IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.7132/2014 C/W M.F.A. CROB.3/2015 [MV] M.F.A.No.7132/2014 BETWEEN:
THE ORIENTAL INSURANCE CO., LTD., DO.VII, NO.1, SHANKAR HOUSE 3RD FLOOR, RMV EXTENSION MEKHRI CIRCLE BANGALORE-560080.
REP. BY REGIONAL OFFICE NO.44/45, LEO SHOPPING COMPLEX RESIDENCY ROAD BANGALORE-560025 BY ITS REGIONAL MANAGER.
(BY SRI.RAVISHANKAR C R, ADV.) AND:
1. SMT. RUKMINI BAI AGED ABOUT 43 YEARS W/O LATE LAKSHMAN NAYAK 2. SRI RAGHU NAYAK AGED ABOUT 24 YEARS S/O LATE LAKSHMAN NAYAK ...APPELLANT 3. SRI VIJAY KUMAR AGED ABOUT 19 YEARS S/O LATE LAKSHMAN NAYAK ALL ARE R/A CHIKKATHOREPALYA KASABA HOBLI, MAGADI TALUK RAMANAGARAM DISTRICT-562120.
4. SRI SHIVANNA S/O SRI NAGARAJU AGED:MAJOR R/AT NO.3, 6TH CROSS IPSC MAIN ROAD NAGARBHAVI MAIN ROAD BANGALORE-560072.
…RESPONDENTS (BY SRI.M V MAHESWARAPPA, ADV. FOR R1 TO R3 R4 – SERVED & UNREPRESENTED) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.07.2014 PASSED IN MVC NO.1549/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE, ADDITIONAL MACT-15, KUNIGAL, AWARDING COMPENSATION OF RS.6,05,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
M.F.A. CROB.3/2015 BETWEEN:
1. SMT. RUKMINI BAI W/O LATE LAKSHMANA NAYAK AGED ABOUT 45 YEARS 2. RAGHUNAYAK S/O LATE LAKSHMANA NAYAK AGED ABOUT 26 YEARS 3. VIJAYAKUMAR S/O LATE LAKSHMANA NAYAK AGED ABOUT 19 YEARS ALL ARE RESIDING AT CHIKKATHOREPALYA KASABA HOBLI, MAGADI TALUK RAMANAGARA DISTRICT- 562159.
...CROSS OBJECTORS (BY SRI.M V MAHESWARAPPA, ADV. FOR CROSS-OBJECTORS) AND:
1. SHIVANNA S/O SRI NAGARAJA MAJOR IN AGE R/AT NO.3, 6TH CROSS IPSC MAIN ROAD NAGARABHAVI MAIN ROAD BENGALURU 560072.
2. THE BRANCH MANAGER M/S. ORIENTAL INSURANCE CO.LTD., D.O.VII, NO.1, SHANKAR HOUSE 3RD FLOOR, RMV EXTENSION MAKERI CIRCLE BENGALURU- 560080 REP. BY ITS REGIONAL OFFICER NO.44/45, LEO SHOPPING COMPLEX RESIDENCY ROAD BENGALURU -560025.
…RESPONDENTS (BY SRI.C R RAVISHANKAR, ADV. FOR R2 R1- SERVED UNREPRESENTED) THIS M.F.A.CROB IN M.F.A.NO.7132/2014 FILED U/O XLI RULE 22 CPC R/W SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.07.2014 PASSED ON MVC NO.1549/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT-15, KUNIGAL, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
M.F.A. AND M.F.A.CROB COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The insurer and claimants are in appeal and cross-objection respectively against the judgment and award dated 28.07.2014 in MVC No.1549/2009 on the file of the Senior Civil Judge and Additional Motor Accident Claims Tribunal, Kunigal (hereinafter referred to as 'the Tribunal' for short).
2. The claimants are wife and children of deceased Lakshmana Nayak. It is stated that on 30.09.2009, when the deceased was proceeding as a cleaner in the lorry bearing registration No.KA-16/6266, while tying the rope on the dry grass loaded in the lorry, the driver of the lorry suddenly moved the vehicle without any signal, due to which, the deceased fell down from the lorry and sustained fatal injuries. Immediately he was shifted to Government Hospital, Magadi and before reaching the hospital, the deceased succumbed to the injuries. It is stated that the deceased was working as a cleaner and getting salary of Rs.3,000/- p.m., and bata of Rs.150/- per day.
3. On issuance of notice, both the respondents appeared before the tribunal, but only second respondent/insurer filed written statement denying the claim petition averments. Further, it is stated that the driver of the offending vehicle was driving the vehicle slowly and cautiously, but the accident occurred due to the negligence of the deceased himself who fell from the lorry on his own. The deceased also contributed his negligence for the occurrence of the accident. It is further stated that the vehicle in which, the deceased was traveling was a goods carrying commercial vehicle and the driver of the said lorry was not having valid and effective driving license as on the date of accident.
Further, it is also contended that the deceased was traveling as a passenger and not as a cleaner.
4. Claimant No.1/wife of the deceased got examined herself as P.W.1 and also examined one more witness as P.W.2 apart from marking the documents as Ex.P1 to Ex.P13. The second respondent/insurer examined one witness as R.W.1 and marked 6 documents as Ex.R1 to Ex.R6.
5. The Tribunal, on appreciating the material on record awarded total compensation of Rs.6,05,000/- with interest at the rate of 6% p.a., from the date of petition till realization on the following heads:
1. Loss of dependency :: Rs.5,40,000/-
2. Loss of consortium :: Rs. 25,000/-
3. Loss of love and affection :: Rs. 20,000/-
4. Transportation of dead body, funeral expenses :: Rs. 10,000/-
5. Towards loss of expectancy in life :: Rs. 10,000/-
Total Rs.6,05,000/-
While awarding the above compensation, the Tribunal assessed the income of the deceased at Rs.4,500/- p.m., and saddled the liability on the second respondent/ insurer. The tribunal has taken the age of the deceased as 40 years and applied the multiplier of 15. The Insurer aggrieved by saddling entire liability on it, is before this court in appeal and the claimants are in cross-objection praying for enhancement of compensation.
6. Heard the learned counsel for the appellant/ insurer and learned counsel for the cross-objectors/ claimants. Perused the lower court records.
7. Learned counsel for the insurer attacked the judgment and award of the Tribunal on two grounds. One is that the driver of the offending lorry had no driving license to drive particular type of vehicle as on the date of accident and the other ground is that the deceased also contributed his negligence to the occurrence of the accident. It is his submission that the driver of the offending lorry had only LMV license to drive non-transport vehicle and he had no license to drive particular type of vehicle i.e., medium goods vehicle (MGV for short). It is also his submission that Ex.R4/’B’ register extract would establish that the vehicle involved in the accident was MGV. Therefore, the Tribunal ought to have held that the driver of the offending lorry had no license to drive particular type of vehicle as on the date of accident. He further submits that the Tribunal committed an error in saddling the liability on the insurer without noticing the fact that the lorry involved in the accident is MGV which would not fall within the type of LMV.
8. Learned counsel for the insurer further submits that the deceased contributed his negligence for the occurrence of the accident. It is his submission that the deceased who was tying rope to the dry grass fell on his own and not due to moving of the vehicle by the driver of the lorry and died due to his own negligence. Hence, the claimants would not be entitled for any compensation. Thus, prays for allowing the appeal.
9. Per contra, learned counsel for the claimants would submit that the tribunal has rightly saddled the liability on the insurer. It is his submission that it could be seen from Ex.R4/’B’ register extract, the unladen weight of the vehicle is 2780 Kgs., which is below 7500 Kgs. It means, the said vehicle is light motor vehicle. He relies upon Section 2(21) of the Act to contend that it is a LMV, since the unladen weight of the vehicle is less than 7500 Kgs. Learned counsel submitted that the accident occurred solely due to the negligence of the driver of the lorry, who suddenly moved the lorry when the deceased was tying the rope on the top of the lorry. Further, he submits that the tribunal has failed to award any compensation on the head of future prospects, which the claimants would be entitled for adding 40% of the assessed income towards future prospects, since the deceased was aged 40 years. The Hon'ble Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED v/s PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680 held that the claimants would be entitled for adding 40% of the assessed income towards future prospects. Thus, prays for allowing the cross-objection.
10. Having heard the learned counsel for the parties and on perusal of the lower court records, the following points would arise for consideration:
(i) Whether the tribunal is justified in saddling the liability on the insurer?
(ii) Whether the claimants would be entitled for enhanced compensation and for compensation on the head of future prospects?
11. Answer to the above points would be in the affirmative for the following reasons:
The accident occurred on 30.09.2009 involving the lorry bearing registration No.KA-16/6266 and the accidental death of Lakshmana Nayak is not in dispute in this appeal. The Insurer is in appeal challenging the saddling of liability on the ground that the driver had no valid and effective driving license as on the date of accident and on the ground that the deceased had also contributed his negligence to the occurrence of the accident. Learned counsel for the insurer submitted that the driver of the lorry was possessing only LMV license as on the date of accident. It is his submission that Ex.R5, driving license extract of the driver of the offending lorry establishes that he was possessing the license to drive LMV.
12. Section 2(21) defines Light Motor Vehicles which reads as follows:
“Light Motor Vehicle” means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road roller the unladen weight of any of which, does not exceed 7,500 Kilograms.”
The above definition makes it clear that wherever a transport vehicle or Omni bus or motor car or tractor or road roller, the unladen weight of which is less than 7500 Kgs, it shall be light motor vehicle.
13. Section 2(23) defines Medium Goods Vehicle which reads as follows:
“Medium Goods Vehicle” means any goods carriage other than a light motor vehicle or a heavy goods vehicle.”
Medium Goods Vehicle means any goods carriage vehicle other than LMV or Heavy Goods Vehicle. Heavy Goods vehicle is defined under Section 2(16) which reads as follows:
“Heavy Goods Vehicle” means any goods carriage the gross vehicle weight of which, or a tractor or a road-roller the unladen weight of either of which, exceeds 12,000 kilograms.”
14. Goods carriage vehicle which exceeds unladen weight of 12,000 Kgs., are heavy goods vehicles. In the present case, ‘B’ register extract produced at Ex.R4 would demonstrate that the vehicle involved in the accident is medium goods vehicle of which unladen weight is 2,780 Kgs., which means, it is a light motor vehicle. The driver of the mini lorry had driving license to drive LMV. A person who possesses LMV (non- transport) license could also drive LMV (transport) vehicle of the same category, in view of the decision of Hon'ble Apex Court in the case of MUKUND DEWANGAN v/s ORIENTAL INSURANCE COMPANY LIMITED reported in (2017) 14 SCC 663. Hence, I am of the view that the Tribunal has rightly saddled the liability on the appellant/insurer, which does not warrant interference by this Court.
15. Learned counsel further contended that the deceased also contributed his negligence towards occurrence of the accident. It is his submission that while the deceased was trying to tie the rope to the dry grass on the top of the lorry, he fell down and sustained fatal injuries. It is the case of the claimants that when the deceased had climbed the lorry to tie the rope to the dry grass, the driver of the lorry moved the vehicle without any signal. As a result, the deceased fell down and sustained injuries and subsequently succumbed to the injuries. The insurer has examined R.W.1-Assistant manager of the Insurance Company, but neither an independent witness nor any other person is examined in support of their contention. On the other hand P.W.1 in her evidence has stated that while her husband was working as a cleaner in the offending lorry and trying to tie the rope to the dry grass, the driver moved the lorry suddenly, due to which, the deceased fell down and succumbed to the injuries.
16. P.W.2 is the eye witness to the accident who stated that the deceased after loading the dry grass and while tying rope to the dry grass, driver of the lorry moved the vehicle, due to which, the deceased fell down and sustained injuries to the head and other parts of the body and succumbed to the injuries. The insurer has cross-examined P.W.2 and nothing has been elicited in support of their contention. Thus, the said contention of the insurer is liable to the rejected and accordingly rejected.
17. The claimants in their cross-objection stated that the tribunal has failed to award any compensation on the head future prospects. The deceased was aged 40 years as on the date of accident. The Hon'ble Apex Court in PRANAY SETHI case (supra) has held that wherever the deceased was aged below 40 years, the claimants would be entitled for adding 40% of the assessed income towards future prospects. In the instant case, as the deceased was aged 40 years, the claimants would be entitled for adding 40% of the assessed income towards future prospects. The claimants would be entitled to a sum of Rs.70,000/- on conventional heads. The 3rd claimant is a minor son of the deceased, who lost love and affection and care and guidance of his father at his young age. As per the decision of the Hon'ble Apex Court reported in 2018 ACJ 2782 in the case of MAGMA GENERAL INSURANCAE COMPANY LIMITED v/s NANU RAM AND OTHERS 3rd claimant would be entitled for compensation under the head parental consortium. Hence, the claimants would be entitled for a sum of Rs.40,000/- towards parental consortium. Thus, the claimants would be entitled for the following modified compensation:
1. Loss of dependency including future prospects (4500+40% = 6300-1200 =4200) 4200x12x15 :: Rs.7,56,000/-
2. Conventional heads :: Rs. 70,000/-
3. Parental consortium :: Rs. 40,000/-
Total Rs.8,66,000/-
Thus the claimants would be entitled to total compensation of Rs.8,66,000/- with interest at the rate of 6% p.a., from the date of petition till realization, as against Rs.6,05,000/- awarded by the Tribunal.
18. Accordingly, the appeal filed by the insurer is dismissed and the cross-objection filed by the claimants is allowed in part. The judgment and award dated 28.07.2014 in MVC No.1549/2009 on the file of the Senior Civil Judge and Additional Motor Accident Claims Tribunal, Kunigal is modified to the above extent. The claimants are entitled to enhanced compensation of Rs.2,61,000/-.
The apportionment and deposit would be in the ratio as ordered by the Tribunal.
Sd/-
JUDGE mpk/-* CT:bms