Karnataka High Court
Yallawwa W/O Appanna Boodnur, vs Basawwa W/O Ajjappa Solabannavar, on 3 August, 2020
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 3RD DAY OF AUGUST 2020
BEFORE
THE HON'BLE MRS.JUSTICE M.G.UMA
MFA NO.22240/2011
BETWEEN
1. YALLAWWA W/O APPANNA BOODNUR,
AGED: ABOUT 52 YEARS,
OCC: HOUSEHOLD WORK,
R/O YARAGATTI,
TALUK: SAUNDATTI,
DIST: BELGAUM.
2. GANGAVVA W/O MAHADEVAPPA HAVAKADAD,
AGED: ABOUT 34 YEARS,
R/O BEDASUR, TALUK: SAUNDATTI,
DIST: BELGAUM.
3. ANNAWWA W/O MARUTI MAYANNAVAR,
AGED: ABOUT 28 YEARS, OCC:HOUSEHOLD
WORK
R/O TORANGATTI,
TALUK: RAMDURG,
DIST: BELGAUM.
4. KUMARI RUKMAVVA D/O APPANNA BOODNUR,
AGED: ABOUT 26 YEARS, OCC:HOUSEHOLD
WORK
R/O YARAGATTI,
TALUK: SAUNDATTI,
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DIST: BELGAUM.
5. SAVAKKA W/O. HONAPPA ANGADI
AGE: 22 YEARS, OCC: HOUSEHOLD WORK,
R/O. MADAMGERI, TQ: SAUNDATTI,
DIST: BELGAUM.
6. BEERAPPA S/O APPANNA BOODNUR,
AGED: ABOUT 24 YEARS, OCC:HOUSEHOLD
WORK
R/O YARAGATTI,
TALUK: SAUNDATTI,
DIST: BELGAUM.
... APPELLANTS
(BY SRI. : MALLIKARJUNSWAMY B HIREMATH, ADV.)
AND
1. BASAWWA W/O AJJAPPA SOLABANNAVAR,
AGE: MAJOR, OCC: BUSINESS,
R/O BAILWAD, TALUK: BAILHONGAL,
DIST: BELGAUM.
2. THE DIVISIONAL MANAGER,
THE ORIENTAL INSURANCE CO. LTD.,
AUTHORISED SIGNATORY,
DIVISIONAL OFFICE, MADIWALE ARCADE,
2ND FLOOR, CLUB ROAD,
BELGAUM.
... RESPONDENTS
(BY RESPONDENT NO.1 SERVICE HELD SUFFICIENT
SRI.S.S.KOLIWAD, ADV. FOR R2)
MFA FILED U/SEC.173(1) OF MV ACT, AGAINST
THE JUDGMENT AND AWARD DTD:30-09-2010
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PASSED IN MVC.NO.1657/2009 ON THE FILE OF THE
MEMBER, ADDL. MACT, SAUNDATTI, PRESIDING
OFFICER, FAST TRACK COURT, BAILHONGAL AT
SAUNDATTI, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS APPEAL COMING ON FOR FURTHER
HEARING THIS DAY, THE COURT PASSED THE
FOLLOWING:
JUDGMENT
The appellants-claimants are before this Court seeking intervention in the impugned judgment and award dated 30/9/2010 passed in MVC No.1657/2009 by the Additional Motor Accident Claims Tribunal, Saundatti and Presiding Officer, Fast Tract Court, Bailhongal sitting at Saundatti (for short referred to as "the Tribunal") awarding compensation in their favour, against respondent No.1-insured, while dismissing the claim against respondent No.2-insurer.
2. Heard the learned Advocate for the appellants Sri.Mallikarjunswamy B.Hiremath and -4- Sri. S.S.Koliwad learned Advocate for respondent No.2- Insurance Company.
3. Brief facts of the case before the tribunal is as follows:
Claimant No.1 is the wife, claimant Nos.2 to 5 are the daughters and claimant No.6 is the son of the deceased Appanna Mayappa Bundnoor of Yaragatti and they are his legal representatives. It is contented by the claimants before the Tribunal that on 9/11/2008 the deceased was travelling in the goods vehicle bearing No.KA 23/4508 for Ramdurg to Yaragatrti with one bull which was purchased by him in the Sunday Market at Ramdurg. When the goods vehicle reached near Toranagatti Magani pool on Katkol Yaragatti road, the same fell in a ditch on the right side of the road at 3.30 p.m., due to the rash and negligent driving of the driver.
As a result of the accident, the deceased sustained injuries on his head, stomach, private parts, on the thigh and other parts of the body. Immediately, he was -5- shifted to District Hospital, Belgaum where he succumbed to the injuries on 17/11/2008 at 8.00a.m.
4. It is contended by the claimants that the bull which was being transported in the offending vehicle also sustained injuries including fracture of vertebra and subsequently succumbed to the injuries. The said bull was aged three years and was valued more than Rs.7,000/-. It is stated that the deceased was hale and healthy, was aged 55 years and working as watchman in APMC Yaragatti and also working as a broker in dealing with animals. He was earning Rs.9,000/- p.m. and was maintaining his family. The accident in question occurred due to the rash and negligent driving of the goods vehicle in question which was owned by respondent No.1 and insured with respondent No.2. Therefore, respondent Nos.1 and 2 are jointly and severally liable to pay the compensation. -6-
5. Respondent No.2 contested the matter before the Tribunal by filing the objections and denying the contentions taken by the petitioners. It is stated that the liability of the Insurance Company is subject to the terms and conditions of the policy and also subject to the validity of the driving licence of the driver. It is also contended that the deceased was traveling as a gratuitous passenger with other persons and livestocks. It is contended that the driver of the offending vehicle was not holding valid and effective driving licence. It is stated that the deceased himself jumped out of the vehicle and sustained injuries and died due to improper treatment. There was no negligence on the part of the driver of the offending vehicle and therefore, prays for dismissal of the petition.
6. The claimants got examined PWs.1 and 2 and got marked Exs.P1 to 14. Respondent No.2 got examined RWs.1 and 2 and got marked Exs.R1 to 7 in support of -7- its contention. The Tribunal after taking into consideration all these materials on record, came to the conclusion that the claimants are entitled for compensation of Rs.3,38,000/- with interest @ 6%p.a. from the date of petition till realization from respondent No.1-owner. The claim of the claimants against respondent No.2 -insurer was dismissed.
7. Aggrieved by the said judgment and award passed by the Tribunal, the claimants have preferred this appeals on various grounds.
8. The learned Advocate for the appellants contended that the offending vehicle is a goods vehicle and the deceased was transporting his bull and therefore, he was traveling along with the goods in the vehicle. The driver of the offending vehicle was holding the driving licence to drive the light motor vehicle which was valid in view of the decision in Mukund Dewangan Vs. -8- Oriental Insurance Company Ltd., 1 and therefore, the Tribunal could not have dismissed the claim of the claimants against the insurer.
9. He further contended that since there was no proof of income of the deceased and since the accident had occurred during 2008, the notional income of Rs.4,500/- should have been taken into consideration while determining the loss of dependency. He also contended that the claimants were entitled for compensation under conventional head as held in National Insurance Co. Ltd., Vs. Pranaya Sethi and others2. therefore, he prays for allowing the appeal by setting aside the impugned judgment and award dismissing the claim against the insurer and also by enhancing the compensation payable to the petitioners.
10. Per contra, the learned Advocate for respondent No.2 insurer submitted that the age of the 1 (2017)14 SCC 663 2 2017 ACJ 2700 -9- deceased was mentioned by the claimants in the petition as 55 years, even though his age is mentioned as 50 years in the postmortem report. He submitted that since the deceased was traveling as a gratuitous passenger and since the driver of the offending vehicle was not holding valid and effective driving licence to drive the vehicle in question, the Tribunal was right in dismissing the petition against the insurer. There is no reason to interfere with the impugned judgment and award passed by the Tribunal and prays for dismissal of the appeal.
11. Perused the materials placed before the court, including the TCR.
12. Ex.P1 is the first information lodged by the informant immediately after the accident. As per this document, the buffalos and bulls were being transported in the offending vehicle and the owners were traveling in the goods vehicle. As per Section 2(13)
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of the Motor Vehicles Act, the definition 'goods' includes livestock. Claimant No.1-the wife of the deceased filed her affidavit in lieu of examination in chief before the Tribunal in support of her contention that the deceased was traveling along with the bull in the offending vehicle. The suggestion put to the witness during cross examination that the deceased was not traveling with the bull was denied. The claimants got examined PW2- an eye-witness who refers to a bull injured in the accident. Nothing has been elicited from him to disbelieve his version during cross examination. Considering all these materials on record, the contention taken by the claimants that the deceased was traveling in the offending vehicle as owner of the goods i.e. bull cannot be disbelieved. Moreover, the Tribunal also awarded compensation towards the cost of the bull and the same has not been challenged by respondent No.2-insurer. Hence, the same is to be accepted.
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13. It is the contention of respondent No.2- insurer that the driver was not holding valid and effective driving licence to drive the same at the time of accident. Respondent No.2 himself produced copy of the driving licence as Ex.R1 and as per this document, the driver was permitted to drive the light motor vehicle. Ex.R4 is the copy of the certificate of registration according to which the vehicle in question was a medium goods vehicle with gross vehicle weight of 6700 kgs. As per Section 2 (21) the transport vehicle or omnibus etc. the gross vehicle weight which does not exceeds 7500 kgs. is classified as light motor vehicle. Learned Advocate for the insurer fairly submitted that the vehicle in question is calcified as light motor vehicle. The Hon'ble Supreme Court in Mukund Dewangan case (supra) held in paragraphs 60.1 to 60.4 as follows:-
"60.1 'Light motor vehicle' as defined in section 2(21) of the Act would include a transport vehicle as
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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.
60.2. 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.
60.3. 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
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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.
60.4 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. This decision of the Hon'ble Supreme Court makes it clear that the transport vehicle defined under
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Section 10(2)(e) of the M.V. Act, if it is driven by a licence holder holding licence to drive the light motor vehicle, no separate endorsement needs to be obtained, when the vehicle falls in any of the particular classes of Section 10(2) and it does not exclude transport vehicle from the preview of Section 10(2)(d) and Section (21) of the Act i.e. the light motor vehicle. It is also made clear that 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.
15. In view of this settled position of law, I do not find any reason to hold that the deceased was traveling as a gratuitous passenger or to conclude that the driver in question was not holding valid and effective driving licence to drive the offending vehicle. When such contention taken by respondent No.2-insurer cannot be accepted. The Insurance Company will be liable to pay the compensation to the petitioners.
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16. The next contention taken by the learned Advocate for the appellants is with regard to the sufficiency of compensation determined by the Tribunal. Admittedly, the accident had occurred during 2008 and the notional income during the said year for settlement of the cases before the Lok Adalath would be at Rs.4,250/-.
17. As per the claim petition, the deceased was aged 55 years and in the absence of any proof, the same can be taken into consideration even though the postmortem report refers to the age of the deceased as 50 years. Therefore, the appropriate multiplier would be '11' as fixed in Sarala Verma Vs. Delhi Transport Corporation3.
18. According to the claimants, claimant No.1 is the wife and claimant 2 to 5 are the daughters and 3 2009 ACJ 1298
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claimant No.6 is the son. All the children have already attained majority. Therefore, only claimant No.1 can be considered as dependent. As held in Sarrala Verma case (supra) and reiterated in Reshma Kumari and others Vs. Madan Mohan and another4, since the deceased was married the deductions towards personal and living expenses should be taken at 1/3rd of his income.
19. In view of the above, the loss of dependency can be determined at Rs.3,73,956.00 {(4250- 1/3)X11X12}.
20. The contention of the appellants that they are entitled for compensation under conventional heads i.e. loss of consortium, funeral expenses, loss of estate at Rs.70,000/- is also reasonable as held in Pranay Sethi case (supra). The compensation determined by the Tribunal on other heads i.e. loss of love and 4 2013 ACJ 1253
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affection, medical expenses and price of the bull is not disputed. Therefore, the appellants are entitled for the same.
21. Hence, the claimants are entitled for the following amount as compensation:-
Loss of dependency 3,73,956.00 Loss of love and affection 10,000.00 Towards medical expense 3,000.00 Cost of the bull 7,000.00 Loss of consortium 40,000.00 Loss of estate 15,000.00 Funeral expenses 15,000.00 Total 4,63,956.00
22. In view of the dissuasions held above, I am of the opinion that tribunal has committed an error in holding that respondent No.2-insurer is not liable to pay compensation on the ground that the deceased was a gratuitous passenger and that the driver of the
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offending vehicle was not holding valid and effective driving licence and thereby there is violation of terms and condition of the policy. Further, the Tribunal has also erred in determining the just and reasonable compensation. The Tribunal awarded compensation of Rs.3,38,000.00 whereas the claimants are entitled for compensation of Rs.4,63,956.00. Therefore, the claimants are entitled for additional compensation of Rs.1,25,956.00.
23. In view of the above, I proceed to pass the following:
ORDER Appeal is allowed in part. Claimants are entitled for additional compensation of Rs.1,25,956.00 with interest at 6% p.a. from the date of petition till realization.
Respondent Nos.1 and 2 are jointly and severally liable to pay the compensation. Respondent No.2 insurer is directed to deposit the compensation amount within 60 days from the date of this order.
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Claimant No.1 being the wife of the deceased is entitled for 50% of the total compensation amount and claimants Nos.2 to 6 are entitled for equal amount of compensation in the remaining 50%.
Sd/-
JUDGE Vmb