IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.3700/2011 [MV] BETWEEN:
1. SRI K N MANJUNATH S/O NARAYANAPPA AGED ABOUT 38 YEARS 2. BABU S/O K N MANJUNATH AGED ABOUT 11 YEARS (MINOR) 3. KALYAN KUMAR S/O K N MANJUNATH AGED ABOUT 11 YEARS (MINOR) APPELLANTS No.2 AND 3 ARE MINORS REP. BY THEIR FATHER AND NATURAL GUARDIAN SRI. K.N. MANJUNATH ALL ARE R/AT KATENAHALLI VILLAGE GUDIBANDE TALUK KOLAR DISTRICT.
(BY SMT. BHUSHANI KUMAR, ADV.) AND:
1. M/S. VERAM TRADINGS REP. BY ITS AUTHROIZED SIGNATORY ... APPELLANTS NO.6/3, GANGA AVENUE PERUMAL KOIL STREET ALAPAKKAM, CHENNAI-600016.
2. ICICI LOMBARD GENERAL INSURANCE II FLOOR, PRESTIGE CORNICHE RICHMOND ROAD BANGALORE-560027 REP. BY ITS BRANCH MANAGER.
... RESPONDENTS (BY SRI.H C VRUSHABHENDRAIAH, ADV. FOR R2 R1-SERVED & UNREPRESENTED) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 16.12.2010 PASSED IN MVC NO.3624/2007 ON THE FILE OF THE I ADDITIONAL SMALL CAUSE JUDGE, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The claimants are before this Court, not being satisfied with the quantum of compensation awarded under the judgment and award dated 16.12.2010 passed in MVC No.3624/2007 on the file of the Motor Accident Claims Tribunal, Bengaluru (hereinafter referred to as 'the Tribunal' for short).
2. The claimants are husband and children of the deceased Padmavathi. They filed claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the death of Padmavathi in a road traffic accident which occurred on 15.02.2007. It is stated that, on 15.02.2007, a Tanker lorry bearing registration No.KA-TN-10L-0741 came in a rash and negligent manner and dashed against the deceased causing grievous injuries. Subsequently, the injured succumbed to the injuries.
3. The respondent No.2/Insurance Company appeared before the Tribunal and filed its objections denying the claim petition averments and contended that the driver of the offending vehicle had no valid and effective driving license to drive the said class of vehicle. It was also stated that the deceased was mentally disabled lady and was stated that the death was due to her own negligence.
4. On behalf of the claimants, claimant No.1 examined himself as P.W.1 and also examined one more witness as P.W.2 apart from marking documents Ex.P1 to Ex.P9. On behalf of the respondents, two witnesses were examined as R.W.1 and R.W.2 and got marked the documents Ex.R1 to Ex.R3.
5. The Tribunal, on assessing the material on record and taking into consideration the income of the deceased at Rs.3,000/- p.m. and deducting 1/3rd towards personal expenses, awarded total compensation of Rs.4,50,000/- with interest at the rate of 6% p.a. The claimants, not being satisfied with the quantum of compensation are before this Court seeking enhancement of compensation.
6. Heard the learned counsel for the parties and perused the lower court records.
7. Learned counsel for the appellants would submit that the deceased was aged about 30 years as on the date of accident. The accident is of the year 2007. The claimant was working as coolie. The income assessed by the Tribunal at Rs.3,000/- p.m. is on the lower side. Learned counsel further submits that minimum of Rs.4,000/- ought to have been assessed by the Tribunal as monthly income of the deceased for determination of loss of dependency. It is further submitted that the claimants would be entitled for Rs.70,000/- on conventional heads, as per the decision of the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED V/S PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680. Learned counsel would also submit that claimants No.2 and 3 are children of the deceased who were minors as on the date of accident would be entitled to Rs.40,000/- each as per the decision of the Hon'ble Supreme Court reported in 2018 ACJ 2782 in the case of MAGMA GENERAL INSURANCAE COMPANY LIMITED v/s NANU RAM AND OTHERS. Learned counsel for the claimants further contends that the Tribunal committed an error in fastening liability on respondent No.1/owner of the offending vehicle relying upon the decision of the Hon'ble Supreme Court in RANI AND OTHERS v/s NATIONAL INSURANCE COMPANY LIMITED AND OTHERS reported in (2018) 8 SCC 492.
8. Per contra, learned counsel for the respondent/ Insurance Company would submit that the claimants would not be entitled for any enhanced compensation and he submits that the quantum of compensation awarded by the Tribunal is just compensation which requires no interference by this Court.
9. On hearing the learned counsel for the parties and on perusal of the records, the only question which arises for consideration is whether the claimants would be entitled for enhanced compensation?
10. The accident is of the year 2007. The deceased was aged 30 years as on the date of accident. The first claimant is the husband and claimants 2 and 3 are minor children of the deceased. It is stated that the deceased was working as a coolie and she was earning more than Rs.4,000/- p.m. This Court and Lok Adalaths, while settling the accident claims of the year 2007 would normally take notional income of Rs.4,000/- p.m., for determination of loss of dependency. In the present case also, in the absence of any material to indicate the exact income of the deceased, it would be appropriate to take Rs.4,000/- as notional income of the deceased as against Rs.3,000/- assessed by the Tribunal. Further, the Hon'ble Supreme Court in PRANAY SETHI case (supra) in the case of death of wife or husband as the case may be, has observed that the claimants would be entitled for a sum of Rs.70,000/- on conventional heads. In the decision in MAGMA (supra), the Hon'ble Apex Court has held that the minor children would be entitled to Rs.40,000/- each, as parental consortium. Thus, the claimants would be entitled to the following modified enhanced compensation:
Loss of dependency (4000-1/3=2667x12x17) :: Rs.5,44,068 Conventional heads :: Rs. 70,000 Parental consortium (Rs.40,000/- each) :: Rs. 80,000 Total Rs.6,94,068 Thus, the claimants would be entitled to total compensation of Rs.6,94,068/- as against Rs.4,50,000/- with interest at the rate of 6% p.a.
11. The Tribunal fastened the liability on the owner on the ground that the driver of the offending vehicle had no valid and effective driving license as on the date of accident. Moreover, the first respondent/owner did not appear before the Tribunal and when he was called upon to produce the documents under Ex.R-1 notice, he has failed to produce the same. The Hon'ble Supreme Court in the case of PAPPU AND OTHERS VS. VINOD KUMAR LAMBA AND ANOTHER (2018) 3 SCC 208, at paragraphs No.1, 13, 15, 16, 17 and 19 has held as under:
“1. This appeal questions the legality and tenability of the judgment of the High Court of Judicature at Allahabad in Dhrupati v. Vinod Kumar, dated 9-10-2014, whereby the appeal filed by the appellants was dismissed by the High Court whilst rejecting the only question raised before it regarding absolving the Insurance Company (Respondent No.2) from any liability in respect of truck bearing No.DIL-5955, which was duly insured by Respondent 2 insurance Company, on the ground that the same was not driven by a person having a valid licence, as found by the Motor Accidents Claims Tribunal, District Allahabad in Claim Petition No.215 of 1999.
13. In the present case, Respondent 1 owner of the offending vehicle merely raised a vague plea in the written statement that the offending Vehicle No.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, Respondent 1 did not enter the witness box or examine any witness in support of this plea. Respondent 2 insurance company in the written statement has plainly refuted that plea and also asserted that the offending vehicle was not driven by an authorised person and having valid driving licence. Respondent 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, authorised to drive the vehicle in question at the relevant time. Only then would onus shift, requiring the Respondent 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 Respondent 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 authorised 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 authorised 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.
15. Be that as it may, no grievance about the quantum of compensation awarded by the Tribunal has been made by the appellants claimants (either before the High Court or before us in this appeal). Hence, that issue does not warrant any scrutiny. Similarly, the owner of the vehicle (Respondent 1) has not challenged the findings of the Tribunal as affirmed by the High Court in favour of the insurer (Respondent 2), including on the factum that the vehicle was driven by a person who did not have a valid driving licence at the relevant time.
16. The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (Respondent 1)?
17. This issue has been answered in National Insurance Co. Ltd. In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In paragraph 107, the Court then observed thus:(SCC p.340) “107. We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub- clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realise the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it had not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.”
19. In the present case, the owner of the vehicle (Respondent 1) had produced the insurance certificate indicating that Vehicle No. DIL 5955 was comprehensively insured by the Respondent 2 (insurance company) for unlimited liability. Applying the dictum in National Insurance Co. Ltd., to subserve the ends of justice, the insurer (Respondent 2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (Respondent 1) in accordance with law.”
12. Following the above decision, it is held that it is a case of “Pay and Recovery”. Hence, respondent No.2/Insurance Company is directed to pay the compensation at the first instance and the insurer is at liberty to recover the same from the first respondent/ owner of the offending vehicle.
13. Accordingly, the appeal is allowed in part. The impugned judgment and award dated 16.12.2010 passed in MVC No.3624/2007 on the file of the Motor Accident Claims Tribunal, Bengaluru is modified and the claimants are entitled to compensation of Rs.6,94,068/- as against Rs,.4,50,000/- with interest at the rate of 6% p.a. thereby the claimants are entitled to enhanced compensation of Rs.2,44,068/-.
The insurer shall deposit the compensation before the Tribunal within a period of six weeks.
The apportionment and deposit would be as ordered by the Tribunal.
Sd/- JUDGE mpk/-* CT:bms