P.GURAPPA v. N RAGHUNATHA REDDY

2. SRI MANI, S/O SRINIVAS, MAJOR DRIVER, - 2 - NC: 2024:KHC:45729 MFA No. 8074 of 2014 REDDIPALLI VILLAGE, SHAHTIPURAM MANDAL, CHITOOR DISTRICTT, A.P. (DRIVER OF VEHICLE AP-03-U-5146)

3. UNITED INSURANCE COMPANY LTD., BRANCH OFFICE, MADANAPALLI BRANCH, MADANAPALLI TOWN, D ANDHRA PRADESH- 517 325 REPRESENTED BY MANAGER, POLICY NO.0019964 VALID FROM 7-6-2003 TO 8-6-2004. …RESPONDENTS (BY SRI.RAKESH M.T., FOR SRI. M V CHANDRASHEKAR REDDY .,ADVOCATE FOR R-3; NOTICE TO R-2 IS HELD SUFFICIENT V.O.D 31.01.2019; SERVICE OF NOTICE TO R-1 IS HELD SUFFICIENT V.O.D 10.07.2024) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 14.10.2009 PASSED IN MVC NO.38/2004 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, K.G.F, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL, COMING ON FOR ADMISISION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT This appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988 by the appellants - claimants challenging the Judgment and award dated 14th October 2009, passed in MVC - 3 - NC: 2024:KHC:45729 MFA No. 8074 of 2014 No.38/2004, on the file of the Presiding Officer, Fast Track Court, K.G.F., seeking enhancement of compensation and also for modification of the liability fastened on respondent No.1/owner of the Tempo Trax vehicle bearing No.AP-03-U-

2. The occurrence of the accident and death occurred in the said accident are not in dispute. The points that would arise for consideration are whether the appellants have made out a case for enhancement of compensation and whether the insurance company is liable to pay the compensation or not?

3. The deceased while standing near Kamasandra bus stop, at that time driver of the tempo trax bearing No.AP-03-U- 5146 drove the said vehicle with a high speed and in a rash and negligent manner and dashed against the deceased and due to which, the deceased died in the accident. Therefore, the claimants being the parents of the deceased have filed the claim petition under section 166 of the Motor Vehicles Act and the Tribunal has granted compensation of Rs.2,31,600/- with interest at 6% per annum. - 4 - NC: 2024:KHC:45729 MFA No. 8074 of 2014

4. While awarding compensation, the liability is fastened on respondent No.1/owner of the Tempo Trax on the reason that the driver was not having Driving Licence to drove the Tempo Trax and inspite of the notice issued for production of Driving Licence, the driver and owner of the Tempo Trax have not produced the Driving Licence. Hence, the Tribunal exonerated the respondent no.3/insurance company and fastened liability on the owner of the Tempo Trax.

5. The accident caused in the year 2004. Therefore, the notional income would be Rs.4,000/- per month as per the notional income chart as recognized by the Karnataka State Legal Services Authority. The deceased was a bachelor and aged about 23 years at the time of the accident. Therefore, 40% of monthly income is to be added towards future prospects and 50% is to be deducted towards personal and living expenses. The appropriate multiplier applicable is '18'. Hence, loss of dependency would be Rs.6,04,800/- {Rs.4,000 + 1600 (40% of 4000)} x 50% x 18 x 12}.

6. As per the principles of law laid down by the Hon'ble Apex Court in the case of National Insurance Company - 5 - NC: 2024:KHC:45729 MFA No. 8074 of 2014 Limited vs. Pranay Sethi and others reported in (2017) 16 Supreme Court Cases 680, Rs.40,000/- to be awarded to each of the dependents towards loss of consortium. In the present case, the claimants, who are parents of the deceased are awarded Rs.40,000/- each i.e., Rs.80,000/- (Rs.40,000 x 2) towards 'loss of consortium'. Further, the compensation of Rs.15,000/- is awarded towards 'loss of estate' and Rs.15,000/- is awarded towards 'funeral expenses'. As per the decision in the case of Pranay Sethi, the aforesaid amounts requires to be enhanced at the rate of 10% escalation and therefore, I deem it appropriate to award Rs.88,000/-, Rs.16,500/- and Rs.16,500/- respectively towards loss of consortium, loss of estate and funeral expenses respectively.

7. The Tribunal has awarded compensation of Rs.10,000/- towards 'loss of love and affection'. 'Loss of consortium' means 'loss of love and affection' and aggrieved cannot claim compensation for the same under two separate heads. Since compensation of Rs.88,000/- is awarded towards loss of consortium, the claimants are not entitled compensation of Rs.10,000/- under the head of 'loss of love and affection'. Ordered accordingly. - 6 - NC: 2024:KHC:45729 MFA No. 8074 of 2014

8. Therefore, appellants/claimants are entitled for compensation under various heads as follows: Sl. No. Head of compensation 1 Loss of dependency Loss of consortium 2 3 Loss of estate 4 Funeral expenses Total Amount of compensation awarded Rs.6,04,800-00 Rs. 88,000-00 Rs. 16,500-00 Rs. 16,500-00 Rs.7,25,800-00

9. The Tribunal has observed that Respondent Nos.1 and 2 being the owner and driver of Tempo Trax respectively have not produced Driving Licence. It is a categorical defence taken by the insurance company that driver was not having Driving Licence to drive the Tempo Trax as on the date of the accident. Therefore, before the Tribunal the respondent/insurance company has taken a defence by filing an application for summoning the owner and the driver to produce the Driving Licence. The owner and the driver of the Tempo Trax though received notice to produce Driving Licence before the Tribunal, have not produced the Driving Licence. Therefore, the respondent/insurance company has proved that the driver was not holding the Driving Licence to drive the Tempo Trax as on - 7 - NC: 2024:KHC:45729 MFA No. 8074 of 2014 the date of the accident. Therefore, the Tribunal has rightly exonerated the insurance company and fastened liability on respondent No.1/owner of the Tempo Trax to pay the compensation.

10. In the present case, while the deceased was standing for alighting the bus, at that time, the Tempo Trax dashed against the deceased, due to which the deceased died in the accident. Hence, the deceased is a 3rd party to the Tempo Trax in the present case. Therefore, as per sub-sections (1) and (2) of Section 149 of Motor Vehicle Act,1988 the Insurance Company as if the judgment debtor shall satisfy the claim in respect of third party and then recover the same from the owner of the Tempo Trax. Accordingly, the order of pay and recovery is made as per the principle of law laid down by the Hon’ble Supreme Court in the cases of PAPPU AND OTHERS Vs. VINOD KUMAR LAMBA AND ANOTHER {(2018)3 SCC 208}; NATIONAL INSURANCE COMPANY LIMITED VS. SWARAN SINGH AND OTHERS {(2004)3 SCC 297) and also as per the full bench decision of this Court in the case - 8 - NC: 2024:KHC:45729 MFA No. 8074 of 2014 of NEW INDIA ASSURANCE COMPANY LIMITED VS. YELLAVVA AND ANOTHER (2020 ACJ 2560). The respondent No.3/insurance company is directed to pay the compensation to the claimants at the first instance and then recover it from respondent no.1/owner of the Tempo Trax bearing No.AP-03-U-5146.

11. Liberty is reserved to the respondent No.3/insurance company to file the execution petition before the jurisdictional Court to recover the amount from the respondent No.1/owner. Liberty is also reserved to seek attachment of movable and immovable properties of respondent No.1/owner, till recovery of the amount, in the execution proceedings as per law.

12. Accordingly, I pass the following: O R D E R i) ii) The appeal is allowed in part. The appellants/claimants are entitled to total compensation of Rs.7,25,800/- as against Rs.2,31,600/- awarded by the Tribunal alongwith interest at 6% per annum from the date of petition till realization. - 9 - NC: 2024:KHC:45729 MFA No. 8074 of 2014 iii) The impugned judgment and award dated 14th October 2009 passed in MVC No.38/2004, on the file of the Presiding Officer, Fast Track Court, K.G.F. is modified to the above extent. iv) The respondent No.3/insurance company shall pay the compensation to the claimants at the first instance and then recover it from the owner of the Tempo Trax bearing No.AP-03- U-5146. v) All other terms and conditions stipulated by the Tribunal shall stand intact. vi) Draw award accordingly. vii) As per the order dated 29.10.2024 passed in this appeal, the appellants/claimants are not entitled to interest from the date of filing of the appeal till 29.10.2024. SD/- (HANCHATE SANJEEVKUMAR) JUDGE GSS