IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.3251/2013 [MV] BETWEEN:
THE BRANCH MANAGER THE ORIENTAL INSURANCE CO. LTD. OPPOSITE TO KSRTC BUS STOP SHARADA COMPLEX CHITRADURGA TOWN.
REP: BY ITS REGIONAL MANAGER THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE SUMANGALA COMPLEX, 2ND FLOOR LAMINGTON ROAD HUBLI-580020.
... APPELLANT (BY SRI. SHANKAR REDDY C, ADV.) AND:
1. MANJUNATH S/O HANUMANTHAPPA AGED ABOUT 39 YEARS 2. RANGAPPA S/O HANUMANTHAPPA AGED ABOUT 44 YEARS 3. MALLESHAPPA S/O HANUMANTHAPPA AGED ABOUT 42 YEARS 4. BYRAPPA S/O HANUMANTHAPPA AGED ABOUT 40 YEARS 5. NAGARAJA S/O HANUMANTHAPPA AGED ABOUT 38 YEARS 6. MALLIKARJUNA S/O HANUMANTHAPPA AGED ABOUT 36 YEARS ALL ARE R/AT HIREGUNTANUR VILLAGE CHITRADURGA TALUK-577501.
7. N.B. SHIVA KUMAR S/O LATE C. BASAVARAJAIAH AGED ABOUT 40 YEARS R/AT S.J.M. EXTENSION HOSADURGA TOWN CHITRADURGA TALUK-577527.
... RESPONDENTS (BY SRI.SPOORTHY HEGDE N, ADV. FOR R1 TO R6 SRI. M.C. BASAVARAJU, ADV. FOR R7) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V. ACT AGAINST THE JUDGMENT AND AWARD DATED 05.01.2013 PASSED IN MVC NO.1651/2009 ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, ADDITIONAL MACT, CHITRADURGA, AWARDING A COMPENSATION OF RS.2,60,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL PAYMENT.
THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The insurer is before this Court in this appeal, assailing the judgment and award dated 05.01.2013 passed in MVC No.1651/2009 on the file of the Additional District and Sessions Judge and Additional MACT, Chidradurga (hereinafter referred to as 'the Tribunal' for short).
2. Appellant is the insurer and respondents 1 to 6 are claimants. Respondent No.7 is the owner of the offending vehicle. The claimants filed claim petition under Section 163-A of the Motor Vehicles Act, 1988 claiming compensation for the death of Smt.Savithramma in a motor accident, which occurred on 17.03.2009. It is stated that on 17.03.2009, when the deceased stepped into the bus bearing registration No.KA-16/A-6788, driver of the bus immediately, without giving caution moved the bus. Due to the said negligent act of the driver, deceased fell down and sustained injuries and died on the spot. It is stated that the deceased was earning Rs.5,000/- to Rs.6,000/- p.m., by doing house hold work and she was aged about 60 years as on the date of accident.
3. Respondent No.1/owner of the offending vehicle is placed exparte before the Tribunal and respondent No.2 appeared and filed its objections denying the claim petition averments. Further, it was stated that the accident occurred due to the negligence of the deceased and not due to the negligent act of the driver of the offending bus.
4. On behalf of the claimants, the first claimant got himself examined as P.W.1 and also examined P.W.2 apart from marking the documents as Ex.P1 to Ex.P8. Respondent No.2 examined R.W.1 and R.W.2 and marked the documents as Ex.R1 to Ex.R3.
5. The Tribunal, on analyzing the material on record awarded total compensation of Rs.2,60,000/- with interest at the rate of 6% p.a., from the date of petition till realization and saddled the liability on the insurer. Aggrieved by the same, the insurer is before this Court in this appeal.
6. Heard the learned counsel for the appellant/ Insurance Company and learned counsel for the respondents No.1 to 6. Learned counsel for the respondent No.7 remained absent continuously. Even today, there is no representation for respondent No.7. Perused the lower court records.
7. Learned counsel for the appellant would submit that the Tribunal committed an error in adopting the multiplier 9 while awarding compensation. It is his submission that the deceased was aged about 60 years and the appropriate multiplier to be adopted is 8. Further he submits that on conventional head, as per II Schedule to Section 163-A of the Motor Vehicles Act, the claimants would be entitled for a sum of Rs.4,500/- only, whereas the Tribunal has awarded Rs.20,000/- which is not correct. Further, he submits that the Tribunal could not have saddled the liability on the insurer as there is violation of permit conditions. Permit is marked as Ex.R2 which provides for route. It is further submitted that the permit was issued to ply the bus between Hosadurga to Huliyur, but the accident had taken place at Hireguntanuru bus stand of Chitradurga Taluk. He submits that the insurer has examined R.W.2, RTO of Chitradurga, in respect of its contention. Therefore, he submits that in view of the judgment of the Hon'ble Apex Court in the case of AMRIT PAUL SINGH AND ANOTHER v/s. TATA (AIG) GENERAL INSURANCE CO. LTD., AND OTHERS reported in (2018) 7 SCC 558, the Insurance Company at the first instance has to pay the compensation and then recover the same from the owner of the offending vehicle. Thus, he prays for allowing the appeal to that extent.
8. Per contra, learned counsel for respondents/ claimants would submit that compensation awarded by the Tribunal is just and proper which needs no interference.
9. The claim petition is under Section 163A of the Motor Vehicles Act. The accident occurred on 17.03.2009 involving the bus bearing registration No.KA-16/A-6788 and the accidental death of one Savithramma is not in dispute in this appeal. The contention urged by the appellant/Insurance Company is that there is violation of terms of permit and as such, it is a case of “Pay and Recovery”. Ex.R2 is the permit which provide for the route which is as follows:
“ºÀĽAiÀiÁgÀÄ-ºÉƸÀzÀÄUÀð (1¹AUÀ¯ïnæ¥ï) ªÀAiÀiÁ: ¹ © PÁæ¸ï PÀAa¥ÀÄgÀ §ÄPÁ̸ÁUÀgÀ vÉÃPÀ®ªÀnÖ, PÀ¯ÉÆèÃqÀÄ, 2) ºÉƸÀzÀÄUÀð- ºÉƸÀzÀÄUÀð (1 zÀÄA¸ÀÄ) ªÀAiÀiÁ:ºÁUÀ®PÉgɺÉZï¦, ¸ÉÆêÀĸÀAzÀæ ²æÃgÁA¥ÀÄgÀ J¼À£ÀqÀÄ, ºÀĽAiÀiÁgÀÄ, ¹ f PÉgÉ, PÀAaÃ¥ÀÄgÀ, f J£ï PÉgÉÀ, ªÀÄvÉÆÛÃqÀÄ, PÀ¯ÉÆèÃqÀÄ 3) ºÉƸÀzÀÄUÀð-G¨Áæt ªÀÄvÀÄÛ ªÁ¥À¸ÀÄì ªÀAiÀiÁ: ¨ÁUÀÆgÀÄ, C¤ªÁ¼À, ²ªÀ¤ gÉÊ ¤. ²ªÀ¤, §ÄPÁÌA§Æ¢ 4) ºÉƸÀzÀÄUÀð-ºÀĽAiÀiÁgÀÄ (1¹AUÀ¯ïnæ¥ï) ªÀAiÀiÁ: ºÁUÀ®PÉgÉ ºÉZï¦, ªÀÄvÉÆÛÃqÀÄ, f J£ï PÉgÉ, PÀAaÃ¥ÀÄgÀ © f PÉgÉ µÀl¯ï ¸À«Ãð¸ï.”
10. The accident had taken place at Hireguntanuru bus stand of Chitradurga Taluk. The bus had no permit to ply at Hireguntanuru. Apparently the permit provides for plying the vehicle between Hosadurga to Huliyur. Thus, there is violation of terms and conditions of permit. The Hon'ble Apex Court in AMRIT PAUL SINGH case (supra) at paragraphs 8 and 24 has held as follows:
“8. Section 2(47) states that “transport vehicle” means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. Section 66 stipulates necessity for permits. Sub-section (1) thereof provides that no owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place, whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority. Various provisos have been appended to the main provision stipulating conditions for use of the vehicle and purpose of carriage of goods vehicle. Sub-section 92) of Section 66 states that the holder of a goods carriage permit may use the vehicle for the drawing of any trailer or semi- trailer not owned by him, subject to such conditions as may be prescribed. It is necessary to mention here that a proviso has been added by Act 54 of 1994 with effect from 14-11-1994 allowing the holder of a permit of any articulated vehicle to use the prime-mover of that articulated vehicle for any other semi-trailer. Section 2(2) defines “articulated vehicle” to mean a motor vehicle to which a semi-trailer is attached.”
24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the "Tripitaka", that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the tribunal as well as the High Court had directed the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh and other cases pertaining to pay and recover principle.”
Following the above decision, it is held that the appellant/Insurance Company is directed to pay the compensation with interest at the first instance to the claimants and thereafter is at liberty to recover the same from the owner of the vehicle in question.
11. The deceased was aged 60 years as on the date of accident. The Tribunal has taken the multiplier 9 to determine the compensation. As stated above, the claim petition is filed under Section 163-A of the Motor Vehicles Act. II Schedule to Section 163-A of the Act provides multiplier of 8 for the age between 55 to 60 years. Therefore, it would be appropriate to take multiplier of 8 for determination of compensation. Further, the Tribunal has awarded Rs.20,000/- on conventional head. II Schedule to Section 163-A provides only Rs.4,500/- towards loss of estate, funeral expenses. Thus, the claimants would be entitled to only Rs.4,500/- on conventional head as against Rs.20,000/-. Thus, the claimants would be entitled to the following modified compensation.
Loss of dependency (40000x8x2/3) = Rs.2,13,333 Conventional head = Rs. 4,500 Total = Rs.2,17,833 Thus the claimants would be entitled to total compensation of Rs.2,17,833/- as against Rs.2,60,000/- with interest as awarded by the Tribunal.
12. Accordingly, the appeal is allowed in part. The impugned judgment and award dated 05.01.2013 passed in MVC No.1651/2009 on the file of the Additional District and Sessions Judge and Additional MACT, Chidradurga is modified. The claimants are entitled to compensation of Rs.2,17,833/- as against Rs.2,60,000/- with interest at the rate of 6% p.a. thereby the compensation is reduced by Rs.42,167/-.
Sd/- JUDGE mpk/-* CT:bms