Karnataka High Court
Smt Suma vs Syed Aheer Jain on 5 July, 2017
Author: B.Manohar
Bench: B Manohar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JULY, 2017
BEFORE
THE HON'BLE MR. JUSTICE B MANOHAR
MFA No.8523/2011 (MV)
BETWEEN
1. SMT.SUMA
W/O.M MUNIRAJU
AGED ABOUT 28 YEARS
R/AT.NO.53, M S PALYA
VARADARAJANAGAR,
VIDYARANYAPURA POST,
BANGALORE-97.
2. KUM KAVYA
D/O.LATE M MUNIRAJU
AGED ABOUT 10 YEARS
MINOR, REPTD BY HER
MOTHER AND NATURAL
GUARDIAN, 1ST APPELLANT
R/P NO.53, M S PALYA,
VARADARAJANAGAR,
VIDYARANYAPURA POST,
BANGALORE-97. .. APPELLANTS
(By Sri SHRIPAD V SHASTRI, ADVOCATE)
AND
1. SYED AHEER JAIN
NO.57, 2-3 MAIN
LAKKASANDRA,
BANGALORE.
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2. THE ORIENTAL INSURANCE CO. LTD
NO.213-217, NAGA CHAMBERS,
III MAIN, 4TH CROSS, CHAMARAJPET,
BANGALORE 560018
BY ITS MANAGER. .. RESPONDENTS
(By Sri HARINI SHIVANANDA, ADVOCATE FOR R2,
R1 - SERVICE HELD SUFFICIENT V/C/O DTD:30.9.2013)
THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED
08.03.2011 PASSED IN MVC NO.9700/2008 ON THE
FILE OF MEMBER MACT-IV ADDL. JUDGE, COURT OF
SMALL CAUSES, BANGALORE CITY PARTLY
ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS MFA COMING ON FOR FURTHER HEARING
THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-
JUDGMENT
Appellants are the claimants. Being not satisfied with the quantum of compensation awarded in the judgment and award dated 8th March, 2011 passed in MVC No.9700/2008 by the Motor Accident Claims Tribunal, Bangalore (for short `Tribunal'), they have filed this appeal seeking enhancement of compensation.
2. The appellants are the wife and daughter of the deceased M Muniraju. They filed a claim petition contending that on 29.12.2007, while the deceased was 3 proceeding on his motor cycle bearing Registration No.KA-04/EU-9809 along with his friend at Peenya Industrial Area, at about 4.45 p.m. near Power Gear Factory, a Goods Canter bearing Registration No.KA- 20/736 came in a rash and negligent manner and dashed against the motor cycle. Due to that, the deceased fell down and sustained grievous injuries all over the body. Immediately after the accident, he was shifted to Premier Sanjeevini Hospital. However, during the course of treatment, he succumbed to injuries on 5.1.2008. In the claim petition, it was contended that the deceased was working as a tailor in Garment Factory and earning a sum of Rs.8,000/- per month. The family has lost the bread earner. The 1st respondent is the owner of the Canter and the 2nd respondent is the insurer of the said vehicle. Hence, both the respondents are liable to compensate the claimants to the tune of Rs.10,00,000/-.
3. In response to the notice issued by the Tribunal, though the 1st respondent was served with notice, he remained unrepresented. The 2nd respondent 4
- Insurance Company filed written statement denying the entire averments made in the claim petition and also contended that both the rider as well as the driver of Canter vehicle were not having valid and effective driving license. Further, the Canter vehicle was not having fitness certificate. There was violation of condition of permit. Hence, the Insurance Company is not liable to compensate the claimants.
4. On the basis of pleadings of the parties, the Tribunal has framed necessary issues.
5. In order to prove their case, the 1st claimant got examined herself as PW1 and one of the eye witnesses was examined as PW2 and got marked the documents as Exs.P1 to P15. On behalf of the 2nd respondent, one of the officials of the Insurance Company was examined as RW1 and the documents were marked as Exs.R1 to R5.
6. The Tribunal, after appreciating the oral and documentary evidence let in by the parties, taking into consideration the mahazar, sketch, IMV report and 5 charge sheet held that due to actionable negligence on the part of the offending Canter vehicle, the accident occurred and the deceased M Muniraju died. The claimants are none other than the wife and daughter of the deceased and they are entitled for compensation. The Tribunal taking into consideration the income of the deceased as Rs.5,000/- per month, deducting 1/3rd towards personal expenses and applying the multiplier 17 as he was aged about 28 years at the time of accident awarded a sum of Rs.6,79,932/- towards loss of dependency and a sum of Rs.40,000/- towards conventional heads. In all, a sum of Rs.7,19,932/- with interest at 6% p.a.
7. With regard to liability is concerned, the Tribunal found that as on the date of accident, the Canter vehicle was not having fitness certificate as required under Section 56 of the Motor Vehicles Act and violated the conditions of permit. Relying upon a judgment reported in 2009 (4) TAC 549 (Kerala) in the case of Thara -vs- Shyamala, the Tribunal fastened the liability on the owner of the vehicle to compensate the 6 claimants. The claimants being not satisfied with the quantum of compensation and also fastening the liability on the owner of the offending vehicle to compensate the claimants have filed this appeal.
8. Sri Shripad V Shastri, learned Advocate appearing for the appellants contended that the judgment and award passed by the Tribunal is contrary to law. Since the accident occurred in the year 2007, taking the income of the deceased as Rs.5,000/- per month is too meager. The Tribunal has not awarded any compensation towards `loss of consortium' as well as `loss of love and affection' since the daughter of the deceased is a minor. Further, fastening the liability of the owner of the offending vehicle to compensate the claimants is contrary to law. The offending vehicle was not having fitness certificate at the time of accident, which is contrary to law in view of the law laid down by the Division Bench of this Court and also Full Bench of the Kerala High Court. The non-holding of fitness certificate is not one of the defence available under 7 Section 149(2)(a)(ii) of the MV Act. Learned Advocate relied upon the following judgments:
1) AIR 2015 Kerala 131 (V M Augustine, Vattakavumkal -vs- Ayyap-pankutty alias Mani and anr.
2) Unreported judgment in MFA No.6311/2014 (DD 2.12.2014).
3) Unreported judgment in MFA No.6621/2006 c/w MFA.CROB No.304/2006.
4) Unreported judgment in MFA No.3872/2012 (DD 24.9.2013).
5) Unreported judgment in MFA No.24307/2010 and other connected matters (DD 8.1.2014)
6) Unreported judgment in MFA No.11062/2011 and connected appeal (DD 3.1.2017)
7) Unreported judgment in MFA No.9625/2008 (DD 24.8.2012).
9. On the other hand, Smt.Harini Shivananda, learned Advocate appearing for the 2nd respondent argued in support of the judgment and award and contended that Section 56 of the MV Act is one of the mandatory requirements that the vehicle must possess fitness certificate. The vehicle cannot ply on the road without the fitness certificate and it is subject to Sections 59 and 60 of the MV Act. It is contended that 8 under Section 39 of the MV Act, no person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place, unless it was registered as provided under the MV Act. Similarly, Section 56 of the MV Act contemplates that unless the vehicle carries a certificate of fitness in such form as prescribed under the Central Government that the vehicle shall not be used in the public place. In view of the MV Act, the offending Canter vehicle used in the public place met with an accident. There is violation of conditions of permit. The Tribunal taking all these aspects of the matter fastened the liability on the owner of the vehicle. There is no infirmity in the judgment and award. However, the Tribunal has awarded just and fair compensation and sought for dismissal of the appeal.
10. The dispute in this appeal is with regard to quantum of compensation and also fastening the liability on the owner of the vehicle to compensate the claimants.
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11. With regard to quantum of compensation is concerned, though the claimants claimed that the deceased was working as a tailor in Garment Factory and earning a sum of Rs.8,000/- per month, no document was produced to substantiate the same. Since the accident occurred in the year 2007, the Tribunal taking the income of the deceased as Rs.5,000/- per month as he was aged about 28 years applying the multiplier 17 awarded a sum of Rs.6,79,932/- towards `loss of dependency' and a sum of Rs.40,000/- towards conventional heads. However, the Tribunal has not awarded any compensation towards `loss of consortium' to the 1st claimant as she lost her husband at the young age of 25 years. Hence, she is entitled to a sum of Rs.1,00,000/- towards `loss of consortium' as per the law laid down by the Hon'ble Supreme Court in the case of Rajesh & others -vs- Rajbir Singh & Ors. reported in 2013 ACJ 1403. Further at the young age of seven years, the 2nd claimant has lost love and affection of her father. Hence, she is entitled to a sum of Rs.25,000/- under 10 the `loss of love and affection'. Hence, the claimants are entitled to compensation of Rs.8,44,923/-, which is rounded of to Rs.8,45,000/- as against Rs.7,19,932/- awarded by the Tribunal with interest at 6% p.a.
12. With regard to liability is concerned, though the Insurance Company has taken the contention that as on the date of accident, the offending Canter vehicle was not holding fitness certificate, the Insurance Company is not liable to compensate the claimant, the same cannot be accepted. The judgment relied upon by the Tribunal in Tara's case referred to above has been over-ruled by the Full Bench of the Kerala High Court in the case of V M Augustine, Vattakavumkal -vs- Ayyap-pankutty alias Mani and Anr. reported in AIR 2015 Kerala 131. Para-17 of the said judgment reads as under:
"17. In order to enable the insurance company to take up the defence under:
Section 149(2)(a)(i)(c) it must be shown that the use of the transport vehicle was for a purpose not allowed by the permit under which the vehicle was used. Instances may occur where transport vehicles intended or permitted for a particular purpose are used 11 for another purpose. For example, if a transport vehicle permitted only for carrying goods, carries passengers and capsizes en- route causing injuries to the passengers, certainly, the insurer can take up the defence under Section 149(2)(a)(i)(c). However, if such a vehicle is used only for the permitted purpose, and the accident occurs when the permit or fitness certificate ceased to exist, it amounts to a technical violation only, which will not entitle the insurer to disown the liability to third parties. For avoiding the liability relying on Section 149(2)(a)(i)(c), the insurer should plead and prove that the offending vehicle was used for a purpose not authorized by the permit. It is true, that the vehicles in these cases ceased to have fitness certificate as well as permit on their expiry. WE are unable to agree that the breach of condition in respect of non renewal of certificate of fitness or permit would entitle the insurer to take up the defence under Section 149(2)(a)(i)(c) of the Act. We are of the definite view that Thara v. Syamala (AIR 2009 (NOC) 2244 (Ker)) (cited supra) does not lay down the correct law."
Further the Division Bench of this Court in MFA No.6311/2014 (DD 2.12.2014). Para-2 of the said judgment reads as under:
"2. Questioning the liability to satisfy the award as well as the excessive grant of compensation, the insurer has filed this appeal. On liability, it is contended that the driver of the vehicle did not possess a Fitness Certificate. In the absence of a Fitness Certificate, the insurer cannot be held liable to satisfy the award. The Tribunal on relying on the judgment of the Division Bench of this 12 Court in the case of New India Assurance Company Limited vs. Sri N Srinivasa Murthy and others, in MFA No.6621/2006 (MV) C/w. MFA Crob. No.2304/2006 (MV), wherein it is held that a mere non-possessing of fitness certificate is not a reason to deny compensation to the claimant. Following the said judgment, it was held that the insurer is liable to satisfy the award. Under these circumstances, we do not find any merit in the contention that the absence of fitness certificate would absolve the insurer from satisfying the award. Hence, the said contention is rejected."
In MFA No.6621/2006, the Division Bench of this Court held that the expiry of the fitness certificate of the lorry cannot be a reason to deny the compensation to the claimant. Further, this Court in MFA No.11062/2011 and connected matter held that the requirement of the fitness certificate is not one of the conditions of the Insurance policy and it is not the defence available under Section 149(2)(a)(ii) of the MV Act. In view of the authoritative pronouncement of law of the Full Bench of the Kearala High Court and the Division Bench and Single Bench of this Court, the judgment and award passed by the Tribunal cannot be sustained. The Insurance Company cannot deny the liability to compensate the claimants on the ground that as on the 13 date of accident, the fitness certificate had expired. Accordingly, I pass the following:
ORDER Appeal is allowed in part. The judgment and award dated 8th March, 2011 passed in MVC No.9700/2008 by the Motor Accident Claims Tribunal, Bangalore, is modified. The claimants are entitled to compensation of Rs.8,45,000/- as against Rs.7,19,932/- with interest at 6% p.a. awarded by the Tribunal.
The judgment and award passed by the Tribunal fastening the liability on the 1st respondent - owner of the offending vehicle is set-aside and the Insurance Company shall compensate the claimants.
Sd/-
JUDGE Bkm.