IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY M.F.A. NO. 1070 OF 2012(MV) BETWEEN.
1. Smt. Shakuntallamma @ Shankunthala @ Shekavva W/o Shanthappa Aged about 44 years 2. Sri. Shanthappa Sannakambi S/o Mallappa Aged about 53 years Both are residing at Bethnal Village and post Hanagal Taluk, Haveri District Pin-581 104 …Appellants (By Sri Prabhu Swamy N , Advocate for Sri V B Siddaramaiah, Advocate ) AND 1. The Bajaj Alliance General Insurance Co. Ltd., No.31, T.B.R. Tower, 1st Cross, New Manson Road, Adjacent to Jain College and Bangalore Stock Exchange, J.C.Road, Bangalore-560 004. Rep. by its Branch Manager.
2. Sri M.Praveen Kumar S/o M.Muniraju, major, Age not known to Appellants, No.77, Jyothi Bhavnan Road, J.S.Dinne, J.P.Nagar 8th Phase, Bangalore-560 076. ... Respondents (By Smt H.R. Renuka, Advocate for R1) R2 served) This MFA is filed under Section 173(1)l of MV Act against the judgment and award dated 15.07.2011 passed in MVC No.6994/2009 on the file of the IX Additional Senior Civil Judge, Member, MACT-7, Court of Small Causes, Bangalore, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA coming on for hearing this day, the Court made the following:-
JUDGMENT The appellants herein were the claimants before the IX Additional Senior Civil Judge, Member, MACT-7, Court of Small Causes, Bangalore (hereinafter referred to as ‘the Tribunal’ for brevity) who had filed a claim petition against the present respondents under Section 163-A of the Motor Vehicle Act, 1989 (hereinafter referred to as ‘the Act’ for brevity) seeking grant of compensation of a sum of `5,50,000/- in their favour on account of death of Sri.Annappa Shanthappa Sannakambi in a road traffic accident.
2. The summary of the case of the claimants before the Tribunal is that on 18.06.2008 at about 08.30 p.m., deceased was crossing the road near Nice Road Bridge, Electronic City. At that time, a motor cycle bearing Registration No.KA-51-7-460, being ridden by its rider in a rash and negligent manner and in a high speed, came from Bannerghatta road side and dashed against the deceased. Due to the said road traffic accident, the deceased sustained grievous injuries and succumbed to the same. The claimants contend that the accident in question since has occurred due to rash and negligent riding of the motor cycle by its rider, the respondent No.1, being the owner, and respondent No.2, being the insurer of the offending motor cycle, are jointly and severally liable to pay compensation.
After recording evidence led by the parties before it, the Tribunal awarded a compensation of a sum of `3,16,500/-, however, observing that the rider of the motor cycle did not have a valid and effective driving licence as on the date of accident, exonerated the respondent No.2, insurer of the vehicle, from the liability. In this appeal the claimants as appellants have prayed for modification of the said judgment and award under appeal fixing the liability upon the respondent No.1-Insurance Company.
3. Learned counsel for the appellants in his argument submitted that the multiplier taken by the Tribunal is inappropriate and it should have taken the age of the deceased into consideration, in which case the appropriate multiplier would be ‘17’. Citing the judgment of the Hon’ble Apex Court in Pappu & Ors. – vs – Vinod Kumar Lamba and Anr. reported in AIR 2018 SUPREME COURT 592, learned counsel further submitted that as held in the said case, even in the absence of the rider or driver of the vehicle holding a valid driving licence, the insurer cannot be absolved from its liability. However, the insurer may be granted liberty to recover the amount, awarded and paid by him, from the owner of the vehicle.
4. Learned counsel for the respondent No.1- Insurance Company in her argument though fairly conceded that the multiplier applicable in this case would be ‘17’, but submitted that in no circumstance the insurer is liable. As such, fixing the liability to pay compensation upon the owner by the Tribunal does not warrant any interference at the hands of this Court.
5. The present appeal being the appeal by the claimants for modification of the impugned award by enhancing the compensation and fixing the liability upon the insurer, the occurrence of the accident and rash and negligent riding of the motor cycle by its rider causing the accident in question and also deceased Annappa sustaining injuries in the said accident and succumbing to the injuries later are not in dispute. The only dispute is with respect to the applicable multiplier and the liability of the insurer.
It is settled principle in the case of death of a person like in the case on hand, that it is the age of the deceased which is required to be taken in such an event, as could be seen from Ex.P13 which is the date of birth certificate. The date of birth of deceased Annappa is 12.05.1988. The date of accident is 18.06.2008. As such, as on the date of accident his age was 20 years, 1 month and 6 days, Thus as per the II Schedule of the Act, the appropriate multiplier applicable in the case on hand is ‘17’.
The income of the deceased is taken at `3,000/- p.m. After deduction of 1/3rd from it, `2,000/- would be the income of the deceased for the purpose of calculation of quantum of compensation. Thus, the compensation towards ‘loss of dependency’ would be `2,000 p.m. x 12 months x 17 multiplier = `4,08,000/-. Since the Tribunal has awarded only a sum of `3,12,000/-, the appellants are entitled to enhancement of `96,000/- under the head ‘loss of dependency’.
The other head under which compensation can be awarded in the present case, which is a claim petition under Section 163A of the Motor Vehicle Act, are the funeral expenses and towards loss of estate for which the Tribunal has appropriately awarded a sum of `2,000/- and `2,500/- respectively as compensation. As such, the same does not warrant interference at the hands of this Court.
Barring the above, the appellants are not entitled for a compensation under any other head or enhancement in any of the heads under which compensation has been awarded by the Tribunal.
Regarding the liability aspect is concerned, according to the learned counsel for the appellants, even though it is held that the driver of the offending motor vehicle not possessing the driving license still, the insurer cannot be absolved from its liability. However, the Insurance Company may be directed to pay the award amount to claimants/appellants in the first instance and in turn recover the same from the owner of the vehicle.
In Pappu’s case (supra), relied upon by the learned counsel for the appellants, where the Insurance Company has taken a plea that the driver of the offending truck since had admittedly not having valid driving licence as on the date of accident, the insurance company was not liable, the Hon’ble Apex court not accepting their argument and referring to its previous judgment in National Insurance Co. Ltd., v. Swaran Singh and others (AIR 2004 SC 1531) case, was pleased to observe that in the said case it was held that even where the insurer was able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is or so fundamental as are found to have contributed to the cause of the accident. Accordingly, in Pappu’s case also, the Hon’ble Apex court had directed the Insurance Company to pay the award amount to the claimants in the first instance and in turn recover the same from the owner of the vehicle. In the light of the said judgment, the argument of the learned counsel for the respondent No.1-Insurance Company that the Insurance Company is not liable to pay the award amount is not acceptable.
6. Accordingly, I proceed to pass the following:
ORDER i) The appeal is allowed in part.
ii) The judgment and award passed by the IX Additional Senior Civil Judge, Member, MACT-7, Court of Small Causes, Bangalore, in MVC No.6994/2009 dated 15.07.2011, is modified to the extent that the quantum of compensation awarded at `3,16,500/- (Rupees Three Lakh Sixteen Thousand Five Hundred Only) is enhanced by a sum of `96,000/- (Rupees Ninety Six thousand only). Thus, the claimants therein are entitled for a total compensation of `4,12,500/- (Rupees Four Lakh Twelve Thousand Five Hundred Only).
The dismissal of the claim petition as against respondent No.1 herein-Insurance Company is set aside and it is held that respondent 1 is liable to pay award amount together with interest at the rate of 6% p.a. from the date of petition till the date of realization to the claimants.
Respondent No.2 in the claim petition being the insurer of the vehicle, is directed to pay the award amount to the claimants by depositing the award amount together with awarded interest accrued, in the Tribunal within eight weeks from today and in turn, the said Insurance Company can recover the same from respondent No.1, who is the owner of the vehicle.
The order passed by the Tribunal regarding apportionment of the awarded amount remains unaltered.
Draw modified award accordingly.
Registry to transmit a copy of this judgment along with the Lower Court Records to the Tribunal without delay.
Sd/- JUDGE rs