(Prayer: This MFA filed u/S 173(1) of MV Act against the judgment and award dated 14.05.2015 passed in MVC No.4817/2013 on the file of the Court of the IX Additional Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, Additional MACT-7, Bangalore, awarding compensation of Rs.16,06,020/- with interest @ 6% p.a from the date of petition till payment.

This MFA filed u/S 173(1) of MV Act against the judgment and award dated 14.05.2015 passed in MVC No.4817/13 on the file of the 9th Additional Small Causes Judge & 34th ACMM, Court of Small Causes, Member, MACT-7, Bengaluru, partly allowing the claim petition for compensation and seeking enhancement of compensation.)

CAV Judgment

Tara Vitasta Ganju, J.

1. These appeals have been filed seeking to challenge the Judgment and Award dated 14.05.2015, in M.V.C.No.4817/2013, passed by the IX Additional Small Causes and Addl. MACT, Bangalore (hereinafter referred to as 'the Impugned Award'). By the Impugned Award, the learned Tribunal has awarded compensation to the appellants/claimants in a sum of Rs.16,06,020/- along with interest at 6% per annum from the date of the petition till its realisation.

2. While MFA No.5646/2015 has been filed by the insurer of the car bearing Registration No.KA-04-ME-1577, challenging the liability as well as the compensation awarded by the learned Tribunal, M.F.A.No.8670/2015, has been filed by the claimants seeking enhancement of the compensation awarded by the learned Tribunal.

3. These appeals were disposed of by this Court on 22.01.2021, dismissing the appeal of the Insurance Company and allowing the appeal of the claimants. 3.1 Thereafter, by order of this Court dated 11.02.2021, a typographical error in mentioning the appeal number was directed to be corrected.

4. Subsequently, on 31.01.2022, appellants/claimants filed an application being I.A.No.1/2022 in MFA No.8670/2015, under Section 152 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC'), seeking to correct some errors in the calculation. In that, it was stated that while calculating compensation towards 'loss of dependency', though the Court had held that 1/3rd of the 'personal expenses' of the deceased ought to be deducted towards personal expenditure, due to a typographical error, the said 1/3rd deduction had not been made in the final calculation. Further, the 'medical expenses' that were incurred by the claimants had not been added in the table of calculation. However, when the application, I.A.No.1/2022 came up for consideration before this Court on 11.03.2022, the entire judgment itself was recalled by the same Bench that had passed the judgment. Thus, the matter has been re-listed for hearing before this Court.

5. Briefly, the facts of the case are that on 23.06.2013, Mrs.Zubera Begum was traveling in a car bearing Registration No.KA-04-ME-1577, with her husband on Bengaluru-Hyderabad Highway. When the car reached Tamminayanipalli Village, Gorantla Mandalam, a cow suddenly crossed the road and the husband of Zubera Begum while attempting to avoid hitting the cow, swerved the vehicle to the left which resulted in the car falling into a ditch. The accident resulted in a head injury to Mrs.Zubera Begum who was shifted to Sagar Apollo Hospital, Bengaluru where she was an inpatient for nine days and thereafter succumbed to her injuries on 01.07.2013.

6. A claim petition was filed by the legal representatives / minor children of the deceased under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the 'MV Act') claiming compensation of Rs.50,00,000/- from the insurer of the car. The minors were represented through their guardian, who was appointed by the learned Tribunal by its order dated 19.08.2014. It was stated in the claim petition that the deceased was 44 years old and was employed as a Junior Assistant at Amanath Co-operative Bank Limited and was drawing a salary of Rs.18,580/- per month.

          6.1 The claim was contested by the appellant/Insurance Company, contending that the complaint was registered on 01.07.2013, that is, nine days after the date of the accident. It was further averred that the accident was not due to the cow coming across the road, but as a result of negligent driving by the husband of the deceased. It was however, not disputed that the car was insured by the Insurance Company.

7. Based on the pleadings and documents filed by the parties, the following issues were framed by the learned Tribunal:

          "ISSUES

          1. Whether the petitioners prove that, they are the dependents or legal representatives of deceased Smt. Zubera Begum.M?

          2. Whether the Petitioners prove that the accident occurred due to the rash and negligent driving of the Tata Indica Car bearing Registration No.KA-04- ME-1577 by its driver and Smt. M. Zubera Begum died due to the injuries sustained in the accident?

          3. Whether the petitioners are entitled for compensation? If so, how much and from whom?

          4. What Order?"

8. The claimants examined their guardian as PW1 and one witness as PW2 and marked 19 documents in support of their case as Exhibits P1 to P19 including Exhibit-P1(FIR), Exhibit-P2 (Complaint), Exhibit-P5 (Charge-sheet), Exhibit- P6 (M.V.I. Report), Exhibit-P7 (Medical Bills), Exhibit-P14 (Affidavit showing Genealogical Tree), Exhibit-P18 (Salary Certificate) and Exhibit-P19 (Form No.16) and other relevant documents.8.1 The appellant/KSRTC had examined the assistant of the Insurance Company as RW-1 and marked Exhibits R1 to R5, including Exhibit-R1 (Authorisation Letter) and Exhibit-R2 (Insurance Policy).

9. Based on the oral and documentary evidence on record, the learned Tribunal held that the accident was due to the rash and negligent driving of the owner-cum-driver of the car, the husband of the deceased. Insofar as the claim for compensation is concerned, the learned Tribunal held that though the negligence was attributable to the driver, yet since the deceased was a passenger in the car, the learned Tribunal held that the claim petition under Section 166 of the MV Act is maintainable against the insurer of the car.

10. While quantifying the compensation, the learned Tribunal noticed the evidence of PW.2, who placed on record Ex.P.18, which is a Salary Certificate dated 10.01.2015 and the Pay Slip for the month of June, 2013, as well as Form No.16 in respect of the deceased. The learned Tribunal though noticed that the gross income of the deceased was Rs.18,580/- per month, yet considered the net income at Rs.13,400.55/- per month. The learned Tribunal directed 50% deduction towards the personal expenses of the deceased and taking into account the age of the deceased, applied the multiplier of '14' and awarded the compensation in the sum of Rs.16,06,020/- calculated as under:



          10.1 The learned Tribunal thus awarded compensation of Rs.16,06,020/- with interest at 6% per annum from the date of petition till its realisation.

11. The learned counsel for the claimants submits that in fact the appeal had substantially been decided by the predecessor of this Court and since there was an error in the calculation of compensation, an application for being spoken to' was filed. He contends that inadvertently, 1/3rd deduction in the calculation for 'loss of dependency' was not included and also the 'medical expenses' were not added. Thus, it is contended by the learned counsel for the claimants that the amounts be recalculated by deducting 1/3rd deduction as well as, adding the 'medical expenses' in a sum of Rs.4,45,375/-.

12. The learned counsel for the Insurance Company on the other hand, refutes these contentions. He submits that the Impugned Award suffers from two infirmities. Firstly, the learned Tribunal did not take into account the fact the risk to 'kith and kin' of the Insurer was not covered by the Insurance Policy. Secondly, that the learned Tribunal did not adjudicate on the aspect of negligence.

13. In rejoinder, learned counsel for the claimant submits that the aspect of negligence was framed as an issue by the learned Tribunal and this was adjudicated. No challenge in this behalf was placed before this Court in the appeal. Neither has any ground been taken in the grounds of appeal filed by the Insurance Company.

14. The question for determination that arises before this Court is, whether the amounts awarded as compensation by the learned Tribunal require to be modified?

15. An examination of the Impugned Award reflects that Issue No.2, as framed by the learned Tribunal, was whether the accident occurred on account of rash and negligent driving, and this was addressed by the learned Tribunal as well. Based on the evidence of PW-1, who is the guardian of the deceased and based on the documents filed, including the FIR (Exhibit P3), charge sheet (Exhibit P4), the learned Tribunal found that the accident occurred due to the negligence on the part of the owner/driver himself. A case was also registered based on which the charge-sheet was filed against the husband of the deceased - Shaik Nisar Ahmed, who was arrayed as Respondent No.3. Exhibit P6 shows the MVI report, which reflects the impact of the accident and from PM Report (Exhibit P4), it is clear that the deceased died of injuries on account of the accident. The learned Tribunal examined the evidence produced by the parties and found that the death was caused on account of the negligent driving by respondent No.3 - husband of the deceased, the relevant extract of the Impugned Award is set out below:

          "16. The contents of the above said Police and medical documents clearly disclosed that, due to the negligence on the part of the Respondent No.2 himself, the said road traffic accident was taken place on 23.06.2013 at 5.30. P.M., wherein. the deceased Zubera Begum.M. W/o Shaik Nisar Ahmed, who is the wife of the Respondent No.2 had sustained fatal injuries and during the course treatment to the said accidental injuries in Sagar Appollo Hospital, Bangalore, she succumbed to the injuries on 01.07.2013. It is also clear from the said documents that, the Gorantla Police have registered a case as against the Respondent No.2 and they have filed a charge sheet as against him for the offences punishable under Section 304(A) of IPC. The damages caused to the said offending Car clearly shown in Ex.P.6 MVI Report, which implies the terrific impact of the said accident. Due to the accidental injuries, the said deceased died, is clear from the contents of Ex.P.4 P.M. Report. Furthermore, the RW.1 in his cross-examination has stated that, their company has conducted investigation relating to the criminal case. But, the Respondent No.1 has not produced the said investigation report. The same has been clearly admitted by the RW.1 in his cross- examination. Furthermore, the RW.1 is not an eye - witness and even he has not seen the accidental spot. The same has been admitted by him in his cross- examination. From this, it is made crystal clear that, the offending Car bearing Registration No.KA-04-ME-1577 as well as the Respondent No.2 are very much involved in the said road traffic accident, wherein, the deceased succumbed to the injuries during the course of treatment.

          17. Under the above said facts and circumstances as well as the reasons given, this Tribunal has come to the conclusion that, the petitioners have proved that, the accident occurred due to rash and negligent driving of the Car bearing Registration No.KA-04-ME-l577 by its Owner-cum-Driver, i.e., Respondent No.2 and in the said accident, Smt. Zubera Begum.M W/o Shaik Nisar Ahmed succumbed to the injuries. Accordingly, I answered Issue No.2 in the Affirmative."

          [Emphasis Supplied]

16. The learned counsel for the Insurance Company has contended that the claimants have not proved negligence. This Court is unable to agree. The claimants have in their statement of claim as well as in their evidence, described how the accident took place. It was stated that in order to avert hitting a cow, the driver swerved and was unable to control the car, which resulted in the car falling in a ditch which resulted in the accident. The deceased died as a result of the injuries sustained in this car accident. After the complaint was filed, an FIR was registered wherein the name of the accused was set out as S. Nisar Ahmed (husband of the deceased) who was driving the vehicle. The charge-sheet [Ex.P5] that was filed found that the accused who was driving at a high speed turned the steering to the extreme left side, because of which he lost control of the car and the car fell down into a roadside ditch. The charge- sheet [Ex.P5] also found the accused guilty of having committed an offence for which he was liable under Section 304-A IPC. The relevant extract of the charge-sheet [Ex.P5] is set out below:

           "The deceased is the wife of accused and they are blessed with two sons and are the residents of House No.4109, 26th Main road, 9th Block, Jayanagar, Bangalore-560069. On 26-3-2013 the accused along with deceased and with two sons left Bangalore in their TATA Indica car bearing No. KA-04.ME.1577, reached to Penukonda and stayed in the house of accused till afternoon and left Penukonda to proceed to Bangalore on their car. During that the accused being the owner cum driver of said car is driving the car on NH-44. At about 5.30 P.M while proceeding near Thamminayani Palli Village, suddenly one cow came across the car by crossing the road. On that the accused in order to avert hit to cow, turned the steering of his car on extreme left side due to which he being driving the car in high speed unable to control his car, resulting to that the car fell down in road side ditch. M.Zubera Begum having sustained fracture to her hand and severe mute Injury to her left side waist and her son Tousif Ahamed who sustained Injury to his hand were shifted by L.W.1 with the help of L.W.4 and others to Bangalore and admitted M.Zubera Begum (Deceased) for treatment in Sagar Hospital at 11.30 P.M for treatment. While so Tousif Ahamed not obtained any treatment to his injury as it is trivial in nature. During the course of treatment the said M.Zubera begum succumbed to the injuries sustained in the accident on 1-7-2013 at 2.40 A.M.

          xxx xxx xxx

          On 2-7-2013 L.W.10 visited the scene of offence, observed it, seized the crime vehicle and produced before L.W.9 along with requisition for which L.W.9 examined the crime vehicle and issued opinion that the accident occurred not because any Mechanical defect of crime vehicle.

          xxx xxx xxx

          Thus the accused being the owner cum driver of TATA Indica Car bearing No.KA-04-ME- 1577 have committed an offence liable for punishment U/S:304(A) IPC."

          [Emphasis Supplied]

          16.1 The Motor Vehicle Inspection Report [Ex.P6] also found that on vehicle verification, the braking system was intact and in order and as was the steering. Thus, clearly, there was negligence on the part of the driver/owner of the vehicle respondent No.3.

          16.2 Thus and as can be seen from an examination of the evidence on record by the learned Tribunal as well as by this Court, the issue qua negligence stood proved.

17. The second challenge by the Insurance Company is to 'kith and kin' of the Insurer not being covered by the Insurance Policy. The basis of this challenge has been made on an Article relating to Interspousal Immunity in the Conflict of Laws arising out of motor accident claims, as well as an Article published by the Cleveland State University regarding tortious actions between husband and wife.

18. An examination of the Insurance Policy (Exhibit R2) shows that it is a Comprehensive Policy, which has certain exclusions, but does not exclude the tortious liability between the husband and wife. In addition, own damage is also covered. The relevant extract of Exhibit-R2 is set out below:



          18.1 Since, the contention that the insurer is not liable to pay the compensation as no liability existed against the insurer, is untenable, the examination of the Article referred to by Insurance Company would be otiose.

19. Insofar as concerns the award of compensation, it is not disputed by either party that the medical bills were duly produced and these amounts were awarded.

          19.1 The claimants had produced the Salary Certificate of the deceased as per Exhibit-P18, which indicated a salary of Rs.18,580.55/-. The said Salary Certificate is extracted thus:

          "SALARY CERTIFICATE

          This is to certify that Ms. Zubera Begum (late) deceasedemployee of our Bank joined the Bank as Junior Assistant on 20.4.1998 and expired while on service on 1.7.2013.

          The last salary for the month of June 2013 drawn by Ms. Zubera Begum (late) deceased employee of our Bank is as follows:



This certificate is issued for producing the same to the court of SCCH-7 Case No.MVC/4817/2013 on 22.1.2015.

          [Emphasis Supplied]

          19.2 The Certificate is given by the Amanath Co-operative Bank (A Scheduled Bank). One Mohammed Hameed, who was working as the Senior Assistant in the Legal Department of Amanath Co-operative Bank, was examined as PW.2, produced the Salary Certificate of the deceased and gave evidence before the learned Tribunal.

           19.3 Thus, the claimants have successfully proved the salary of the deceased.

20. The salary certificate (Exhibit P18) sets out that the deceased was drawing a salary of Rs.18,580/- per month. In addition, it further sets out she was also drawing additional allowances such as incentive and daily allowance. Since the deceased was aged 44 years old, the multiplier of '14' was to be made applicable. Given that there were two claimants, the deduction for 'loss of dependency' was required to be calculated by deducting one-third towards personal expenses of the deceased and adding 'future prospects' at 25%, the loss of dependency was required to be calculated as follows: