Karnataka High Court
United India Insurance Co.Ltd vs Smt. Anantha Lakshmi W/O. Narayana ... on 18 July, 2024
Author: S G Pandit
Bench: S G Pandit
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NC: 2024:KHC-D:10022-DB
MFA No. 100985 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 18TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO.100985 OF 2021 (MV)
BETWEEN:
UNITED INDIA INSURANCE CO. LTD.,
THE DIVISIONAL MANAGER,
MAIN ROAD, PARVATHI NAGAR,
BALLARI, PINCODE: 583101,
REPRESENTED BY ITS DIVISIONAL MANAGER.
- APPELLANT
(BY SMT. PREETI SHASHANK, ADVOCATE)
AND:
1. SMT. ANANTHA LAKSHMI
W/O. NARAYANA REDDY,
AGED ABOUT 40 YEARS,
2. SHRI NARAYANA REDDY
S/O. LATE KRISHNA REDDY,
Digitally signed by
SAROJA AGE 48 YEARS,
HANGARAKI
Location: HIGH 3. MINOR L. JAGADESSH @ JAGADESH REDDY
COURT OF
KARNATAKA S/O. NARAYANA REDDY,
AGED ABOUT 20 YEARS,
ALL ARE R/O. MUKKUND VILLAGE,
SINDHANUR, TQ. RAICHUR DISTRICT,
PINCODE: 584167,
PRESENTLY AT DAMMUR VILLAGE,
BALLARI TALUK AND DISTRICT,
PIN CODE: 583116.
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NC: 2024:KHC-D:10022-DB
MFA No. 100985 of 2021
4. SANTOSH REDDY @ SANTOSH REDDY BAPUR
S/O. LINGA REDDY BAPUR,
AGED ABOUT 27 YEARS, RIDER OF THE HONDA
CB SHINE MOTOR CYCLE BEARING NO.KA-37/S-3993,
R/O. NO.308 MUKKUNDA VILLAGE, SINDHANUR,
TQ. RAICHUR DISTRICT, PINCODE: 584167.
5. RAJASHEKHAR REDDY S/O. LINGA REDDY,
AGED ABOUT 31 YEARS, REGISTERED OWNER
OF THE HONDA CB SHINE MOTOR CYCLE
BEARING NO.KA-37/S-3993,
R/O. NO.308, MUKKUND VILLAGE, SINDHANUR,
TQ. RAICHUR DISTRICT, PINCODE: 584167.
6. VIJAY KUMAR S/O. S. MALLAPPA TALKAL,
AGED ABOUT 40 YEARS, INSURANCE POLICY
HOLDER OF THE HONDA CB SHINE MOTOR
CYCLE BEARING NO.KA-37/S-3993,
R/O. MARUTHI KRUPA NILAYA, VIVEKANANDA COLONY,
NEAR BUS STAND, GANGAVATHI, KOPPAL DISTRICT ,
PINCODE: 583227.
- RESPONDENTS
(BY SRI S.M. KALWAD, ADVOCATE FOR R1 TO R3;
SRI JAYAVANT KAMBLI, ADVOCATE FOR R5;
NOTICE TO R4 AND R6 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE
JUDGMENT AND AWARD DATED 27.01.2021 PASSED IN MVC
NO.846/2016 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS
TRIBUNAL NO.3 AND PRL. SENIOR CIVIL JUDGE AND CJM, BALLARI,
AWARDING COMPENSATION OF RS.35,17,265/- WITH INTEREST AT
9 PERCENT P.A. FROM THE DATE OF PETITION TILL ITS
REALIZATION AND ETC.,
THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR
ADMISSION, THIS DAY, G BASAVARAJA, J., DELIVERED THE
FOLLOWING:
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NC: 2024:KHC-D:10022-DB
MFA No. 100985 of 2021
JUDGMENT
The appellant-insurance company has preferred this appeal against the judgment and award passed by the learned MACT No.3 and Prl. Sr. Civil Judge & CJM, Ballari (for short 'Tribunal') in M.V.C. No. 846/2016 dated 27.01.2021 questioning the quantum as well as liability. Parties are referred to as per their ranking before the Tribunal.
2. The brief relevant facts leading to this appeal is that the claimants have filed claim petition u/S 166 of M.V. Act for grant of compensation as to the death of the victim-Sharanabasava, who died in motorcycle accident. It is stated that on 29.06.2016 at about 5.30 p.m. when the deceased being a pillion rider along with the respondent no.1, who was riding the motorcycle bearing reg. no. KA-37-S-3993, was proceeding from Karatagi towards Mukkunda village. When they reached on Karatagi-Channali road, near KGPL Rice Mill, near Karatagi, the rider of the motorcycle rode in high speed, rash and negligent manner which resulted in skid of the motorcycle due to which the victim-Sharanabasava fell down and sustained severe head injury and also severe injuries all over the body. Immediately after the accident the victim was shifted to -4- NC: 2024:KHC-D:10022-DB MFA No. 100985 of 2021 Primary Health Centre, Karatagi for immediate treatment and after providing first aid he was shifted to VIMS, Ballari. During treatment, costlier drugs were used, several tests were conducted and on the advice of the Doctor, victim was shifted to St. John's Medical College Hospital, Bengaluru for higher treatment but he succumbed to the injuries on 10.07.2016. Claimants spent Rs.5,00,000/- towards medical expenses, Rs.50,000/- towards taxi charges and Rs.50,000/- towards funeral expenses. Prior to the accident, deceased was hale and healthy, aged 18 years, student studying Second Year P.U.C. at RGM Composite PU College, Sindhanur and he was quite intelligent. After College hours deceased was working in Sharanabasaveshwara Pharma, Sindhanur and earning Rs.9,000/- per month. He was contributing the same for maintenance of the family. Petitioners no.1 and 2 are having great attachment with the deceased and their ambition to provide better education and future to their son and see their son becoming an Engineer. But due to the sudden demise of their son, their great desire is buried in the grave yard. Due to the sudden and unexpected death of the deceased, the claimants are put to much hardship, trouble and loss. The -5- NC: 2024:KHC-D:10022-DB MFA No. 100985 of 2021 claimants have lost the love, affection, care and service of the deceased throughout their lives. Respondent no.1 to 4 being the rider, owner, insurance policy holder and insurer of the motorcycle, respectively are liable to pay compensation. On all these grounds sought to allow the claim petition.
3. In pursuance of the notice the respondents appeared through their counsel. Respondents no.1 and 2 have not filed their written statement inspite of giving sufficient opportunity. Respondents no.3 and 4 have filed their written statements separately.
4. Respondent no.3, policy holder of the offending motorcycle contended that respondent no.1 is having valid driving licence, motorcycle is insured with the respondent no.4 and the policy was in force as on the date of accident. Further, respondent no.3 has transferred the above said motorcycle in favour of respondent no.2, who is the registered owner as on the date of accident. Hence, respondent no.3 is not liable to pay compensation and sought for dismissal of the claim petition.
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NC: 2024:KHC-D:10022-DB MFA No. 100985 of 2021
5. The sum and substance of written statement of respondent no.4-insurer is that it had issued policy in respect of the offending motorcycle. Respondent no.1 being the rider of the motorcycle was not having valid and effective driving licence as on the date of accident and the respondent no.2 knowing fully well that respondent no.1 was not having valid driving licence, allowed him to ride the motorcycle. Hence, respondent no.2 has violated the terms and conditions of the policy. Further he has denied all the other averments and sought for dismissal of the claim petition.
6. To substantiate their case, the claimant no.1 was examined as PW1 and another witness as PW2. Documents are marked as per Exs.P.1 to P.18. On closure of petitioners' side evidence, the Divisional Manager of respondent no.4 has been examined as RW1 and another witness as RW2. Documents are marked as per Exs.R.1 to R.7.
7. Having heard the arguments of both sides the Tribunal has allowed the claim petition in part, awarded compensation of Rs.35,17,265/- and directed the respondent no.4-insurer to pay -7- NC: 2024:KHC-D:10022-DB MFA No. 100985 of 2021 the entire compensation amount. Being aggrieved by the same, the insurer has preferred this appeal.
8. Learned counsel appearing on behalf of the appellant- insurer would submit that the Tribunal acted perversely in directing the appellant to pay compensation though rider of the motorcycle was not having valid and effective driving licence. The Tribunal ought to have held that the insured of the motorcycle committed breach of the express terms of the policy and provisions of the Motor Vehicles Act by permitting a person to ride the vehicle who had no valid driving licence. The rider of the motorcycle had licence to drive LMV (NT) as on the date of accident. The said licence is valid from 07.08.2013 to 06.08.2033 and he had obtained licence to drive motorcycle with gear on 23.11.2016 which is after occurrence of the accident whereas the accident had occurred on 29.06.2016. The appellant had let in evidence of the RTO, Raichur as RW2 to prove that the rider of the motorcycle was not valid driving licence as on the date of accident. Further it is submitted that the Tribunal has considered monthly income of the deceased at Rs.20,000/- though the same is neither pleaded nor proved by the claimants. Evidence of PW2 also cannot be believed as he -8- NC: 2024:KHC-D:10022-DB MFA No. 100985 of 2021 has not produced any documents before the Tribunal to prove his avocation. Therefore, monthly income of the deceased considered by the Tribunal at Rs.20,000/- by the Tribunal is on higher side and requires to be reduced. The Tribunal has also erred in granting in excessive rate of interest at 9% p.a. instead of 6% p.a. On all these grounds, learned counsel for appellant sought to allow the appeal. To substantiate her arguments, she relied on the decision of Hon'ble Apex Court in the case of G.Rama Vs. T.G.Seshagiri Rao (dead) by LRs.1 and the decision of the Full Bench of this Court in the case of M/s United India Insurance Co. Ltd., V. R.S.Shivaramayya2.
9. As against this, learned counsel for the respondents no.1 to 3-claimants has argued that the Tribunal has properly appreciated the evidence on record in accordance with law and facts which needs no interference and sought for dismissal of the appeal. Further he would submit that if this Court comes to the conclusion that the rider of the motorcycle was not having valid licence as on the date of accident, then direct the insurer to deposit the compensation amount with liberty to recover it 1 (2008) 12 SCC 392 2 M.F.A. No.12579/2007 (D.D. 08.09.2011) -9- NC: 2024:KHC-D:10022-DB MFA No. 100985 of 2021 from the owner of the offending motorcycle under the principle of 'pay and recover'.
10. Having heard arguments of both sides, perusal of the original records and appeal papers the following points would arise for my consideration.
1) Whether the Tribunal is justified in assessing the income of the deceased at the rate of Rs.20,000/- per month?
2) Whether the Tribunal is justified in holding that the rider of the motorcycle was having valid licence as on the date of accident?
3) Whether the insurer is liable to pay compensation to the claimants with liberty to recover the same from the owner of the offending motorcycle under the principles of 'pay and recover'?
4) Whether the Tribunal is justified in awarding
interest at 9% p.a.
5) What order of award?
11. Our answers to the above points are as under:
1. Point No. 1 : in the negative
2. Point No. 2 : in the negative
3. Point No. 3 : in the affirmative
4. Point No. 4 : in the negative
5. Point No. 5 : As per final order for the following:
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NC: 2024:KHC-D:10022-DB MFA No. 100985 of 2021 REASONS
12. Point No. 1: We have examined the materials placed before the Court. It is not in dispute that deceased Sharanabasava son of Narayana Reddy, aged 20 years, died in the motor vehicle accident.
13. With regard to the income of the deceased is concerned, PW1 has deposed that deceased was aged about 18 years as on the date of accident, student studying in PUC II Year at RGM Composite PU College, Sindhanur. After college hours deceased was attending part time job in Sharanabasaveshwara Pharma and earning Rs.9,000/- per month. Deceased was contributing the same to the maintenance of his family. Petitioners produced Ex.P.11, certificate issued by the Proprietor, M/s Sharanabasaveshwara Pharma, Sindhanur wherein it is certified that deceased was working as a part time medicine distributor and was getting salary of Rs.9,000/- per month. To substantiate the same, the author of Ex.P.11 was examined as PW2 who has admitted in his cross examination that he is an income tax assessee, he has not shown the expenses towards salary of the deceased in the ITR. The petitioners have not produced any cogent and convincing
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NC: 2024:KHC-D:10022-DB MFA No. 100985 of 2021 evidence before the Court to show that deceased was getting Rs.9,000/- salary. However, the petitioner has produced Ex.P.10-Hall Ticket issued by the Department of Pre University Education, Bangalore. Considering the educational qualification of the deceased it is just and proper to assess notional income of the deceased at the rate of Rs.12,000/- per month instead of Rs.20,000/- as assessed by the Tribunal without any basis and legal evidence.
14. Relying on the decision of the Hon'ble Apex Court in the case of National Insurance Company Limited Versus Pranay Sethi and Ors.,3 considering the age of the deceased, 50% of the assessed income should be added towards future prospects. The Tribunal has rightly applied the multiplier '18' and deducted 50% of the gross income towards personal and living expenses. Thus, the claimants are entitled for total compensation of Rs.19,44,000/- [Rs.12,000/- (monthly income) + Rs.6,000/-(future prospects) x 12 (months) x 18 (multiplier) less 50% (personal and living expenses)] towards loss of future income as against Rs.32,40,000/-. 3 AIR 2017 SC 5157
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15. The Tribunal has awarded a sum of Rs.2,17,265/- towards medical expenses which needs no interference. The Tribunal has awarded a sum of Rs.10,000/- towards loss of estate, Rs.20,000/- towards funeral expenses and transportation of dead body and Rs.30,000/- towards love and affection which is not in consonance with the decision of Hon'ble Apex Court in Pranay Sethi (supra) and Magma General Insurance Co. Ltd. Vs. Nanu Ram Alias Chuhru Ram & Ors.4. Keeping in mind the dictum laid down by the Hon'ble Apex Court in the aforesaid decisions, we deem it appropriate to award a sum of Rs.40,000/- each to the claimants towards loss of consortium; a sum of Rs.15,000/- towards funeral expenses and transportation of dead body and a sum of Rs.15,000/- towards loss of estate. Thus the claimants are entitled for compensation as under:
1. Loss of dependency 19,44,000.00
2. Medical expenses (as awarded by the 2,17,265.00 Tribunal)
3. Loss of consortium (Rs.40,000/- x 3) 1,20,000.00
4. Funeral expenses and transportation 15,000.00 of dead body
5. Loss of estate 15,000.00 Total 23,11,265.00 4 AIRONLINE 2018 SC 1249
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NC: 2024:KHC-D:10022-DB MFA No. 100985 of 2021 For the aforesaid reasons, point No.1 is answered in the negative.
16. Points no.2 and 3: Learned counsel for the insurer would submit that rider of the motorcycle was having LMV licence at the time of accident but not the driving licence to ride the motorcycle. The Tribunal has committed error in holding that rider of the motorcycle who was authorized to drive HMV/LMV is deemed to have valid driving licence to drive a motorcycle. In this regard relied on the Full Court decision of this Court in M.F.A. No. 1133/2003 c/w M.F.A. No. 5498/2003 (MV).
17. A perusal of the Full Bench decision of this Court in M.F.A. No. 12579/2007 (supra) it is clear that the Full Bench has held that motorcycle is not a LMV as defined u/S 2 (21) of the M.V. Act. Motorcycle is defined in Sub Section (27) of Sec. 2 of M.V. Act. Section 10 in Form No. 6 refers to motorcycle as a different class of vehicle. Therefore, the rider of the motorcycle in question who was having licence to drive a LMV not duly authorized to ride the motorcycle.
18. In G. Rama (supra), the Hon'ble Apex Court has held that insurer though not liable to pay compensation, but having
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NC: 2024:KHC-D:10022-DB MFA No. 100985 of 2021 regard to the nature of the case, it opined that insurer shall satisfy the award and shall have the right to recover the amount from the owner of the vehicle.
19. In the case on hand, Ex.R.7 is the Driving Licence Extract of Santosh Reddy, the rider of the motorcycle which is pertaining to LMV valid from 07.08.2013 to 06.08.2033. The said Santosh Reddy has obtained motorcycle driving licence on 23.11.2016, i.e., only after the accident.
20. RW2-Syed Sajid Hussain, Senior First Grade Assistant, Office of the Regional Transport Office, Raichur has clearly admitted that at the time of accident respondent no.1 was not having driving licence to ride a two wheeler. The same is not disputed by the other side. The investigating officer has also submitted charge sheet against the rider of the motorcycle for commission of offence punishable u/S 181 of M.V. Act as he was not having valid licence at the time of accident. The same is also not disputed.
21. Considering the materials placed before the Court and keeping in mind the aforesaid decision of the Full Bench of this Court we are of the considered view that the Tribunal has
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NC: 2024:KHC-D:10022-DB MFA No. 100985 of 2021 committed error in coming to the conclusion that rider of the motorcycle was not having valid licence to ride a two wheeler at the time of accident.
22. Keeping in mind the aforesaid decisions, the appellant- insurer though cannot be held liable to pay compensation to the claimants for the death of Sharanabasava in road traffic accident which had occurred due to the rash and negligent riding of the motorcycle by its rider-Santosh Reddy, who had admittedly no valid and effective driving licence to ride a motorcycle on the day of accident. Hence, relying on the decision of the Hon'ble Apex Court in G.Rama (supra) and Shamanna and another Vs. Divisional Manager, Oriental Insurance Company Limited and others5 it is just and proper to direct the appellant-insurer to satisfy the award amount with liberty to recover it from the owner of the offending motorcycle in accordance with law. Hence, point no.2 is answered in the negative and point no.3 is answered in the affirmative.
5 (2018) 9 SCC 650
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23. Point No.4: The Tribunal has awarded interest at the rate of 9% p.a. from the date of claim petition till its realization which is on the higher side. Keeping in mind the rate of interest on fixed deposit as on the date of claim petition, it is just and proper to award interest at the rate of 7% p.a. instead of 9% p.a. Hence, point no.4 is answered in the negative.
24. Point No.5: For the aforesaid discussions and reasons, we proceed to pass the following order.
ORDER Appeal filed by the appellant-insurer is allowed in part. The judgment and award passed by the learned MACT No.3 and Prl. Sr. Civil Judge & CJM, Ballari in M.V.C. No. 846/2016 dated 27.01.2021 is modified holding that the claimants are entitled for compensation of Rs.23,11,265/- as against Rs.35,17,265/- with interest at 7% p.a. from the date of claim petition till realization.
The appellant insurer is directed to deposit the entire compensation amount along with accrued interest within 60 days from the date of award with liberty to recover it from the owner of the offending motorcycle in accordance with law under the principle 'pay and recover'.
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NC: 2024:KHC-D:10022-DB MFA No. 100985 of 2021 Amount in deposit before this Court shall be transmitted to the Tribunal along with original records, forthwith.
Draw award accordingly.
Sd/-
JUDGE Sd/-
JUDGE bvv List No.: 1 Sl No.: 17