M. Anasuya Devi vs Sindhu Developers

A.S. Bopanna, J.—The appellant is before this Court, assailing the judgment and award dated 19.01.2011 passed in MVC No. 1209/2009.

The appellant is the claimant, who had sought for compensation in respect of the death of her son in the accident which occurred on 30.06.2009. The son of the claimant was travelling in the Innova Car bearing registration No. KA-41/M-4344 driven by the respondent No. 1. The said vehicle initially dashed against the motorcycle bearing No. KA-15/Q-4344 and thereafter a bus bearing No. TN-49/L-7714. The Tribunal has awarded the compensation of Rs. 16,29,500/-. The liability has however been fastened on the respondents 1 and 2, while holding that the respondents 3 to 6 which includes the insurer of Innova car are not liable. The claimant is therefore before this Court, assailing the finding rendered by the Tribunal with regard to the negligence, liability and quantum of compensation granted. Since three aspects have been raised for consideration, each of them requires consideration.

Firstly, the issue for consideration is with regard to negligence which caused the accident. The Tribunal, while considering this aspect of the matter has adverted to it, in answering the issue No. 1 which had been raised. Apart from the documents which are produced as Exs.P1 to P6 that includes the complaint and the charge sheet, it has also taken note of the evidence, which had been tendered. The complaint had been lodged by one Sri. N. Prasannakumar, who was travelling in the bus and he alleges negligence of the driver of Innova Car. The claimant, apart from examining herself has tendered evidence of Sri. Lingappa as PW2. In addition to the documents, which are available namely the complaint, wherein it was stated that the driver of the Innova Car i.e., the first respondent was negligent in causing the accident, the witness-PW2, has also stated in no uncertain terms that the driver of the Innova car bearing No. KA-41/M-4344 was negligent in causing the accident. It has been deposed by him that in view of his negligent driving, he had first dashed against the motorcycle bearing No. KA-15/Q-4344 and thereafter, dashed against the bus. The said witness has also recorded his statement before the Police and it is stated that his name is shown as CW6 in the charge sheet. Hence, when the person, who had been examined on behalf of the claimant has stated with regard to the driver of the Innova car being negligent, it is not necessary to advert to any other material to come to such conclusion. Therefore, in that light the finding rendered by the Tribunal on issue No. 1 is unassailable and in that view, we are unable to accept the contention put forth on behalf of the appellant.

The next question that arises for consideration is with regard to the liability or otherwise of the respondent No. 3-Insurance Company, which has issued the policy in respect of the Innova car. The registration certificate marked as Ex.R2 indicates that the vehicle is owned by M/s. Sindhu Developers and the name of the Managing Director is shown therein as the owner. The policy issued by the third respondent is also to the same effect. In the instant case, the fact that the deceased was the partner of M/s. Sindhu Developers cannot be in dispute. Certain disputes are being raised as to whether the deceased was the Managing Partner of M/s. Sindhu Developers or not since, the policy is issued in the name of the Managing Partner. The Insurance Company contends that the deceased being a Managing Partner is the owner. He being a occupant in the vehicle would not be entitled to coverage under the Policy. The learned counsel for the appellant however contends that he was only a partner and not the Managing Partner. The question therefore is also, even if he is considered only as a partner, whether the insurance policy would cover him and for that purpose would he cease to be the owner of the vehicle namely the Innova car, which met with an accident?

The learned counsel for the appellant in that regard referred to Section 15 of the Partnership Act to contend that the property of the Firm (in this case the Innova Car) cannot be considered as the property of the partners. In that regard, the decision in the case of Rajnikant Hasmukhlal Golwala and Others Vs. Natraj Theatre and Others, was referred to. A perusal of the said judgment would indicate that while considering the rights of the partners in respect of the property in the light of the dispute that had arisen between the partners, the High Court was of the opinion that the property belonging to the Firm cannot be considered as own property of the partners. As against the same, the position in that regard had arisen for consideration before the Hon'ble Supreme Court in the case of Malabar Fisheries Co. Vs. Commissioner of Income Tax, Kerala, . In the said decision, the Hon'ble Supreme Court has held that a partnership firm under the Indian Partnership Act, 1932 is not a distinct legal entity apart from the partners constituting it and equally in law the firm as such has no separate rights of its own in the partnership assets and when one talks of the firm's property or firm's assets all that is meant is property or asset in which all partners have a joint or common interest. Further the Hon'ble Supreme Court in the case of N. Khadervali Saheb (Dead) by LRs. and Another Vs. N. Gudu Sahib (Dead) and Others, has held that a partnership firm is not an independent legal entity, the partners are the real owners of the assets of the partnership firm. Actually the firm name is only a compendious name given to the partnership for sake of convenience. The assets of the partnership belong to and are owned by the partners of the firm. So long as partnership continues each partner is interested in all the assets of the partnership firm as each partner is owner of the assets to the extent of his share in the partnership.

Therefore, in the said circumstance, from the decisions rendered by the Hon'ble Supreme Court, it would be clear that irrespective of the fact whether the deceased was a Managing Partner or only a Partner, he continues to remain to be the owner to the extent of his share in the properties of Partnership Firm. Therefore, in such circumstance, when the Innova Car was owned by the Partnership Firm, the deceased being one of the partners would have to be considered to be the owner to the extent of his share in the Partnership Firm to which the car had belonged. Therefore, if that aspect of the matter is kept in view, the deceased being the owner of the vehicle which met with an accident and being occupant thereon and in the instant case when the insurance policy at Ex.R1 does not cover the owner of the vehicle, the Tribunal was justified in exonerating the Insurance company from liability.

The next aspect that arises for consideration is with regard to the appropriate compensation and the income that is to be taken into consideration. There is no dispute to the fact that the deceased was an income tax assessee and the returns filed by him had been produced before the Court below. In fact the Tribunal in para-11 of its judgment has referred to the income tax assessment for three previous years prior to the death of the son of the claimant. In that regard, having taken note of the income indicated for the financial years 2007-08 upto 2009-10 has arrived at the conclusion that the income could be reckoned at Rs. 3,45,000/-. From the said documents, it is clear that the said income as indicated therein has been taken by the Tribunal.

The learned counsel for the appellant would however contend that the income ought to have been reckoned at higher rate than as has been done by the Tribunal. He contends that the future prospectus should have been taken into consideration. The decision in the case of Rajesh and Others Vs. Rajbir Singh and Others, has been relied on. The Hon'ble Supreme Court at the first instance while rendering its decision in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, has indicated that in respect of the persons having a steady income by way of salary, 30% could be added. In the decision in the case of RAJESH (supra), the said principle was extended even to the persons, who may not have fixed salary.

However, there is no indication with regard to the percentage of the income to be added towards future prospectus in respect of the income indicated by the claimants in other fields where there is no steady progression. In the instant case, we however have taken note of the fact that the income for the last financial year taken is that of 2009-10. The claimant's son had died on 30.06.2009. Therefore, taking into consideration this aspect of the matter it would have to be noticed that during the said financial year if the deceased had continued to carry on his business, he would have had further income which should also be kept in view while considering the income for the last three years. That apart, details of other business of the deceased was also referred in the evidence. He was aged about 41 years. Therefore, in the present facts, we are of the opinion, taking an overall view in the peculiar circumstance, 30% of the income reckoned is to be added. If the same is added, the income could be taken at Rs. 4,48,500/-. If 50% as deducted by the Tribunal is taken into consideration, it would be Rs. 2,24,250/-. Hence, the compensation towards the loss of dependency would be in a sum of Rs. 20,18,250/-. The compensation under the conventional heads requires to be enhanced. In addition to the sum of Rs. 25,250/- awarded by the Tribunal, we award a further sum of Rs. 30,000/- under the said head.

Hence, the appellant-claimant in all would be entitled to the total compensation of Rs. 20,73,500/- with interest at the same rate as awarded by the Tribunal.

The award stands modified in the above terms.