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Judgment
P.D. Waingankar, J.—These two appeals are arising out of the judgment and award dated 01.01.2010 passed in MVC No. 312/2009, on the file of the Additional MACT and Senior Civil Judge at Chitradurga.
It is the case of the appellants-claimants that on 14.11.2008 deceased Krishnappa was travelling in a Tata Ace Goods Vehicle bearing Reg. No. KA-16-A-2238 along with his vegetables in order to take the vegetables to Davanagere Market. At about 7.00 a.m. early in the morning when the Tata Ace reached near Mallasettyhalli Village, on account of rash and negligent driving, the vehicle toppled and thereby deceased Krishnappa sustained severe injuries. While undergoing treatment, he succumbed to the injuries.
He was the only bread earner of the family. He was earning monthly income more than Rs. 8,000/- to 10,000/-. His wife, children and parents filed a claim petition under Section 166 of M.V. Act claiming compensation from the owner and insurer of the Tata Ace. The claim petition was opposed by the owner of the Tata Ace and also the Insurance Company.
The insurer of the Tata Ace contented that deceased Krishnappa was traveling in the vehicle as a gratuitous passenger and therefore, the owner of the Tata Ace committed a breach of policy condition and hence insurance company is not liable to indemnify the owner, in the event an award is passed in favour of the claimants.
The claim petition came up for consideration before the Tribunal before whom on behalf of the claimants Dyamakka, the wife of the deceased Krishnappa was examined as P.W. 1 and one Eeralappa was examined as P.W. 2. Exs. P-1 to P-16 were marked. On behalf of the respondents, one M.S. Mukundraj was examined as RW. 1 and Insurance policy was marked as Ex. R-1.
The Tribunal on appreciation of the evidence recorded a finding that the accident and the resultant death of Krishnappa was on account of rash and negligent driving of the Tata Ace by its driver. The Tribunal by taking the income of the deceased at Rs. 3,000/- p.m., deducting 1/3rd of the income for personal and living expenses of the deceased had he been alive and by applying the multiplier of 13, determined the loss of dependency at Rs. 3,12,000/-. Further, the Tribunal has awarded a sum of Rs. 10,000/- towards consortium, Rs. 5,000/- towards funeral expenses and Rs. 10,000/- towards loss of estate. Thus, the Tribunal has awarded a total compensation at Rs. 3,40,491/-. The Tribunal negatived the contention taken by the Insurance Company and ordered to deposit compensation and indemnify the owner by the impugned judgment and award.
Aggrieved by the quantum of compensation awarded by the Tribunal, the claimants preferred MFA. No. 3008/2010. Whereas, the Insurance Company, aggrieved by the liability fastened on it, preferred MFA. No. 4051/2010.
I have heard the learned counsel appearing for the appellants-claimants and the respondent-Insurance Company. Perused the record.
Having heard both the learned counsel and on perusal of the material on record, the following points arise for consideration:
"1) Whether the compensation awarded by the Tribunal is just and reasonable?
2) Whether the Tribunal is justified in fastening the liability on the Insurance Company?"
Re: Point No. 1:
From the perusal of the material on record and upon hearing the submission what emerges that the death of deceased Krishnappa in a motor vehicle accident is not in dispute. It is also not in dispute that the accident occurred on account of rash and negligent driving of the Tata Ace by its Driver. The accident is of the year 2008. The claimants are six in numbers. Though it is stated by the claimants in the petition that the deceased was the owner of the agricultural land, he was growing agriculture products which he was selling in market, the Tribunal without any basis has taken the income of the deceased at Rs. 3,000/- p.m. From the evidence placed on record by the wife of the deceased, it is evident that he was the owner of agricultural lands as could be seen from Exs. P-15 and P-16, the RTC extracts and that he was maintaining the family consisting of six numbers. As such it is appropriate to take his monthly income at Rs. 6,000/-. Since the dependents are six in numbers, 1/5th has to be deducted towards living and personal expenses of the deceased had he been alive. The age of the deceased is shown as 45 years in the postmortem report. The appropriate multiplier is 14. Thus, the total loss of dependency comes to Rs. 8,06,400/- (4800 x 12 x 14), as against Rs. 3,12,000/- determined by the Tribunal.
The first claimant, Dyamakka is the wife of the deceased Krishnappa who lost her husband at the young age. As such a sum of Rs. 1,00,000/- is awarded towards loss of consortium, Rs. 1,50,000/- towards loss of love and affection at the rate of Rs. 25,000/- each, Rs. 25,000/- towards loss of estate, Rs. 25,000/- towards transportation of dead body and funeral expenses and Rs. 3,491/- towards medical expenses.
Thus, in all the claimants are held to be entitled for a total compensation of Rs. 11,09,891/- as against Rs. 3,40,491/- awarded by the Tribunal.
There shall be an enhancement of Rs. 7,69,400/- over and above the compensation awarded by the Tribunal.
Re: Point No. 2:
The case of the claimants is that the deceased was traveling in the vehicle along with his goods i.e., vegetables which he was growing in his agricultural land. Where as it is the case of the insurance company that he was traveling as a gratuitous passenger and therefore, the insurance company is not liable to indemnify the owner of the vehicle. The claimant-P.W. 1, wife of the deceased went on record to depose that her husband was traveling along with his vegetables so as to sell the same in Davanagere Market. Ex. P-6 is the inquest proceedings conducted on 15.11.2008 early in the morning. In the inquest proceedings we find a reference that the deceased Krishnappa was traveling along with his vegetables from Mallasettyhalli Village to Davanagere in the vehicle in question. The claimants have also produced the statement of Dyamakka and Eeralappa, which were recorded by the police during the course of investigation in the early morning of 15.11.2008. In their statement, these witnesses have stated that the deceased Krishnappa was traveling along with his vegetables grown in the agricultural land in order to take the vegetables in the Davanagere Market when the accident occurred. These statements were recorded at an undisputed period of time. Therefore, after taking note of the statement made by these witnesses in their statements and the reference made in the inquest proceedings, the Tribunal has rightly come to the conclusion that the deceased Krishnappa was traveling along with his vegetables in the vehicle in question. As such the insurance company is liable to indemnify the owner of the Tata Ace.
On re-appreciation of the evidence, I have no reason to deviate from the conclusion reached by the Tribunal that deceased Krishnappa was traveling along with his goods at the time of the accident. I find no merit in the appeal filed by the insurance company. Accordingly, MFA. No. 4051/2010 filed by the insurance company is hereby dismissed. MFA. No. 3008/2010 filed by the appellants-claimants is partly allowed. The judgment and award dated 01.01.2010 in MVC. No. 312/2009, on the file of the Additional MACT and Senior Civil Judge at Chitradurga, stands modified, awarding enhanced compensation of Rs. 7,69,400/- over and above the compensation awarded by the Tribunal together with 6% interest thereon from the date of the petition till the date of realization.
The respondent - Insurance company is directed to deposit the enhanced compensation amount together with interest within a period of three weeks from the date of receipt of a copy of the order.
The apportionment and investment of the enhanced compensation shall be in the same proportion as ordered by the Tribunal.
The amount in deposit by the Insurance Company shall be transmitted to the Tribunal.