Karnataka High Court
Mr Harsha M vs Smt Gangamma on 27 September, 2022
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
MFA No.3136/2017 (MV)
C/W
MFA CROB No.108/2017 (MV)
IN MFA No.3136/2017:
BETWEEN:
MR. HARSHA .M
SON OF PARASWANATHAIAH
AGED ABOUT 21 YEARS
NO.81, 4TH CROSS, BASAVESHWARA LAYOUT
HALAGE VADERAHALLI, BANGALORE
(R/C OWNER OF MOTOR CYCLE BEARING
REG.NO.KA 41-EB-3029)
... APPELLANT
(BY SMT. SUNITHA H. SINGH, ADVOCATE)
AND:
1. SMT. GANGAMMA
AGED ABOUT 35 YEARS
WIFE OF NAGAPPA @ NAGARAJ
2. HUSENAMMA
AGED ABOUT 19 YEARS
DAUGHTER OF NAGAPPA @ NAGARAJ
3. SHASHIDHAR
AGED ABOUT 16 YEARS
SON OF NAGAPPA @ NAGARAJ
4. SUJATHA
AGED ABOUT 12 YEARS
DAUGHTER OF NAGAPPA @ NAGARAJ
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5. PAVITHRA
AGED ABOUT 12 YEARS
DAUGHTER OF NAGAPPA @ NAGARAJ
ALL ARE RESIDING AT DEVI NAGAR
HALE NAGALAPURA, SIRGUPPA TALUK
BELLARY DISTRICT-583 121
RESPONDENT NO.3 TO 5 BEING MINOR
REPRESENTED BY THEIR MOTHER
AND NATURAL GUARDIAN SMT. GANGAMMA
WIFE OF NAGAPPA @ NAGARAJ,
THE RESPONDENT NO.1
6. UNITED INDIA INSURANCE CO. LTD.
NO.1872, 1ST FLOOR, 20TH MAIN
MARENAHALLI MAIN ROAD
VIJAYANAGAR, BANGALORE-560 040
REPRESENTED BY ITS ASSISTANT MANAGER
MR. K.S. RAVINDRA, (INSURER OF MOTOR CYCLE
REG NO. KA 41-EB-3029)
(POLICY NO.0906053114016
0071946 VALID TILL 28.05.2015)
... RESPONDENTS
(BY SRI. R.L. UDAYA KUMAR, ADVOCATE FOR R1 TO R5,
SRI. MOHAN KUMAR. T, ADVOCATE FOR R6)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:15.03.2017 PASSED IN MVC NO.412/2015 ON THE
FILE OF THE MEMBER, MACT, 16TH ADDITIONAL JUDGE,
COURT OF SMALL CAUSES, BENGALURU, AWARDING
COMPENSATION OF RS.11,07,000/- WITH INTEREST AT 9%
P.A. FROM THE DATE OF PETITION TILL THE DATE OF
PAYMENT.
*********
IN MFA CROB No.108/2017:
BETWEEN:
1. SMT. GANGAMMA
W/O LATE NAGAPPA @ NAGARAJ
AGED ABOUT 35 YEARS
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2. KUMARI. HUSENAMMA
D/O LATE. NAGAPPA @ NAGARAJ
AGED ABOUT 17 YEARS
3. CHI. SHASHIDAR
S/O LATE NAGAPPA @ NAGARAJ
AGED ABOUT 16 YEARS
4. KUMARI. SUJATHA
D/O LATE NAGAPPA @ NAGARAJ
AGED ABOUT 12 YEARS
5. KUMARI. PAVITHRA
D/O LATE NAGAPPA @ NAGARAJ
AGED ABOUT 12 YEARS
CROSS OBJECTORS 2 TO 5
ARE MINORS IS REPTED. BY THEIR MOTHER
SMT. GANGAMMA
ALL ARE RESIDING AT:
DEVI NAGAR, HALE NAGALAPURA
SIRUGUPPA TALUK
BELLARY DISTRICT-583 121 ... CROSS OBJECTORS
(BY SRI. UDAYA KUMAR R.L., ADVOCATE)
AND:
1. SRI. HARSHA .M
S/O PARSHWANTHAIAH
AGED ABOUT 21 YEARS
NO.81, 4TH CROSS
BASAVESWARA LAYOUT, AUDUGODI
BENGALURU-560 098
2. THE BRANCH MANAGER
UNITED INDIA INSURANCE CO. LTD.
NO.1872, 1ST FLOOR, 20TH MAIN
MARENAHALLI MAIN ROAD
BENGALURU-560 040 ... RESPONDENTS
(BY SMT. SUNITHA H. SINGH, ADVOCATE FOR R1;
SRI. MOHAN KUMAR .T, ADVOCATE FOR R2)
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THIS MFA CROB IN MFA NO.3136/2017 IS FILED
U/O.41 RULE 22 OF CPC, AGAINST THE JUDGMENT
DATED:15.03.2017 PASSED IN MVC NO.412/2015 ON THE
FILE OF THE XVI ADDITIONAL JUDGE COURT OF SMALL
CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS MFA AND MFA-CROB ARE COMING ON FOR
HEARDING AND ADMISSION RESPECTIVELY THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appeal in MFA No.3136/2017 is filed by respondent No.1/Owner-Sri. Harsha M., of the offending vehicle under Section 173(1) of the Motor Vehicles Act, 1988 ( for short, 'MV Act') against the judgment and award dated 15.03.2017 passed by the XVI Additional Judge, Court of Small Causes and MACT, Bengaluru City (SCCH-14) (for short, 'Tribunal') in MVC No.412/2015, challenging the liability fastened on him, while MFA CROB NO.108/2017 is filed by the claimants under order 41 Rule 22 of CPC read with Section 1739(1) of MV Act, seeking setting aside the impugned judgment and award and to direct the 2nd respondent/United India Insurance Company Ltd., to indemnify the award amount.
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2. For the sake of convenience, the parties herein are referred as per the ranks occupied by them before the Tribunal.
3. The brief factual matrix leading to the case are that, on 28.07.2014 at 8.30 a.m., the deceased Nagappa @ Nagaraj was a pedestrian and when he reached in front of Brand Factory near Bilekahalli, while crossing Bannerghatta Main Road in order to reach other side of road, at that time, the rider of motor cycle bearing Registration No. KA.41.EB.3029 came in rash and negligent manner and hit him. As a result, the deceased Nagappa suffered fatal injuries and immediately he was shifted to Sagar Hospital and after first-aid, he was shifted to NIMHANS and later he was shifted to RVM Hospital for further treatment. However, without responding to the treatment, on 13.08.2014 at 7.45 p.m., he succumbed because of injuries.
4. The petitioners/claimants being the widow and four minor children of the deceased, filed claim 6 petition under Section 166 of the M.V. Act claiming compensation of Rs.15.00 Lakhs from the respondents. 5. Before the Tribunal, Respondent Nos. 1 & 2 contested the matter by filing objections statement and denying actionable negligence on the part of the rider of two wheeler asserting that the deceased himself is the cause for occurrence of the accident in question. Further, Respondent No.2/Insurance Company has raised a contention that the liability is subject to terms and conditions of the policy and further asserted that the rider of the motor cycle did not possess the valid and effective Driving Licence as on the date of accident. Hence, the respondent No.2/Insurance Company has disputed its liability.
6. The Tribunal after assessing the oral and documentary evidence, has come to the conclusion that the accident has occurred because of actionable negligence on the part of the rider of the motor cycle and awarded compensation of Rs.11,07,000/- with interest at 9% per annum from the date of petition till 7 the date of payment, by fastening liability on Respondent No.1/Owner of the offending vehicle.
7. Being aggrieved by the impugned judgment and award, respondent No.1/Owner has filed MFA No.3136/2017 challenging the liability fastened by the Tribunal on him, while the claimants/petitioners have filed MFA CROB No.108/2017 seeking modification of the judgment and award passed by the Tribunal and to direct Respondent No.2/Insurance Company to indemnify the award amount.
8. Heard the arguments advanced by the learned counsels appearing on behalf of appellant/ Respondent/Owner and the Cross-objectors/ petitioners/ claimants, as well as counsel for Insurance Company. I have also perused the records.
9. Smt. Sunitha H. Singh, learned counsel for the appellant/Owner would contend that, admittedly the rider was possessing Learner's Licence (LLR) as on the date of accident, which is evident from the records and she further argued that the copy of LLR is available 8 in the records of the trial Court, but by inadvertence, it is not marked. The LLR copy is produced along with Ex.R2 as Annexure-1, which is available at Page No.115. She would further contend that the deceased has also contributed to the accident in question, as he attempted to cross the main road negligently and hence, some contributory negligence may be attributed to him. She further asserted that, in view of the rider holding LLR, the liability need to be fastened on the Insurance Company and hence, she would seek for allowing the appeal filed by appellant/Owner.
10. Per contra, Sri. Mohan Kumar T., learned counsel for the respondent/United India Insurance Company Limited would contend that, the LLR does not authorize the rider to ride the vehicle without an instructor accompanying him and hence, he would contend that there is breach of policy condition and as such, the Tribunal is justified in fastening the liability on appellant/owner. Alternatively, he would contend the deceased is also negligent while crossing the road 9 and hence, there is some negligence on the part of the deceased and hence, some amount of contributory negligence may be attributed to of the deceased. He further contended that, the rate of interest awarded by the Tribunal is on higher side and seeks for reduction of the same. Hence, he prays for dismissal of the appeal filed by claimants.
11. Per contra, Sri. Udaya Kumar R.L., learned counsel for Cross-objectors/claimants would contend that the Tribunal has erred in fastening liability on the owner of the offending vehicle, though there was LLR available, as rightly argued by the learned counsel for appellant/Owner. He would further contend that the Tribunal has erred in taking the income on lower side and as such, he would seek for enhancement.
12. Having heard the arguments and perusing the records, there is no serious dispute of the fact that, rider of two wheeler has knocked the pedestrian, who ultimately succumbed because of injuries 13 days after the accident. During this period, he was admittedly in 10 the hospital and he suffered head injury. The main contention of the Respondent No.2/Insurance Company is that, the deceased did not possess the Driving Licence. However, from Ex.R2 it is evident that the vehicle was registered in the name of appellant/Owner. Further, Annexure No.1 to Ex.R2, which is available at Page No.115 of the trial Court records, clearly discloses that the rider of the offending two wheeler was possessing LLR from 15.04.2014 to 14.10.2014. The accident has occurred on 28.07.2014 and as such, admittedly as on that date, the rider of the offending vehicle was in possessing LLR to ride two wheeler with Gear.
13. Learned counsel for the respondent No.2/Insurance Company has placed reliance on the decision reported in AIR 1996 SC 1150 (New India Assurance Co. Ltd. Vs. Mandar Madhav Tambe and Others) and argued that when the vehicle driven by a person holding Learner's Licence, the Insurance Company is not liable for paying compensation. By 11 relying on this decision, the learned counsel for Insurance Company would seek for exoneration of the Insurance Company from liability. However, this issue has been dealt with by the Full Bench of Apex Court in the decision reported in (2004) 3 SCC 297 (National Insurance Company Limited Vs. Swaran Singh) and later on in the decision reported in (2004) 13 SCC 685 (Gordhanbhai Hathibhai Patel (Dead) Through Lrs. Vs. Ismailbhai Jaji Ibrahimbhai Malek and others). The Hon'ble Supreme Court had an occasion to reconsider the law laid down in Mandar Madhav Tambe's case (cited supra) and the Hon'ble Supreme Court has held that the law laid down in Mandar Madhav Tambe's case is applicable only to the peculiar facts of the said case and it is not the law binding precedent. Further the Hon'ble Supreme Court has specifically held that, the Learner's Licence held by the rider of the two wheeler is deemed to have holding a valid Driving Licence and the insurer cannot avoid statutory liability under Section 147 of the MV 12 Act. Admittedly, in the instant case, the claimant is the third party and again this issue has been considered by this Court in the decision reported in AIR Online 2019 Kar 1560 (Senior Division Manager, the National Insurance Co. Ltd, Belgaum Vs. Jyotiba Appaji Shigate), wherein this Court has observed as under: -
"Motor Vehicles Act (59 of 1988), S. 166, S.147 - Compensation - Liability of insurer- Challenge as to - Driver not holding valid license
- Plea of insurer that driver holding learner's licence, which required to take instructor along with her - Learner's licence also valid licence, rider or learner need not accompany any instructor for motorcycle, as required in case of four wheeler motor vehicle, which require instructor - Liability of insurer, proper"
14. In view of the above decision of this Court, it is settled that the Learner's Licence is also a valid licence, as it relates to two wheeler and no instructor need to accompany the rider of the motor cycle. Under these circumstances, the respondent No.2/Insurance 13 Company cannot be exonerated from its liability on the ground of breach of policy condition.
15. The other grounds raised by the Insurance Company are regarding false implication. The attention of the Court was drawn to Ex.R.14 (Motor Claim Form) wherein it is stated that the accident in question has occurred on 04.08.2014. However, in the entire objections statement, no allegations have been made that the vehicle was planted or no accident has taken place on 28.07.2014 as claimed by the cross- objectors/claimants. Further, RW.4-K.S. Ravindra is an Officer of the Insurance Company and in his entire evidence, he has not disputed the accident which has taken place on 28.07.2014 and in his evidence by way of affidavit, he has simply asserted that in respect of the accident dated 28.07.2014, there was no OD claim and OD claim was only in respect of the accident dated 04.08.2014. However, it is admitted by the Respondent No.2/Insurance Company that the OD claim in respect of the accident dated 04.08.2014 is 14 satisfied and not the OD Claim in respect of accident that occurred on 28.07.2014. When the Respondent No.2/Insurance Company has not raised any such objections by way of pleading, now it is not open for the Respondent No.2/Insurance Company to agitate this aspect. Further, Ex.R14 does not specify that the OD claim is pertaining to this accident and the evidence of RW.4 is also silent in this regard. Under such circumstances, the said arguments advanced by the learned counsel for respondent No.2/Insurance Company cannot be accepted.
16. The learned counsel for the appellant/Owner as well as the Respondent No.2/Insurance Company have raised other issues regarding contributory negligence on the part of the deceased, as at the time of accident, the deceased, as under state of intoxication. The records does show that the deceased was under intoxicated state, as some traces of alcohol were noticed. But, there is no evidence to show to as to what was the percentage of alcohol in his body, as 15 blood sample was not taken and tested in this regard. But, it is the fact that, there were some traces of alcohol smell, which is evident from the medical records.
17. From Ex.P4 (Sketch), it is evident that motor cycle was moving from South towards North. It is a one-way road having a divider. The deceased crossed the divider and then crossed the other side of the road and when he was at a distance of around 25 feet to reach other side and he has crossed 75% of the road, the two wheeler hit him, which has resulted in the accident. At the out-set admittedly, it is the main road having lot of traffic and hence, it was also the duty of the deceased to cross the road cautiously after seeing the on-coming vehicles. Further, there is no evidence that there was any zebra marking available for crossing the road. Under these circumstances, the deceased has also contributed to the accident in question, to some extent.
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18. Learned counsel for the respondent No.2/Insurance Company would submit that the contributory negligence on the part of the deceased can be attributed to the extent of 30%, while the learned counsel for the cross-objectors/claimants would submit that even if the contributory negligence is taken note of, it can be hardly to the extent of 20%.
19. Considering this rival contentions and after appreciating Ex.P4-Sketch, in my considered opinion, the deceased had contributed negligence to the cause of accident to the extent of 20%, as he would also have avoided the accident by taking proper precautions, while crossing the road. But, at the same time, it does not absolve liability of the rider and insurer, as the rider was also equally responsible and he has contributed for cause of accident, to the extent of 80%.
20. The Tribunal has taken the income of the deceased at Rs.7,000/- p.m. There is no serious dispute of the fact that the deceased was aged about 17 41 years, which is based on records. When the deceased was aged 41 years, admittedly multiplier '14' is applicable. Admittedly, the accident has occurred in the year 2014. This court is consistently taking the income of the deceased at Rs.8,500/- in respect of the accidents occurred in the year 2014. As such, the Tribunal has erred in taking the income on lower side at Rs.7,000/- p.m. Since the deceased was self- employed, aged about 41 years, 25% is to be added towards future prospects as per the decision in National Insurance Company Limited Vs. Pranay Sethi and Others [(2017) 16 SCC 680], and then the loss of dependency would work-out to Rs.10,625/- p.m. (8500x25%=2,125+8500=10,625/-). Since there are five dependents, 1/4th (Rs.2,656/-) of the income of Rs.10,625/- is required to be deducted towards personal expenses as per the decision in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another [AIR 2009 SC 3104]. Hence, the claimants would be entitled for 18 compensation under the head of Loss of Dependency at Rs.13,38,750/- (Rs.10,625x12x14x3/4). As such, the claimants would be entitled for Rs.13,38,750/- under the head of Loss of Dependency.
21. The claimants are the widow and minor children of the deceased, as such, each of them are entitled for Rs.40,000/- each under the head of Loss of Consortium as per the decision of Satinder Kaur @ Satwinder Kaur & Ors. v. United India Insurance Co. Ltd. reported in AIR 2020 SC 3076 and in Magma General Insurance Company Limited vs. Nanu Ram Alias Chuhru Ram and others reported in (2018) 18 SCC 130. Further, in view of the decision of the Hon'ble Supreme Court, 10% is required to be enhanced every year as per the decision rendered in Rasmita Biswal and Others Vs. N.I.C. Ltd and Another [AIR 2022 SC 83]. Hence, each of claimants are entitled to receive Rs.44,000/- under the head of Loss of Consortium, and as such, the claimants are entitled for Rs.2,20,000/- under this head. As 19 per the said decision, the claimants are also entitled for Rs.16,500/- under the head of Loss of Estate and Rs.15,000/- under the head of Funeral Expenses.
22. The Tribunal has also awarded a sum of Rs.20,000/- under the head of medical expenses. Admittedly the deceased was admitted in the hospital for nearly 16 days. Hence, the amount awarded by the Tribunal under this head is just and proper and does not call for any interference.
23. As discussed above, the deceased has also contributed 20% to the accident and as such, 20% (Rs.3,22,050/-) is required to be deducted from the total compensation of Rs.16,10,250/-, which comes to Rs.12,88,200/- (Rs.16,10,250 -Rs.3,22,050)
24. As discussed above, in view of the law laid by the Hon'ble Apex Court and this Court in the decisions cited supra that, the LLR is also a valid Driving Licence, the liability is required to be fixed on the Respondent No.2/Insurance Company to pay compensation to the cross-objectors/claimants. 20 However, the Tribunal has awarded interest at the rate of 9% per annum, which is on higher side, as contended by the learned counsel for Respondent No.2/Insurance Company. This Court is consistently awarding interest at 6% per annum, considering the prevailing rate of interest to respect of Fixed Deposits. Hence, the rate of interest is required to be reduced to 6% per annum.
25. In the facts and circumstances, the cross- objectors/claimants are entitled for total compensation of Rs.16,10,250/- under the following heads:
Sl. Particulars Amount (RS.)
No.
1 Loss of dependency 13,38,750/-
2 Loss of consortium 2,20,000/-
3 Funeral expenses 15,000/-
4 Loss of estate 16,500/-
5 Medical Expenses 20,000/-
Total 16,10,250/-
Deduction of 20% 3,22,050/-
Contributory Negligence
Total entitlement 12,88,200/-
26. In the facts and circumstances, the appeal filed by appellant/Owner as well as MFA CROB filed by 21 the Cross-objectors/claimants are need to be allowed- in-part. Accordingly, I proceed to pass the following:-
ORDER I. MFA No.3136/2017 is allowed in part. The judgment and award dated 15.03.2017 passed by the XVI Additional Judge, Court of Small Causes, Bengaluru and Member, MACT, in MVC No.412/2015 is modified. The liability is fastened on Respondent No.2/Insurance Company. The rate of interest is reduced from 9% per annum to 6% per annum.
II(i). The MFA CROB No.108/2017 is allowed in part. The impugned judgment and award stands modified. The cross-
objectors/claimants are held entitled for total compensation of Rs.12,88,200/- as against Rs.11,07,000/- awarded by the Tribunal and the said amount shall carry interest at 6% per annum from the date of petition till the date of realization.
ii) Respondent No.2/insurance Company is directed to deposit the entire compensation with accrued interest thereon, within a period of six weeks from the date of receipt of this judgment.
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iii) Since, the Respondent No.2/Insurance
Company is liable to pay 80% of
compensation amount, the excess amount, if any deposited by it, shall be refunded to the Respondent No.2/Insurance Company.
iv) The deposit, apportionment and disbursement of compensation in respect of the cross-
objectors shall be as per the terms of the order of the Tribunal.
It is also brought to the notice of the Court that 50% of compensation amount awarded by the Tribunal is deposited by the owner and 50% of the deposited amount has already been withdrawn by the cross-objectors/Claimants. In that event, the appellant/owner is entitled to receive the said amount from Respondent No.2/Insurer, when the Insurer deposits the compensation amount before the Tribunal.
Sd/-
JUDGE KGR* CT:NR