Karnataka High Court
Layawwa W/O Bhimappa Doddamani vs Ghanshayam S/O Baburao Chavan ... on 22 April, 2013
Author: Jawad Rahim
Bench: Jawad Rahim
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 22ND DAY OF APRIL, 2013
BEFORE
THE HON'BLE Dr.JUSTICE JAWAD RAHIM
MFA No.30330/2008(MV)
CONNECTED WITH
MFA.CROB.No.1012/2009
IN MFA No.30330/2008
BETWEEN:
NATIONAL INSURANCE CO. LTD.
BIJAPUR NOW REPRESENTED BY
ITS ADMN. OFFICER
NATIONAL INSURANCE CO. LTD.
BILGUNDI COMPLEX
OPP. MINI VIDHANA SOUDHA
GULBARGA ...APPELLANT
(BY SMT. PREETI PATIL, ADVOCATE)
AND:
1. BHIMAPPA
S/O SIDDAPPA DODDAMANI
AGED 59 YEARS, OCC: NIL
R/O NAGTHAN, TQ. & DIST. BIJAPUR
2. LAYYAWWA
W/O BHIMAPPA DODDAMANI
2
AGE: 58 YEARS, OCC: HOUSEHOLD
R/O NAGTHAN, TQ. & DIST. BIJAPUR
3. GHANSHYAM
S/O BABURAO CHAWAN KIRAVATTI
AGE: MAJOR, OCC: BUSINESS
R/O YALLAPUR, DIST. KARWAR
(NORTH CANARA)
... RESPONDENTS
(BY SRI SANGANAGOUDA V. BIRADAR, ADVOCATE FOR R2,
R1-SERVED, R3-NOTICE H/S V/O DATED 25.3.13)
THIS MISCELLANEOUS FIRST APPEAL FILED UNDER
SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE
JUDGMENT AND AWARD DATED 22.4.2008 PASSED BY THE
MACT NO.II, BIJAPUR IN MVC No.875/1999.
IN MFA.CROB.No.1012/2009
BETWEEN:
LAYAWWA
W/O BHIMAPPA DODDAMANI
AGE: 49 YEARS
R/O NAGTHAN
TQ. & DIST. BIJAPUR ... CROSS OBJECTOR
(BY SRI SANGANAGOUDA V. BIRADAR, ADVOCATE FOR
CHETANA ASSOCIATES)
AND:
1. GHANSHAYAM
S/O BABURAO CHAVAN KIRAVATTI
AGE: MAJOR, OCC: BUSINESS
R/O YALLAPPA, DIST. KARWAR
(NORTH CANARA)
2. THE NATIONAL INSURANCE CO. LTD.
BIJAPUR, COVER NOTE NO. 88136/
3
DEVELOPMENT OFFICER CODE 403/
AGENCY CODE-D
... RESPONDENTS
(BY SMT. PREETI PATIL, ADVOCATE FOR R2,
R1-NOTICE DISPENSED WITH V/O DT. 5.12.12)
MISCELLANEOUS FIRST APPEAL CROSS OBJECTION
FILED UNDER ORDER 41 RULE 22 OF CPC AGAINST THE
JUDGMENT AND AWARD DATED 23.07.2004 PASSED IN
MVC.NO.875/1999 ON THE FILE OF MEMBER, MACT-V, BIJAPUR,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL ALONG WITH CROSS OBJECTION COMING
ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-
JUDGMENT
This appeal and cross objections relate to the judgment and award in MVC No.875/1999.
2. The genesis of this appeal and cross objection is a motor vehicle accident on 07.07.1999 involving a tempo bearing registration No.KA-26/2321 in which the victims were travelling. Because of the negligent driving of the vehicle, it capsized near Kerikal Cross after collided with the heap of the sonal stone. Due to the impact generated, the driver was imbalanced and the victim sitting on the 4 top, fell suffering injuries to which he succumbed. The claim was lodged against the owner of the vehicle in which the victim was travelling and its insurer. The owner remained docile and did not take part in the proceedings while the insurance company through detailed counter resisted the claim. The defence inter alia was that the driver had no valid driving licence. There is no permit to carry the passengers and the accident was not because of his negligence of the driver but due to the negligence of the victim who was travelling on the top load on the vehicle.
3. Based on the material propositions in the pleadings, the learned member of the Tribunal framed the following issues:
1. Whether the petitioners prove that on 7.7.1999 at about 3.00 p.m. when deceased Mahadev was travelling on the top of the Tempo No.KA-26/2321, driver of the Tempo driven the same in high speed, zigzag manner on Sindagi-Bijapur road, unable to control, 5 took the vehicle on the heap of stones, caused accident, death of Mahadev?
2. Whether the petitioners prove that they are legal representatives of deceased?
3. Whether the petitioners are entitled for compensation? If so, how much and from whom?
4. What order?
4. In the enquiry that ensued, on behalf of the claimants two witnesses were examined i.e., Bhimappa and Dundappa and relied on five documents, which are copy of the FIR, Spot Panchanama, Inquest panchanama, IMV report and charge sheet. Respondents on their behalf tendered evidence as RWs.1 and 2 and produced insurance policy and endorsement issued by the R.T.O, Bijapur. After analyzing the evidence, the Tribunal rejected defence and awarded Rs.1,41,600/-, which is assailed on many grounds.
6
5. Smt. Preeti Patil, learned counsel for the appellant-insurance company has relied on the following decisions:
i. National Insurance Corporation Ltd. v. Kanti Devi reported in 2005-AIR(SC)-0-2850 equivalent to 2005-SCC-5-789, 2005(TLS) 41073.
ii. National Insurance Company Limited v.
Swaran Singh and Others.
iii. New India Assurance Co. Ltd. v. Prabhu Lal. iv. National Insurance Co. Ltd. v. Kusum Rai and Others.
v. United India Insurance Co. Ltd., Shimla v. Tilak Singh and Others.
vi. Oriental Insurance Co. Ltd. v. Zaharulnisha and Others.
vii. Oriental Insurance Co. Ltd. v. Syed Ibrahim and Others.
6. She would assertively contend that the Tribunal seriously erred in ignoring the defence and the facts 7 brought on record through evidence that the vehicle involved in the accident was maxicab whereas the driver possessed licence to drive the light motor vehicle. The second ground urged is vehicle was used as stage carriage whereas it should have been used as contract carriage. To gain support to her contention, she would refer to the notification of the Central Government issued under Section 41(a) which specifies maxicab as a public service vehicle which is transport vehicle. She would then drawn my attention to Rule 12(1) of Motor Vehicles Rules, which envisages:
"12. Driver's badge:
(1) No person shall drive or cause or allow any other person to drive a stage carriage or contract carriage, unless the person so driving or allowed to drive, holds a driver's badge. The badge shall be of a triangular shape in the case of a driver of a motor cab or an autorickshaw-cab, and of a circular shape in the case of drivers of other vehicles."8
7. In this view, the issue for consideration would be whether the insurance company could territory justifiably avoid liability on the ground of violation of terms of permit and that the driver had no valid driving licence. The reference to sub-rules of rule 12 is of no consequence. We basically look into the nature of licence granted to the driver. Rule 12 is automatic in application when licence is issued. All that rule envisages is when a person has been granted licence to drive transport vehicle, then he may apply for badge. This could be found in sub-rule (2) of Rule 12 and other Rules which reads as follows.
"12(2). The application for a badge shall be in Form KMV 6 and it shall be accompanied by a fee of rupees twenty five in treasury challan. Then .....................
12(8). If at any time, the driver is disqualified form driving transport vehicle, if his driving licence is revoked by any authority or court, or ceases to be effective, the driver 9 shall forthwith surrender the badge to the authority by which it was issued."
8. The provisions itself would show that badge is issued only to a person who has licence to drive the transport vehicle. Issuance of badge is not independent but relatable to issuance of driving licence. In the instant case, the driver of the vehicle had licence to driver the light motor vehicle issued to him on 26.07.1997. The accident has occurred on 07.07.1999. The vehicle is maxicab. The definition of maxicab in Section 2 is found as follows:
"2(22). Maxicab means any motor vehicle constructed or adapted to carry more than six passengers, but not more than twelve passengers, excluding the driver, for hire or reward;"
9. This explanation has not been tinkered despite the notification issued under Section 41 by the Central Government. Notifications are undoubtedly issued under Section 41 permitting Central Government to classify the 10 vehicles. Unless the definitions in the Act is repealed, the definition as it stands in the book of statute on the date is relevant. The definition of maxicab under Section 2(22) does not show it is transport vehicle or to be considered as a non-transport vehicle. The definition of light motor vehicle found in Section 2(21) is:
"2(21). Light Motor Vehicle means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7,500 kilograms;"
10. The driver in this case undoubtedly, possessed the licence to drive the light motor vehicle, which authorizes him to drive the transport vehicle. Even if it is a transport vehicle, in view of notification cited, licence issued to driver was "Light Motor Vehicle" which authorized him to drive even transport vehicle defined in Section 2(21) of the Act. These grounds undoubtedly are urged by the insurance company to show that the vehicle was used as contract carriage instead of stage carriage. The issue 11 as to whether using of a vehicle as contract carriage instead of stage carriage amounts to violation of terms of permit and consequently, does it entitle the insurance company to avoid liability under the insurance policy, has been considered by this Court as early in the year 2000 in the case of UNITED INDIA INSURANCE COMPANY LIMITED AND OTHERS v. CHANDAMMA AND OTHERS reported in ILR 2000 KAR 1302. The conspectus of Section 149 and other provisions of Motor Vehicle Rules having been considered, it is held:
"Therefore, in law the appellants/ petitioners-insurers are not exempt from their liability to pay compensation under their respective 'Act Policies' by mere reason of 'contract carriages' in question being plied as 'stage carriers' in breach of their permit condition since such a defence plea is not permissible under sub-section (2) of Section 149 of the Act. If the said vehicles were found to have been plying in breach of their permits condition, it is open for the concerned authorities under the Act to take appropriate 12 action as is permissible under other provisions thereof viz., Sections 86, 177 and 192 as the case may be. Therefore, we find the contention of the learned Counsel for appellants/Writ Petitioners without force and weight and the appeals are, therefore, bound to fail. "
11. This answers the grounds urged in the appeal. In the circumstances, I am satisfied grounds in the appeal of the insurance company merit no acceptance. They are only worth rejection. Consequently, the appeal is rejected.
12. As regards cross-objections of claimants is concerned, the grievance of the claimants is they are aged parents who have lost their able bodied, enterprising and hardworking son. Consequent to his death, they have lost financially and seek enhancement of compensation.
13. I have perused the records. It could be seen, the Tribunal has taken income of the deceased who was said to be working as agricultural coolie at Rs.1,800/- and deducted 50% out of it towards personal expenses of the 13 deceased. On the basis of Rs.900/- computation has been done. Certainly, it is wholly irrational. The accident is of the year 1999. Income of the agricultural coolie as in the year 1999 would not be less than Rs.4,500/-. There is no reason why it should be reduced. Be that as it may, his income is taken at Rs.4,000/- to which 50% has to be added towards prospects of better earning in future, in view of the decision of the Apex Court in the case of SARLA VERMA, which gives us income at Rs.6,000/- per month, out which 50% is to be deducted as there are two dependents, which gives us Rs.3,000/- per month and annually, it will be Rs.36,000/-. The multiplier applicable will depend on the age of the mother or the father. Age of the mother is shown as 49 years and the age of the father is shown as 50 years. The multiplier applicable would be 13, which gives us loss of dependency at Rs.4,68,000/- to this has to be added a sum of Rs.15,000/- each to the parents towards loss of love, affection and care, Rs.25,000/- towards loss to estate and Rs.10,000/- towards funeral expenses and other ceremonies. 14
14. In the result, the appeal filed by the insurance company is dismissed and the cross objection filed by the claimants is allowed in part.
15. The award of the Tribunal is enhanced from Rs.1,41,600/- to Rs.5,33,000/-, which shall carry interest at 6% per annum from the date of petition till the date of payment.
16. The insurance company shall discharge the award within eight weeks.
17. The amount in deposit is ordered to be transmitted to the Tribunal for disbursement.
SD/-
JUDGE NB*