70,000/-
Loss of consortium	40,000/-
Towards transportation and funeral expenses	15,000/-
Loss of estate	15,000/-
Loss of love and affection	60,000/-
Total	13,00,000/-

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Learned counsel for the appellant-insurer contended

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that claimant Nos.2 and 3 were major sons and they were not dependent upon the deceased. Therefore, awarding compensation by considering them as dependent is incorrect. Driver of offending lorry had no valid and effective driving licence, driving licence produced is not belonging to the driver of the lorry but of a different person. Hence, respondent-

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insurer is not liable to pay compensation. With these reasons, prayed to set aside the impugned judgment, fastening the liability on the appellant-insurer.

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Learned counsel for the claimants contended that the Tribunal has not considered the income of the deceased properly. He was earning Rs.50,000/- per month, but It was not at all taken into account while assessing the income. The amount of compensation awarded under the head 'loss of consortium' is on the lower side. The law laid down in the case

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of Magma General Insurance Co. Ltd. Vs. Nanu Ram Alias Chuhru Ram and Others¹ , has not been followed by the Tribunal. With these reasons, they prayed for enhancement of compensation.

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The contentions of the learned counsel for respondent Nos.1 and 2 are that respondent No.1 was driver working under respondent No.2 about 8 years prior to the accident. He had a valid and effective driving licence and same has been produced before the Court. The insurer challenged the said licence only on the ground that name of the father was

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1 (2018) 18 SCC 130

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wrongly mentioned in a driving licence and address of respondent No.1 showed in the charge sheet differs from driving licence. In the charge sheet, it appears that the concerned police mentioned the address of respondent No.1 as on the date of the accident. But the driving licence is pertaining to permanent address of the said driver. Under these circumstances, it cannot be held that the said licence was not belonging to respondent No.1. The Tribunal has considered this point properly and upheld the contention of respondent Nos.1 and 2. With these reasons, prayed to dismiss the appeal filed by the insurer.

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The fact of the accident and involvement of the vehicle, as well as the said vehicle was insured with respondent No.3 are not in dispute. The death of Mallikarajuna by involvement of said vehicles is also not in serious dispute. The only contention of the insurer in the present appeal is that the driving license i.e., Ex.R.6 produced by respondent No.2 does not belong to driver of the charge sheeted vehicle.

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The senior executive of respondent No.3 was

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examined as RW.3. In his examination-in-chief, he has stated

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that driver of the offending vehicle i.e., respondent No.1, had no valid and effective driving license as on the date of the accident. It is not the evidence of RW.3 that the name and address of the driver mentioned in Ex.R.6 is incorrect or it does not belong to respondent No.1. It appears that during the course of arguments in the present appeal, the said facts were highlighted by learned counsel for respondent No.3-insurer. Respondent No.3 did not examine the investigating officer before the Tribunal to ascertain the materials on the basis of which respondent No.1 was charge sheeted under Sections 279 and 304(A) of the IPC and Section 3 r/w Section 181 of the Motor Vehicles Act. It is also not clear as whether the concerned investigating officer had cross-checked Ex.R.6 prior to filing of the charge sheet. It is true that father's name of the driver of the lorry in Ex.R.6 is mentioned as 'Obya Naika' but in the charge sheet his father's name is mentioned as 'Obalanaika'. It is also true that address of respondent No.1 mentioned in the charge sheet is "Kirana S/o Obalanaika, lorry driver, R/at Jayanagara, Holehonnur, Bhadravathi Taluk, Shivamogga Dist", but the address mentioned in Ex.R.6 is "No. 10, 2^nd cross, Guthal Colony, Mandya 571401". The licence was

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issued by the RTO, Mandya. It appears that respondent No.1 was a permanent resident of Mandya and the same address has been mentioned in Ex.R.6. Ex.R.4 is also a copy of Ex.R.9 i.e., judgment in CC No.71/2016, wherein the address of the driver is mentioned as "Jayanagara, Holehonnur, Bhadravathi Taluk", it appears to be the address of the driver of the vehicle at the time of incident. Therefore, only on that basis, it cannot be held that respondent No.1 had no valid license at the time of accident or Ex.R.6 does not belong to respondent No.1.

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The owner of the vehicle was examined himself as RW.2. In his cross-examination, he has stated that he know respondent No.1 for about 8 years and he was working as a driver with him for about 3 to 4 years prior to his evidence. The driving license of the respondent No.1 was produced before the CC No.71/2016. It was suggested to him that the driving license number furnished by respondent No.2 is belonging to different person and RW.2 pleads ignorance about the same. Therefore, Ex.R.6 was subject to scrutiny before the Criminal Case No.71/2016, which is noted in the judgment passed in the said case. In the reasoning assigned in the judgment in CC

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No.71/2016, the learned JMFC given detailed reasons wherein it is observed that the witnesses examined by the prosecution had identified the accused as driver of the said lorry. In the said judgment, the driving license of the driver of said vehicle was also subjected to scrutiny and the criminal Court held that the said license was belonging to driver of the lorry and he had valid and effective driving licence. Therefore, the contention of the insurer that the driver of the lorry had no valid and effective driving license to drive the said class of vehicle and hence, insurer is not liable to indemnify the owner of the vehicle, is not tenable.

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Though it was not contended by the insurer in the appeal memo, but during arguments it has contended that claimant Nos.2 and 3 are major sons and they are not entitled to compensation is also not tenable. Firstly, there are no materials on record to show that both had an independent source of income. Learned counsel for the appellant submits that since both are majors, it shall be presumed that they have their own independent source of income. There is no such legal presumption to accept the said contention. Moreover, in the

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cross-examination of respondent No.3, it was not brought out that both of them had any independent source of income. Apart from that, in the case of National Insurance Company Limited Vs. Birender and Ors² , the Hon'ble Apex Court held that major sons and married daughters are also entitled to claim the compensation in case of death of their father. Even under Section 166 of the Motor Vehicles Act, the legal representatives of the deceased shall be entitled to claim the compensation. Considering these facts, said contention of the appellant is not tenable.

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The claimants contended that the deceasedMallikarjuna was earning Rs.50,000/- per month, through Agriculture and the claimants were unable to prove the same. Therefore, the Tribunal has taken notional income as Rs.8,000/- per month. Comparing to the notional income chart prepared by the Karnataka State Legal Services Authority, income assessed by the Tribunal is on the lower side. Therefore, the income of the deceased is taken as Rs.9,000/per month. The deceased died at the age of 46 years.

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2AIR 2020 SC 434

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Therefore, 25% of the income has to be added towards future prospects. Undisputedly, the multiplier applicable in the present case is '13' and deduction towards personal expenses shall be 1/4^th . On that figures compensation is recalculated.

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The claimants are the widow, children and aged parents of the deceased. The Tribunal, while awarding the compensation under the head 'loss of consortium' did not follow the law laid down in the case of Magma General Insurance Ltd (supra). Therefore, the claimants are entitled to the enhancement under the head 'loss of consortium'.

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As per the law laid down in the case of National Insurance Company Limited Vs. Pranay Sethi & Others³ ,

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there is no need to award compensation under the head loss of love and affection since it is awarded under the head of 'loss of consortium'. The claimants are entitled to compensation under the 'conventional head', which was already awarded by the Tribunal. Accordingly, the claimants are entitled to following amount of compensation:

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3 AIR 2017 SC 5157

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Particulars	Amount in Rs.
Loss of dependence (9,000+25%x12x13x3/4)	13,16,250/-
Loss of consortium (40,000x5)	2,00,000/-
Loss of estate	15,000/-
Funeral and Transportation expenses	15,000/-
Total	15,46,250/-
Amount awarded by the Tribunal	13,00,000/-
Enhancement-	*2,46,250/-*

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18. Respondent No.3 is liable to indemnify respondent

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No.2 and pay the enhanced amount of compensation.

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The claimants are entitled to interest at the rate of

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6% per annum on the enhanced amount of compensation from the date of claim petition till its realisation.

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In the result, I proceed to pass the following:

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ORDER

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i) The Appeals are allowed in part .

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ii) The judgment and award dated 1 7^th November 2020, passed in MVC.No.546/2016, by the S enior Civil Judge and MACT, Tarikere, stands modified.

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iii) The claimants are entitled to enhanced compensation of Rs.2,46,250/-, with interest at the rate of 6% p.a., from the date of petition till its realization.

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iv) The respondent No.3 - Insurance Company shall deposit the amount within a period of six weeks from the date of award.

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v) The remaining portion of the award of the Tribunal is not disturbed.

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vi) Whatever the amount deposited by the insurer shall be transmitted to the Tribunal for disbursement.

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vii) Since the matter is disposed of, all the pending I.As' stand disposed of.

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Registry is directed to send back the records along with a

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copy of this judgment to the concerned Tribunal.