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Judgment
N.K. Patil, J.—This appeal by the Insurer is directed against the judgment and award dated 25.5.2005 passed in MVC No. 957/2002 on the file of Addl. Civil Judge (Sr. Dn.) & Addl. MACT, Srirangapatna and reviewed by the order dated 20.6.2005. The Tribunal by its impugned judgment and award has awarded a sum of Rs. 3,42,000/- with interest at 8% from the date of petition till realization and upon review of the said order, a sum of Rs. 4,34,000/- with interest at 8% from the date of petition till its realization, on account of the death of deceased Ramesha in the road traffic accident.
It is the specific case of the appellant-Insurer that the direction issued by the Tribunal to indemnify the award amount cannot be sustained in view of the breach of terms and conditions of the policy. Therefore, judgment of the Tribunal is liable to be set aside.
The brief facts of the case on hand are, mother and wife of the deceased late Ramesha have filed the claim petition u/s 166 of the MV Act claiming compensation on account of untimely death of the deceased. At about 2.30 p.m. on 1.2.2002 when the deceased was travelling in the offending vehicle bearing Registration No. CTD 5656 from Kikkeri towards ICC factory loading two bags of vegetables to sell the same in ICC Factory and when the said vehicle reached near Chowdanahally gate, due to the rash and negligent driving by the driver of the vehicle, it dashed against a tree and caused the accident, on account of which, deceased sustained grievous injuries and later succumbed to injuries. Further, they have contended that deceased was the only earning member of the family. He was a vegetable vendor and also an agriculturist and was earning Rs. 5,000/- per month. The mother has lost her son and wife has lost her life partner. To substantiate the case, they have examined P.W.2 Swamygowda who is none other than one of the inmates of the offending vehicle. He has specifically stated that the accident occurred due to the rash and negligent driving by the driver of the offending vehicle. The Tribunal has taken into consideration the age, avocation and year of the accident and taking the income of the deceased at Rs. 3,000/- per month, deducting 50% towards personal expenses, and applying the appropriate multiplier of 17, it has awarded a sum of Rs. 3,06,000/- towards loss of dependency and Rs. 36,000/- towards conventional heads. In all total compensation of Rs. 3,42,000/- with interest at 8% from the date of petition till its realization. Be that as it may. As against the said Judgment and Award, claimants have filed the review petition. The said review petition has been allowed awarding Rs. 4,34,000/- with interest at 8% from the date of petition till realization, fastening the liability on the appellant to pay the award amount. Not being satisfied with the impugned judgment and award, the appellant-Insurer has presented this appeal.
It is the submission of the learned counsel for the appellant at the outset that there is breach of the terms and condition of the policy. The driver of the offending vehicle is not entitled to take the third party as passenger in the goods vehicle and it is the case of the claimant that deceased was carrying vegetables in the vehicle. He is a gratuitous passenger and also policy was an act policy. Therefore, the insurance company is not liable to indemnify the amount awarded by Tribunal. This aspect is not looked into nor considered nor appreciated by the Tribunal on the contrary, issued directions to the appellant/insurer to indemnify the award amount, which cannot be sustained and liable to be set aside.
As against this, learned counsel appearing for the 1st respondent-claimant inter alia contended that the compensation amount awarded by the Tribunal is after due consideration of the oral and documentary and other material on file and also taking into consideration the age, avocation and year of accident of the deceased and also in the review petition filed, the compensation has been re-determined awarding Rs. 4,34,000/- with 8% interest from the date of petition till its realization and interference by this Court is not called for.
It is further submitted that the Tribunal after due consideration of the oral and documentary evidence and also on referring to the judgment of this Court reported in ILR 2004 KAR 4622 wherein it is observed that though a person who was travelling in the goods vehicle died in the accident, the Insurance company has to make initial payment and then it has to recover the same from the owner by initiating execution proceeding, has come to the conclusion that the said ratio of law is aptly applicable to this case. Accordingly, submitted that the submission of the learned counsel for the appellant cannot be sustained and the impugned judgment and award does not call for interference.
After careful consideration of the submissions of the learned counsel for both the parties and perusal of the impugned judgment and award passed by the Tribunal and other material on file, it is seen that the Tribunal is justified in assessing the income of the deceased at Rs. 3,000/- per month, but instead of deducting 1/3rd towards personal expenses 50% has been deducted contrary to the well settled law of the apex court and this Court in catena of judgments. However, in the review petition, the same has been modified by deducting 1/3rd towards personal expenses. The said reasoning given in the review petition is justiceable and after consideration of oral and documentary evidence. Further, the reasons assigned at paragraph 8 of the judgment by the Tribunal is well founded and well reasoned wherein liberty is reserved to the insurer to recover the award amount from the owner of the offending vehicle after indemnifying the award amount, if there is breach of the terms and conditions of the policy. There is no arbitrariness or unreasonableness and ground as such is made out to consider the relief sought for. Taking all these aspects into consideration, the instant appeal is dismissed as being devoid of merits.
The amount in deposit by the Insurance company shall be transmitted to the jurisdictional Tribunal immediately.