IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.6162/2013 [MV] BETWEEN:
M/S. IFFCO TOKIO GENERAL INSURANCE COMPANY LTD., NO.2, 1ST FLOOR, SNG ORCHARD AIYAPPA TEMPLE ROAD JALAHALLI CROSS, PEENYA BANGALORE 560057 REP. BY ITS LEGAL MANAGER.
...APPELLANT (BY SRI.H N KESHAVA PRASHANTH, ADV.) AND:
1. SHRI SUBBARAYAPPA S/O LATE CHIKKA VENTARAYAPPA NOW AGED ABOUT 49 YEARS R/A BEECHAGANAHALLI VILLAGE SOMENAHALLI POST GUDIBANDE TALUK CHIKKABALLAPURA DIST 562101.
2. LAKSHMIDEVAMMA W/O SUBBARAYAPPA NOW AGED ABOUT 49 YEARS COOLIE R/AT BEECHAGANAHALLI VILLAGE SOMENAHALLI POST GUDIBANDE TALUK CHIKKABALLAPURA DIST.- 562101.
3. SHRI NADUPANNA S/O MUNISWAMY R/A YERRA LAKKENAHALLI VILLAGE GUDIBANDE TALUK CHIKKABALLAPURA DIST 562101 R.C. HOLDER OF AUTO BEARING ENGINE NO. R8M0603308 AND CHASSIS NO.MBX 00000 FRMB 777130 AND REG. NO.KA-40-4430.
…RESPONDENTS (BY SRI. VISHWANATH SABARAD, ADV. FOR R1 & R2 R3- SERVED & UNREPRESENTED) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 19.04.2013 PASSED IN MVC NO.6359/2009 ON THE FILE OF THE 20TH ADDITIONAL SMALL CAUSES JUDGE, 18TH ACMM, MACT, BANGALORE, AWARDING A COMPENSATION OF RS.5,15,200/- WITH INTEREST 6% P.A. FROM THE DATE OF PETITION TILL THE AMOUNT DEPOSITED IN THE COURT.
THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal by M/s.IFFCO TOKIO General Insurance Company Limited is directed against the judgment and award dated 19.04.2013 in MVC No.6359/2009 on the file of the Motor Accident Claims Tribunal and 20th Additional Small Causes Judge & 18th ACMM, Bangalore (hereinafter referred to as 'the Tribunal' for short).
2. The claimants are parents of deceased Srinivasa.
The claim petition was filed under Section 163-A of the Motor Vehicles Act (for short ‘the Act’), claiming compensation for the accidental death of their son Srinivas in a motor vehicles accident. It is stated that on 21-02-2009, when the deceased was traveling in auto rickshaw bearing registration No.KA-40/4430, driver of the said auto rickshaw drove the same in a rash and negligent manner and dashed to another auto rickshaw bearing registration No.KA-06/9400. As a result of which, the deceased sustained injuries. Immediately he was shifted to Government Hospital, Gudibande and thereafter he was shifted to NIMHANS, Bangalore and to Shekar Hospital, Bangalore, where he succumbed to injuries. The deceased was a bachelor, aged 20 years and was earning Rs.3,300/-p.m., working as an operator at Sri.Rajalakshmi Stamping, Bangalore.
3. On issuance of notice, respondents 1 and 2 appeared before the Tribunal and respondent No.2 filed its written statement denying the claim petition averments. It is further stated that the occurrence of the accident was not due to rash and negligent driving of the driver of the auto rickshaw, the accident occurred due to rash and negligent driving of the auto bearing registration No.KA-06/9400 by its driver. It is also contended that the driver of the offending auto rickshaw bearing registration No.KA-40/4430 was not holding valid and effective driving license as on the date of accident. The offending vehicle was also not having permit as well as Fitness Certificate.
4. Claimant No.2-Lakshmidevamma got examined herself as P.W.1 and got marked the documents as Ex.P1 to Ex.P8. The respondents examined R.W.1 and marked 6 documents as Ex.R1 to Ex.R6.
5. The Tribunal, appreciating the material on record, awarded total compensation of Rs.5,15,200/- with interest at the rate of 6% p.a., from the date of petition till realization and saddled the liability on respondent No.2/insurance company. Being aggrieved by saddling the liability on respondent No.2/insurer and also on the ground that the driver of the offending vehicle had no driving license to drive the vehicle, the insurance company is before this Court in this appeal.
6. Heard the learned counsel for the appellant/insurer and learned counsel for the respondents/claimants. Perused the materials on record.
7. Learned counsel for the appellant would submit that the Tribunal committed an error in saddling the liability on the insurer as the driver of the offending auto rickshaw i.e. KA-40/4430 had no license to drive the auto rickshaw. The license was obtained by the driver only subsequent to accident and the license was valid from 25.04.2009 to 24.04.2012, whereas the accident occurred on 21.02.2009. Therefore, he submits that it is a case of ‘Pay and Recovery’ relying upon a decision of the Hon'ble Apex Court in the case of PAPPU AND OTHERS v/s VINOD KUMAR LAMBA AND ANOTHER reported in (2018)3 SCC 208. Further the learned counsel submits that the claim petition is under Section 163-A of the Motor Vehicles Act and the claimants would be entitled for only Rs.4,500/- towards conventional heads, whereas the Tribunal has erroneously awarded Rs.40,000/- which needs to be reduced.
8. Per contra, learned counsel for the respondents/claimants would submit that the compensation awarded by the Tribunal is proper and correct, which needs no interference.
9. On hearing the learned counsel for the parties and on perusal of the material on record, the following points would arise for consideration, in this appeal:
(a) Whether, as contended by the learned counsel for the appellant, it is a case for ‘Pay and Recovery’?
(b) Whether the Tribunal committed an error in awarding a sum of Rs.40,000/- on conventional heads, instead of Rs.4,500/-?
10. The accident occurred on 21.02.2009 involving two auto rickshaws and death of one Srinivas son of the claimants are not in dispute in this appeal. The insurer contends that as on the date of accident i.e., on 21.02.2009, the driver of the auto rickshaw bearing registration No.KA-40/4430 had no valid and effective driving license. He obtained the driving license subsequent to the accident on 25.04.2009 valid upto 24.04.2012. The insurer has produced Ex.R2/DL extract which would establish that as on the date of accident, driver had no valid and effective driving license to drive the offending auto rickshaw. The Hon'ble Apex Court in such a situation in the case of PAPPU (supra) relying on a decision reported in 2004 ACJ 1 in the case of NATIONAL INSURANCE CO. LTD.
v/s SWARAN SINGH AND OTHERS has directed the insurer to pay the compensation at the first instance, with liberty to recover the same from the owner.
Following the above said decisions of the Hon'ble Apex Court, in this case also, the insurer is directed to pay the compensation to the claimants at the first instance and liberty is reserved to the insurer to recover the same from the owner/first respondent.
11. The claim petition is under Section 163-A of the Motor Vehicles Act and the compensation would be awarded in accordance with Schedule-II to Section 163-A of the Act. Under Schedule-II, the claimant would be entitled for a sum of Rs.2,000/- on the head funeral expenses and Rs.2,500/- for loss of estate. But, the Tribunal has committed an error in granting Rs.40,000/- on conventional heads ignoring Schedule II to Section 163-A of the Act. Hence, the compensation awarded on conventional heads is reduced to Rs.4,500/- from Rs.40,000/-. Thus, the claimants would be entitled for the following compensation:
Loss of dependency :: Rs.4,75,000/-
Loss of estate :: Rs. 2,500/-
Funeral expenses :: Rs. 2,000/-
Total Rs.4,79,700/-
Thus, the claimants would be entitled for total compensation of Rs.4,79,700/- with interest at the rate of 6% p.a., from the date of petition till realization, as against Rs.5,15,200/- awarded by the Tribunal.
12. Accordingly, the appeal is allowed in part. The judgment and award dated 19.04.2013 in MVC No.6359/2009 on the file of the Motor Accident Claims Tribunal and 20th Additional Small Causes Judge, Bangalore is modified and the claimants would be entitled for compensation of Rs.4,79,700/- with interest at the rate of 6% p.a., from the date of petition till realization, as against Rs.5,15,200/-, thereby the compensation is reduced by Rs.35,500/-.
The amount in deposit be transmitted to the concerned Tribunal.
Sd/-
JUDGE mpk/-* CT:bms