IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A.No.3556/2014 C/W M.F.A.No.5681/2014 [MV] M.F.A.No.3556/2014 BETWEEN:
1. RATHNAMMA SINCE DEAD REP. BY HER LR:
2ND APPELLANT.
2. MANJULA W/O LATE RAMAPPA AGED ABOUT 20 YEARS KANNAGONDAHALLI VILLAGE DAVANAGERE TALUK & DISTRICT.
...APPELLANTS (BY SRI.SIDDESWARA N K., ADV.) AND:
1. MAHESHAPPA S/O DURUGAPPA KODER AGED ABOUT 37 YEARS DRIVER OF THE SWARAJ MAZDA BEARING NO.KA-27/A-1749 R/O KAVALETTU VILLAGE RANEBENNUR TALUK-581115. HAVERI DISTRICT.
2. BEERESH REVANAPA KODER S/O REVANAPPA KODER AGED ABOUT 47 YEARS OWNER OF THE SWARAJ MAZDA BEARING NO.KA-27/A-1749 R/O KAVALETTU KUMARAPATNAM (POST)-581123 HAVERI DISTRICT.
3. THE MANAGER IFFCO-TOKIO GENERAL INSURANCE CO.LTD., SHASHI KIRAN BUILDING OPP.OM GANESH TRACTORS SHANKAR MATH ROAD SHIMOGA-577201.
…RESPONDENTS (BY SRI.SHRIPAD V SHASTRI, ADV. FOR R2 SRI. B PRADEEP, ADV. FOR R3 V/O DT:12.01.2015 NOTICE TO R1 IS D/W V/O DT:12.11.2019 A2 IS TREATED AS LR OF A1) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.02.2014 PASSED IN MVC NO.506/2012 ON THE FILE OF THE 1ST ADDITIONAL SENIOR CIVIL JUDGE & MACT-V, DAVANGERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
M.F.A.No.5681/2014 BETWEEN:
BEERESH REVANAPPA KODER S/O REVANAPPA KODER AGED ABOUT 47 YEARS OWNER OF THE SWARAJ MAZDA BEARING NO KA-27/A-1749 R/O KAVALETTU KUMARAPATNAM (POST) HAVERI DISTRICT-581110.
(BY SRI.SHRIPAD V SHASTRI, ADV.) AND:
1. RATNAMMA W/O LATE RAMAPPA AGED ABOUT 37 YEARS HOUSEHOLD R/O KANNAGONDAHALLI VILLAGE DAVANAGERE TALUK AND DISTRICT-577001.
2. MANJULA D/O LATE RAMAPPA AGED ABOUT 20 YEARS R/O KANNAGONDAHALLI VILLAGE DAVANAGERE TALUK AND DISTRICT-577001.
3. MAHESHAPPA S/O DURUGAPPA KODER AGED ABOUT 37 YEARS DRIVER OF THE SWARAJ MAZDA BEARING NO KA-27/A-1749 R/O KAVALETTU VILLAGE RANEBENNUR TALUK HAVERI DISTRICT-581110.
4. THE MANAGER IFFCO-TOKIO GENERAL INSURANCE CO. LTD., SHASHI KIRAN BUILDING OPP. OM GANESH TRACTORS SHANKAR MATH ROAD SHIMOGA-577201.
...APPELLANT …RESPONDENTS (BY SRI.N.K.SIDDESHWARA, ADV. FOR R1 AND R2 SRI B PRADEEP, ADV. FOR R4 V/O DT: 05.09.2019 NOTICE TO R3 IS D/W) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.02.2014 PASSED IN MVC NO.506/2012 ON THE FILE OF THE 1ST ADDITIONAL SENIOR CIVIL JUDGE, MACT-5, DAVANGERE, AWARDING A COMPENSATION OF RS.7,49,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THESE M.F.A.s COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
COMMOM JUDGMENT Both the claimants and owner of the offending vehicle are before this Court assailing the judgment and award dated 17.02.2014 passed in MVC No.506/2012 on the file of the 1st Additional Senior Civil Judge and MACT at Davanagere. MFA No.3556/2014 is filed by the claimants being aggrieved by saddling of liability on respondent No.2 and praying for enhancement of compensation. MFA No.5681/2014 is by owner of the offending vehicle, aggrieved by saddling of liability on the owner.
2. The claim petition was filed by the wife and daughter of deceased Ramappa under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for his death in a road traffic accident. It is stated that during the pendency of this appeal, the 1st appellant- wife of deceased died and 2nd appellant – daughter represents the 1st appellant. It is stated that on 13.05.2009 when the deceased was proceeding in a Lorry bearing Reg.No.KA-04/C-237-407 near Haraganahalli Village a Swaraj Mazda Lorry bearing Reg.No.KA-27/A-1749 came in a rash, negligent manner and dashed against the right side of the lorry in which the deceased was proceeding. Due to the accidental impact the deceased Ramappa sustained grievous injuries and succumbed to the injuries. The deceased was aged 45 years at the time of accident. By doing coolie work and milk vending business he was earning monthly salary of a sum of Rs.10,000/-.
3. On issuance of summons, respondents 1 to 3 appeared before the Tribunal and opposed the claim petition by filing objection. The claim averments was denied in toto. It is also contended that the accident took place due to the fault of the driver of the lorry in which the deceased was traveling. Respondent No.2 – owner admitted the issuance of policy and its validity. The insurer took up a specific contention that the Lorry bearing Reg.No.KA-04/C-237-407 had no fitness certificate to ply on road, thereby there is violation of terms and conditions of the policy. The second claimant – daughter of the deceased was examined as PW.1 and Exs.P1 to P5 were marked on behalf of the claimants. Whereas the respondents examined RWs.1 and 2 apart from marking the documents Exs.R1 to R5. The Tribunal on appreciating the material on record awarded total compensation of a sum of Rs.7,49,000/-
along with interest at 6% p.a. from the date of petition till the date of realization on the following heads :-
5. Towards loss of care and guidance, love affection for minor children (pet.No.2 to 4 1,00,000.00 Total 7,49,000.00 While awarding the above compensation the Tribunal assessed the income of the deceased at Rs.4,500/- per month and applied multiplier of ‘14’ as the deceased was aged 45 years. Not being satisfied with the quantum of compensation awarded by the Tribunal, the appellants are before this Court in this appeal.
4. Heard the learned counsel for the appellants and learned counsel for the respondents. Perused the entire material on record.
5. The learned counsel for the appellants would submit that the Tribunal committed an error in saddling the liability on 2nd respondent – owner of the offending vehicle bearing Reg.No.KA-27/A-1749 on the ground that the offending vehicle had no fitness certificate to ply on the road as on the date of accident. He relied upon decision of this Court in MR. RAJESH POOJARY VS. MR. RAJESH AND ANOTHER reported in ILR 2019 KAR 2940 and submits that the liability is to be shifted to the 3rd respondent – Insurer.
6. Learned counsel for the claimants submit that the deceased was earning more than Rs.10,000/- per month by doing coolie work as well as by milk vending business. The Tribunal assessed the income of the deceased at Rs.4,500/- per month, which is on the lower side. It is his further submission that the deceased was aged 45 years and as such 25% of the assessed income is to be added towards future prospects as per the decision of the Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680. Thus he prays for allowing the appeal filed by the claimants.
7. Per contra, the learned counsel for the respondent – Insurance Company would submit that the Tribunal has rightly saddled the liability on 2nd respondent – owner of the offending vehicle, since the lorry had no fitness certificate as on the date of accident to ply on the road. It is his submission that when there is no fitness certificate for a vehicle to ply on the road, it is as good as no permit to ply on the road. As such, the Tribunal is justified in saddling the liability on the 2nd respondent - owner. It is his further submission that the Tribunal has awarded compensation much more than what is entitled by the claimants on conventional head relying up on the decision of the PRANAY SETHI cited supra.
8. In MFA No.5681/2014 learned counsel for the appellant – owner of the lorry submits that the Tribunal committed an error in saddling liability on it merely on the ground that it had no fitness certificate to ply on the road, as on the date of accident and he also relied upon the decision of this Court in MR. RAJESH POOJARY cited supra.
9. Having heard the learned counsels for the parties and on perusal of the material on record, the points that arises for consideration is as to “a. Whether the Tribunal is justified in saddling the liability on 2nd respondent – owner ?
b. Whether the claimants would be entitled for enhancement of compensation in the facts and circumstances of the case ?”
The above points are answered in the negative and affirmative respectively for the following reasons :
The occurrence of the accident on 13.05.2009 involving Lorry bearing Reg.No.KA-04/C-237-407 and Swaraj Mazda lorry bearing Reg.No.KA-27/A-1749 and the accidental death of one Ramappa are not in dispute in these appeals. The Tribunal on assessment of compensation saddled the liability on 2nd respondent – owner of the offending vehicle bearing No.KA-27/A- 1749 on the ground that as on the date of accident, the said vehicle was not possessing fitness certificate to ply on the road. The said ground of availability of fitness certificate or not, is not available, for the insurer to raise under Section 149 of the Act. This Court in the decision of MR. RAJESH POOJARY VS. MR RAJESH AND ANOTHER reported in (ILR 2019 KAR 2940 considering Section 56 and Rule 52-C at paragraphs 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:
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.”
10. As the insurance policy was in force as on the date of accident, the insurer cannot seek for absolving the liability solely on the ground that the vehicle was not possessing fitness certificate. Accordingly, the finding with regard to saddling the liability on the 2nd respondent – owner is set aside and the liability is shifted to 3rd respondent – Insurer.
11. The claimant states that the deceased was doing coolie work and milk vending business from which he was earning Rs.10,000/- per month. But the claimants have not produced any documents to indicate the exact income of the deceased. In the absence of any material to indicate the exact income of the deceased the Tribunal assessed the notional income at Rs.4,500/- per month. But the assessment of monthly income at Rs.4,500/- per month is on the lower side. The accident is of the year 2012. Looking to the price index and the living conditions in the year 2012, even a coolie earned Rs.300/- per day, which would come to Rs.9,000/- per month. This Court and Lok Adalath while settling the accident claims of the year 2012 would normally take notional income of Rs.7,000/- per month. In the instant case, in the absence of material to indicate the exact income of the deceased, it would be appropriate to take the monthly income at Rs.7,000/-. The Tribunal has failed to award any compensation on the head ‘future prospects’, the deceased was aged 45 years as on the date of accident. The Hon’ble Apex Court in the decision of NATIONAL INSURANCE COMPANY LIMITED v/s PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680 has held that wherever the deceased was aged between 40 to 50 years, the claimants would be entitled for adding 25% of the assessed income towards future prospects. Accordingly, the claimants would be entitled for adding 25% of the assessed income towards ‘future prospects’.
The Tribunal has awarded total compensation of Rs.2,45,000/- on conventional heads. The Hon’ble Apex Court in the decision of PRANAY SETHI cited supra held that the claimants would be entitled only for a sum of Rs.70,000/- on conventional heads. Thus the claimants would be entitled for the modified compensation as follows :-
a. Towards Loss of dependency including future prospects at 25% Rs.7,000/- + Rs.1,750/-(25%) = Rs.8,750/- Rs.8,750/- - 1/3rd = Rs.5,834/-
Rs.5,834/- x 12 x 14 9,80,112/-
b. Towards Conventional Heads 70,000/-
Total Rs.10,50,112/-
12. Accordingly, the appeal is allowed in part. The impugned judgment and award is modified and the claimant is entitled to total compensation in a sum of Rs.10,50,112/- as against Rs.7,49,000/- awarded by the Tribunal with interest at 6% p.a. from the date of petition till the date of realization.
13. It is stated that the appellant No.1 died during the pendency of the appeal. As such the 2nd appellant would be entitled for the entire compensation. Out of the enhanced compensation 50% shall be released in favour of the 2nd appellant and 50% shall be kept in a fixed deposit for a period of five years with liberty to withdraw the interest accrued thereon periodically.
The amount in deposit in MFA No.5681/2014 be refunded to the appellant.
14. During the pendency of appeal 1st appellant died, hence the 2nd appellant would be the claimant, as such question of apportionment would not arise.
15. In view of disposal of the appeal, I.A.No.1/2019 filed for additional documents would not survive for consideration. The application stands dismissed.
Sd/- JUDGE NG*CT:bms