IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2019 PRESENT THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA AND THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ M.F.A. No.4162 OF 2017 (MV) BETWEEN:
THE UNITED INDIA INSURANCE CO. LTD DIVISIONAL OFFICE SATHYANARAYANA BUILDING NSC BOSE ROAD, ROBERTSONPET KGF-563122 REPRESENTED BY THE REGIONAL MANAGER REGIONAL OFFICE NRUPATHUNGA ROAD BENGALURU-560001 ... APPELLANT (BY SRI. MOHAN KUMAR T., ADVOCATE) AND:
1. SMT. RANIMMA @ RANIYAMMA W/O LAE ANBU @ ANBALAGAN AGED ABOUT 30 YEARS 2. KUM. RADHA D/O LATE ANUBU @ ANBALAGAN AGED ABOUT 10 YEARS 3. KUM. RAMYA D/O LATE ANBU @ ANUBALAGAN AGED ABOUT 9 YEARS 4. SMT. PONNAMMA W/O KUPPUSWAMY AGED ABOUT 67 YEARS 5. KUM.PUSHPA D/O KUPPUSWAMY AGED ABOUT 24 YEARS 6. KUM. SHANTHI K D/O KUPPUSWAMY AGED ABOUT 22 YEARS SINCE RESPONDENTS NO.2 AND 3 ARE MINIORS REPRESENTED BY THEIR MOTHER/NATURAL GUARDIAN REPONDENT NO.1 HEREIN 7. SRI. SHABEER KHAN S/O IBRAHIM KHAN MAJOR R/AT PARANDAHALLI VILLAGE V.KOTA ROAD ROBERTSONPET KGF KOLAR DISTRICT-563122 8. SRI. KUPPUSWAMY S/O LATE MURUGESH AGED ABOUT 72 YEARS R/AT GORLACHINNAHALLI VILLAGE BETHAMANGALA POST BANGARPET TALUK KOLAR DISTRICT-563122 ... RESPONDENTS (BY SRI. GOPALAKRISHNA N. ADVOCATE FOR R1 TO 6; R7 AND R8-SERVED) THIS APPEAL IS FILED UNDER SECTION 173 (1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 24.01.2017 PASSED IN MVC NO.538/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE & PRINCIPAL JMFC, MACT, K.G.F., AWARDING COMPENSATION OF RS.21,12,000/- WITH INTEREST @ 9% P.A. FROM THE DATE OF PETITION TILL DEPOSIT/PAYMENT.
THIS APPEAL COMING ON FOR ORDERS, THIS DAY, SURAJ GOVINDARAJ. J., DELIVERED THE FOLLOWING:
JUDGMENT 1. The present appeal is filed by the Insurance Company challenging the correctness and legality of the judgment and award dated 24.01.2017 passed in MVC No.538/2015 by the Senior Civil Judge and Principal JMFC & MACT, KGF (hereinafter referred to as the ‘Tribunal’ for the sake of brevity).
2. For the sake of convenience, the parties shall be referred to in terms of their status and ranking before the Tribunal.
3. The facts briefly stated are that:
3.1. The deceased Anbu @ Anbalagan was the son of Petitioner No.4-Smt.Ponnamma and Respondent No.3- Sri.Kuppaswamy, Petitioner No.1-Smt.Raniamma @ Raniyamma, is his wife, Petitioner No.2, Kum.Ramya and Petitioner No. 3 Kum.Radha are his daughters, Petitioner No.5 Kum.Pushpa-and Petitioner No. 6-Kum.Shanti.K are his sisters.
3.2. On 13.09.2015, Anbu @ Anbalagan was going towards Nagarahalli Village from Bethamangala on his TVS XL Motorcycle bearing Registration No.KA-07-U-7564 slowly and cautiously on the correct side of the road. At about 5.30 p.m., when he reached near Doddakari gate on V.Kota- Bethamangala road, one minibus bearing Registration No.KA-40-3681 came from the opposite direction from V.Kota side driven at a high speed in a rash and negligent manner by its driver, who lost control over the vehicle. It went to the wrong side of the road and dashed violently against the vehicle of Anbu @ Anbalagan, who fell and sustained grievous injuries and succumbed to the injuries on the spot. It is stated that the accident occurred due to rash and negligent driving by the said minibus driver.
3.3. It is stated that the deceased Anbu @ Anbalagan was hale and healthy person of 30 years of age at the time of his death. He was a mason earning Rs.12,000/- per month, which he was contributing to the welfare of his family. They were all entirely dependent on the earnings of the deceased and after his death, they have no source of income for their livelihood. They were put to lot of mental agony and untold misery due to untimely death of the deceased, which needs to be compensated. They have also averred that they have spent about Rs.50,000/- towards transportation of dead body, funeral and obsequies expenses.
3.4. Though the deceased was survived by his father-Sri.Kuppaswamy, he was not interested in filing a petition, and he was arrayed as respondent No.3.
3.5. The respondent No.1 before the Tribunal is the owner of the minibus and second respondent is the insurer, who is the appellant herein.
3.6. It is stated that Bethamangala police have registered a case against the driver of the minibus in Crime No.146/2015 for the offences punishable under Sections 279 and 304 of Indian Penal Code.
3.7. Based on the above averments, petitioners contended that they are entitled to compensation of Rs.30,00,000/- with interest and court costs.
4. After service of notice, respondent Nos.1 and 2 appeared through their respective advocates. Respondent No.1 owner of the minibus did not file any objections; respondent No.2 insurer filed its objections; respondent No.3 father remained absent and was placed ex-parte.
5. Respondent No.2 insurer in its objections has stated that:
5.1. The insurer-respondent No.2 denied all the averments made in the petition and submitted that the insurance policy of the Tata Motors Maxi Cab (minibus) bearing Registration No.KA-40-3681 was subject to the terms and conditions and exceptions and limitations thereof. The said policy was for the period from 01.03.2015 to 29.02.2016.
5.2. The policy would not be applicable to the present facts situation since the driver had no valid effective driving licence to drive the particular type of vehicle (Maxi Cab) and as such, the same was in breach of the terms and conditions of the policy of the insurance.
5.3. That the petitioners in active collusion of police officials have implanted the vehicle to claim compensation.
5.4. Anbu @ Anbalagan did not possess effective and valid driving licence to drive the moped.
5.5. The deceased was solely responsible for the accident and hence, respondent No.2 was not liable to pay any compensation.
5.6. Respondent No.1 has not complied with Section 134 of Motor Vehicles Act, 1988 (hereinafter referred to as ‘MV Act’ for the sake of brevity). The police have also not complied with Section 158 (6) of IMV Act.
5.7. The insurer denied the avocation of the deceased, his income and contended that the compensation claimed by the petitioners was excessive and exorbitant. On that basis, insurer sought for dismissal of the petition.
6. Based on the pleadings, the Tribunal framed the following issues:
1. Whether the petitioners prove that the deceased Anbu @ Anbalagan S/o Kuppuswamy was the victim of the motor vehicle accident caused on account of the negligence of the driver of Mini Bus bearing Reg.No.KA-40-3681 on 13-09- 2015 at 05-30 p.m., near Doddakari Gate on V.Kota-Bethamangala Road, Bangarpet Taluk, Kolar District and succumbed to the injuries as pleaded in the petition?
2. Whether the petitioners are entitled for compensation? If so, to what amount?
3. Whether the respondent No.2 proves that it is not liable to pay compensation as pleaded in its objections statement?
4. To what order?
7. Petitioner No.1-Smt.Ranimma @ Raniyamma led evidence and got marked documents Exhibits P1 to P16. Neither respondent No.1 nor respondent No.2 adduced any evidence. After conclusion of trial, the Tribunal heard the arguments adduced by both the parties and gave the below findings of the above issues as under:
1. Issue No.1: In the affirmative 2. Issue No.2: Partly affirmative 3. Issue No.3: In the negative 4. Issue No.4: As per the final order 8. In the course of cross-examination, insurer- respondent No.2 took up the contention that the deceased Anbu @ Anbalagan was more than 35 years, PW-1 was about 30 years, that the deceased did not possess valid and effective driving licence, that the sisters-respondent Nos.5 and 6 were not dependent upon the income of the deceased, which were all denied.
9. The Tribunal after going through the materials available on record, statements made by various witnesses, the case registered by the Bethamangala Police in Crime No.146/2015 concluded the following:
9.1. Both the vehicles were infact involved in the accident.
9.2. Anbu @ Anbalagan died at the spot;
9.3. The accident occurred due to rash and negligent driving of the mini bus by its driver.
9.4. The Tribunal also taking note of the inquest mahazar-Exhibit-P6 and post mortem-Exhibit-P8 concluded that the deceased was aged about 30 years at the time of the accident and refused to admit any claim made contrary thereto by respondent No.2.
9.5. Since there were no documents produced as regards the income of the deceased, the Tribunal took note of the decision of this Court passed in the year 2014 wherein it was noted that a mason could earn Rs.300/- per day. Hence, the Tribunal arrived at a conclusion that if a mason could earn Rs.300/- per day in the year 2014, he can earn Rs.400/- per day in the year 2015.
9.6. The Tribunal was of the further opinion that the deceased could not have worked for all the 30 days and took reasonable period of 25 days and arrived at a conclusion that gross income of the deceased could be Rs.10,000/- per month (Rs.400 x 25), which comes to Rs.1,20,000/- per annum.
9.7. The Tribunal taking note of the fact that the petitioner Nos.1 to 6 are dependent on the deceased, hence deducted 1/5th of the gross income of the deceased towards his personal expenses.
9.8. The notional income of the deceased was determined at Rs.10,000/- per month. His annual income was extrapolated to Rs.1,20,000/-. 1/5th of his income was deducted towards personal expenses, which comes to Rs.24,000/- per annum. Hence, net annual income of the deceased was arrived at and fixed at Rs.96,000/-.
9.9. The Tribunal taking into account that the deceased was 30 years, applied multiplier of ‘11’ and arrived at loss of dependency to be Rs.16,32,000/- (Rs.96,000 x 17).
9.10. The Tribunal awarded a sum of Rs.1,00,000/- each towards loss of consortium, loss of love and affection, 9.11. A sum of Rs.50,000/- each to petitioner No.4 and respondent No.3 being the parents.
9.12. A sum of Rs.25,000/- each towards loss of love and affection to petitioner Nos.5 and 6 being unmarried sisters.
9.13. The Tribunal also awarded a sum of Rs.10,000/- towards loss of estate and a sum of Rs.20,000/- towards transportation of dead body and funeral expenses.
9.14. In all, the Tribunal arrived at grand figure of Rs.21,12,000/- as a total compensation payable with interest @ 9% per annum from the date of the petition till the date of realization.
9.15. Taking note of the contention of the insurer- respondent No.2 that it is not liable to indemnify the respondent No.1 as the driver of the vehicle involved in the accident did not possess valid and effective driving licence at the material point of time, the Tribunal examined the driving licence issued and concluded that the deceased was authorized to drive light motor vehicle and LMV cab and therefore, denial by the Insurance Company was not proper.
9.16. The Tribunal came to the conclusion that respondent No.2 not having furnished any material to show that the accident occurred on account of rash and negligent riding of the moped by Anbu @ Anbalagan held that there was no rash and negligent driving by him.
9.17. The Tribunal directed the respondent No.2- Insurance Company to make payment of sum of Rs.21,12,000/- with interest @ 9% per annum from the date of filing of the petition till the date of deposit.
10. Aggrieved by the said order, the insurer- respondent No.2 has filed the present appeal contending that:
10.1. The Tribunal has committed an error in fastening the liability on the Insurance Company as the driver of the offending vehicle had no effective licence to drive Maxi Cab.
10.2. The owner having violated the policy conditions, the Insurance Company is not liable to pay the compensation.
10.3. The compensation granted by the Tribunal is exorbitant and the computation done by the Tribunal is not correct.
10.4. Petitioner Nos.5 and 6, the sisters of the deceased having attained majority are not dependent on the deceased. Hence, the deduction of only 1/5th of the income towards personal expenses of the deceased is not proper.
10.5. The age of the wife of the deceased was 37 years as on the date of the accident as evident from Aadhar Card-Exhibit-P10 produced by the petitioner. Therefore, the deceased must have been aged more than the petitioner No.1. Hence, calculation done for loss of dependency and multiplier applied are not correct.
10.6. The award of interest @ 9% per annum is also questioned by the insurer.
11. We have heard the learned counsel for the appellant and the respondents. We have perused the judgment passed by the Tribunal and the records which were called for. In view of the contentions urged, the points that arise for our consideration are as under:
1. Whether the driving licence granted in respect of LMV would also apply to LMV Cab and the driving of Taxi Cab by a LMV driving licence holder would amount to breach of insurance policy?
2. Whether the quantum of compensation awarded by the Tribunal is just and proper? or whether the impugned award is liable to be interfered with in this appeal?
3. What order?
Regarding Point Nos.1 and 2:
12. From the records, it is evident that the date of accident was 13.09.2015 and the age of the deceased was 30 years. Though the insurer has sought to allege that the deceased was more than 37 years of age as on the date of the accident, the insurer who alleges this fact has not produced any document in substantiation of such allegation. Thus, the burden of proof and onus of proof which was on the insurer to establish this allegation has not been discharged. Having not done so, the allegation cannot be believed. The records which are available namely the inquest and post-mortem report indicate the age of the deceased to be 30 years. Hence, we are of the opinion that the deceased was 30 years and not more than 38 years as alleged by the insurer.
13. Since no records have been produced by the petitioners to establish the income of the deceased, we would have to take notional income of Rs.9,000/- per month to be the income of the deceased. The deceased at the time of his death being 30 years of age, 40% needs to be added to the above on account of future prospectus. Thus, the notional income of Rs.9,000/- plus future prospects of Rs.3,600/- would come to Rs.12,600/- p.m.
14. The dependents, as per the petition, being six in number, 1/4th would have to be deducted towards personal expenses of the deceased, which would result in a figure of Rs.9,450/- p.m., which would comes to Rs.1,13,400/- per annum. The multiplier applicable to the deceased being ‘17’, the total amount that the petitioners would be eligible on account of loss of dependency would be Rs.1,13,400 x 17 = Rs.19,27,800/-
15. Petitioner No.1, being the wife of the deceased is entitled to a sum of Rs.40,000/- towards loss of spousal consortium, respondent No.4 being the mother is entitled to a sum of Rs.30,000/- on account of loss of filial consortium, sisters-respondent Nos.5 and 6 though major are unmarried would be entitled to a sum of Rs.30,000/- each on account of loss of filial consortium. Respondent Nos.2 and 3 being the children of the deceased would be entitled to a sum of Rs.30,000/- each as loss of parental consortium. In addition, a sum of Rs.15,000/- is to be awarded under loss of estate and a sum of Rs.15,000/- towards funeral expenses.
16. The above entitlement is in accordance with dicta of the Hon’ble Supreme Court in the cases of NATIONAL INSURANCE COMPANY LIMITED VS. PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680 AND MAGMA GENERAL INSURANCE COMPANY LIMITED VS.
NANU RAM @ CHUHRU RAM AND OTHERS reported in (2018) 18 SCC 130. The compensation that the petitioners would be entitled to is therefore a sum of Rs.20,60,000/-.
17. The interest awarded by the Tribunal being 9% is reduced to 6% from the date of claim petition till the date of realisation. Accordingly, Points No.1 and 2 are answered in favour of the appellant-insurer.
Regarding Point No.3:
18. This takes us to the third point which regarding liability of the insurer to satisfy the award. In this regard, learned counsel for the insurance company contended that the driver of the offending vehicle did not have the transport endorsement and therefore, he was not duly licenced and consequently there is breach of the insurance policy and hence the insurer is not liable to satisfy the award. Therefore, the judgment of the Tribunal ought to be modified and the insurance company must be exonerated. However, learned counsel for the respondent/claimants placed reliance on the recent judgment of the Hon‘ble Supreme Court in the case of MUKUND DEWANGAN VS. ORIENTAL INSURANCE COMPANY LIMITED [AIR 2017 SC 3368] (MUKUND DEWANGAN) and contended that in respect of a light motor vehicle, it is not necessary to have transport endorsement of the licence, provided the driver holds the licence to drive light motor vehicle which is also a transport vehicle.
19. We find considerable force in the argument of learned counsel for the respondent/claimants. In Mukund Dewangan, the Hon’ble Supreme Court at paragraph No.46 has held as under:
“46. Section 10 of the Act requires a driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles, there may be different kinds of vehicles. If they fall in the same class of vehicles, no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also, a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles. It was pre-amended position as well the post-amended position of Form 4 as amended on 28.3.2001. Any other interpretation would be repugnant to the definition of “light motor vehicle” in section 2(21) and the provisions of section 10(2)(d), Rule 8 of the Rules of 1989, other provisions and also the forms which are in tune with the provisions. Even otherwise the forms never intended to exclude transport vehicles from the category of ‘light motor vehicles’ and for light motor vehicle, the validity period of such licence hold good and apply for the transport vehicle of such class also and the expression in Section 10(2)(e) of the Act ‘Transport Vehicle’ would include medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, heavy passenger motor vehicle which earlier found place in section 10(2)(e) to (h) and our conclusion is fortified by the syllabus and rules which we have discussed. Thus we answer the questions which are referred to us thus:
(i) ‘Light motor vehicle’ as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994.
(ii) A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, ‘unladen weight’ of which does not exceed 7500 kg. and holder of a driving licence to drive class of “light motor vehicle” as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the “unladen weight” of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form.
(iii) The effect of the amendment made by virtue of Act No.54/1994 w.e.f. 14.11.1994 while substituting clauses (e) to (h) of section 10(2) which contained “medium goods vehicle” in section 10(2)(e), medium passenger motor vehicle in section 10(2)(f), heavy goods vehicle in section 10(2)(g) and “heavy passenger motor vehicle” in section 10(2)(h) with expression ‘transport vehicle’ as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle.
(iv) The effect of amendment of Form 4 by insertion of “transport vehicle” is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of “light motor vehicle” continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect.”
In view of the above judgment of the Hon’ble Supreme Court in the case of Mukund Dewangan, it is held that the driver of an offending vehicle holding the driving licence for a light motor vehicle is qualified to drive such a vehicle even in the absence of a transport endorsement. Point No.3 is accordingly answered in favour of respondents/claimants and it is held that the insurer is liable to satisfy the award in the instant case.
20. In the result, MFA No.4162/2017 is allowed in part.
The amount in deposit before this Court is directed to be transmitted to the Tribunal.
The Insurance Company shall deposit the reassessed compensation with upto date interest within a period of four weeks from the date of receipt of the certified copy of this judgment.
Parties to bear their respective costs.
Sd/- JUDGE Sd/- JUDGE Prs*