IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF NOVEMBER, 2019 PRESENT THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA AND THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM MFA NO.5270 OF 2016 (MV-D) C/W MFA NO.5962 OF 2016 (MV-D) IN MFA NO.5270/2016 BETWEEN:
MANJUNATH H S/O HANUMANTHAPPA MAJOR OWNER OF TEMPO TOOFAN SALOON BEARING REG NO.KA-16-B-3849, R/O PUMP HOUSE ROAD, BILLEKALLU, NAYAKANAHATTI VILLAGE CHALLAKERE TALUK CHITRADURGA DISTRICT-577 536 (BY SRI.SIDDESWARA N K, ADVOCATE) AND:
1. BYRESIDDAPPA S/O KARIYAPPA AGED ABOUT 59 YEARS ...APPELLANT AGRICULTURIST 2. SMT. SHANTHAMMA W/O BYRESIDDAPPA AGED ABOUT 53 YEARS AGRICULTURIST 3. RATHAN.K S/O LATE B.S.KUMAR AGED ABOUT 8 YEARS 4. YOGANANDA S/O LATE B.S.KUMAR AGED ABOUT 3½ YEARS RESPONDENTS NO.3 & 4 ARE MINORS AND HENCE REPRESENTED BY THEIR PATERNAL GRAND FATHER i.e., RESPONDENT NO.1 ALL ARE R/O 4TH CROSS JOGIMATTI ROAD PRASHANTHANAGAR CHITRADURGA CITY PIN-577501 5. SHRIRAM GENERAL INSURANCE CO LTD BRANCH OFFICE, 3RD FLOOR & S CORNER, BUILDING OPP BOWRING & LADY CURZON HOSPITAL, SHIVAJINAGAR BANGALORE-560 001 REPRESENTED BY ITS BRANCH MANAGER …RESPONDENTS (BY SRI.V.B.SIDDARAMAIAH, ADVOCATE FOR R1-R4; SRI.O.MAHESH, ADVOCATE FOR R5) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:28.04.2016 PASSED IN MVC NO.307/2015 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, CJM, MACT- 3, CHITRADURGA, AWARDING A COMPENSATION OF RS.12,92,000/- WITH INTEREST @ 7.5% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
IN MFA NO.5962/2016 BETWEEN:
1. SRI. BYRESIDDAPPA S/O KARIYAPPA, AGED ABOUT 59 YEARS 2. SMT. SHANTHAMMA W/O BYRESIDDAPPA, AGED ABOUT 53 YEARS 3. RATHAN K S/O LATE B.S KUMAR, AGED ABOUT 8 YEARS 4. YOGANANDA S/O LATE B S KUMAR, AGED ABOUT 3 1/2 YEARS APPELLANTS NO.3 & 4 ARE MINORS REPRESENTED BY THEIR PATERNAL GRAND FATHER-1ST APPELLANT ALL ARE R/O 4TH CROSS, JOGIMATTI ROAD, PRASHANTHANAGAR, CHITRADURGA-577 501 ...APPELLANTS (BY SRI.V.B.SIDDARAMAIAH, ADVOCATE) AND:
1. THE SHRIRAM GENERAL INSURANCE CO.LTD., BRANCH OFFICER, 3RD FLOOR, AND S.CORNER, BUILDING OPPOSITE BOWRING AND LADY CURZON HOSPITAL, SHIVAJINAGAR, BENGALURU-560 001 REP. BY ITS BRANCH MANAGER 2. SRI MANJUNATH H S/O HANUMANTHAPPA, MAJOR-AGE NOT KNOWN TO APPELLANT, R/O PUMP HOUSE ROAD, BILLEKALLU NAYAKANAHATTI VILLAGE, CHALLAKERE TALUK-577 522 CHITRADURGA DISTRICT …RESPONDENTS (BY SRI.O.MAHESH, ADVOCATE FOR R1;
SRI.N.K.SIDDESWARA, ADVOCATE FOR R2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:28.04.2016 PASSED IN MVC NO:307/2015 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, C.J.M & MACT-III, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, SATYANARAYANA J., DELIVERED THE FOLLOWING:
JUDGMENT The first respondent-owner of the offending vehicle in MVC.No.307/2015 has preferred appeal in MFA.No.5270/2016 questioning the quantum of compensation as well as the liability which is saddled on him, whereas the claimants have preferred appeal in MFA.No.5962/2016 challenging the judgment and award dated 28.04.2016 passed in MVC.No.307/2015 so far it pertains to quantum and also fixing the liability to pay compensation on the owner of the vehicle and dismissing the claim petition against the second respondent insurer of offending vehicle.
2. The facts leading to filing of these appeals are as under:
The claimants filed claim petition on account of death of one Rudrambika @ Ambika, who is the daughter-in-law of claimant Nos.1 and 2 and mother of claimant Nos.3 and 4. The case of the claimants is that deceased Rudrambika along with her husband and other family members had been to Nanjanagood in a Tempo Toofan bearing Reg.No.KA-16-B-3849 and after performing pooja at Nanjanagood, they were on their way back to their native place. It is further stated in the claim petition that on 26.04.2015 at about 4.30 a.m. when they reached near DKG land at Huliyar Road in Hosadurga Taluk, the driver of the above said Tempo drove the same in a rash and negligent manner and dashed against the road side tree. In the said accident, the mother of claimant Nos.3 and 4 namely, Rudrambika sustained fatal injuries and died in the hospital while taking treatment while her husband Kumar died on the spot. The claimants averred in the claim petition that deceased was hale and healthy and was doing tailoring work and that she was earning Rs.10,000/- per month and maintaining the family. Hence, filed claim petition claiming compensation in a sum of Rs.50,00,000/-.
3. The first respondent/owner of the offending vehicle appeared before the Tribunal and denied the entire averments made in the claim petition. A specific contention was taken in the objection that the compensation claimed is exorbitant. The first respondent – owner also averred in the objection that the offending vehicle involved in the accident was insured with the second respondent. The second respondent – Insurance Company, on receipt of notice by the Tribunal, filed objection and stoutly denied the entire averments made in the claim petition. The second respondent – Insurance Company took a specific contention that the driver of the offending vehicle was not holding valid and effective driving licence and as such, there is violation of terms of policy conditions and sought for dismissal of the claim petition.
4. The claimants in support of their contention, lead in oral evidence; claimant No.1 was examined as PW.1 and also examined two witnesses. The claimants produced documentary evidence vide Exs.P-1 to P-26. The respondents in support of their contention, examined Manjunatha and Vinayakumar as RW.1 and RW.2 and relied on documents vide Exs.R-1 to R-6.
5. The Tribunal on appreciation of the evidence on record, proceeded to determine the compensation and awarded Rs.11,52,000/- under the head ‘loss of dependency’. The Tribunal further awarded a sum of Rs.1,00,000/- to claimant Nos.3 and 4 towards ‘loss of love and affection’ and Rs.40,000/- towards ‘transportation of dead body and funeral expenses’. The total compensation determined by the Tribunal was to the tune of Rs.12,92,000/-.
6. The Tribunal having determined the compensation proceeded to hold that since the driver of the offending vehicle owned by the first respondent was not holding effective driving licence, the Tribunal was of the view that in view of amendment to the Central Motor Vehicle Rules, which came into effect from 28.03.2011, the proposed amendment mandates that a person who drives a light motor vehicle for commercial purpose is required to secure the licence as contemplated under the Rules amended therein. The Tribunal by relying on the judgment rendered in Mohammed @ Mohammed Haneef vs. Mallayya @ Mallappa and Another and also in the case of Yashodamma and Others vs. Ramesha G., proceeded to fasten the liability on the first respondent/owner, by holding that there is violation of policy conditions.
7. Being aggrieved by the judgment and award of the Tribunal, the owner and the claimants are before this Court by filing two separate appeals.
8. Heard learned counsel on both sides and perused the records.
9. Learned counsel appearing for the appellant/owner in MFA.No.5270/2016 vehemently argued that the Tribunal grossly erred in taking the income of the deceased at Rs.8,000/-. Learned counsel for the appellant would vehemently argue that there is absolutely no documentary evidence to establish that the deceased was earning a sum of Rs.8,000/-. Learned counsel for the appellant would further argue that since father-in-law is alive, the mother-in-law of deceased Rudrambika cannot claim to be a dependent on her deceased daughter-in-law and hence, would argue that the Tribunal was not justified in deducting 1/3rd towards personal expenses of the deceased and ought to have deducted 50% towards personal expenses. The contention of the appellant that 50% has to be deducted towards personal expenses cannot be accepted. The claimant Nos.3 and 4 are the minor children of deceased Rudrambika and no homemaker would spend 50% towards her personal expenses. In that view of the matter, we are of the view that 1/3rd deduction is fair and just.
10. The next contention of learned counsel for the appellant/owner in MFA.No.5270/2016 is that the Tribunal erred in fastening the liability on the owner. In support of his contention, learned counsel for the appellant has filed a memo on 07.11.2019 and along with memo, he has produced a Notification issued by the Ministry of Road Transport and Highways. By relying on this Notification, he would argue that since the vehicle involved in the accident is a Maxi Cab (Tempo Toofan), which is a light motor vehicle (used for transport purpose) and its unladen weight is 1,780 Kgs as evident in Ex.R-6 and the same would not require any separate endorsement even if they are used for commercial purpose. Further, while buttressing his argument that the Insurance Company is liable to satisfy the award, he would rely on the judgment reported in Mukund Dewangan vs. Oriental Insurance Company Limited reported in (2017) 14 SCC 663, wherein the Hon’ble Apex Court has held that, a ‘light motor vehicle’ as defined in Section 2(21) of the Motor Vehicles Act, would include a transport vehicle as per the weight prescribed in Section 2(21) read with Sections 2(15) and 2(48) of the Motor Vehicles, Act, 1988. The Hon’ble Apex Court has further held that such transport vehicles are not excluded from the definition of light motor vehicle by virtue of Amendment Act 55 of 1994 and hence, would not require an endorsement to that effect.
11. Insofar as income taken at Rs.8,000/- by the Tribunal, we do not find any illegality committed by the Tribunal. The claimants have placed on record that deceased Rudrambika had studied vocation course in Horticulture and accordingly, have produced documents vide Exs.P-21 to P-25 to that effect. In that view of the matter, the Tribunal has rightly taken the notional income of the deceased at Rs.8,000/-. We also do not find any illegality in the Tribunal taking additional 50% towards future prospects, keeping in mind the age of the deceased which was below 40 years. In that view of the matter, the compensation determined by the Tribunal by taking the income of the deceased at Rs.8,000/- and adding up 50% towards future prospects appears to be fair and just. The compensation determined by the Tribunal under the head ‘loss of dependency’ to the tune of Rs.11,52,000/- does not warrant any interference by this Court. However, the interest awarded by the Tribunal at the rate of 7.5% warrants interference.
12. Accordingly, the appeal filed by the appellant/owner in MFA.No.5270/2016 is allowed-in- part. The compensation determined by the Tribunal at the rate of Rs.12,92,000/- shall carry interest at the rate of 6% p.a. from the date of petition till the date of realization payable by the owner and insurer of the offending vehicle jointly and severally. The appeal filed by the claimants in MFA.No.5962/2016 is allowed in part fastening the liability on the owner and insurer of the offending vehicle.
13. It is needless to say that in view of appeal filed by the owner in MFA.No.5270/2016 being allowed in part, the enhancement sought by the claimants in MFA.No.5962/2016 does not survive for consideration. The amount in deposit, if any, shall be transmitted to the Tribunal.
14. While coming to entitlement and apportionment of award amount, we would observe that neither the first appellant nor second appellant in MFA.No.5962/2016 who are father-in-law and mother- in-law of the deceased Rudrambika are entitled to any portion of the compensation awarded for the death of Smt. Rudrambika. The entire compensation awarded shall be taken by 2 minor children of deceased Rudrambika, who are claimants No.3 & 4 before the Tribunal and appellant Nos.3 and 4 in aforesaid appeal.
15. So far as the award amount is concerned, it shall be apportioned in the ratio of 50% to each of the minor children of deceased. The same shall be deposited in any Nationalized Bank initially for five years and to be renewed till they attain the age of 21 years. However, the appellants No.1 & 2 herein who are grand parents of minor children, appellants No.3 & 4 shall be entitled to receive the interest on said deposits for their upkeep and education.
Sd/- JUDGE Sd/- JUDGE CA