Smt Bhagyalakshmi @ Bhagyashree Vs J M Raghu

SMT BHAGYALAKSHMI @ BHAGYASHREE AGED ABOUT 26 YEARS W/O LATE SOMASEKAR @ M S SHAMASUNDAR RESIDING AT 2126, CH 12/1 ASHOKAPURAM, 2ND CROSS MYSORE 570008

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…APPELLANT

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(BY SRI. K.S.MANOJ, ADV. FOR MR. H MUJTABA, ADVOCATE)

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AND:

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Digitally signed by NANDINI R Location: HIGH COURT OF KARNATAKA

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J M RAGHU AGED ABOUT 44 YEARS S/O JAVARAYAPPA RESIDING AT NO.1154/A RAVEENDRA ROAD ASHOKANAGAR, MANDYA (R C OWNER OF THE LORRY KA-07-2844) 2. ICICI LOMBARD GEN.INS.CO.LTD., NO.89, 2ND FLOOR, S V R COMPLEX HOSUR MAIN ROAD, MADIVALA BENGALURU 5600 (INSURER OF THE LORRY NO.KA-07-2844) POLICY NO.3003/A/564 33638/00/800

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HC-KAR

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DEVARAJ S/O DODDAMARIKALAIAH AGED ABOUT 37 YEARS RESIDING AT BYRAPATNA VILLAGE

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MALLUR HOBLI, CHANNAPATTANA TALUK RAMANAGARA DISTRICT 5710501

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(R C OWNER OF THE AUTO RICKSHAW NO.KA 42 - 4195)

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TATA AIG GENERAL INS CO LTD., NO.69, 2ND FLOOR, J P & DEVI JAMBUKESHVARA ARCADE, MILLERS ROAD BENGALURU 560052 (INSURER OF THE AUTO RICKSHAW NO.KA 42-4195) POLICY NO.015074803000

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M S SHIVALINGAIAH S/O SIDDAIAH (DRAMA MASTER) RESIDING AT DODDAMALLUR VILLAGE & POST CHANNAPATTANA TALUK RAMANAGAR DISTRICT 5710501 (SINCE DEAD BY LRS)

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M S KUMAR AGED ABOUT 38 YEARS S/O LATE M S SHIVALINGAIAH RESIDING AT DODDAMALLUR VILLAGE POST CHANNAPATTANA TALUK RAMANAGARA DISTRICT 5710501

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M S SIDDAPPA AGED ABOUT 36 YEARS S/O LATE M S SHIVALINGAIAH RESIDING AT DODDAMALLUR VILLAGE POST CHANNAPATTANA TALUK RAMANAGARA DISTRICT 5710501

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M S ANANDI @ ANANDA AGED ABOUT 34 YEARS

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HC-KAR

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S/O LATE M S SHIVALINGAIAH RESIDING AT DODDAMALLUR VILLAGE POST CHANNAPATTANA TALUK RAMANAGARA DISTRICT 5710501

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MISS POORNIMA M S

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AGED ABOUT 28 YEARS D/O LATE M S SHIVALINGAIAH C/O MUDDAYYA M DOOR NO.27, K S P T S SILK FARM POST CHANNAPATTANA RAMANAGARA DISTRICT 5710501

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…RESPONDENTS

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(BY SRI. B C SHIVANNE GOWDA, ADV. FOR R2, SRI Y.P.VENKATAPATI, ADV. FOR R4, R5(b) & (c) ARE DISPENSED WITH,

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R1, R3, R5(A) & R5(D) ARE SERVED UNREPRESENTED)

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MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 6.3.2013 PASSED IN MVC NO. 4980/2010 ON THE FILE OF THE II ADDL. SMALL CAUSES JUDGE AND XXVIII ACMM AND MACT, BANGALORE, (SCCH.NO.13), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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NC: 2025:KHC:31304 MFA No. 6116 of 2013

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE C M JOSHI

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ORAL JUDGMENT

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Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents.

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Even though the appeal is slated for admission, by consent of both sides, it is taken up for final disposal.

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The petitioner, who is the appellant before this Court was the wife of one Somasekhar, who died in the road traffic accident. It is the case of the appellant that on 27.02.2010 at about 8.00 p.m., the deceased Somasekhar was an inmate of auto rickshaw bearing No.KA-42-4195 along with other passengers. On Bengaluru-Mysore Road, Doddamallur near Saibaba Mandir side, Channapattana, a lorry bearing No.KA-07-2844 stopped suddenly without indication and as a result, the driver of the auto rickshaw could not control his vehicle and dashed to the lorry from

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behind. As a result, the deceased Somasekhar and other passengers sustained grievous injuries and the deceased was immediately taken to the Government Hospital, Channapattana and later while he was being shifted to

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Bengaluru, he succumbed to the injuries. Thereafter, the petitioner and the parents of the deceased performed the last rituals of the deceased. The petitioner contends that the accident was due to the negligence of both the drivers and that the deceased was working in a juice shop, earning Rs.7,174/- p.m. as wages and the petitioner has lost her husband at young age and as such, she is entitled for compensation.

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On issuance of notice, respondent Nos.1 and 3 who are the owners of the lorry and the auto rickshaw did not appear and therefore, they were placed ex-parte.

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Respondent No.2, who is the insurer of the lorry

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and respondent No.4, who is the insurer of the auto rickshaw appeared and resisted the petition. They arrested

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that the drivers of their vehicles were not negligent and inter alia contended that the compensation claimed by the petitioner is highly exorbitant, imaginary and untenable. Respondent No.4, who is the insurer of auto rickshaw contended that the driver of auto rickshaw had allowed more than the permitted number of passengers in the said auto rickshaw. Therefore, there is violation of terms and conditions of the permit and also the policy. Inter alia both the insurance companies denied that the drivers had violated the conditions of the policy and the liability be fastened upon the owners of the vehicle.

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On the basis of the above contentions, the

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Tribunal framed appropriate issues.

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Though the parents of the deceased were arrayed as respondent Nos.5 and 6, both of them died during the pendency of the petition before the Tribunal.

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HC-KAR

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The petitioner was examined as PW.1, one

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witness examined as PW.2 and got marked the documents as Exs.P1 to P16. The official of respondent No.4Insurance Company was examined as RW.1 and got marked the documents as Exs.R1 to R3.

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After hearing the arguments, the Tribunal awarded a sum of Rs.10,78,056/- under the following heads:

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PARTICULARS	AMOUNT
Loss of income/dependency	Rs.10,33,056-00
Loss of consortium	Rs.10,000-00
Loss of estate	Rs.10,000-00
Loss of love and affection	Rs.10,000-00
Transportation & funeral expenses	Rs.15,000-00
TOTAL	Rs.10,78,056-00

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It also held that the negligence on the part of the auto rickshaw driver was to the extent of 60% and that of lorry driver was 40%. However, there being violation of the permit, it observed that the insurer of the

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auto rickshaw is to be absolved from paying compensation

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and fastened the liability on the owner of the auto rickshaw i.e., respondent No.3. Being aggrieved by the quantum of compensation amount, the petitioner is before this Court in appeal.

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On service of notice, respondent Nos.2 and 4 have appeared though their counsel.

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The Tribunal records were secured and

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arguments were heard.

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Learned counsel appearing for the

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petitioner/appellant submits that the Tribunal erred in not considering the future prospects of the deceased and therefore, the quantum of compensation awarded by the Tribunal is on the lower side. It was contended that the loss of estate, love and affection etc., are also on the lower side. Therefore, there is a need for reassessment of the compensation.

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HC-KAR

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Learned counsel appearing for respondent No.2

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the insurer of the lorry submits that the negligence to the extent of 40% fastened upon the lorry driver is unsustainable since he had no role to play in the accident. He contended that apportionment of the negligence among respondent Nos.1 and 3 is incorrect and consequently, the liability should have been fastened upon the auto rickshaw driver only. He also defends the quantum of the compensation awarded by the Tribunal.

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Learned counsel appearing for respondent No.4 would submit that the Tribunal has rightly absolved respondent No.4 from paying any compensation in view of the driver of the auto rickshaw violating the permit conditions. It is submitted that the violation of the permit conditions is a fundamental breach of the policy and therefore, the Tribunal is justified in absolving the liability on respondent No.4.

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HC-KAR

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It is relevant to note that the factual matrix of

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the case is not in dispute insofar as the auto rickshaw driver while driving the same dashed to a lorry, which was going at the front. There is material on record which shows that the lorry driver had abruptly stopped the vehicle at the center of the road.

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A perusal of the police papers would show that the FIR was registered against both drivers of the vehicles. The charge sheet was also filed by the Investigating Agency against both the drivers. In that view of the mater, the contention that there was no contributory negligence on the part of the lorry driver is not sustainable and the same is appropriately dealt by the Tribunal.

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The records also reveal that the auto rickshaw driver had allowed about 11 passengers in the said auto rickshaw. The investigation papers, especially FIR disclose the same. On this count, the Tribunal held that the permit conditions were violated by the auto rickshaw driver and

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therefore, it held that the policy conditions being violated, the insurance company is not liable to pay the compensation to the petitioner. In that view of the matter, the entire liability is fastened upon respondent Nos.1 to 3 jointly and severally. However, inter se negligence between respondent Nos.1 and 3 are held at 40 : 60.

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It is pertinent to note that the deceasedSomasekhar who was traveling in the auto rickshaw had no role to play in the accident and as such, it is the case of

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the composite negligence as far as the petitioner is concerned. Under these circumstances, the liability of respondent Nos.1 to 3 should be joint and several, but the Tribunal came to the conclusion that respondent No.3 is liable to pay the compensation of 60%. Though the said apportionment of the compensation at 40% : 60% cannot be faulted since there was a greater role on the part of the auto rickshaw driver to exercise the caution while driving the same. Under these circumstances, the inter se

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contributory negligence among respondent Nos.1 and 3

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cannot be faulted with.

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It is pertinent to note that the violation of the permit conditions cannot fully absolve the insurance company from paying the compensation amount. The judgment of the Hon'ble Apex Court in the case of AMRIT

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PAUL SINGH & ANR. VS. TATA AIG GENERAL INSURANCE

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CO. LTD. & ORS.¹ is clear in this aspect. It was held that the violation of the terms and conditions of the policy do not observe the insurance company from paying compensation but it would be at liberty to recover the same from the owner of the vehicle. Hence, the Tribunal erred in absolving the liability of respondent No.4.

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Coming to the quantum of the compensation amount, it is not in dispute that the deceased was aged

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about 25 years at the time of the accident and he was working in juice center. The records produced by the

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1 (2018)7 SCC 558

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petitioner at Ex.P16 and the salary certificate produced at Ex.P10 clinchingly show that deceased-Somasekar was continuously attending the juice center and owner of the juice center had maintained the wage register. Therefore, the Tribunal is justified in accepting Ex.P10.

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However, it is pertinent to note that the Tribunal has deducted the taxes from the salary of the deceased. Ex.P10 shows that the gross salary of the deceased was Rs.7,174/- and after deduction of provident fund of Rs.396/- and ESI of Rs.69/-, his net salary was Rs.6,701/-.

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Obviously, there is no deduction which is shown in respect of professional tax. The provident fund and ESI were only contributions and therefore, they could not have been deducted from the gross salary, which was considered by the Tribunal. Therefore, by deducting Rs.200/- towards professional tax from his salary of Rs.7,174/-, the net salary would be Rs.6,974/- p.m.

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HC-KAR

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It is worth to note that in view of the judgment

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of the Hon'ble Apex Court in the case of NATIONAL INSURANCE CO. LTD VS PRANAY SETHI & OTHERS² , reported in (2017) 16 SCC 680 the future prospects has to be added at 40% and as such, the effective multiplicand would be Rs.9,764/-. Hence, 'loss of dependency' is calculated as Rs.9,764 x 12 x 18 x 2/3 = Rs.14,06,016/-

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by adopting a multiplier of ‘18’ for the age of 25 years and deducting 1/3^rd towards his personal expenses.

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Again, in view of the judgment of the Hon'ble Apex Court in the case of PRANAY SETHI ( Supra ), 10% escalation has to be awarded to the 'loss of consortium, funeral expenses and loss of estate'. Hence, the petitioner is also entitled for a sum of Rs.52,000/- under the head of ‘loss of consortium’, Rs.19,500/- towards ‘loss of estate’ and Rs.19,500/- towards ‘funeral expenses’. In all, the petitioner is entitled for a total sum of Rs.14,97,016/-.

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2 (2017) 16 SCC 680

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As noted supra, respondent Nos.1 and 2 are jointly and severally liable to pay 40% of the compensation amount and respondent Nos.3 and 4 jointly and severally are liable to pay remaining 60% of the compensation amount along with interest to the petitioner.

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It is pertinent to note that in view of the violation of the permit conditions, respondent No.4 is at liberty to recover the same from respondent No.3. Hence, the appeal deserves to be allowed-in-part. Hence, the following:

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ORDER

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i. The appeal is allowed-in-part .

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ii. The petitioner is entitled for total sum of Rs.14,97,016/- along with interest at the rate of 6% p.a. from the date of petition, till its deposit.

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