Karnataka High Court
Nirmala W/O Anjappa And Ors vs Sukendar Reddy S/O Shivaputrappa And ... on 3 July, 2024
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MFA No. 200592 of 2018
C/W MFA No. 200593 of 2018
MFA.CROB No. 200078 of 2021
MFA.CROB No. 200080 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 3 RD DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE UMESH M ADIGA
MISCL. FIRST APPEAL NO. 200592 OF 2018 (MV-D)
C/W
MISCL. FIRST APPEAL NO. 200593 OF 2018 (MV-D)
MFA CROSS OBJ NO. 200078 OF 2021 (MV-D)
MFA CROSS OBJ NO. 200080 OF 2021 (MV-D)
IN MFA.NO.200592 OF 2018
BETWEEN:
THE TATA AIG GENERAL INSURANCE CO., LTD,
Digitally signed PENINSULA CORPORATE PARK, PIRMAL TOWER,
by KHAJAAMEEN
L MALAGHAN 9TH FLOOR,
Location: HIGH GANPATHRAO KADAM MARG LOWER PAREL,
COURT OF
KARNATAKA MUMBAI-400013.
NOW REPRESENTED BY,
DULY CONSTITUTED ATTORNEY,
BANGALORE
...APPELLANT
(BY SRI S. S. ASPALLI, ADVOCATE)
AND:
1. SHANTAMMA W/O MOHAN @ MONAPPA
AGE: 42 YEARS, OCC: HOUSEHOLD
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MFA No. 200592 of 2018
C/W MFA No. 200593 of 2018
MFA.CROB No. 200078 of 2021
MFA.CROB No. 200080 of 2021
2. YANKAPPA S/O MOHAN @ MONAPPA
AGE: 23 YEARS, OCC: NIL
3. KAMALAMMA D/O MOHAN @ MONAPPA
AGE: 22 YEARS. OCC: NIL
4. GOVIND S/O MOHAN @ MONAPPA
AGE: 19 YEARS, OCC: NIL
5. DEVAMMA D/O MOHAN @ MONAPPA
AGE: 19 YEARS, OCC: NIL
6. RAMU S/O MOHAN @ MONAPPA
AGE: 18 YEARS, OCC: NIL
7. TAYAMMA W/O MANIKAPPA
AGE: 67 YEARS OCC: NIL,
ALL R/O. KALABELAGUNDI TANDA,
TQ. & DIST. YADGIR-585301.
8. SUKENDAR REDDY S/O SHIVAPUTRAPPA
AGE: 42 YEARS, OCC: OWNER OF BULERO JEEP,
REGN.NO.KA-33/M-3463,
R/O. MUDNAL LAYOUT, STATION ROAD,
YADGIR-585301.
...RESPONDENTS
(BY SRI VEERANAGOUDA MALIPATIL, ADVOCATE,
FOR R1 TO R7;
VIDE ORDER DATED 13.03.2023, NOTICE TO R8 IS HELD
SUFFICIENT)
THIS MFA IS FILED UNDER SECTION 173 (1) OF M.V.
ACT, PRAYING TO CALL FOR THE RECORDS IN
MVC.NO.90/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND MACT-II, YADAGIR. B) SET ASIDE THE JUDGMENT AND
AWARD DATED 19.12.2017 IN MVC.NO.90/2015 PASSED BY
THE SENIOR CIVIL JUDGE AND MACT-II, YADGIR, BY
ALLOWING THE ABOVE APPEAL.
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MFA No. 200592 of 2018
C/W MFA No. 200593 of 2018
MFA.CROB No. 200078 of 2021
MFA.CROB No. 200080 of 2021
IN MFA.NO.200593 OF 2018.
BETWEEN:
THE TATA AIG GENERAL INSURANCE CO., LTD,
PENINSULA CORPORATE PARK, PIRMAL TOWER,
9TH FLOOR,
GANPATHRAO KADAM MARG LOWER PAREL,
MUMBAI-400013. NOW REPRESENTED BY,
DULY CONSTITUTED ATTORNEY,
BANGALORE
...APPELLANT
(BY SRI S. S. ASPALLI, ADVOCATE)
AND:
1. NIRMALA W/O ANJAPPA
AGE: 34 YEARS, OCC: HOUSEHOLD
2. RAJAMMA D/O ANJAPPA
AGE: 14 YEARS, OCC: NIL
3. SURESH S/O ANJAPPA
AGE: 12 YEARS, OCC: NIL
4. NAGAMMA D/O ANJAPPA
AGE: 11 YEARS, OCC: NIL
5. LALITHAMMA D/O ANJAPPA
AGE: 9 YEARS, OCC: NIL
6. AMBIKA @ SHIVAMMA D/O ANJAPPA
AGE: 7 YEARS, OCC: NIL,
RESPONDENTS NO.2 TO 6 ARE MINORS U/G OF,
THEIR NATURAL MOTHER NEXT FRIEND,
RESPONDENT NO.1, NIRMALA,
ALL R/O. KALABELAGUNDI TANDA,
TQ. & DIST. YADGIR-585301.
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MFA No. 200592 of 2018
C/W MFA No. 200593 of 2018
MFA.CROB No. 200078 of 2021
MFA.CROB No. 200080 of 2021
7. SUKENDAR REDDY S/O SHIVAPUTRAPPA
AGE: 42 YEARS, OCC: OWNER OF BULERO JEEP,
REGN.NO.KA-33/M-3463
R/O. MUDNAL LAYOUT STATION ROAD,
YADGIR-585301.
...RESPONDENTS
(BY SRI VEERANAGOUDA MALIPATIL ,ADVOCATE FOR,
R1 TO R6;
VIDE ORDER DATED 11.07.2022 NOTICE TO R7 IS,
HELD SUFFICIENT)
THIS MFA IS FILED UNDER SECTION 173 (1) OF M.V.
ACT, PRAYING TO A) CALL FOR RECORDS IN MVC.NO.89/2015
ON THE FILE OF THE SENIOR CIVIL JUDGE AND MACT-II,
YADGIR. B) SET-ASIDE THE JUDGMENT AND AWARD DATED
19.12.2017 IN MVC.NO.89/2015 PASSED BY SENIOR CIVIL
JUDGE AND MACT-II, YADAGIR, BY ALLOWING THE ABOVE
APPEAL.
IN MFA CROSS OBJ NO.200078 OF 2021.
BETWEEN:
1. NIRMALA W/O ANJAPPA
AGE: 37 YEARS, OCC: HOUSEHOLD
2. RAJAMMA D/O ANJAPPA
AGE: 17 YEARS, OCC: NIL
3. SURESH S/O ANJAPPA
AGE: 15 YEARS, OCC: NIL
4. NAGAMMA D/O ANJAPPA
AGE: 14 YEARS, OCC: NIL
5. LALITHAMMA D/O ANJAPPA
AGE: 11 YEARS, OCC: NIL
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MFA No. 200592 of 2018
C/W MFA No. 200593 of 2018
MFA.CROB No. 200078 of 2021
MFA.CROB No. 200080 of 2021
6. AMBIKA @ SHIVAMMA D/O ANJAPPA
AGE: 10 YEARS, OCC: NIL,
THE APPELLANTS NO.2 TO 6 ARE MINORS,
U/G OF THEIR NATURAL MOTHER/NEXT FRIEND,
APPELLANT NO.1,
ALL ARE R/O KALABELAUNDI TANDA,
TQ. AND DIST. YADGIR.
...CROSS OBJECTORS
(BY SRI VEERANAGOUDA MALIPATIL, ADVOCATE)
AND:
1. SUKENDAR REDDY S/O SHIVAPUTRAPPA
AGE: 45 YEARS, OCC: OWNER OF BULERO JEEP,
REG.NO.KA-33-M-3463,
R/O. MUDNAL LAYOUT,
STATION ROAD, YADGIR-585202.
2. THE TATA AIG GENERAL INSURANCE COMPANY LTD.,
PENINSULA CORPORATE PARK, PIRMAL TOWER,
9TH FLOOR, GANPATRAO KADAM MARG,
LOWER PAREL, MUMBAI-400013,
THROUGH ITS REGIONAL MANAGER.
...RESPONDENTS
(BY SRI. S.S. ASPALLI, ADVOCATE FOR R2;
VIDE ORDER DATED 26.06.2024 NOTICE TO R1 IS
DISPENSED WITH)
THIS MFA CROB. IS FILED UNDER ORDER 41 RULE 22 OF
CPC, PRAYING TO ALLOW THE CROSS OBJECTION, THE
JUDGMENT AND AWARD DATED 19.12.2017 IN
MVC.NO.89/2015 PASSED BY THE LEARNED SENIOR CIVIL
JUDGE AND MACT II, YADGIR, MAY KINDLY BE MODIFIED BY
ENHANCING THE COMPENSATION AS CLAIMED IN THE CLAIM
PETITION.
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MFA No. 200592 of 2018
C/W MFA No. 200593 of 2018
MFA.CROB No. 200078 of 2021
MFA.CROB No. 200080 of 2021
IN MFA CROSS OBJ NO. 200080 OF 2021.
BETWEEN:
1. SHANTAMMA W/O MOHAN @ MONAPPA
AGE: 46 YEARS, OCC: HOUSEHOLD
2. YANKAPPA S/O MOHAN @ MONAPPA
AGE: 27 YEARS, OCC: NIL
3. KAMALAMMA D/O MOHAN @ MONAPPA
AGE: 27 YEARS, OCC: NIL
4. GOVIND S/O MOHAN @ MONAPPA
AGE: 25 YEARS, OCC: NIL
5. DEVAMMA D/O MOHAN @ MONAPPA
AGE: 23 YEARS, OCC: NIL.
6. RAMU S/O MOHAN @ MONAPPA
AGE: 22 YEARS, OCC: NIL
7. TAYAMMA W/O LATE MANIKAPPA
AGE: 71 YEARS, OCC: NIL,
ALL ARE R/O. KALABELAUNDI TANDA,
TQ. AND DIST. YADGIR.
...CROSS OBJECTORS
(BY SRI VEERANAGOUDA MALIPATIL, ADVOCATE)
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C/W MFA No. 200593 of 2018
MFA.CROB No. 200078 of 2021
MFA.CROB No. 200080 of 2021
AND:
1. SUKENDAR REDDY S/O SHIVAPUTRAPPA
AGE: 45 YEARS, OCC: OWNER OF BULERO JEEP,
REG.NO.KA-33-M-3463,
R/O. MUDNAL LAYOUT, STATION ROAD,
YADGIR-585202.
2. THE TATA AIG GENERAL INSURANCE COMPANY LTD.,
PENINSULA CORPORATE PARK, PIRMAL TOWER,
9TH FLOOR, GANPATRAO KADAM MARG,
LOWER PAREL, MUMBAI-400013,
THROUGH ITS REGIONAL MANAGER.
...RESPONDENTS
(BY SRI S.S. ASPALLI, ADVOCATE FOR R2;
VIDE ORDER DATED 13.03.2023 NOTICE TO R1 IS
DISPENSED WITH)
THIS MFA CROB. IS FILED UNDER ORDER XLI 41 RULE 22
OF CPC, PRAYING TO ALLOW THE CROSS OBJECTION, THE
JUDGMENT AND AWARD DATED 19.12.2017 IN
MVC.NO.90/2015 PASSED BY THE LEARNED SENIOR CIVIL
JUDGE AND MACT-II, YADGIR MAY KINDLY BE MODIFIED BY
ENHANCING THE COMPENSATION AS CLAIMED IN THE CLAIM
PETITION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 24.06.2024, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
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C/W MFA No. 200593 of 2018
MFA.CROB No. 200078 of 2021
MFA.CROB No. 200080 of 2021
JUDGMENT
The above said appeals and cross-objections are arising out of judgment and award passed by the learned Senior Civil Judge and MACT-II, Yadgir, (for short 'Tribunal') in MVC.No.89/2015 and MVC.No.90/2015.
02. The MFA.No.200592/2018 and MFA.No. 200593/2018 are filed by the insurer against the judgment and award passed by the Tribunal in MVC.No.90/2015 and MVC.No.89/2015 respectively, challenging the liability fastened on the insurer to pay the compensation.
03. The claimants have filed MFA.Crob. No.200078/2021 and MFA.Crob.No.200080/2021 challenging the judgment and award passed by the Tribunal in MVC.No.89/2015 and MVC.No.90/2015, for enhancement of the compensation.
04. Both these MVC cases arise out of a common accident. The legal heirs of the deceased persons have filed different claim petitions for compensation. Both the -9- NC: 2024:KHC-K:4558 MFA No. 200592 of 2018 C/W MFA No. 200593 of 2018 MFA.CROB No. 200078 of 2021 MFA.CROB No. 200080 of 2021 claim petitions were clubbed together and common judgment and award was passed by the Tribunal on 19.12.2017.
05. The parties will be referred to as per their ranks before the Trial Court for sake of convenience.
06. It is the case of the claimants that on 12.06.2014 at 05.45 p.m. in Narayanpeth Town, on Eklaspur road, when the deceased Mohan and Anjappa were proceedings on their motorcycle, the driver of Bolero Jeep bearing its Reg.No.KA-33-M-3463 (for short 'offended vehicle') came from opposite direction in a rash and negligent manner and dashed against their motorcycle; As a result of which, both sustained fatal injuries and succumbed to the said injuries.
07. In MVC.No.89/2015, the contentions of the claimants are that the deceased - Anjappa was aged about 34 years and he was earning Rs.20,000/- per month. The claimants were depending upon his earnings. With these reasons, they prayed to award the compensation of Rs.20,70,000/-.
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08. Similarly, in MVC.No.90/2015 the claimants have contended that they are the legal heirs of the deceased - Mohan @ Monappa. He was aged about 45 years at the time of accident and he was a coolie and agriculturist and earning Rs.20,000/- per month. With these reasons, they prayed to award the compensation of Rs.17,70,000/-.
09. The respondent No.1 is the owner of offended vehicle, though appeared, did not file his counter to the claim petitions. However, the respondent No.2 - insurer had filed its counter, denying the contention of the claim petitions in both the cases and further strongly contended that the driver of the offended vehicle had no valid and effective driving license to drive such class of vehicle, at the time of accident. Therefore, insurer was not liable to pay the compensation.
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10. From the rival contentions of both the parties, the Tribunal had framed the necessary issues for its determination.
11. The claimants in both the cases have examined PW.1 and 2 and got marked Ex.P.1 to Ex.P.5 and closed their evidence. The respondent No.2 examined RW.1 and got marked Ex.R.1 to Ex.R.4 and closed its side.
12. The Tribunal after hearing both the parties and appreciating the materials available on record, held that the accident had taken place due to rash and negligent driving of the car by its driver. The respondent No.2 failed to establish that the driver of Jeep had no valid and effective driving license to drive the same. Therefore, fastened the liability on the respondent No.2 - insurer, to pay the compensation. The Tribunal after assessing the age, multiplier etc., had awarded the following amount of compensation in both the cases :-
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NC: 2024:KHC-K:4558 MFA No. 200592 of 2018 C/W MFA No. 200593 of 2018 MFA.CROB No. 200078 of 2021 MFA.CROB No. 200080 of 2021 IN MVC.NO.89/2015 :-
Sl. Heads of Compensation Amount
No. (in Rs.)
01. Loss of dependency 8,64,000/-
02. Loss of consortium 1,00,000/-
03. Love and affection 50,000/-
04. Funeral expenses 25,000/-
05. Transportation of dead body 10,000/-
Total 10,49,000/-
IN MVC.NO.90/2015 :-
Sl. Heads of Compensation Amount
No. (in Rs.)
01. Loss of dependency 7,48,800/-
02. Loss of consortium 1,00,000/-
03. Love and affection 50,000/-
04. Funeral expenses 25,000/-
05. Transportation of dead body 10,000/-
Total 9,33,800/-
(rounded up to
Rs.9,34,000/-)
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MFA No. 200592 of 2018
C/W MFA No. 200593 of 2018
MFA.CROB No. 200078 of 2021
MFA.CROB No. 200080 of 2021
13. The learned counsel for the insurer has
vehemently contended that the Tribunal did not consider the evidence on record properly and erroneously held that the insurer had failed to prove that the driver of the offended vehicle had no valid and effective driving license to the drive the same. It is pertinent to note that though owner of the vehicle had appeared before the Tribunal, but he did not file counter to the claim petition and produce the driving license. The insurer has sent notices to the owner of the vehicle, but owner did not produce the valid driving license held by the driver of the offended vehicle, which clearly indicates that the driver of the offended vehicle did not have valid and effective driving license to drive the said class of vehicle.
14. The learned counsel for the insurer has further submitted that the insurer even filed an application before the Tribunal, to examine the concerned investigating officer. However, the said investigating officer did not
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NC: 2024:KHC-K:4558 MFA No. 200592 of 2018 C/W MFA No. 200593 of 2018 MFA.CROB No. 200078 of 2021 MFA.CROB No. 200080 of 2021 attend the Court and gave evidence. Therefore, the insurer had taken all the steps to prove that the driver of the offended vehicle had no valid and effective driving license, to drive the said offended vehicle, at the time of accident.
15. The learned counsel for the insurer would further submit that the Tribunal ought to have taken adverse inference and held that the driver of the offended vehicle had no valid and effective driving license. However, the Tribunal shifting entire burden on the insurer and held that the insurer had failed to establish that the driver of the offended vehicle had no valid and effective driving license. It also observed that since the driver of the offended vehicle was not charge-sheeted for driving the said vehicle, without license, therefore, the contention of the insurer cannot be considered. The said finding is highly erroneous. Therefore, interference by this Court is required.
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16. The learned counsel for the appellant - insurer has relied on some judgments and submitted that in the said judgments, it is held by the Division Bench as well as the learned Single Judge of this Court held that in case if the insurer had taken all the steps and showed that the driver of the offended vehicle had valid and effective driving license, then the insurer has to be exonerated its liability to pay compensation and the owner is liable to pay the compensation. He has alternatively submitted that even if this Court comes to the conclusion that the insurer was unable to prove that driver of offended vehicle did not have valid driving license, then this Court be direct the insurer to pay the compensation with liberty to recover it from the owner of the vehicle. With these reasons prayed to allow the appeals.
17. The learned counsel for the claimants in cross- objections has submitted that time and again the Hon'ble Supreme Court has held that if the insurance policy is in force, then the insurer is liable to pay the compensation to
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NC: 2024:KHC-K:4558 MFA No. 200592 of 2018 C/W MFA No. 200593 of 2018 MFA.CROB No. 200078 of 2021 MFA.CROB No. 200080 of 2021 the third party and it cannot deny its liability to pay the compensation to the third party on the technical grounds. The learned counsel for the claimants has further submitted that no proper steps were taken by the insurer to secure the driving license particulars from the concerned RTO. No efforts were made to examine the concerned RTO to ascertain whether the driver had valid and effective driving license to drive said vehicle.
18. Te learned counsel for the claimants has further submitted that though the insurer had filed an application before the Tribunal to summon the concerned investigating officer, but did not take proper steps to secure his presence. He has further submitted that it is also pertinent to note that as rightly held by the Tribunal, the driver was not charge-sheeted for the offence punishable under Section 181 of Motor Vehicles Act i.e., driving of the vehicle without having valid and effective driving license. The respondent No.2 - insurer had examined one of its officer as RW.1 and he has not
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NC: 2024:KHC-K:4558 MFA No. 200592 of 2018 C/W MFA No. 200593 of 2018 MFA.CROB No. 200078 of 2021 MFA.CROB No. 200080 of 2021 knowing anything about the driving license of driver of the offended vehicle. In his cross-examination he has stated that only on the basis of charge-sheet, he has been contending that the driver of the offended vehicle was not holding valid and effective driving license. However, the charge-sheet does not reveal the said fact. Therefore, the evidence of RW.1 is not helpful in any way to the insurer to prove his contention.
19. It is further contended by the learned counsel for the claimants that it is settled principles of law that when the respondent - insurer disputing the liability on the ground that the driver of the offended vehicle had no valid and effective driving license, then burden shifts upon the insurer to prove its contention. In this case, without proving the same, the insurer has been contending that adverse inference has to be drawn against driver of the vehicle and hold hat he had no valid license.
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20. The learned counsel for the claimants has further contended that the law laid down in the above said judgments are not applicable to the facts of this case. The facts stated in the above cases are totally different. In the above said cases, the concerned investigating officer had charge-sheeted the driver of the offended vehicle for not holding the valid and effective driving license. Therefore, it was held that the insurance company was not liable to pay the compensation since it was a fundamental breach of terms of the policy. The learned counsel for the claimants also relied on some of the judgments in this regard.
21. The learned counsel for the claimants has further contended that the Tribunal had accepted the notional income at Rs.6,000/- per month, though, the claimants had contended that the deceased was earning Rs.20,000/- per month. This Court can take into consideration the chart of notional income prepared by the Karnataka Legal Services Authority and assessed the
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NC: 2024:KHC-K:4558 MFA No. 200592 of 2018 C/W MFA No. 200593 of 2018 MFA.CROB No. 200078 of 2021 MFA.CROB No. 200080 of 2021 notional income. According to the said chart notional income of a person who met with an accident during the year 2014, is Rs.7,500/- per month and same could be applied to this case. The learned counsel for the claimants has further submitted that in both the cases, the Tribunal has not added future prospects as per the law laid down by the Hon'ble Apex Court in the case of National Insurance Company Limited vs. Pranay Shethi and others1.
22. The learned counsel for the claimants would further submit that in MVC.No.89/2015 the age of the deceased was below 40 years. Therefore, 40% of his income has to be added towards his future prospects. In MVC.No.90/2015 the age of the deceased is below 50 years. Therefore, 25% of his income has to be added towards future prospects. He has also submitted that the 1 (2017) 16 SCC 680
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NC: 2024:KHC-K:4558 MFA No. 200592 of 2018 C/W MFA No. 200593 of 2018 MFA.CROB No. 200078 of 2021 MFA.CROB No. 200080 of 2021 amount of compensation awarded under the head of loss of consortium is not in accordance with law as laid down by the Hon'ble Supreme Court in the case of Magma General Insurance Company Limited vs. Nanu Ram Alias Chuhru Ram and others2. With these reasons he prayed for enhancement of the compensation and dismissal of the appeals filed by the insurer.
23. From the submission of learned counsel for both the parties, the following questions arise for my determination:-
A. Whether the insurer was able to prove that the driver of the offended vehicle had valid and effective driving license.?
B. Whether the claimants are entitled for enhancement of compensation.?
2 (2018) 18 SCC 130
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NC: 2024:KHC-K:4558 MFA No. 200592 of 2018 C/W MFA No. 200593 of 2018 MFA.CROB No. 200078 of 2021 MFA.CROB No. 200080 of 2021 Regarding Question No.1 :-
24. It is not in dispute that driver of the offended vehicle i.e., Balero Jeep has been charge-sheeted for the accident in question. It is also not in dispute that the driver of the said vehicle was not charge-sheeted for driving the vehicle without having valid and effective driving license. It is also not the case of insurer that it had secured report from its own investigating agency or police agency to believe that the driver of the offended vehicle had no valid and effective driving license. The insurer has not disclosed the source of information to contend that the driver of the offended vehicle had no valid and effective driving license to drive the offended vehicle. Therefore, it appears that the said defense was general defense of insurer taken on assumption and presumption.
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25. It was an assertive case of insurer that the driver of offended vehicle had no valid and effective driving license to drive the said vehicle. Therefore, the burden lies on the insurer to prove the said contention.
26. It may be true that the insurer had issued a notice to the owner of the vehicle to produce the driving license of the driver of the offended vehicle. The owner did not produce it. It is also true that initially, the owner had appeared before the Tribunal, but did not file written statement or cooperated with the insurer to contest the matter. The Trial Court records also reveal that an application was filed to summon the concerned investigating officer to examine on behalf of the insurer. However, insurer did not initially take proper steps to secure his presence and later on the summons sent through RPAD, was not served on the concerned investigating officer and the insurer did not persuade the said process. Therefore, the Tribunal rejected the prayer of the insurer and the evidence was closed. Therefore, the
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NC: 2024:KHC-K:4558 MFA No. 200592 of 2018 C/W MFA No. 200593 of 2018 MFA.CROB No. 200078 of 2021 MFA.CROB No. 200080 of 2021 concerned investigating officer was not examined by the insurer to prove that the driver of offended vehicle had no valid and effective driving license.
27. The insurer did not issue any notice to the Motor Vehicle Inspector / RTO concerned, seeking the details about the driving license of driver of the offended vehicle. The concerned RTO was not summoned before the Court and examined to prove that the driver of the offended vehicle had valid and effective driving license to drive the offended vehicle. As rightly submitted by the learned counsel for the claimants, evidence of RW.1 does not help much to prove the contention of the insurer regarding the driving license. Under these circumstances, there are no materials to show that the driver of the offended vehicle did not possess valid and effective driving license to drive the said class of vehicle. Therefore, contention of the insurer was not at all proved.
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28. The learned counsel for the insurer had relied on the following judgments.
A. In MFA.No.840/2001 decided on 02.03.2010 in the case of The Oriental Insurance Company Limited vs. K. Shivarao and another.
The above case is not relevant to the facts of the present case. In the above said case, the defense of insurer was that the said vehicle was private vehicle; And the passengers were traveling in the said vehicle by paying the fare charges. Hence, this Court held that the insurer has to pay the compensation and it is at liberty to recover from the owner of the vehicle. It is not applicable to the facts of the present case.
B. The Iffco-Tokio General Insurance Company Limited vs. K. Prabhakar Reddy and another3.
3 (2013) SCC Online KAR 10773.
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NC: 2024:KHC-K:4558 MFA No. 200592 of 2018 C/W MFA No. 200593 of 2018 MFA.CROB No. 200078 of 2021 MFA.CROB No. 200080 of 2021 In the above said case the insurer has taken the defense that the driver of the offended vehicle had no valid and effective driving license to dive the said vehicle.
The learned Coordinate Bench of this Court after appreciating the evidence available on record and also observing that the driver of the offended vehicle was not charge-sheeted for driving the vehicle without the license, held that the insurer has failed to prove that the driver of the offended vehicle had no valid and effective driving license. The said judgment is contrary to the contention of the learned counsel for the insurer. On the contrary, it is helpful to the submission of the learned counsel for the claimants. In this case also, though insurer has been contending that the driver of the offended vehicle had no valid and effective driving license, but it is not able to establish the same. Therefore, it cannot be exonerated from its liability to pay the compensation.
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NC: 2024:KHC-K:4558 MFA No. 200592 of 2018 C/W MFA No. 200593 of 2018 MFA.CROB No. 200078 of 2021 MFA.CROB No. 200080 of 2021 C. The judgment passed in MFA.No.32802/2011 dated 21.03.2014 in the case of The Manager, ICICI Lombard Motor Insurance Company Limited vs. Anujul Sarkar @ Anukoul Sarkar and others.
In this case also the insurer has contended that the rider of the motorcycle had no valid and effective driving license. It has also relied on the charge-sheet wherein it was mentioned that the rider was charge-sheeted for the offences punishable under Section 3 read with Section 187 of the Motor Vehicles Act. The Coordinate Bench of this Court after appreciating the evidence available on record, held that the insurer was enable to establish that rider of the offended vehicle was not holding the driving license. Hence, the said contention was rejected by this Court. The law laid down in the above said judgment is also supports the contention of the claimants rather than contention of the insurer.
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NC: 2024:KHC-K:4558 MFA No. 200592 of 2018 C/W MFA No. 200593 of 2018 MFA.CROB No. 200078 of 2021 MFA.CROB No. 200080 of 2021 D. In the case of Sri. G. Ranganath vs. St. Manjula4, the question involved in this case is whether the Tribunal can pass an order, directing the insurer to pay the compensation and recover it from the concerned owner of the vehicle. On the basis of the judgment of the Hon'ble Apex Court in the case of National Insurance Company Limited vs. Swarana Singh and Others 5, and whether it should construed as judicial precedent.
In the said judgment of Swarana Singh's case, it is mentioned that "the said order may not be considered as judicial precedent, since it was passed under Article 142 of the Constitution of India". However, in the subsequent judgments of the Hon'ble Apex Court in the case of Shamanna and another vs. Divisional Manager, Oriental Insurance Company Limited and others6 as well as Pappu and others vs. Vinod Kumar Lamba and another7, it is held by the Hon'ble Supreme Court that in 4 ILR 2014 KAR 2358.
52004 ACJ 1 6 (2018) 9 SCC 650 7 (2018) 3 SCC 208
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NC: 2024:KHC-K:4558 MFA No. 200592 of 2018 C/W MFA No. 200593 of 2018 MFA.CROB No. 200078 of 2021 MFA.CROB No. 200080 of 2021 case of breach of conditions of the policy of insurance, the insurer is liable to pay the compensation to the third party and it is at liberty to recover it from the owner of the vehicle. In view of the subsequent judgments of the Hon'ble Apex Court, now it is not res-integra that if there is a violation of the conditions of the policy of insurance, which is not fundamental condition then insurer is liable to pay the compensation to the third parties and it can recover from owner of the vehicle in an appropriate proceedings.
29. Therefore, the law laid down in the above said judgments does not help in any way to the contentions of the learned counsel for the insurer.
E. In MFA.No.25552/2010 and MFA.No. 24501/2010, in the case of Shri. Shivapappa Birappa Pujari vs. Shri. Lagamappa s/o Jakkappa Guravi and others, dated 17.04.2018 by the Coordinate Bench of this Court, held as under:-
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NC: 2024:KHC-K:4558 MFA No. 200592 of 2018 C/W MFA No. 200593 of 2018 MFA.CROB No. 200078 of 2021 MFA.CROB No. 200080 of 2021 In this case, before the Tribunal the insurer was unable to prove that driver had no valid and effective license to drive the said class of vehicle on that count it cannot disown its liabilities to pay compensation.
It is also contended that by the insurer that the said offended vehicle was private vehicle and the passengers who were traveling in the said vehicle, had paid the fare charges. Therefore, it was a violation of permit condition and also violation of terms and condition of insurance policy. The Tribunal had considered the said defense of insurer and directed the insurance company to pay the compensation to the claimant and recover it from the concerned owner of the vehicle. That was challenged by the owner of the vehicle. The Coordinate Bench of this Court, after considering the law laid down by the Hon'ble Supreme Court in the case of Swarana Singh (supra) and also in the case of Lal Singh Marabi vs. National
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NC: 2024:KHC-K:4558 MFA No. 200592 of 2018 C/W MFA No. 200593 of 2018 MFA.CROB No. 200078 of 2021 MFA.CROB No. 200080 of 2021 Insurance Company Limited and others8, held that the owner of the vehicle shall pay the compensation. The liability of insurer was exonerated.
F. In the case of Hemalatha @ Hema @ Hemavathi w/o Renukappa and others vs. Bajaj Allianz General Insurance Company Limited in MFA.No.6154/2019 (DB) date of judgment 14.12.2023, the Division Bench of this Court held that if the driver of the offended vehicle had no valid and effective driving license, then the insurer was not liable to pay the compensation. The Division Bench of this Court did not accept contention of the claimants to direct the insurance company to pay the compensation and recover the same from the owner of the vehicle as held in the cases of Swarana Singh, Pappu, Shamanna and Bhisen Devi. The Division Bench of this Court directed the owner of the vehicle to pay the compensation. 8
2017 ACJ 1362
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NC: 2024:KHC-K:4558 MFA No. 200592 of 2018 C/W MFA No. 200593 of 2018 MFA.CROB No. 200078 of 2021 MFA.CROB No. 200080 of 2021
30. The facts of above case is different from the facts of the present case. In that case, the driver of the offended vehicle was charge-sheeted for not holding the valid and effective driving license. Considering the said defense, the Division Bench of this Court held that in such events insurer is not liable to pay compensation and owner has to pay the same.
31. In this case, the insurer was unable to establish that the driver of the offended vehicle had no valid and effective license to drive the said class of vehicle. Therefore, law laid in the above said judgment is not applicable to the facts of the present case.
32. In MFA.No.3288/2013 connected with 2337/2014 in the case of Sriram General Insurance Company Limited vs. Mis. Sunita @ Nagaveni, delivered on 29.01.2024, the Coordinate Bench of this Court followed the law laid down in the case of Hemalatha @ Hema (supra) and directed the owner to pay the compensation.
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NC: 2024:KHC-K:4558 MFA No. 200592 of 2018 C/W MFA No. 200593 of 2018 MFA.CROB No. 200078 of 2021 MFA.CROB No. 200080 of 2021
33. In the above said case, the driver of the vehicle was charge-sheeted for not holding the valid and effective driving license to drive the said class of vehicle; that is not facts in the present case.
34. The learned counsel for the claimants has relied on the judgment in the case of Rukmani and others vs. New India Assurance Company and others9. In this case, it is observed by the Hon'ble Supreme Court in Para No.3 as under:-
"We have seen the only evidence which the Insurance Company produced in support of the plea. This is the evidence of Inspector of Police who investigated the accident. In this evidence, PW.1 who was the Inspector of Police, stated in his examination-in-chief, "My enquiry revealed that the 1st respondent did not produce the licence to drive the abovesaid scooter. The 1st respondent even after my demand did not submit the license since he was not having it." In his cross- examination he has said that it is the inspector of 9 (1998) 9 SCC 160
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NC: 2024:KHC-K:4558 MFA No. 200592 of 2018 C/W MFA No. 200593 of 2018 MFA.CROB No. 200078 of 2021 MFA.CROB No. 200080 of 2021 Motor Vehicles who is required to check whether the licence is there but he had not informed the Inspector of Motor Vehicles that the 1st respondent was not having a license since he through it was not necessary. In our view, this evidence is not sufficient to discharge the burden which was cast on the Insurance Company. It did not summon the driver of the vehicle. No record from the Road Transport Authority has also been produced. In these circumstances, the Insurance Company has not discharged the burden cast upon it under Section 96 (2) (b) (ii) of the Motor Vehicles Act, 1939. the impugned order of the High Court is, therefore, set-aside and the order of the Tribunal is restored. The appeal is allowed accordingly, No order as to costs."
35. In the case on hand, the insurer was not able to establish before the Tribunal that the driver of the offended vehicle had no valid and effective driving license to drive the said class of vehicle. The insurer did not disclose the source of information to contend that the driver of the offended vehicle had no valid and effective
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NC: 2024:KHC-K:4558 MFA No. 200592 of 2018 C/W MFA No. 200593 of 2018 MFA.CROB No. 200078 of 2021 MFA.CROB No. 200080 of 2021 driving license. The contention of the insurer appears to be based on the presumption, assumption and surmises. Merely, the owner has failed to produce driving license of the driver of the offended vehicle, is not sufficient to hold that the driver of the offended vehicle had no valid and effective driving license. There was no evidence on record to show that the owner had obtained a copy of the driving license from the driver of the vehicle. The insurer did not try to secure the information from the driver of the vehicle or at least to secure the driving license number so that it could secure the true copy of the said license from the RTO. Therefore, the insurer utterly failed to establish that the driver of the offended vehicle had no valid and effective driving license to drive the said class of vehicle. Hence, said contention of the insurer has not liable to pay the compensation is proved. Accordingly, question No.1 is answered in the affirmative.
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NC: 2024:KHC-K:4558 MFA No. 200592 of 2018 C/W MFA No. 200593 of 2018 MFA.CROB No. 200078 of 2021 MFA.CROB No. 200080 of 2021 Regarding Question No.2 :-
36. Let us go to the second point regarding the quantum of compensation awarded by the Tribunal.
37. In MVC.No.89/2015 the Tribunal has accepted the age of the deceased as 34 years. His notional income as Rs.6,000/- per month; deducted 1/4th towards personal expenses, applied multiplier as 16 and the calculated the compensation under the head of loss of dependency. The contention of the claimants that income assessed by the Tribunal is on much lower side. According to their contention, the deceased was earning Rs.20,000/- per month. Admittedly, the claimants have not produced any reliable materials on record to accept their contention. Therefore, the notional income of the deceased has to be assessed. As per the chart prepared by the Karnataka Legal Services Authority the notional income of the victim could be taken as Rs.7,500/- per month.
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NC: 2024:KHC-K:4558 MFA No. 200592 of 2018 C/W MFA No. 200593 of 2018 MFA.CROB No. 200078 of 2021 MFA.CROB No. 200080 of 2021
38. As per the law laid by the Hon'ble Supreme Court in the case of Pranay Shethi (as referred supra), 40% of the income has to be added towards future prospects when the age of the deceased was less than 40 years. In this case, undisputedly the age of the deceased was 34 years. Therefore, 40% of the income has to be added towards future prospects. The multiple applicable is 16 and 1/4th sall be deducted towards personal expenses. On the basis of the said figures, the compensation under the head of loss of dependency is recalculated.
39. The Tribunal has not awarded just and reasonable amount of compensation under the conventional head. Therefore, as per law laid down in the case of Pranay Shethi (supra) and Magma General Insurance Company Limited (supra), the compensation is to be enhanced on conventional heads. Accordingly, the following amount of compensation is awarded :-
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NC: 2024:KHC-K:4558
MFA No. 200592 of 2018
C/W MFA No. 200593 of 2018
MFA.CROB No. 200078 of 2021
MFA.CROB No. 200080 of 2021
Sl. Heads of Compensation Amount
No. (in Rs.)
01. Loss of dependency 15,12,000/-
(Rs.7,500/-+40%x12x16 - ¼)
02. Loss of consortium 02,40,000/-
03. Loss of Estate 00,15,000/-
04. Funeral expenses 00,15,000/-
Total 17,82,000/-
40. The claimants are entitled for enhanced
compensation of Rs.7,33,000/-. They are also entitled for interest at the rate of 6% on the enhanced amount of compensation from the date of claim petition till the date of its realization excluding the delayed period of 605 days in filing the appeal.
41. In MVC.No.90/2015, the similar calculation needs to be made as calculated in this case also. In the said case also the claimants have contended that the deceased was earning Rs.20,000/- per month who was aged about 45 years. The Tribunal assessed the age of the
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NC: 2024:KHC-K:4558 MFA No. 200592 of 2018 C/W MFA No. 200593 of 2018 MFA.CROB No. 200078 of 2021 MFA.CROB No. 200080 of 2021 deceased as 50 years and income as Rs.6,000/- per month. The contention of the claimants that the income of the deceased on lower side. As per the chart prepared by the Karnataka Legal Services Authorities, the notional income of the deceased could be taken as Rs.7,500/- per month. As held in the case of Pranaya Shethi, (referred supra), 25% of the said income has to be added towards future prospects, since age of the deceased is 42 years. The deceased left behind him 07 dependents. Therefore, 1/5th of his income shall be deducted towards his personal expenses. Undisputedly, the multiplier applicable is 16. On the basis of the said calculations loss of dependency is recalculated.
42. The compensation awarded under the conventional heads are on lower side, which needs to be awarded on the basis of law laid down in the case of Pranay Shethi, (supra) as well as in the case of Magma General Insurance Company Limited, (referred supra). Accordingly, the following amount of calculation is recalculated :-
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NC: 2024:KHC-K:4558
MFA No. 200592 of 2018
C/W MFA No. 200593 of 2018
MFA.CROB No. 200078 of 2021
MFA.CROB No. 200080 of 2021
Sl. Heads of Compensation Amount
No. (in Rs.)
01. Loss of dependency 14,40,000/-
(Rs.7,500/-+25%x12x16 - 1/5)
02. Loss of consortium 02,80,000/-
03. Loss of Estate 00,15,000/-
04. Funeral expenses 00,15,000/-
Total 17,50,800/-
43. The claimants are entitled for enhanced
compensation of Rs.8,16,000/-. They are also entitled for interest at the rate of 6% on the enhanced amount of compensation from the date of claim petition till the date of its realization excluding the delayed period of 594 days in filing the appeal.
44. For the above said discussion, I answered the question No.2 partly in the affirmative and proceed to pass the following;
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NC: 2024:KHC-K:4558 MFA No. 200592 of 2018 C/W MFA No. 200593 of 2018 MFA.CROB No. 200078 of 2021 MFA.CROB No. 200080 of 2021 ORDER I. The appeal filed in MFA.No.200592/2018 and MFA.No.200593/2018 are dismissed.
II. The Cross-Objection No.200781/2021 and Cross- Objection No.200080/2021 are allowed in part. III. The impugned judgment and award passed by the Tribunal in MVC.No.89/2015 and MVC.No.90/2015 are modified as under:-
A) The claimants in MVC.No.89/2015 are entitled for enhancement of Rs.7,33,000/- with the interest at the rate of 6% per annum on the enhanced amount of compensation from the date of petition till its realization excluding the delay period of 605 days in filing the appeal.
B) The claimants in MVC.No.90/2015 are entitled for enhancement of Rs.8,16,000/- with the interest at the rate of 6% per annum on the enhanced amount of compensation from the date of petition till its realization excluding the delay period of 594 days in filing the appeal.
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NC: 2024:KHC-K:4558 MFA No. 200592 of 2018 C/W MFA No. 200593 of 2018 MFA.CROB No. 200078 of 2021 MFA.CROB No. 200080 of 2021 C) The respondent No.2 shall deposit the enhanced amount of compensation with the interest within a period of 08 weeks from the date of receipt of copy of this order.
D) The orders of the Tribunal pertaining to the deposit, release and apportionment are not disturbed. Whatever amount deposited by the insurer including the statutory deposit shall be transmitted to the Tribunal for release of the amount in favour of the claimants, if it was already not paid.
The registry is directed to send back the Trial Court records along with copy of this judgment.
Sd/-
JUDGE KJJ List No.: 1 Sl No.: 42 CT:PK