IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF APRIL 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL No.10442/2013 (MV) BETWEEN:
1. SMT. MUDDAGANGAMMA W/O. LATE KADIRAPPA AGED ABOUT 42 YEARS 2. SRI. NAGESH S/O. LATE KADIRAPPA AGED ABOUT 22 YEARS 3. MS. ALUVELU MANGAMMA D/O. LATE KADIRAPPA AGED ABOUT 20 YEARS PRESENTLY AT NO. 459, 11TH MAIN, M.S. RAMAYYA ENCLAVE HESARAGHATTA MAIN ROAD PEENYA 8TH MAIN BANGALORE – 560 073. … APPELLANTS (BY SRI. RAMESH K.R., ADVOCATE.) AND:
1. SRI. NARASIMHAIAH S/O. LATE DODDAYYA NO. 222, SHRAVANDANAHALLI MADHUGIRI TUMKUR DISTRICT – 572 103.
2. THE REGIONAL MANAGER M/S. ORIENTAL INSURANCE CO. LTD, NO. 44/45, LEO SHOPPING COMPLEX RESIDENCY ROAD BANGALORE – 560 017. …RESPONDENTS (SRI. K.S. LAKSHMINARASAPPA, ADVOCATE FOR SRI. B.C. SEETHARAMA RAO, ADVOCATE FOR R-2, R-1 SERVED.) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF M.V. ACT AGAINST THE JUDGMENT AND AWARD DATED 09.10.2013 PASSED IN MVC NO.6976/2011 ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE & XXXIV ACMM, MEMBER, MACT-7, COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR HEARING, THIS DAY THE COURT MADE THE FOLLOWING:
JUDGMENT Claimants are in appeal seeking enhancement of compensation awarded by the Court of the IX Addl. Small Causes and Addl. MACT, Bengaluru, in M.V.C.No. 6976/2011, dated 09/10/2013, wherein the Tribunal has awarded compensation of Rs.5,23,000/- with interest at 6 % p.a. from the date of petition till payment.
2. The facts of the case are that on 07/02/2010 the deceased was traveling in an autorickshaw bearing registration No.KA-06/B-3190. When the said aurorickshaw was proceeding towards Kudure Byalya Rampur Road, near Arodi Cross, at about 3.30 p.m, it met with an accident, due to the rash and negligent driving by the driver of another autorickshaw bearing Regn.No.KA-06/B-9974. In the said accident, the deceased suffered grievous injuries and he was immediately shifted to General Hospital, Gowribidanur and during the transit, he succumbed to the injuries.
3. Claimants are the wife and children of deceased Kadirappa. They filed a claim petition before the Claims Tribunal seeking compensation of Rs.15,00,000/-. On behalf of the claimants two witnesses were examined and Ex.P.1 to Ex.P.10 were marked in evidence. Claim petition was resisted by the insurance company. On behalf of the respondents R.W.1 to R.W.3 were examined and Ex.R.1 and Ex.R.6 were got marked.
The Tribunal considering the oral and documentary evidence, awarded a total compensation of Rs.5,23,000/- with interest at 6 % p.a. from the date of petition till payment. The Tribunal after holding that there is a breach of conditions namely, the vehicle in question was plying beyond the permitted limit as well as the driver of the said vehicle was not holding a valid licence, exonerated the insurer from paying compensation and thereby fastened the liability on the owner of the vehicle and directed him to deposit the compensation amount.
4. Learned counsel appearing for the appellants contended that the total compensation awarded by the Tribunal is on the lower side, since the Tribunal has not properly considered the avocation of the deceased and taken a meager income of Rs.4,500/- as the monthly income of the deceased. He further submits that the Tribunal was not justified in exonerating the insurer from paying the compensation on the ground that the vehicle was not having a valid permit and that the driver of the said vehicle was not holding a valid and effective licence. He placed reliance on the decision of the Hon’ble Supreme Court in the case of Mukund Dewangan v. Oriental Insurance Company Limited, AIR 2017 SC 3668 and the decision in the case of Amrit Paul Singh and Anr. V. TATA AIG General Insurance Co. Ltd and Ors, AIR 2018 SC 2662.
5. The accident in question involving the autorickshaws bearing registration Nos. KA-6-B-3190 and KA-06/B-9974, which were insured with the respondent No.2 is not in dispute. As per P.M. report –Ex.P.5, the deceased was aged 50 years at the time of accident. According to the claimants, the deceased was a mason earning a sum of Rs.7,500/- per month. However, to substantiate the income, there is no acceptable evidence placed on record. The Tribunal has taken the income at Rs.4,500/- per month. However, considering the avocation of the deceased as well as the year of the accident, I deem it proper to take the income of the deceased at Rs.5,500/- per month. Since the deceased was 50 years, 25% of the income has to be added towards future prospects, 1/3 of the income is deducted towards his personal expenses. The proper multiplier to be adopted is ‘13’. Therefore, the claimant is entitled for a compensation of Rs.7,15,104/- towards loss of dependency as against a sum of Rs.4,68,000/- awarded by the Tribunal. A sum of Rs.70,000/- is awarded under the conventional heads such as loss of estate, loss of consortium, funeral and obsequies etc. Thus, the claimants are entitled for a total compensation of Rs.7,85,104/-which is rounded off to Rs.7,85,000/-.
6. The Tribunal has observed that the driver of the offending vehicle was having a licence to drive the LMV, but not having licence to drive the transport vehicle and therefore he was not authorised to drive the transport vehicle which was involved in the accident. It is also observed that there was no endorsement made on the said driving licence. The driving licence is marked as Ex.R.6. The same goes to show that the driver had licence to drive LMV(NT). It is not the case of the respondent-insurance company that the gross vehicle weight of the offending vehicle was more than 7500 k.g. In view of the decision of the Hon’ble Supreme Court in the case of Mukund Dewangan v. Oriental Insurance Company Limited, (supra) no separate endorsement is required to drive a transport vehicle of that category. Hence, the contention of the learned counsel for the insurer cannot be accepted.
7. The Tribunal has also observed that the accident took place beyond the permitted limit and the vehicle in question was not having the permit to ply the said vehicle beyond the permitted limit and therefore there is violation of permit conditions. The Tribunal has exonerated the insurance company from paying compensation holding that the owner of the vehicle is liable to pay the compensation. However, in view of the decision of the apex Court in the case of Amruth Paul Singh (supra), the insurer is required to pay the compensation amount to the claimants with interest in the first instance and the insurer shall be entitled to recover the same from the owner of the vehicle.
8. Hence, I pass the following order;
i)The appeal is allowed in part.
ii)The judgment and award dated 09/10/2013 in M.V.C.No. 6976/2011 on the file of the Court of the IX Addl. Small Causes and Addl. MACT, Bengaluru, is hereby modified.
iii)The claimants/appellants are entitled for total compensation of Rs.7,85,000/- as against a sum of Rs.5,23,000/- with interest at 6 % p.a. from the date of petition till the date of payment awarded by the Tribunal.
iv)Respondent Nos.1 and 2 are jointly and severally liable to pay the compensation.
v)The insurance company shall deposit the above said compensation within a period of four weeks from the date of receipt of a copy of the judgment with liberty to recover the same from the insured.
vi)Apportionment and disbursement of the award shall be in terms of the order passed by the Tribunal.
Sd/- JUDGE Msu