Karnataka High Court
Smitha R Nair vs Shiva Shankar on 23 July, 2013
Bench: N.K.Patil, B.Manohar
1
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 23RD DAY OF JULY 2013
PRESENT
THE HON'BLE MR.JUSTICE N.K.PATIL
AND
THE HON'BLE MR. JUSTICE B.MANOHAR
MFA.NO.1631/2004 C/W MFA.CROB.179/2009(MV)
MFA.NO.1631/2012
BETWEEN:
1. Mrs.Smitha.R.Nair,
W/o.Late B.R.Suresh,
Aged 24 years.
2. Master Mrinal Suresh,
S/o.Late B.R.Suresh,
Aged 4 years,
2nd Petitioner is minor
Represented by 1st Petitioner,
Mother as natural guardian.
Both are residing at
No.44, Sarovar, 1st Main Road,
Muniswamy Reddy Layout,
Ramamurthy Nagar,
Bangalore - 16. ... APPELLANTS
(By Sri.M.Babu, Advocate)
2
AND:
1. Sri.Shiva Shankar,
Father's name not known,
R/at No.380/A, Sastrynagar,
10th Cross, 9th Main Road,
BSK 2nd Stage,
Bangalore - 560 029.
2. The Oriental Insurance Co,
Reptd., by its Divisional Manager,
Lakshmi Towers, No.200/3,
1st Floor, adjacent to Bangalore Hospital
R.V.Road, Bangalore - 560 004. ... RESPONDENTS
(By Smt.N.Padmavathy, Adv. For R1and Sri.A.M.Venkatesh,
Adv. for R2)
This MFA is filed U/S.173(1) of MV Act against the
Judgment and award dated 21.08.2003 passed in
MVC.No.1261/2002 on the file of the V Additional Judge,
Court of Small Causes, Member, MACT, Mayohall Unit,
Bangalore (SCCH.20), partly allowing the claim petition for
compensation and seeking enhancement of compensation.
MFA.CROB.NO.179/2009
BETWEEN:
M/s.Oriental Insurance Company Ltd.,
Regional Office
Residency Road Cross,
3
No.44-45,
Leo Shopping Complex,
Bangalore-25. ... Cross Objector
(By Sri.A.M.Venkatesh, Advocate for Cross objector)
AND:
1. Mrs.Smitha R.Nair
W/o.Late D.R.Suresh,
Aged 26 years,
2. Master Mrimal Suresh,
S/o.Late B.R.Suresh,
Aged 10 years.
(2nd Petitioner since minor is represented
by major and natural guardian No.1 above)
No.44, Sarovar, 1st Main Road,
Muniswamy reddy layout,
Ramamurthynagar,
Bangalore -560 016.
3. Sri.Shivashankar,
Father's name not known,
Major,
R/o.No.380/A,
Shastrinagar,
10th Cross, 9th Main Road,
BSK II Stage,
Bangalore - 29. .... Respondents
(By Sri.M.Babu, Advocate for R1 & R2)
4
This MFA.Crob in MFA.No.1631/04 filed U/O.41 Rule
22 of CPC, against the Judgment and award dated
21.08.2003 passed in MVC.No.1261/2002 on the file of the
Vth Additional Judge, Member, MACT, Court of Small
Causes, Mayohall Unit, Bangalore, awarding a compensation
of Rs.5,25,564/- with interest @ 6% p.a. from the date of
petition till the date of realization.
This MFA along with MFA.Crob having been heard and
reserved and coming on for pronouncement of Judgment this
day, B.MANOHAR J., delivered the following:
JUDGMENT
The appellant/claimant and the Insurer have filed the appeal and cross-objection respectively, being aggrieved by the judgment and award dated 21-8-2003 made in MVC No.1261/2002 passed by the Motor Accidents Claims Tribunal and Additional Judge, Small Causes Court, Bangalore.
2. MFA No.1631/2004 is filed by the wife and minor son of the deceased B.R.Suresh being not satisfied with the 5 quantum of compensation awarded by the Tribunal contending that the deceased Suresh was working as a Stores Manager in the Food World. On 26-9-2001 at about 11.15 p.m., while the deceased was returning home in his motor bike bearing registration No.KA-03/Y-7374, a matador Van bearing registration No.KA-05/1498 driven by its driver in a rash and negligent manner dashed against the motorbike, which the deceased was riding. As a result of which, the deceased fell down and sustained grievous injuries and succumbed to injuries on the spot. In the claim petition, the claimants have contended that the deceased was aged about 31 years and getting salary of Rs.10,000/- p.m. Due to the death of the bread earner, the family has became destitute. The deceased was hale and healthy prior to death and sought for compensation of Rs.20,00,000/- as against the owner and Insurer of the offending vehicle.
3. The owner of the vehicle filed objections to the claim petition denying the rash and negligent driving by the driver 6 of the matador van. However, they contended that he died due to the rash and negligent driving of the motorbike by the deceased himself. The matador van is fully covered by the Insurance and sought for dismissal of the claim petition as against him.
4. The Insurer of the vehicle in their objections contended that the accident has occurred due to the rash and negligent driving of the rider of the motorbike. Further, the driver of the matador van did not possess the effective driving license to drive the matador van and the claimants are not the legal representatives of the deceased and sought for dismissal of the claim petition as against the Insurer.
5. The first claimant was examined as P.W.1. The Officer of the Food World was examined as P.W.2 and also examined one of the eye-witness as P.W.3 and got marked the documents as Ex.P1 to Ex.P9. The Officer of the Insurance 7 Company was examined as R.W.1 and got marked the documents as Ex.R1 and Ex.R2.
6. The Tribunal after considering the oral and documentary evidence adduced by the parties and on perusal of the FIR, copy of the charge sheet, PM report, IMV report, Mahazar and copy of the sketch came to the conclusion that due to the rash and negligent driving of the matador van by its driver, the accident has occurred. The driver had effective driving license to drive the matador van. The Police had also filed charge sheet against the driver of the matador van. Hence, the actionable negligence is on the part of the driver of the matador van and the claimants are the wife and children of the deceased and they are entitled for compensation.
7. Though the claimants contended that the deceased was getting salary of Rs.10,000/- per month and examined P.W.2, one of the Officers of the Food World to prove the same, he is 8 not an authorized person to issue salary certificate. Hence the Tribunal discarded the salary certificate marked as Ex.P7 and taken the salary of the deceased as Rs.4,000/- p.m. Out of which, 1/3rd was deducted towards personal expenditure and the net income of the deceased was taken as Rs.2,667/- p.m. Taking into consideration age of the deceased as 31 years, applying the multiplier of 16, the Tribunal awarded compensation of Rs.5,12,064/-towards loss of dependency and Rs.13,500/- towards conventional heads. In all, a sum of Rs.5,25,564/- with interest at the rate of 6% from the date of petition till realization and directed the Insurer to pay the compensation within a period of one month. The claimants being dissatisfied with the quantum of compensation awarded by the Tribunal have filed this appeal.
8. The Oriental Insurance Company filed Cross-objection No.179/2009 challenging the very same judgment and award passed by the Tribunal mainly contending that the driver of the matador van did not possess the effective driving license 9 to drive the goods vehicle, thereby violated the conditions of the policy. The driver of the matador van was having LMV and he was not authorized to drive HMV, hence, the Insurer is not liable to pay compensation. Fastening liability on the Insurer to compensate the claimants is contrary to law and sought for allowing the cross-objection by setting aside the judgment and award insofar as the Insurer is concerned.
9. We have carefully considered the arguments addressed by the parties and perused the oral and documentary evidence.
10. The records clearly disclose that the husband of the first appellant and the father of the second appellant B.R.Suresh died in a road traffic accident that occurred on 26-9-2001 at about 11.15 p.m. while he was returning home in his motorbike. The documents produced by the claimants clearly disclose that due to the rash and negligent driving of the matador van by its driver, the rider of the motor bike died on 10 the spot. The spot mahazar and the sketch clearly disclose that the accident has occurred due to the negligence on the part of the driver of the offending vehicle. The actionable negligence is on the part of the driver of the offending vehicle. The Police had filed a charge sheet against the driver of the offending vehicle.
11. With regard to the quantum of compensation is concerned, the deceased was working as Stores Manager in the Food World. Though the salary certificate has been produced by the claimants, it is not issued by an authorized officer of the Food World. However, the monthly salary of Rs.4,000/- taken by the Tribunal is on the lower side. Further, as per the judgment of the Hon'ble Supreme Court, the future prospectus was also not considered by the Tribunal. Admittedly, the deceased was aged about 31 years as on the date of the accident. Taking into consideration the age, avocation of the deceased and the year of accident, it is 11 appropriate to take the salary of Rs.5,000/- p.m. and 50% should be added to the salary towards future prospectus as per the law laid down by the Hon'ble Supreme Court in the judgment reported in 2013 ACJ 1403 in the case of RAJESH AND OTHERS v/s RAJBIR SINGH AND OTHERS. The total salary comes to Rs.7,500/- p.m. If 1/3rd is deducted towards his personal expenses, the net amount comes to Rs.5,000/- p.m. Applying the multiplier of 16, the loss of dependency would come to Rs.9,60,000/-. (Rs.5,000/- x 12 x 16). Further, the claimants are entitled to Rs.45,000/- towards conventional heads. In all, entitled to 10,05,000/- as against Rs.5,25,564/- awarded by the Tribunal. Hence, the claimants are entitled to enhanced compensation of Rs.4,79,436/- with interest.
12. The contention of the Insurer in the cross-objection is that the driver of the offending vehicle did not possess the valid and effecting driving license to drive the matador van 12 and he was having the license to drive only LMV. Hence the liability of paying compensation cannot be fastened on the Insurer. The contention of the Insurer cannot be accepted in view of the latest judgment of the Hon'ble Supreme Court made in Civil Appeal No.4834/2013 in the case of S. IYYAPAN v/s M/S. UNITED INDIA INSURANCE COMPANY LTD. AND ANOTHER disposed off on 1-7-2013. The issue before the Hon'ble Supreme Court in the said appeal is -
"Can an Insurance Company disown its liability on the ground that the driver of the vehicle although duly licensed to drive the light motor vehicle but there was no endorsement in the license to drive the light motor vehicle used as a commercial vehicle. The said issue has been considered by the Apex Court at paragraph 18 of the judgment and held as under:
" 18. ........................
........................13
"Hence, in our considered opinion, the Insurer cannot disown its liability on the ground that although the driver was holding a license to drive a light motor vehicle but before driving the light motor vehicle used as commercial vehicle, no endorsement to drive commercial vehicle was obtained in the driving license. In any case, it is the statutory right of the third party to recover the amount of the compensation so awarded from the Insurer."
The Hon'ble Supreme Court further in paragraph 19 held as under:
"19. In the instant case, admittedly the driver was holding a valid driving license to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra Maxi Cab. Merely because the driver did not get any endorsement in the driving license to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed grave error of law in holding that the Insurer is not liable to pay 14 compensation because the driver was not holding the license to drive commercial vehicle."
In view of the authoritative pronouncement of law, the Insurance Company disowns its liability.
14. Further, Section 2(21) defines 'light motor vehicle' and Section 2(23) defines 'medium goods vehicle', which reads as under:
(21) 'Light Motor Vehicle' means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or a tractor or road-
roller the unladen weight of any of which, does not exceed 7500 kilograms.
(23) 'medium goods vehicle' means any goods carriage other than the light motor vehicle or a heavy goods vehicle.
15Reading of definition of 'light motor vehicle' makes it clear that if the laden weight of the vehicle is more than 7500 kilograms, it is a light motor vehicle.
15. In the instant case, admittedly the offending vehicle is a matador van and its laden weight is less than 7500 kilograms. Admittedly, the driver of the offending vehicle having the license of light motor vehicle is entitled to drive the said matador van. Hence, the Insurer is liable to compensate the claimants in view of the latest judgment of the Hon'ble Supreme Court referred to above. The judgments relied upon by the learned counsel appearing for the cross-objector reported in 2006 ACJ 1336 (NATIONAL INSURANCE CO. v/s KUSUM RAI AND OTHERS) and 2009 ACJ 1411 (ORIENTAL INSURANCE CO. LTD., v/s ANGADKOL AND OTHERS) are not applicable to the facts of the present case. 16
16. The Hon'ble Supreme Court in a judgment reported in 2008 ACJ 721 in the case of NATIONAL INSURANCE COMPANY LTD. v/s ANNAPPA IRAPPA NESARIA AND OTHERS, in paragraph 16 has held as under:
"16. It is evident that transport vehicle has now been substituted for 'medium goods vehicle' and 'heavy goods vehicle'. The light motor vehicle continued, at the relevant point of time, to cover both, light passenger carriage vehicle and light goods carriage vehicle. A driver who had a valid license to drive a light motor vehicle, therefore, was authorized to drive a light goods vehicle as well."
17. Hence, there is no substance in the contention raised by the cross-objector. Accordingly, we pass the following:
ORDER MFA 1631/2004 is allowed in part. The judgment and award dated 21-8-2003 made in MVC No.1261/2002 on the file of Motor Accident Claims Tribunal and Additional Judge, Court of Small Causes, Bangalore is modified. The claimants are entitled enhanced compensation of Rs.4,79,436/- with 17 interest at the rate of 6% p.a. from the date of petition till realization.
The MFA Crob.No.179/2009 filed by the Insurer is dismissed.
Out of the enhanced compensation, Rs.2,00,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled Bank, in the name of the second appellant for a period of 30 years with liberty to the first appellant to withdraw the interest accrued on it periodically till the second appellant attains the age of 21 years. From 22 years to 30 years, the second appellant is entitled to withdraw the interest accrued on it periodically.
Rs.1,50,000/- with proportionate interest shall be deposited in the Fixed Deposit in any Nationalized or Scheduled Bank in the name of the first appellant for a period of 10 years and renewable for another five years, with liberty to her to withdraw the interest accrued on it periodically. 18
The remaining amount of Rs.1,29,436/- with accrued interest shall be released in favour of the first appellant immediately, on deposit by the Insurer.
Office to draw the award, accordingly.
Sd/-
Judge Sd/-
Judge mpk/-*