SMT. LAKSHMINARASAMMA v. SRI. DHARMARAJU

(BY SRI. O. MAHESH, ADVOCATE FOR R2; NOTICE TO R1 DISPENSED WITH VIDE ORDER DATED 16.07.2015) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 3.4.2012 PASSED IN MVC NO.4567/2009 ON THE FILE OF THE MEMBER, MACT, VI ADDL. JUDGE, COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. IN M.F.A.NO.5497/2012 BETWEEN: THE SENIOR MANAGER, BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED, NO.27, T.B.R. COMPLEX, ADJACENT TO BANGALORE STOCK EXCHANGE AND JAIN COLLEGE, NEW MISSION ROAD, BANGALORE – 560 024. BY ITS MANAGER. (BY SRI. O.MAHESH, ADVOCATE) …APPELLANT - 3 - NC: 2024:KHC:815 MFA No. 2400 of 2013 C/W MFA No. 5497 of 2012 AND:

1. SMT. LAKSHMINARASAMMA, AGED ABOUT 48 YEARS, W/O LATE N. ASHWATHANARAYANAPPA,

2. HARISHA H.A., AGE 31 YEARS, S/O N. ASHWATHANARAYANAPPA, BOTH ARE R/AT HIRENAGAVALLI, MANDIKAL HOBLI, CHIKKABALLAPURA TALUK AND DISTRICT – 562 101.

3. SRI. DHARMARAJU, S/O D. PALANISWAMY, MAJOR, NO.13, 4TH MAIN ROAD, R/O NEW THARAGUPET, BANGALORE - 560 002. …RESPONDENTS (BY SRI. R.PRAMOD, ADVOCATE FOR R1; NOTICE TO R2 AND R3 HELD SUFFICIENT VIDE ORDER DATED 20.10.2014) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 3.4.2012 PASSED IN MVC NO.4567/2009 ON THE FILE OF THE MEMBER, MACT, VI ADDL. JUDGE, COURT OF SMALL CAUSES, BANGALORE, AWARDING A COMPENSATION OF RS.8,80,460/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION. THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 4 - NC: 2024:KHC:815 MFA No. 2400 of 2013 C/W MFA No. 5497 of 2012 JUDGMENT M.F.A.No.5497/2012 filed by insurer challenging finding liability M.F.A.No.2400/2013 is filed by the claimants seeking enhancement of compensation. In both the appeals, the judgment and award dated 03.04.2012 passed in M.V.C No.4567/2009 by the VI Additional Judge, Court of Small Causes, Bangalore (hereinafter referred to as 'the Tribunal' for short) is assailed. Hence, both the appeals are taken up for consideration together .

2. For the sake of convenience, the parties herein are referred as per their rank before the Tribunal.

3. The relevant facts necessary consideration of the present appeals are that on 28.02. 2009, one N.Ashwathnarayanappa (hereinafter referred to as 'the deceased' for short) was riding his motorcycle, when a lorry being driven in a rash and negligent manner came from behind and hit the motor cycle - 5 - NC: 2024:KHC:815 MFA No. 2400 of 2013 C/W MFA No. 5497 of 2012 causing the accident in question as a result of which the rider of the motorcycle succumbed to his injuries. Claiming compensation for the death of the deceased, his wife and son filed a claim petition before the Tribunal.

4. The claim proceedings were contested by the owner and insurer of the lorry. The claimant No.1 was examined as PW1. Ex.P1 to Ex.P10 were marked in evidence. The officer of respondent No.2 - insurer was examined as RW1. Ex.R1 to Ex.R6 have been marked in evidence. The Tribunal upon an appreciation of the oral and documentary evidence on record, allowed the claim petition and awarded a compensation of Rs.8,80,460/- together with interest at 6% per annum and held the respondents jointly and severally liable to pay the compensation awarded and directed respondent No.2 - insurer to pay the compensation. Being aggrieved, the present appeals are filed. - 6 - NC: 2024:KHC:815 MFA No. 2400 of 2013 C/W MFA No. 5497 of 2012

5. The learned counsel for the insurer contends that the finding of the Tribunal fastening the liability on the insurer is erroneous having regard to the fact that as on the date of the accident, the driver did not have a valid and effective driving licence to drive the vehicle in question inasmuch as the driving licence of the driver did not have the requisite transport endorsement. He further contends that the quantum of compensation awarded is on the higher side.

6. Per contra learned counsel for the claimants justifies the finding of the Tribunal on the aspect of liability and submits that the quantum of compensation is required to be enhanced.

7. The arguments of both the learned counsel have been considered and the records, including the records of the Tribunal have been perused. The questions that arise for consideration are: - 7 - NC: 2024:KHC:815 MFA No. 2400 of 2013 C/W MFA No. 5497 of 2012 (i) Whether the finding of the Tribunal regarding liability is erroneous and is liable to be interfered with? (ii) Whether the compensation awarded is required to be enhanced? Re Point No.1:

8. It is forthcoming that the insurer has a adduced the evidence of its officer as RW1 and Ex.R1 to Ex.R6 have been marked in evidence. It is forthcoming the endorsement issued by transport department (Ex.R2) that the driver was issued with the licence to drive Light Motor Vehicle in (LMV) and Motorcycle With Gear (MCWG) DL No.3633/2002/TN29 dated 24.05.2002 and was issued endorsement vide batch No.59761/28.04.2004/829 to drive Heavy Transport Vehicle (HTV) from 23.03.2005, which is valid up to 27.04. 2013.

9. It is the vehement contention of the learned counsel for the appellant that in the translated copy - 8 - NC: 2024:KHC:815 MFA No. 2400 of 2013 C/W MFA No. 5497 of 2012 (Ex.R3), it is stated that the authorization to drive the transport weight vehicle was issued on 23.03.2013. That in any event, the license to drive transport vehicle is only for a period of three years as per the provisions of Motor Vehicles Act and hence, the driver of the vehicle did not have the requisite licence to drive the vehicle in question.

10. It is relevant to note that Ex.R2 itself specifically states that the driver was authorized to drive a heavy transport vehicle from 23.03.2005, which validity was upto 27.04.2013. It is forthcoming from the testimony of RW1 that in the examination in chief, it is sought to be deposed that the transport endorsement is with effect from 28.04.2010 up to 27.04.2013. The testimony of RW1 is contrary to the certificate Ex.R2. In any event, the official of the transport department has not been examined by the insurer with regard to validity of the transport endorsement Ex.R2. - 9 - NC: 2024:KHC:815 MFA No. 2400 of 2013 C/W MFA No. 5497 of 2012

11. The Tribunal has appreciated the said aspect of the matter and noticed that licence having been issued on 21.03.2005 and being valid upto 27.04.2013 and the accident having occurred on 28.02.2009, the finding of the Tribunal holding the insurer liable to pay the compensation is just and proper and not liable to be interfered with. Hence point No.1 is answered in the negative Re Point No. 2:

12. With regard to the quantum of compensation, the Tribunal has noticed that the age of the deceased was 51 years and that the appropriate multiplier is '11' which is just and proper. The Tribunal while assessing the income has noticed the salary certificate (Ex.P9), which stipulates that the gross salary is ` 9,707/-, out of which the professional tax of `.100/- is deducted. Hence, the income is assessed at `9,607, which is just and proper. To the aforesaid amount, 10% has to be - 10 - NC: 2024:KHC:815 MFA No. 2400 of 2013 C/W MFA No. 5497 of 2012 added on account of future prospects i.e., (9,607+ 10% =10,567), having regard to the law laid down by the Constitution Bench of the Hon'ble Supreme Court in NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157. Thus, the monthly income is re-assessed to `10,567/-. 1/3rd is required to be deducted towards personal expenses. Hence, the monthly dependency is re-assessed as ` 7,045/- (10567-1/3=7,045). Thus, the loss of dependency is re-assessed as (7045 x 12 x 11) ` 9,29,940/-.

13. In view of the law laid down by the Hon'ble Supreme Court in case of MAGMA GENERAL INSURANCE CO. LTD. Vs. NANU RAM reported in 2018 ACJ 2782, the claimants are entitled to ````.40,000/- each under the head loss of consortium and loss of love and affection. Thus, the total amount of compensation under this head is assessed at ```` 80,000/-. In addition, - 11 - NC: 2024:KHC:815 MFA No. 2400 of 2013 C/W MFA No. 5497 of 2012 the claimants are entitled to ```` 15,000/- each towards loss of estate and funeral expenses.

14. Hence, the quantum of compensation is re- assessed as follows: Sl. No.

2. Heads Amount awarded by the Tribunal (`) Amount by this Court (`) awarded Loss of dependency

845460.00

929940.00 Loss of love and affection and Loss of Consortium

20000.00

80000.00

3. Funeral expenses

15000.00

30000.00 Total

880460.00

1039940.00

15. Hence, the appellants/claimants are entitled for enhanced compensation of ```` 1,59,480/- (````10,39,940 - ```` 8,80,460) together with interest at 6% p.a.

16. In view of the aforementioned, the following: i) ii) ORDER The appeals are allowed in part; The judgment and award dated

03.04.2012 passed in M.V.C - 12 - NC: 2024:KHC:815 MFA No. 2400 of 2013 C/W MFA No. 5497 of 2012 No.4567/2009 by the VI Additional Judge, Court of Small Causes, Bangalore, is modified to the extent stated herein. iii) The appellant/claimant is entitled to enhanced compensation `1,59,480/- with interest at 6% per annum from the date of petition till its realization addition compensation awarded Tribunal. iv) Respondent No.2 – Insurance Company is directed to deposit the compensation together with accrued interest within a period of eight weeks from the date of receipt of a copy of this judgment; v) After deposit, the entire enhanced compensation with accrued interest shall be disbursed to the Claimant No.1 / Appellant No.1 M.F.A.No.2400/2013; - 13 - NC: 2024:KHC:815 MFA No. 2400 of 2013 C/W MFA No. 5497 of 2012 vi) The Registry to draw the modified award accordingly. vi) No costs. Sd/- JUDGE List No.: 1 Sl No.: 35