Karnataka High Court
M/S Bscpl Infrastructure (Pvt) Ltd. vs Sri Muniraju on 3 February, 2020
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE N.K.SUDHINDRARAO
M.F.A.NO.10720 OF 2013
C/W
M.F.A.NO.10721 OF 2013 (MV)
IN M.F.A.NO.10720 OF 2013:
BETWEEN:
M/S BSCPL INFRASTRUCTURE (PVT) LTD.,
REPRESENTED BY ITS MANAGER
'AMBA NILAYA', SAMPIGE ROAD
NEAR GANDHI CIRCLE
CHANNARAYAPATNA
HASSAN DISTRICT. ...APPELLANT
(BY SRI. T.N. VISWANATHA, ADVOCATE)
AND:
1. SRI. MUNIRAJU
S/O KRISHNA REDDY
AGED ABOUT 40 YEARS
2. SMT. ANITHA
W/O MUNIRAJU
AGED ABOUT 34 YEARS
BOTH ARE R/AT NO.498
YASHODAMMA LAYOUT
KUDLU VILLAGE, HUSKUR CIRCLE
ANEKAL TALUK
BANGALORE560068
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3. M/S THE NEW INDIA ASSURANCE
COMPANY LIMITED
REPRESENTED BY ITS MANAGER
REGIONAL OFFICE, NO.2-B
UNITY BUILDING ANNEX
MISSION ROAD
BANGALORE-560027 ...RESPONDENTS
(BY SRI. HARISH.N.R., ADVOCATE FOR
SRI. RANGANATHA, ADVOCATE FOR R1 & R2;
SRI. O.MAHESH, ADVOCATE FOR R3)
THE MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 1.10.2013
PASSED IN MVC NO.625/2013 ON THE FILE OF THE 11TH
ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MACT,
BANGALORE, AWARDING A COMPENSATION OF RS.4,70,000/-
WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL
THE DATE OF REALIZATION.
IN M.F.A.NO.10721 OF 2013:
BETWEEN:
M/S BSCPL INFRASTRUCTURE (PVT) LTD.,
REPRESENTED BY ITS MANAGER
'AMBA NILAYA', SAMPIGE ROAD
NEAR GANDHI CIRCLE
CHANNARAYAPATNA
HASSAN DISTRICT. ...APPELLANT
(BY SRI. T.N. VISWANATHA, ADVOCATE)
AND:
1. SRI. R. SATHISH BABU
S/O RAMAREDDY
AGED ABOUT 37 YEARS
R/AT NO.63, DODDAKANNELLI
BANGALORE EAST TALUK
BANGALORE-561037
2. M/S THE NEW INDIA ASSURANCE
COMPANY LIMITED
REPRESENTED BY ITS MANAGER
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REGIONAL OFFICE, NO.2-B
UNITY BUILDING ANNEX
MISSION ROAD
BANGALORE-560027 ...RESPONDENTS
(BY SRI. HARISH.N.R., ADVOCATE FOR
SRI. RANGANATHA, ADVOCATE FOR R1;
SRI. O.MAHESH, ADVOCATE FOR R2)
THE MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 1.10.2013
PASSED IN MVC NO.626/2013 ON THE FILE OF THE 11TH
ADDITIONAL JUDGE, SMALL CAUSES, MACT, BANGALORE,
AWARDING A COMPENSATION OF RS.1,36,390/- WITH INTEREST
@ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF
REALIZATION.
THESE MFAS COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING :-
JUDGMENT
These two appeals are preferred by the owner against Judgment and award dated 01.10.2013 passed in MVC NOs.625/2013 and 626/2013 by the 11th Addl. Judge and MACT, Court of Small Causes, Bangalore ('MACT' for short) wherein the claim petition came to be allowed in part and Insurance company was ordered to pay compensation of a sum of Rs.4,70,000/- to the parents of the deceased. In MVC No.626/2013, the 4 claimant was granted compensation of Rs.1,36,390/- and interest @ 6% p.a.
2. MVC No.625/2013 is in respect of death of a minor child, aged 14 years and in MVC No.626/2013, compensation is awarded towards the injuries suffered by the victim in a road traffic accident.
3. These appeals are preferred by the owner of the offending vehicle. The Judgment and award is challenged insofar as saddling the liability on the owner, who is the appellant in both the cases.
4. The facts that gave rise to filing of claim petitions in both the cases are as under:
The accident occurred on 18.10.2012 at about 7.30 a.m. The victim Master M.Yeshwanth @ Yeshwanth M.Reddy, a minor aged 14 years and R.Sathish Babu, aged 37 years, were stated to be proceeding from Doddakannelli to Kukke Subramanya Temple in Tata 5 Safari bearing registration No.KA-03-MC-1005, when they were near M.M.Power Unit near Udayapura village, NH-48, B.M.Road, the rear right side tyre of the car punctured, due to that, car was stopped and parked on the left side of the road and the driver, who is the claimant in MVC No.626/2013 started replacing the tyre. At that time, a crane bearing registration No.KA-13-M- 8835 came from Channarayapatna driven by its driver in a rash and negligent manner and caused the accident, as a result of which, the minor in MVC No.625/2013 sustained grievous injuries and succumbed to the same, while the claimant in MVC No.626/2013 sustained grievous bodily injuries and was shifted to Government hospital at Hassan for treatment.
5. The claimants in MVC No.625/2013 are the parents of the deceased Yashwanth and the driver R.Sathish Babu is the claimant in MVC No.626/2013. 6
6. The owner and Insurance Company resisted the claim petitions.
7. The Tribunal has recorded the oral evidence of PWs 1 and 2 and documentary evidence of Exs.P1 to P25 on behalf of claimants and oral evidence of RW-1 and documentary evidence of Exs.R1 to 3 on behalf of the Insurance Company. The Tribunal after considering several aspects and evidence, both oral and documentary awarded compensation of Rs.4,70,000/- to the claimants towards the death of a minor in MVC No.625/2013 and Rs.1,36,390/- to the claimant in MVC No.626/2013 for the injuries sustained by him.
8. Learned counsel-Sri.T.N.Vishwanath appearing for the appellant/owner would submit that despite possessing valid and proper driving licence by the crane operator/driver, the Tribunal considered it as improper licence and it came to the conclusion to award compensation to the claimants and saddled the liability 7 on the owner, which is contrary regard being had to the fact that vehicle was insured and the policy was in force at the relevant period.
9. The injuries sustained by the claimant in MVC No.626/2013 are as under:
i) Fracture of left 5th to 8th ribs;
ii) X-ray of C-spine/F Spince/L.S. Spine/Right foot showed;
iii) Lacerated wound over the occipital region right side of the scalp;
iv) Lacerated wound present over the right ear;
v) Abrasion present over the left and left abdominal wall.
As the doctor was not examined and x-ray and case sheet not being produced, the MACT awarded the compensation as under:
Rs.50,000.00 Pain and suffering Loss of income during treatment period Rs.13,500.00 Medical expenses Rs.37,890.00 8 Loss of future income Nil Loss of amenities Rs.25,000.00 Conveyance, Nourishment & diet, etc. Rs.10,000.00 Rs.1,36,390.00 In total Rupees One Lakh, Thirty six thousand, three hundred and ninety only
10. Sri.Harish.N.R, learned counsel for the injured/respondent No.1 is also present.
11. Having heard the learned counsel appearing for the parties and on perusal of the documents on record, I find that there is no defect in the quantum of compensation awarded by the Tribunal in MVC No.626/2013.
12. Insofar as compensation awarded in respect of death of a minor in MVC No.625/2013 is concerned, considering the minor as next earning member, the MACT has not reckoned the monthly income, future prospects correctly. The deceased was sharp and 9 academically was doing good and had bright future. The learned MACT though ordered to pay compensation, but erred seriously in awarding the compensation as under:
Rs.4,50,000.00 Loss of dependency Loss of love and affection Rs.10,000.00 Transportation, funeral and obsequies Rs.10,000.00 TOTAL Rs.4,70,000.00
13. As stated above, the assessment of compensation in respect of death of a minor cannot be at par with that of a non-earning member. In this regard, I am guided by the Judgment of the Hon'ble Apex Court in the case of Kishan Gopal -v- Lal [(2014)1 SCC 244] wherein the compensation awarded in respect of death of minor is Rs.5,00,000/-. In this connection, it is necessary to place on record that the MACT has awarded inadequate compensation and despite not preferring any appeal or cross-objections by the claimants, if the compensation awarded by the MACT being on the lower 10 side, the High Court has unfettered power in assessing just compensation and grant the same.
14. The next aspect to be considered in these appeals is with regard to liability. Learned counsel for the Insurance Company would submit that the offending vehicle is a heavy vehicle and it requires special category of licence and that was not possessed by the driver of the vehicle. Hence, the liability was rightly saddled on the owner. In this connection, the relevant portion of the Judgment rendered by the learned Member is as under:
"He deposed that that the driver by name Ramasish Singh, s/o Padarath Singh had no valid and effective driving licence to drive the Mobile Crane which a motor vehicle of a specified description on the date of accident on 18.10.2012. In fact, the driver was to authoritsed to drive the LMV, HTV only and had no licence to drive the mobile crane under FDL No.75535/89/PE dated 28.02.1989 valid up to 25.05.2014. As per the above driving licence particulars the driver was not possessing valid and effective driving licence to drive the mobile crane which is a hydraulic mobile crane and which is a special vehicle with specified description at the time of the accident as per Section 10(2)(J) of MV Act 1988 for 11 special type of vehicle and as such the owner of the vehicle has violated the terms and conditions of the policy by allowing the person who did not possess the valid and effective driving licence to drive the crane. Hence, owner is liable to pay compensation to the petitioner and produced copy of the policy with conditions at Ex.R2 and driving licence extract at Ex.R3."
15. Sri.T.N.Vishwanath, learned counsel for the appellant would submit that the observations of learned MACT regarding the licence is totally wrong. On the other hand, the driving licence possessed by the driver was both for Light Motor Vehicle and Heavy Traffic Vehicle, which could be seen from Ex.R3. Insofar as Judgment in Mukund Dewangan vs Oriental Ins.Co.Ltd reported in (2016) 4 SCC 298, the Hon'ble Apex Court has held that there is no requirement of a transport endorsement so long as the vehicle's unladen weight is less than 7500/- kgs. In this case, the unladen weight of the offending vehicle as per Ex.R2 does not exceed the prescribed weight under the Act.
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16. Sri.O.Mahesh, learned counsel for the Insurance Company would submit that the offending vehicle being a Crane has a specified description and requires a special type of licence.
17. Insofar as this aspect is concerned, licence in respect of two wheeler is issued on the cubic capacity and in respect of four wheeler, licence for LMV is based on its unladen weight, which is less than 7500 kgs and in case if it exceeds, it has to be treated as Heavy Transport Vehicle. Hence, the Learned Member has failed to apply the principles laid down in the Judgment in Mukund Dewangan's case (supra).
18. A bare reading of the licence Ex. P25 as such and the arguments advanced by learned counsel for the Insurance company in both the cases regarding a valid and proper licence, cannot be accepted and the licence is deemed to be a proper and valid one. The liability invariably becomes joint and several by virtue of the 13 Insurance policy. As such, the Judgment and award passed by the Tribunal in both the cases are liable to be set aside, fastening liability on the Insurance Company.
19. In the result, both the appeals are allowed in part.
Impugned Judgment and award dated 01.10.2013 passed in MVC NOs.625/2013 and 626/2013 is hereby set aside to modify the same by fastening liability on the Insurance Company and by enhancing compensation of Rs.30,000/- in MVC No. 625/2013 (MFA No. 10720/2013).
Compensation awarded in respect of MVC No.626/2013 remains unaltered.
Compensation in both the cases is ordered to be payable by the respondent-Insurance Company together with interest within four weeks from the date of receipt of this order.
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Amount in deposit be refunded to the owner on proper identification.
Sd/-
JUDGE ln