1. This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short) has been filed by the claimants seeking enhancement of the amount of compensation against the judgment dated 28.01.2017 passed by the Motor Accident Claims Tribunal (hereinafter referred to as 'the Tribunal' for short).
2. Facts giving rise to the filing of the appeal briefly stated are that on 19.06.2015, the deceased Ramachandra Thakur was proceeding in a vehicle bearing Registration No.KA-19-C-5015. When he reached near Mangalur Junction, a lorry bearing Registration No.MP-20-HB-5677, which was being driven by its driver in a rash and negligent manner, came from the opposite direction and dashed against the vehicle in which the deceased was traveling. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the same.
3. The claimants thereupon filed a petition under Section 166 of the Act claiming compensation on the ground that the deceased was aged about 41 years at the time of accident and was engaged as a coolie at Baikampadi Industrial Area, Mangalore and was earning a sum of Rs.20,000/- per month. It was further pleaded that accident took place solely on account of rash and negligent driving of the lorry by its driver. The claimants claimed compensation to the tune of Rs.30,00,000/- along with interest.
4. The insurance company filed written statement, in which the mode and manner of the accident was denied. It was also pleaded that the driver of the lorry was intoxicated at the time of accident and that the liability of the insurance company, if any, would be subject to the terms and conditions of the insurance policy. The age, avocation and income of the deceased was also denied and it was pleaded that the claim of the claimants is exorbitant and excessive.
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant No.1 examined herself as PW-1, Nagraj (PW2) and got exhibited documents namely Ex.P1 to Ex.P11. The respondents examined Kavitha (RW1) and got exhibited documents namely Ex.R1 to Ex.R7. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the lorry by its driver. It was further held, that as a result of aforesaid accident, the deceased sustained injuries and succumbed to the same. The Tribunal further held that the claimants are entitled to a compensation of Rs.10,92,000/- along with interest at the rate of 6% per annum and directed the owner of the offending lorry to pay the aforesaid amount of compensation. Being aggrieved, this appeal has been filed seeking enhancement of the amount of compensation.
6. Learned counsel for the claimant submitted that the Tribunal grossly erred in dismissing the claim petition as against the insurance company on the ground that there was a violation of policy condition. It is further submitted that the Tribunal ought to have invoked the principle of pay and recovery in view of the decision of the full bench of this court in NEW INDIA ASSURANCE CO. LTD. VS. YALLAVA AND ANR. 2020(2) AKR 484. It is also submitted that the Tribunal erred in assessing the income of the deceased as Rs.6,000/- per month and in any case, the same ought to have been taken as per the guidelines framed by the Karnataka State Legal Services Authority. It is further submitted that the Tribunal has erred in not making an addition to the tune of 25% to the income of the deceased on account of future prospects in view of the law laid down by the Supreme Court in ‘NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS’ AIR 2017 SC 5157 [LQ/SC/2017/1578] . It is also urged that the sums awarded under the heads ‘loss of consortium’ and ‘funeral expenses’ are on the lower side and deserves to be enhanced suitably. On the other hand, learned counsel for the insurance company submitted that no evidence has been adduced by the claimants to prove the income of the deceased before the Tribunal and that the Tribunal has rightly taken the income of the deceased notionally at Rs.6,000/- per month. It is further submitted that the driver of the offending lorry was intoxicated at the time of the accident which constituted a violation of policy condition and therefore, the Tribunal has rightly exonerated the insurance company of its liability to pay the compensation. It is also urged that the amount of compensation awarded by the Tribunal is just and proper and does not call for any interference.
7. We have considered the submissions made by learned counsel for the parties and have perused the record. The only question which arises for our consideration in this appeal is with regard to the quantum of compensation. Admittedly, the claimants have not produced any evidence with regard to the income of the deceased. It is also not in dispute that deceased at the time of accident was aged about 41 years and was engaged as a coolie. Therefore, the notional income of the deceased is to be assessed as per the guidelines issued by the Karnataka Legal Services Authority. Since the accident, is pf the year 2015, the notional income comes to Rs.9,000/- per month.
8. In view of the law laid down by the Constitution Bench of the Supreme Court in ‘NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS’ AIR 2017 SC 5157 [LQ/SC/2017/1578] , 25% of the amount has to be added on account of future prospects. Thus, the monthly income comes to Rs.11,250/-. Since, the number of dependents is 7, therefore, 1/5th of the amount has to be deducted towards personal expenses and therefore, the monthly dependency comes to Rs.9,000/-. Taking into account the age of the deceased which was 41 years at the time of accident, the multiplier of ‘14’ has to be adopted. Therefore, the claimants are held entitled to (Rs.9,000x12x14) i.e., Rs.15,12,000/- on account of loss of dependency.
9. In view of laid down by the Supreme Court in ‘MAGMA GENERAL INSURANCE CO. LTD. VS. NANU RAM & ORS.’ (2018) 18 SCC 130, [LQ/SC/2018/1175] which has been subsequently clarified by the Supreme Court in ‘UNITED INDIA INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS.’ AIR 2020 SC 3076 [LQ/SC/2020/550 ;] each of the claimant’s are entitled to a sum of Rs.40,000/- on account of loss of consortium and loss love and affection. Thus, the claimants are held entitled to Rs.2,80,000/-. In addition, claimants are held entitled to Rs.30,000/- on account of loss of estate and funeral expenses. Thus, in all, the claimants are held entitled to a total compensation of Rs.18,22,000/-. Since the accident is of the year 2015, the prevailing rate of interest for the year 2015 in respect of fixed deposits for one year in nationalized banks being 7%, the aforesaid total amount of compensation shall carry interest at the rate of 7% from the date of filing of the petition till the realization of the amount of compensation.
10. It is well settled law that the insurer is liable to pay the third party and recover the same from the insured even if there is breach of any condition recognized under Section 149(2), even if it is a fundamental breach (that is breach of condition which is the cause for the accident) and the insurer proves the said breach in view of the mandate under Section 149(1) of the Act. (See: 'NATIONAL INSURANCE CO. LTD. Vs. LAXMI NARAIN DHUT' (2007) 3 SCC 700, [LQ/SC/2007/287 ;] 'ORIENTAL INSURANCE CO. LTD. Vs. BRIJ MOHAN' (2007) 7 SCC 56 [LQ/SC/2007/715] AND 'SHAMANNA Vs. DIVISIONAL MANAGER, THE ORIENTAL INSURANCE CO. LTD.' (2018) 9 SCC 650 [LQ/SC/2018/962] & full bench decision of this court in NEW INDIA ASSURANCE CO. LTD. VS. YALLAVA AND ANR. 2020(2) AKR 484. In the instant case, the driver of the offending lorry was driving the same, in an intoxicated condition and in violation of the terms and conditions contained in the insurance policy. The Tribunal erred in exonerating the insurance company of its liability to pay the compensation. In view of the aforesaid legal principles, the Respondent No.2 Insurance company is held liable to pay the total amount of compensation to the claimants at the first instance and recover the same from the insured. To the aforesaid extent, the judgment passed by the Claims Tribunal is modified.
11. Accordingly, the appeal is disposed of.
