1 in the High Court of Karnataka Dharwad Bench

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

DATED THIS THE 23 rd DAY OF AUGUST 2019

BEFORE

THE HON’BLE MR.JUSTICE K. NATARAJAN

MISCELLANEOUS FIRST APPEAL NO.103181 of 2015 c/w MISCELLANEOUS FIRST APPEAL NOS.103194 OF 2015 AND 103182 OF 2015 (MV)

IN MFA NO.103181 OF 2015: BETWEEN:

1. JUDY PETER RODRIGUES AGE: 55 YEARS, OCC: HOUSEHOLD, R/O: H.NO.1811, ZED GALLI, SHAHAPUR, BELAGAVI

2. IVAN PETER RODRIGUES AGE: 31 YEARS, OCC: NIL, R/O: H.NO.1811, ZED GALLI, SHAHAPUR, BELAGAVI

3. RUTH PETER RODRIGUES AGE: 33 YEARS, OCC: NIL, R/O: H.NO.1811, ZED GALLI, SHAHAPUR, BELAGAVI

4. GRACY W/O PETER RODRIGUES AGE: 30 YEARS, OCC: NIL, R/O: H.NO.1811, ZED GALLI, SHAHAPUR, BELAGAVI ... APPELLANTS

(By Sri. B.M. PATIL, ADVOCATE)

AND:

1. MITHUN GANAPAT BIRJE AGE: MAJOR, OCC: BUSINESS, R/O: H.NO.978, GADE MARG, SHAHAPUR, BELAGAVI, (OWNER OF VEHICLE BEARING NO.KA-22-P-6013)

2. THE DIVISIONAL MANAGER NATIONAL INSURANCE CO. LTD., HAVING ITS DIVISIONAL OFFICE AT RAMDEV GALLI, BELAGAVI, (INSUER OF VEHICLE BEARING NO.KA-22P-6013 POLICY NO.253310311161 20070831 VALID FROM 19-01-2012 TO 18-01-2013) ... RESPONDENTS (By Sri. GIRIJA HIREMATH, ADVOCATE FOR R1. Smt. PREETI SHASHNAK, ADV. FOR R2)

THIS MFA IS FILED UNDER SECTION.173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGMENT & AWARD DATED:11.08.2015 PASSED IN MVC.NO.390/2013 ON THE FILE OF THE VI ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

IN MFA NO.103194 OF 2015 BETWEEN:

MRS. JUDY PETER RODRIGUES AGE:55 YEARS, OCC:HOUSEHOLD R/O:NO.1811, ZED GALLI SHAHAPUR, BELAGAVI. ... APPELLANT (By Sri. B.M. PATIL, ADVOCATE) 3

AND:

1. SHRI.MITHUN GANAPAT BIRJE AGE:MAJOR, OCC:BUSINESS R/O:H.NO:978, GADE MARD, SHAHAPUR, BELAGAVI (OWNER OF VEHICLE BEARING NO.KA-22-P-6013)

2. THE DIVISIONAL MANAGER NATIONAL INSURANCE COMPANY LIMITED HAVING ITS DIVISIONAL OFFICE AT RAMDEV GALLI, BELAGAVI (INSURER OF VECHILE BEARING NO.KA-22-P-6013) POLICY NO.25331031116120070831 VALID FROM 19.01.2012 TO 78.01.2013 ... RESPONDENTS (By Sri. GIRIJA HIREMATH, ADVOCATE FOR R1. Smt. PREETI SHASHNAK, ADV. FOR R2)

THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGMENT & AWARD DATED:11.08.2015, PASSED IN MVC.NO.623/2013 ON THE FILE OF THE VI ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

IN MFA NO.103182 OF 2015 BETWEEN:

GRACY ALISTER NORONHA AGE: 28 YEARS, OCC: TUITION, NOW NIL, R/O: NO.1811, ZED GALLI, SHAHAPUR, BELAGAVI. ... APPELLANT (By Sri. B.M. PATIL, ADV.)

AND:

1. MITHUN GANAPAT BIRJE AGE: MAJOR, OCC: BUSINESS, R/O: H.NO.978, GADE MARG, SHAHAPUR, BELAGAVI, (OWNER OF VEHICLE BEARING NO.KA-22-P-6013)

2. THE DIVISIONAL MANAGER NATIONAL INSURANCE CO. LTD., HAVING ITS DIVISIONAL OFFICE AT RAMADEV GALLI, BELAGAVI, (INSUER OF VEHICLE BEARING NO.KA-22P-6013 POLICY NO.253310311161 20070831 VALID FROM 19-01-2012 TO 18-01-2013) ... RESPONDENTS (By SMT. GIRIJA HIREMATH, ADVOCATE FOR R1. Smt. PREETI SHASHNAK, ADV. FOR R2)

THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGMENT & AWARD DATED: 11.08.2015 PASSED IN MVC.NO.622/2013 ON THE FILE OF THE VI ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR HEARING FOR FURTHER ARGUMENTS THIS DAY, THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

Miscellaneous First Appeal Nos.103181 of

2015, 103182 of 2015 and 103194 of 2015 are filed by the claimants assailing the common judgment and award dated 11.08.2015 passed by the VI Additional District and Sessions Judge and

Additional MACT, Belagavi (hereinafter referred to as the ‘Tribunal’, for short) in MVC Nos.390 of

2013, 622 of 2013 and 623 of 2013.

2. Heard the arguments of the learned counsel for the appellants-claimants and respondent- insurer in all these cases.

3. The rank of the parties before the Tribunal is retained for the sake of convenience.

4. The claimant in MVC No.319 of 2013 being the legal representative of Rodrigues and the claimants in MVC Nos.622 of 2013 and 623 of

2013, who are injured claimants, have filed claim 6

petitions under Section 166 of the Motor Vehicles

Act, 1988 (hereinafter referred to as the ‘Act’, for short) claiming compensation of Rs.15,00,000/-,

18,00,000/- and 13,00,000/- respectively interalia contending that on 10.01.2013 AT 23:30 hours,

Peter Rodrigues, and his wife were returning from

Goa to Belgaum in a car bearing registration

No.KA-22/P-6013, the respondent No.1 being the owner and driver of the car driving the vehicle in a rash and negligent manner so as to endanger human life, when the said car came near Kalmani cross on Jamboti-Kanakumbi road, at that time, the driver of the said car suddenly lost control over his vehicle and dashed to the road side tree and caused the accident. Due to the accident, the said Peter Rodrigues sustained grievous injuries and died on the spot, whereas the other two claimants i.e. wife and daughter of the said deceased Peter Rodrigues were sustained injuries 7

and they have taken to the hospital and treated as in-patient. Due to the injuries, they have suffered disability and they have also spent huge amount towards medical expenses. Hence, prayed for granting compensation on various heads.

5. In pursuance to the notice in all the cases, the respondent No.1 appeared through his counsel and filed statement of objections by denying the rash and negligent driving of the vehicle and also nature of injuries and contended that respondent

No.1 he is having valid driving license to drive the vehicle and vehicle was duly insured with respondent No.2, if any liability, the same shall be fastened on the respondent No.2 and also contended that the vehicle was not used for carrying any passenger for hire and reward and the deceased and respondent No.1 are friends and hence, prayed for dismissing the claim petitions. 8

6. The respondent No.2 insurer also appeared and filed statement of objections in all the three cases by denying the averments made in the petitions as false and contended that the vehicle was a private vehicle which was used for carrying the passengers for hire and reward and they are un-authorized passengers in the car. They admitted the issuance of insurance policy but it has contended that in view of the violation of terms and conditions of the policy in respect of using the vehicle for hire and reward and not having driving license therefore respondent No.2 is not liable to pay any compensation. Hence, prayed for dismissing the claim petitions.

7. Based upon the rival pleadings, the tribunal framed the following issues and Addl. Issues in all the three cases;

MVC No.390/2013

(1) Whether the petitioner proves that on 10.1.2013 at about 11.30 p.m, near Kalmani cross on Jamboti- Kanakumbi road, while they were returning from Goa to Belgaum in the car bearing No.KA-22/P-6013, the driver of the said car drove the same in a very high speed and rash and negligent manner so as to endanger human life and lost control over the same and dashed to the road side tree and caused the accident in which the deceased Peter Anthony Rodrigues died on the spot as alleged in the petition?

(2) Whether the respondent No.2 proves that the driver of the Car bearing No.KA-22/P-6013 was not holding valid and effective DL to drive the same as on the date of alleged accident and hence the 1 s t respondent/owner has violated the terms and conditions of the policy?

(3) Whether the respondent No.2 further proves that the decease was an unauthorized passenger in the said vehicle and hence his risk is not covered under the policy issued to the said Car?

(4) Whether the petitioners are entitled for compensation as claimed? If so, from whom and for how much compensation they are entitled to? 10

(5) What order or award?

Addl. Issue

Whether the respondent No.1 proves that at the time of accident the vehicle was duly insured with the respondent No.2 and if at all this court comes to the conclusion that petitioner is entitled for compensation then the same may be saddled on respondent No.2?

MVC No.622/2013

(1) Whether the petitioner proves that on 10.1.2013 at about 11.30 p.m, near Kalmani cross on Jamboti- Kanakumbi road, while she was returning from Goa to Belgaum in the car bearing No.KA-22/P-6013, the driver of the said car drove the same in a very high speed and rash and negligent manner so as to endanger human life and lost control over the same and dashed to the road side tree and caused the accident in which she sustained the grievous injuries as alleged in the petition?

respondent/owner has violated the terms and conditions of the policy?

(3) Whether the respondent No.2 further proves that the decease was an unauthorised passenger in the said vehicle and hence her risk is not covered under the policy issued to the said Car?

(4) Whether the petitioner is entitled for compensation as claimed? If so, from whom and for how much compensation she is entitled to?

(5) What order or award?

Addl. Issue

MVC No.623/2013

the driver of the said car drove the same in a very high speed and rash and negligent manner so as to endanger human life and lost control over the same and dashed to the road side tree and caused the accident in which she sustained the grievous injuries as alleged in the petition?

(3) Whether the respondent No.2 further proves that the decease was an unauthorised passenger in the said vehicle and hence her risk is not covered under the policy issued to the said Car?

(4) Whether the petitioner is entitled for compensation as claimed? If so, from whom and for how much compensation she is entitled to?

(5) What order or award?

Addl. Issue

Whether the respondent No.1 proves that at the time of accident the vehicle was duly insured with 13

the respondent No.2 and if at all this court comes to the conclusion that petitioner is entitled for compensation then the same may be saddled on respondent No.2?

8. To substantiate their contention, the claimant-Gracy Alister Noranhas in MVC

No.622/2013 has been examined herself and on behalf of petitioners in MVC No.390/2013 as PW.1 and claimant Ruth Pether Rodrigues examined herself as PW3 in MVC No.629/2013 and they also examined PWs.2 and 4 and got marked documents at Exs.P1 to P259. On behalf of respondent No.2 one Umesh Gundu Bhat, has been examined as

RW.1 and another witness is examined as RW.2 and got marked three documents as Exs.R1 to R3.

On behalf of respondent No.1, respondent got himself examined as RW.3. After considering the evidence on record, the tribunal answered issue

Nos.1, 3 and 4 in the affirmative and issue No.2 partly affirmative and allowed the petitions and 14

additional issues deleted and awarded compensation in a sum of Rs.5,61,000/-,

3,54,000/- and Rs.5,77,000/- respectively.

However, the liability has been fastened on respondent No.1 – owner of the vehicle by exonerating the insurer.

9. Assailing the judgment and award passed by the tribunal the claimants have preferred these appeals both on the ground of enhancement of compensation as well as fastening the liability on the owner of the vehicle. However, the owner of the vehicle has not filed any appeal before this

Court.

10. Learned counsel for the appellants-claimants contended that the evidence of PWs.1 and 3 were clearly goes to show that the deceased and PW.1 along with claimants in MVC No.623/2013 were traveled in the car belongs to respondent No.1 as 15

he was the friend of deceased from Goa to Belagavi and they met with an accident. The respondent

No.1 also filed statement of objections that the claimants and deceased were traveled in the vehicle not as paid passengers and respondent

No.1 also examined before the Tribunal as RW.3 has clarified that he has taken the injured and deceased as friends but not as passenger for hire or reward. In spite of the same, the tribunal has wrongly concluded the findings that the deceased and injured claimants were traveled as passenger in the car for hire and reward and there is violation of conditions of the policy which is not correct. Though the Ex.R2, a claim form obtained by the investigator of the company of RW.2 but he has clarified before the tribunal that for getting the compensation for damages without knowing the contents, he has signed the documents and the said documents were not confronted. 16

Therefore, accepting the evidence of RWs.1 and 2, fastening the liability on the owner of the vehicle is not correct. Therefore, prayed for setting aside the findings by fastening the liability on the owner and prayed for fastening the liability on the

Insurance Company.

11. Further, he has taken the contention in respect of quantum of compensation, the deceased was doing internet café along with claimant in

MVC No.623/2013 earning more than Rs.20,000/- per month. However, the tribunal has considered only Rs.6,000/- per month, which is very meager.

Even for the accident was occurred in the year

2013, the income of the unskilled labour is used to consider at Rs.7,000/- per month. The claimant in MVC No.390/2013 also taking tuitions by earning Rs.20,000/- per month. Therefore, prayed for enhancing the income of the deceased as well as the claimants. 17

12. Further the learned counsel contended that the tribunal has awarded a very meager amount towards pain and agony and loss of amenities. The claimants in MVC No.623/2013 Julie Peter

Rodrigues was sustained head injury and suffered

60% - 65% of disability towards whole body.

However, the tribunal has considered only 25% of disability which is very meager. Even in the case of the claimant in MVC No.622/2013 also to be considered at 40% of the disability wherein the tribunal has considered only 10% of the disability, which is meager. Hence, prayed for enhancement of the compensation in all the cases.

13. Per contra, learned counsel appearing for the insurer strenuously argued that the insurer has been able to establish before the tribunal that the deceased and injured claimants were traveled in the car of respondent No.1 as paid passenger and 18

the same is admitted by the respondent No.1 in the self claim application. As per Ex.R2, even in the evidence before the tribunal, he has admitted that his signature and filling the form i.e. the claim form, such being the case, once he has admitted that he has received the amount of

Rs.5,00/- per day as hire and reward towards fuel charge, which clearly demonstrates before the tribunal that they are paid passenger in the private car which is not permissible. Thereby there is violation of conditions of the policy. Therefore, the tribunal after considering the evidence on record has rightly fastened the liability on the owner of the vehicle and exonerating the insurance company. Therefore, the learned counsel supported the judgment and award passed by the tribunal and prayed for dismissal of the appeals.

14. Upon hearing the arguments of learned counsel for both the parties and on perusal of the records the points that would arise for consideration;

(1) Whether the judgment and award passed by the tribunal is not justified in fastening the liability on the owner of the vehicle and absolved the insurer holding that the deceased and injured are paid passengers in a private car? (2) Whether the claimants in all the appeals are entitled for enhancement of compensation? (3) What order?

15. The claimants, PWs.1 and 3 have established the factum of accident that was occurred on

10.01.2013 at 23:30 hours, PW1 and her father deceased and claimant i.e. and Judy Peter

Rodrigues in MVC Nos.623/2013 were traveling from Goa to Belgaum, when they reached near 20

Kalmani cross on Jamboti-Kanakumbi road, at that time due to the rash and negligent driving of respondent No.1, when lost the control, the vehicle was dashed to the road side tree and caused accident and due to which the deceased sustained grievous injuries to his vital parts of the body and died on the spot. Whereas, PW.1, who is claimant in MVC No.622/2013 and Judy claimant in MVC No.623/2013, were sustained grievous injuries and taken to the hospital and treated as in-patient at KLE hospital, Belagavi. Ex.P1, is

FIR, Ex.P2 complaint, Ex.P3, spot panchanama,

Ex.P3(a) hand sketch, Ex.P4, Inquest panchanama, Ex.P5, MVI report, Ex.P6,

P.M.report, Ex.P7, charge sheet, Ex.P8, Injury certificate, Ex.P9, Injury certificate, Ex.P22, wound certificate and other medical documents and medical bills up to Exs.P259 were goes to show that this accident was occurred due to rash 21

and negligent driving of respondent No.1, who is driver cum owner of the vehicle. The accident in question is not in dispute and death of deceased

Peter Rodrigues due to the injuries sustained in the accident and the injuries sustained by the claimants were not in dispute.

16. The controversy in these appeals are in respect of fastening the liability on the owner of the vehicle on the ground that the vehicle was used by respondent No.1 for hire and reward and deceased and the claimants have traveled as paid passengers in a private car. In this regard, the respondent No.1 who is the owner of the vehicle has filed objections statement before the tribunal contending that the deceased was his friend and he is used the car for shifting them from Goa to

Belagavi, but not as paid passenger for hire or reward.

17. On the other hand, the insurer has taken specific contention before the tribunal that the vehicle was used for hire or reward and carried the deceased injured claimants as passenger. In support of their case, the insurer examined RW.1 who is the official of the insurance company and they also examined one Nirmal Kumari as RW.2 private investigator appointed by them and got marked Ex.R1, insurance policy. Ex.R2 is the statement of respondent No.2 made before RW.2.

The RW.2 given the evidence before the tribunal stating that he has recorded statement of the owner of the vehicle and obtained filled form by him and obtained the signature of respondent

No.1 on the form he has identified as Ex.R2, as statement of the owner of the vehicle. RW.1 the official of the insurer stated that the vehicle was used by the owner for hire or reward by receiving

Rs.500/- per day and also an advance of Rs.500/- 23

and the counsel placed reliance on the Ex.R2, the statement of the owner of the vehicle who also examined as RW.3 before the tribunal. Though the insurer examined RW.2, the private investigating officer is said to be recorded the statement of owner of the vehicle as Ex.P2 and he himself identified Ex.R2 before the tribunal and identified his signature in his evidence but counsel for the respondent insurer not confronted

Ex.R2 the document to RW3 owner of the vehicle in the cross examination, which is required under

Section 145 of the Indian Evidence Act. Though it is stated he has filled the claim form before the insurer but the said claim form for claiming the own damage has not been produced before the tribunal to show what was written in the claim form. On the other hand, the statement said to be made by the owner of the vehicle was marked as

Ex.R2, but the owner of the vehicle himself 24

appeared before the tribunal and he has denied the contention of the same before the tribunal and he has stated that without knowing the contents of the document, he has signed the document at the request of the official from insurance company in order to get early compensation towards damages, he has signed the same. Even in the cross-examination though he has stated to be given statement but denied the fact that he has used the vehicle for hire or reward admittedly the contents of Ex.R2 has not been confronted to

RW.3, who is maker of the statement and the owner of the vehicle in order to prove Ex.R2, which was executed by him with full knowledge.

Apart from that the very claim form said to be filled by the owner of the insurer has not been produced before the tribunal. For non-production of the claim form before the Court, an adverse inference can be drawn against the Insurer. The 25

evidence of RW.3 clearly corroborates with evidence of PW.1, who is inmate of the car traveled along with her father and mother at the time of accident. Though the insurer RW.2, the private investigator of the insurance company deposed before the tribunal that he has examined injured claimant apart from the owner of the vehicle but the statement made by the injured claimant were not produced before the tribunal to show what was the statement made by them and the statement were not confronted to PW.1 to prove their specific contention taken by the insurance company.

Apart from that insurance company not produced any documents to show that RW.2 has been authorized to make an enquiry or investigate and there is no appointment letter produced or marked before the Court through RW.2 to show that he was authorized investigator and he has conducted investigation as proper. In the absence of any 26

evidence of RW.2 cannot be acceptable. On the other hand, the evidence of PW.1 corroborates with the evidence of RW.3 to show that the vehicle has been used by PW1, his deceased son and his mother for traveling from Goa to Belagavi as inmates of the car but not as paid passengers and there is no reason for the Tribunal for accepting the contention of Insurer without proper reasons.

The contention of the insurer that the vehicle was used for hire and reward though there is terms and conditions of policy prohibiting the owner to use the vehicle for hire and reward. The fact remains that the vehicle was not used for hire or reward. Merely a sum of Rs.500/- has been paid for fuel that itself is not a ground to accept that the vehicle was used for hire or reward. Therefore, the contention taken by the insurer cannot be acceptable that the vehicle was used for hire or reward. 27

18. In this regard the learned counsel relied upon un-reported judgment of division bench of this

Court in MFA No.1894/2003, MFA Nos.6822/2005 and connected matters and MFA No.23723/2013, are not applicable to the facts and circumstances of these cases. Though the counsel for the claimants relied upon another judgment of the

Division Bench judgment of this Court in MFA

No.22130/2013 and other connected cases in the case of United India Insurance Co. Ltd., Vs

Kalawathi, reported in ILR 2011 KAR 1191 , wherein this Court held gratuitous inmate when the vehicle is covered with comprehensive policy.

If the vehicle is a private vehicle plyed on hire, the owner may be liable for the penal and fiscal consequences under the Motor Vehicles Act for payment of penalty and taxes applicable to the commercial vehicles. But from the stand-point of the insurer, it makes no difference whether the 28

inmate is a paid passenger or gratuitous passenger and fastened the liability on the insurer.

19. Even otherwise, this Court held that the deceased and the injured claimants are traveling the vehicle as inmates of the car but not as paid passengers even otherwise if they are considered as passenger the liability on the insurer cannot be absolved. Therefore, the tribunal has committed an error in holding that the vehicle was used for hire or reward and exonerated the insurance company from its liability. On the other hand, the liability must have been fastened on the insurance company on the ground the liability is jointly and severally on the respondent Nos.1 and 2. Therefore

I answer point No.1 in favour of the claimants and as against insurer. 29

20. As regards the compensation awarded in the case of MVC No.390/2013, the claim petition filed for the death of deceased Peter Rodrigues, the claimants have stated that the deceased was running an internet café and earning Rs.20,000/- per month. But in support of their contention, the claimants have not produced any documents to show that the deceased was running the internet café. In the absence of any proof of income, there is no other option for this Court but to consider the notional income. In the absence of any document, the Tribunal has considered Rs.6,000/- per month as income. However, normally this

Court used to consider Rs.7,000/- per month in the accident occurred during the year 2013 as notional income. In view of the age of the deceased more than 60 years and non-production of any documents, I propose to consider

Rs.7,000/- as income. Learned counsel for the 30

respondent brought to the notice of the Court and also argued, except the wife, other claimants cannot be considered as dependents of the deceased. The age of the wife i.e., the widow of the deceased is 53 years. Though she has also filed the claim petition for injury sustained by him in MVC No.623/2013 contending that she was also earning Rs.20,000/- per month, however, the 2nd claimant is the son, who is said to be in abroad and 3 rd and 4 th claimants are daughters aged 30 years and 28 years and they are all married daughters. Therefore, all these three claimants cannot be considered as dependents on the deceased. Therefore, the 1 st claimant alone is considered as dependent of the deceased. In the cross-examination of PWs.1 and 3, it is clearly elicited by the insurer that, claimants No.3 and 4 are married and residing in their husband’s house and claimant No.2 is the major son. Such being 31

the case, they cannot be treated as dependents on the deceased. Therefore 50% of the income has to be deducted towards personal expenses of the deceased. If Rs.7,000/- is considered as income and 50% is deducted, Rs.3,500 x 12 x 7

(appropriate multiplier) = Rs.2,94,000/- would be the compensation towards ‘loss of dependency’.

21. As per the judgment of the Hon’ble Apex Court in Magma General Insurance Co. Ltd., Vs. Nanu

Ram Alias Chuhru Ram reported in (2018 SCC

Online SC 1546), the 1st claimant being the widow of the deceased is entitled for Rs.40,000/- towards

‘loss of spousal consortium’. Claimants No.2 to 4 being the children of the deceased are entitled for

Rs.30,000/- each towards ‘loss of parental consortium’. Claimants are also entitled to

Rs.15,000/- towards funeral and transportation expenses and another Rs.15,000/- towards loss of 32

estate. In all the claimants are entitled for reassessed compensation as under:

Loss of Consortium to the 1 st Rs.40,000.00 claimant Loss of parental consortium Rs.90,000.00 (Rs.30,000x3) Loss of Estate Rs.15,000.00

Funeral and Transportation Rs.15,000.00 expenses Total Rs.4,54,000.00

Though the Insurance Company has not filed any appeal and also the owner, but when this

Court being the first Appellate Court reassessed the compensation, the claimants are entitled to

Rs.4,54,000/- as against Rs.5,61,000/- awarded by the Tribunal.

22. As regards the computation of compensation in MVC No.622/2013, the claimant is the daughter who accompanied the deceased Peter Rodrigues.

She has stated that she is working as a teacher 33

conducting tuitions and she has lost the income and earning capacity. But no documents are produced before this Court to prove that she was conducting tuitions and earning Rs.20,000/- per month. In the absence of any proof of income, I propose to consider Rs.7,000/- as notional income for the claimant. As per the wound certificate –

Ex.P8, the claimant has sustained three injuries out of which all the injuries are shown as grievous in nature. The claimant also examined PW4 – Dr.

S. R. Angadi, who has assessed the disability as per disability certificate - Ex.P13, wherein the doctor has assessed the disability of 15% for fracture of both the right and left nasal bone and

25% in respect of left upper limb. Totally the disability was shown as 40%. While considering the disability towards whole body, the Tribunal has taken 10% which is meager. At least the

Tribunal could have considered 1/3 rd of the 34

disability in this case. Therefore, considering the facts and circumstances of the case, I propose to consider 15% disability towards whole body. If

Rs.7,000/- is calculated as income, 15% of the it would be Rs.1,050/- multiplied by 12 x 17

(appropriate multiplier), it comes to Rs.2,14,200/-

. The Tribunal has awarded medical expenses of

Rs.1,33,000/-. The same is retained. The

Tribunal has awarded Rs.50,000/- towards ‘pain and agony’. I am of the view that the said amount is sufficient and adequate. Hence the same is retained. The Tribunal has awarded Rs.15,000/- towards loss of future amenities and also

Rs.10,000/- towards loss of life expectancy, in total Rs.25,000/- and the same is retained. Three months salary towards loss of income during laid up period, in view of computation at the rate of

Rs.7,000/- per month comes to Rs.21,000/-

(Rs.7000x3), as against Rs.18,000/- awarded by 35

the Tribunal. The Tribunal has awarded

Rs.5,000/- towards food, nourishment, conveyance etc., and the same is retained. In total, the claimant in MVC No.622/2010 is entitled for compensation as under:

Loss of earning capacity Rs.2,14,200.00

Medical Expenses Rs.1,33,000.00

Pain and suffering Rs.50,000.00

Loss of amenities and life Rs.25,000.00 expectancy Food and nourishment Rs.5,000.00

Loss of Income during laid up Rs.21,000.00 period Total Rs.4,48,200.00

23. As regards computation of award in MVC No.

623/2013 filed by the claimant/Judy Peter

Rodrigues, she was running internet cafe and was earning Rs.20,000/- per month, but she has not produced any document before the Court. In the absence of documents, Rs.7,000/- was considered 36

by the Tribunal as a notional income of the claimant. It is contended that the claimant has suffered sever head injury, due to which, she is unable to speak or to do her work. To prove her case, the daughter, Mrs. Ruth Peter Rodregues examined as P.W.3 and got examined P.W.2/

Dr.Chandrashekhar T. R.

24. As per the evidence of P.W.2/doctor and documents Ex.P-22/wound certificate, it shows that she sustained head injury other than other injuries and undergone CT scan, MRI diagnosis etc. As per the summary sheet, Ex.P-23 given on the basis of Ex.P-25/Observation certificate, she sustained subacute infarct with hemorphagic transformation in right centrum semi ovale, carona radiate, lentiform nucleus, thalamus and perisylvian region and non specific white matter ischemic changes in bilateral peritrigenal and periventricular region. The injured was admitted 37

in hospital twice as an in-patient for almost more than 104 days. As per Ex.P-25, the Doctor has given disability certificate opining that the claimant is having permanent mental disability and he has assessed the disability to the extent of

60% to 65% for the whole body. Even in the cross- examination, the same thing has been reiterated by him and nothing has been brought on record to disbelieve his evidence. However, the Tribunal, while considering the facts and circumstances of the case, has considered only 25% disability to the whole body, which is not correct. When the claimant has sustained severe head injury and not able to speak and do her normal works and even when she is not able to give her evidence before the Court, reducing the disability to 25% by the

Tribunal is not correct. By looking to the facts and circumstances, I propose to consider 50% disability to the whole body as against 25% taken 38

by the Tribunal. Further, Rs.7,000/- is considered as monthly income and 50% of the said income would be Rs.3,500/-. The said income if multiplied by 12 months, it would be Rs.42,000/-. As regards the age of the claimant, she herself has stated her age as 55 in her petition and even in her another petition, MVC No.623/2013 filed seeking compensation for the death of her husband, she has stated her age as 53 years. Such being the case, the multiplier “11” would be proper multilier and not “13”, which is considered by the Tribunal.

If Rs.42,000/- is multiplied by multiplier “11”, it comes to Rs.4,62,000/- and this would be the loss of earning capacity due to the disability sustained by her in the accident.

25. The Tribunal has awarded Rs.40,000/- towards pain and agony. The same is retained. The

Tribunal, based upon the medical bills produced as per Ex.P-27 to Ex.P-252, has awarded 39

Rs.2,14,000/- towards medical expenses and the same is retained. As per the evidence on record, the claimant was admitted in hospital almost for a period of 4 months and after her discharge also she might have taken bed rest. Hence, I propose to consider the loss of income during the laid off period for 6 months, which would be Rs.42,000/-

(Rs.7000/- X 6 months = Rs.42,000/-). The

Tribunal has awarded Rs.15,000/- towards food and nourishment etc. The same is retained. The

Tribunal has awarded Rs.15,000/- towards future medical expenses, but in my considered opinion the said amount is very meager, since the claimant has to suffer continuously throughout her life and she has to take further treatment.

Therefore, I propose to award Rs.50,000/- towards future medical expenses as against Rs.15,000/-.

As regards loss of amenities, the Tribunal has awarded only Rs.25,000/- and has awarded 40

Rs.15,000/- towards life expectancy. But looking to the injuries sustained by the claimant, she requires one attendant throughout her life and hence, I propose to award Rs.1,00,000/- towards loss of amenities and life expectancy as against

Rs.40,000/- awarded by the Tribunal. Accordingly, the claimant in MVC No.623/2013 is entitled for the re-assessed compensation of Rs.9,23,000/- as under:-

Towards loss of earning Rs. 4,62,000/- capacity Towards pain and agony Rs. 40,000/- Towards medical expenses Rs. 2,14,000/- Towards loss of income during Rs. 42,000/- the laid off period Towards food and nourishment Rs. 15,000/- etc., Towards future medical Rs. 50,000/- expenses Towards loss of amenities and life expectancy Rs. 1,00,000/-

Total Rs.9,23,000/-

26. As regards, the interest awarded in all the claim petitions at the rate of 9% per annum is on the higher side and therefore, it is reduced to 6% per annum.

27. Though the claim in M.F.A.No.103181/2015 is reduced, but the appellants/claimants in the said appeal have succeeded in respect of fastening the liability on the insurer.

28. Consequently, the appeal in

M.F.A.No.103181/ 2015 is allowed in part in respect of fastening the liability and reduction of award accordingly and the appeals in

M.F.A.No.103182/ 2015 and M.F.A.No.103194/

2015 are allowed in part.

29. The claimants in M.F.A.No.103181/2015 are entitled Rs.4,54,000/-, claimant in

M.F.A.No.103182/ 2015 are entitled to

Rs.4,48,200/- and the claimants in 42

M.F.A.No.103194/2015 are entitled to

Rs.9,23,000/- of re-assessed compensation as discussed above.

30. The respondent No.2/insurer is liable to pay the entire compensation amount together with interest at the rate of 6% per annum from the date of petition till the entire amount is realized.

31. As regards apportionment, the order of apportionment made by the Tribunal is not disturbed.

32. Accordingly, all the appeals are disposed off.

SD/- JUDGE kmv/msr/gab/yan