IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A.No.4296/2009 C/W M.F.A.No.4297/2009, M.F.A. CROB No.207/2009, M.F.A.CROB No.208/2009 (MV) IN M.F.A.No.4296/2009 BETWEEN:
THE ORIENTAL INSURANCE CO., LTD., MANGALORE BRANCH, THROUGH ITS REGIONAL OFFICE LEO SHOPPING COMPLEX # 44/45, RESIDENCY ROAD BANGALORE – 560 025.
REP. BY ITS DEPUTY MANAGER SMT.SUDHA GANESH.
…APPELLANT (BY SRI LAKSHMINARASAPPA, FOR SRI B C SEETHARAMA RAO, ADVOCATE) AND:
1. SRI ANANTHA NAYAK AGED ABOUT 67 YEARS S/O LATE NARAYANA.
2. SMT. RATHNAVATHI AGED ABOUT 62 YEARS W/O ANANTHA NAYAK 3. SRI GOPALAKRISHNA AGED ABOUT 32 YEARS S/O ANANTHA NAYAK.
4. SRI RAMAKRISHNA K AGED ABOUT 26 YEARS S/O ANANTHA NAYAK.
ALL ARE RESIDENTS OF KUDTHADKA HOUSE KATUKUKKE VILLAGE & POST KASARGOD TALUK.
5. SRI VALLI KUTINHA, MAJOR S/O LATE ALBERT KUTINHA BLOCK No.6, SITE No.127 KRISHNAPURA, SURATHKAL MANGALORE (D.K) (OWNER OF LORRY No.KA.13/319) ...RESPONDENTS (BY SRI N S BHAT, ADVOCATE FOR R1, 3 & 4 SRI C RAVISHANKAR SHASTRY, ADVOCATE FOR R2 SRI B V KRISHNA, ADVOCATE FOR R5) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:06.04.2009 PASSED IN MVC No.670/2007 ON THE FILE OF I ADDITIONAL DISTRICT JUDGE, DAKSHINA KANNADA, MANGALORE, AWARDING A COMPENSATION OF Rs.2,90,400/- WITH INTEREST @ 6% P.A.FROM THE DATE OF PETITION TILL REALISATION AND TO SET ASIDE THE SAME.
IN M.F.A.No.4297/2009 BETWEEN:
THE ORIENTAL INSURANCE CO., LTD., MANGALORE BRANCH, THROUGH ITS REGIONAL OFFICE LEO SHOPPING COMPLEX # 44/45, RESIDENCY ROAD BANGALORE – 560 025.
REP. BY ITS DEPUTY MANAGER SMT.SUDHA GANESH.
…APPELLANT (BY SRI LAKSHMINARASAPPA, FOR SRI B C SEETHARAMA RAO, ADVOCATE) AND:
1. SRI BALAKRISHNA BHAT AGED ABOUT 34 YEARS S/O LATE SUBRAYA BHAT RESIDENT OF MOOGERU HOUSE KATUKUKKE VILLAGE KASARGOD TALUK (KERALA) 2. SRI UMESH NAYAK S/O LATE VASUDEVA NAYAK AGED ABOUT 62 YEARS RESIDING AT NATTI PAROLI UPPINANGADY, PUTTUR TALUK DAKSHINA KANNADA DISTRICT.
3. SRI VALLI KUTINHA, MAJOR S/O LATE ALBERT KUTINHA BLOCK No.6, SITE No.127 KRISHNAPURA, SURATHKAL MANGALORE (D.K) (OWNER OF LORRY No.KA.13/319) ...RESPONDENTS (BY SRI N S BHAT, ADVOCATE FOR R1 & 2 SRI B V KRISHNA, ADVOCATE FOR R3) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:06.04.2009 PASSED IN MVC No.671/2007 ON THE FILE OF I ADDITIONAL DISTRICT JUDGE, DAKSHINA KANNADA, MANGALORE, AWARDING A COMPENSATION OF Rs.3,56,000/- WITH INTEREST @ 6% P.A.FROM THE DATE OF PETITION TILL REALISATION AND TO SET ASIDE THE SAME.
IN M.F.A.CROB No.207/2009 BETWEEN:
1. ANANTHA NAYAK S/O LATE NARAYANA AGED ABOUT 69 YEARS 2. SMT. RATHNAVATHI W/O ANANTHA NAYAK AGED ABOUT 62 YEARS 3. GOPALAKRISHNA S/O ANANTHA NAYAK. AGED ABOUT 32 YEARS 4. RAMAKRISHNA K S/O ANANTHA NAYAK. AGED ABOUT 26 YEARS ALL ARE RESIDING AT KUDTHADKA HOUSE KATUKUKKE VILLAGE & POST KASARGOD TALUK.
…CROSS OBJECTORS (BY SRI N S BHAT, ADVOCATE) AND:
1. VALLI KUTINHA, S/O LATE ALBERT KUTINHA R/O. BLOCK No.6, SITE No.127 KRISHNAPURA, SURATHKAL MANGALORE (D.K).
2. THE ORIENTAL INSURANCE CO., LTD., KULYADY BUILDING, K.S.R.ROAD HAMPANKATTA, MANGALORE, D.K. REPRESENTED BY ITS MANAGER.
…RESPONDENTS (BY SRI LAKSHMINARASAPPA, FOR SRI B C SEETHARAMA RAO, ADVOCATE FOR R2) THIS MFA CROB. IN MFA No.4296/2009 FILED UNDER ORDER 41 RULE 22 OF CPC R/W SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 06.04.2009 PASSED IN MVC No.670/2007 ON THE FILE OF I ADDITIONAL DISTRICT JUDGE, MEMBER, MACT, DAKSHINA KANNADA, MANGALORE, AWARDING A COMPENSATION OF Rs.2,90,400/- WITH INTEREST AT 6% P.A.FROM THE DATE OF PETITION TILL REALISATION.
IN M.F.A.CROB No.208/2009 BETWEEN:
1. BALAKRISHNA BHAT S/O LATE SUBRAYA BHAT AGED ABOUT 34 YEARS R/AT MUGERU HOUSE KATUKUKKE VILLAGE KASARGOD TALUK.
2. UMESH NAYAK S/O LATE VASUDEVA NAYAK AGED ABOUT 62 YEARS R/AT NATTI PAROLI UPPINANGADY, PUTTUR TALUK DAKSHINA KANNADA DISTRICT.
…CROSS OBJECTORS (BY SRI N S BHAT, ADVOCATE) AND:
1. VALLI KUTINHA S/O LATE ALBERT KUTINHA R/O BLOCK No.6, SITE No.127 KRISHNAPURA, SURATHKAL MANGALORE, D.K.
2. THE ORIENTAL INSURANCE CO., LTD., KULYADY BUILDING, K.S.R.ROAD HAMPANKATTA, MANGALORE, D.K. REPRESENTED BY ITS MANAGER.
…RESPONDENTS (BY SRI LAKSHMINARASAPPA, FOR SRI B C SEETHARAMA RAO, ADVOCATE FOR R2) THIS MFA CROB. IN MFA No.4297/2009 IS FILED UNDER ORDER 41 RULE 22 OF CPC R/W SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 06.04.2009 PASSED IN MVC No.671/2007 ON THE FILE OF I ADDITIONAL DISTRICT JUDGE, MACT, DAKSHINA KANNADA, MANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFAs AND MFA CROBs COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT These are the two appeals and two cross objections directed against the common judgment and award dated 06.04.2009 passed in MVC No.670/2007 and MVC No.671/2007 on the file of I Additional District Judge and MACT, Dakshina Kannada, Mangalore.
2. Against the said judgment and award, the Insurance Company as well as the claimants in both the petitions have preferred appeals and cross objections as under:
M.F.A.No.4296/2009 and MFA CROB.207/2009 are filed by the Insurance Company as well as by the claimants against the judgment and award passed in MVC No.670/2007. M.F.A.No.4297/2009 and MFA CROB 208/2009 are filed by the Insurance Company as well as by the claimants against the judgment and award passed in MVC No.671/2007.
3. In order to avoid confusion and overlappings, parties hereinafter are referred to with reference to their rankings as it stood before the Tribunal.
4. The proceedings were initiated by the dependants of victims Radhakrishna and Sumana who died in a road traffic accident that occurred on 21.2.2007 at about 4.00 p.m., at Mithur, Bantwala Taluk, when the speeding lorry bearing Registration No.KA.13.319 came from Mani side in a rash and negligent manner and dashed against the motor cycle bearing registration No.KA.19.R.1718 in which the victims were proceeding and caused accident. Because of which, both the rider and pillion rider sustained multiple injuries and Sumana succumbed to them at the spot and Radhakrishna died at the hospital. MVC No.670/2007 came to be preferred by the dependants of Radhakrishna who are the parents and brothers and MVC No.671/2007 is preferred by the husband and father of victim Sumana.
5. The respondents resisted the claim petitions by filing their written statements denying all the allegations made.
6. The learned Member was accommodated with the oral evidence of PWs 1 to 4 and documentary evidence of Exs.P1 to P13 on behalf of claimants. On behalf of respondents, the driver of the vehicle was examined as RW1 and two witnesses as RWs- 2 and 3 and documentary evidence of Exs.R1 to R2.
7. The accident is not disputed nor the death of either Radhakrishna or Sumana. The relationship between deceased Radhakrishna and the claimants in MVC No.670/2017 nor of Sumana and claimants in MVC No.670/2007 is disputed.
8. The learned Member after hearing the parties considered the case on the basis of the oral and documentary evidence and other materials available on record and partly allowed the petitions and granted the compensation of Rs.2,90,400/- together with interest at 6% p.a., from the date of petition till realization in MVC No.670/2007 and Rs.3,56,000/- with interest at 6% p.a. from the date of petition till its realization in MVC No.671/2007.
9. The age of the deceased Radhakrishna at the time of death is stated as 32 years, Purohit ( the person who conducts religious and family ceremonies) and earning Rs.3,250/- per month and income claimed is Rs.3,250/- per month. The age of the deceased Sumana is stated as 32 years, home maker and her income is shown as Rs.4,000/-. The learned Member has considered the monthly income at Rs.3,250/- and Rs.3,000/- respectively and awarded the compensation as stated above. The liability has been fastened jointly and severally on respondent Nos. 1 and 2 and directed the Insurance Company to indemnify the same.
10. Learned counsel for the Insurance Company would submit that the award amount if at all payable it should have been by the owner of the vehicle as the mandatory requirement of valid Driving licence was not possessed by the driver of the lorry at the time of the accident. In this connection, the learned counsel for the Insurance Company draws my attention to the validity period of the driving licence of the driver of the lorry which is as under:
Date of accident : 21.2.2007 Validity of licence held by Driver of lorry : 8.1.2002 to 7.1.2005 Next renewal is : 21.2.2007 11. Learned counsel for Insurance Company would submit that long after more than 2 years, the licence came to be renewed. It was during this lucid interval, the accident occurred on 21.2.2007. The contention of the learned counsel for the Insurance Company is that, after the grace period of 30 days as contemplated under Section 15 of the Motor Vehicles Act, if the previous licence is not renewed, it is as good as no licence. In this connection, he placed reliance on the decision of the Apex Court in the case of Ram Babu Tiwari Vs. United India Insurance Company Limited and others (2008 AIR SCW 6512). Head Note of the said decision is as under:
Motor Vehicles Act(59 of 1988), Ss. 147, 149(2), 15(1) Proviso and (2) – Liability of insurer- Accident between truck and tractor- Driver of offending tractor did not have valid driving licence for period form 11.2.1993 to 6.2.1996- On date of accident i.e.,27.1.1996, his licence had already expired- His licence was renewed only on and from 7.2.1996 - And not within 30 days from date of expiry thereof as provided by proviso to S.15(1)- Renewall of licence would into take effect from retrospective date – But from date of its renewal-Brach of Contract of insurance is thus established – Insurer is not liable to indemnify insured.
12. The point which the learned counsel for Insurance Company urges is simple and straight that the claimants are not entitled for compensation in the hands of the Insurance Company.
13. The learned counsel for the claimants seeking enhancement of compensation in both the claim petitions has relied on the decision of the Apex Court in the case Pappu and others Vs. Vinod Kumar Lamba and another (AIR 2018 Supreme Court 592) which is in respect of a case wherein the copy of license was produced without any corroborative evidence, and the Apex Court has directed the Insurance Company to pay award amount to claimants in first instance and in turn, recover same from owner of vehicle and submits that the same is squarely applicable to the present cases.
14. Now coming to the facts of the case, it is a case wherein admittedly, there was no licence for the driver of the lorry as on the date of the accident. The admitted period of licence by the driver of the lorry expires two years prior to the date of accident. The offending vehicle is a lorry. In the circumstances, it is not the case of the Insurance Company that driver had no licence. On the other hand, the licence was not in force as on the date of accident. Thus, it is not the case wherein licence was never possessed at any point of time by the driver. On the other hand, once the driving licence was possessed by the driver, but it was not renewed. Meanwhile, it is pertinent to observe that driver was not disqualified from driving the vehicle.
15. The Hon’ble Supreme Court has observed in the case of Shamanna and another Vs. Divisional Manager, Oriental Insurance Company Limited and others (2018 ACJ 2163) that the Tribunal held that driver of the offending vehicle was not holding a valid licence at the time of accident and since there was violation of policy condition, directed the insurance company to pay and recover and held that, “where driver did not possess a valid driving licence and there is breach of policy condition, pay and recover can be ordered in case of third party risks; Insurance company is directed to recover the amount from the owner of vehicle by initiating proceedings before the executing court without going for a fresh suit.”
16. This is an identical situation. In the said case, the driver did not possessed driving licence, but here, he possessed it at one point of time and at the time of accident that was not duly renewed. In the circumstances, the Rule applicable to the case is that, in the light of the licence or not renewing the licence, the Insurer be directed to pay the compensation and thereafter recover it from the owner of the vehicle by initiating proceedings before the executing court without going for a fresh suit.
17. Insofar as quantum of compensation is concerned, the salary of the deceased Radhakrishna in MVC No.670/2007 and Sumana in MVC No.671/2007 considered by the learned Member at Rs.3,250/- and Rs.3,000/- is just and fair. Thus, there are no circumstances nor materials which warrant to alter the monthly income of the deceased. However, the aspect of future prospects is to be considered. Thus, the following tables would reflect the compensation granted to the claimants in both the cases as per the judgment and award passed by the Tribunal and the just and fair compensation arrived by this court.
18. Compensation granted by the Tribunal in MVC No.670/2007:
Loss of dependency (Rs.3,250-/x 1/3rd x x 12 x 10) Rs. 2,60,400/-
Loss of love and affection Rs. 10,000/- Loss of estate Rs. 10,000/-
Transportation of dead body and funeral expenses Rs. 10,000/-
Total Rs.2,90,400/-
The just and fair compensation according to this Court is:
Monthly income at Rs.4,550/- (Rs.3,250/- + Rs.1,300/- = Rs.4,550/-), less 1/3rd R(s.1,516/-) towards personal and living expenses and the proper multiplier is ‘16’ taking the age of deceased. Thus, the compensation would be:
Loss of dependency (Rs.3,034/- x 12 x 16) Towards conventional heads Rs. 5,82,528/- Rs. 70,000/-
Total Less: Amount awarded by Tribunal Enhancement Rs. 6,52,528/-
Rs. 2,90,400/-
Rs. 3,62,128/-
Thus, the claimants are entitled for enhanced compensation of Rs.3,62,128/-. Hence, insofar as the quantum of compensation is concerned, the judgment and award passed by the learned Member in MVC No.670/2007 is liable to be set aside.
19. Compensation granted by the Tribunal in MVC No.671/2007:
Loss of dependency (Rs.3,000-/x 1/3rd x 12 x 14) Rs. 3,36,000/-
Loss of consortium Rs. 10,000/-
Transportation of dead body and funeral expenses Rs. 10,000/-
Total Rs.3,56,000/-
The just and fair compensation according to this Court is:
Monthly income at Rs.4,200/- (Rs.3,000/- + Rs.1,200/- = Rs.4,200/-), less 1/3rd (Rs.1,400/-) towards personal and living expenses and the proper multiplier is ‘16’ taking the age of deceased. Thus, the compensation would be:
Loss of dependency (Rs.2,800/- x 12 x 16) Rs. 5,37,600/-
Towards conventional Rs. 70,000/-
heads Total Rs. 6,07,600/-
Less: Amount awarded by Tribunal Enhancement Rs. 3,56,000/-
Rs. 2,51,600/-
20. Thus, the claimants are entitled for enhanced compensation of Rs.2,51,600/-. Hence, insofar as the quantum of compensation is concerned, the judgment and award passed by the learned Member in MVC No.671/2007 is liable to be set aside for the purpose of modified.
21. Insofar as the liability of the Insurance Company is concerned, applying the principles of pay and recovery as stated above, instead of joint and several liability as arrived by the Tribunal, I find this is a case wherein, the Insurance Company is to be directed to pay the compensation and to recover from owner. Of course by filing a Execution petition without resorting for a fresh suit.
22. In the result, I pass the following ORDER (i) M.F.A.Nos.4296/2009 and 4297/2009 filed by the Insurance Company are allowed in part. In the sense the Insurance Company after paying the compensation to the claimants shall recover from owner by filing execution petition without a fresh suit.
(ii) M.F.A. CROB No.207/2009 in MFA No.4296/2009 and M.F.A. CROB No.208/ 2009 in MFA No.4297/2009 filed by the claimants, the dependents of deceased Radhakrishna and Sumana are allowed in part and Rs.6,52,528/- and Rs.6,07,600/- respectively with interest at 6% p.a. from the date of petition till its realization are fixed as compensation payable by the Insurance Company to the claimants that includes the enhanced compensation of Rs.3,62,128/- and Rs.2,51,600/-;
(iii) To the aforesaid extent the common judgment and award passed by the Tribunal in MVC No.670/2007 and 671/2007 dated 6/4/2009 is modified.
(iv) The Insurance Company is hereby directed to deposit the compensation amount of Rs.6,52,528/- and Rs.6,07,600/- including the enhanced compensation with interest at 6% p.a. from the date of petition till its realization within four weeks from the date of receipt of the certified copy of this judgment and shall recover the same from owner.
The amount deposited by the Insurance Company in M.F.A.Nos.4296/2009 and 4297/2009 shall be transmitted to the concerned Tribunal forthwith.
Sd/- JUDGE tsn*