Karnataka High Court
National Insurance Co Ltd vs Smt G C Ramadevi on 20 August, 2013
Bench: Mohan.M.Shantanagoudar, B.Sreenivase Gowda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 20th DAY OF AUGUST 2013
PRESENT
THE HON'BLE MR.JUSTICE MOHAN SHANTANAGOUDAR
AND
THE HON'BLE MR.JUSTICE B.SREENIVASEGOWDA
M.F.A.NO.14889/2007 C/W M.F.A.NO.12221/2007(MV)
BETWEEN:
National Insurance Co., Ltd.,
Divisional office No.2,
Sathi Complex, Lalbagh (Mission)
Road, Bangalore-560 027.
Now represented by its
Regional Manager,
National Insurance Co., Ltd.,
Regional office, Subharam complex,
144, M.G.Road, Bangalore-560 001.
...APPELLANT
In M.F.A.No.14889/2007
...RESPONDENT No.1
In M.F.A.No.12221/2007
(By Sri.A.N.Krishna Swamy, Adv.)
AND:
1. Smt.G.C.Ramadevi
w/o A.C.Ganesh,
Now aged about 41 years
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2. G.Swetha d/o late A.C.Ganesh,
Now aged about 21 years,
3. G.Murali Krishna,
s/o late A.C.Ganesh,
Now aged about 19 years,
4. G.Munna Prashanth,
s/o late A.C.Ganesh,
Now aged about 17 years,
Since minor represented by his natural
Guardian/mother-1st respondent herein.
All are r/at 99/3, Hosur main road,
Audugodi, Bangalore-560 030.
...RESPONDENTS 1 to 4
In M.F.A.No.14889/2007
...APPELLANTS
In M.F.A.No.12221/2007
5. Thirumalesh K.K.
s/o Krishnamurthy K.T.
Major,
R/at No.27, Devarachikkanahalli
Main road, Opp. SLV Kalyan Mantap,
Bilekallahalli, Bangalore-560 076.
...RESPONDENT No.5
In M.F.A.No.14889/2007
...RESPONDENT No.2
In M.F.A.No.12221/2007
(By Sri.H.K.Basavaraj, Adv. for R1-4,
Sri.H.Mujtaba, Adv. for Sri.M.A.Subramani, Adv. for
R5, R4 is minor rep. by R1)
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M.F.A No.14889/07 is filed under Section 173(1)
of M.V.Act praying to set aside the judgment and award
dated 11.04.2007 passed in MVC No.3511/2006 on the
file of the X Addl.Judge, Court of Small Causes,
Member, MACT, Metropolitan Area, Bangalore(SCCH-
16) & etc.,
M.F.A.No.12221/07 is filed under Section 173(1)
of M.V.Act against the judgment and award dated
11.04.2007 passed in MVC No.3511/2006 on the file of
the X Addl.Judge, Court of Small Causes, Member,
MACT, Metropolitan Area, Bangalore(SCCH-16), partly
allowing the claim petition for compensation and
seeking enhancement of compensation.
These M.F.As. coming on for hearing this day,
MOHAN SHANTANAGOUDAR J, delivered the following:
JUDGMENT
The judgment and award passed in M.V.C.No.3511/06 passed by the MACT, Bangalore, dated 11.04.2007 is the subject matter of both these appeals.
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2. Mr.Ganesh, husband of the 1st claimant and father of claimant Nos. 2 to 4 had lost his life in the accident that occurred on 22.04.2006. The tribunal has awarded compensation of Rs.6,10,112/- with 6% interest thereon.
3. M.F.A.No.14889/07 is filed by the Insurance company on the ground that the driver of the offending vehicle had no driving licence on the date of the accident in question and therefore, the Insurance company is not liable to pay compensation.
M.F.A.No.12221/07 is filed by the claimants praying for enhancement of compensation.
4. Sri.A.N.Krishna Swamy, learned counsel for the Insurance company, relying on the judgment of this Court in the case of Oriental Insurance Co., Ltd., vs. K.C.Subramanyam and another reported in AIR 2012(4) KAR 135 and the judgment of the Apex Court in the -5- case of National Insurance Co., Ltd., vs. Swaran Singh reported in 2004 ACJ Page 1, submits that it is a case of existence of no valid licence on the date of the accident and therefore, the Insurance company cannot be held liable to pay compensation. He further draws the attention of the Court that the accident was taken place on 22.04.2006 and the driver of the offending vehicle obtained the licence from 05.09.2006 which remained valid up to 12.07.2013. Thus, according to him, since the valid driving licence was not possessed by the driver of the vehicle in question, the court below erroneously fastened liability on the Insurance company.
5. Sri.H.K.Basavaraj, learned counsel for the claimants, relying upon the judgment of the Apex Court in the case of S.IYYAPAN vs. M/s.UNITED INDIA INSURANCE COMPANY LTD. AND ANOTHER (CIVIL -6- APPEAL NO.4834/2013), contends that a direction may have to be issued to the Insurance company to pay the amount of compensation and thereafter, it may recover from the owner of the vehicle as required under law. He further submits that the compensation awarded by the tribunal is on the lower side, in as much as the tribunal has taken only the basic salary of the deceased as a basis for quantifying the compensation.
6. At the first instance, we would prefer to take the appeal filed by the claimants for consideration. The deceased was aged about 42 years at the time of accident. He was a mechanic working in BMTC. The basic salary of the deceased was Rs.4,870/- p.m. during the relevant period. The tribunal has taken only the basic salary as the basis for assessing the compensation on the ground that the author of the pay slip was not examined. Such a reasoning adopted by -7- the tribunal cannot be accepted. Undisputedly, the deceased was an employee of the BMTC. He was working as a mechanic. Thus, the salary certificate issued by the BMTC at Ex.P7 could not have been disbelieved by the tribunal, particularly, when there is nothing on record to dispute the veracity of salary certificate. Ex.P7-salary certificate discloses that the claimant had the basic salary of Rs.4,870/- p.m. He was getting Rs.3,458/- as D.A. , Rs.633/- as HRA and Rs.150/- as CCA. Thus, in all the claimant was drawing gross salary of Rs.9,111/-. After deducting the tax, the deceased was getting approximately, Rs.9,000/- net salary per month. In addition to the same, while quantifying the compensation, future prospects of the deceased also needs to be kept in mind. We propose to award 30% of the net salary of the deceased under the head 'Future prospects'. So, it comes to Rs.11,700/-.[9000+2,700 (30% of 9,000)] -8-
7. Having regard to the fact that the deceased has to maintain four dependants, we may presume that the claimant would have spent 1/4th of the amount towards his personal expenses. Thus, the total loss of income of the family per month would be Rs.8,775/-. Since the deceased was aged about 42 years at the time of accident, the proper multiplier to be adopted is 14. Based on the aforementioned facts and figures, the claimant is entitled to Rs.14,74,200/-(Rs.8775x12x14) under the head 'loss of dependency'. In addition to the same, claimant would be entitled to Rs.50,000/- as awarded by the tribunal under the four conventional heads. Thus, in all the claimant is entitled to Rs.15,24,200/- with interest at 6% p.a. thereon and rest of the order relating to deposit and apportionment remains unaltered.
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8. Coming to the question of liability we may note that driver and owner of the vehicle have not filed appeal questioning the finding on negligence and liability. However, we find sufficient force in the argument of Sri.A.N.Krishnaswamy, learned counsel for the Insurance company. In the matter on hand, the accident took place on 22.04.2006. The driver of the offending vehicle was not having valid licence from 13.07.2003 to 05.09.2006. He had driving licence up to 13.07.2003. However, the driver of the vehicle got his licence renewed only from 05.09.2006, which remains valid up to 12.07.2013. Thus, it is clear that during the interregnum period of three years, the driver of the vehicle did not have valid licene. During the period of such three years only, the accident occurred, on which date, the driver was not having valid driving licence. Though there is nothing on record to show that the driver was not disqualified to hold driving
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licence during the relevant period, the fact remains that he did not have valid driving licence.
9. Thus, in our considered opinion, the driver and owner of the offending vehicle are liable to pay compensation. As has been observed by the Apex Court in the case of National Insurance Co., Ltd., vs. Swaran Singh (2004 ACJ Page 1), mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the
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relevant time. In para-100 of the very same judgment, the Apex Court has observed thus:-
100. Although, as noticed hereinbefore, there are certain special leave petitions wherein the persons having (Sic.driving) the vehicles at the time when the accidents took place did not hold any licence at all, in the facts and circumstances of the case, we do not intend to set aside the said awards.
Such awards may also be satisfied by the petitioners herein subject to their right to recover the same from the owners of the vehicles in the manner laid down therein. But this order may not be considered as a precedent.
10. From the above judgment, it is clear that the Apex Court has concluded the said matter that the awards also may be satisfied by the Insurance company subject to their right to recover from the owner of the vehicle in the manner laid down therein.
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However, in the judgment, the Apex Court has added that the order passed may not be considered as a precedent.
11. The Apex Court in the recent case of S.IYYAPAN vs. M/S.UNITED INDIA INSURANCE COMPANY LTD. AND ANOTHER (CIVIL APPEAL NO.4834/2013), has once again reiterated as under:-
18. Reading the provisions of Sections 146 and 147 of the Motor Vehicles Act, it is evidently clear that in certain circumstances the insurer's right is safeguarded but in any event the insurer has to pay compensation when a valid certificate of insurance is issued notwithstanding the fact that the insurer may proceed against the insured for recovery of the amount. Under Section 149 of the Motor Vehicles Act, the insurer can defend the action inter alia on the grounds, namely, (i) the vehicle was not driven by a named person, (ii) it was being driven by a person who was not having a duly granted
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licence, and (iii) person driving the vehicle was disqualified to hold and obtain a driving licence. Hence, in our considered opinion, the insurer cannot disown its liability on the ground that although the driver was holding a licence to drive a light motor vehicle but before driving light motor vehicle used a commercial vehicle, no endorsement to drive commercial vehicle was obtained in the driving licence. In any case, it is the statutory right of a third party to recover the amount of compensation so awarded from the insurer. It is for the insurer to proceed against the insured for recovery of the amount in the event there has been violation of any condition of the insurance policy. Thus, the Apex Court has held that the Insurance company shall pay the compensation first and then recover the same from the owner of the vehicle.
12. In the matter on hand, the deceased was an employee of the BMTC. He died in harness leaving
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behind four L.Rs. Having regard to the totality of the facts and circumstances, as the driver of the offending vehicle was earlier having licence which had of course, expired about three years prior to the date of accident, and as the driver had again obtained licence immediately after the accident, we are of the opinion that the interest of justice would be met, if the Insurance company is directed to pay compensation and recover the same from the owner by filing an application before the tribunal, more particularly when there is nothing on record to show that the driver was disqualified to hold driving licence. In view of the principle laid down in the cases of Swarnasingh and Iyypapan by the Apex court, we prefer to follow the same.
13. Hence, the following order is made:-
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The compensation is enhanced from Rs.6,10,112/- to Rs.15,24,200/- and the claimants are entitled to the same rate of interest as ordered by the tribunal. The apportionment of the amount and deposit in the bank also would remain same as ordered by the tribunal. The entire compensation shall be paid by the Insurance company. It is open for the Insurance company to recover from the same from the driver and owner of the offending vehicle pursuant to the judgments referred to supra.
Appeal filed by the Insurance Company is dismissed and the appeal filed by the claimants is allowed in part thus.
Sd/-
JUDGE Sd/-
JUDGE Srl.