IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF APRIL, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE H.T. NARENDRA PRASAD M.F.A. No.8513 OF 2013 (MV) BETWEEN:
1. BASANTHI @ BASANTHE @ BASANTHI RAM S/O. LATE DARMU, AGED ABOUT 45 YEARS, 2. PHULPTHI W/O. BASANTHI @ BASANTHE @ BASANTHI RAM, AGED ABOUT 39 YEARS, 3. DEENDAYAL S/O. BASANTHI @ BASANTHE @ BASANTHI RAM, AGED ABOUT 19 YEARS, 4. JAMBATHI D/O. BASANTHI @ BASANTHE @ BASANTHI RAM, AGED ABOUT 18 YEARS, 5. BHAGAVATH S/O. BASANTHI @ BASANTHE @ BASANTHI RAM, AGED ABOUT 17 YEARS, SINCE MINOR R/BY FATHER APPELLANT NO.1 BASANTHI @ BASANTHE @ BASANTHI RAM AS GUARDIAN AND NEXT FRIEND.
ALL ARE R/O. BARUVAPUR BHEMOSH TALUK, JHANSI, U.P.
NOW R/O SEENAPPA VARATA INFRONT OF ANITHA CONVENT MALAVALLI TOWN – 571 430, MANDYA – 571 401. ... APPELLANTS (BY SRI RAJA L., ADVOCATE) AND:
1. THE MANAGING DIRECTOR SRI SAISUDHEER INFRASTRUCTURES LTD., NO.301, ELITE 8-2-283/4 ROAD NO. 14, BANJARA HILLS, HYDERABAD – 500 001.
2. RATHANLAL D.NO.367, 1ST CROSS JETTY STREET, NAZARBAD MYSORE – 570 001.
3. THE BRANCH MANAGER UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, MANGAIAH BUILDING, M.C. ROAD, MANDYA – 571 401. ... RESPONDENTS (BY SRI S.B. HALLI, ADVOCATE FOR R-2;
SRI B.A. KRISHNASWAMY, ADVOCATE FOR R-3; RESPONDENT NO.1 – SERVED AND UNREPRESENTED) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V. ACT TO MODIFY THE JUDGMENT AND AWARD DATED:20.10.2012 PASSED IN MVC NO.1/2011 BY THE LEARNED SENIOR CIVIL JUDGE AND MACT, MALAVALLI, AND ENHANCE THE COMPENSATION AS CLAIMED IN THE CLAIM PETITION AND ETC.
THIS M.F.A. COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally.
2. The claimants in M.V.C. No.1 of 2011 have assailed the judgment and award passed by the Court of Senior Civil Judge and M.A.C.T. Malavalli (hereinafter referred to as the ‘Tribunal’, for the sake of brevity) dated 20.10.2012.
3. For the sake of convenience, the parties shall be referred to in terms of their status before the Tribunal.
4. The appellant / claimants filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the ‘Act’, for the sake of brevity) seeking compensation on account of the death of Rathi Ram, who was involved in transportation of pipes. According to the claimants, on 05.10.2010 at about 11 a.m. Rathi Ram son of claimants No.1 and 2 and brother of claimants No.3 to 5 who was working as a Pipeline Assistant and transporting pipes (400 mm DI Pipes) with the help of a crane and while assisting the driver of the crane in the transportation of the pipes and while proceeding towards a vacant site belonging to the Muzrai Department near Shree Mallikarjunaswamy Temple, Mudukathore village, Thalakadu Hobli, T. Narasipura Taluk, died on account of the rash and negligent driving of the crane by the driver, M. Rajesh. As a result, the left side front wheel of the crane bearing Model No.12XW ACE 1811-016, Chasis No.1811016, Engine No.5433A02622 ran over the head of the Rathi Ram and he died on the spot. According to the claimants, the accident occurred on account of the rash and negligent driving of the crane. Post-mortem was conducted at Community Health Centre, Talakadu, T. Narasipura Taluk, Mysore District on 06.10.2010. The dead body was transported to Bangalore for embalming and air lifted and after embalming was transported by Air to Lucknow with the help of M/s. Kumar and Company International, Undertakers, Embalmers and Air Ambulance Operators, Bangalore, by paying Rs.40,000/- and Rs.10,400/- towards Air fare to Jet Airways and from Lucknow the body was transported to the native place by hiring a taxi by paying Rs.10,000/- and the body was cremated and obsequies ceremonies were conducted by spending Rs.50,000/-. Contending that they had lost Rathi Ram who was only 21 years of age and was hale and healthy and he was drawing a monthly salary of Rs.15,000/-, the claimants claimed compensation on various heads. Respondent No.1 being the owner of the vehicle and respondent No.3, the insurer of the offending vehicle were directed to pay compensation of Rs.51,50,000/- along with interest.
5. In response to the service of summons and notices issued by the Tribunal, respondents No.2 and 3 appeared through counsel and respondent No.1 though served did not appear and was placed ex parte. Respondent No.3 only filed written statement by contending that the crane was insured, but the insurer was liable to satisfy the award in terms of the policy and provisions of the Act. That the driver of the crane vehicle did not possess a valid and effective driving licence. That the insurer was not liable to satisfy the award. Insurance Company, therefore, sought for dismissal of the claim petition. On the basis of the rival pleadings, the Tribunal framed following issues for its consideration:
1. Whether petitioners prove that the accident was solely due to rash and negligent driving of driver of offending vehicle?
2. Whether petitioners prove that due to impact deceased succumbed to injuries as alleged?
3. Whether petitioners prove that they have not filed any MVC petition in other Court pertaining to said accident, except this Hon’ble Court?
4. Whether petitioners are entitled for compensation? If so, to what extent and from whom?
5. What order or award?
6. In support of their case, the mother of the deceased examined herself as P.W.1. She produced seven documents which were marked as Exs.P-1 to P-7. The insurance company examined one C. Gajendra as R.W.1 and two documents were marked as Exs.R-1 and R-2. On the basis of the said evidence, the Tribunal answered issues No.1 and 2 in the affirmative and issues No.3 and 4 partly in the affirmative and awarded compensation of Rs.5,45,532/- with interest at the rate of 6% p.a. and directed respondents No.1 and 2 only to deposit the compensation. The claim petition against respondent No.3 insurer was dismissed. Being aggrieved by the judgment and award of the Tribunal, the claimants have preferred this appeal.
7. We have heard learned counsel for the appellants and learned counsel for respondent No.2 and learned counsel for respondent No.3 insurer and perused the material on record. Respondent No.1 is served and unrepresented.
8. Learned counsel for the appellants made a two fold contention: firstly, he submitted that the Tribunal was not right in exonerating the insurance company from its liability to satisfy the award. He contended that although a defence regarding the driver of the crane not possessing a valid and effective driving licence was taken in the statement of objections/written statement, the said plea was not proved by the respondent. That having regard to the judgments of the Hon’ble Supreme Court in the absence of there being a proof of defence, the insurance company cannot avoid its liability. That in the instant case the Tribunal was not right in dismissing the claim petition as against the insurer. He, therefore, contended that the finding given by the Tribunal and the exoneration of the insurance company be set aside and a direction be issued; insurer to satisfy the award. He next contended that the award of compensation on various heads is meager and the same may be enhanced.
9. In this regard, learned counsel for the appellants drew our attention to the reasoning of the Tribunal and contended that the Tribunal, in the absence of there being any concrete evidence, has assessed the notional monthly income of the deceased in a meager manner. That the deceased was a Pipeline Assistant working in the first respondent Company, who was also the owner of the crane. The accident occurred in the year 2010. The Tribunal ought to have notionally assessed the monthly income atleast at Rs.6,000/- and not Rs.3,000/-, whereas the appellants had pleaded that the deceased was earning Rs.15,000/- per month. He further contended that the award of compensation on loss of consortium, love and affection and transportation of the dead body, loss of estate are all on the lower side and hence this Court may reassess the compensation.
10. Per contra, learned counsel for the respondent - insurer supported the judgment and award of the Tribunal and contended that the Officer of the insurance company had let in evidence as R.W.1. That Ex.R-2 is a chargesheet which has been produced wherein on account of the driver of the crane not possessing a valid and effective driving licence, chargesheet was filed even under Section 3 of the Act, and therefore, the Tribunal was right in exonerating the insurance company. He further contended that the award of compensation is just and proper and there is no merit in the appeal.
11. Learned counsel for second respondent contended that the second respondent is only an Agent of first respondent. That the second respondent is not the owner of the offending vehicle; that no liability could have been fastened on the second respondent and that the claim petition ought to have been dismissed as against second respondent. Therefore, appropriate orders may be made in the instant appeal.
12. Having heard learned counsel for the respective parties, the following points would arise for our consideration:
1. Whether the Tribunal was right in exonerating the third respondent insurer?
2. Whether the appellant - claimants are entitled to enhanced compensation?
3. What order?
13. The aforesaid points shall be answered in seriatim.
14. The appellants - claimants have established before the Tribunal that on 05.10.2010 at about 11.00 a.m. when the deceased Rathi Ram was assisting the crane driver, who was driving the crane, Model 12XW ACE 1811-016, the left front wheel of the crane ran over the head of Rathi Ram and as a result he died on the spot. However, there is a controversy with regard to the liability of the insurance company in the matter of indemnification of the first respondent owner of the vehicle, the insured in the instant case. Although the insurance company has contended that the driver of the crane did not possess a valid and effective driving licence on the date of the accident, the said contention, though pleaded, in our view has not been proved. Except letting in the evidence of R.W.1, the Officer of the insurance company and producing a copy of the charge sheet Ex.R-2 wherein the offence under Section 3 of the Act was also noted, no further evidence has been let in by the insurance company. According to the judgment of the Hon’ble Supreme Court in the case of National Insurance Co. Ltd., vs. Swaran Singh and Others reported in AIR 2004 SC 1531, in order to succeed, the insurance company must prove that the breach of the condition of the driving licence was so fundamental as to have contributed to the cause of the accident and that the concept of “fundamental breach” applies while raising a defence under Section 149(2) of the Act. The summation of the findings in the said case are extracted as under for immediate reference:
“105. The summary of our findings to the various issues as raised in these petitions are as follows:
(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.
(ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163 A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said Act.
(iii) The breach of policy condition e.g. disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefore would be on them.
(v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case.
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act.
(vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case.
(viii) If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree.
(ix) The claims tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants.
(x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Sections 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal.
(xi) The provisions contained in sub- section (4) with proviso thereunder and sub- section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.”
15. Having regard to the parameters and guidelines given by the Hon’ble Supreme Court in the case of Swaran Singh, the present case would have to be examined. As already noted, there is absolutely no evidence produced by the respondent – insurer other than filing a copy of the charge sheet to show that an offence under Section 3 of the Act was also noted in the charge sheet. The same does not amount to proof of the breach of condition of the policy and as to whether on account of the same there was a fundamental breach so as to result in exoneration of the insurance company. In the circumstances, we hold that the respondent – insurer has failed to prove the fact that it had to be exonerated of its liability under the policy. Hence, point No.1 is answered in favour of the appellant - claimants.
16. The next point for consideration is with regard to the quantum of compensation to be awarded to the claimants. The detailed narration of contentions would not call for a reiteration. It is noted that the Tribunal has assessed the monthly income of the deceased at Rs.3,000/- notionally and by applying the multiplier of ‘18’ and by deducting 1/3rd of the said income towards the personal expenses of the deceased has awarded compensation of Rs.4,32,000/- towards loss of dependency. We find the same is meager and on the lower side.
17. Having regard to the fact that the deceased was working as a Pipeline Assistant and the fact that the accident occurred in October 2010, the notional monthly income of the deceased must be assessed at Rs.6,000/-. Further in terms of the latest dictum of the Hon’ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and Others, reported in (2017)16 SCC 680 atleast 40% of the monthly income must be added towards future prospects, which would amount to Rs.8,400/-. By taking into consideration the fact that the deceased did not have a permanent job as such, the Tribunal has deducted 1/3rd of the income towards personal expenses of the deceased. But, having regard to the fact that the claimants / dependants are five in number, 1/4th has to be deducted towards personal expenses of the deceased, in view of the dictum of the Hon’ble Supreme Court in the case of Sarla Verma (Smt.) and Others vs. Delhi Transport Corporation and Another reported in (2009)6 SCC 121. Consequently, compensation on the head of loss of dependency would be Rs.13,60,800/- [(Rs.8,400/4 x 3) = Rs.6,300/- x 12 x 18].
18. Further a sum of Rs.80,000/- at the rate of Rs.40,000/- each has to be awarded to each of the parents towards loss of their son, as per the latest dictum of the Hon’ble Supreme Court in the case of Magma General Insurance Company Limited vs. Nanu Ram and Others, reported in 2018 ACJ 2782. Further a sum of Rs.90,000/- at the rate of Rs.30,000/- each is awarded to the three siblings of the deceased Rathi Ram towards loss of love and affection. Further a sum of Rs.15,000/- is awarded towards loss of estate and a sum of Rs.60,000/- is awarded towards transportation of the dead body from Thalakadu at T. Narasipura Taluk to Bangalore and from Bangalore to Lucknow by Air and from Lucknow to the native place by hiring the taxi. A sum of Rs.15,000/- is awarded towards funeral expenses. Thus, the total compensation is “Rs.16,20,800/-” instead of “Rs.5,45,532/-”. The enhanced compensation of “Rs.10,75,268/-” shall also carry interest at the rate of 6% p.a. At this stage, learned counsel for the insurance company submits that since the claim petition was dismissed as against the insurer it has not deposited any amount.
19. The compensation amount along with interest shall be apportioned amongst the appellants in the ratio of 30 : 40 : 10 : 10. 75% of the compensation along with accrued interest shall be deposited by appellants No.1 and 2 in any Post Office or Nationalised Bank account for an initial period of five years. They shall be entitled to draw periodical interest on the said deposit. The balance compensation shall be released to the appellants after due verification. The compensation awarded to the siblings of the deceased shall be released to them after due identification.
20. Consequently, the insurance company is directed to deposit the total compensation with interest at the rate of 6% p.a. within a period of six weeks from the date of receipt of certified copy of the judgment.
21. The appeal is allowed in the aforesaid terms.
Parties to bear their respective costs.
Sd/- JUDGE Sd/- JUDGE hnm