IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K. SOMASHEKAR Miscellaneous First Appeal No. 5296/2015 BETWEEN:
1. SRI R VENKATESHAPPA S/O LATE RAMAIAH AGED ABOUT 47 YEARS 2. SMT ANJINAMMA W/O R VENKATESHAPPA AGED ABOUT 43 YEARS BOTH ARE PERMANENT RESIDENTS OF MUGALAHALLI GATE THUMBENAHALLI POST HOSUR TALUK KRISHNAGIRI DISTRICT TAMIL NADU PRESENTLY RESIDING AT NO. 258, 3RD CROSS, 4TH MAIN, PEENYA DASARAHALLI BANGALORE-58 ... APPELLANTS (BY SRI GOPALKRISHNA. N, ADV.) AND 1. N MANJUNATHA S/O. NARAYANAPPA AGED ABOUT 23 YEARS RESIDING AT NO. 1286 PATTAVARAPALLI VILLAGE DEVARAPALLI POST HOSUR TALUK KRISHNAGIRI DISTRICT TAMIL NADU 635 001.
2. THE NATIONAL INSURANCE COMPANY LTD REGIONAL OFFICE SUBHARAM COMPLEX M G ROAD BANGALORE-560001 REP: BY ITS MANAGER. ... RESPONDENTS (BY SMT. H. R. RENUKA, ADV. FOR R2 NOTICE TO R1 IS HELD SUFFICIENT) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:7.1.2015 PASSED IN MVC NO.1238/2012 ON THE FILE OF THE 16TH ADDITIONAL JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment This appeal is listed for admission. With the consent of the learned counsel for the appellants and the respondent, the appeal is taken up for disposal.
2. The factual matrix of the appeal is as under:
It is stated in the claim petition that petitioners are the parents of deceased Srinivas. The respondents are the owner and insurer of the motorcycle bearing registration No.TN-70-B-4612. On 22.05.2011 at about 5.20 p.m., the deceased Srinivas was riding motorcycle bearing No.TN-70-A-7592 on D.N.Doddi Road in Malur Taluk of Kolar District. When he reached near Bantahalli cross, at that time, the motorcycle bearing registration No. TN-70-B-4612 ridden by its rider came from the opposite direction at high speed in a rash and negligent manner and dashed against the petitioner’s motorcycle. Due to the impact, deceased Srinivas fell down and sustained grievous inquiries. Subsequently, the injured was taken to the Government Hospital at Hosur, wherein first aid treatment was given to him and thereafter, the injured was shifted to Higher Centre at Bangalore to provide further treatment but he died on the way. Subsequently, the legal representatives of the deceased filed claim petition before the Tribunal seeking compensation.
3. On receipt of notice in the claim petition, respondent No.2 entered its appearance and filed statement of objections in detail. Respondent No.1 remained absent and he was placed ex-parte. In the statement of objections filed by respondent No.2, it has denied the averments made in the claim petition and has sought for dismissal of the claim petition.
4. Based upon the pleadings of the parties, the Tribunal has framed issues. Thereafter, in order to establish the case of the petitioners/claimants, petitioner No.1 examined himself as PW-1 and got marked Ex.P1 to Ex.P8. The respondent No.2 in support of its contentions has examined two witnesses as RW-1 and RW-2 and got marked Ex.R1 to Ex.R33.
5. Subsequently, the Tribunal evaluated the entire evidence of PW-1 Venkateshappa and also appreciated the documents such as Ex.P1 said to be the FIR recorded by the police, who have investigated the case against the rider of the offending vehicle and filed charge sheet against him; Ex.P.5 - the inquest report issued by the concerned authority; Ex.P6 – post mortem report issued by the doctor who conducted autopsy over the dead body. On evaluation of the evidence and perusal of the documents produced, the Tribunal awarded compensation in a sum of Rs.7,24,500/- under different heads, with interest @ 9% p.a.
6. Learned counsel for the appellants has taken me through the impugned judgment rendered by the Tribunal and contended that the Tribunal erred in absolving the insurer of its liability on the ground that the driver of the vehicle involved in the accident had no valid driving license. He further contended that the Tribunal erred in coming to the conclusion that driver of offending vehicle had no driving license merely relying on the endorsement issued by the concerned police authorities vide Ex.R33 which revealed that copy of driving license of the driver of the offending vehicle was not available in the police records.
7. Learned counsel for the appellants in support of his contention has placed reliance on AIR 2018 SC 592 rendered by the Hon’ble Apex Court in the case of PAPPU & ORS. vs. VINOD KUMAR LAMBA & ANOTHER – wherein it is stated as under:
“Motor Vehicles Act, S.149 – Insurer’s liability – Accident occurred due to rash and negligent driving of truck – Insurer taking plea that driver of offending truck had no valid licence - Except copy of driving licence of person, owner of offending truck not producing any evidence establishing that it was driven by authorized person having valid driving licence – Fact that offending truck was duly insured – would not per se make insurance company liable – However, insurance company directed to pay award amount to claimants in first instance and in turn, recover same from owner of vehicle”
8. Keeping in view the ratio laid down by the Apex Court, learned counsel for the appellant seeks for allowing the appeal and shifting the liability upon the Insurance Company to pay compensation awarded by the Tribunal.
9. Per contra, learned counsel for the respondent – insurer contends that petition is not maintainable under Section 163-A of MV Act, and the court has no jurisdiction to try the matter and the owner and the police have not complied with the mandatory provisions of law and the accident has occurred only due to rash and negligent riding of the deceased himself and the owner of the motorcycle has violated the terms and conditions of the policy and the claim of petitioner is exorbitant and speculative. The Tribunal, on appreciation of the evidence/material on record has rightly assessed the income of the deceased and has awarded just and fair compensation, which does not calls for interference and prays for dismissal of the appeal.
10. Keeping in view the contentions as taken by learned counsel for the appellants and the insurance company it is relevant to state that there is no dispute regarding death of deceased on 22.5.2011. PW.1 – Venkateshappa who is the father of deceased in his evidence has reiterated the averments of the petition and during the cross-examination, he has denied all the suggestions put to him. But the Tribunal considered his evidence in so far as it relates to causing of injuries to his son and his death due to such injuries. Charge sheet has been filed against the rider of motorcycle bearing No.TN-70-B-4612 for the offences punishable under Section 279 and 304A of IPC. The Tribunal on evaluating the entire oral and documentary evidence on record, has held that the offending vehicle and its rider are the cause for the accident. After considering the age of deceased, his avocation as agriculturist and assessing his income the Tribunal awarded a sum of Rs.7,24,500/- towards loss of dependency and no compensation was awarded under any heads.
11. Further, the Tribunal relying on the endorsement given by the SP, Kolar at Ex.R-33 which clearly reveals that the copy of driving licence of the respondent is not available in the police records. Evidence of RW.1 and RW.2 is well supported in respect of non-existence of driving licence to the respondent no.1. Accepting the evidence placed by the insurer the Tribunal held that the rider of the offending vehicle did not had valid licence to ride the vehicle and finally awarded compensation of Rs.7,24,500/- with interest @ 9% p.a. from the date of petition till the date of payment and fastened the liability on respondent no.1 to deposit the compensation amount.
12. In view of the judgment of Hon’ble Apex Court in Pappu’s case referred to supra, the liability has to be fastened on the insurer subject to the principle of pay and recover. The Apex Court in the said judgment has held that insurance company can be fastened with liability on the basis of valid insurance policy and negatived the contention of insurer that no liability can be levied on it, when the driver of the offending vehicle lacks a valid driving licence. Insurance company was directed to pay award amount to the claimants in first instance and in turn, recover same from owner of vehicle.
13. Further, the Tribunal while calculating the compensation of Rs.7,20,000/- under the head loss of dependency, has not deducted 1/3 of the amount towards personal expenses of the deceased who is said to be unmarried and so also the claim was made under Section 163A of the Act. In this regard, it requires intervention of this Court. Keeping these things in view, the compensation under loss of dependency is re- worked out as under:
Rs.40,000 x 17 x 2/3 = 4,53,333 Accordingly, the compensation under the head of loss of dependency is reduced to Rs.4,53,333/- as against Rs.7,20,000/- awarded by the Tribunal.
14. Further, the compensation awarded by the Tribunal under other heads is just and proper and it does not call for any interference. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Compensation awarded under the heads By MACT Reduced By this court Total Loss of dependency 7,20,000 2,66,667 4,53,333
For the above said reasons, I proceed to pass the following:
ORDER The appeal is allowed in part. Consequently, the judgment and award passed by the Tribunal in MVC No.1238/2012 dated 07.01.2015 is hereby modified fastening the liability on the second respondent – insurer. The compensation payable to the appellants is reduced from Rs.724,500/- to Rs.4,57,833/- with interest @ 9% p.a. from the date of petition till the date of payment. The insurer shall deposit the award amount within a period of six weeks from the date of receipt of copy of this order and on such deposit, the same shall be disbursed to the claimants, on proper identification.
*The second respondent – National Insurance Co. Ltd. is at liberty to recover the same from the owner of the offending vehicle – Respondent No.1, in accordance with law.
* Last sentence inserted vide court order dated 28.02.2019 There shall be no order as to the costs. Office to draw the decree accordingly.
SD/- JUDGE VP/DKB