Karnataka High Court
The Divisional Manager vs Shivanand S/O Yamanappa Parsi on 20 September, 2013
Author: K.L.Manjunath
Bench: K.L.Manjunath
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20 T H DAY OF SEPTEMBER 2013
BEFORE
THE HON'BLE MR. JUSTICE K.L.MANJUNATH
M.F.A No.21077/2010 (MV)
BETWEEN:
THE DIVISIONAL MANAGER
THE NEW INDIA ASSURANCE COMPANY LIMITED
REP. BY ITS DIVISIONAL MANGER
OPP. KITTEL COLLEGE, P.B. ROAD, DHARWAD
THROUGH REGIONAL MANAGER
NEW INDIA ASSURANCE COMPANY LIMITED
REGIONAL OFFICE, 2-B UNITY BUILDING ANNEXE
P.KALAINGA RAO ROAD, BANGALORE-560 027
... APPELLANT
(BY SRI M.K. SOUDAGAR, ADVOCATE)
AND:
1. SHIVANAND S/O YAMANAPPA PARSI
AGE 23 YEARS, OCC: COOLIE
R/O HUNSUR, TAL: BADAMI
NOW AT HIRESHELLIKERI, TAL:BAGALKOT
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2. RANGANATH S/O YAMANAPPA PARSI
AGE 21 YEARS, OCC: COOLIE
R/O HUNASUR, TAL:BADAMI
NOW AT HIRESHELLIKERI, TAL:BAGALKOT
3. SHRINIVAS S/O YAMANAPPA PARSI
AGE 17 YERS, OCC: COOLIE
R/O HUNASUR, TAL: BADAMI
NOW AT HIRESHELLIKERI, TAL:BAGALKOT
4. YALLAWWA W/O PANDAPPA NAIKAR
AGE 37 YEARS, OCC:HOUSEHOLD
R/O HUNASUR, TAL:BADAMI
NOW AT HIRESHELLIKERI, TAL:BAGALKOT
5. RANGAWWA W/O BASAPPA TALWAR
AGE 35 YEARS, OCC:HOUSEHOLD
R/O HUNASUR, TAL: BADAMI
NOW AT HIRESHELLIKERI, TAL:BAGALKOT
6. KESHAVVA W/O BAILAPPA TALWAR
AGE 30 YEARS, OCC: HOUSEHOLD
R/O ASANGI, TAL: BADAMI
7. YAMANAVVA W/O HANUMANT TALWAR
AGE 32 YEARS, OCC: HOUSEHOLD
R/O KARADIGUDD, TAL:BAGALKOT
8. DUNDAWWA W/O JUMBANNA TALWAR
AGE 30 YEARS, OCC: HOUSEHOLD
R/O KARADIGUDD, TAL: BAGALKOT
9. MANJAWWA AYYAPPA NAIKAR
AGE 28 YEARS, OCC: HOUSEHOLD
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R/O HALAKURKI, TAL: BADAMI
10. K.B.KENCHANGOUDAR
AGE MAJOR , OCC: BUSINESS
R/O GONDANAL, TAL: KOPPAL
11. TUKARAM V. HORAKERI
AGE MAJOR OCC: DRIVER
R/O KULAGERI CROS, TAL: BADAMI
... RESPONDENTS
(BY SRI P.N. HOSAMANE, ADVOCATE FOR R1-R9.
SRI GIRISH S. HIREMATH, ADVOCATE FOR R10.
R11 - SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS
FILED UNDER SECTION 173(1) OF THE M.V.ACT,
1988, AGAINST THE JUDGMENT AND AWARD
DATED 24.11.2009 PASSED IN MVC NO.87/2007
ON THE FILE OF THE MEMBER MACT NO.III,
BAGALKOT, AWARDING COMPENSATION OF
RS.9,95,000/- ALONG WITH INTEREST AT THE
RATE OF 6% P.A. FROM THE DATE OF PETITION
TILL ITS REALISATION.
THIS APPEAL COMING ON FOR FINAL
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The legality and correctness of the judgment and award passed by the M.A.C.T., Bagalkot in -4- MVC No.87/2007, dated 24 t h November 2009 is called in question by the appellant Insurance Company questioning the liability saddled on it and also the quantum of compensation awarded by the Tribunal.
2. On account of the death of one Yamanappa parasi, the claim petition was lodged. The accident is occurred on 10.07.2006, while the deceased was riding the motorcycle bearing No.GA-02/L-2757, a tempo trax bearing No.KA- 37/4304 came from opposite direction and dashed against the deceased's motorcycle near Guledgudd Chakra Bunglow, as a result of which the deceased succumbed to the injuries.
3. The claim petition was lodged by his mother and his children. Though there were four claimants, the Tribunal deducting 1/3 r d towards -5- personal expenses of the deceased by applying the multiplier of 11, assessed the loss of dependency of Rs.9,68,000/- and awarded a sum of Rs.27,000/- under the conventional heads. Thus, in all Rs.9,95,000/- has been awarded and the liability is saddled on the Insurance Company.
4. The learned counsel appearing for the Insurance Company contends that the driver of the tempo trax had a valid licence to drive only the light motor vehicle "non-transport" and the vehicle involved in the accident is a "transport vehicle", which was carrying the passengers. Therefore, the liability cannot be fastened on the appellant. He also contends that instead of applying the split multiplier the Tribunal has applied the multiplier of 11. According to him -6- since the deceased was aged about 54 years, the salary income of the deceased could have been taken for a period of 6 multiplier and for the remaining 5 multiplier, should have been reduced to half. Therefore, he requests the Court to set aside the judgment and award passed by the Tribunal by allowing the appeal.
5. Per contra, the learned counsel appearing for the respondents contend that the Tribunal has committed an error in not considering that there were four dependents and 1/4 t h was required to be deducted as against the same 1/3 r d is deducted. In addition to that the compensation awarded under the conventional heads is on the lower side and requires to be enhanced. He further submits that the future -7- promotional aspects of the deceased has not been considered.
6. So far as the liability is concerned, he contends that in view of the judgment of the Hon'ble Apex Court in the case of S.Iyyapan vs. M/s.United India Insurance company Ltd., and another reported in 2013 AIR SCW 3941, the arguments advanced by the learned counsel appearing for the Insurance Company has to be rejected.
7. Having heard the learned counsel appearing for the parties, this Court has to consider the following two points:
i) Whether the liability saddled on the appellant is required to be reversed or modified?-8-
ii) Whether the quantum of
compensation awarded is also
required to be reduced?
8. So far as first point is concerned the Hon'ble Apex Court in the case of S.Iyyapan vs. M/s.United India Insurance company Ltd., and another reported in 2013 AIR SCW 3941, in para-19 of the judgment held as under:
"19. In the instant case, admittedly the driver was holding a valid driving licence 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 ge t any endorsement in the driving licence 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 compensation because the driver was not holding the licence to drive the commercial vehicle. The impugned judgment is, therefore, liable to be set aside."-9-
In view of the same, the liability saddled on the appellant has to be confirmed.
9. Sri M.K.Soudagar, the learned counsel relied on para 18 of the same judgment contends that the appellant may be permitted to pay and recover the amount from the respondents, para- 18 of the judgment reads as under:
"18. Reading the provisions of Sections 146 and 147 of the Motor Vehicles Act, it is evidently clear that in certain circumstances the insurer's right is safeguarded but in any event the insurer has to pay compensation when a valid certificate of insurance is issued notwithstanding the fact that the insurer may proceed against the insured for recovery of the amount. Under Section 149 of the Motor Vehicles Act, the insurer can defend the action inter alia on the grounds, namely, (i) the vehicle was not driven by a named person, (ii) it was being driven by a person who was not having a duly granted licence, and (iii) person driving the vehicle was
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disqualified to hold and obtain a driving licence. Hence, in our considered opinion, the insurer cannot disown its liability on the ground that although the driver was holding a licence to drive a light motor vehicle but before driving light motor vehicle used as commercial vehicle, no endorsement to drive commercial vehicle was obtained in the driving licence. In any case, it is the statutory right of a third party to recover the amount of compensation so awarded from the insurer. It is for the insurer to proceed against the insured for recovery of the amount in the event there has been violation of any condition of the insurance policy."
10. On the combined reading of para-18 and 19, this Court is of the opinion that when the licence was there for the driver to drive, he can also drive "non-transport goods" passenger vehicle without any valid endorsement. Therefore, the liability fastened on the appellant is confirmed.
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11. So far as the quantum of compensation is concerned, admittedly the deceased was aged about 54 years. He died living behind him his aged mother and three sons. One son was aged about 20 years. Though, he was aged 20 years at the time of accident, he was non-earning member and depending upon the father and other two sons were minors. In such circumstances, the Tribunal was required to deduct 1/4 t h towards personal expenses as against the 1/3 r d .
12. The compensation awarded under the conventional heads is also inadequate and the same is not in accordance with the judgment of the Hon'ble Supreme Court in the case of Rajesh and others vs. Rajbir Singh and others reported in 2013 ACJ 1403, if we reconsider these things and even if I accept the argument of
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Sri M.K.Soudagar that the split multiplier has to be accepted, then also the compensation awarded by the Tribunal would be more or less the same. In the circumstances, this Court does not find any reason to interfere with the judgment and award of the Tribunal.
Accordingly, this appeal is dismissed. The amount, if any, in deposit is ordered to be transferred to the Tribunal.
Sd/-
JUDGE Vnp*