IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF NOVEMBER, 2019 PRESENT THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA AND THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM MFA NO.6169/2013(MV-D) C/W MFA NO.6928/2013(MV-I) IN MFA NO.6169/2013 BETWEEN:
1. VIMALA SALIAN W/O SUNDARA SUVARNA AGED ABOUT 53 YEARS 2. SUNDARA SUVARNA AGED ABOUT 56 YEARS 3. CHAITHRA D/O SUNDARA SUVARNA AGED ABOUT 21 YEARS ALL ARE R/A “SAUBHAGYA NIDHI” MUDDALAGUDDE PITHRODI NEAR SAUKAR CANNING UDYAVAR VILLAGE, UDUPI TALUK.
...APPELLANTS (BY SRI.S.V.PRAKASH, ADVOCATE) AND:
1. K. GOKULDAS PAI S/O LATE RAMANATHA PAI AGED ABOUT 61 YEARS K.K.COMPOUND OPP: LADIES HOSTEL KUNJIBETTU, UDUPI-576101.
2. DIVISIONAL MANAGER NATIONAL INS. CO. LTD., NEAR SHANKAR VITTAL GARAGE MOSQUE ROAD UDUPI DISTRICT-576101.
...RESPONDENTS (BY SRI. O.MAHESH, ADVOCATE FOR R2; V/O DATED:26.11.2015 NOTICE TO R1 IS DISPENSED WITH) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:30.03.2013 PASSED IN MVC NO.588/2012 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO.6928/2013 BETWEEN:
THE DIVISIONAL MANAGER NATIONAL INSURANCE COMPANY LIMITED, SHANKAR VITTAL GARAGE, MOSQUE ROAD UDUPI.
BY NATIONAL INSURANCE CO. LTD REGIONAL OFFICE, NO. 144 SUBHARAM COMPLEX M G ROAD, BANGALORE-560001 BY ITS MANAGER (BY SRI.O.MAHESH, ADVOCATE) AND:
1. VIMALA SALIAN AGE 53 YEARS W/O SUNDARA SUVARNA 2. SUNDARA SUVARNA AGE 56 YEARS 3. CHAITHRA AGED 21 YEARS D/O SUNDARA SUVARNA ALL ARE RESIDING AT "SAUBHAGYA NIDHI" MUDDALA GUDDE, PITHRODI NEAR SAUKAR CANNING UDYAVAR VILLAGE UDUPI TALUK-576101 4. K GOKULADAS PAI 61 YEARS S/O LATE RAMANATHA PAI K K COMPOUND OPP: LADIES HOSTEL KUNJIBETTU, UDUPI-576101 ...APPELLANT …RESPONDENTS (BY SRI.S V PRAKASH, ADVOCATE FOR R1 TO R3;
NOTICE TO R4 IS SERVED AND UNREPRESENTED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:30.03.2013 PASSED IN MVC NO:588/2012 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, UDUPI, AWARDING COMPENSATION OF RS.5,16,000/- WITH INTEREST @ 7% P.A. FROM THE DATE OF PETITION TILL PAYMENT.
THESE APPEALS COMING ON FOR HEARING THIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:
JUDGMENT The appeal in MFA.No.6169/2013 is filed by the claimants questioning the judgment and award dated 30.03.2013 passed in MVC.No.588/2012 questioning the quantum of compensation awarded. MFA.No.6928/2013 is filed by the National Insurance Company questioning the liability as well as the quantum of compensation awarded to the claimants in MVC.No.588/2012.
2. For the sake of convenience the parties herein are referred to as per their rank before the Tribunal.
3. The claim petition in MVC.No.588/2012 was filed on account of death of one Chetan Salian. Claimants 1 and 2 are the parents of the deceased and claimant No.3 is the sister of the deceased. It is the case of the claimants that on 27.3.2012 at about 8.45 a.m. the deceased was proceeding as a pillion rider on the bike bearing No.KA-20-N-1643 driven by one Nagaraj, the claimant in MVC.No.587/2012, from Manipal side towards Udupi side and when they reached near M.G.M. Panchamukhi Mill Parlour, Shivalli Village, a car bearing Regn.No.KA-20-N-1643 driven by its driver in a rash and negligent manner with a high speed came and dashed against the motor bike, as a result of which, both the rider and the pillion rider fell down and sustained grievous injuries. The pillion rider fell on the road divider and died on the spot due to the injuries sustained by him. The claimants averred in the claim petition that the deceased was working as a Fisherman and was earning Rs.500/- per day and that they were entirely depending on the income of the deceased. The deceased was hale and health and on account of the untimely death, the claimants 1 and 2 have lost the financial support and also filial love and affection of their son.
On receipt of summons, both the respondents appeared through their counsel and filed written statements. Respondent No.2-Insurance Company contested the proceedings and stoutly denied the entire averments made in the claim petition and specifically contended that the rider of the motor bike was responsible for the accident. The rider of the motor bike was possessing the Learner’s licence and in that view of the matter, the claim petition is not maintainable against the Insurance Company.
On the basis of the above pleadings, the Tribunal framed the following issues:-
1. “Whether there was a motor vehicle accident on 27.03.2012 at about 8.45 a.m near Panchamuki Milk Parlour, MGM Shivalli village, Udupi due to rash and negligence of the driver of the car bearing Reg No. KA.20-N-1643 and as such the deceased Chethan Salian sustained grievous injuries and succumbed to the same?
2. Whether 2nd Respondent proves that the rider of the motor bike no.KA.31.Q.1531 is responsible for the accident?
3. Whether the petition is hit by necessary parties?
4. Whether 2nd Respondent proves that the rider of bike No.KA.31.Q.1531 was having only learning license at the time of accident?
5. Whether the petitioners are entitled for compensation? If so to what extent?
6. What order?”
The claimants in support of their contentions let in evidence by examining PWs.1 to 3 and got marked Exs.P1 to P15. The respondents in support of their contentions examined RWs.1 and 2 and got marked Exs.R1 to R4.
The Tribunal having examined the evidence on record, disbelieved the contention of the claimants that deceased was earning Rs.500/-per day. While assessing the loss of dependency the Tribunal took the notional income of the deceased at Rs.4500/- per month in the absence of any clinching evidence to indicate the actual income of the deceased. Deducting 50% towards the personal expenses of the deceased since the deceased was a bachelor and adopting the multiplier of 18, since the deceased was aged 22 years, the Tribunal has awarded compensation of Rs.4,86,000/- towards loss of dependency. Insofar as other heads are concerned, the Tribunal has awarded a sum of Rs.30,000/-. Thus, in all awarded compensation of Rs.5,16,000/-, fastening the liability on the second respondent-Insurance Company.
4. Heard the learned counsel for the appellants and respondent No.2-Insurance Company.
5. On re-appreciation of the entire evidence on record, we are of the considered view that the income taken by the Tribunal at Rs.4,500/- is on the lower side in the absence of cogent evidence indicating the actual income of the deceased. The Tribunal taking note of the date of the accident ought to have taken the notional income of the deceased as adopted by the Legal Services Authority chart. If we go by the chart, then we are of the view that the notional income of the deceased has to be taken at Rs.7,000/-. Since the deceased was aged 22 years, the proper multiplier applicable would be 18. 40% has to be added towards the above said notional income towards future prospects. Hence, the income of the deceased works out to Rs.9,800/-p.m. Out of that 50% has to be deducted towards the personal expenses of the deceased which works out to Rs.4,900/- p.m, with the remaining Rs.4,900/- p.m as notional loss of dependency, loss of dependency to claimants should be calculated as under:
“Rs.4,900X12x18=Rs.10,58,400/-.”
On the other heads, claimants 1 and 2 would be entitled to a sum of Rs.30,000/-. Thus, the total compensation payable would be Rs.10,88,400/- as against Rs.5,16,000/- awarded by the Tribunal.
6. In the connected appeal filed by the Insurance Company, it is the contention of the counsel appearing for the Insurance Company that since the rider of the bike was holding learner’s licence, the Insurance Company is not liable to pay compensation and in this background he would argue that the Tribunal erred in fastening the liability on the Insurance Company. This contention is no more res-integra in view of the law laid down by the Apex Court in Pappu and others .vs. Vinod Kumar Lamba and another [AIR 2018 SC 592] and Shamanna and another .vs. Divisional Manager, Oriental Insurance Company Limited and others (2018) 9 SCC 650.
7. In the connected appeal, after re- determination of the compensation what survives is only the issue regarding the liability of the Insurance Company.
8. The counsel appearing for the Insurance Company would vehemently argue that the rider of the bike was holding learner’s licence and as such the learner’s licence cannot be termed as a valid and effective driving licence. In that view of the matter, the Insurance Company is entitled to take a defence under Section 149(2)(A)(i) of the Motor Vehicle’s Act, 1988. The counsel for the Insurance Company would further argue that the Insurance Company has succeeded in establishing its defence and in this background, he would seek indulgence by this Hon’ble Court to exonerate the Insurance Company from paying the compensation to the claimants.
9. Having examined the material on record and also the ratio laid down by the Hon’ble Apex Court in the decision reported in 2004(3) SCC 297, this Court is of the view that the learner’s licence is also a licence as per Rule 167 of Motor Vehicle Rules, 1939. A person holding learner’s licence would thus also come within the purview of driving licence. In that view of the matter, the contention of the counsel appearing for the Insurance Company is devoid of merits. Thus, the contention of the Insurance Company that there is breach of policy conditions on account of the rider of the offending bike holding the learner’s licence is not acceptable and the said contention is negatived by this Court. In the light of the aforesaid discussions, the finding of the Tribunal fastening liability on the Insurance Company does not suffer from any infirmities and the same would not warrant interference by this Court.
10. In the result, the appeal in MFA.No.6169/2013 filed by the claimants is allowed in part and the appeal in MFA.No.6928/2013 filed by the Insurance Company is dismissed.
Sd/- JUDGE Sd/- JUDGE *alb/-