IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY, 2019 PRESENT THE HON’BLE MRS.JUSTICE S.SUJATHA AND THE HON’BLE MR.JUSTICE MOHAMMAD NAWAZ M.F.A.No.3940/2016 c/w M.F.A.No.2092/2017 [MV] IN M.F.A.No.3940/2016:
BETWEEN :
THE MANAGER RELIANCE GENERAL INS. CO. LTD. NO.28, 5TH FLOOR, CENTENARY BUILDING, M.G.ROAD, BANGALORE-560001 NOW REP. BY MANAGER LEGAL ...APPELLANT (BY SRI ASHOK N. PATIL, ADV.) AND :
1. SUKANYA W/O LATE M.B.PRAKASH AGED ABOUT 46 YEARS 2. M.P. ANITHA D/O LATE M.B.PRAKASH AGED ABOUT 23 YEARS 3. M.P. PREMA D/O LATE M.B.PRAKASH AGED ABOUT 21 YEARS RESPONDENTS ARE OLD R/O MADAPATNA VILLAGE, TURUVEKERE TALUK-572227 NOW ALL ARE R/AT HANUMANTHAPURA VILLAGE, KASABA HOBLI, TUMAKURU TALUK TUMAKURU DISTRICT-572101.
4. R.G. PRASHANTH S/O GANGADHARAIAH AGED ABOUT 48 YEARS RESIDENT AND PROPRIETOR OF SHIVAGANGA TRAVELS, GANDHINAGAR, TUMAKURU-572101 …RESPONDENTS (BY SRI M.B.RYAKHA, ADV. FOR R-1 TO R-3.) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 01.03.2016 PASSED IN MVC NO.303/2014 ON THE FILE OF THE 2ND ADDITIONAL SENIOR CIVIL JUDGE & MACT, TUMAKURU, AWARDING COMPENSATION OF RS.24,90,484/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF REALISATION.
IN M.F.A.No.2092/2017: BETWEEN :
1. SMT.SUKANYA W/O LATE M.B.PRAKASH AGED ABOUT 47 YEARS 2. M.P.ANITHA D/O LATE M.B.PRAKASH AGED ABOUT 25 YEARS 3. M.P.PREMA D/O LATE M.B.PRAKASH AGED ABOUT 23 YEARS ALL ARE R/AT MADAPATNA VILLAGE TURUVEKERE TALUK-572 101 NOW ALL ARE R/O HANUMANTHAPURA VILLAGE KASABA HOBLI TUMAKURU TALUK TUMKAURU DISTRICT-572 101 ...APPELLANTS (BY SRI M.B.RYAKHA, ADV.) AND :
1. R.G. PRASHANTH S/O GANGADHARAIAH AGED ABOUT 48 YEARS RESIDENT OF PROPRIETOR OF SHIVAGANGA TRAVELS GANDHINAGARA TUMAKURU-572 101 2. THE MANAGER RELIANCE GENERAL INS. CO. LTD., NO.28, 5TH FLOOR CENTENARY BUILDING M G ROAD, BENGALURU-560 001 REP. BY MANAGER LEGAL …RESPONDENTS (BY SRI ASHOK N. PATIL, ADV. FOR R-2.) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 01.03.2016 PASSED IN MVC NO.303/2014 ON THE FILE OF THE 2ND ADDITIONAL SENIOR CIVIL JUDGE & MACT, TUMAKURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR HEARING THIS DAY, THE S.SUJATHA J., DELIVERED THE FOLLOWING:
J U D G M E N T The insurer as well as the claimant are in appeal challenging the judgment and award passed by the II Addl. Senior Civil Judge & MACT, Tumakuru, whereby the total compensation of Rs.24,90,484/- has been awarded with interest @ 6% p.a. from the date of petition till payment, fastening the liability on the insurer.
2. The insurance company is in appeal mainly on the ground that the offending vehicle had no valid permit at the time of the accident and hence the insurer is not liable to pay the compensation determined by the Tribunal.
3. On the contrary, it is the contention of the claimant that a distinction has been made by the Hon'ble Apex Court inasmuch as the route permit and permit in the context of Section 149 of the Motor Vehicles Act, 1988 and in the light of the said judgment the liability has to be fastened on the insurance company and as such, the order of the Tribunal regarding liability does not call for any interference. However, the claimant seeks for enhancement of compensation as the compensation awarded by the Tribunal is meager and not in conformity with the law laid down by the Hon'ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and others reported in 2017 ACJ 2700.
4. The factual aspects of the matter inasmuch as the occurrence of the accident and the death of the victim in the road traffic accident which occurred on 26.10.2013 owning to the actionable negligence of the driver of the offending vehicle duly insured with the insurer herein are not in dispute.
5. As regards the liability aspect is concerned, the copy of the route permit of the offending vehicle though placed on record, was not marked and in such circumstances, the Tribunal has held that the insurance company has not produced any documentary evidence to prove the defence relating to the route permit, hence fixed the liability on the insurance company. It is the grievance of the insurance company that the application filed by the insurer as regards summoning the witness has been rejected by the Tribunal. Two applications filed as regards summoning of the insured as well as the RTO has been rejected. Even considering the same in the light of the judgment of the Hon'ble Apex Court in the case of Rani and others vs. National Insurance Company Limited and others reported in (2018) 8 SCC 492, the liability fastened on the insurer cannot be disturbed. The compensation amount required to be paid to the claimants with interest has to be fixed on the insurer providing liberty to the insurer to recover the same from the owner and the driver.
6. Learned counsel for the Insurance Company has placed reliance on the judgment of the Hon’ble Apex Court in the case of Rani and others, supra, wherein the Hon’ble Apex Court while considering the compensation amount liable to be paid as the offending vehicle did not have a valid permit for being operated in the State of Karnataka has observed that the appeal however would succeed to the limited extent that the amount of compensation determined by the High Court shall be first paid by the respondent Insurance Company with liberty to recover the same from the owner of the offending vehicle. Learned counsel for the Insurance Company has relied upon yet another judgment of the Hon’ble Apex Court in the case of M. S. Middle High School vs. HDFC Ergo General Insurance Co. Ltd. and others reported in Laws (SC) 2017 11 102, wherein the Hon’ble Apex court has observed that once there is breach of condition of policy, the liability cannot be fastened on the insurer.
7. We are of the considered opinion that both the cases referred to above are not applicable to the facts of the present case for the reason that the defence taken by the Insurance Company is vague and has utterly failed to prove the same in as much as no valid permit of the offending vehicle. The rejection of the application filed by the Insurance Company for summoning the witnesses would not be of any assistance to the insurer since the same has reached finality. The insurer cannot take it as a ground, now at this stage, alleging that the Tribunal has not provided an opportunity to issue summons to RTO to produce the permit of the offending vehicle. It is a well settled law that the Insurance Company has to discharge the onus of proving the defence. In the event the insurer if fails to prove that there has been breach of conditions of the policy on the part of the insured, the Insurance Company cannot be absolved of its liability.
8. This view is fortified by the decision of the Hon'ble Apex Court in the case of Kamala Mangalal Viyani and others vs. United India Insurance Company Limited and others reported in (2010) 12 SCC 488 wherein it is held that the onus and standard of proof regarding the validity of permit lies on the insurer. If the insurer failed to discharge its onus, obviously the liability has to be fastened on the insurer.
9. Learned counsel for the Insurance Company has also relied upon a decision in the case of Pappu and others vs. Vinod Kumar Lamba and another reported in AIR 2018 SC 592, wherein the Hon’ble Apex Court at para No.11 has observed thus:
“11. The question is: whether the fact that the offending vehicle bearing No.DIL-5955 was duly insured by respondent No.2 Insurance Company would per se make the Insurance Company liable? This Court in the case of National Insurance Co. Ltd. (AIR 2004 SC 1531) (supra), has noticed the defences available to the Insurance Company under Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988. The Insurance Company is entitled to take a defence that the offending vehicle was driven by an unauthorized person or the person driving the vehicle did not have a valid driving licence. The onus would shift on the Insurance Company only after the owner of the offending vehicle pleads and proves the basic facts within his knowledge that the driver of the offending vehicle was authorized by him to drive the vehicle and was having a valid driving licence at the relevant time. In the present case, the respondent No.1 owner of the offending vehicle merely raised a vague plea in the Written Statement that the offending vehicle DIL-5955 was being driven by a person having valid driving licence. He did not disclose the name of the driver and his other details. Besides, the respondent No.1 did not enter the witness box or examine any witness in support of this plea. The respondent No.2 Insurance Company in the Written Statement has plainly refuted that plea and also asserted that the offending vehicle was not driven by an authorized person and having valid driving licence. The respondent No.1 owner of the offending vehicle did not produce any evidence except a driving licence of one Joginder Singh, without any specific stand taken in the pleadings or in the evidence that the same Joginder Singh was, in fact, authorized to drive the vehicle in question at the relevant time. Only then would onus shift, requiring the respondent No.2 Insurance Company to rebut such evidence and to produce other evidence to substantiate its defence. Merely producing a valid insurance certificate in respect of the offending Truck was not enough for the respondent No.1 to make the Insurance Company liable to discharge his liability arising from rash and negligent driving by the driver of his vehicle. The Insurance Company can be fastened with the liability on the basis of a valid insurance policy only after the basic facts are pleaded and established by the owner of the offending vehicle – that the vehicle was not only duly insured but also that it was driven by an authorized person having a valid driving licence. Without disclosing the name of the driver in the Written Statement or producing any evidence to substantiate the fact that the copy of the driving licence produced in support was of a person who, in fact, was authorized to drive the offending vehicle at the relevant time, the owner of the vehicle cannot be said to have extricated himself from his liability. The Insurance Company would become liable only after such foundational facts are pleaded and proved by the owner of the offending vehicle.”
10. The said legal principle is laid down by the Hon’ble Apex Court considering the question relating to the driving licence wherein the onus also lies on the owner of the offending vehicle, to prove that the vehicle was driven by the driver having a valid driving licence. But in the present case, the defence taken by the Insurance Company is very vague and has not been proved.
11. Hence, we are of the considered opinion that the liability fastened on the Insurance Company to make the payment of compensation awarded to the claimant cannot be held to be unjustifiable.
12. As regards the quantum of compensation awarded by the Tribunal under the different heads, the same appears to be on the lower side. Considering the date of accident and the number of dependants and in the light of the dictum enunciated by the Hon’ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and others reported in 2017 ACJ 2700, we are of the considered opinion that the claimants are entitled for compensation of Rs.70,000/- under the conventional heads. Further, 15% of the income has to be added towards future prospects as the deceased was aged about 54 years at the time of accident. A sum of Rs.50,000/- has to be awarded towards loss of love and affection to the dependants in terms of the decision of the Hon'ble Apex Court in the case of Magma General Insurance Company Limited Vs. Nanu Ram @ Chunru Ram & others reported in 2018 ACJ 2782.
13. As could be seen from the records, the deceased was working as a Government School Teacher and was drawing a salary of Rs.27,505/- per month. The same is substantiated by the documents placed on record i.e., salary certificate – Ex.P9 and bank passbook – Ex.P19. Considering the same, a sum of Rs.4,125/- (i.e. 15% of the monthly income Rs.27,505/-) is added to Rs.27,505/-, which works out to Rs.31,630/- applying the multiplier of ‘11’ and deducting 1/3 towards the personal expenses of the deceased, the loss of dependency would work out to Rs.27,83,440/- (Rs.31,630 x 12 x 11 x 1/3). Accordingly, total compensation awarded by the Tribunal under the different heads is modified as under:
1 Loss of dependency 27,83,440.00 2 Loss of estate, loss of consortium and funeral expenses 70,000.00 3 Loss of love and affection 50,000.00 Total 29,03,440.00 14. The claimants are entitled to compensation of Rs.29,03,440/- as against Rs.24,90,484/- awarded by the Tribunal, which shall carry interest @ 6% per annum from the date of petition till the realization. The apportionment, disbursement and payment shall be in terms of the order passed by the Tribunal.
Accordingly, the appeal of the claimants is allowed to the extent indicated above and the appeal of the insurance company stands dismissed.
Sd/- JUDGE Dvr/Sn:
Sd/- JUDGE