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2019 Supreme(Kar) 1605
IN THE HIGH COURT OF KARNATAKA AT KALABURAGI BENCH
K.N.PHANEENDRA, ASHOK G. NIJAGANNAVAR, JJ.
The Branch Manager The Oriental Insurance Co. Ltd. - Appellant
Versus
Smt. Narsamma W/o Late Pampanna Askihal – Respondent
MFA No.201146 of 2018 (MV)
Decided on : 23-07-2019
Advocate Appeared:
For the Appellant :Sri S.S.Aspalli, Advocate
For the Respondent: Sri Veeranagouda Malipatil, Sri Amaresh S. Roja & B.R.Math, adv
Headnote:
Motor Vehicles Act – Motor accident claim – Claim of compensation – First Information Report - Whether petitioners prove that accident was due to rash & negligent by driver of the tractor & trolley while deceased was sitting in trolley along with agricultural equipments on road on main road he lost control over vehicle as a result it is turtle and sustained grievous injuries and he succumbed to injuries on spot - Whether respondent No.3 insurance company proves that respondent No.1 being driver of tractor & trolley on date of accident was not holding valid & effective driving license to drive such category of vehicle as such insurance company is not liable to pay compensation - Whether petitioners are entitled for compensation - Whether deceased was travelling on tractor or trolley - Whether Tribunal has committed any error in holding that deceased was travelling on tractor trolley - Respondent Nos.1 to 5 herein are claimants before accident claims tribunal who have made a claim petition against respondents therein claiming compensation due to untimely death of husband of first claimant by name who died in a motor vehicle accident - There is no dispute between parties that deceased along with one were returning back to and they were also transporting agricultural equipment in a said tractor - An accident occurred due to rash and negligent driving of said tractor by its driver which was also fitted with a trailer and due to impact of injuries sustained by him said died on spot - A case was registered against driver of tractor by competent police and a charge sheet has also been laid against him – Held, A plain reading of above said two decisions which are of same strength of Benches it is clear that latest decision of Supreme Court which clarifies situation compassionate appointment was only given in harness of family for purpose of sustaining that particular family – Therefore no deduction could be made while determining compensation under Motor Vehicles Act - Though in a particular scheme compassionate appointment was given it is virtually a work done compensation to employees - If claimant do not work he will not fetch any salary or any emoluments - It is for purpose of sustaining of family such appointment was given and that amount will only endure to benefit of family if claimant works for salary - Said salary or any other benefits cannot be in any stretch of imagination be considered as a compensation or benefit but it is only a work done compliment to said person - In court opinion also while computing compensation salary and other emoluments which claimant was entitled to as a matter of right once an appointment was given to her cannot be deducted while computing compensation - Learned counsel for appellant contended that so far as future prospects are concerned same should not have been awarded by Tribunal - When once it is stated that whatever may be salary or other emoluments claimant is entitled to it is only attached to work entrusted to her and it virtually amounts to a work done compensation to her by way of salary and other emoluments - Therefore even for any practical purposes said amount received by claimant is only with reference to her doing of work and not with reference to earnings of deceased - Once court hold that for any practical purposes compassionate appointment should not be taken into consideration virtually Court cannot take into consideration while computation of compensation benefits that is acquired by claimant on basis of compassionate appointment – Therefore Court has to compute compensation strictly with reference to earnings of deceased and what was his income and what was his future income he would have earned if he was alive and said computation has to be done in accordance with law – Awarding of future prospects by Tribunal also in court opinion is not bad in law – Appeal is dismissed
JUDGMENT :
Though the case is posted for hearing with regard to the interlocutory application, with the consent of both the counsels the matter is heard on merits.
2. The respondent Nos.1 to 5 herein are the claimants before the accident claims tribunal at Raichur, who have made a claim petition against the respondents therein claiming compensation of Rs.1,25,50,000/-due to the untimely death of the husband of the first claimant by name Pampanna who died in a motor vehicle accident. There is no dispute between the parties that on 15.03.2016 the deceased Pampanna Askihal along with one Gururaj were returning back to Raichur from Jawalgera and they were also transporting agricultural equipment in a said tractor. An accident occurred due to the rash and negligent driving of the said tractor by its driver which was also fitted with a trailer bearing Reg.No.KA-36/TB-9345 and due to the impact of the injuries sustained by him the said Pampanna died on the spot. A case was registered against the driver of the tractor by the competent police and a charge sheet has also been laid against him. The claimants have claimed compensation against the respondents therein on the various aspects including the total quantum of compensation to be awarded to them. The respondents have appeared and particularly the respondent No.3 therein the Oriental Insurance Company has contested the proceedings on various contentions. The trial Court has framed the following issues on the basis of the contentions raised by the respective parties, which are as follows:
(1) Whether the petitioners prove that on 15.03.2016 accident was due to rash & negligent by the driver of the tractor bearing No.KA36/T7366 & trolley bearing No.KA36/TB9345 while deceased Pampanna was sitting in the trolley along with agricultural equipments on Jawalagera-Raichur road near Kallur village in Manvi on main road, he lost control over the vehicle as a result it is turtle and Pampanna sustained grievous injuries and he succumbed to injuries on the spot?
(2) Whether the respondent No.3 insurance company proves that respondent No.1 being the driver of the tractor & trolley on the date of accident was not holding valid & effective driving license to drive such category of vehicle as such insurance company is not liable to pay compensation?
(3) Whether petitioners are entitled for compensation? If so, at what quantum and from whom?
(4) What order or award?
3. The claimant examined herself as PW-1 and one witness as PW-2 and also got marked Exs.P-1 to P-13. On the side of the respondents, respondent No.1 got examined himself as RW-1 and respondent No.3 – Insurance Company examined one witness as RW-2 and they also got marked Exs.R1 to R5. After analyzing the oral and documentary evidence on record, the Tribunal has answered issue No.1 in the affirmative and issue No.2 in the negative and allowed the claim petition partly by awarding a compensation of Rs.44,77,956/-with interest at the rate of 6% per annum by fastening the liability on the Insurance Company that is respondent No.3 (appellant herein).
4. The claimants being satisfied with the award, did not come up before this Court for any enhancement. However, the Insurance Company being aggrieved, preferred this appeal before this Court on various grounds.
5. We have heard the arguments of the learned counsel for the appellant as well as the learned counsel for the respondents. The learned counsel for the appellant in support of the grounds urged in the memorandum of appeal has taken various contentions which are enumerated below:
(a) Firstly, he submitted before this Court that the tribunal has wrongly fastened the liability on the Insurance Company even though there is proof on the documents produced by the claimants themselves that the deceased Pampanna was travelling on the tractor by sharing the seat of the driver and not travelling in the trolley as a carrier of any goods or any agricultural equipments. Therefore, when he was sitting on the
