Karnataka High Court
Sri Govindappa S/O Padda Thimmanna vs Smt Kullayamma S/O Yerriswamy on 9 September, 2022
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 21390 of 2011
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 9TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 21390 OF 2011
(MV-D)
BETWEEN:
1. SRI GOVINDAPPA S/O PADDA THIMMANNA,
AGE: 46 YEARS, OCC: AGRICULTURIST
2. MINOR VEDAVATHI, D/O GOVINDAPPA,
AGE: 8 YEARS, MINOR
3. MINOR RAJESH, S/O GOVINDAPPA,
AGE:6 YEARS,
APPELLANT Nos.2 AND 3 ARE MINORS, REPRESENTED BY
THEIR FATHER APPELLANT No.
ALL ARE RESIDING AT VIRUPAPURA VILLAGE,
KALAYANDURGA TALUK, ANANTHAPUR DISTRICT.
...APPELLANTS
(BY SRI. Y LAKSHMIKANT REDDY, ADVOCATE)
Digitally
AND:
signed by
John John Doe
Date:
1. SMT KULLAYAMMA S/O YERRISWAMY,
Doe 2022.09.19
12:20:29
+0530 AGE 39 YEARS, OWNER OF AUTO RICKSHAWNO.AP 02
4592, R/O D.NO.2 120 KAMARUPALLI VILLAGE AND
POST,ANANTHAPUR DISTRICT.A.P.
2. THE DIVISIONAL MANAGER,
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MFA No. 21390 of 2011
THE ORIENTAL INSURANCEJ COMPANY LIMITED,
BELLARY.
...RESPONDENTS
(BY SRI. S.C.JAINAR, ADVOCATE FOR R2,
NOTICE TO R1 SERVED)
THIS APPEAL IS FILED U/S.173(1) OF MV.ACT, AGAINST THE
JUDGEMENT AND AWARD DTD:20-10-2010, PASSED IN MVC
NO.361/2010 ON THE FILE OF THE MEMBER, MACT.NO.XII, BELLARY,
PARTLY ALLOWING THE CLIAM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard learned counsel for the appellants and learned counsel for respondent No2-Insurance Company.
2. This appeal is filed challenging the judgement and award dated 20.10.2010 passed in MVC No.361/2010 on the file of MACT-XIL at Ballari, questioning the quantum of compensation and liability fastened on the insured.
3. Factual matrix of the case of the claimants before the Tribunal is that Smt.Umakka wife of Govindappa died in a road traffic accident occurred on -3- MFA No. 21390 of 2011 26.02.2009 at bout 3.00 p.m. and hence claim was made before the Tribunal claiming compensation. The claimants in order or substantiate their case, examined husband of deceased as P.W.1 and got marked documents. The Tribunal after considering both the oral and documentary evidence on record, awarded compensation of Rs.3,48,400/- with 6% interest. The Tribunal also directed respondent Nos.1 and 2 jointly and severally to pay the compensation and exonerated the Insurance Company on the ground that driver was not having driving licence at the time of accident. Hence, the present appeal is filed by the claimants.
4. Learned counsel appearing for the claimants would vehemently contend that the driver was having LMV driving licence which was obtained from RTA of Ananthpur and respondent No.1 was authorised to drive non- transport vehicle from 23.03.2004 to 23.04.2024 and respondent No.3 by leading his evidence stated that the driver was also authorized to drive tractor-trailer, non- -4- MFA No. 21390 of 2011 transport vehicle and the vehicle involved in the accident is three wheeler which was carrying passengers and hence, there is violation of policy condition. Hence, the Tribunal fastened liability on the insurer. The very approach of the Tribunal that driver was not holding driving licence to drive LMV is erroneous. If it is LMV or non-transport passengers vehicle, the Apex Court in the case of MUKUND DEWANGAN VS. ORIENTAL INSURANCE CO., LTD., (2017) 14 SCC 663), held that Section 10 of the Act requires a driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles, there may be different kinds of vehicles. If they fall in the same class of vehicles, no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also, a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles.
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5. He would also contend that the Tribunal has not awarded just and reasonable compensation and only considered the income at Rs.2,400/- per month and the deceased was aged 28 years and future prospects is to be added at 40% and 1/3rd should be deducted towards personal expense of the deceased.
6. Per contra, learned counsel for respondent No.2-Insurance Company would submit that in order to prove violation of policy conditions, Insurance Company also examined one witness as RW.1 and got marked Ex.R.2-driving licence.
7. on perusal of Ex.R.2, it is clear that the driver was not having driving licence to drive the passengers three wheeler vehicle. Counsel also submits that respondent No.2 was having driving licence to drive non- transport tractor-trailer and he was not having any driving licence to drive non-transport passenger authrickshaw and in the evidence of RW.1 also nothing is elicited. -6- MFA No. 21390 of 2011
8. In reply to the arguments, counsel for the claimants would contend that in the cross-examination he categorically admits that policy is a package policy and vehicle involved in the accident is also LMV vehicle and also the same is a passenger vehicle and in terms of Ex.R.2 the driver was having driving licence to drive tractor-trailer and tractor is also a LMV vehicle. It is suggested that when he was having driving licence to drive non-transport vehicle, which is the LMV, company is liable to pay the compensation.
9. Counsel appearing for respondent-Insurance Company also submits that judgement reported in 2009 ACJ 1411 in the case of Oriental Insurance Company vs. Angad Kol and Others is applicable to the facts of the case on hand. Hence, the Tribunal has rightly fastened liability on the insured and not against the Insurance Company.
10. In view of the rival contentions of the parties, the following points would arise for consideration: -7- MFA No. 21390 of 2011
i. Whether the Tribunal has committed an error in fastening liability on the insurer instead of Insurance Company?
ii. Whether the Tribunal has committed an error
in not awarding just and reasonable
compensation as contended?
iii. What order?
11. Regarding Point No.1: Having heard the learned counsel for the parties and on perusal of the material on record, admittedly the deceased was travelling in autorickshaw which is passenger vehicle and accident has occurred due to rash and negligence on the part of the driver of the autorickshaw. When the vehicle was turtled the deceased sustained injures and succumbed to injures.
The Tribunal while considering the issue with regard to violation of policy particulars, in view of the defence taken by respondent No.3 that respondent No.2 has violated the terms of the policy and the same is discussed in para No.8. The Tribunal also taken note of Ex.R.1 i.e. policy which is valid. RW.1 in his evidence deposes that as per -8- MFA No. 21390 of 2011 the records Ex.R.1 has no licence to drive tractor-trailer and seating capacity of the said vehicle as per Ex.R.1 is 3+1 i.e. 4 including the driver and at the time of accident the said vehicle was carrying 9 persons. Claimants have produced Ex.P.1-110 notice issued by the police, wherein in column No.7(b)(c), the particulars of driver are available and he was authorised to drive the tractor-trailer for the period from 23.03.2004 to 23.03.2024 issued by RTA, Ananthapur in Andra Pradesh. It is also mentioned n column No.7(c) as non-transport. Ex.R.2 is an endorsement obtained from RTA of Ananthapur, wherein respondent No.1 was authorised to drive non-transport vehicle from 23.03.2004 to 23.03.2024.
12. Having considered this aspect, the Tribunal comes to the conclusion that vehicle involved is three wheeler which was carrying passengers and hence, there is violation but failed to take note of answers elicited from the mouth of RW.1 in the cross-examination that he categorically admits that driver was having driving licence -9- MFA No. 21390 of 2011 to drive non-transport vehicle and vehicle involved in the accident is also a LMV and RW.1 also admitted that the driver was also having driving licence to drive non- transport LMV vehicle. When such being the case and when the vehicle involved is LMV and driver was also having driving licence to drive LMV and also non-transport vehicle which was tractor-trailer, the Tribunal has committed an error in fastening liability on the insured.
13. The decision in Angad Kol supra, the Apex Court has held that when the vehicle was a goods carriage vehicle and which has dashed against a person and she sustained fatal injuries, the Insurance Company cannot absolve its liability on the ground that the driver did not possess a valid and effective driving licence and that the driver had license to drive LMV transport vehicle whereas he was driving transport vehicle. The definition of the `light motor vehicle' brings within its umbrage both `transport vehicle' or `omnibus', indisputably, as would be noticed infra, a distinction between an effective licence
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MFA No. 21390 of 2011 granted for transport vehicle and passenger motor vehicle exists. Licence having been granted for a period of 20 years, a presumption, therefore, arises that it was meant for the purpose of a vehicle other than a transport vehicle. Had the driving licence been granted for transport vehicle, the tenure thereof could not have exceeded to three years. Whether the driver had a valid and effective driving licence or not, the insurer is liable to pay compensation to the claimants and then recover the same from the owner and driver of vehicle.
14. In the case on hand, as I have already pointed out that the driver had the driving licence only to drive the LMV transport vehicle i.e., tractor and trailer and the vehicle in question is a transport vehicle i.e., passenger vehicle and when such being the case, the Tribunal has committed an error in fastening the liability on the driver and owner of the vehicle.
15. The Hon'ble Apex Court in MUKUND DEWANGAN VS. ORIENTAL INSURANCE CO., LTD., (2017)
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MFA No. 21390 of 2011 14 SCC 663), held that even if the driver had a LMV licence and he was driving the non transport vehicle, the transport endorsement is not necessary. When such being the case, the very contention of the learned counsel for the Insurance Company cannot be accepted and there is a force in the contention of the learned counsel appearing for the claimants and hence, the liability fastened on the insured and the driver requires to be set aside. Regarding point No.2:
16. Now, coming to the aspect of the quantum of compensation, the deceased was aged about 28 years and was an agricultural coolie. The Tribunal has taken the income of the deceased only at Rs.2,400/- p.m. The accident is of the year 2009. In the absence of proof of income, notional income of Rs.5,000/- p.m. ought to have been taken. Having considered the age of the deceased as 28 years, 40% has to be added to the income towards future prospects which comes to Rs.7,000/- p.m. Out of the same, 1/3rd has to be deducted towards personal
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MFA No. 21390 of 2011
expenses of the deceased since the claimants are three in numbers and the same comes to Rs.4,667/- p.m. The correct multiplier to the age group of the deceased is 18. Accordingly, the claimants are entitled to a sum of Rs.10,08,072/- (Rs.4,667X12X18) towards loss of dependency.
17. Apart from that, the claimants are also entitled for a sum of Rs.40,000/- each towards loss of consortium and love and affection which comes to Rs.1,20,000/-
18. The claimants are also entitled to a sum of Rs.33,000/- towards loss of estate and funeral expenses.
19. In all, the claimants are entitled to a sum of Rs.11,61,072/- as against the sum of Rs.3,48,400/- awarded by the Tribunal.
20. Regarding point No.3: In view of the discussions made above, I pass the following:
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MFA No. 21390 of 2011
ORDER
i) The appeal is allowed in part,
ii) The judgment and award dated 20.10.2010
passed by the MACT-XII, Ballari, in
M.V.C.No.361/2010 stands modified.
iii) The claimants are entitled to total
compensation of Rs.11,61,072/- as against the sum of Rs.3,48,400/- awarded by the Tribunal.
iv) The enhanced compensation shall carry interest at the rate of 6% p.a. from the date of petition till realization.
v) The compensation amount shall be apportioned in the ratio of 60% to claimant No.1 and 20% each to claimants 2 and 3.
vi) Out of the share of claimant No.1, 50% shall be released in his favour with proportionate interest and remaining 50% shall be kept in fixed deposit in any nationalized bank for a period of three years. The entire share of
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MFA No. 21390 of 2011
claimants 2 and 3 shall be kept in fixed deposit in any nationalized bank till they attaining the age of majority.
vii) The Insurance Company is directed to pay the difference amount within six weeks.
viii) The registry is directed to send back the TCR forthwith.
sd JUDGE SH,JM List No.: 1 Sl No.: 12