IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL No.9006 OF 2010 [MV] C/W MISCELLANEOUS FIRST APPEAL No.2489 OF 2012 MFA No.9006/2010 BETWEEN The New India Assurance Co. Ltd., Udupi Branch.
Through its Regional Office Unity Building Annexe Mission Road, Bangalore-560 027 Rep. by its Manager Sri K B Manja Naik. ... Appellant [By Sri K S Lakshminarasappa for Sri B C Seetharama Rao, Advocates] AND 1. Sri K Girishchandra Aged about 55 years s/o late K Monappa.
2. Smt.Jalajakshi Aged about 51 years w/o K Girishchandra.
3. Sri Gururaj Aged about 28 years S/o Sri K Girishchandra.
4. Smt.Priya Aged about 26 years d/o Sri K Girishchandra.
All are r/o No.11-57/2 Kanadka House, Karmika Colony, Shakthinagar Mangalore.
5. Sri D Rajashekar, Major s/o late Janardhana Rao R/a No.2-5-299/12 “Shivam House”, Kunitkana Junction, Bejai Post, Mangalore-575004 (Owner of lorry No.KA-20/A-5991) ... Respondents [By Sri P Karunakar, Advocate for P Karunakar Associates for R2 to R4, R5 served) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 1.4.2010 passed in MVC No.432/2008 on the file of the Presiding Officer, Fast Track Court, Member, MACT, Mangalore, D.K., awarding a compensation of Rs.3,10,000/- with interest at 6% p.a. from the date of petition till realization.
MFA No.2489/2012: BETWEEN:
1. Sri K Girishchandra Aged about 55 years s/o late K Monappa.
2. Smt.Jalajakshi Aged about 50 years w/o K Girishchandra.
3. Gururaj Aged about 27 years.
4. Priya Aged about 25 years.
Petitioner No.3 and 4 are children of K Girishchandra All are r/a Door No.11-57/2 Kanadika House, Karmika Colony, Shakthinagar Mangalore. ..Appellants (By Sri P Karunakar, Adv. for M/s.Lex Optimus for appellant Nos.2 to 4 AND:
1. Mr.D Rajashekar s/o late Janardhana Rao Adult, R/a Door No.2-5-299/12 Shivam House, Kunitkana Junction, Bejai Post, Mangalore-575004 2. The New India Assurance Co. Ltd. Branch office, II Floor Sriram Arcade Opp: Head Post Office Udupi, Udupi Dist. .. Respondents (By Sri M Narayanappa, Advocate for R2) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 1.4.2010 passed in MVC No.432/2008 on the file of the Presiding Officer, Fast Track Court, Member, MACT, Mangalore, D.K., partly allowing the claim petition for compensation and seeking enhancement of compensation.
These MFAs coming on for final hearing this day, the Court delivered the following:
JUDGMENT MFA No.9006/2010 is preferred by the insurer and MFA No.2489/2012 is filed by the claimants in MVC No.432/2008 on the file of the Presiding Officer, Fast Track Court, Member, MACT, Mangalore, D.K.
2. I have heard the learned counsel appearing for the parties.
3. Learned counsel for the appellants in MFA No.2489/2012 has filed a memo reporting the death of appellant No.1 and submits that the L.Rs of appellant No.1 i.e. appellant Nos.2 to 4 are already on record.
4. The brief facts of the case are that:
On 15.12.2007 at about 8.15 a.m, the son of claimant Nos.1 and 2 and brother of claimants No.3 and 4 by name Karthikraj was proceeding in a Kinetic Honda bearing Regn. No.CRX-1281 towards Bondel from Padavinangady side. When he reached near Padavinangady Bus stop, a mini lorry bearing Regn.
No.KA-20/A-5991 driven by its driver in a rash and negligent manner dashed against the Kinetic Honda from behind. On account of the same, the said Karthikraj sustained severe injuries and he was shifted to A J Hospital, Mangalore, wherein he was declared brought dead. It is the case of the claimants that the deceased was a bachelor and aged about 24 years, working as Conductor in bus bearing Regn. No.KA-19/A-6666 and he was earning about Rs.10,000/- per month as a conductor as well as doing contract work.
5. Claimants filed a claim petition seeking a total compensation of Rs.15 lakhs. Before the Tribunal, they got examined PWs.1 to 3 and got marked Exs.P1 to P13. The claim petition was opposed by the respondents. On behalf of the Insurance Company, RW1 was examined and Exs.R1 to R4 were marked.
6. The Tribunal while passing the award has held that the owner and insurer i.e. respondent Nos.1 and 2 therein are jointly and severally liable to pay the compensation and further held that the owner of mini lorry has violated the terms and conditions of policy as such the Insurance Company should pay the compensation amount first and then recover the same from the owner of the vehicle. The Tribunal after considering the evidence and material on record was pleased to award a total compensation of Rs.3,10,000/- under the following heads:
1. Loss of dependency - Rs.2,97,000/-
2. Conveyance - Rs. 3,000/-
3. For funeral expenses - Rs. 5,000/-
4. Loss of love and affection - Rs. 5,000/-
Total Rs.3,10,000/-
7. Learned counsel appearing for the appellant/Insurance Company in MFA No.9066/2010 contended that though the Tribunal has held that the owner of mini lorry had violated the terms of policy, however, erred in directing the insurer to pay the compensation. It is his contention that the driver of the mini lorry was not holding effective and valid driving license to drive a mini goods vehicle. Therefore, the insurer is not liable to pay the compensation. It is his further contention that the deceased was a bachelor and therefore the Tribunal was not justified in deducting 1/4th towards personal expenses as the Tribunal ought to have deducted 50% from his income towards personal expenses. Accordingly, he seeks to allow the said appeal.
8. Learned counsel appearing for the claimants contended that the deceased was aged about 24 years and he was earning about Rs.10,000/- per month as a conductor and also doing contract work and therefore, the Tribunal was not justified in taking the income as Rs.3,000/- per month. It is his further contention that the Tribunal has taken the multiplier considering the age of the mother, which is also not proper. He would submit that the entire compensation awarded by the Tribunal is on the lower side. Accordingly, he seeks to enhance the compensation awarded by the Tribunal.
9. It is the case of the claimants that when the deceased was proceeding on a Kinetic Honda bearing Regn. No.CRX-1281, a mini lorry bearing Regn. No.KA-20/A- 5991 driven by its driver came from behind in a rash and negligent manner and dashed against the Kinetic Honda, as a result of which, he sustained injuries and died. Insofar as the negligence on the part of the driver of the mini lorry in question and the said lorry being insured with the 2nd respondent before the Tribunal is not in dispute.
10. The Tribunal has taken the income of the deceased as Rs.3,000/- per month. In this regard, to substantiate the income of the deceased, owner of the lorry was examined as PW2. The owner of the mini lorry, under whom the deceased was working as a conductor, has deposed that the deceased was getting Rs.150/- per day as salary and Rs.50/- per day as batta. The certificate issued by PW3 is marked as Ex.P11. The Tribunal has held that there are no other records such as attendance register, bank pass book to prove the income of the deceased and accordingly taken the income at Rs.3,000/- per month. However, considering the evidence of PW3 and the salary certificate at Ex.P11, wherein, the said salary certificate- Ex.P11 would show that the deceased was earning Rs.150/- per day, the income of the deceased can be taken at Rs.4,500/- per month. It is just and necessary to add 40% of the income towards future prospects. After deducting 50% towards personal expenses, the same would be Rs.3,150/- per month.
11. The deceased was a bachelor and aged about 24 years and therefore the appropriate multiplier considering the age of the deceased is 18. Hence, the claimants are entitled for a sum of Rs.6,80,400/- (3150 X 12 X 18) towards loss of dependency.
12. The Tribunal has awarded a compensation of Rs.13,000/- towards conveyance, funeral expenses and love and affection. The same needs to be enhanced. Accordingly, under the said heads, a sum of Rs.30,000/- is awarded. Hence, the claimants are entitled for a sum of Rs.7,10,400/- as against Rs.3,10,000/- awarded by the Tribunal.
13. It is the contention of the learned counsel appearing for the Insurance Company that the Tribunal was not proper in directing the Insurance Company to pay the compensation amount and then directing to recover the same from the owner of the mini lorry, even though it was held that the driver of the mini lorry in question was having driving license to drive the light motor vehicle. It is the contention that the vehicle involved in this case is a mini lorry and therefore there must be separate endorsement on the driving license to drive such type of vehicle. However, the said question has already been decided by the Hon’ble Apex Court in the case of Mukund Dewangan –vs- Oriental Insurance Co. Ltd. reported in 2017 ACJ 2011, wherein at para-46, the Hon’ble Apex Court has held as under:
“46. Section 10 of the Act requires a driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles, there may be different kinds of vehicles. If they fall in the same class of vehicles, no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also, a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles. It was pre- amended position as well the post-amended position of Form 4 as amended on 28.3.2001. Any other interpretation would be repugnant to the definition of “light motor vehicle” in section 2(21) and the provisions of section 10(2)(d), Rule 8 of the Rules of 1989, other provisions and also the forms which are in tune with the provisions. Even otherwise the forms never intended to exclude transport vehicles from the category of ‘light motor vehicles’ and for light motor vehicle, the validity period of such licence hold good and apply for the transport vehicle of such class also and the expression in Section 10(2)(e) of the Act ‘Transport Vehicle’ would include medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, heavy passenger motor vehicle which earlier found place in section 10(2)(e) to (h) and our conclusion is fortified by the syllabus and rules which we have discussed. Thus we answer the questions which are referred to us thus:
(i) ‘Light motor vehicle’ as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994.
(ii) A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, ‘unladen weight’ of which does not exceed 7500 kg. and holder of a driving licence to drive class of “light motor vehicle” as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the “unladen weight” of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form.
(iii) The effect of the amendment made by virtue of Act No.54/1994 w.e.f. 14.11.1994 while substituting clauses (e) to (h) of section 10(2) which contained “medium goods vehicle” in section 10(2)(e), medium passenger motor vehicle in section 10(2)(f), heavy goods vehicle in section 10(2)(g) and “heavy passenger motor vehicle” in section 10(2)(h) with expression ‘transport vehicle’ as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle.
(iv) The effect of amendment of Form 4 by insertion of “transport vehicle” is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of “light motor vehicle” continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect.”
14. In view of the above decision, the respondent Nos.1 and 2 before the Tribunal are jointly and severally liable to pay the compensation and therefore the question of recovering the compensation from the owner of the mini lorry does not arise. Hence, I pass the following:
ORDER MFA No.*9006/2010 filed by the Insurance Company is hereby dismissed.
MFA No.2489/2012 filed by the claimants is partly allowed.
The judgment and award dated 1.4.2010 passed in MVC No.432/2008 on the file of the Presiding Officer, Fast Track Court, Member, MACT, Mangalore, D.K., is hereby modified.
The claimants/appellants in MFA No.2489/2012 are entitled for a total compensation of Rs.7,10,400/- with interest at 6% p.a. as against Rs.3,10,000/- awarded by the Tribunal.
The Insurance Company shall deposit the entire amount within a period of four weeks from the date of receipt of the copy of judgment.
*Corrected Vide court order dated 20.09.2019 The amount in deposit made in MFA No.*9006/2010 shall be transmitted to the Tribunal for disbursement of payment to the claimants.
Sd/- JUDGE Bkm *Corrected Vide court order dated 20.09.2019