IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.6651 OF 2013 (MV) c/w M.F.A.NO.9605 OF 2013 IN MFA.NO.6651/2013 BETWEEN:
M/S. THE ORIENTAL INSURANCE COMPANY LIMITED. 1ST FLOOR, KATHA NO.1478/1273, B.H. RAOD, NELAMANGALA, BANGALORE RURAL DISTRICT THROUGH ITS REGIONAL OFFICE, LEO SHOPPING COMPLEX, NO.44/45, RESIDENCY ROAD, BANGALORE-25 REPRESENTED BY ITS, REGIONAL MANAGER ... APPELLANT (BY SRI. UMESH.B.S, ADVOCATE) AND:
1. S SURESH BABU S/O SIDDAPPA, AGED ABOUT 31 YEARS, 2. SREELAKSHMI W/O S. SURESH BABU, AGED ABOUT 26 YEARS, BOTH ARE RESIDENTS OF KOTE EXTENSION, SIRA TOWN, TUMKUR DISTRICT – 572137.
3. V.S. SUBBARAJU S/O V.S. SEETHARAMAIAH, AGED ABOUT 40 YEARS, S.K.S. DISTRIBUTORS, TUMKUR-572101.
... RESPONDENTS (BY SRI. V.B.SIDDARAMAIAH, ADVOCATE FOR R1 & R2 R3 – HELD SUFFICIENT) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 19.04.2013 PASSED IN MVC NO.177/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, ADDITIONAL MACT, SIRA, AWARDING COMPENSATION OF RS.2,80,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN MFA.NO.9605/2013 BETWEEN:
1. SRI S. SURESH BABU S/O SIDDAPPA AGED ABOUT 31 YEARS 2. SMT. SREELAKSHMI W/O S SURESH BABU AGED ABOUT 26 YEARS BOTH ARE RESIDING AT KOTE EXTENSION, SIRA TOWN, TUMKUR DISTRICT-572137.
(BY SRI. V B SIDDARAMAIAH, ADVOCATE) AND:
1. THE ORIENTAL INSURANCE CO. LTD., 1ST FLOOR, KATHA NO. 1478/1273, B.H.ROAD, NELAMANGALA-562123, BANGALORE RURAL DISTRICT REPRESENTED BY BRANCH MANAGER 2. V S SUBBARAJU, S/O V S SEETHARAMAIAH AGED ABOUT 40 YEARS R/O S.K.S. DISTRIBUTOR MANDIPET, TUMKUR-572101.
...APPELLANTS (BY SRI. UMESH B S, ADVOCATE FOR R1 R2 – NOTICE D/W V/O DATED 5/3/2019) …RESPONDENTS THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 19.04.2013 PASSED IN MVC NO.177/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, AT SIRA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFAs COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Both the insurer and claimants are in appeal under Section 173(1) of the Motor Vehicles Act, against judgment and award dated 19/04/2013 in MVC.No.177/2012 on the file of the Senior Civil Judge and Additional MACT, Sira. The insurer filed MFA.No.6651/2013, aggrieved by the saddling of liability on it, whereas the claimants filed MFA.No.9605/2013, praying for enhancement of compensation.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the death of minor Sowmyashree in a motor vehicle accident. The claimants are parents of the deceased- Sowmyashree. It is stated that on 05-2-2012, when the deceased went to bring the biscuit from shop situated near her house, lorry bearing No.KA.20.B.1539, came in a rash and negligent manner and dashed to the deceased. As a result, she died on the spot. It is stated that she was studying in LKG.
3. On issuance of notice, respondent No.2-Insurer appeared before the Tribunal and filed its statement of objections contending that the accident occurred solely due to the negligence of the deceased and also of the claimants who have not taken proper care of the deceased. It is also contended that the driver of the offending vehicle was not possessing a valid and effective driving license as on the date of accident and further it is stated that the vehicle in question was not having permit and fitness certificate as on the date of accident.
4. Claimant No.1 examined himself as PW-1 and also PW-2, apart from marking documents Exs.P-1 to P-9. Respondents examined RW-1.
5. The Tribunal on appreciating the material on record, awarded total compensation of Rs.2,80,000/- with interest at the rate of 6% per annum from the date of petition till its realization, on the following heads:
Amount in (Rs.) 1. Loss of dependency 2,70,000 2. Transportation and Funeral 5,000 expenses 3. Love and affection 5,000 Total 2,80,000 While awarding the above compensation, the Tribunal assessed the notional income of the minor child at Rs.1,500/- per month and adopted ‘15’ multiplier. The parents of the deceased not being satisfied with the quantum of compensation awarded by the Tribunal are before this Court, whereas the insurer is before this Court, challenging saddling of liability on it, contending that the vehicle in question had no fitness certificate as on the date of accident.
6. Heard the learned counsel for the claimants and learned counsel for the respondent-Insurer. Perused the material on record including the lower court records.
7. Learned counsel for the insurer would submit that the Tribunal committed an error in saddling the liability on it as the offending vehicle had no fitness certificate as on the date of accident. In the absence of fitness certificate, it is to be construed that vehicle had no permit to ply on the road. Thus, prays for allowing the appeal.
8. Per contra, learned counsel for the claimants would submit that non-possessing fitness certificate is not a ground available to the insurer as per Section 149 of the Motor Vehicles Act (for short ‘Act’) to deny its liability. Further, he relies on the decision of this Court reported in ILR 2019 KAR 2940, wherein this Court held that insurer cannot seek for absolving it from the liability on the ground of non-possessing fitness certificate as on the date of accident. Learned counsel for the claimants further submits that the compensation awarded by the Tribunal on the head of ‘Transportation and Funeral Expenses’ and ‘Love and affection’ are on the lower side. The parents have lost child of five years and they are deprived of love and affection of their child. Thus, prays for enhancement of compensation.
9. On hearing 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.
a) Whether the Tribunal is justified in saddling the liability on the insurer?
b) Whether the claimants would be entitled for the enhanced compensation?
Answer to the above points are in the affirmative for the following reasons.
10. The accident occurred on 05-2-2012 involving lorry bearing No.KA.20.B.1539 and the accidental death of Sowmyashree are not in dispute in this appeal. The insurer is before this Court, aggrieved by saddling of liability on it, contending that vehicle in question had no fitness certificate, which is to be construed as no permit as on the date of accident to ply on the road. The said contention is not available for the insurer as per Section 149 of the Act. On the ground of non-possessing fitness certificate as on the date of accident, the insurer cannot seek for absolving it from the liability. This Court considering Section 56 of the Act and Rule 52 of the Central Motor Vehicle Rules, in the case of Mr. Rajesh Poojary vs. Mr. Rajesh and Another reported in ILR 2019 KAR 2940 at paragraphs Nos.7 to 11 has held as follows:
“7. The only question which arises for consideration in this appeal is as to whether the Insurance Company can be exonerated of its liability on the ground that the insured did not possess fitness certificate for the offending vehicle as on the date of accident.
8. The Tribunal after considering that the driver of the lorry was charge sheeted for the offences punishable under Sections 279 and 338 of IPC and Rule 52 of Central Motor Vehicles Rules and Section 192 of Indian Motor Vehicles Act and after observing that according to charge sheet, the fitness certificate had expired prior to the date of accident and also relying on a decision of the Kerala High Court in the case of ‘THARA vs. SYAMALA’, wherein it is held that when the vehicle involved in the accident did not have a valid fitness certificate at the time of accident, Insurance Company shall be exempted from its liability and therefore held the insured/appellant liable to pay the compensation.
9. The Division Bench of this Court in a decision rendered in the case of the ‘NEW INDIA ASSURANCE CO. LTD. vs. SRI N SRINIVASA MURTHY AND OTHERS’ has observed that ‘absence of fitness certificate cannot be a reason to deny the compensation to the claimant’. A coordinate Bench of this Court in the case of the BRANCH MANAGER vs. H D CHANNADEVAIAH AND OTHERS held in a similar circumstances, where the insured vehicle did not possess fitness certificate as on the date of accident that, “the policy was in force on the date of accident and the Insurance Company cannot disown its liability.”
10. The Tribunal while fixing the liability on the insurer placed reliance on the decision of the Kerala High Court in the case of THARA vs. SYAMALA (supra). It is pertinent to note that the said decision of the Kerala High Court has been over-ruled by the Full Bench decision in the case of V M AUGUSTINE, VATTAKAVUMKAL vs. AYYAPPANKUTTY ALIAS MANI & ANOTHER (supra). It is held that lapse of certificate of fitness would constitute breach of the provisions of Motor Vehicles Act or Rules. However, there is nothing under Section 56 of the Act, which suggests that the registration or permit issued would stand cancelled or revoked on account of lapse of period of fitness certificate.
11. In view of the decisions referred to supra, the judgment and award passed by the Tribunal thereby exonerating the Insurance Company to pay the compensation and directing the insured/appellant to pay the compensation is liable to be set aside. Accordingly, I pass the following:
ORDER Appeal is allowed.
The judgment and award dated 6.4.2013 passed in MVC No.1046/2011 on the file of III Additional Senior Civil Judge, Member, MACT, Mangalore, DK, is hereby set aside.
Respondent Nos.1 and 2 before the Tribunal are jointly and severally liable to pay the compensation.
Respondent No.2/Insurance Company shall pay the amount as awarded by the Tribunal within a period of four weeks from the date of receipt of copy of this judgment.
Appellant is entitled to refund of the amount deposited before this Court.”
11. Following the above decision, I am of the view that the contention urged by the insurer is liable to be rejected. The deceased-daughter of the claimants was aged five years as on the date of accident. The claimants have lost love and affection of their daughter. The notional income of the deceased assessed by the Tribunal at Rs.1,500/- per month and adopting ‘15’ multiplier is proper and correct. The claimants would be entitled for Rs.30,000/- on the head of ‘Transportation and Funeral Expenses’ and Rs.50,000/- on the head of ‘Love and affection’. Thus, the claimants would be entitled for the modified enhanced compensation as follows:
Amount in (Rs.) 1. Loss of dependency 2,70,000 2. Transportation and Funeral expenses 30,000 3. Love and affection 50,000 Total 3,50,000 12. Thus, the claimants would be entitled for enhanced modified compensation of Rs.3,50,000/- as against Rs.2,80,000/- with interest at the rate of 6% per annum from the date of petition till its realization as awarded by the Tribunal.
The judgment and award passed by the Tribunal is modified to the above extent. Accordingly, the appeal filed by the insurer in MFA.No.6651/2013 is dismissed and appeal filed by the claimants in MFA.No.9605/2013 is allowed in part.
The amount in deposit in MFA.No.6651/2013 be transmitted to the concerned Tribunal.
Sd/- JUDGE SMJ