Karnataka High Court
Smt. Sangeeta W/O Late Chandrakanth Ors vs Satish S/O Siragappa Siragekar Anr on 11 July, 2018
Author: Ravi Malimath
Bench: Ravi Malimath
1
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
ON THE 11TH DAY OF JULY 2018
BEFORE
THE HON'BLE MR.JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
MISCELLANEOUS FIRST APPEAL NO.30752/2011,
C/w MFA No.30753/2011 and MFA No.30388/2012 (MV)
IN MFA NO.30752/2011
BETWEEN:
1. Smt. Sangeeta W/o Late Chandrakanth
Mali Biradar,
Age: 26 years, Occ: House wife.
2. Kumar Nagaraj S/o Late Chandrakanth
Mali Biradar,
Age: 7 years, Minor. Student.
3. Kantheppa S/o Late Chandappa Mali Biradar,
Age: 57 years, Occ: Nil.
The appellant No.2 is minor under
Guardianship of his Natural mother
the appellant No.1.
All R/o Borampalli, Tq: Humnabad,
Dist: Bidar now residing at near
Dr. Gachinmani Hospital, Subhash Chowk,
Brahampur, Gulbarga C/o Kalyanrao
Mududagi Building House No.10-234/16-1
Brahampur, Gulbarga.
...Appellants
(By Sri. Babu H. Metagudda, Advocate)
2
AND:
1. Satish S/o Siragappa Siragekar,
Age: 26 years, Occ: Auto Driver-cum-owner
Of the auto bearing No.KA-39/5913
R/o Khathalli, Tq: Humnabad,
Dist: Bidar.
2. The Divisional Manager,
National Insurance Co. Ltd.
Bilgundi Complex,
Opposite Mini Vidhan Soudha,
Station Road, Gulbarga.
...Respondents
(By Sri. S.S. Aspalli, Advocate for R2;
Notice to R1 held sufficient v/o dated 06.03.2012)
This Miscellaneous First Appeal is filed under Section
173(1) of Motor Vehicles, praying to allow this appeal and
modify the judgment and award dated 01.02.2011 passed in
MVC No.128/2009 by the I Addl. Civil Judge (Sr.Dn.) &
M.A.C.T. At Gulbarga and enhancing the compensation from
Rs.4,19,000/- with 6% interest to Rs.23,40,000/- with 12%
interest. This appeal and direct the insurance company to
pay the compensation to the claimant in the interest of
justice and equity.
IN MFA NO.30753/2011
BETWEEN:
1. Smt. Putulabai W/o Chennabassappa
Helegenavar,
Age: 37 yeas, Occ: Coolie,
R/o Khathalli, Tq: Humnabad,
Dist: Bidar now residing at Borabai Nagar,
Brahampur, Gulbarga.
...Appellant
(By Sri. Babu H. Metagudda, Advocate)
3
AND:
1. Satish S/o Siragappa Siragekar,
Age: 26 years, Occ: Auto Driver-cum-owner
Of the bearing No.KA-39/5913
R/o Khathalli, Tq: Humnabad,
Dist. Bidar.
2. The Divisional Manager
National Insurance Co. Ltd.,
Bilgundi Complex, Opposite
Mini Vidhan Soudha, Station Road,
Gulbarga.
...Respondents
(By Sri. S.S. Aspalli, Advocate for R2;
Notice to R1 held sufficient v/o dated 04.12.2012)
This Miscellaneous First Appeal is filed under Section
173(1) of Motor Vehicles, praying to allow this appeal and
modify the judgment and award dated 01.02.2011 passed in
MVC No.127/2009 by the I Addl. Civil Judge (Sr.Dn.) &
M.A.C.T. at Gulbarga and enhancing the compensation from
Rs.92,300/- with 6% interest to Rs.4,60,000/- with 12%
interest and allow the appeal and direct the insurance
company to pay the compensation to the claimant in the
interest of justice and equity.
IN MFA NO.30388/2012
BETWEEN:
National Insurance Co. Ltd.,
Rep. By its Branch Manager,
National Insurance Co. Ltd.,
Basaveshwar Circle, Bidr.
Now Represented by
Assistant Manager
National Insurance Co. Ltd.
Gulbarga.
...Appellant
(By Sri. S.S.Aspalli, Advocate)
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AND:
1. Abeda Bee W/o Late Md. Moinuddin
Age about: 42 years, Occ: Household,
R/o Kantholli, Tq. Humnabad,
Dist. Bidar-585101.
2. Shakeel Ahmed S/o Late Md. Moinuddin,
Age about: 22 years, Occ: Labour,
R/o Kantholli, Tq. Humnabad,
Dist. Bidar-585101.
3. Maheboob Bi D/o Late Md. Moinuddin,
Age about: 20 years,
R/o Kantholli, Tq. Humnabad,
Dist. Bidar-585101.
4. Shabana D/o Late Md. Moinuddin,
Age about: 18 years,
R/o Kantholli, Tq. Humnabad,
Dist. Bidar-585101.
5. Tasleem Bee D/o Late Md. Moinuddin,
Age about: 16 years, (Minor)
U/G her mother- Abeda Bee claimant No.1,
R/o Kantholli, Tq. Humnabad,
Dist. Bidar-585101.
6. Jabeena Bee D/o Late Md. Moinuddin,
Age about: 14 years, (Minor)
U/G her mother-Abeda Bee claimant No.1,
R/o Kantholli, Tq. Humnabad,
Dist. Bidar-585101.
7. Gousuddin S/o Late Md. Moinuddin,
Age about: 12 years, (Minor)
U/G her mother-Abeda Bee claimant No.1,
R/o Kantholli, Tq. Humnabad,
Dist. Bidar-585101.
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8. Satish S/o Sirgappa Sirgekar,
Age about: 27 years, Occ: Owner / Driver of
A/R No.KA-39/5913
R/o Kathalli, Tq. Humnabad,
Dist. Bidar-585101.
...Respondents
(By Sri. Basavaraj R. Math, Advocate for R1 to 4;
R5-7 are minors represented by R1;
Notice to R8, 5 to 7 minors is held sufficient v/o dated
16.09.2013)
This Miscellaneous First Appeal is filed under Section
173(1) of Motor Vehicles, praying to call for records in MVC
No.494/2008 on the file of the Fast Track Court-I & Addl.
MACT Bidar dated 11.02.2011 and set aside the judgment
and award dated 11.02.2011 passed by the Fast Track Court-
I & Addl. MACT Bidar, by allowing the above appeal in the
interest of justice and equity.
These appeals being heard together and reserved for
judgment on 02.07.2018 and coming on for pronouncement
of Judgment this day, Sreenivas Harish Kumar J, delivered
the following:
JUDGMENT
The motor vehicle accident that took place on 26.08.2008 on Humnabad-Khathalli Road gave rise to three claim petitions being filed by the legal representatives of two deceased persons and an injured. The MACT at Gulbarga decided two claim petitions, MVC No.127/2009 and MVC No.128/2009 on 01.02.2011; and the MACT at Bidar decided MVC No.494/2008 on 6 11.02.2011. The claimants in MVC No.127/2009 and MVC No.128/2009 have filed MFA No.30753/2011 and MFA No.30752/2011 respectively seeking enhancement of compensation. The Insurance Company has filed MFA No.30388/2012 questioning the saddling of liability on it by the Tribunal at Bidar while deciding MVC No.494/2008. Since all these appeals relate to the same accident, they are disposed of by this common judgment.
2. The details of the accident are that on 26.08.2008 at about 8.30 P.M, the deceased namely Chandrakanth and Moinuddin, one Putalabai and a few others were travelling in an autoricksha bearing No.KA- 39/5913 to go to their village. When the said autoricksha came near the land of one Shukur on Humnabad-Khathalli road, it dashed against a tractor coming in opposite direction as the driver of the autoricksha was rash and negligent in driving it. As a result of this collision, the autoricksha turtled; the passengers suffered injuries, and some of them died.
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3. In MVC No.127/2009, the claimant Putulabai suffered fracture of right superior and inferior of rami of pelvis. Her age was 45 years on the date of accident. The Tribunal notionally held her daily earning at Rs.100/-, applied multiplier 14 and awarded Rs.35,280/- towards loss of future earnings considering the disability factor as 7%. The total compensation awarded to her was Rs.92,000/-.
4. In the other two claim petitions, MVC No.128/2009 and MVC No.494/2008 in relation to death of Chandrakanth and Md. Moinuddin respectively, both the Tribunals took notional income of the deceased as Rs.100/- per day, and calculated the compensation that can be granted towards loss of dependency. In MVC No.128/209, total compensation awarded is Rs.4,19,000/- and in MVC No.494/2008, Rs.4,72,000/- is the total compensation granted.
5. We have heard learned counsel for the parties. Sri. Babu H. Metagudda appearing for appellants in MFA No.30752/2011 and MFA No.30753/2011 argued that both 8 the Tribunals have grossly erred in holding the daily income of the deceased and also injured as Rs.100/-. The deceased Chandrakanth was an agriculturists; he owned agricultural lands and documentary proof was also produced by the claimant. Compensation to be granted towards loss of dependency should have been calculated taking the monthly income of the deceased as Rs.10,000/- . He also argued that the compensation awarded on other conventional heads is also on lower side. Therefore he submitted that compensation must be enhanced in both the cases. As regards compensation granted to the injured i.e, Putalabai, it was his argument that the compensation needs to be enhanced.
6. The learned counsel for appellant in MFA No.30752/2011, Sri. S.S.Aspalli argued that the Tribunal at Bidar which decided MVC No.494/2008 should not have saddled the liability on Insurance Company. There was violation of policy conditions. The autoricksha had permit to ply within a radius 5 Kms from Humnabad town; the accident took place at a place beyond the permitted 9 periphery. There were totally six passengers in the autoricksha as against the permitted capacity of three. He also pointed out that the Tribunal at Gulbarga, noticing the violation of policy conditions, absolved the liability of the Insurance Company.
7. In relation to MFA No.30752/2011 and MFA No.30753/2011, Sri. S.S.Aspalli, appearing for respondent No.2- Insurance Company argued that there is no error in the award passed by the Tribunals and there is no case for enhancement of compensation. It was his argument in relation to MFA No.30752/2011 that the agricultural lands stand in the name of father of the deceased i.e., Chandrakanth. His death did not result in stoppage of agricultural operations. The family is getting agricultural income and no amount can be granted towards of loss of dependency.
8. Sri. Basavaraj R. Math, appearing for respondents No.1 to 4 in MFA No.30388/2012 argued for sustaining the award of the Tribunal at Bidar and contended that there was no violation of policy conditions. 10
9. We have perused the impugned awards and the materials placed before us. Keeping in mind the points urged by the learned counsel, we hold as below.
10. There is no dispute about the autorickshaw having insurance coverage as on the date of accident; according to the insurance company, since six passengers travelled in it and that the accident occurred at a place beyond the area permitted for plying and therefore its liability to indemnify the owner gets exonerated. It is not possible to accept this argument. It is not the case that there was no permit at all for the autorickshaw. It had a valid permit, but it was taken beyond the permitted limit. There is some difference between the two. If there is no permit at all, or if a transport vehicle is used for a purpose not allowed by the permit as envisaged in S.149(2)(a)(i)(c), the insurance company need not indemnify the liability of the insured for violation of policy condition. But where a vehicle is taken beyond the limits, it cannot be said that there is violation of policy condition, 11 it is contravention of permit condition which is punishable according to S.192A of the Motor Vehicles Act.
11. Secondly in regard to another contention of the insurance company that there were six passengers in the autorickshaw and thereby there was violation of another policy condition, it has to be stated that the Hon'ble Supreme Court in United India Insurance Company Ltd. V/s K.M.Poonam and others [2012 Kant. M.A.C. 265 (SC)], has held that whenever excess passengers travel in a transport vehicle, the liability of the insurer is confined to number of persons covered by the insurance policy. In another judgement of the Supreme Court in the case of National Insurance Co. Ltd. V/s Anjana Shyam and Others. A.I.R. 2007 S.C. 2870, it is clearly held that if more than permitted number of passengers traveled in a vehicle, the insurer is bound to cover the higher of the various awards and can be compelled to deposit the higher amount of compensation awarded to the extent of number of passengers covered by the Insurance Policy. Therefore it is clear that the liability of the 12 insurance company is only to the extent of permitted number of passengers. In this case, the contention of the insurance company is that there were six passengers in the autorickshaw, but the claim petition was made on behalf of only three passengers; and there was no claim by other three. This ground is not available to the insurance company. Therefore we hold that the insurance company has to indemnify the liability the liability of owner of the autorickshaw. The Tribunal at Bidar has rightly fastened the liability on the Insurance Company.
12. In regard to awarding compensation towards 'loss of dependency' in both the death cases, one point of argument of Sri. S.S.Aspalli needs to be discussed. The Tribunal has held that Ex.P7 (marked in MVC No.128/2009), a ROR, stands in the name of deceased Chandrakanth, but according to learned counsel the lands stand in the name of father of deceased. In this regard we are constrained to opine that if the argument put forward by Sri. Aspalli is appreciated, ends of justice will not meet; rather it leads to end of justice. Even if the lands are in 13 the name of father, it is not possible to say that deceased Chandrakanth was not doing agriculture; at least to the extent of labour contributed by him, there is loss of dependency and it has to be compensated.
13. Now coming to calculation part, we opine that Rs.3,000/-, the amount that has been considered by the Tribunal for determination of loss of dependency is on lower side. The accident occurred in the year 2008. The notional income can be taken as Rs.5,000/-. The age of the deceased Chandrakanth was 31 years on the date of accident. The multiplier applicable is 16. 1/3rd of his income can be deducted towards personal expenses and therefore the amount of compensation towards loss of dependency works out at Rs.6,39,939/- which can be rounded of to Rs.6,40,000/-. The Tribunal has awarded meager amount on other conventional heads, and in all Rs.70,000/- can be awarded. Therefore the total compensation payable is Rs.7,10,000/- in MFA No.30752/2011.
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14. In MFA No.30753/2011, the appellant Putalabai suffered injuries. Even in regard to her case, the Tribunal held her notional income as Rs.3,000/- per month. Again this is on a lower side. Rs.5,000/- per month can be considered. The Tribunal has held the disability factor at 7% about which there is no dispute. The age of the appellant on the date of accident was 45 years as per Ex.P4 marked in MVC No.127/2009 and the multiplier applicable is 14. So the amount that can be granted towards loss of future earnings comes to Rs.58,800/-. The loss of income during treatment period needs to be enhanced to Rs.10,000/-. The compensation paid on other heads do not require any modification and therefore the total compensation works out to Rs.1,19,800/-.
15. In MFA No.30388/2012, the appellant is the Insurance Company. The respondents have not filed cross objections seeking enhancement of compensation. Since in MFA No.30752/2011 compensation is enhanced, we are of the opinion that even in relation to death of Moinuddin, 15 his legal representatives are entitled to be compensated in terms of calculation made in MFA No.30752/2011. If compensation is not enhanced, it amounts to discriminating the claimants, who claimed compensation in relation to death of Moinuddin in the very same accident. We have exercised this discretion in the background of the peculiar set of circumstances of this case only. Deceased Moinuddin was 40 years old at the time of accident. His monthly income can be considered as Rs.5,000/-. 1/5th has to be deducted towards his personal expenses as dependents are more in number. The multiplier applicable is 15. The amount that can be granted towards loss of dependency comes to Rs.7,20,000/- and to which another Rs.70,000/- can be added on other conventional heads. The total compensation there payable is Rs.7,90,000/-. With this discussion the following..
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ORDER MFA No.30752/2011 and MFA No.20753/2011 are partly allowed. The award in MVC No.127/2009 and MVC No.128/2009 are modified.
In relation to MVC No.127/2009, the compensation amount is enhanced from Rs.92,300/- to Rs.1,19,800/- which is rounded of to Rs.1,20,000/-. This amount carries interest of 6% per annum from the date of petition till date of payment.
In relation to MVC No.128/2009, the compensation amount is enhanced from Rs.4,19,000/- to Rs.7,10,000/-. This amount carries interest of 6% per annum from the date of petition till date of payment.
MFA No.30388/2012 is dismissed. But the award of the Tribunal in MVC No.494/2008 is modified. The compensation is enhanced from Rs.4,72,000/- to Rs.7,90,000/- which amount carries interest of 6% per annum from the date of petition till date of payment. 17
In all the cases, the Insurer is directed to satisfy the award as modified in these appeals within four weeks from today; and the deposit shall be made before the Tribunal. Amount, if any deposited by the Insurer before this Court shall be transferred to the Tribunal for disbursement.
There is no order as to costs.
Sd/-
JUDGE Sd/-
JUDGE SMP