IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.2655 OF 2012 (MV) C/W M.F.A.NO.6807 OF 2013 IN M.F.A. NO.2655/2012 BETWEEN:
1. MR.NARASIMHA REDDY, S/O MR.LAKSHMANA REDDY, AGED ABOUT 34 YEARS, 2. MRS. SUJATHA, W/O MR.NARASIMHA REDDY, AGED ABOUT 27 YEARS, BOTH ARE RESIDING AT NO.18/5, 1ST FLOOR, (MUNINARASAPPA), II CROSS, 4TH MAIN ROAD, GOVINDARAJA NAGAR, BANGALORE – 560 040.
(BY SRI. L. MALLESH, ADVOCATE) ... APPELLANTS AND:
1. THE MANAGING DIRECTOR, CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LTD., “DARE HOUSE’, 2ND FLOOR, NSC BOSE ROAD, CHENNAI – 600 001.
2. MR. RAMALINGA REDDY, S/O MR.EARAPPA, MAJOR, R/AT LINGADHAHALLI, PAVAGADA TALUK, TUMKUR DISTRICT.
(BY SRI O.MAHESH, ADVOCATE FOR R1;
... RESPONDENTS SRI K.RAJASHEKARA, ADVOCATE FOR SRI L.HARISHKUMAR, ADVOCATE FOR R2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.12.2011 PASSED IN MVC NO.1789/2009 ON THE FILE OF THE IV ADDITIONAL JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A. NO.6807/2013 BETWEEN:
RAMALINGA REDDY, AGE: MAJOR, S/O EARAPPA, R/AT LINGADHAHALLI, PAVAGADA TALUK, TUMKUR DISTRICT.
... APPELLANT (BY SRI. K.RAJASHEKARA, ADVOCATE FOR SRI. L.HARISHKUMAR, ADVOCATE) AND:
1. NARASIMHA REDDY, S/O LAKSHMANA REDDY, AGED ABOUT 36 YEARS, 2. SUJATHA, W/O NARASIMHA REDDY, AGED ABOUT 29 YEARS, BOTH ARE RESIDING AT NO.18/5, 1ST FLOOR, II CROSS, 4TH MAIN, GOVINDARAJANAGAR, BANGALORE – 560 040.
3. THE MANAGING DIRECTOR, CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LTD., “DARE HOUSE’, 2ND FLOOR, NSC BOSE ROAD, CHENNAI – 600 001.
... RESPONDENTS (BY SRI L. MALLESH, ADVOCATE FOR R1 AND R2 SRI O.MAHESH, ADVOCATE FOR R3) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.12.2011 PASSED IN MVC NO.1789/2009 ON THE FILE OF THE IV ADDITIONAL JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, BANGALORE, AWARDING COMPENSATION OF RS.1,84,500/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL PAYMENT.
THESE MFAs COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The claimants and owner-respondent No.2 in MVC.No.1789/2009 are before this Court, assailing the judgment and award dated 01-12-2011 on the file of the IV Additional Judge, Member, MACT, Court of Small Causes, Bangalore.
2. MFA.No.2655/2012 is filed by the claimants, praying for enhancement of compensation, whereas MFA.No.6807/2013 is filed by the owner of the offending vehicle, aggrieved by saddling of liability on him and praying to shift the liability on insurer.
3. The claimants are parents of the deceased. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the death of one minor Lakshmi Narasimha Reddy @ Chinna. It is stated that on 19-11-2008, when the deceased was playing in front of his house, luggage auto bearing No.KA-16-A-4702 owned by respondent No.2 came in a high speed with rash and negligent manner and dashed to the deceased. As a result, the minor child suffered multiple injuries and succumbed to the injures.
4. On issuance of notice, respondent Nos.1 & 2 appeared before the Tribunal and filed their separate statement of objections. Respondent No.1-insurer in its statement admitted the issuance of policy in respect of offending vehicle but denied other averments of the claim petition. Further it is stated that the driver of the offending vehicle had no valid and effective driving license as on the date of accident. Respondent No.2-owner in his statement stated that the vehicle is insured with respondent No.1 and denied the involvement of the vehicle in the accident and also denied that the vehicle was driven in a rash and negligent manner.
5. Claimant No.1-father of the deceased examined himself as PW-1 and marked documents Exs.P-1 to P-11. On behalf of the respondents, RW-1 was examined and document Ex.R-1 was marked.
6. The Tribunal on appreciating the material on record, awarded total compensation of Rs.1,84,500/- with interest at the rate of 6% per annum from the date of petition till its realization and saddled the liability on respondent No.2- owner, holding that the driver of the offending vehicle had no valid and effective driving license as on the date of accident.
Amount in (Rs.) 1. Loss of dependency 1,50,000 2. Loss of estate 2,500 3. Funeral expenses 2,000 4. Non-pecuniary head taking note of the age of the deceased boy 30,000 Total 1,84,500 The claimants not being satisfied with the quantum of compensation awarded by the Tribunal are before this Court, praying for enhancement of compensation, whereas the owner is in appeal, aggrieved by saddling of liability on him, praying for shifting the liability to respondent No.1- insurer.
7. Heard the learned counsel for the claimants and learned counsel for the owner as well as learned counsel for the insurer. Perused the material on record including the lower court records.
8. Learned counsel for the owner would submit that the Tribunal committed an error in saddling the liability on the owner. It is his further submission that the driver of the Goods Auto possessed license to drive LMV-Non Transport vehicle. Ex.P-12 is the extract of the driving license, which would establish that the driver of the offending vehicle had license to drive LMV-Non Transport vehicle. Possessing license to drive LMV-Non Transport vehicle is sufficient to drive LMV-Transport vehicle as per the decision of the Hon’ble Apex Court in the case of MUKUND DEWANGAN Vs. ORIENTAL INSURANCE CO. LTD., reported in (2017) 14 SCC 663. Thus, he prays for allowing the owner’s appeal.
9. Learned counsel for the claimants would submit that the compensation awarded by the Tribunal is on the lower side. The deceased was aged 3 years as on the date of accident and the parents have lost their lovely son and his love and affection. Thus, he prays for enhancement of compensation.
10. Learned counsel for the insurer submits that the driver of the Goods Auto/luggage auto had no valid and effective driving license as on the date of accident and the license possessed by the driver is LMV-NT, which would not be sufficient to drive LMV-Transport vehicle. Thus, prays to dismiss the appeal filed by the owner.
11. Having heard the learned counsels for the parties and on perusal of the material on record including the lower court records, the following points would arise for consideration in the facts and circumstances of the case.
1) Whether the Tribunal is justified in saddling the liability on the owner of the offending vehicle?
2) Whether the claimants would be entitled for the enhanced compensation?
Answer to the above points would be in negative and affirmative respectively for the following reasons.
12. The accident occurred on 19-11-2008 involving luggage auto bearing No.KA-16-A-4702 and the death of minor Lakshmi Narasimha Reddy @ Chinna, are not in dispute in this appeal. The owner in is appeal questioning the saddling of liability on him, whereas the claimants are in appeal, seeking enhancement of compensation. Ex.P-12 is the extract of the driving license, which would indicate that the driver of the offending vehicle had license to drive LMV-Non Transport vehicle. The Hon’ble Apex Court in the case of MUKUND DEWANGAN Vs. ORIENTAL INSURANCE CO. LTD., reported in (2017) 14 SCC 663, has made it clear that a person who possesses license to drive LMV-NT could also drive LMV-Transport vehicle of the same category. In that view of the matter, in the instant case, when the driver of the offending vehicle possessed LMV license to drive Non-Transport vehicle, could also drive LMV-Transport vehicle of the same category.
Therefore, saddling of liability on the owner is erroneous. Accordingly, the liability saddled on the owner is set aside and the liability is shifted to respondent No.1-insurer.
13. The claimants state that the quantum of compensation awarded by the Tribunal is on the lower side. The Tribunal has taken notional income of the deceased at Rs.15,000/- per month and deducted amount towards his notional personal expenses and arrived at Rs.1,50,000/- compensation on the head of ‘Loss of dependency’. The deduction of 1/3rd for a minor of 3 years age would not arise. The Tribunal ought not to have deducted 1/3rd towards notional personal expenses since the compensation that would be accommodated would not exactly compensate for loss of dependency but it is for loss of life. It would be in the nature of non-pecuniary damages. The parents who have lost son aged about 3 years and any amount of compensation would not compensate the death of minor boy. The parents will not get back love and affection of their minor child. The compensation awarded on the head of ‘Loss of estate’ and ‘Funeral expenses’ are also on the lower side. Thus, the claimants would be entitled for a sum of Rs.25,000/- on the head of ‘Loss of estate’ and ‘Funeral expenses’.
Amount in (Rs.)
14. Thus, the claimants would be entitled for enhanced modified compensation of Rs.2,15,000/- as against Rs.1,84,500/- with interest at the rate of 6% per annum from the date of petition till its realization as awarded by the Tribunal.
Accordingly, the appeal filed by the claimants is allowed to the above extent. The appeal filed by the owner i.e., MFA.No.6807/2013 is allowed and liability is shifted from respondent No.2-owner to respondent No.1- insurer.
The judgment and award passed by the Tribunal is modified to the above extent. The apportionment and deposit would be as ordered by the Tribunal.
The amount in deposit in MFA.No.6807/2013 be refunded to the appellant.
Sd/- JUDGE SMJ