Karnataka High Court
Smt.Chandrabai W/O Sidraya Pawar vs Sri.Sri. Laxman Ramappa Mugalkhod on 7 August, 2019
Author: S.N. Satyanarayana
Bench: S.N. Satyanarayana
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 7TH DAY OF AUGUST, 2019
PRESENT
THE HON'BLE MR.JUSTICE S.N. SATYANARAYANA
AND
THE HON'BLE MR.JUSTICE P.G.M. PATIL
M.F.A.NO.103557/2015 (MV)
C/W
M.F.A.NO.100831/2014 (MV)
IN M.F.A.NO.103557/2015 (MV)
BETWEEN:
1. SMT. CHANDRABAI W/O SIDRAYA PAWAR,
AGE : 55 YEARS, OCC: HOUSEHOLD WORK,
R/O HULAGABALI, TAL: ATHANI,
DIST: BELAGAVI.
2. SRI TUKARAM S/O SIDRAYA PAWAR,
AGE : 41 YEARS, OCC: AGRICULTURE,
R/O HULAGABALI, TAL: ATHANI,
DIST: BELAGAVI.
3. SAMBHAJI S/O SIDRAYA PAWAR,
AGE : 40 YEARS, OCC: AGRICULTURE,
R/O HULAGABALI, TAL: ATHANI,
DIST: BELAGAVI.
4. SUKHADEV S/O SIDRAYA PAWAR,
AGE : 39 YEARS, OCC: AGRICULTURE,
R/O HULAGABALI, TAL: ATHANI,
DIST: BELAGAVI.
5. SAHU S/O SIDRAYA PAWAR,
AGE : 37 YEARS, OCC: AGRICULTURE,
R/O HULAGABALI, TAL: ATHANI,
DIST: BELAGAVI.
... APPELLANTS
(BY SRI SANJAY S.KATAGERI, ADV.)
2
AND:
1. SRI LAXMAN RAMAPPA MUGALKHOD,
AGE : 50 YEARS, OCC: BUSINESS,
R/O SANKONATTI, TAL: ATHANI,
DIST: BELAGAVI.
2. THE DIVISIONAL MANAGER,
NATIONAL INSURANCE COMPANY LTD.,
HAVING ITS OFFICE AT RAMDEV GALLI,
BELAGAVI.
... RESPONDENTS
(BY SRI PRAKASH N.HOSAMANI, ADVOCATE FOR R.1)
(BY SRI G.N.RAICHUR, ADVOCATE FOR R.2)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, 1988 PRAYING THIS HON'BLE COURT
THAT THE JUDGMENT AND AWARD DATED 07.01.2014 IN MVC
NO.919/2012 PASSED BY THE LEARNED PRINCIPAL SENIOR
CIVIL JUDGE AND ADDL. M.A.C.T., ATHANI, IN AWARDING THE
COMPENSATION OF RS.2,97,000/- AT 6% INTEREST P.A. BE
KINDLY MODIFIED BY ENHANCING TO RS.25,00,000/- WITH
INTEREST @ THE RATE OF 12% PER ANNUM FROM THE DATE
OF PETITION, TILL THE DATE OF PAYMENT BY HOLDING
RESPONDENTS NO.1 & 2 JOINTLY AND SEVERALLY LIABLE TO
PAY THE COMPENSATION, IN THE INTEREST OF JUSTICE AND
EQUITY.
IN M.F.A.NO.100831/2014 (MV)
BETWEEN:
THE DIVISIONAL MANAGER,
THE NATIONAL INSURANCE COMPANY LIMITED,
HAVING ITS OFFICE AT RAMDEV GALLI,
BELGAUM, REPRESENTED BY ITS
DEPUTY MANAGER,
THE NATIONAL INSURANCE COMPANY LIMITED,
REGIONAL OFFICE 2ND FLOOR ARIHANTH PLAZA
KUSUGAL ROAD, KESVAPUR,
HUBLI-580023.
... APPELLANT
(BY SRI G.N.RAICHUR, ADV.)
3
AND:
1. SMT. CHANDRABAI W/O SIDRAYA PAWAR,
AGE : 54 YEARS, OCC: HOUSEHOLD,
R/O HULAGABALI, TQ: ATHANI,
DIST: BELGAUM.
2. SRI TUKARAM S/O SIDARAYA PAWAR,
AGE : 40 YEARS, OCC: AGRICULTURE,
R/O HULAGABALI, TQ: ATHANI,
DIST: BELAGAVI.
3. SAMBHAJI S/O SIDARAYA PAWAR,
AGE : 39 YEARS, OCC: AGRICULTURE,
R/O HULAGABALI, TAL: ATHANI,
DIST: BELAGAVI.
4. SUKHADEV S/O SIDARAYA PAWAR,
AGE : 38 YEARS, OCC: AGRICULTURE,
R/O HULAGABALI, TQ: ATHANI,
DIST: BELAGAVI.
5. SAHU S/O SIDRAYA PAWAR,
AGE : 36 YEARS, OCC: AGRICULTURE,
R/O HULAGABALI, TQ: ATHANI,
DIST: BELAGAVI.
6. SRI LAXMAN RAMAPPA MUGALKHOD,
AGE MAJOR, OCC: BUSINESS,
R/O SANKONATTI, TQ: ATHANI,
DIST: BELAGAVI.
... RESPONDENTS
(BY SRI SANJAY S.KATAGERI, ADV. R.1 TO R.5)
(NOTICE TO R.6 SERVED)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, 1988 PRAYING THIS HON'BLE COURT
TO SET ASIDE THE JUDGMENT AND AWARD 07.01.2014 IN MVC
NO.919/2012 PASSED BY THE COURT OF PRINCIPAL SENIOR
CIVIL JUDGE AND ADDL. M.A.C.T., ATHANI AT ATHANI.
THESE APPEALS COMING ON FOR ADMISSION, THIS
DAY, P.G.M. PATIL J., DELIVERED THE FOLLOWING:
4
JUDGMENT
The insurer and the claimants being aggrieved by the judgment and award dated 07.01.2014 passed in MVC No.919/2012 by the Principal Senior Civil Judge & Additional MACT, Athani (for short 'the Tribunal') have come up in these appeals.
2. It is the case of the claimants before the Tribunal that, on 10.04.2012, the deceased Sidraya Shahu Pawar and others were coming to Athani from Hulagabali in an auto-rickshaw bearing Reg.No.KA-23/A-3838. The driver of the said vehicle was driving the same in a moderate speed. When the said auto entered the limits of Athani town at 12.00 noon, a tractor bearing Reg.No.KA-23/TA- 9660 came in high speed and in a rash and negligent manner and dashed to the auto from the back side. Due to the said impact, Sidraya suffered grievous injuries to the vital parts of his body. He was shifted to Dr.Prani's Hospital, Miraj and from there he was shifted to the Wanless Hospital, Miraj where he breathed his last. Petitioner No.1 is the wife of the deceased and petitioner Nos.2 to 5 are his sons. The deceased was aged about 57 5 years and was an agriculturist had possessed 9 acres of irrigated land and was growing sugarcane and thereby earning Rs.5,00,000/- p.a. The deceased was also owning a cruiser vehicle bearing Reg.No.KA-23/M-8703 and by hiring the same, he was earning Rs.15,000/- p.m. On account of his untimely death, the petitioners have lost their earning member. The petitioners were depending on the income of the deceased. Therefore, they claimed compensation of Rs.25,00,000/- against the owner and insurer of the offending vehicle.
3. In response to the notice, respondent Nos.1 and 2 appeared before the Tribunal. Respondent No.1 did not file any written statement. Respondent No.2 filed written statement denying all the averments made in the petition. He has denied occurrence of the accident, the manner and involvement of tractor. He has also denied the issuance of policy in respect of the said tractor. Further, he has denied the age, occupation and income of the deceased and dependency of the petitioners. He has further contended that the owner of the tractor entrusted the said vehicle to a person who had no effective driving licence as on the 6 date of the accident, therefore, there is violation of the provisions of the Motor Vehicles Act, 1988 and rules framed thereunder as well as for breach of the policy conditions. Hence, he is not liable to pay the compensation. Respondent No.2 has also contended that the trailer bearing Nos.KA-23/TB-3318 and KA-23/T-2952 were not insured with him. On these grounds, he sought for dismissal of the claim petition.
4. On the basis of the pleadings of the parties, the Tribunal framed issues.
5. In support of their claim petition, claimant No.4 examined himself as P.W.1 and one witness was examined as P.W.2 and they have got marked 17 documents. Respondent No.2 examined its official as R.W.1 and got marked 3 documents. The Tribunal after hearing both the parties passed the impugned judgment awarding compensation of Rs.2,97,000/- with interest at 6% p.a. from the date of petition till payment. The Tribunal further directed respondent No.2 to pay the compensation and recover the same from respondent No.1 for the 7 reason that the driver of the offending vehicle was not holding a valid and effective driving licence.
6. The claimants being aggrieved by the impugned judgment have filed MFA No.103557/2015 for enhancement of compensation on the ground that the Tribunal has considered the income of the deceased at Rs.4,500/- p.m. which is meager as against his income at Rs.22,000/- to Rs.25,000/- p.m. Further, the Tribunal has not awarded any compensation towards future prospects and that the compensation awarded under other heads is also on the lower side.
7. The insurer being aggrieved by the impugned judgment has filed MFA No.100831/2014 on the ground that the Tribunal has erred in awarding compensation in spite of the fact that the insurer has proved that the driver of the offending vehicle did not possess valid and effective driving licence and that the Tribunal ought to have deducted 50% of the income of the deceased, as the wife alone is the dependent.
8. We have heard the learned counsel for the parties. 8
9. The short question that arises for our consideration in these appeals is, whether the appellant-insurer has made out a ground to set aside the liability fastened against him and whether the claimants have made out a ground for enhancement of compensation and also fastening the liability against the insurer?
10. The contention of the appellant-insurer that there is breach of policy conditions inasmuch as the driver of the offending vehicle did not possess valid and effective driving licence and thereby there is breach of the policy condition and therefore, he is not liable to pay compensation is not available to the insurer in view of the judgment of the Hon'ble Supreme Court in the case of Mukund Dewangan Vs Oriental Insurance Company Limited reported in (2017) 14 SCC 663. The Hon'ble Supreme Court at paragraph 60.2 held as follows:
"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 roadroller, "unladen weight" of which does not exceed 7500 kg and holder of a driving licence to drive class of "light motor vehicle"9
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 roadroller, 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 of 1994 and 28-3-2001 in the form."
11. Admittedly, in the present case, the driver of the offending vehicle had the valid driving licence to drive LMV (NT) as could be seen from Ex.R3. Therefore, in view of the judgment of the Hon'ble Supreme Court in the case of Mukund Dewangan (supra), the insurer cannot contend that there is breach of the policy condition. Therefore, the finding recorded by the Tribunal that the insurer is liable to pay compensation and recover from the owner of the offending vehicle has to be set aside.
12. The other contention of the appellant-insurer that the driver of the tractor was driving the tractor along with not insured trailers and therefore, owner is liable to pay 10 compensation and the insurer cannot be made liable, cannot be accepted. Admittedly, the tractor which caused the accident in the present case was insured with respondent No.2-insurer and therefore, on this ground there cannot be an order to the insurer to pay and recover the compensation from the owner of the tractor.
13. The learned counsel for the claimants submitted that the Tribunal has considered income of the deceased at Rs.4,500/- p.m. which is on the lower side and the same has to be enhanced. The claimants have produced record of rights of the lands owned by the deceased at Exs.P12 to P17. However, there is no positive evidence to prove the income of the deceased as contended by them. Under these circumstances, the Tribunal has considered the notional income of the deceased at Rs.4,500/- p.m. In view of the guidelines provided for settlement of the cases before the Lok Adalath for the year 2012, it appears, it is just and necessary to consider the income of the deceased at Rs.6,500/- p.m. for the purpose of awarding compensation. Accordingly, the income of the deceased is 11 taken at Rs.6,500/- p.m. and the annual income comes to Rs.78,000/-.
14. The learned counsel for the insurer relying upon the judgment of this Court in the case of the Divisional Manager, the Oriental Insurance Company Ltd., Vs Smt.Laxmi W/o Vinod Kulkarni and Others in MFA NO.20630/2013 c/w MFA No.21025/2013 decided on 12.06.2019 submitted that, where the wife alone is the dependent, 50% of the income of the deceased has to be deducted towards his personal and living expenses.
15. The learned counsel for the claimants relying upon the judgment of this Court in the case of Smt.Uma w/o Sadashiv Kalmad Vs Basavaraj s/o Baganvanth Hugar and Another in MFA NO.100852/2016 decided on 07.12.2016 submitted that, in such cases, 1/3rd of the income of the deceased has to be deducted towards his personal expenses.
16. We are inclined to accept the latest judgment in the case of Divisional Manager, the Oriental Insurance Company Ltd., (supra). Accordingly, 50% of the income 12 of the deceased has to be deducted towards his personal and living expenses, which comes to Rs.39,000/-, which has to be multiplied by '7' based on the age of the deceased. Thus, the claimants are entitled for compensation of Rs.2,73,000/- towards loss of dependency. The claimants are entitled for a sum of Rs.70,000/- under other conventional heads, in view of the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi and Others reported in AIR 2017 SC 5157. Further, the claimants are entitled for Rs.5,000/- towards medical expenses as awarded by the Tribunal.
17. Thus, the claimants are entitled for total compensation of Rs.3,48,000/- as against Rs.2,97,000/- awarded by the Tribunal with interest at 6% p.a. from the date of petition till realization. However, the claimants are not entitled for the interest for the delayed period of 595 days in filing the appeal, as per the order dated 29.11.2017. The points for consideration are answered accordingly. In the result, we proceed to pass the following:
13
ORDER
i) The appeal filed by the insurer in MFA No.100831/2014 is dismissed.
ii) The appeal filed by the claimants in MFA No.103557/2015 is allowed in part. The claimants are entitled for total compensation of Rs.3,48,000/- as against Rs.2,97,000/-
awarded by the Tribunal with interest at 6% p.a. from the date of petition till realization. However, the claimants are not entitled for the interest for the delayed period of 595 days in filing the appeal, as per the order dated 29.11.2017.
iii) The amount in deposit in MFA No.100831/2014 shall be transmitted to the jurisdictional Tribunal for disbursement.
iv) Deposit and disbursement of compensation shall be in terms of order of the Tribunal.
(Sd/-) JUDGE (SD/-) JUDGE MBS/-