Karnataka High Court
Smt Catherine Louis A vs Sri Kengaiah on 11 March, 2020
Equivalent citations: AIRONLINE 2020 KAR 2411, 2021 (1) AKR 837
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
MFA No.3338 OF 2015
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
M.F.A. NO.3338 OF 2015 (MV)
BETWEEN:
SMT. CATHERINE LOUIS A
W/O LATE LOUIS JOSEPH
AGED ABOUT 40 YEARS
RESIDING AT NO.906
B.D.A. QUARTERS, AUSTIN TOWN
VIVEKNAGAR POST
BANGALORE-560047 ... APPELLANT
(BY SRI. CUCKOO DELHI, ADVOCATE)
AND:
1. SRI. KENGAIAH
S/O LAE HANUMANTHAIAH
AGED ABOUT 68 YEARS
RESIDING AT NO.6, 3RD MAIN ROAD
NEAR DHANUES PROVISION STORES
GURUGUNTEPALAYA, 4TH BLOCK
AUSTIN, YESHWANTHPURA
BNAGLAORE-560054
2. SRI. AMARESH
S/O LATE YELLAPPA
AGED ABOUT 32 YEARS
RESIDING AT NO.791
LAKSHMI REDDY'S HOUSE
9TH "B" CROSS, TRIVENI ROAD
DEEWANARA PALAYA
BEHIND GOVERNMENT SCHOOL
YESWANTHPURA
BANGALORE-560054
MFA No.3338 OF 2015
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3. SRI. THILOKNATH B.K.
S/O LATE B.K. SADASHIVAN
AGED 59 YEARS
RESIDING AT NO.2
MAHATMA GANDHI COLONY
VEERASAGARA MAIN ROAD, ATTUR
VIDYARANYAPURA POST
BANGALORE-560097
4. UNITED INDIA INSURANCE COMPANY LTD
NO.1872, 20TH MAIN ROAD
20TH CROSS, MARENAHALLI MAIN ROAD
VIJAYANAGAR
BANGALORE-560040 ... RESPONDENTS
(BY SRI. T. SHESHAGIRI RAO, ADVOCATE FOR R1;
SRI. RAVISH BENNI, ADVOCATE FOR R4;
R3-SERVED; R2- HELD SUFFICIENT)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 27.01.2015 PASSED
IN MVC NO.2835/2012 ON THE FILE OF THE 9TH ADDITIONAL
SMALL CAUSES JUDGE, 34TH ACMM COURT OF SMALL CAUSES,
MEMBER, MACT-7, BENGALURU, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
*****
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
MFA No.3338 OF 2015
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JUDGMENT
1. The appellant is before this Court challenging the judgment of IX Additional Small Causes and Additional MACT, Bangalore (SCCH-7) in MVC No.2835/2012 dated 27.01.2015.
2. On 09.12.2011, at about 8.15 p.m., the deceased Louis Joseph was riding a Luna slowly and cautiously on the left side of the road on Ayyappa Swamy Cross Road junction of the Nala Road, observing all the traffic rules and regulations, at that time, a Canter Lorry bearing Registration No.CAW-1688 driven by its driver came in a high speed, in a rash and negligent manner without observing traffic rules and dashed against the Luna from behind, due to which, he fell down and sustained severe head injuries as also injuries to the whole body. He was immediately shifted to St.Philomena Hospital, Bangalore, wherein the MFA No.3338 OF 2015 4 doctor declared him as dead at 8.50 p.m. The deceased was working at Williams Bakery Private Limited, Bangalore as Kitchen Helper and claimed to be receiving salary at a sum of Rs.10,000/- p.m., as also he was operating novelty store in the afternoon and was earning a sum of Rs.6,000/- p.m. there from. The wife of the deceased who is the appellant herein had approached the Tribunal seeking for compensation on account of the above accident and the death of her husband resulting there from.
3. The Tribunal having come to the conclusion that though the vehicle and RTC stands in the name of respondent No.1, taking into consideration the evidence led by respondent Nos.1 and 2 wherein respondent No.1 had produced documents to establish the transfer/sale of the offending vehicle to respondent No.2 and having come to the MFA No.3338 OF 2015 5 conclusion that there are multiple violation of insurance policy, the offending vehicle not having a permit and not having a fitness certificate, had imposed the penalty on respondent No.2 - purchaser even though the formal transfer of registration had not occurred in favour of the respondent No.2. It is on this basis the Tribunal discharged the liability of the Insurance Company and imposed the same on the de facto owner of the vehicle viz., respondent No.2 even though de jure owner continued to be respondent No.1. The Tribunal considering the matter has awarded the compensation of Rs.7,75,100/- along with interest @ 6% p.a. from the date of petition till the date of payment on the following heads:
Sl. Heads of accounts Rupees (Rs.) No. 1 Loss of dependency 6,25,100 2 Loss of consortium 1,00,000 3 Funeral expenses 25,000 4 Expenses of transportation of 5,000 MFA No.3338 OF 2015 6 dead body 5 Loss of love and affection 10,000 6 Loss of estate 10,000 Total 7,75,100
4. The appellant is before this Court contending that the quantum of compensation which has been awarded is incorrect. The proper income of the deceased has not been taken into account and as also contending that the liability ought to have been imposed upon the Insurance Company inasmuch as the violation by respondent Nos.1 and 2 would not absolve the Insurance Company from its liability to the appellant, who is a third party.
5. Per contra, learned counsel appearing for the Insurance Company would contend that it is not known as to who has paid the insurance premium insofar as insurance policy is concerned. He further submits that the Insurance Company is not MFA No.3338 OF 2015 7 liable to indemnify the insured on the following grounds:
i. The insurance policy which has been issued in the name of respondent No.1 - RC holder is stated to commence from 14.55 hours on 10.12.2011 and being in operation till 09.12.2012. The accident having occurred at 8.15 p.m., on 09.12.2011, policy had not come into effect and therefore, the Insurance Company is not liable to pay the compensation under the said policy.
ii. There is a violation of applicable statutory enactment in terms of there being no permit to ply a goods vehicle. The said permit having expired on 26.11.2008 in terms of Ex.R14/R18, the Insurance Company cannot be made liable to make payment of compensation.
MFA No.3338 OF 2015 8 iii. There was no fitness certificate as on the date of the accident. Therefore, there being violation of statutory provision, the Insurance Company is not liable to make payment of compensation. iv. Respondent No.1 being RC holder had claimed that he had transferred the vehicle to respondent No.2. However, the statutory requirement of such transfer not having been followed, the offending vehicle continued to stand in the name of respondent No.1 and therefore, he submits that the respondent No.1 ought to have been made liable for the said payment.
v. Respondent No.2 has been served and placed ex-parte before the Tribunal and counsel for respondent No.1 submits that there is no appeal MFA No.3338 OF 2015 9 either filed by respondent No.2 or by Insurance Company.
vi. The Tribunal having held that respondent No.1 is not liable to make payment of any compensation in the absence of any appeal by the Insurance Company as regards the said finding, respondent No.1 cannot be held liable.
6. Heard the learned counsel for the appellant and the learned counsel for respondent - Insurance Company and perused the records.
7. The contention of learned counsel for Insurance Company that the insurance policy came into effect on 14.55 hours on 10.12.2011 and since the accident having occurred on 09.12.2011 at 08.15 p.m., the policy has not come into operation would have to be considered in the perspective of date of receipt of premium. It is not in dispute that the MFA No.3338 OF 2015 10 premium is received in cash on 09.12.2011 during the working hours of the Insurance Company. The accident having occurred at 8.15 p.m., on 09.12.2011, it is clear that insurance premium was received prior to the accident. It is rather unfortunate that the accident occurred immediately thereafter but once a person pays the premium and avails of a insurance policy, the said person would be under the impression that the policy comes into effect immediately since the payment has been accepted by the Insurance Company. There is no evidence on record to indicate that the person collecting the premium on behalf of the insurance company had informed the person availing of the insurance policy, that the policy would not come into operation until particular date nor was there any request or instructions issued by the person collecting the premium that the vehicle MFA No.3338 OF 2015 11 should not be plied until that date. In the absence thereof, I am of the considered opinion that the Insurance Company cannot evade its liability by contending that though the premium was received prior to the accident, the policy prescribes a different date from which the coverage comes into operation. This aspect is no longer res integra. The Division Bench of this Court in the case of National Insurance Company Limited vs. Smt.Bhadramma and others reported in ILR 2009 KAR 3332 has held that in terms of Section 64-VB that the risk of the Insurance Company would commence from the time of receipt of premium. Hence, the first contention of the Insurance Company cannot be accepted since the premium having been collected prior to the occurrence of the accident.
MFA No.3338 OF 2015 12
8. The second contention of learned counsel for Insurance Company that there was no permit to ply a goods vehicle and the permit had lapsed in the year 2008 in terms of Ex.R14/18 and in view of the said violations, the liability has to be imposed on the RC holder cannot also be accepted for the reason that the premium was collected on 09.12.2011 and the policy was issued stating that it would come into operation from 10.12.2011. The said policy is not a renewal policy but a fresh policy or a break policy. At the time of issuance of policy, it is to be verified by the Insurance Company about the existence of a permit or not. The Insurance Company cannot merely collect premium and later contend that even at the time of issuance of policy, there was no permit in existence. There being no enquiry made by the Insurance Company as regards the vehicle and MFA No.3338 OF 2015 13 documents relating thereto, the Insurance Company cannot at a later point of time take advantage of its own wrongs and contend that even before issuance of the policy, there was a violation committed by the insurer prior to issuance of the policy.
9. The third contention that there was no fitness certificate even as on the date of insurance would also suffer from the same lacuna as detailed above relating to lack of valid permit as on the date of issuance of the policy.
10. The fourth contention that respondent No.1 continues to be the RC holder as also the policy stood in the name of respondent No.1. The Tribunal ought to have imposed liability on respondent No.1 rather than on respondent No.2 is also of no avail. Once the insurance policy has MFA No.3338 OF 2015 14 been issued, though the indemnity may be on account of the insured; the person being indemnified is a third party, victim of the accident. What is of relevance is whether the insurance premium has been received by the Insurance Company or not. It would not a matter as to whether the payment has been made by respondent No.1 or respondent No.2. That is an interse dispute between respondent No.1 and respondent No.2. Be that as it may, there is no appeal filed by the Insurance Company challenging this finding. Hence, this Court is not required to give finding on this aspect.
11. The concern of learned counsel for respondent that if principle of pay and recover is applied and the Insurance Company is directed to make payment of compensation and recover from the owner, the Insurance Company would be put to difficulty as to MFA No.3338 OF 2015 15 from whom the same has to be recovered whether from respondent No.1 or respondent No.2 would necessarily have to be answered by this Court and the same is answered as under:
a. Respondent No.1 has produced documents to establish the transfer of vehicle in favour of respondent No.2. The Tribunal has come to the conclusion that respondent No.2 is the owner of the vehicle and on that basis, has imposed the liability on respondent No.2. Respondent No.2 has not challenged the said finding by filing an appeal.
b. When the vehicle was seized by jurisdictional police, it is the respondent No.2 who had approached the jurisdictional Magistrate by filing an application under Section 454 for release of vehicle claiming to be the owner of the vehicle which was accepted by the MFA No.3338 OF 2015 16 Magistrate and the vehicle was released and handed over to the custody of respondent No.2. Hence, respondent No.2 now cannot seek to evade his liability. Thus, the Insurance Company can proceed against respondent No.2 to recover the amounts awarded both in terms of order of the Tribunal as also the order of this Court.
12. The appellant has also sought for enhancement of compensation contending that the Tribunal has taken into account a sum of Rs.4,293/- by referring to net salary in terms of Ex.P13. A perusal of the said Ex.P13 indicates gross salary of the deceased was Rs.5,117/- per month. Net salary is taken into consideration after certain deduction towards old loan and new loan. Therefore, calculation made by the Tribunal in this regard is not correct. The Tribunal ought to have MFA No.3338 OF 2015 17 taken a salary at Rs.5,117/- p.m. Though the appellant has contended that he was working for half a day in Bakery and in the afternoon, he was running a novelty store, Ex.P13 indicates that deceased was working full day in the bakery and it indicates the salary for entire day. Hence, there is no further amount which could be taken into consideration except for holding that gross salary ought to have been taken into consideration.
13. The deceased being 45 years at the time of his death, future prospects would have to be taken at 30%. Hence, 30% of Rs.5117/- comes to Rs.1,535/- and as such, an amount of Rs.6,652/- would have to be taken as his income.
14. Considering number of dependents 1/3rd of income of the deceased has to be deducted towards his personal expenses which comes to Rs.2,195/-.
MFA No.3338 OF 2015 18 Thus, leaving a balance of Rs.4,434/-. The applicable multiplier being '14', as per Sarala Verma vs. Delhi Transport Corporation reported in AIR 2009 SC 3104, loss of dependency would be Rs.4,434 x 12 x 14 = Rs.7,44,912/-
15. The Tribunal having awarded compensation of Rs.6,25,100/-, the same is enhanced by a sum of Rs.1,19,812/-.
16. The compensation awarded on other heads being just and proper, the same are unaltered. Accordingly, I pass the following:
ORDER
i) Appeal is allowed in part.
ii) The judgment of IX Additional Small Causes and Additional MACT, Bangalore (SCCH-7) in MVC No.2835/2012 dated 27.01.2015 is hereby modified. The appellant is entitled to MFA No.3338 OF 2015 19 enhanced compensation of Rs.1,19,812/-
along with interest @ 6% p.a. from the date of petition till the date of realization.
iii) The compensation amounts awarded on other heads are unaltered.
Sd/-
JUDGE Prs*