IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE K.SOMASHEKAR MISCELLANEOUS FIRST APPEAL No.55 OF 2015 (MV) C/W MISCELLANEOUS FIRST APPEAL No.2959 OF 2014 In MFA No.55/2015 Between:
1. Smt. Venkatamma, W/o Late Baburao @ Bathulaodelu, Aged about 68 years, 2. Sri. Kalidas @ Kali, S/o Late Baburao @ Bathulaodelu, Aged about 27 years, 3. Sri. Rambabu, S/o Late Baburao @ Bathulaodelu, Aged about 23 years, All are r/at New Colony, Kuvempu Nagar, Lakshmipura Post, Bengaluru.
& Permanent residents of No.8-4-371/268, Babasylaninagara, Bora Banda, Hyderabad. ...Appellants (By Sri.Rajashekar.M, Adv., for Sri.T.Parameshwarappa, Adv.,) And:
1. Sri.Noorulla Khan, S/o. Fayaz Khan, No.449, Dayanandanagar, Siddapura, Jayanagar 1st Block, Bengaluru-560 011.
2. Branch Manager, The New India Assurance Co. Ltd., Grant Road Branch, No.7, Vokkaligara Bhavan Complex, 5th Floor, Hudson Circle, Bengaluru-560 027. ...Respondents (By Sri.Rahamathulla Shariff, Adv., for R1; Sri.M.P.Srikanth, Adv., for R2) This MFA is filed under Section 173(1) of the Motor Vehicles Act, 1988 against the judgment and award dated 03-03-2014 passed in MVC No.5998/2012, on the file of the Motor Accident Claims Tribunal, Metropolitan Area: Bangalore City (SCCH-4) and allow the appeal by awarding the compensation sought for by the petitioners/appellants herein, in their claim petition or award any compensation that this Hon’ble Court deems fit, in the facts and circumstances of the case, in the interest of justice and equity.
In MFA No.2959/2014 Between:
Sri.Noorulla Khan, S/o. Fayaz Khan, Aged about 30 years, R/at No.449, Dayanandasagar, Siddapura, Jayanagar 1st Block, Bengaluru-560 011. ...Appellant (By Sri.Rahamathulla Shariff, Adv.,) And:
1. Smt. Venkatamma, W/o Late Babu Rao @ Bathula Odelu, Aged about 67 years, 2. Sri. Kalidas @ Kali, S/o Late Babu Rao @ Bathula Odelu, Aged about 26 years, 3. Sri. Rambabu, S/o Late Babu Rao @ Bathula Odelu, Aged about 22 years, All are r/at New Colony, Kuvempu Nagara, Laxmipura Post, Bengaluru.
Permanent Address:
No.8-4-371/268, Babasylaningara, Bora Bonda, Hyderabad-511 213.
4. Branch Manager, The New India Assurance Co. Ltd., Grant Road Branch, No.7, Vokkaligara Bhavan Complex, 5th Floor, Hudson Circle, Bengaluru-560 027. ...Respondents (By Sri.M.P.Srikanth, Adv., for R4; Sri.Rajashekar.M, Adv., for R1 to R3) This MFA is filed under Section 173 of Indian Motor Vehicles Act, against the judgment and award dated.03.03.2014 passed in MVC No.5998/2012 on the file of the XVIII Additional Judge, Court of Small Causes, Member, MACT-4, Bangalore awarding compensation of Rs.2,29,980/- with interest at 6% p.a. from the date of petition till the date of deposit.
These MFAs coming on for Admission this day, the Court delivered the following:-
JUDGMENT Though the appeals are listed for admission, with the consent of learned counsel both the parties, they are taken up for hearing.
2. Heard the learned counsels for the respective parties in both the appeals.
3. The appeal-MFA 55/2015 is filed by the claimants seeking enhancement of compensation and the appeal-MFA 2959/2014 is filed by the owner of the offending vehicle, involved in the accident, questioning fixation of liability on him by the Tribunal vide judgment and award rendered in MVC No.5998/2012 dated 3.3.2014. .
4. The factual matrix of the appeal are as under :-
It is stated in the claim petition that on 4.7.2012 at about 8.00 p.m. when Babu Rao @ Bathula Odelu was going on the side of Laxmipura main road along with his sister-in-law so as to reach the medical store and while so going in front of Medha Business School, a Crane Lorry bearing No.MEG-8346, driven by its driver with high speed in a rash and negligent manner, dashed the deceased from behind due to which, the deceased fell down and sustained severe injuries. Immediately he was shifted to Sapthagiri Hospital which was nearby but on the way to hospital itself, he succumbed to injuries.
The claimants, being the wife and children of the deceased, have filed the claim petition claiming that the deceased was aged about 70 years at the time of accident, working as a Painter and earning Rs.8,500/-
p.m. Due to the sudden death, they have lost the bread winner in the family and have suffered lot of pain, suffering and mental agony. They have claimed compensation of Rs.6,00,000/- from the respondents- owner and insurer of the offending vehicle.
The respondents have filed their respective written statements wherein the owner has denied the occurrence of the accident due to the actionable negligence of the driver of the offending vehicle and denied the petition averments; whereas, the insurer while contending that the driver of the offending vehicle did not possess valid and effective driving licence, admitted issuance of insurance policy and its validity as on the date of accident, however, contended that liability is subject to terms and conditions of policy. Both prayed for dismissal of claim petition.
Based on the pleadings, the Tribunal framed issues and thereafter, considering the oral and documentary evidence adduced by the parties, allowed the petition in part by awarding compensation in a sum of Rs.2,29,980/- with costs and future interest at 6% p.a. from the date of petition till date of deposit, however dismissing the petition against respondent No.2 by directing respondent No.1-owner to deposit the compensation amount within 30 days from the date of the award. As stated above, appeals are filed by the claimants and the owner of the offending vehicle.
5. Learned counsel for the claimants in MFA 55/2015 contended that the Tribunal ought to have taken the income of the deceased at Rs.8,500/- p.m. as deposed by the wife of the deceased Smt.Venkatamma- PW1 stating that the deceased was a painter and was earning Rs.8,500/-, instead of Rs.5,000/-, deducted 1/4th towards his personal expenses instead of 1/3rd and should have applied multiplier of ‘15’ instead of ‘5’ to arrive at compensation towards the loss of dependency. Further, compensation awarded under ‘conventional head’ is on the lower side and therefore, requires enhancement.
Further, he contended that the Tribunal has committed error in absolving the liability of the Insurance Company to indemnify the owner of the offending vehicle and hence, needs interference in this aspect also.
6. Whereas the appellant in MFA 2959/2014 who is the owner/driver of the offending vehicle contends that the Tribunal has not properly appreciated the correct facts and legal position though admittedly the appellant possessed the heavy motor driving license, which do not bar the appellant from driving the crane and that has not committed breach of the terms of the insurance policy. The findings that appellant did not possess special effective driving license to drive the crane as contemplated under Section 10(2) (j) of the IMV Act is opposed to law and facts of the case. The fact that a crane lift attached with the truck is a light motor vehicle and that no specific driving license is necessary to drive the said vehicle and that the nature of the vehicle do not fall within the meaning of the liicense specified in Section 10(2)(j) of the IMV Act, are lost sight of the fact by the Tribunal.
Further, though admittedly the appellant possessed driving license which is valid from 1.3.2005 till 28.2.2015 which goes to show that as on the date of accident the appellant possessed valid driving license and as such, it has to be held by the Tribunal that the appellant has not committed the terms of the insurance policy and responsibility of the insurance company cannot be absolved. In support of the said contention he has relied upon the judgment of the Madhya Pradesh High Court reported in AIR 2007 (NOC) 821 (M.P) (Smt.Devobai & Ors. V.Jalimsingh & Ors.)wherein correct factum of law is laid down.
7. After having heard the contentions on both sides, the material available on record and careful perusal of the judgments supporting the contentions and the facts of the case, it is held as follows :-
As stated above, it is the contention of the claimants/appellants that the deceased was a Painter by profession and earning Rs.8,500/- p.m. Going by the guidelines and illustrations relating to the income during the period 2012-13, normally the income between Rs.7,000/- to Rs.8,000/- has to be considered. But, as the deceased was aged about 70 years as on the date of accident, Rs.3,000/- more could be considered as income in addition to Rs.5,000/- which comes to Rs.8,000/- p.m. Further, 1/3rd (1/3rd of Rs.8,000/-= Rs.2,666) has to be deducted towards personal expenses of the deceased and when so deducted from Rs.8,000/-, the monthly income would be at Rs.5,334/- (Rs.8,000/- minus Rs.2,666/-). The Tribunal has rightly adopted the multiplier of ‘5’ and while so adopting here, the loss of dependency works out to Rs.3,20,040/- (Rs.5,334 x 12 x 5). The enhanced compensation towards loss of dependency would be at Rs.1,20,060/- (Rs.3,20,040 – Rs.1,99,980/-).
Further, keeping in view of the ratio laid down in Pranay Sethi’s case (AIR 2017 SC 5157), claimants would be entitled to compensation of Rs.70,000/- towards conventional heads. Whereas in this case, only Rs.30,000/- is awarded. Hence, it is just and proper to award Rs.40,000/- more in addition to Rs.30,000/-.
Interest awarded by the Tribunal at 6% is just and proper and it is unaltered.
From the above said discussion and the reasonings regarding the findings, the claimants in MFA 55/2015 are entitled to enhanced compensation of Rs.1,60,060/- in addition to Rs.2,29,980/- with interest at 6% p.a. from the date of the petition till realisation.
8. Now, coming to MFA 2959/2014 which is by the appellant/owner cum driver of the offending vehicle, in view of the ratio laid down in Mukund Dewangan Vs. Oriental Insurance Co.Ltd., (2017) 14 SCC 663, Insurance Company shall be liable to pay the compensation even though the appellant is said to be owner/driver of the offending vehicle. Further, it is also relevant to rely on the judgment of Supreme Court in PAPPU AND ORS. Vs. VINOD KUMAR LAMHA AND ANR. (AIR 2018 SC 592) wherein it is held as under :-
Motor Vehicles Act (59 of 1988), 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.
The ratio laid down in the above said case is squarely applicable to the fact and circumstance of this case and therefore, it is said that there is no substance in the contention of the learned counsel for the appellant.
9. Accordingly, I proceed to pass the following;
ORDER 1. The appeal-MFA 55/2015 preferred the claimants is allowed and the appellants are entitled to an enhanced compensation of Rs.1,60,060/- with interest at 6% p.a. from the date of petition till realisation;
2. The appeal-MFA 2959/2014 is allowed in part. The Insurance company is liable to pay the entire compensation i.e. awarded by the Tribunal and now enhanced by this Court to the claimants;
3. The Insurance Company is directed to deposit the entire compensation amount, as stated above, with interest at 6% p.a. from the date of petition till realisation, before the Tribunal within a period of four weeks from the date of receipt of the copy of this judgment in terms of the award;
4. Further, the Registry is directed to transmit the amount, if any, deposited by the Insurer, to the jurisdictional Tribunal forthwith along with the LCRs.
5. The entire award amount shall be apportioned to the claimants in accordance with law.
Appeals are disposed of accordingly.
Sd/- JUDGE rs