Karnataka High Court
Bharati Axa General Insurance Co., ... vs Geeta W/O Balakrishna Naik @ Nayak, on 29 November, 2017
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 29TH DAY OF NOVEMBER 2017
BEFORE
THE HON'BLE MR. JUSTICE B.A. PATIL
M.F.A.NO.21285/2013
C/W
M.F.A.NO.21284/2013
M.F.A.CROB.NO.796/2013
M.F.A.NO.21285/2013
BETWEEN:
BHARATI AXA GENERAL
INSURANCE COMPANY LTD.,
REPRESENTED BY ITS MANAGER,
BRANCH OFFICE, BELGAUM.
COLLEGE ROAD, BELGAUM.
NOW REPRESENTED BY ITS
AUTHORIZED SIGNATORY,
BHARATI AXA GENERAL
INSURANCE, I FLOOR,
FERNS/SY NO. 28,
DODDA NEKUNDI, BENGALURU-37.
... APPELLANT
(BY SRI. S K KAYAKAMATH, ADVOCATE)
AND
1. GEETA W/O BALAKRISHNA NAIK @ NAYAK,
AGE: 24 YEARS, OCC: HOUSEHOLD WORK,
R/O: 3RD CROSS, WARD NO. 26,
OLD MANIKBAG, OLD P.B.ROAD, BELGAUM.
2. KUMARI. GOURI
D/O BALAKRISHNA NAIK @ NAYAK,
AGE: 4 YEARS,
A MINOR REPRESENTED BY NATURAL
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MOTHER M/G RESPONDENT NO. 1,
R/O: 3RD CROSS, WARD NO. 26,
OLD MANIKBAG, OLD P.B.ROAD,
BELGAUM.
3. SHANTA W/O YALLAPPA NAIK @ NAYAK,
AGE: 59 YEARS, OCC: HOUSEHOLD WORK,
R/O: 3RD CROSS, WARD NO. 26,
OLD MANIKBAG, OLD P.B.ROAD, BELGAUM.
4. YALLAPPA S/O FAKAIRA NAIK @ NAYAK,
AGE: 64 YEARS, OCC: NIL,
R/O: 3RD CROSS, WARD NO. 26,
OLD MANIKBAG, OLD PB ROAD, BELGAUM.
5. VEERABHADRAPPA
S/O PITAMBARAPPA DESAI,
AGE: 47 YEARS,
OCC: BUSINESS,
R/O: B.C.100 CAMP, BELGAUM,
(OWNER OF INNOVA CAR BEARING
REGN. NO. KA-23/B-3887)
... RESPONDENTS
(BY SMT. GEETA K M @ PAWAR, ADV., FOR R1-R4;
SRI. PRASHANT F GOUDAR, ADV., FOR R5)
THIS MFA IS FILED U/S 173(1) OF MV ACT, 1988,
AGAINST THE JUDGMENT AND AWARD DATED 24-11-2012
PASSED IN MVC NO.1675/2011 ON THE FILE OF PRESIDING
OFFICER, FAST TRACK COURT-I, AND MEMBER, ADDL. MACT,
BELGAUM, AWARDING THE COMPENSATION OF RS.10,38,000/-
WITH INTEREST AT THE RATE OF 8% P.A., FROM THE DATE OF
PETITION TILL ITS REALISATION.
M.F.A.NO.21284/2013
BETWEEN:
BHARATI AXA GENERAL
INSURANCE COMPANY LTD.,
BRANCH OFFICE, BELGAUM.
COLLEGE ROAD, BELGAUM.
NOW REPRESENTED BY ITS
AUTHORIZED SIGNATORY,
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BHARATI AXA GENERAL
INSURANCE, I FLOOR,
FERNS/SY NO. 28,
DODDA NEKUNDI, BENGALURU-37.
... APPELLANT
(BY SRI. S K KAYAKAMATH, ADVOCATE)
AND
1. MARUTI @ BABU S/O KALLAPPA NAIK,
AGE: 52 YEARS, OCC: COOLIE,
R/O: 4TH CROSS, SAMARTHA NAGAR
BELGAUM.
2. SHANTABAI W/O MARUTI NAIK,
AGE: 44 YEARS,
OCC: HOUSEHOLD WORK,
R/O: 4TH CROSS,
SAMARTHA NAGAR, BELGAUM.
3. VEERABHADRAPPA
S/O PITAMBARAPPA DESAI,
AGE: MAJOR, OCC: BUSINESS,
R/O: B.C.100 CAMP, BELGAUM,
OWNER OF INNOVA CAR BEARING
REGN. NO. KA-23/B-3887.
... RESPONDENTS
(BY SMT GEETA K M @ PAWAR, ADV. FOR R1 AND R2;
SRI. PRASHANT F. GOUDAR, ADV., FOR R3)
THIS MFA IS FILED U/S 173(1) OF MV ACT, 1988,
AGAINST THE JUDGMENT AND AWARD DATED 24-11-2012
PASSED IN MVC NO.1955/2011 ON THE FILE OF PRESIDING
OFFICER, FAST TRACK COURT-I AND MEMBER, ADDL. M.A.C.T.,
BELGAUM, AWARDING THE COMPENSATION OF RS.5,79,000/-
WITH INTEREST AT THE RATE OF 8% P.A., FROM THE DATE OF
PETITION TILL ITS REALISATION.
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M.F.A.CROB.NO.796/2013
BETWEEN:
1. GEETA W/O BALAKRISHNA NAIK @ NAYAK,
AGE: 24 YEARS, OCC: HOUSEHOLD WORK,
R/O: 3RD CROSS, WARD NO.26,
OLD MANIKBAG, OLD P.B. ROAD, BELGAUM.
2. GOURI D/O BALAKRISHNA NAIK @ NAYAK
AGE: 2 YEARS, A MINOR REPRESENTED BY
AND ACTING THROUGH HER NATURAL
MOTHER M/G PETITIONER NO.1,
GEETA W/O BALAKRISHNA NAIK @ NAYAK.
3. SHANTA W/O YALLAPPA NAIK @ NAYAK,
AGE: 58 YEARS, OCC: HOUSEHOLD WORK,
R/O: 3RD CROSS, WARD NO.26,
OLD MANIKBAG, OLD P.B. ROAD, BELGAUM.
4. YALLAPPA S/O FAKIRA NAIK @ NAYAK,
AGE: 68 YEARS, OCC: HOUSEHOLD WORK,
R/O: 3RD CROSS, WARD NO.26,
OLD MANIKBAG, OLD P.B. ROAD, BELGAUM.
... CROSS OBJECTORS
(BY SMT GEETHA K M @ PAWAR, ADVOCATE)
AND
1. VEERBHADRAPPA S/O PEETAMBARAPPA DESAI,
AGE: 46 YEARS, OCC: BUSINESS,
R/O: B C 100, CAMP, BELGAUM.
2. BHARTI AXA GENERAL INSURANCE CO.LTD.,
REPRESENTED BY ITS MANAGER,
BRANCH OFFICE, BELGAUM,
COLLEGE ROAD, BELGAUM.
... RESPONDENTS
(BY SRI.S K KAYAKAMATH, ADV., FOR R2;
R1 NOTICE SERVED)
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THIS MFA.CROB IN MFA.NO.21285/2013 IS FILED
U/O.XLI RULE 22 OF CPC., AGAINST THE JUDGMENT AND
AWARD DATED 24-11-2012 PASSED IN MVC NO.1675/2011 ON
THE FILE OF PRESIDING OFFICER, FAST TRACK COURT-I AND
MEMBER, ADDITIONAL M.A.C.T., BELGAUM, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THE APPEALS AND CROSS OBJECTION COMING ON FOR
ORDERS THIS DAY, THE COURT, DELIVERED THE FOLLOWING:
JUDGMENT
M.F.A.No.21285/2013 and M.F.A.No.21284/2013 have been preferred by the appellant-insurer and M.F.A.Crob No.796/2013 has been preferred by the cross- objectors/claimants challenging the judgment and award passed by the Presiding Officer, Fast Track Court - I and Additional M.A.C.T., in MVC No. 1675/2011 and MVC No. 1955/2011 dated 24.11.2012.
2. Heard. These appeals and cross-objection are admitted and with the consent of the learned counsel for the parties, they have been taken up of final disposal.
3. Brief facts of the case are that on 18.05.2011 at about 9.30 p.m., one Balakrishna S/o. Yallappa Naik, the husband of the petitioner No.1 in MVC No.1675/2011, along 6 with his friend Anil @ Anand Babu Naik were proceeding in Innova Car bearing registration No. KA-22/B-3887 to go to Honaga. At that time, the driver of the said vehicle drove it rashly and negligently and when they reached near Yamanapur village, the driver lost control over the said vehicle due to which the car went and dashed to the ongoing vehicle from its backside and thereafter it went and hit to the road divider. Due to the impact, Balakrishna and Anil @ Anand sustained grievous injuries and died on the spot. It is further contended in the petition that the said Balakrishna was working as a driver and was earning Rs.15,000/- per month and maintaining his family. It is further contended that the deceased Anil @ Anand was working as a mechanic and was earning Rs.8,000/- per month and maintaining his family. For having lost the bread earners in the family, the wife, children and parents of deceased Balakrishna have filed MVC No.1675/2011 and the parents of deceased Anil @ Anand have filed MVC No.1955/2011 claiming compensation under section 166 of M.V. Act.
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4. In pursuance of the notice, respondent No.1 and 2 appeared before the Tribunal and filed their written statements. In his written statement, Respondent No.1 denied the contents of the petition and further contended that the driver of the offending vehicle was holding valid and effective driving licence to drive the vehicle and the vehicle was insured with respondent No.2-insurer and as such, he is not liable to pay any compensation.
5. Respondent No.2 filed his written statement by denying the contents of the claim petition, it is further contended that as on the date of the accident, the driver of the offending vehicle was not holding valid and effective driving licence. He further contended that though the driver of the offending vehicle was holding driving licence to drive LMV (non-transport), but he was not supposed to drive the transport vehicle without endorsement and as such, there is a breach of policy condition. He further contended that the driver of the car had consumed alcohol and the alleged accident took place under the influence of alcohol and as such, the insurer is not liable to pay any compensation as 8 there is a breach of policy condition. On these grounds he prayed for dismissal of the claim petition.
6. On the basis of the above pleadings, the Tribunal framed the following:
Issues in MVC No. 1675/2011
1. Whether the petitioners prove that Balakrishna died in motor vehicle accident which took place on 18-05-2011 at 9-30 pm near Indal Bridge within the limits of Traffic North Police Station Belgaum due to rash and negligent driving of vehicle TOYOTA INNOVA NO.KA 22/B-3887 by its driver in which the deceased was proceeding?
2. Whether the petitioners are entitled for compensation? If so, what amount and from whom?
3. What order or award?Issues in MVC No. 1955/2011
1. Whether the petitioners prove that their son Anil died in a motor vehicle accident which took place on 18-05-2011 at about 9-30 9 P.M. near Indal bridge within the limits of Traffic North Police Station Belgaum due to rash and negligent driving of vehicle TOYOTA INNOVA NO.KA 22/B-3887 by its driver?
2. Whether the petitioners are entitled for compensation? If so, what amount and from whom?
3. What order or award?
7. In order to prove their case, petitioner No.1 in MVC No. 1675/2011 got examined herself as P.W.1 and got marked documents as per Ex.P1 to P9. In MVC No. 1955/2011, the petitioner No.1 got examined himself as P.W.1 and got marked documents as per Ex.P1 to 6. On behalf of the respondents, one witness got examined as R.W.1 and got marked documents as per Ex.R1 to 6.
8. After hearing the parties to the lis, impugned judgment and award came to be passed.
9. The main grounds urged by the learned counsel appearing for the appellant-insurer are that the driver of the offending vehicle was not holding valid and effective driving 10 licence to drive the transport vehicle though he was holding licence to drive LMV (non-transport). He further contended that the driver of the offending vehicle drove the said car by consuming alcohol and the alleged accident took place under the influence of alcohol and as such, the owner of the vehicle is liable to pay the compensation. He further contended that the compensation awarded under the various heads is on the higher side and the same is liable to be reduced. On these grounds, he prayed for allowing the appeals filed by the appellant-insurer by setting aside the judgment and award.
10. The learned counsel for the cross-
objectors/claimants has vehemently argued and contended that the deceased Balakrishna was working as a driver and he availed loan from a bank for the purchase of the said car. He was earning Rs.15,000/- per month from his driving work, as the said car was owned by him. She has further contended that there are so many dependants and he was having a bright future and at very young age he died. She further contended that the compensation awarded under the 11 conventional heads is also on the lower side and the same is liable to be enhanced.
11. Insofar as MVC No.1955/2011 is concerned, the learned counsel for the cross-objector/claimants has vehemently argued and contended that deceased Anil @ Anand was working as mechanical and was earning Rs.8,000/- per month, but the Tribunal assessed the income of the deceased on the lower side @ Rs.6,000/- per month though he was having technical qualification to do mechanic work. She further contended that the Tribunal has not properly considered and appreciated the material placed on record and erroneously passed the judgment and award by awarding compensation on the lower side. On these grounds, she prayed for allowing her cross-objections by dismissing the appeals filed by the appellant-insurer.
12. The accident in question, so also the involvement of offending vehicle in the accident, insured with appellant-insurer is not in dispute.
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13. The first contention taken up by the learned counsel for the appellant-insurer is that the driver of the offending vehicle was not having valid and effective driving licence to drive transport vehicle though he was holding licence to drive LMV (non-transport). As could be seen from the records, the driver of the offending vehicle was holding the licence to drive LMV (non-transport) and the same was in currency from 13.08.2003 to 12.08.2023. When the driver of the offending vehicle was holding valid and effective driving licence to drive LMV (non-transport), then under such circumstances, it cannot be held that he was incompetent to drive transport vehicle without there being any endorsement. The Hon'ble Apex Court in the case of Mukund Dewangan v. Oriental Insurance Company Ltd., and others, reported in AIR 2017 SC 3668 at para No. 45 and 46 has observed as under:-
"45. Transport vehicle has been defined in section 2(47) of the Act, to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. Public service vehicle has been defined in section 2(35) to mean any motor vehicle used or adapted to be used for the carriage of 13 passengers for hire or reward and includes a maxicab, a motor cab, contract carriage, and stage carriage. Goods carriage which is also a transport vehicle is defined in section 2(14) to mean a motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods. It was rightly submitted that a person holding licence to drive light motor vehicle registered for private use, who is driving a similar vehicle which is registered or insured, for the purpose of carrying passengers for hire or reward, would not require an endorsement as to drive a transport vehicle, as the same is not contemplated by the provisions of the Act. It was also rightly contended that there are several vehicles which can be used for private use as well as for carrying passengers for hire or reward. When a driver is authorised to drive a vehicle, he can drive it irrespective of the fact whether it is used for a private purpose or for purpose of hire or reward or for carrying the goods in the said vehicle. It is what is intended by the provision of the Act, and the Amendment Act 54/1994.
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 14 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.54/1994.15
(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. 16
(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."
14. By going through the above paragraphs, it makes clear that if a person is holding driving licence to drive LMV (non-transport), then under such circumstances, without there being any separate endorsement, he is also competent to drive LMV (transport). If a person is holding licence to drive light motor vehicle registered for private use, who is driving a similar vehicle which is registered or insured, for the purpose of carrying passengers for hire or reward, would not require an endorsement as to drive a transport vehicle, as the same is not contemplated by the provisions of the Act.
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15. By keeping in view the ratio laid down in the above said decision and under the facts and circumstances of the case, when the driver of the offending vehicle was holding valid and effective driving licence to drive LMV (non- transport) and it was in currency from 13.08.2003 to 12.08.2023 then under such circumstances, the appellant- insurer is liable to pay the compensation. In this behalf the contention taken up by the learned counsel for the appellant does not sustainable in law.
16. The second contention taken up by the learned counsel for the appellant-insurer is that the driver of the offending vehicle had consumed alcohol and under the influence of alcohol the alleged accident took place and as such, there is a breach of policy condition and he is not liable to pay any compensation. In order to substantiate the said fact, he got examined R.W.1 and produced Ex.R.4, the analysis report issued by the Regional Forensic Lab to show that the alcohol, which was consumed was more than permissible limits. Though the said contention has been taken up and the document is produced, but as could be 18 seen from section 149 of the M.V.Act, the said defence is not available to the insurer. As per section 149 of the M.V. Act, certain grounds, which have been specifically stated therein, if they are violated then it will amount to breach of policy conditions. So under the said proviso, consumption of alcohol will not come and cover the policy condition and as such the said contention of the learned counsel for the appellant-insurer is not sustainable in law and the same is rejected.
17. The third contention taken up by the learned counsel for the appellant-insurer is that the compensation awarded is on the higher side and it is the contention of the learned counsel for the cross-objectors/claimants that the compensation awarded is on the lower side. As could be seen from the judgment and award in MVC No. 1675/2011, it has been contended by the claimants that the deceased Balakrishna was working as a driver on Tata Goods van bearing registration No.KA-24/3163 and was earning Rs.15,000/- per month. In order to substantiate the said fact, no document has been produced. If really he owned 19 vehicle and it was standing in his name, and was running the vehicle for business purpose, then under such circumstances, definitely the claimants could have produced the RC particulars and the documents with regard to bank loan availed on the said vehicle. In the absence of the documents, the Tribunal after taking notional income at the rate of Rs.6,000/- per month, which is the income, which normally used to be adopted even in the settlement of cases before the Lok Adalath, after deducting 1/4th of the income towards personal expenses of the deceased and applying multiplier '17', as the deceased was aged about 26 years, has awarded Rs.9,18,000/- towards loss of dependency. By going through the calculation and the notional income assessed by the Tribunal, it appears to be justifiable. Though the learned counsel for the cross-objector/claimants contended that he was owning Tata goods van and he himself was driving the said vehicle and was earning Rs.15,000/- per month, but the notional income cannot be taken, at that rate, in the absence of the material on record. No such inference can be gathered from the records which have been produced. Under such 20 circumstances, the compensation awarded under the head of loss of dependency appears to be just and proper. Insofar as the compensation awarded under the conventional heads is concerned, the Tribunal has awarded Rs. 1,20,000/-. In view of the decision of the Apex Court in the case of National Insurance Company Ltd., v. Pranay Sheti, the claimants are entitled to an amount of Rs.70,000/- under the conventional heads. The difference is of about only Rs.50,000/- in respect of conventional heads. So, in that light, I feel it can be neither required to be reduced nor required to be enhanced, as prayed for. Keeping in view the said facts and circumstances, the judgment and award passed by the Tribunal in MVC No.1675/2011 is confirmed.
18. Insofar as the judgment and award in MVC No. 1955/2011 is concerned, therein the claimants have contended that the deceased was working as a mechanic (mestri) in Pandu Mestri Garage at Belagavi and was earning Rs.8,000/- per month. But in order to substantiate the said fact, neither a certificate has been produced nor the owner of the said garage came to be examined. In the absence of the 21 material, the Tribunal by taking the notional income at the rate of Rs.6,000/- per month, as the deceased was bachelor, after deducting half of the said income, after applying multiplier '14' by taking the age of the youngest parent, has awarded Rs.5,04,000/- towards loss of dependency and same appears to be just and proper. The Tribunal has awarded Rs.75,000/- under the conventional heads. So in view of the decision quoted supra, the appellant-claimants are entitled to Rs.70,000/- under the conventional heads. But only marginal difference of Rs.5,000/- is there, so in that light, I feel that if the judgment and award passed by the Tribunal is confirmed, it will meet the ends of justice. Keeping in view the above said facts and circumstances, the cross-objectors/claimants have not made out any good grounds so as to interfere with the judgment and award passed by the Tribunal and the cross-objection filed by the cross-objectors/claimants is liable to be dismissed.
19. Accordingly, appeals preferred by the appellant- insurer and the cross-objection preferred by the cross- objectors/claimants are dismissed by confirming the 22 judgment and award passed by the Tribunal in MVC No. 1675/2011 and MVC No. 1955/2011 dated 24.11.2012.
20. The amount in deposit made by the appellant- insurer may be transmitted to the jurisdictional Tribunal, forthwith, to disburse the same as per the award passed by the tribunal.
21. Registry is directed to draw the award accordingly.
Sd/-
JUDGE yan