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2019 Supreme(Kar) 1282
IN THE HIGH COURT OF KARNATAKA
B.V. NAGARATHNA, ASHOK G. NIJAGANNAVAR, JJ.
Legal Manager, Iffico Tokio Gic Ltd. - Appellant
Versus
Nagendram Lachi - Respondent
Miscellaneous First Appeal No. 7227, 7285 of 2017
Decided On : 23-09-2019
Advocate Appeared:
A.N. Krishnaswamy, Adv., A.K. Bhat, Adv., S.P. Shankar, Adv., Mamatha G. Kulkarni, Adv., S.P. Shankar, Adv., Mamata G. Kulkarni, Adv., A.N. Krishna Swamy, Adv.
Headnote:
Civil Procedure Code, 1908 - Section 13 - Motor Vehicles Act, 1988 - Section 149(2) - Motor Accident Claim - Claim compensation - Whether Tribunal was justified in fastening liability on insurer of tipper lorry to pay compensation - Whether appellants-claimants are entitled for enhancement of compensation –Held, Court are of view that owner of lorry has placed cogent evidence to show that he has not committed breach of policy conditions- There is no satisfactory evidence to prove contentions of insurance company that driving licence possessed by driver of tipper lorry was a fake licence as such there was a breach of policy conditions income of deceased for calculating compensation towards loss of dependency as deceased was working in a Company and it was not a permanent employment is observed that while determining income an addition actual salary to income of deceased towards future prospects where deceased had a permanent job and was below age ears should be made addition should age deceased was between - In case deceased was between age addition should - Actual salary should be read as actual salary less tax Government service and private services are likely to be terminated or ended by companies as it is a contractual employment of birth of deceased accident has taken place but he had not completed - Considering this aspect Tribunal has added actual salary to income of deceased towards future prospects Court by referring to decision of Constitution Bench has discussed about granting compensation head of loss of consortium and has also issued guidelines for grant of spousal consortium parental consortium and filial consortium claimants are wife son daughter and parents of deceased- In view of ratio laid down by Honble Supreme Court in aforesaid decision wife is entitled to compensation Tribunal has awarded interest at rate During course of arguments counsel for insurance company strenuously contended that interest awarded is far excessive and unreasonable- In present appeal court have enhanced compensation - Tribunal has not assigned any specific reasons for awarding interest at rate compensation awarded- In absence of any valid grounds for awarding higher rate of interest court are of opinion that interest at rate would meet ends of justice compensation apportioned along with interest to parents shall be deposited for initial period years in their respective names in any Post Office/Nationalized Bank/Scheduled Bank and they shall be entitled to draw periodical interest on said deposit balance compensation shall be released to them after due identification – Order accordingly
JUDGMENT :
ASHOK G NIJAGANNAVAR, J.
Mfa No.7227/2017 is filed by the appellant- Insurance Company assailing the judgment and award dated 17.06.2017 passed in MVC No.1254/2016 by the Member, Prl. Motor Accident Claims Tribunal (hereinafter referred to as "Tribunal", for the sake of brevity), Bengaluru (SCCH-1).
MFA No.7285/2017 is filed by the appellantsclaimants (petitioners) for enhancement of compensation and for modification of impugned judgment and award passed in MVC No.1254/2016.
2. These two appeals arise out of common judgment passed in MVC No.1254/2016 in respect of one and the same road traffic accident.
3. The facts briefly stated are that on 05.01.2016 at about 11.15a.m. the deceased L.Brahmam @ Brahmam Lachi was proceeding on his motorcycle bearing Reg.No.KA-51-L-7251 at J.P.Nagar, 15th Cross on ring road underpass, J.P.Nagar VI Phase, at that time a tipper lorry bearing Reg.No.KA-51-B-7278 came in a rash and negligent manner and dashed to the motorcycle from the rear side. Due to the said impact, the deceased fell down on the road, and the rear wheel of the tipper lorry ran over the head of the deceased, as a result of which, the deceased Brahmam Lachi sustained severe head injuries. The injured was shifted to Rajashekar Multi Specialty Hospital, Bengaluru, where the Doctors declared him 'brought dead'. It is contended that due to untimely death, the legal representatives of the deceased have become orphans and have also lost the financial support.
4. It is contended that the accident was due to rash and negligent driving of the offending vehicle tipper lorry bearing Reg.KA-51-B-7278. Thus, the respondent No.1 being the RC owner and respondent No.2 being the insurer of the lorry, are jointly and severally liable to pay the compensation. With these assertions, the legal representatives of the deceased filed the petition before the Tribunal claiming compensation.
5. On service of notice, respondent Nos.1 and 2 appeared through their respective counsel and filed written statements denying the averments made in the claim petition and also the liability to satisfy the award for the reason that the accident was due to the rash and negligent driving of the rider of the motorcycle and not on account of the negligence of the driver of the tipper lorry.
6. On the basis of the rival pleadings, the Tribunal framed the following issues for its consideration:
i. Whether the petitioners prove that the deceased succumbed to injuries in a Motor Vehicle Accident that occurred on 05.01.2016 at about 11.15 a.m. at J.P.Nagar 15th Cross, Ring Road, Under Pass, J.P.Nagar 6th Phase, Bengaluru, within the jurisdiction of Jayanagar Traffic Police Station on account of rash and negligent driving of the Tipper Lorry bearing registration No.KA-51-B-7278 by its driver?
ii. Whether the Respondent No.2 proves that the accident was occurred on account of negligent act of the Deceased?
iii. Whether the petitioners are entitled for compensation ? If so, how much and from whom?
iv. What order?
7. The petitioner No.1 namely the wife of the deceased got herself examined as P.W.1 and got marked the documents as per Exs.P-1 to P-41, two other witnesses were examined as P.Ws.2 and 3 and the documents were marked as per Exs.P-42 to P-47. Respondent No.1-Owner of the tipper lorry has got himself examined as R.W.1 and got marked the documents as per Exs.R-1 to R-6. The legal executive of respondent No.2-Insruance Company was examined as R.W.2 and the documents were marked as per Exs.R-7 to R-9(a). The respondent No.2-Insurance Company examined the official of the District Transport Office (DTO), Katihar, Bihar as R.W.3 and the documents were marked as Exs.R-10 and R-11.
8. On appreciating the oral and documentary evidence placed on record, the learned Tribunal came to the conclusion that the accident was due to the rash and negligent driving of the driver of the tipper lorry and awarded a total compensation of Rs.1,39,83,595/- (Rupees One Crore Thirty Nine Lakhs Eighty
