Karnataka High Court
M/S United India Insurance Company ... vs Smt Ningamma on 15 July, 2022
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
M.F.A. NO.4516 OF 2014 (MV)
C/W
M.F.A.NO. 4515 OF 2014, M.F.A.CROB NO.125 OF
2014
AND M.F.A. CROB NO.126 OF 2014
IN MFA NO.4516/2014
BETWEEN:
M/S UNITED INDIA INSURANCE
COMPANY LIMITED
M.C. ROAD
MANDYA
NOW REP. BY ITS REGIONAL OFFICE
6TH FLOOR, KRISHI BHAVAN
NRUPATHUNGA ROAD
BANGALORE
REPRESENTED BY ITS MANAGER.
... APPELLANT
(BY SRI. K.S. LAKSHMINARASAPPA, ADVOCATE
FOR SRI. A.M. VENKATESH, ADVOCATE)
2
AND:
1. SMT NINGARAJAMMA
W/O LATE MALLESIDDEGOWDA H.M.,
AGED ABOUT 39 YEARS
2. SRI. H.M. MAHADEVA
S/O. LATE MALLESIDDEGOWDA H.M.,
AGED ABOUT 21 YEARS,
3. H.M. MADANAGOWDA
S/O LATE MALLESIDDEGOWDA H.M.,
AGED ABOUT 19 YEARS
ALL ARE R/AT
HULIGEREPURA VILLAGE
MADDUR TALUK
MANDYA DISTRICT.
4. THE HEADMISTRESS
CA-2, HARI VIDYALAYA
RAILWAY LAYOUT
BOGADI
MYSORE-570026.
(OWNER OF EICHER PSV SCHOOL BUS
BEARING NO. KA-09/A-9491)
... RESPONDENTS
(BY SRI. MARIGOWDA, ADVOCATE FOR R1 TO 3;
SRI. M.V. CHARATI, ADVOCATE FOR R4)
THIS MISCELLANEOUS FIRST APPEAL IS
FILED UNDER SECTION 173(1) OF THE MOTOR
VEHICLES ACT AGAINST THE JUDGMENT AND
AWARD DATED 22.01.2014 PASSED IN MVC
NO.628/2013 ON THE FILE OF THE SENIOR CIVIL
JUDGE, MACT, MADDUR, AWARDING
3
COMPENSATION OF RS.7,32,056/- WITH
INTEREST @ 6% PER ANNUM FROM THE DATE OF
PETITION TILL REALIZATION.
IN MFA NO.4515/2014
BETWEEN:
M/S UNITED INDIA INSURANCE
COMPANY LIMITED
M.C. ROAD
MANDYA
NOW REP. BY ITS REGIONAL OFFICE
6TH FLOOR, KRISHI BHAVAN
NRUPATHUNGA ROAD
BANGALORE
REPRESENTED BY ITS MANAGER.
... APPELLANT
(BY SRI. K.S. LAKSHMINARASAPPA, ADVOCATE
FOR SRI. A.M. VENKATESH, ADVOCATE)
AND:
1. SMT. NINGAMMA
W/O LATE BOREGOWDA
AGED ABOUT 41 YEARS
2. SRI. C.B. SIDDARAJU
S/O. LATE BOREI GOWDA
AGED ABOUT 25 YEARS
3. C.B. RAMESH
S/O LATE BOREGOWDA
AGED ABOUT 23 YEARS
4
4. C.B. UMESHA
S/O LATE BOREGOWDA
AGED ABOUT 21 YEARS
ALL ARE RESIDING AT
CHIKKABOREGOWDANADODDI VILLAGE
MADDUR TALUK
MANDYA DISTRICT.
5. THE HEADMISTRESS
CA-2, HARI VIDYALAYA
RAILWAY LAYOUT
BOGADI
MYSORE-570026.
(OWNER OF EICHER PSV SCHOOL BUS
BEARING NO. KA-09/A-9491)
... RESPONDENTS
(BY SRI. MARIGOWDA, ADVOCATE FOR R1 TO 4;
SRI. M.V. CHARATI, ADVOCATE FOR R5)
THIS MISCELLANEOUS FIRST APPEAL IS
FILED UNDER SECTION 173(1) OF THE MOTOR
VEHICLES ACT AGAINST THE JUDGMENT AND
AWARD DATED 22.01.2014 PASSED IN MVC
NO.629/2013 ON THE FILE OF THE SENIOR CIVIL
JUDGE, MACT, MADDUR, AWARDING
COMPENSATION OF RS.7,31,104/- WITH
INTEREST @ 6% PER ANNUM FROM THE DATE OF
PETITION TILL REALIZATION.
IN MFA CROB NO.125/2014
BETWEEN:
1. SMT. NINGAMMA
W/O LATE BOREGOWDA
AGED ABOUT 41 YEARS
5
2. SRI. C.B. SIDDARAJU
S/O LATE BOREGOWDA
AGED ABOUT 25 YEARS
3. SRI. C.B. RAMESH
S/O LATE BOREGOWDA
AGED ABOUT 23 YEARS
4. SRI. C.B. UMESHA
S/O LATE BOREGOWDA
AGED ABOUT 21 YEARS
ALL ARE RESIDING AT
CHIKKABOREGOWDANADODDI VILLAGE
MADDUR TALUK
MANDYA DISTRICT - 571 401.
...CROSS OBJECTORS
(BY SRI. MARIGOWDA, ADVOCATE)
AND:
1. THE HEADMISTRESS
CA-2, HARI VIDYALAYA
RAILWAY LAYOUT, BOGADI
MYSORE - 570 026.
2. THE BRANCH MANAGER
UNITED INDIA INSURANCE CO. LTD.,
M.C. ROAD, MANDYA - 571 401.
... RESPONDENTS
(BY SRI. M.V.CHARATI, ADVOCATE FOR R1;
SRI. K.S.LAKSHMINARASAPPA, ADVOCATE
FOR SRI. A.M.VENKATESH, ADVOCATE FOR R2)
6
THIS MFA CROSS OBJECTION IN MFA
NO.4515/2014 IS FILED UNDER ORDER 41 RULE
22 OF CPC, AGAINST THE JUDGMENT AND
AWARD DATED: 22.01.2014 PASSED IN MVC
NO.629/2013 ON THE FILE OF THE SENIOR CIVIL
JUDGE, MACT, MADDUR, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
M.F.A. CROB NO.126 OF 2014(MV)
BETWEEN:
1. SMT NINGARAJAMMA
W/O LATE MALLESIDDEGOWDA
AGED ABOUT 39 YEARS
2. SRI H.M. MAHADEVA
S/O LATE MALLESIDDEGOWDA
AGED ABOUT 21 YEARS
3. SRI H M MADANAGOWDA
S/O LATE MALLESIDDEGOWDA
AGED ABOUT 19 YEARS
ALL ARE R/AT
HULIGEREPURA VILLAGE
MADDUR TALUK
MANDYA DISTRICT-571 401.
...CROSS OBJECTORS
(BY SRI. MARIGOWDA, ADVOCATE)
7
AND:
1. THE HEADMISTRESS
CA-2, HARI VIDYALAYA
RAILWAY LAYOUT, BOGADI
MYSORE - 570 026.
2. THE BRANCH MANAGER
UNITED INDIA INSURANCE CO. LTD.,
M.C. ROAD, MANDYA - 571 401.
... RESPONDENTS
(BY SRI. M.V. CHARATI, ADVOCATE FOR R1;
SRI. K.S. LAKSHMINARASAPPA, ADVOCATE FOR
SRI. A.M. VENKATESH, ADVOCATE FOR R2)
THIS MFA CROSS OBJECTION IN MFA
4516/2014 IS FILED UNDER ORDER 41 RULE 22
OF CPC AGAINST THE JUDGMENT AND AWARD
DATED:22.01.2014 PASSED IN MVC NO.628/2013,
ON THE FILE OF THE SENIOR CIVIL JUDGE,
MACT, MADDUR, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THESE MFAs AND MFA CROBs CASES
COMING ON FOR ADMISSION, THIS DAY, THE
COURT, DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel Sri Lakshminarasappa for Sri A M Venkatesh appearing for the insurer, Sri Marigowda, learned counsel 8 appearing for the claimants, and Sri M V Charathi, learned counsel appearing for the owner.
2. All the above referred two appeals and two cross objections arise from the common judgment delivered in MVC 628/2013 on the file of The Senior Civil Judge & MACT, Maddur. The tribunal has fastened the liability on the insurer as well as the owner. The contention of the insurer relating violation of terms and conditions of the policy is rejected by the tribunal. As such, the insurer is in appeal challenging the quantum as well as liability.
3. The claimants have filed cross objections challenging the quantum and seeking enhancement.
4. The learned appearing for the appellant/insurer would submit that the case on hand is squarely covered in terms of the ratio laid down in the case of RANI AND OTHERS VS. 9 NATIONAL INSURANCE CO. LTD., AND OTHERS reported in (2018) 8 SCC 492. Learned counsel would submit that the vehicle involved in the accident is admittedly a transport vehicle owned by the school. The vehicle admittedly had the route permit to ply only within Mysuru District. It is borne out from the records that the accident occurred outside Mysuru District i.e. beyond the permitted route. There is a clear breach of the conditions imposed in the policy and under the provisions of Section 149 (2) of the Motor Vehicles Act, 1988, the insurer is enabled to raise a defence relating to the violation of the permit and in that event, the insurer is not liable to indemnify the owner.
5. The learned counsel for the insurer would also invite the attention of the Court to Section 66 of the Motor Vehicles Act, 1988 which deals with the issuance of the permit. Referring to the permit 10 marked in the case, he would submit that the permit marked in Ex. R-1 would impose two conditions viz:
(i) To use the vehicle as a transport vehicle, and
(ii) And to use the vehicle within the district of Mysuru.
Though the vehicle was used as a transport vehicle at the time of the accident, the accident occurred outside the territory of Mysuru District. As such, there is a breach of a condition imposed on the permit. Since this breach is established, under Section 149(2)(a)(i)(c), the insurer is not liable to indemnify the owner. He would refer to the judgment in RANI's case supra and would point out that in RANI's case supra, the goods vehicle had a permit to ply for hire and reward in the State of Maharashtra, and said vehicle met with an accident in the State of Karnataka and Hon'ble Supreme Court held that the violation of 11 route permit would absolve the insurer from the liability to indemnify the owner. However, the Supreme Court also held that the insurer has to first satisfy the award towards the third party and has to recover the same from the insured. Referring to the above-said judgment, the learned counsel for the insurer would submit that the tribunal ought to have passed an order to pay the award amount to the claimant and to recover the same from the insured. Instead, the tribunal proceeded to fasten the liability on the insurer without the right of recovery from the insured. Accordingly, he prays for interference with the judgment and award and prays for the right to recover the amount from the insured after satisfying the award in favour of the claimants.
6. Learned advocate for the insured/owner Mr. M V Charati defending the judgment and award of the tribunal would raise the following contentions: 12
(a) RANI's case supra referred by the insurer would deal with the question of violation of a permit of goods vehicle where the permit was to ply the vehicle for hire and reward which is covered under Section 149(2)(a)(i)(a). It is urged that the permit issued to the vehicle of the insured in this case is not a permit for a goods vehicle and not a permit for hire and reward and the permit issued in respect of the vehicle involved in this case is a transport vehicle permit.
(b) That the violation of permit noticed in Rani's case is one falling under Section 149(2)(a)(i)(a) and the same amounts to fundamental breach and the violation, in this case, is a violation of permit under S. 149(2)(a)(i)(c) is not a fundamental breach. He would refer to the difference in the language used in Section 149(2)(a)(i)(a) and Section 149(2)(a)(i)(c). 13
(c) It is urged that a permit under Section 149(2)(a)(i)(c) is a permit to use the vehicle as a transport vehicle and as long as the vehicle is used as a transport vehicle there is no breach under Section 149(2)(a)(i)(c).
(d) The breach or violation of route complained by the insurer is not a defence permitted under Section 149(2)(a)(i)(c) and as such the ratio in RANI's case, supra cannot be made applicable to this case.
(e) From a reading of Section 66 of the Motor Vehicles Act, 1988 along with a definition of permit found in Section 2(36), it can be safely concluded that the permit referred to in Section 149(2)(a)(i)(c) is a permit relating to the nature and use of the vehicle and not a 14 permit relating to the route. The insurer can be absolved of its liability only if, the vehicle is used as a transport vehicle without a permit to use the vehicle as a transport vehicle.
(f) The vehicle though permitted to ply in Mysore had to ply beyond the district of Mysuru as the herd of elephants blocked the way of the vehicle and the driver inevitably had to travel in an alternate route where he was compelled to travel beyond the permitted territory.
Thus, the breach is not willful and in the absence of any proof on the part of the insurer that the insured committed a willful breach of the route permit, the insurer cannot be absolved of liability.
(g) The provisions of the Motor Vehicles Act, 1988 had to be interpreted to achieve the purpose behind the Act, and the if such a rule of interpretation is adopted, the insurer has to 15 indemnify the owner as there is valid coverage and there is no breach of the permit conditions.
(h)The definition of permit found in Section 2(31) of the Act would demonstrate that the permit is only related to the use of the motor vehicle as a transport vehicle and is not related to the route in which the vehicle is to be plied. Thus permit referred to in Section 149(2)(a)(i)(c) is to be construed as a permit relating to the nature of the use of the vehicle and not a route permit.
7. Learned counsel would substantiate his contention to the following judgment:
1. (2016) 3SCC 100 Lakshmi Chand Vs. Reliance General Insurance.
2. ILR 2000 KAR 1302 United India Insurance Company Ltd., and others Vs.Chandamma and others.16
3. ILR 2002 KAr 1088 K.G.Srinivasa Murthy and others Vs.Smt.Habib Khathun and others
4. ILR 2017 KAR 1761 IFFCO TOKIO GENERAL INSURANCE COMPANY LTD. VS.
SRI.VENKATESH AND OTHERS.
5. 2018(3) KCCR 2141 THE NATIONAL INSURANCE COMPANY LTD. BELAGAVI VS. SHRI.ADIVEPPA APPANNA NAIK AND OTHERS
6. 2018(4) AKR 199 S.N.KENCHANNA VS. ANITHA AND OTHERS
7. ILR 2009 KAR 4135 NEW INDIA ASSURANCE COMPANY LTD., VS.
SMT.MAHADEVAMMA AND OTHERS.
8. 2004 SCC ONLINE KAR 206 THE ORIENTAL INSURANCE COMPANY LTD., BANGALORE VS.SMT. K.SUNDARMAM ALIAS SUNDARA AND OTHERS
9. LAWS(KAR) 2016-11-32 HABEEBA KHANUM VS. HULAGESHI AND AMP;
10. 2020 SCC ONLINE KAR 1977 A MURULI VS. PARAMAKUSHAM AND ANOTHER 17
11. 2020 SCC ONLINE KAR 1915 UJWALA PRASAD VS. NEW INDIA ASSURANCE COMPANY LTD.,
12. 2016 SCC ONLINE KAR 6504 DURUGAMMA VS. S.G.NARESH AND OTHERS.
8. This Court has considered the rival contentions and also perused the materials available on record and also the judgments cited.
9. It is to be noticed that the judgments cited by the learned counsel for the owner of the vehicle are the judgments rendered before the judgment of the Hon'ble Apex Court in Rani's case supra and the judgments cited by the learned counsel for the owner which is rendered after Rani's case are the judgments where Rani's case is not referred. It is 18 also noticed that the judgments cited by the learned counsel for the owner are the judgments that refer to violations of different kinds of permits. Though the learned counsel for the owner of the vehicle would refer to the judgment of this Court in MFA No.1201/2011, MFA No.23097/2012, and MFA No.3920/2009 all these judgments are rendered without reference to the judgment in Rani's case referred supra. Hence, the ratio in the aforementioned judgments would not come to the rescue of the owner.
10. However, it is to be noticed that the Division Bench of this Court in MFA No.3672/2016 in the case of M.N.Lathamani and others Vs. B.R.Pradeep and others dealt with an issue where a transport vehicle caused an accident resulting in death when the bus was plying outside the permitted route. The Division Bench of this Court has held that the insurer has to first satisfy the 19 award and thereafter has to recover the amount from the owner. The Division Bench of this Court in the aforementioned case has relied upon Rani's case referred supra.
11. Even otherwise, if the contentions of the owner are to be considered with reference to the interpretation of Sections 149(2)(a)(i)(a) and (c) and also Sections 66 and 2(31) of the Motor Vehicles Act, 1988, the contentions of the owner to fasten the liability on the insurer cannot be accepted. To analyze the contentions of the owner, it is necessary to refer to Section 149(2), Section 2(31), Section 66 of the Act, 1988, and Rule-64 of Rules, 1989.
12. Section 149(2)(a) of the Act would read as under:
149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-- (1) xxxxxxx (2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the 20 commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:--
(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:--
(i) a condition excluding the use of the vehicle--
(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or
(b) for organised racing and speed testing, or
(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or
13. Section 66 deals with the permit. Section 66(1) of the Act reads as under:
"66. The necessity for permits - 1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used:
Provided that a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a contract carriage.21
Provided further that a stage carriage permit may, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a goods carriage either when carrying passengers or not.
Provided also that a goods carriage permit shall, subject to any conditions that may be specified in the permit, authorise the holder to use the vehicle for the carriage of goods for or in connection with a trade or business carried on by him".
(Emphasis supplied)
14. From a reading of Section 66(1) of the Act, it is apparent that the permit issued for a transport vehicle is a permit to use the vehicle as a transport vehicle in a particular place and a particular manner. The expression in that place in the manner in which the vehicle is being used found in S.66(1) makes it clear that the permit deals with both the territory within which the vehicle can ply and also the use of the vehicle as transport vehicle. The permit which is issued in this case is marked as Ex.R1. The permit reads as under:
FORM KVM 47 (See Rule 64(1)(vii) PRIVATE SERVICE VEHICLE PERMIT Regional Transport Authority, Mysore (West) K.M.V.(No.56/12-13) 22
1. Name of Holder/Company: THE HEADMASTER
2. (Surname) Name: HARI VIDYALAYA HIGH SCHOOL, (Father's/Husband's name) Address: CA-2, SOUTHERN RAILWAY LAYOUT, BOGADI, MYSORE - 26
3. The route or routes of the area for which the permit is valid: TO PLY WITHIN THE MYSORE DISTRICT ONLY (Except in prohibited areas)
4. Type and seating capacity of the vehicle including Trailer and the alternative Trailers of articulated vehicles.
No.of Type Seating Registered Registration Chassis Vehicles Capacity laden Marks No. weight (Kgs) 1 2 3 4 5 6 ONE E.I. 24+1 AS PER KA-09/A- 11EF B. RC 9491 7H1578 77
5. Specification and number of persons (including standees) to be carried and the terms under which they will be carried. To carry the Students and Staff of the Institution without collecting hire or reward or in connection with business or trade.
6. Date of expiry of permit: From 30.11.2012 to 29.11.2017
7. Conditions: Attached
8. Under the provisions of rule 64 this permit is valid also in the region and subject to the conditions set out below;
Region Route/areas Condition Mysore as above attached
Rs.1600/-Ch No.0200126/dt:15.11.2012 23 Dated: 30.11.2012 Secretary R.T.A. MYSORE (WEST) ªÉÄʸÀÆgÀÄ (¥À)
15. From this reading of the permit which is issued under Rule 64(1)(vii) of the Motor Vehicles Rules, it is apparent that two conditions are imposed for use of the vehicle. i) that the vehicle is to be used for transport purposes and ii) that the vehicle is to be used within the region of the Mysore district. Section 2(31) of the Motor Vehicles Act reads as under:
2. Definitions: In this Act, unless the context otherwise requires.
xxxxxxxx xxxxxxxx (31) "permit" means a permit issued by a State or Regional Transport Authority or an authority prescribed on this behalf under this Act authorising the use of a motor vehicle as a transport vehicle;"
16. The definition of the 'permit' as found in Section 2(31) of the Act, would refer to the permit issued under the Act, to use a motor vehicle as a 24 transport vehicle. The definition does not refer to the route in which the vehicle is to be plied. However, the permit issued under the Act cannot be understood and interpreted just by referring to the definition of the word 'permit' found in the Act. The 'permit' is governed by Section 66 of the Act of 1988 and Rule 64 of the Karnataka Motor Vehicle Rules, 1989.
17. Section 66 of the Act deals with the issuance of the permit. By referring to the definition of the word 'permit' as defined in Section 2(31), the permit issued under S.66 (1) if construed as only a permit to use the vehicle as a transport vehicle and nothing more, then the expression "in that place in the manner in which the vehicle is being used" found in Section 66 (1) becomes redundant. Such construction is not permitted. While construing any provision it should be construed in 25 such a manner that each word and expression in the provision is retained unless it is shown that such retention leads to absurdity. No such absurdity is pointed out.
18. It is also required to be noticed that the permit is issued as required under Rule 64 of Karnataka Motor Vehicle Rules 1989. Said rule refers to various forms for different kinds of permits. The permit for the service vehicle is under KMV 47. Ex.R1 is the permit issued to the vehicle in question. Ex. R1 conforms with KMV47. From the said document it is apparent that the permit prescribes the territory within which the vehicle is permitted to ply. The insured vehicle was permitted to be used as a transport vehicle and the permission was confined to the Mysore district only.
19. The expression "for a purpose not allowed by the permit under which the vehicle is used where 26 the vehicle is a transport vehicle'' found in Sections 149(2)(a)(i)(c) of the Motor Vehicles Act would make it very clear that if any of the conditions referred in the permit are violated, the insurer is allowed to take a defence that insurer is not liable to pay the compensation.
20. Admittedly, in this case, the vehicle was plying in an area where it was not permitted. There is a breach of the terms and conditions of the permit issued in favour of the owner of the vehicle. The policy of insurance is issued subject to the condition that the insurer would adhere to the conditions of the policy. If there is a violation of the terms of the policy, and such violation is permitted to be a defence under Section 149(2) of the Act, then the insurer is not liable to indemnify the insured. However, in terms of the ratio laid down in the case of RANI AND OTHERS vs. NATIONAL INSURANCE CO. LTD., AND OTHERS (2018) 8 SCC 492, the 27 insurer cannot avoid the liability towards the third party. The insurer has to satisfy the award by paying compensation to the third party and thereafter has to recover the amount from the insurer.
21. For the aforesaid reasons the contentions of Sri. Charathi learned counsel for the owner of the vehicle that the breach complaint, in this case, is not a fundamental breach that would enable the insurer to avoid liability and cannot be accepted. The breach committed by the owner is a breach recognized under Section 149(2)(a)(i)(c) of the Act of 1988.
22. The Tribunal has not considered this aspect. The Tribunal erroneously holds that the insurer is liable to indemnify the owner of the vehicle through there is a breach of condition incorporated in the permit. Under these circumstances, this Court is of 28 the view the finding of the Tribunal to the extent that the insurer of the vehicle has to indemnify the owner of the vehicle is not correct. To this extent, the Judgment and Award of the Tribunal have to be modified.
23. The contention of the owner that the driver of the vehicle had to take the vehicle on a route not permitted as a herd of elephants prevented the driver from proceeding in a permitted route as such, there is no willful breach on the part of the owner cannot be accepted. The evidence in this regard is not convincing. Even otherwise, such an excuse is not a valid excuse to deviate from the permitted route.
MFA CROB No.126/2014 in MFA No.4516/2014.
24. It is also required to be noticed that the claimants, in MVC 628/2013, have filed cross objections seeking enhancement of compensation. 29 In cross objection No.126/2014 in MFA No.4516/2015, the deceased was aged about 45 years. This finding on his age is not in dispute. He is survived by two sons and a wife. The Tribunal has assessed the notional income at Rs.4,500/- p.m. The accident occurred in the year 2012. In the absence of proof, the chart prepared by the Karnataka State Legal Services Authority would be a guiding factor and Rs.7,000/-p.m. would be the notional income. It is also noticed that the Tribunal has not added anything towards the future prospects.
25. Since the deceased was aged about 45 years, 25% of income has to be added towards future prospects. It is also forthcoming from the records that the deceased was an Agricultural Labourer. In the circumstances found in the case, it can be presumed that his sons were dependent on the deceased. Under the circumstances, 1/3rd is to be 30 deducted towards the personal expenses. Thus, the loss of dependency would be Rs.8,750/- x 12 x 14 x 2/3 = Rs.9,10,000/-.
26. The compensation awarded under the conventional heads is to be re-determined and the same should be in conformity with the ratio laid down by the Hon'ble Apex court in the case of National Insurance Co., Ltd., Vs. Pranay Sethi & Ors. Reported in AIR 2017 SC 5157.
27. Since there are three dependants, Rs.40,000/- each is awarded under the head of loss of consortium, Rs.15,000/- under the head of loss of estate and Rs.15,000/- towards funeral expenses. The compensation of Rs.66112/- awarded towards medical expenses is to be retained as there is no challenge to the said component of the award. The cross objectors in Crob. No.126/2014 in MFA 31 No.4516/2014 are entitled to compensation under different heads as under:
Compensation under Amount Amount different Heads (awarded (awarded by by this Tribunal) Court) in Rs. in Rs.
1. Loss of Dependency 6,16,056/- 9,80,000/-
(8750 X 14 X 12 X 2/3) (7000 X 25% =8750)
2. Love and affection 35,000/- 1,20,000/- (40,000 X 3)
3. Loss of estate and 15,000/- 30,000/- funeral expenses Obsequies
4. Medical expenses 66,000/- 66,000/-
Total 7,32,056/- 11,96,000/-
28. The Tribunal has awarded total compensation of Rs.7,32,056/-. The appellants/claimants are entitled to compensation of Rs.11,96,000/-. Thus, the appellants are entitled to enhanced compensation of Rs.4,63,944/- (Rs.11,00,000/- Rs.7,32,104/-). The enhanced compensation shall 32 carry interest at the rate of 6% p.a., from the date of petition till the date of payment. MFA CROB No.125/2014 in MFA No.4515/2014.
29. The claimants, in MVC 629/2013, have filed cross objections seeking enhancement of compensation. In cross objection No.126/2014 in MFA No.4515/2014, the deceased was aged 50 years. This finding on his age is not in dispute. He is survived by three sons and a wife. The Tribunal has assessed the notional income at Rs.4,500/- p.m. The accident occurred in the year 2012. In the absence of proof, the chart prepared by the Karnataka State Legal Services Authority would be a guiding factor and Rs.7,000/-p.m. would be the notional income. It is also noticed that the Tribunal has not added anything towards the future prospects.
33
30. Since the deceased was aged about 50 years, 25% of income has to be added towards future prospects. In the circumstances found in the case, it can be presumed that his sons were dependent on the deceased. Under the circumstances, 1/3rd is to be deducted towards the personal expenses. Thus, the loss of dependency would be Rs.8,750/- x 13 x 12 x 2/3 = Rs.9,10,000/-.
31. The compensation awarded under the conventional heads is to be determined and the same should be in conformity with the ratio laid down by the Hon'ble Apex court in the case of Pranay Sethi.
32. Since there are four dependants, Rs.40,000/- each is awarded under the head of loss of consortium, Rs.15,000/- under the head of loss of estate and Rs.15,000/- towards funeral expenses. The cross objectors in Crob.125/2014 in MFA 34 no.4515/2014 are entitled to compensation under different heads as under:
Compensation under Amount Amount different Heads (awarded (awarded by by this Tribunal) Court) in Rs. in Rs.
1. Loss of Dependency 6,76,104/- 9,10,000/-
(8750 X 13 X 12 X 2/3) (7000 X 25% =8750)
2. Love and affection and 20,000/- 1,60,000/- consortium
3. Loss of estate 20,000/- 15,000/-
4. Funeral expenses 15,000 15,000/-
Total 7,31,104/- 11,00,000/-
33. The Tribunal has awarded total compensation of Rs.7,31,104/-.The appellants/claimants are entitled to compensation of Rs.11,00,000/-.Thus, the appellants are entitled to enhanced compensation of Rs.3,68,896/- (Rs.11,00,000/- Rs.7,31,104/-). The enhanced compensation shall 35 carry interest at the rate of 6% p.a., from the date of petition till the date of payment.
34. Since there is a violation of the terms and conditions of the policy as well as the permit, the insurer has to pay the compensation to the claimants. Thereafter, the insurer is at liberty to recover the same from the insurer. An appeal filed by the insurer is allowed in part. Cross Objection is allowed in part.
35. Hence the following:
ORDER MFA No.4515/2014 and MFA No.4516/2014 are allowed in part.
MFA Crob. No.126/2014 in MFA No.4515/2014 and MFA Crob. No.125/2014 in MFA No.4516/2014 are allowed in part. 36
Judgment and award dated 22.01.2014 in MVC No.629/2013 clubbed with MVC No.628/2013 are modified.
A compensation of Rs.11,96,000/- is awarded in favour of claimants in MVC No.628/2014 on the file of AMACT, Maddur. The compensation amount shall carry interest at the rate of 6% per annum from the date of petition till the date of payment.
50% of the compensation amount shall be released in favour of the claimants in MFA Crob.125/2014, equally and the remaining 50% of the compensation amount shall be kept in a fixed deposit in any nationalized Bank in the name of each of the claimants equally for three years.
A compensation of Rs.11,00,000/- is awarded in favour of claimants in MVC No.629/2013 on the file of AMACT, Maddur. The compensation amount shall carry interest at the rate of 6% per annum from the date of petition till the date of payment. 37
50% of the compensation amount shall be released in favour of the claimants in MFA Crob. No.126/2014, equally and the remaining 50% of the compensation amount shall be kept in fixed deposit in any nationalized Bank in the name of each of the claimants equally for three years.
The appellant insurer in MFA No.4516/2014 and MFA No.4515/2014 shall deposit the amount and after satisfying the award, it is at liberty to recover the same from the 4th respondent-insured.
Sd/-
JUDGE Bnv.