IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 03RD DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.1996/2014 [MV] BETWEEN:
THE LEGAL MANAGER ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED NO.186/7, RAGHAVENDRA PLAZA 1ST CROSS, WILSON GARDEN HOSUR MAIN ROAD BANGALORE-560 027.
BY ROYAL SUNDARM ALLIANCE COMPANY LTD., SUBRAMANIAM BUILDING II FLOOR, NO.1 CLUB HOUSE ROAD ANNSASALAI CHENNAI-600 002 BY ITS MANAGER.
...APPELLANT (BY SRI. O MAHESH, ADV.) AND:
1. PUSHPALATHA AGED ABOUT 46 YEARS W/O LATE B.K. SHANKARAPPA 2. B.S. RAGAVENDRA AGED ABOUT 28 YEARS S/O LATE B.K. SHANKARAPPA 3. LAXMAMMA AGED ABOUT 79 YEARS W/O KAVETAIAH ALL ARE R/O BINDIGANAVILE VILLAGE AND HOBLI NAGAMANGALA TALUK MANDYA DISTRICT-571401.
4. DHANANJAYACHAR AGED ABOUT 39 YEARS S/O LATE SHANKARACHARI R/AT NO.434 JARAGANAHALLI VILLAGE NANJAPPA LAYOUT ANTHONY INDUSTRIAL ESTATE NAYDU LAYOUT, LEFT SIDE RAJEEV GANDI ROAD BANGALORE SOUTH BANGALORE-560 078.
…RESPONDENTS (BY SMT. BHUSHANI KUMAR, ADV. FOR R1 TO R3 SRI.K. SHANTHARAJ, ADV. FOR R4) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 26.12.2013 PASSED IN MVC NO.54/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE, & MACT, NAGAMANGALA, AWARDING COMPENSATION OF RS.14,60,000/- 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 in appeal, being aggrieved by saddling of the liability on it under the judgment and award dated 26.12.2013 in MVC No.54/2010 on the file of the Senior Civil Judge and Motor Accident Claims Tribunal, Nagamangala (hereinafter referred to as 'the Tribunal' for short).
The brief facts of the case are that:
1. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the death of B.K.Shankarappa in a road traffic accident. The claimants are wife, son and mother of the deceased. It is stated that on 17.06.2010, when the deceased as rider along with a pillion rider one T.Siddegowda was proceeding in a motorcycle bearing registration No. KA-11/Q-925, a Maruthi Omni car bearing registration No.KA-05/D-2044 driven in a rash and negligent manner, dashed to the motorcycle due to which, the deceased rider of the motorcycle sustained severe injuries. Immediately, he was shifted to the Government Hospital, Nagamangala and thereafter he was shifted to Vikram Hospital, Mysore, wherein he succumbed to injuries on 02.07.2010. It is stated that the deceased was working as a Junior Sales clerk in TAPCMS Ltd., Nagamangala, and was drawing salary of Rs.9,733/- p.m., he was aged about 50 years as on the date of accident.
2. On service of notice, respondents 1 and 2 appeared before the Tribunal, but only second respondent/insurer filed its statement denying the claim petition averments, but admitted issuance of policy in respect of Maruthi Omni Car. Further it stated that the driver of the Maruthi Omni bearing registration No.KA-05/D-2044 was not having valid and effective driving licence to drive the Maruthi Omni car as on the date of accident.
3. In support of their case, claimant No.1/wife of the deceased got examined herself as P.W.1 and marked the documents as Ex.P1 to Ex.P11. The respondent/ insurer examined R.W.1 and marked the documents as Ex.R1 to Ex.R4.
4. The tribunal, on appreciating the material on record awarded total compensation of Rs.14,60,000/- with interest at the rate of 6% p.a., from the date of petition till realization and held respondents 1 and 2 jointly and severally liable to pay compensation and also directed the second respondent/insurer to deposit the compensation amount. The insurer aggrieved by saddling liability on it is before this Court in this appeal.
5. Heard the learned counsel for the appellant/insurer and learned counsel for the respondents/claimants as well as respondent No.4/owner of the offending vehicle.
6. Learned counsel for the appellant/insurer would submit that the Tribunal committed an error in saddling the liability on the insurer. It is his submission that the driver of Maruthi Omni bearing registration No.KA05/D-2044 had no valid and effective driving licence as on the date of accident, hence insurer ought to have been absolved of the liability. It is his submission that the insurer has placed on record Ex.R4/Xerox copy of the driving licence which clearly indicates that the driver of the offending Maruthi Omni car was holding licence to drive two wheeler and he was not possessing the licence to drive four wheeler. Therefore, he submits that when the driver was not at all having licence to drive four wheeler, the Tribunal could not have fastened liability on the insurer. It is his further submission that the pillion rider who was proceeding along with the deceased herein had also filed MVC No.541/2010 before the Additional Senior Civil Judge and CJM, Mandya, wherein the liability is saddled on the owner of the offending Maruthi Omni car and the owner has satisfied the compensation awarded in the said judgment and award. In view of the same, the Tribunal has committed an error in saddling the liability on the insurer in the present case.
7. With regard to quantum of compensation, learned counsel for the appellant/insurer submits that the Tribunal has taken deduction of 1/3 towards personal expenses and he submits that the Tribunal ought to have taken 50%, as the son of the deceased was a major aged about 24 years as on the date of accident. Thus, he prays for allowing the appeal.
8. Per contra, learned counsel for the claimants would submit that the Tribunal has awarded just compensation which needs no interference. Further, she submits that the Act is beneficial legislation and in view of the 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, it is a case of “Pay and Recovery”. The insurer may be directed to pay the compensation at the first instance with liberty to recover the same from the owner of the offending vehicle. Thus, she prays for dismissal of the appeal filed by the insurer.
9. I have heard the learned counsel for the parties and on perusal of the material on record, the following points would arise for consideration:
(i) Whether the tribunal is justified in saddling liability on the appellant/insurer?
(ii) Whether the compensation awarded is just compensation?
Answer to the above point No.(i) is partly in the affirmative and point No.(ii) is fully in the affirmative, for the following reasons:
10. The accident occurred on 17.06.2010 involving the motorcycle bearing registration No.KA-11/Q-925 and the Maruthi Omni Car bearing registration No. KA-05/D-2044 and the accidental death of one B.K.Shankarappa is not in dispute in this appeal. The insurer is before this Court against saddling the liability on it. It is contended that the driver of the Maruthi Omni had no license to drive four wheeler as on the date of accident. The insurer has placed on record Ex.R4/driving license. On perusal of Ex.R4/driving license, it reveals that, as on the date of accident, driver of the Maruthi Van was possessing the license to ride two wheeler and not to drive four wheelers. Therefore, based on the material on record it is established that the driver of the Maruthi Omni car had no driving license to drive the 4 wheeler.
The Hon'ble Supreme Court in PAPPU case (supra) placing reliance on the larger bench decision of the Hon'ble Supreme Court in NATIONAL INSURANCE CO. LTD. v/s SWARAN SINGH case reported in (2004) 3 SCC 297 has held that if it is established that the offending vehicle is driven by an unauthorized person and that person, who did not have valid driving license it would be a case of pay and recovery. The insurer shall have to pay compensation at the first instance and the insurer would be at liberty to recover the compensation from the owner. In the instant case also, I am of the view that the same principle would be applicable. The Tribunal committed an error in arriving at a finding that the insurer is liable to pay compensation by indemnifying respondent No.1/owner of the Maruthi Omni vehicle. It is not known, as to on what basis the Tribunal came to the conclusion that driver of the Maruthi Omni was possessing LMV license. When no piece of material is placed on record to arrive at a conclusion that the driver of the Maruthi Omni had license to drive LMV. In such a situation, I am of the view that the insurer shall pay the compensation to the claimants at the first instance, with liberty to recover the same from the 4th respondent/owner of the Maruthi Omni.
11. With regard to quantum of compensation is concerned, learned counsel for the appellant/insurer submitted that the Tribunal committed an error in taking deduction at 1/3rd towards personal expenses of the deceased. It is his submission that as the second claimant son is major and he was not depending upon the deceased father, but even if the second claimant-son is excluded, there would be two dependants i.e., wife and mother of the deceased, as such, taking 1/3rd deduction towards personal expenses of the deceased is proper and correct and needs no interference.
12. Accordingly, the appeal is allowed in part. The judgment and award dated 26.12.2013 in MVC No.54/2010 on the file of the Senior Civil Judge and Motor Accident Claims Tribunal, Nagamangala is modified to the extent that the appellant/insurer shall pay the compensation at the first instance, with liberty to recover the same from the owner of the Maruthi Omni/4th respondent.
The amount in deposit be transmitted to the concerned tribunal.
Sd/-
JUDGE mpk/-* CT:bms