IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 25TH DAY OF APRIL, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.10240 OF 2013 [MV] CONNECTED WITH MISCELLANEOUS FIRST APPEAL NO.9058 OF 2013 [MV] IN MFA NO.10240/2013:
BETWEEN SMT. SOWJANYA R., W/O. LATE NARAYANASWAMY, AGED ABOUT 27 YEARS, C/O. H.M.RAGHUNATH, G.S.R. COMPLEX, 2ND FLOOR, NEAR MANTHRI SCHOOL, HOSKOTE TOWN-572 114. ... APPELLANT [BY SMT. SUGUNA R. REDDY, ADVOCATE] AND 1. THE BRANCH MANAGER, NEW INDIA INSURANCE CO. LTD., REGIONAL OFFICE, UNITY BUILDING ANNEXE, MISSION ROAD, BANGALORE-560 001.
2. SRI. C.M.HAMSAGIRI, S/O. NOT KNOW TO APPELLANT, MAJOR IN AGE, R/AT CORPORATION ROAD, BANGARPET, KOLAR DISTRICT-563 114.
3. SMT. SAROJAMMA, W/O. LATE RAMAIAH, AGED ABOUT 62 YEARS, R/AT C/O. H.M.RAGHUNATH, G.S.R.COMPLEX, 2ND FLOOR, NEAR MANTHRI SCHOOL, HOSKOTE TOWN, HOSKOTE-572 114. ... RESPONDENTS [BY SRI.R. JAIPRAKASH, ADVOCATE FOR R1; SRI. PRAKASH M.H., ADVOCATE FOR R3; R2-SERVED] THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 23.07.2013 PASSED IN MVC NO.6969/2011 ON THE FILE OF THE III ADDITONAL SENIOR CIVIL JUDGE AND MEMBER MACT, BENGALURU, IN PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
* * * IN MFA NO.9058/2013:
BETWEEN NEW INDIA ASSURANCE CO. LTD., REGIONAL OFFICE, UNITY BUILDING ANNEXE, MISSION ROAD, BANGALORE. REPRESENTING NEW INDIA ASSURANCE COMPANY, M.G. ROAD, BANGALORE, BY ITS MANAGER. ... APPELLANT [BY SRI. R.JAIPRAKASH, ADVOCATE] AND 1. SRI. C.M.HAMSAGIRI, S/O. CHIKKAMUNISWAMY, AGED ABOUT 33 YEARS, SRI. S.N.REAL ESTATES AND DEVELOPERS, CORPN. ROAD, BANGARPET, KOLAR-563 114.
2. SMT. SOWJANYA, AGED ABOUT 27 YEARS, 3. SMT. SAROJAMMA, AGED ABOUT 62 YEARS, 4. MASTER NIKHITH, AGED ABOUT 4 YEARS, 5. SMT. MANGAMMA, AGED ABOUT 34 YEARS, 6. SMT. LAKSHMIDEVAMMA, AGED ABOUT 32 YEARS, 2ND RESPONDENT IS WIFE, 3RD RESPONDENT IS MOTHER, 4TH RESPONDENT IS SON, 5TH & 6TH RESPONDENT ARE SISTERS OF DECEASED NARAYANA SWAMY K.R. SINCE 4TH RESPONDENT IS MINOR, REPRESENTING BY 2ND RESPONDENT.
ALL ARE R/AT C/O. H.M. RAGHUNATH, GSR COMPLEX, 2ND FLOOR, NEAR MANTRIAL SCHOOL, HOSAKOTE TOWN, HOSAKOTE. ... RESPONDENTS [BY SMT. SUGUNA R. REDDY, ADVOCATE FOR R2.
SRI. PRAKASH M.H., ADVOCATE FOR R3. R1 & R5 ARE SERVED.
SINCE R4-MINOR REPRESENTED BY R2.
NOTICE TO R6 DISPENSED WITH VIDE COURT ORDER DATED 16.01.2017] THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 23.07.2013 PASSED IN MVC NO.6969/2011 ON THE FILE OF THE III ADDITONAL SENIOR CIVIL JUDGE AND MEMBER MACT, BENGALURU, AWARDING COMPENSATION OF RS.10,86,480/- WITH INTEREST @ 8% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THESE MFAs COMING ON FOR FURTHER HEARING, THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT MFA No.10240/2013 is filed by the claimant/widow of the deceased and MFA No.9058/2013 is filed by the Insurance Company. Both the appeals are directed against the Judgment and Award dated 23.07.2013 passed in MVC No.6969/2011 on the file of the Court of Senior Civil Judge and MACT., Bengaluru.
2. I have heard the learned counsel appearing on both side.
3. The brief facts leading to filing of these appeals are that;
On 21.09.2011 at about 3.30 p.m., when the deceased Narayana Swamy was riding the motorcycle bearing reg. No.KA-53/V-2896 near RTO Office, Mulbaglu, Kolar Road, N.H.4, the driver of the tipper lorry bearing reg. No.KA-09/B- 1862 drove the same in a rash and negligent manner from Kappalamadagu towards Mulbagal and dashed against the motorcycle. Due to which, the deceased fell down and sustained injuries and succumbed to the injuries on the way to the hospital.
The claim petition was filed before the Tribunal by the widow, mother, son and two sisters of the deceased seeking a total compensation of Rs.15,00,000/- for the death of Narayana Swamy.
Before the Tribunal, the mother and widow of the deceased were examined as P.Ws.1 and 2 respectively. Exs.P1 to 10 were marked in their evidence. The claim petition was resisted by the Insurance Company. R.W.1 was examined on behalf of the Insurer of the offending vehicle and Exs.R1 to R5 were marked in his evidence.
The Tribunal considering the evidence and material on record awarded a total compensation of Rs.10,86,480/- with interest at the rate of 8% p.a., to petitioner/claimant Nos.1 and 2 and dismissed the petition with regard to petitioner/claimant Nos.3 to 5.
The Tribunal has further ordered that petitioner /claimant No.1 is entitled for a compensation amount of Rs.6,51,888/- and petitioner No.2 is entitled for a compensation amount of Rs.4,34,592/-. Respondent Nos.1 and 2 were held jointly and severally liable to pay the compensation and respondent No.1 before the Tribunal i.e., Insurance Company was directed to deposit the said amount with interest.
4. The learned counsel appearing for the appellant i.e., widow of the deceased in MFA No.10240/2013 contended that the deceased was a flower merchant and was earning a sum of Rs.15,000/- p.m. and therefore, the income taken by the Tribunal at Rs.6,000/- p.m. is on a lower side. It is submitted that the Tribunal has added only 30% of the income towards future prospects, which is also on a lower side. Accordingly, she seeks to enhance the compensation awarded by the Tribunal.
On the other hand, learned counsel appearing for the Insurance Company would contend that the driver of the offending vehicle was not holding a valid and effective driving licence as on the date of the accident. The driver was holding a driving licence to drive a heavy passenger vehicle whereas the vehicle involved in the accident is heavy goods vehicle and therefore, he contends that there is violation of policy conditions and the insurer cannot be held liable to pay the compensation. He further submits that the compensation awarded in the facts and circumstances of the case is just and reasonable and does not warrants any interference. Accordingly, he seeks to dismiss the appeal filed by the claimant/widow of the deceased and allow the appeal filed by the Insurance Company.
5. It is the case of the claimants that on 21.09.2011 at about 3.30 p.m. when the deceased was riding the motorcycle bearing reg. No.KA-53/V-2896, a tipper lorry bearing reg. No.KA-09/B-1862 driven by its driver in a rash and negligent manner, dashed against the motorcycle. On account of which the deceased sustained injuries and died on the way to the hospital.
6. The learned counsel for the Insurance Company has not disputed the accident in question involving the tipper lorry which was insured. However, it is his contention that the driver of the said tipper lorry was holding a driving licence to drive heavy passenger vehicle whereas the said lorry is a heavy goods vehicle and therefore, the Insurance Company cannot indemnify the insured.
7. The Honble Apex Court in the case of Mukund Dewangan Vs. Oriental Insurance Company Limited reported in AIR 2017 SUPREME COURT 3668 at para 13 has held as under:
“Prior to amendment in 1994 licence for transport vehicle was clearly covered as per Section 10(2) in five categories, i.e., Section 10(2)(d) light motor vehicle, Section 10(2)(e) medium goods vehicle, Section 10(2)(f) medium passenger motor vehicle, Section 10(2)(g) heavy goods vehicle and Section 10(2)(h) heavy passenger motor vehicle. The licence for ‘light motor vehicle’ has been provided in section 10(2)(d). The expression ‘transport vehicle’ has been inserted by virtue of Amendment Act 54/1994 in section 10(2)(e) after deleting four categories or classes of vehicles, i.e., medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, and heavy passenger motor vehicle. Earlier Section 10 did not contain the separate class of transport vehicles.”
8. A perusal of Ex.R3-driving licence extract goes to show that the driver of the offending vehicle was holding a driving licence to drive heavy passenger vehicle. Ex.R4-‘B- Extract’ of the vehicle involved in the accident shows that it is a heavy goods vehicle. However, unladen weight of the said vehicle is 7,440 kg. It cannot be said that the driver of the offending vehicle was not holding a valid and effective driving licence at the time of the accident since Ex.R3 clearly discloses that he was possessing a driving licence to drive heavy passenger vehicle. Therefore, it can be safely held that as on the date of accident; the driver of the offending vehicle was holding an effective driving licence to drive heavy goods vehicle or the category of vehicle which is involved in the accident. In view of the same, the contention raised by the learned counsel appearing for the Insurance Company cannot be accepted.
9. According to the learned counsel appearing for the appellant/claimant, the deceased was a flower merchant earning Rs.15,000/- p.m. and maintaining the family. There is no specific evidence with regard to the income of the deceased. In view of the absence of any convincing evidence, it cannot be held that the deceased was having an income of Rs.15,000/- p.m. However, considering the facts and circumstances of the cases and also the year of the accident, the notional income of the deceased can be taken as Rs.6,500/-. The deceased was aged about 33 years at the time of the accident. 40% of the income has to be added towards future prospects. Appropriate multiplier applicable to the age of the deceased is ‘16’. After deducting 1/3rd towards personal expenses of the deceased, the claimants shall be entitled for a sum of Rs.11,64,864/- [Rs.6,500 + 2,600 = Rs.9,100 – 3,033 = Rs.6,067 x 12 x 16] towards loss of dependency as against Rs.9,96,480/- awarded by the Tribunal.
10. The appellant is the widow of the deceased and respondent No.3 is the mother of the deceased. The compensation has been awarded to the wife and mother of the deceased by the Tribunal. Under the conventional heads viz., loss to the estate, loss of consortium and funeral expenses, the claimants are entitled for a sum of Rs.70,000/-. Another sum of Rs.40,000/- is awarded towards loss of love and affection to the mother of the deceased. In all, the claimants viz., widow and mother of the deceased are entitled for a total compensation of Rs.12,74,864/- which is rounded off to Rs.12,75,000/-. Accordingly, I pass the following:
ORDER MFA No.10240/2013 is allowed in part. MFA No.9058/2013 is dismissed. The Judgment and Award dated 23.07.2013 passed in MVC No.6969/2011 on the file of the III Additional Senior Civil Judge and Member, MACT., Bengaluru is hereby modified.
The claimant Nos.1 and 2 in MVC No.6969/2011 are entitled for a total compensation of Rs.12,75,000/- as against Rs.10,86,480/- awarded by the Tribunal.
The apportionment of compensation shall be in terms of the order passed by the Tribunal. The enhanced compensation of Rs.1,88,520/-shall carry interest at the rate of 6% p.a. from the date of petition till realization. The Insurance Company shall deposit the amount within a period of four weeks from the date of receipt of a copy of this Judgment.
The amount in deposit before this Court shall be transmitted to the Tribunal.
Sd/- JUDGE.
Ksm*