Gangibai and Others vs Timmanna and Others

Budihal R.B., J.—This is the appeal preferred by the appellant-petitioners, seeking enhancement of the compensation awarded by the Tribunal and to hold the insurance company also liable to pay the compensation and also challenging the validity and correctness of the judgment and award passed by the Tribunal, on the grounds as mentioned in the appeal memorandum.

Brief facts of the petitioners'' case before the Tribunal are that on 27.07.2009 at about 4.30 PM, deceased Kiru @ Kheeru Rathod was proceeding in the turn turn auto rickshaw bearing No. KA. 33.5349 near Yallamma Temple at Yergole village. At that time, the driver of the said auto rickshaw was driving the same in a high speed and in a rash and negligent manner. Because of that reason, the auto rickshaw fell down on the side of the road and the deceased has sustained multiple grievous injuries and died on the spot. Prior to the accident, the deceased was hale and healthy and was doing the work agriculture and black smith, earning more than Rs. 9,000/- per month. The petitioners have lost their bread earner. Hence, they have filed the claim petition before the Tribunal for compensation.

Respondent Nos. 1 and 3 though appeared in the case through their Advocate, they have not filed their objection statements. Respondent No. 2 - insurance company filed its detailed objections denying the entire allegations made in the claim petition and it is also contended that at the time of the accident, the driver of the auto rickshaw was not holding the valid and effective driving licence to drive the vehicle. The owner of the vehicle has violated the conditions of the policy. Therefore, the insurance company is not liable to pay the compensation amount to the petitioners.

On the basis of these pleadings, the Tribunal framed as many as 3 issues and ultimately after recording the evidence of the parties and considering the oral as well as the documentary evidence, partly allowed the claim petition as against respondent Nos. 1 and 3 and dismissed the petition as against respondent No. 2 - insurance company. Being aggrieved by the same, the present appeal is filed.

Heard the arguments of the learned counsel appearing for the appellants and also the learned counsel appearing for respondent No. 2 - insurance company.

Learned counsel appearing for the appellants made the submission that the income of the deceased taken at Rs. 100/- per day is on the lower side. The deceased was doing agriculture and also black smith work and thereby, he was earning more than Rs. 9,000/- per month. It is also submitted that the Tribunal has wrongly dismissed the petition as against respondent No. 2 - insurance company and the burden is on the insurance company to establish the fact that the driver of the auto rickshaw was not holding the valid and effective driving licence at the time of the said accident. Hence, he submitted that the appeal be allowed and the compensation is to be enhanced holding respondent No. 2 - insurance company also liable to pay the compensation amount.

As against this, learned counsel appearing for respondent No. 2 - insurance company submitted that the initial burden of proving that the driver was holding the valid and effective driving licence is on the owner of the said vehicle. Once it is discharged then it is for the insurance company to place the materials about the enquiry that they have made to show that the driver was not holding the valid driving licence. Learned counsel also made the submission that in this case, respondent Nos. 1 and 3 have not at all filed the objection statements, nor they have lead their evidence and hence, the initial burden itself is not discharged by the owner. Hence, the Tribunal is right in rejecting the claim as against the insurance company.

In support of her contention, learned counsel for respondent No. 2 relied upon the decision reported in Yashodhara B. Shetty Vs. United India Insurance Co. Ltd. and Others,

Perused the grounds urged in the appeal memorandum, the judgment and award passed by the Tribunal and also the oral and documentary evidence produced in the case. So far as the liability of the insurance company is concerned, it is rightly submitted that the owner though appeared in the case, he has not filed his objection statement about the averments made in the claim petition, nor he has entered into the witness box to give his evidence at least to discharge his initial burden that the driver of the vehicle was holding the valid and effective driving licence. It is also submitted that the owner even after disposal of the petition by the Tribunal has not preferred the appeal challenging the liability of himself and for imposing the liability on the part of the insurance company.

I have perused the decision relied upon by the learned counsel for respondent No. 2 - insurance company. Looking to the principles enunciated in the said decision also, the initial burden is on the owner of the vehicle and he has to discharge that the driver of the vehicle was holding the valid and effective driving licence. Therefore, when the owner himself has not discharged the initial burden, the question of insurance company discharging its burden does not at all arise. Therefore, the Tribunal has rightly perused the materials and rightly dismissed the claim petition as against the insurance company.

Now coming to the quantum of compensation claimed by the petitioners, the accident is of the year 2009. The Tribunal has taken the income of the deceased at Rs. 100/- per day which comes to Rs. 3,000/- per month, which is on the lower side. The Tribunal ought to have taken Rs. 5,000/- as the monthly income of the deceased. Though it was contended by the petitioners that the deceased was earning Rs. 9,000/- per month, but as they have not produced any materials, the Tribunal has rightly rejected their contention. If the monthly income is taken at Rs. 5,000/-, 1/4 of that is to be deducted towards the personal expenses of the deceased. Then it comes to Rs. 1,250/- and the remaining amount will be Rs. 3,750/- per month. If it is multiplied by 12, the income per annum would comes to Rs. 45,000/-. The proper multiplier applicable is 13. Therefore, the total compensation payable towards the loss of dependency would be Rs. 45,000/- x 13 = Rs. 5,85,000/-.

Towards loss of love and affection, the petitioners are entitled to a total sum of Rs. 25,000/-. Out of which the Tribunal has already awarded a sum of Rs. 10,000/- and hence, there will be enhancement of Rs. 15,000/-.

Towards loss of consortium, the Tribunal has awarded a sum of Rs. 10,000/-. Petitioners are entitled to a further sum of Rs. 15,000/- on this head.

Towards funeral expenses, the Tribunal has awarded a sum of Rs. 10,000/-. The petitioners are entitled to a further sum of Rs. 15,000/- on this head.

The amount of Rs. 10,000/- awarded towards loss of estate is just and reasonable and does not require interference by this Court.

Hence, in all the petitioners are entitled to a sum of Rs. 6,70,000/-. Out of which the amount of Rs. 3,52,000/- awarded by the Tribunal is to be deducted. Hence, the petitioners are entitled to the enhanced compensation of Rs. 3,18,000/-.

Accordingly, the appeal is allowed. The appellant-petitioners are entitled to the enhanced compensation of Rs. 3,18,000/- along with interest at 9% p.a. from the date of the petition till realization.

Respondent No. 3 - the owner of the vehicle is liable to pay the enhanced amount with interest before the concerned Tribunal within 30 days from the date of receipt of copy of this judgment.

The dismissal of the claim petition as against respondent No. 2 - insurance company is hereby confirmed.