Maddi Thippanna and Others vs D. Eranna and Others

P.S. Dinesh Kumar, J.—The 1st appellant is the husband and the 2nd appellant is the minor son of deceased Sunkamma who died in a road accident on 10.06.2007, when a mini bus bearing No. KA-34/D-6000 in which the deceased was travelling collided with a lorry bearing No. KA-34/5360 near Halkundi village on Bellary - Bangalore Road. Claimant - appellants presented a petition before the 5th Motor Accident Claims Tribunal, Bellary (herein after referred to as ''Tribunal'' for short) and made a claim of Rs. 12,35,000/-. The Tribunal on consideration of the material on record, awarded a compensation of Rs. 3,28,000/- under the following heads:

Feeling aggrieved by the quantum of compensation, the appellants have preferred this appeal.

I have heard Shri Y. Lakshmikanth Reddy for the appellants and Smt. Aruna R. Deshpande for the 2nd respondent - Insurance Company.

It is contended on behalf of the appellants that the Tribunal erred in reckoning the earning capacity of the deceased as Rs. 2,400/- per month. Learned counsel vehemently submits that the deceased was a labourer in a mining company and was earning Rs. 200/-. He further submits that the quantum of compensation awarded under various other heads is also grossly inadequate and prays for enhancement.

The next contention of the learned counsel for the appellants is that the Tribunal erred in accepting the plea on behalf of the Insurance Company that the driver of the offending vehicle viz., lorry did not possess a valid licence at the material point of time and absolving the Insurance Company. He places reliance on the ruling of Apex Court in the case of S. Iyyapan Vs. United India Insurance Company Ltd. and Another, to contend that the Insurance Company has an obligation to first pay and then to recover the amount.

Per contra, Smt. Aruna R. Deshpande, learned counsel appearing for the Insurance Company supports the orders of the Tribunal and submits that in view of the factual matrix that the driver of the offending vehicle did not have a valid endorsement by the Licensing Authority, the respondent - Insurance Company is not liable to satisfy the claim.

I have perused the material on record. Ex. R-1 is the endorsement dated 25.06.2009 issued by the Licensing Authority and the Assistant RTO Bellary. It states that the licence to drive HGV (Heavy Goods Vehicle) was valid from 14.02.1992 to 13.02.1998 and the renewal of the said licence No. 2279/07-08 is also made for the period 30.10.2007 to 29.10.2010. It is held by the Apex Court in the case of S. Iyyapan supra, that in the certain circumstances, the insurer''s right is safeguarded, but in any event, the insurer has to pay the compensation when a valid certificate of Insurance Company is issued and may proceed against the insured for recovery of amount. Under Section 149 of the Motor Vehicles Act, the insurer can deny liability inter alia on the ground that the driver was not having a valid licence. Hon''ble Supreme Court has held that the insurer is liable to pay the compensation to the dependants of the victim without prejudice to right of the Insurance Company to recover from the owner of the vehicle.

The next question that arises for consideration is with regard to the quantum of the compensation. It is true that no material was placed before the Tribunal to establish that the deceased was earning Rs. 200/- per day. In the absence of any cogent material, the Tribunal in its judgment has construed the earning capacity of the deceased as Rs. 80/- per day and accordingly calculated as Rs. 2,400/- per month. Accident is of the year 2007. Learned counsel for the appellants is right in his submission that in the absence of any material, Rs. 4,000/- is considered as earning capacity of the deceased uniformly in cases settled in the Lok Adalat. Hence, I am also persuaded to accept the earning capacity at Rs. 4,000/- per month at the time of accident. Further, deceased was aged 45 years. Therefore correct multiplier applicable in this case is 14. The Tribunal has calculated by applying 15 as the multiplier which also needs to be interfered with. Accordingly, the loss of dependency requires modification and is computed as follows:

"Rs. 4,000 - 1/3rd (towards personal expenses) X 12 X 14 = Rs. 4,48,000/-."

The compensation awarded under the head loss of expectancy by the Tribunal will not be applicable in this case and needs to be set aside. In the result, the claimants shall be entitled to compensation as computed hereunder.

In the circumstances, the appellant - claimants shall be entitled to an enhanced compensation of Rs. 2,15,000/- with interest at the rate of 6% per annum payable from the date of presentation of the petition till the date of payment.

The liability saddled on the 1st and the 3rd respondent to pay the compensation by the Tribunal is sustained. However, in view of the above discussion, the 2nd respondent - Insurance Company is directed to first pay the amount and recover if it is so advised. The appeal stands allowed in the above terms.

Ordered accordingly. No costs.