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B. Sreenivase Gowda, J. - M.F. A. Nos. 2967 and 2968 of 2010 are filed by the insurer of the offending Tata Sumo bearing Registration No. KA-02-D-4916 challenging the judgments and awards passed by the Civil Judge (Senior Division) and Additional MACT, Kunigal in MVC Nos. 786 of 2007 and 785 of 2007 respectively on the ground of liability. Whereas, M.F.A. CROB. Nos. 84 and 85 of 2011 are filed by the claimants seeking enhancement of compensation awarded by the Tribunal in the said MVC Nos. 786 of 2007 and 785 of 2007 respectively. M.F.A. No. 2356 of 2011 is filed by the injured claimant challenging the judgment and award passed by the 9th Additional Judge, MACT-7, Small Causes Judge Court, Bangalore in MVC No. 7180 of 2007, both on the ground of liability and quantum.
As these appeals and cross-objections are arising out of a common road traffic accident, with the consent of learned Counsel appearing for the parties, they are heard together and disposed of by this common judgment.
I have heard the learned Counsel appearing for the parties and perused the judgments and awards passed by the Tribunal including its records.
The points that arise for consideration in these appeals and cross-objections are:
(i) Whether the finding rendered by the Civil Judge (Senior Division) and Additional Motor Accident Claims Tribunal, Kunigal in MVC Nos. 785 and 786 of 2007 on liability in fastening the same on the insurer of the offending Tata Sumo vehicle is sustainable in law?
(ii) Whether the finding rendered by 9th Additional Judge, MACT-7, Small Causes Judge Court, Bangalore, in MVC No. 7180 of 2007 on liability in fastening the liability on the owner of the offending Tata Sumo vehicle is sustainable in law?
(iii) Whether quantum of compensation awarded in each case is just and reasonable or does it call for enhancement?
Point No. 1
Learned Counsel for the insurer of Tata Sumo (hereinafter referred to as ''offending vehicle'') submits that the driver of offending vehicle having driven the vehicle without possessing a valid and effective driving licence, the insurer of the vehicle is not liable to indemnify the owner and pay compensation to the claimants. In fact, in MVC No. 7180 of 2007 arising out of the same accident, IX Additional Judge, Member, MACT-7, Court of Small Causes, Bengaluru (for short ''MACT-7, Bengaluru'') has held that the driver of the offending vehicle did not possess a valid and effective driving licence to drive the vehicle as on the date of accident and has fastened the liability on the owner of the vehicle.
Regarding quantum, he submits that the compensation already awarded by the Tribunal is just and reasonable and there is no scope for enhancement. Therefore, he prays for allowing the appeals filed by the insurer of offending vehicle by modifying the finding of the Tribunal on liability and dismissing the cross-objections filed by the claimants.
Sri H.R. Sanjeevegowda, learned Counsel appearing for the owner of the offending vehicle submits that the owner of the offending vehicle aggrieved by the judgment and award passed in MVC No. 7180 of 2007 by the MACT-7, Bengaluru, in fastening the liability on the owner of the offending vehicle, has challenged the same before this Court in MFA No. 6699 of 2010 and this Court allowed the appeal and modified the judgment and award of the Tribunal regarding liability and fastened the liability on the insurer of the offending vehicle holding that the driver of the Tata Sumo did possess a valid and effective driving licence as on the date of accident. He submits the said judgment and award of this Court has not been carried in appeal further.
Smt. Naleena K., learned Counsel appearing for the claimants in addition to arguments advanced by the learned Counsel for the owner of Tata Sumo submits that there is no illegality or infirmity in the finding of the Tribunal on liability warranting interference of this Court.
Regarding quantum, she submits income of deceased persons viz., Rajaneesh and Srinivasaiah assessed by the Tribunal at Rs. 4,000/- per month is on the lower side and it is contrary to evidence on record. Consequently, compensation awarded by the Tribunal towards loss of dependency is on the lower side. She submits even compensation awarded towards conventional heads is also on the lower side. Therefore, she prays for allowing the cross objections filed by the claimants by enhancing the compensation awarded by the Tribunal and dismissing the appeals filed by the insurer of Tata Sumo.
Regarding liability:
It is not in dispute that in a road traffic accident occurred on 20-5-2007 by involvement of a Maruthi Zen car bearing Registration No. KA-01-M-7046 and Tata Sumo (offending vehicle) bearing Registration No. KA-02-D-4916 two persons viz., Srinivasaiah and Rajaneesh died and one Chandra sustained injuries. Legal representatives of Srinivasaiah and Rajaneesh filed two separate claim petitions in MVC Nos. 785 and 786 of 2007 respectively before the Civil Judge (Senior Division) and Additional MACT, Kunigal (hereinafter referred to as ''Addl. MACT, Kunigal'') and injured Chandru filed a claim petition in MVC No. 7180 of 2007 before the MACT-7, Bengaluru seeking compensation under Section 166 of Motor Vehicles Act, 1988 from the owner and insurer of offending Tata Sumo vehicle. In all these three cases, it was held that the accident has occurred due to rash and negligent driving of the driver of the offending Tata Sumo. This finding of the Tribunal on negligence has not been challenged either by the owner or by the insurer of Tata Sumo and it has become final.
In MVC No. 7180 of 2007, MACT-7, Bengaluru by holding that the driver of offending Tata Sumo vehicle having driven the vehicle without possessing a valid and effective driving licence and caused the accident, the insurer is not liable to indemnify the owner of the vehicle and pay compensation to the claimants and has fastened the liability on the owner of Tata Sumo.
The owner of the offending Tata Sumo vehicle aggrieved by the said finding of MACT-7, Bengaluru, on liability, challenged the same by preferring MFA No. 6699 of 2010 before this Court. This Court by judgment and award dated 14-7-2011 allowed the appeal and modified the judgment and award of the Tribunal on liability and fastened the liability on the insurer of offending Tata Sumo vehicle holding that the driver of the vehicle did possess a valid and effective licence to drive the vehicle as on the date of accident. The insurer of Tata Sumo though was arrayed as 2nd respondent in the said appeal has not carried the matter further in appeal as such, finding of this Court on liability, fastening the liability on the insurer of Tata Sumo has become final. This fact has not been disputed by the learned Counsel appearing for the insurer of Tata Sumo. Hence, the finding rendered by the Additional Civil Judge (Senior Division) and Additional MACT, Kunigal in MVC Nos. 785 and 786 of 2007 on liability in fastening the same on the insurer of the offending Tata Sumo vehicle has to be confirmed. Consequently, the finding rendered by the MACT-7, Small Causes Judge Court, Bangalore, in MVC No. 7180 of 2007 is required to be modified and liability is to be fastened on the insurer of the offending Tata Sumo vehicle. Point Nos. 1 and 2 are answered accordingly.
Point No. 2 - Regarding quantum:
In MFA CROB. No. 84 of 2011 in MFA No. 2967 of 2010 has arisen out of MVC No. 786 of 2007.
It is a case of death of one Sri Rajaneesh a bachelor aged about 24 years. Claim petition was filed by his parents. Claimants in support of their contention that their deceased son by working as a Senior Technician and Supervisor at Peenya Industrial Area, Bengaluru was getting salary at Rs. 15,000/- per month and also by doing electrical work on part time basis was earning another Rs. 15,000/- per month have examined the father of the deceased as P.W. 1 and have produced the salary certificates of deceased as Exs. P. 7 and P. 8. However, they neither examined the author of Exs. P. 7and P. 8 nor the employer of the deceased. Therefore, it is difficult to take Rs. 15,000/- per month as income of deceased. At the time of argument, learned Counsel for the claimants has produced the following original documents along with a memo after serving copies of the said documents on the learned Counsel for the insurer:
(i) SSLC marks card
(ii) National Trade Certificate
(iii) Provisional National Trade Certificates
(iv) Certificate of Honours Diploma for 6 months in Computer Hardware Maintenance.
After perusing the original copies, they were returned to the learned Counsel for the claimants by retaining one set of Xerox copies of the said documents.
Perusal of the SSLC marks card would show that the deceased had passed SSLC in the year 1991. Perusal of original National Trade Certificate issued by Government of India, Ministry of Labour, National Council for Vocational Training would show that the deceased had successfully completed the course of training for the period from 1992 to 1994 at J.C.S. ITC held in the month of February 1995. Perusal of Provisional National Trade Certificate issued by Department of Employment and Training State Board of Examinations would show that the deceased had successfully completed the course of training at J.C.S. ITC, Nelamangala and passed the prescribed test in the trade of electronics mechanic for the period from August 1992 to July 1994.
Perusal of certificate issued by IKON Computers would show that the deceased had done Honors Diploma in Computer Hardware Maintenance in the year 2005 and had successfully completed the course.
Since the proceedings initiated under the provisions of M.V. Act, are summary proceedings, there is no impediment to rely upon the contents of the original documents referred to above for a limited purpose of assessing the income of the deceased. Therefore, considering the age of the deceased as 34 years, year of accident as 2007 and his educational qualification that he had passed SSLC in the year 1991 and had successfully completed the course of training in J.C.S. ITC and passed the prescribed trade test in the Electronic Mechanic and he must have been working at Peenya Industrial Area in some capacity if not as a Senior Technician and Supervisor as contended by the claimants, his income could be assessed at Rs. 8,000/- per month as against Rs. 4,000/- per month assessed by the Tribunal. As he died as a Bachelor, 50% of his income is to be deducted towards his personal expenses and remaining 50% is to be taken as his contribution towards family. Now in view of the latest judgment of the Hon''ble Supreme Court in the case of Munna Lal Jain v. Vipin Kumar Sharma, (2015) 6 SCC 347 regarding application of multiplier based on the age of the deceased. ''16'' multiplier has to be applied based on the age of the deceased who was 34 years at the relevant point of time. If so, loss of dependency would work out to Rs. 8,000 x � x 12 x 16 = Rs. 7,68,000/- and it is awarded.
In addition to that a sum of Rs. 50,000/- is awarded under various conventional heads i.e. loss of love and affection, loss of estate, transportation of dead body and funeral expenses.
Thus, the claimants are entitled to the following compensation:
1
Towards loss of dependency
Rs. 7,68,000-00
2
Conventional heads
Rs. 50,000-00
Total
Rs. 8,18,000-00
Hence, claimants are entitled to total compensation of Rs. 8,18,000/- as against Rs. 3,32,000/- awarded by the Tribunal and they are entitled to an additional compensation of Rs. 4,86,000/- with interest at 6% per annum from the date of the claim petition till the date of deposit.
Hence, the Cross Objection No. 84 of 2011 filed by the cross objectors is allowed in part (consequently MFA No. 2967 of 2010, filed by the Ins. Co. is hereby dismissed). The compensation awarded by the Tribunal is enhanced by Rs. 4,86,000/-.
MFA CROB. No. 85 of 2011 in MFA No. 2968 of 2010 arising out of MVC No. 785 of 2007. It is a case of death of one V. Srinivasaiah aged about 32 years at the time of accident. Claim petition was filed by his wife and two minor children. Claimants in support of their contentions contends that the deceased by working as a Contractor was earning Rs. 2,000/- per day, except examining the 1st claimant as P.W. 1 have not adduced any other evidence regarding avocation and income of deceased. In the absence of proof of income, considering the age of deceased as 32 years at the time of accident, year of the accident as 2007 and avocation as daily wager his income could be taken at Rs. 4,500/- per month as against Rs. 4,000/- per month taken by the Tribunal. As all the claimants are dependent claimants of the deceased, the Tribunal was justified in deducting ⅓rd of the income of the deceased towards his personal expenses. Even multiplier of ''16'' applied by the Tribunal based on the age of deceased who was 32 years old at the relevant point of time is sound and proper. If so, the loss of dependency would work out to Rs. 4,500/- x ⅔rd x 12 x 16 = Rs. 5,76,000/- and it is awarded as against Rs. 5,12,000/- awarded by the Tribunal.
It is to be seen that the 1st claimant has lost her husband at her young age of 24 years and claimants 2 and 3 have lost their father at the tender age of 3 years and one month respectively. Therefore, a sum of Rs. 50,000/- is awarded towards loss of consortium of the 1st claimant. Rs. 60,000/- is awarded towards loss of love and affection of claimants 2 and 3 at the rate of Rs. 30,000/- each Rs. 15,000/- is awarded towards funeral expenses, Rs. 10,000/- is awarded towards loss of estate, in all, a sum of Rs. 1,35,000/- is awarded under various conventional heads as against Rs. 20,000/- awarded by the Tribunal.
Thus, the claimants are entitled to the following compensation:
1
Towards loss of dependency
Rs. 5,76,000-00
2
Conventional heads
Rs. 1,35,000-00
Total
Rs. 7,11,000-00
Thus, the claimants are entitled to total compensation of Rs. 7,11,000/- as against Rs. 5,53,570/- awarded by the Tribunal. The claimants are entitled to an additional compensation of Rs. 1,57,430/- with interest at 6% per annum from the date of the claim petition till the date of deposit.
Hence, the Cross Objection No. 85 of 2011 filed by the cross objectors is allowed in part (consequently, MFA No. 2968 of 2010 filed by the Ins. Co.is hereby dismissed). The compensation awarded by the Tribunal is enhanced by Rs. 1,57,430/-.
Insurance Company is directed to deposit the compensation amount together with interest within two months from the date of receipt of a copy of this judgment. The amount deposited in appeal, if any by the Insurance Company is ordered to be transmitted to the Tribunal for disbursement to the claimants. Apportionment, deposit and release of additional compensation among the claimants shall be in the ratio of the award of the Tribunal. However, the claimants to withdraw the deposited amount on its maturity without approaching the Tribunal once again and the Bank is directed to release the fixed deposit amount without insisting for any further order from the Tribunal.
No order as to costs.
MFA No. 2356 of 2011 - arising out of MVC No. 7180 of 2007:
This appeal is by the injured Chandra alias Ramachandra challenging the judgment and award passed by the Tribunal on the ground of liability and quantum.
For the reasons indicated herein above, the finding of the Tribunal on liability is to be modified and liability is to be fastened on the insurer regarding quantum and only point remains for consideration is:
Whether quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement?
As per Ex. P. 7-wound certificate, the claimant had sustained the following injuries:
Comminuted fracture of shaft of right femur
Compound fracture of both bones of right leg with CLW 8x2 cm.
Cut lacerated wound of right eyebrow injury 1 c.m.
Cut lacerated wound of lower lip measuring 1 c.m.
Cut lacerated wound on left leg measuring 1 c.m.
Injuries 1, 2 and 3 are described grievous in nature and injuries 4 and 5 are simple in nature. Injuries sustained and treatment taken by the claimant are also evident from Exs. P. 8-Discharge Summary, Ex. P. 9-Medical bills, Ex. P. 10-Medical prescriptions, Ex. P. 1-Out patient record, Ex. P. 12-Inpatient record, Ex. P. 13-X-ray, Ex. P. 14-Medical prescriptions, Ex. P. 15-O.P.D. Card, Ex. P. 16-Medical bills and corroborated by the oral evidence of the claimant and the doctor examined as P.Ws. 1 and 2 respectively.
P.W. 2-Doctor in his evidence has stated that the claimant has suffered disability of 20% to the whole body.
Considering three major fractures sustained by the claimant Rs. 1,10,000/- awarded by the Tribunal towards pain and suffering is on the lower side and it is deserved to be enhanced by another Rs. 25,000/- and I award a sum of Rs. 1,35,000/- under this head.
As Rs. 1,40,000/- awarded by the Tribunal towards ''medical expenses'' is based on the medical bills produced by the claimant, it is just and proper and there is no scope for enhancement under this head.
The claimant was treated as inpatient for a period of 21 days. Considering the duration of treatment, Rs. 10,000/- awarded by the Tribunal towards ''incidental expenses'' such as conveyance, nourishment and attendant charges is just and reasonable and there is no scope for enhancement under this head.
The claimant claims to be working as a plumber and earning a sum of Rs. 15,000/- per month, but the same is not established by adducing cogent evidence. In the absence of proof of income, considering his age as 35 years, year of accident as 2007 and his avocation as daily wager his income could be assessed at Rs. 4,500/- per month as against Rs. 3,000/- per month assessed by the Tribunal. The nature of injuries suggest that he must have been under rest and treatment for a period of 08 months and therefore a sum of Rs. 36,000/- is awarded towards Toss of income during laid up period'' as against Rs. 12,000/- awarded by the Tribunal.
Considering the nature of injuries sustained by the claimant, disability stated by the doctor and an amount of discomfort and unhappiness he has to undergo in his future life, a sum of Rs. 15,000/- awarded by the Tribunal towards Toss of amenities'' is on the lower side and it is deserved to be enhanced by another sum of Rs. 60,000/-. Hence, a sum of Rs. 75,000/- is awarded under this head.
The claimant is aged about 35 years at the time of accident, and the multiplier applicable to his age group is ''16''. His income is assessed at Rs. 4,500/- per month. P.W. 2-doctor in his evidence has stated that claimant has suffered disability of 20% to the whole body. Therefore, the ''loss of future income'' works out to Rs. 1,72,800/- (Rs. 4,500/- x 12 x 16 x 20/100) and it is awarded as against Rs. 69,120/- awarded by the Tribunal.
The nature of injuries sustained by the claimant suggest that he is required to undergo further treatment and has to spend some more amount towards future medical and incidental expenses. Hence, a sum of Rs. 10,000/-awarded by the Tribunal towards future medical expenses is on lower side. Therefore, another sum of Rs. 15,000/- is awarded towards ''future medical expenses''. Hence, total sum of Rs. 25,000/- is awarded under this head.
Thus, the claimant is entitled for the following compensation:
HEADS
Rs.
Pain and sufferings
1,35,000/-
Medical expenses
1,40,000/-
Incidental expenses
10,000/-
Loss of income during laid up period
36,000/-
Loss of amenities
75,000/-
Loss of future income
1,72,800/-
Future medical expenses
25,000/-
TOTAL
5,93,800/-
LESS: Compensation awarded by the Tribunal
3,66,120/-
BALANCE
2,27,680/-
Accordingly, MFA No. 2356 of 2011 is allowed in-part. The judgment and award passed by the Tribunal is modified to the extent stated herein above. It is held that the insurer of offending Tata Sumo vehicle is liable to pay the compensation awarded by the Tribunal and additional compensation awarded by this Court with interest at 6% p.a. from the date of claim petition till realisation. The claimant is entitled for an additional compensation of Rs. 2,27,680/- with interest at 6% p.a. from the date of claim petition till the date of realisation.
The Insurance Company is directed to deposit the compensation awarded by the Tribunal and additional compensation awarded by this Court together with interest at 6% p.a. from the rate of claim petition till the date of payment within two months from the date of receipt of a copy of this judgment. From which, a sum of Rs. 5,00,000/- with proportionate interest is ordered to be invested in fixed deposit in the name of claimant in any Nationalised Bank/Scheduled Bank/Grameena Bank/Post Office for a period of 8 years with a right of option to withdraw interest periodically. Remaining amount with proportionate interest is ordered to be released in favour of the claimant.
Tribunal while releasing the amount is directed to issue fixed deposit slips to the claimant so as to enable the claimant to withdraw the fixed deposit amount on its maturity without approaching the Tribunal once again and the Bank in which amount will be kept in fixed deposit is directed to release the fixed deposit amount without insisting for any further order from the Tribunal.
No order as to costs.