Karnataka High Court
Sri. Irappa A/F Adiveppa Munavalli, vs Sri. Krishnaji Nageshrao Kulkarni, on 20 March, 2017
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF NOVEMBER, 2016
BEFORE
THE HON'BLE MR.JUSTICE SREENIVAS HARISH
KUMAR
M.F.A. NO.20400/2011 (MV)
C/W.
M.F.A. 21503/2011
M.F.A. NO.20400/2011 :
BETWEEN:
SRI. IRAPPA A/F ADIVEPPA MUNAVALLI,
AGE : 22 YEARS,
R/AT HOSUR, TQ. SAUNDATTI
DIST. BELGAUM. ... APPELLANT
(BY SRI. MRUTYUNJAY TATA BANGI, ADV.)
AND
1. SRI. KRISHNAJI
NAGESHRAO KULKARNI,
AGE : 40 YEARS,
R/AT HOSUR, TQ. SAUNDATTI
DIST. BELGAUM.
2. THE BRANCH MANAGER,
THE ORIENTAL INSURANCE CO. LTD.,
MERCHANTS CO-OPERATIVE BANK
BUILDING, BAILHONGAL, BELGAUM.
3. SMT. PARVATEVVA
W/O ADIVEPPA MUNAVALLI,
AGE : 45 YEARS,
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R/AT HOSUR, TQ. SAUNDATTI
NOW AT KALABHAVI,
TQ. BAILHONGAL
DIST. BELGAUM. ... RESPONDENTS
(BY SRI.: SANTOSH B MALAGOUDAR, ADV. FOR R1
SRI. K.L.PATIL, AND S.S. BETURMATH, ADVS. FOR R2,
NOTICE TO R3 IS DISPENSED WITH)
THIS MFA IS FILED U/SEC.173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DTD:04-10-2010
PASSED IN MVC.NO.471/2006 ON THE FILE OF THE
MEMBER, ADDL. MACT, SAUNDATTI, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
M.F.A. NO. 21503/2011 :
BETWEEN :
THE BRANCH MANAGER
ORIENTAL INSURANCE CO. LTD.,
MERCHANTS CO-OPERATIVE BANK BUILDING
BAILHONGAL, DIST. BELGAUM.
NOW REP. BY ITS THE ASSISTANT MANAGER,
THE ORIENTAL INSURANCE CO. LTD.
SUMANGAL COMPLEX, OPP:HDMC, HUBLI. ... APPELLANT
(BY SRI. K L PATIL AND SRI. S.S.BETURMATH, ADVS.)
AND :
1. IRAPPA A/F. ADIVEPPA MUNAVALLI
AGE:ABOUT 23 YEARS, OCC:STUDENT,
R/O HOSUR, TQ:SAUNDATTI,
DIST:BELGAUM.
2. KRISHANJI
S/O NAGESH RAO KULKARNI
AGE:MAJOR, OCC:BUSINESS,
R/O HOSUR, TQ:SAUNDATTI,
DIST:BELGAUM.
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3. SMT. PARVATEEWWA
W/O. ADIVEPPA MUNAVALLI,
AGE : 50 YEARS,
OCC:HOUSEHOLD WORK,
R/O HOSUR, TQ:SAUNDATTI,
DIST : BELGAUM. ... RESPONDENTS
(BY SRI. MRUTYUNJAYA TATA BANGI, ADV. FOR R1
SRI. SANTOSH B.MALAGOUDAR,ADV. FOR R2,
R3 SERVED)
THIS MFA IS FILED U/SEC. 173(1) OF THE MOTOR
VEHICLE ACT 1988, AGAINST THE JUDGMENT AND
AWARD DTD:04-10-2010 PASSED IN MVC NO.471/2006 ON
THE FILE OF THE MEMBER, ADDL. MACT, SAUNDATTI,
AWARDING THE COMPENSATION OF RS.3,13,000/- WITH
INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF
PETITION TILL THE REALISATION.
THESE APPEALS COMING ON FOR ADMISSSION
THIS DAY, THIS COURT, DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals arise out of the judgement and award dated 4/10/2010 in MVC No.471/2006 on the file of the Additional M.A.C.T. Saundatti. MFA No.20400/2011 is filed by the claimant and MFA No.21503/2011 is filed by the respondent No.2- Insurance Company.
2. By referring to the parties with respect to their position in the Tribunal, briefly stated, the facts of the case are as follows:-
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On 24.5.2005, the petitioner and his mother and the deceased were proceeding towards their land. When they were all going on Hosur-Ingalagi road, at about 11.30am, a motor cycle bearing registration No. KA-
24/E-1794, being driven in a rash and negligent manner dashed against the deceased. As a result, the deceased sustained fatal injuries. He was shifted to the Civil Hospital, Bailhongal, and from there to the District Hospital, Belgaum, where he succumbed to the injuries on 30.5.2005. Therefore, the claim petition was filed before the Tribunal. During the pendency of the petition before the Tribunal, respondent No.3- Smt.Parvatevva, got herself impleaded claiming to be the wife of the deceased.
3. The Insurance Company filed written statement denying the accident and also its liability to indemnify the liability of the owner, on the ground that the rider of the motor cycle did not possess the licence to ride the :5: motor cycle; the licence that he possessed was to drive a tractor and trailer.
4. After an enquiry, the Tribunal came to the conclusion that the petitioner and respondent No.3 were entitled to a total compensation of Rs.3,13,000/- with interest at the rate of 6% p.a. from the date of petition till the date of realisation.
5. The counsel for the appellant in MFA No.20400/2011 argues that the Tribunal has committed an error in taking the monthly income of the deceased at Rs.4,000/-. He argues that the deceased was an agriculturist and his actual income was Rs.6,000/- p.m. and this was the income that should have been considered for determining compensation.
6. His another point of argument is that the Tribunal has just given a meager amount of Rs.10,000/- towards loss of love and affection and loss of estate and Rs.5,000/- towards funeral expenses. :6: Therefore, this Court has to interfere and award a higher amount towards compensation.
7. The learned counsel for the Insurance Company argues that the compensation awarded by the Tribunal is correct and proper. Therefore, there is no need to interfere with this part of the judgement of the Tribunal.
8. In MFA No.21503/2011, the learned counsel for the appellant-Insurance Company argues that on the date of accident, the driver did not possess valid driving licence. The licence that he possessed was to drive a tractor and trailer and therefore, the Tribunal ought not to have fastened the liability on the Insurance Company. He referred the Full Bench judgement of this Court in the case of M/s. Untied India Insurance Company Ltd., Vs. Shri. R.S.Shivarammayya and another reported in 2011 KAR MAC 632.
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9. The learned counsel for the respondent in this appeal argues that the Tribunal has rightly fastened the liability on the Insurance Company.
10. So in the light of arguments advanced now, the following questions would arise for consideration :
i) Whether the Tribunal committed an error in not taking into consideration the monthly income of the deceased as Rs.6,000/-?
ii) Whether the Tribunal has awarded a meager amount towards loss of love and affection, transportation and funeral expenses?
iii) Whether the Tribunal is right in holding that the Insurance Company should indemnify the liability of the owner of the vehicle?
11. Point No.1 and 2: The deceased was an agriculturist. The Tribunal has referred to RTC extract as per Ex.P8. The Tribunal has also held that the petitioner has not produced any other documents to show the exact income of the deceased. Therefore, the Tribunal has come to the conclusion that the monthly :8: income of the deceased could be fixed at Rs.4,000/-p.m. RTC Extract at Ex.P8 discloses that the land is a dry land. No documents can be expected to be produced to prove the actual income of an agriculturist. However, the Tribunal's decision to consider the monthly income of the deceased at Rs.4,000/-p.m. does not appear to be incorrect. Therefore, this part of conclusion of the Tribunal cannot be disturbed. But, with regard to awarding amounts towards other heads, i.e. loss of love and affection, transportation charges, it has to be stated that amount appears to be very meager. In the circumstances, the amount to be awarded towards loss of love and affection and towards loss of estate can be increased to Rs.20,000/- and towards transportation charges, funeral expenses amount can be increased to Rs.10,000/- . Therefore, the total compensation that the petitioner is entitled to is Rs.3,28,000/-.
12. Point No.3:- There is no dispute with regard to the fact that the rider of the motor cycle possessed licence only for driving a tractor and trailer. In another :9: words, he did not have licence to ride a motor cycle. The Tribunal has referred to a judgement of this Court in the case of Srinivasagowda and another Vs. Smt. Sannamma and others, reported in 2010(1) MACR 125 to fasten the liability on the Insurance Company. In this judgement, a Division Bench of this Court referred to the judgement of the Hon'ble Supreme Court in the case of Oriental Insurance Company Ltd., Vs. Zaharulniosha and others reported in 2008 ACJ 1928 to hold that if a person possesses licence to drive a heavy motor vehicle, he is deemed to have possessed a licence to ride a scooter or motor cycle and by observing so, a distinction has been made that the ratio laid down in the case of Oriental Insurance Company Ltd., Vs. Zaharulniosha and others is not applicable.
13. The learned counsel for the appellant- Insurance Company has referred to a judgment of the full Bench of this Court in the case of M/s. Untied India Insurance Company Ltd., Vs. Shri. : 10 : R.S.Shivarammayya and another. In this decision it is clearly held that the licence is issued for driving a different class of vehicle, motor cycle with gear or without gear does not come under the category of other type of vehicle i.e., either light motorcycle or heavy motor cycle and therefore, the rider should possess a valid licence for riding the motorcycle. If the driver did not possess a licence for riding the motor cycle, the liability of the Insurance Company can be absolved. Even the Hon'ble Supreme Court in the case of Oriental Insurance Company Ltd., Vs. Zaharulniosha and others, it is clearly held that if the scooterist did not have licence, and rather possessed a driving licence for HMV, insurer cannot be held liable. Therefore, the decision of the Hon'ble Supreme Court and the and the Full Bench of this Court are straight on the point. Applying the ratio laid down in the above cases, it can be clearly held that the Tribunal committed an error in fastening the liability on the Insurance Company. Therefore, this point is answered in negative. : 11 :
14. So from the above discussions, both the appeals have to be allowed. Hence, the following :-
ORDER
i) M.F.A. No.20400/2011 is allowed.
ii) The judgment and award dated 4/10/2010 passed in M.V.C.471/2006 on the file of the Addl. M.A.C.T., Saundatti, is modified.
iii) It is held that the petitioner and respondent No.3 are equally entitled to the compensation of Rs.3,28,000/- with interest at the rate of 6% p.a.
iv) MFA No.21503/2011 is allowed.
v) Appeal against respondent No.2, Insurance Company, in M.F.A. No.20400/2011 is dismissed. Consequently, petition against Insurance Company in M.V.C. No.471/2006 is also dismissed.
vi) Respondent No.1 in M.F.A. No.20400/2011
is directed to deposit the amount of
Rs.3,28,000/-with interest at the rate of 6% : 12 : p.a. from the date of petition in the Tribunal. So far as apportionment of the compensation awarded is concerned, the award of the Tribunal holds good.
The amount deposited by the Insurance Company, before this Court, is ordered to be refunded to the Insurance Company.
Sd/-
JUDGE Vmb *Corrected vide Court order dated 20.03.2017 Sd/-
Judge