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Judgment
N.K. Patil, J.
Miscellaneous First Appeal is filed by the appellant/Insurer and cross objection is filed by the claimants being aggrieved by the Judgment and Award dated 2nd January 2008 passed in M.V.C. No. 3053/2004 on the file of the XVI Additional Judge, Motor Accident Claims Tribunal, Bengaluru (SCCH-14). The Tribunal by its impugned Judgment and Award, awarded a sum of Rs. 3,72,000/- with interest at 6% p.a. from the date of petition till realization on account of the death of the deceased late Smt. Leelavathi. It is the case of the Insurer that the compensation awarded by Tribunal is disproportionate to the source of income of the deceased and directing the appellant/Insurer to indemnify the award amount, cannot be sustained and it is liable to be modified; Whereas, the cross objection is filed by the cross objectors stating that the quantum of compensation awarded by the Tribunal is inadequate and requires enhancement.
The brief facts of the case on hand are that the Cross-Objector No. 1 is husband and cross-objectors No. 2 and 3 are children of the deceased. They have filed claim petition under Section 166 of Motor Vehicles Act, claiming compensation of Rs. 20,00,000/- on account of the death of the deceased in a road traffic accident that occurred on 09.04.2004 at about 10.15 a.m., contending that she was proceeding with her daughter as a pillion rider on TVS Scooty bearing Regn. No. KA-04/EG-5310 from her residence to her work place. When she reached near AMCO Factory, at that time a lorry bearing Regn. No. KA-01/A-6075 came with high speed in a rash and negligent manner and dashed against the Scooty from back side. Due to the impact the deceased fell down and lorry passed over the body of the deceased and the Scooty was also severely damaged. Thereafter, postmortem was conducted and body was handed over to the claimants. It is the further case of the cross-objectors that the deceased was aged about 44 years, a self-employed person, being a tailoring teacher and earning Rs. 10,000/- per month. Due to untimely death of the deceased, the husband has lost his life partner, children have lost their mother''s love and affection, inspiration and guidance. Whatever she earned from her tailoring business she used to spend the entire earnings to the welfare of the family. On account of untimely death of the deceased who was also an earning member, the social and economical condition of the family is affected. Taking all these aspects, the claimants have filed claim petition before the Tribunal claiming compensation against the Insurer and owners of both the vehicles.
The said matter had come up for consideration before the Tribunal. The Tribunal in turn after hearing both the parties and after due consideration of the oral and documentary evidence available on record allowed the same by awarding a sum of Rs. 3,72,000/- with interest at 6% p.a. from the date of petition till the date of realization fixing the liability at 50% each on the appellant - Insurer and the Oriental Insurance Company Limited. Being dissatisfied with the impugned Judgment and Award passed by the Tribunal, the Insurer-National Insurance Company Limited and the claimants both have presented the appeal and cross objection respectively.
The submission of the learned Counsel appearing for the appellant/Insurer at the outset is that, the Tribunal has erred in issuing direction to the appellant/Insurer to indemnify 50% of the award amount, which cannot be sustained. It is the further submission of the learned Counsel appearing for the Insurer that the Tribunal has assumed that there was a Cover-note or policy in respect of offending Lorry bearing No. CAM 6066. The defence evidence showing that the company has not received any premium and no authorized officer has issued a policy in respect of the offending vehicle in favour of the owner of said vehicle has not been appreciated in the right spirit by the Tribunal. Hence, the award of the Tribunal, as against the appellant-Insurer requires to be set aside.
The learned Counsel appearing for Insurer further submitted that the Tribunal ought to have dismissed the claim petition, as against the appellant, on the sole ground that no subsisting and valid policy is produced by the parties before the Tribunal and therefore the appellant-insurer cannot be made liable to pay the compensation assessed by it and ought to have considered that a menial staff in an organization cannot create liability on his employer by indulging in creating receipts or policies in favour of third parties without such power being vested on him and the basic principle of Law that an employee of an organization cannot create civil liability on his employer by indulging in criminal acts or forgery or manipulation is not kept in mind while dealing with the liability of the appellant.
Therefore, he submitted that the impugned judgment and award passed by the Tribunal issuing direction to it to indemnify 50% of the award amount cannot be sustained and is liable to be set aside.
Per contra, the learned Counsel appearing for the 4th respondent - Oriental Insurance Company inter-alia contended and sought to substantiate the impugned Judgment and Award passed by the Tribunal stating that, the Tribunal after appreciating the oral and documentary evidence available on the file is justified in fixing 50% contributory negligence on the part of the driver of the lorry bearing Regn. No. CAM-6066 insured with the appellant/insurer. To substantiate his submission he has taken us through paragraph 15 of the impugned Judgment and submitted that the evidence of RW-4 goes to show that the driver of the lorry bearing No. KA-01/A-6075 is not responsible for the accident and the driver of the lorry bearing No. CAM-6066 is solely responsible for the accident and the charge sheet has been filed against the drivers of both the lorries. The Tribunal after due consideration of the oral and documentary evidence available on the file has rightly held that the Insurer of both the lorries are liable to indemnify the award amount and directed to pay the said compensation in the ratio of 50:50. Therefore, interference by this Court is not called for.
Whereas, it is the case of the cross-objectors that the Tribunal has erred in taking the income at only Rs. 3,000/- p.m. for the reason that the deceased who was aged about 44 years and deceased was a Tailoring Teacher, earning income of more than Rs. 10,000/- per month. The Tribunal has disbelieved the said income on the sole ground that no credible document as such has been produced by the claimants. But he submitted that mere non-production of credible document does not take away the legitimate entitlement of the claimants in assessing the reasonable income of the deceased by the Tribunal on the basis of the material available on record and also considering the age, avocation and the year of accident. Therefore, he submitted that reasonable income of Rs. 5,000/- to Rs. 6,000/- per month may be assessed and out of which 1/3rd may be deducted towards personal expenses by taking the age of the husband of the deceased and adopting the appropriate multiplier of 13, reasonable compensation towards loss of dependency and conventional heads be awarded by modifying the impugned judgment and award.
After careful consideration of the submission of all the three parties and perusal of the impugned judgment and award passed by the Tribunal, what emerges is that, the occurrence of the accident resulting in the death of the deceased in a road traffic accident that occurred on 09.04.2004 are not in dispute. Further, it is not in dispute that the deceased was aged about 44 years at the time of accident and was a tailoring teacher. The fact that the claimants are husband and children of the deceased is also not in dispute. The cross-objectors/claimants to establish the income of the deceased have produced Ex. P10 - bill book, PW-11 -certificate. The Tribunal held that the said evidence is not sufficient to establish that the deceased was getting income of Rs. 10,000/- per month and no credible documents such as bank account pass book to show the income of the deceased. Therefore, we can safely re-assess the income of the deceased at Rs. 5,000/- per month, out of which as the claimants are three in number, 1/3rd shall be deducted towards personal expenses. Thus, the net income works out to Rs. 3,334/-. The age of the husband as on the date of the accident is 50 years and the appropriate multiplier applicable is 13. Accordingly, we redetermine the compensation towards loss of dependency at Rs. 5,20,104/- (Rs. 3,334/- x12x13).
Having regard to the facts and circumstances referred above, we deem fit to award a sum of Rs. 50,000/- towards conventional heads such as loss of consortium, loss of love and affection, loss of estate, transportation and funeral expenses. In all the cross-objectors are entitled to a total compensation of Rs. 5,70,104/- as against Rs. 3,72,000/- awarded by the Tribunal. Thus, there is enhancement of Rs. 1,98,104/- with interest at 6% p.a. from the date of petition till the date of realization.
Regarding the specific ground taken by the appellant/Insurer that the Tribunal ought to have dismissed the claim petition against the appellant/Insurer on the sole ground that no valid policy is produced by the parties before the Tribunal. In the absence of the same, appellant/Insurer cannot be made liable to pay the compensation awarded by the Tribunal and further, the Tribunal has assumed that there was a cover-note or policy in respect of offending lorry bearing No. CAM-6066 belonging to the 6th respondent. The defence evidence showing that the Company has not received any premium and no authorized Officer has issued a policy in respect of the offending vehicle in favour of the 6th respondent has not been appreciated by the Tribunal in the right spirit. Therefore, the Judgment and award passed by the Tribunal as against the appellant/insurer requires to be set aside. The said specific ground taken by the appellant/Insurer cannot be accepted for the reason that the Tribunal after due evaluation of the oral and documentary evidence, particularly oral evidence of RW-1 and RW-4, and other relevant material available on record has recorded specific finding of fact holding that due to rash and negligent driving by the drivers of both lorries, the accident has occurred. The Tribunal has discussed the evidence of RW-4 - Official of the Insurance Company of the vehicle bearing No. KA-01/A-6075, who has stated that he is not responsible for the accident and the driver of the lorry bearing No. CAM-6066 insured with the appellant/Insurance is responsible for the accident and the insured and the insurer have admitted the policy in respect of lorry bearing No. KA-01/A-6075 vide Policy No. 13325/2004 which was valid from 14.12.2003 to 13.12.2004.
It is further significant to note that the Police Authority after due investigation has filed charge sheet against the drivers of both the lorries bearing Registration No. KA-01/A-6075 and CAM-6066, after appreciation of the evidence of RW-1 and RW-4. The Tribunal has discussed elaborately by answering Issue No. 2 in Negative, holding that both the Insurance Companies are liable to indemnify the award amount equally. Therefore, we are of the opinion that both Insurance companies are liable to pay the compensation equally.
Accordingly, we hold that both Insurance Companies are liable to pay the compensation at 50% each to the respondents/claimants. The reasoning given by the Tribunal is after due evaluation of the oral and documentary evidence available on record. The reasoning given by the Tribunal for issuing direction to both the insurance companies to indemnify the award amount @ 50% each as held in paragraphs 13 and 15 of the judgment is just and proper. Therefore, interference by this Court is not called for.
Having regard to the facts and circumstances referred above, the appeal filed by the appellant/Insurer is dismissed as devoid of merits and cross-objection filed by the cross-objectors is allowed. The impugned judgment and award dated 2nd January 2008 passed in M.V.C. No. 3053/2004 on the file of the XVI Additional Judge, Motor Accident Claims Tribunal, Bengaluru City (SCCH-14) is hereby modified, awarding a sum of Rs. 1,98,104/- with interest at 6% p.a. from the date of petition till the date of realization in addition to the compensation awarded by the Tribunal.
The appellant/Insurer and the Oriental Insurance Company are directed to deposit the enhanced compensation amount with accrued interest in the ratio of 50:50 within three weeks from the date of receipt of copy of this Judgment.
Out of the enhanced compensation amount of Rs. 1,98,104/-, a sum of Rs. 1,00,000/- with proportionate interest shall be invested in the name of 1st cross-objector - Sri. Venkataramana Bhat in fixed deposit in any Nationalised/Scheduled/Grameena Bank for a period of ten years and renewable for another five years and he is entitled to withdraw the periodical interest accrued on it.
Remaining amount of Rs. 98,104/- with proportionate interest shall be released in favour of the cross-objectors No. 1, 2 and 3, in equal proportion, immediately on deposit made by the said Insurers.
The amount in deposit, if any, by the Insurer shall be transmitted to the jurisdictional Tribunal immediately.
Office to draw the award accordingly.