IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A.No.1838/2013 C/W M.F.A.No.5965/2013(MV) IN MFA No.1838/2013: BETWEEN:
1. SMT. PARVATHAMMA W/O LATE M S SUBRAMANI AGED ABOUT 27 YEARS 2. MASTER R S MANOJ S/O LATE M S SUBRAMANI AGED ABOUT 9 YEARS 3. KUM. R S AKSHAYA D/O LATE M S SUBRAMANI AGED ABOUT 7 YEARS 4. KUM.R S BHAVANI D/O LATE M S SUBRAMANI AGED ABOUT 5 YEARS 5. R MUNIVENKATAPPA S/O LATE HANUMAPPA AGED ABOUT 57 YEARS 6. SMT.R NAGAMMA W/O R MUNIVENKATAPPA AGED ABOUT 47 YEARS ALL ARE RESIDING AT No.691, 29TH MAIN B.T.M LAYOUT BANGALORE – 560 076.
SINCE APPELLANTS No.2 TO 4 ARE MINORS REPRESENTED BY THEIR MOTHER 1ST APPELLANT AS NATURAL GUARDIAN (BY SRI GOPALAKRISHNA N AND SRI JAGADISH G KUMAR, ADVOCATES) AND:
1. SHAIK HABEEB MOULALI S/O HABEEB SAHEB No.10-161/16, RAHMATH NAGAR VENKATAGIRI – KOTA (V & M) ANDHRA PRADESH.
2. THE MANAGER SHRIRAM GENERAL INSURANCE CO. LTD., S-5, 2ND FLOOR, MONARCH CHAMBERS INFANTRY ROAD, BANGALORE – 560 001.
..APPELLANTS ..RESPONDENTS (BY SRI B C SHIVANNE GOWDA, ADVOCATE FOR R2, NOTICE TO R1 IS HELD SUFFICIENT V/O DATED:30.07.2015) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:16.11.2012 PASSED IN MVC No.7278/2010 ON THE FILE OF THE II ADDITIONAL SMALL CAUSES JUDGE & XXVIII ACMM, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA No.5965/2013: BETWEEN: M/s.SHRIRAM GENERAL INSURANCE COMPANY LTD., S-5, MONARCH CHAMBER 3RD FLOOR, INFANTRY ROAD SHIVAJINAGAR BANGALORE – 560 001. REPTD. BY ITS LEGAL OFFICER.
M/s.SHRIRAM GENERAL INSURANCE COMPANY LTD., No.302, 3RD FLOOR, S & S CORNER BUILDING, OPP. BOWRING AND CURZON HOSPITAL SHIVAJINAGAR BANGALORE – 560 001. REPTD. BY ITS LEGAL OFFICER.
..APPELLANT (BY SRI B C SHIVANNE GOWDA, ADVOCATE) AND:
1. SMT. PARVATHAMMA W/O SUBRAMANI AGED ABOUT 28 YEARS 2. MASTER R S MANOJ S/O SUBRAMANI AGED ABOUT 10 YEARS 3. KUM. R S AKSHAYA D/O SUBRAMANI AGED ABOUT 7 YEARS 4. KUM.R S BHAVANI D/O SUBRAMANI AGED ABOUT 6 YEARS 5. R MUNIVENKATAPPA S/O HANUMAPPA AGED ABOUT 58 YEARS 6. SMT.R NAGAMMA W/O R MUNIVENKATAPPA AGED ABOUT 48 YEARS.
2ND TO 4TH RESPONDENTS ARE MINORS AND REPRESENTED BY NATURAL GUARDIAN 1ST RESPONDENT ALL ARE R/AT No.691, 29TH MAIN, B.T.M LAYOUT BANGALORE – 560 070.
7. SHAIK HABEEB MOULALI S/O HABEEB SAHEB No.10-161/16, RAHMATH NAGAR, VENKATAGIRI-KOTA VILLAGE AND MANDAL ANDHRAPRADESH – 524 132. ..RESPONDENTS (BY SRI N GOPALAKRISHNA, ADVOCATE FOR R1 TO 6 NOTICE TO R7 IS HELD SUFFICIENT, V/O DATED:30.07.2015) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:16.11.2012 PASSED IN MVC No.7278/2010 ON THE FILE OF THE II ADDITIONAL SMALL CAUSES JUDGE & XXVIII ACMM BENGALURU AWARDING COMPENSATION OF Rs.10,06,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOST.
THESE MFAs COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though the appeals are listed for `Admission’, with the consent of the learned counsel appearing for the parties, they are taken up for final disposal.
2. These appeals are directed against the Judgment and award dated 16.11.2012 passed in MVC No.7278/2010 by the II Additional Small Causes Judge, XXVIII ACMM, Bengaluru. Claimants have preferred MFA No.1838/2013 seeking enhancement of compensation and MFA No.5965/2013 is by the insurance company questioning fixing of liability or fastening of liability on them.
3. In order to avoid confusion and overlapping, the parties are hereinafter referred with reference to their status and rankings as it stood before the Tribunal.
4. The incident because of which the proceedings commenced is that on 05.09.2010 at about 11.15 P.M. when the deceased M.S.Subramani was proceeding as a co-driver of lorry bearing registration No.AP-03-TA 848 near Pandluru Village Cross Road, NH-5, Naidupeta, Nellore District, Andhra Pradesh. The driver was rash and negligent in his driving and having lost control of the vehicle dashed against the stationed lorry bearing registration No.AP-16-TX-7336 because of which M.S.Subramani sustained serious injuries and succumbed to them. The claimants filed claim petition claiming compensation of Rs.15,00,000/- including expenditure incurred by them.
5. The insurance company disputed the liability on the ground that policy does not cover a spare driver in the vehicle and he was not driving the vehicle.
6. Learned Member was accommodated with oral evidence of PW-1 –Munivenkatappa for claimants and RW-1 –R.S.Shivananda for respondent-insurance company. Documentary evidence Exhibits P-1 to P-6 marked on behalf of claimants and Exhibit R-1 was marked on behalf of the insurance company. Learned Member considered the aspects on the accident, fatal injuries to M.S.Subramani, his death, loss of dependency and relevant aspects and held claimants were entitled for compensation of Rs.10,06,000/- with interest. It is against this award insurance company contends that it has no liability and claimant opposes the claim of the insurance company and also seeks for enhancement of compensation. The compensation granted by the Tribunal is as under:
DESCRIPTION AMOUNT Loss of income/dependency Rs. 9,36,000/-
Total Rs.10,06,000/-
7. Learned counsel for insurance company Sri Shivanne Gowda would submit that a spare driver is not covered. M.S.Subramani is said to be a spare driver. Thus, there is no provision for granting compensation.
8. Learned counsel for claimants Sri Gopalakrishna would submit that the claimants are entitled for compensation as there is no violation of policy conditions and deceased was entitled to travel in the said vehicle.
9. In this connection it is necessary to analyze the aspect of a spare driver. Firstly claim petition is not preferred under Workmen Compensation Act claiming that M.S.Subramani was a co-driver and the owner of the vehicle Shaik Habeeb was liable. No doubt Section 166 of the Motor Vehicles Act contemplates for a victim either to file petition under Workmen Compensation Act or Motor Vehicles Act in the alternative but not both. The matter is quite clear that the proceedings are not initiated under Workmen Compensation Act. Further total seating capacity in the offending vehicle is stated to be 2+1. If driver is the person thus apart from seating capacity of two persons if deceased M.S.Subramani was one, the substantial effect would be that he was present in the vehicle without committing breach of the seating capacity.
10. Learned counsel for insurance company submitted that the deceased was unauthorized passenger. When such a special plea is taken it is the duty on the part of a party, be it a claimant, insurer or owner to establish the circumstances inferring that such person was unauthorized passenger.
11. Moreover, the insurance in the capacity of respondent No.1 has examined RW-1 from its side who has admitted in his cross examination that risk of owner-cum-driver, a paid driver and two cleaners was covered. In the circumstances, I do not find error or lapse on the part of the learned Member in fastening the liability on the insurer.
12. The next aspect is regarding quantum. Monthly income is considered at Rs.5,000/- and compensation under conventional heads is considered at Rs.70,000/-
13. Learned counsel Sri Gopalakrishna for claimants would submit that salary is under assessed and future prospects ought to have considered at 40%. He would submit that there are no factors disentitling the claimants seeking compensation from the insurance company.
14. The accident is of the year 2010. Consideration of monthly income at Rs.5,000/- does not appear to be unreasonably low or higher. Thus, amount of Rs.5,000/- as monthly income is maintained. Insofar as future prospects is concerned, learned Member has considered it at 30%. In this connection learned counsel for claimants submits it should have been 40% and not 30%. It is necessary to mark the difference between the permanent salary and that of self employment. Said M.S.Subramani was a driver under a private person. It may not be considered as a permanent job. He comes within the ambit of persons having self employment. Thus, consideration of 30% as future prospects in respect of death of M.S.Subramani who was aged 31 years at the time of death is just and proper.
15. Future prospects would not have been available to the claimants as the matter attracts Workmen Compensation Act. But it is necessary to mention that the claim petition is filed under Section 166 of the Motor Vehicles Act.
16. Learned counsel for insurance company would submit that when once the claimants have stated the deceased M.S.Subramani was a co-driver their petition fails and they should have approached under Workmen Compensation Act and court has to adjudicate as per the procedure of Workmen Compensation Act. It is an elementary principle that Section 167 provides for approaching before the Commissioner, Workmen Compensation or Motor Vehicles Act but not both. That means even workman files his claim petition under the Motor Vehicles Act for the injuries sustained in road traffic accident or dies because of the injuries. Thus, when a petition is presented under Motor Vehicles Act compensation is claimed on the ground of loss of dependency by the claimants and the defence of the insurance company is that deceased was an unauthorized passenger and urging the court to limit the compensation either quantification or disbursement according to Workmen Compensation Act, 1923 is not proper.
Hence, both the appeals are rejected as devoid of merits.
Amount in deposit to be transferred to Tribunal.
Sd/- JUDGE SBN