Karnataka High Court
The General Manager vs Siddalingamma on 25 November, 2022
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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MFA No. 21 of 2017 C/W
MFA No. 3356 of 2016
MFA No. 1629 of 2017
MFA No. 4784 of 2017
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 21 OF 2017 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 3356 OF 2016(MV-D)
MISCELLANEOUS FIRST APPEAL NO. 1629 OF 2017(MV-D)
MISCELLANEOUS FIRST APPEAL NO. 4784 OF 2017(MV-D)
IN MFA NO.21/2017
Digitally signed BETWEEN:
by PAVITHRA B
Location: High THE BRANCH MANAGER
Court of
Karnataka CHOLAMANDALAM GENERAL
INSURANCE COMPANY LIMITED.,
DARE HOUSE, 2ND FLOOR,
NO.2, N.S.C. BOSE ROAD,
CHENNAI-01, TAMIL NADU STATE.
REPRESENTED BY ITS LOCAL BRANCH:
THE REGIONAL MANAGER,
CHOLAMANDALAM GENERAL INSURANCE
COMPANY LIMITED., REGIONAL OFFICE
UNIT NO.4, GOLDEN HIGHT COMPLEX,
RAJAJINAGAR,BANGALORE CITY.
BY IT S SENIOR MANAGER-CLAIMS
...APPELLANT
(BY SRI. O MAHESH., ADVOCATE)
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MFA No. 21 of 2017 C/W
MFA No. 3356 of 2016
MFA No. 1629 of 2017
MFA No. 4784 of 2017
AND:
1. SMT GOWRAMMA
AGE 46 YEARS,
W/O LATE DEVARAJEGOWDA
2. KUM: DIVYA,
AGED 25 YEAR
D/O LATE DEVARAJEGOWDA
3. SRI. DILIP KUMAR
AGE 23 YRS
S/O LATE DEVARAJEGOWDA
4. KUM. BHAVYA
AGE 21 YEAR
D/O LATE DEVARAJEGOWDA
ALL R/A DUMMIKOPPALU,
DODDAMAGGE HOBLI, ARAKALAGUD TALUK,
PRESENTLY R/A FORT, MARIGUDI STREET,
CHANNARAYAPATNA TOWN, 573116.
5. SRI. AVINASH
MAJOR,
S/O THAMMEGOWDA @
MARITHAMMEGOWDA,
RESIDING AT DUMMI VILLAGE,
MARITHAMMANAHALLI POST,
DODDAMAGGE HOBLI,
ARAKALAGUD TALUK 573102.
...RESPONDENTS
(BY SRI. HALESHA R G, ADVOCATE FOR R1-R4 ., R5-SERVED)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED24.9.2016 PASSED IN MVC
NO.539/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE,
JMFC, CHANNARAYAPATNA, AWARDING A COMPENSATION OF
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MFA No. 21 of 2017 C/W
MFA No. 3356 of 2016
MFA No. 1629 of 2017
MFA No. 4784 of 2017
RS.12,70,000/- WITH INTERST @ 9% P.A FROM THE DATE OF
PETITION TILL THE DATE OF REALIZATION.
IN MFA NO.3356/2016
BETWEEN:
THE GENERAL MANAGER
CHOLAMANDALAM GENERAL INSURANCE
COMPANY LIMITED
DARE HOUSE, 2ND FLOOR
NO.2, N H C N S C BOSE ROAD
CHENNAI-600001.
BY
THE REGIONAL MANAGER
CHOLAMANDALAM GENERAL
INSURANCE COMPANY LIMITED,
REGIONAL OFFICE
GOLDEN HEIGHT COMPLEX
6TH FLOOR, 59TH C CROSS
4TH M MAIN, RAJAJINAGAR
BANGALORE-560010
BY ITS SENIOR MANAGER-CLAIMS
...APPELLANT
(BY SRI. O MAHESH., ADVOCATE (THROUGH VIDEO
CONFERENCE)
AND:
1. SIDDALINGAMMA
W/O NANJUNDASWAMY
AGED ABOUT 38 YEARS
2. NANJUNDASWAMY
S/O NANJAPPA
AGED ABOUT 42 YEARS
BOTH ARE RESIDING AT
MOOLEKALENAHALLI VILLAGE
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MFA No. 21 of 2017 C/W
MFA No. 3356 of 2016
MFA No. 1629 of 2017
MFA No. 4784 of 2017
KASABA HOBLI
HOLENARASIPURA TALUK
HASSAN DISTRICT-573201.
3. AVINASH
S/O THIMMEGOWDA
MAJOR
R/O DUMMIMARITHAMMANAHALLI POST
DODDAMAGGE HOBLI
ARKALGUDU TALUK
HASSAN DISTRICT-573201
...RESPONDENTS
(BY SRI. GIRISH B BALADARE.,ADVOCATE FOR R1 & R2, R3-
NOTICE HELD SUFFICIENT V/O DT:3/2/21)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED: 02.03.2016 PASSED IN MVC
NO.378/14 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC,
HOLENARASIPUR, AWARDING COMPENSATION OF
RS.6,65,000/- WITH INTEREST AT 9% P.A. FROM THE DATE OF
PETITION TILL THE DATE OF DEPOSIT.
IN MFA NO.1629/2017
BETWEEN
1. SMT GOWRAMMA
W/O LATE DEVARAJEGOWDA,
AGED ABOUT 47 YEARS,
2. KUMARI DIVYA
D/O LATE DEVARAJEGOWDA,
AGED ABOUT 26 YEARS,
3. SRI. DILIPKUMAR
D/O LATE DEVARAJEGOWDA,
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MFA No. 21 of 2017 C/W
MFA No. 3356 of 2016
MFA No. 1629 of 2017
MFA No. 4784 of 2017
AGED ABOUT 24 YEARS,
4. KUM BHAVYA
D/O LATE DEVARAJEGOWDA,
AGED ABOUT 22 YEARS,
ALLA ARE R/AT DUMMIKOPPALU
DODDAMAGGE HOBLI,
ARAKALAGUD TALUK
PRESENTLY R/AT FORT, MARIGUDI STREET,
CHANNARAYAPATNA TOWN
...APPELLANTS
(BY SRI. HALESHA R G., ADVOCATE)
AND:
1. SRI AVINASH
S/O THAMMEGOWDA @
MARITHAMMEGOWDA, MAJOR,
R/AT DUMMI VILLAGE,
MARITHAMMANAHALLI POST,
DODDAMAGGE HOBLI,
ARAKALAGUD TALUK
2. THE MANAGER
CHOLAMANDALAM GEN., INS., CO., LTD.,
DARE HOUSE, 2ND FLOOR, NO.2
N.S.C.BOSE ROAD,
CHENNAI-01, TAMIL NADU STATE
REPD. BY ITS LOCAL BRANCH,
THE REGIONAL MANAGER,
REGIONAL OFFICE,
CHOLAMANDALAM GENERAL INSURANCE CO.LTD.,
UNIT NO.4, GOLDEN HIGHT COMPLEX,
RAJAJINAGAR,
BANGALORE CITY
...RESPONDENTS
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MFA No. 21 of 2017 C/W
MFA No. 3356 of 2016
MFA No. 1629 of 2017
MFA No. 4784 of 2017
(BY SRI. O MAHESH FOR R2 ., ADVOCATE FOR R2 (THROUGH
VIDEO CONFERENCE)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:24/09/2016 PASSED IN MVC
NO.539/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE &
J.M.F.C., CHANNARAYAPATNA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
IN MFA NO.4784/2017
BETWEEN:
1. SIDDALINGAMMA
W/O LATE NANJUNDASWAMY
AGED ABOUT 38 YEARS
2. NANJUNDASWAMY
S/O LATE NANJAPPA
AGED ABOUT 42 YEARS
THE BOTH APPELLANTS ARE
R/AT MOOLEKALENAHALLI VILLAGE
KASABA HOBLI
HOLENARASIPURA TALUK
HASSAN DISTRICT- 573201.
...APPELLANTS
(BY SRI. GIRISH B BALADARE ., ADVOCATE)
AND:
1. THE REGIONAL GENERAL MANAGER
CHOLAMANDALAM GENERAL INS. CO.LTD
DARE HOUSE, 2ND FLOOR
NO.2, N H C N S C BOSE ROAD
CHENNAI-600001.
REPRESENTED BY
THE REGIONAL GENERAL MANAGER
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MFA No. 21 of 2017 C/W
MFA No. 3356 of 2016
MFA No. 1629 of 2017
MFA No. 4784 of 2017
CHOLAMANDALAM GENERAL
INSURANCE CO. LTD.
REGIONAL OFFICE
GOLDEN HEIGHT COMPLEX
NO.59TH CROSS
RAJAJINAGAR
BENGALURU-560 010.
2. AVINASH
S/O THIMMEGOWDA
AGED ABOUT 33 YEARS
R/AT DUMMIMARITHAMMANAHALLI POST
DODDAMAGGE HOBLI
ARAKALGUD TALUK
HASSN DISTRICT-573201.
...RESPONDENTS
(BY SRI. O MAHESH FOR R1., ADVOCATE FOR R1 (THROUGH
VIDEO CONFERENCE, R2-NOTICE DISPENSED WITH V/O
DATED:15-03-2021)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:02.03.2016 PASSED IN MVC
NO.378/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, &
JMFC, MACT, HOLENARASIPURA, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THESE APPEALS, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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MFA No. 21 of 2017 C/W
MFA No. 3356 of 2016
MFA No. 1629 of 2017
MFA No. 4784 of 2017
JUDGMENT
These appeals are filed under Section-173(1) of the Motor Vehicles Act 1988 (hereinafter referred to as 'MV Act' for brevity).
MFA No.21/2017 (MVC No.539/2014) is filed by the appellants-insurance company challenging the judgment and award dated 24.09.2016, passed in M.V.C.No.539/2014, on the file of the Senior Civil Judge, Channarayapatna, (hereinafter referred to as 'the Tribunal' for brevity) questioning the liability as well as quantum of compensation.
MFA No.3356/2016 (MVC No.378/2014) is filed by the appellant-insurance company, challenging the judgment and award dated 02.03.2016, passed in M.V.C.No.378/2014, on the file of the Senior Civil Judge, -9- MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017 MACT, Holenarasipura, questioning the liability fixed as well as the quantum of compensation.
MFA No.1629/2017 (MVC No.539/2014) is filed by the appellant-claimant, challenging the judgment and award dated 24.09.2016, passed in M.V.C.No.539/2014, on the file of the Senior Civil Judge, Channarayapatna, (hereinafter referred to as 'the Tribunal' for brevity) seeking enhancement of compensation.
MFA No.4784/2017 (MVC No.378/2014) is filed by the appellant-claimant, challenging the judgment and award dated 02.03.2016, passed in M.V.C.No.378/2014, on the file of the Senior Civil Judge, MACT, Holenarasipura, seeking enhancement of compensation.
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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017 Brief facts:
3. On 22.11.2013 at about 6.00 p.m., when the deceased M.N.Raghu was going in a motor cycle bearing registration No.KA-13-V-4832 to Temple, on the left side of the road, in a moderate speed, the driver of a goods Ape auto bearing registration No.KA-13-B-3520, drove the same in a rash and negligent manner with high speed and dashed against the motor cycle of the deceased. As a result of which, both the rider of the motor cycle as well as the passenger traveling in the goods auto-rickshaw sustained severe injuries and died.
4. Hence, a claim petition was filed by the claimants under Section-166 of the M.V. Act, claiming compensation for the death of the deceased in the road traffic accident.
5. The Tribunal on appreciating the materials on record, allowed MVC No.539/2014 in part, and awarded a
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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017 compensation of Rs.12,70,000/- along with interest at 9% per annum from the date of petition till the date of deposit. The Tribunal held respondent - insurance company liable to pay the compensation.
6. The Tribunal on appreciating the materials on record, allowed MVC No.378/2014 in part, and awarded a compensation of Rs.6,65,000/- along with interest at 9% per annum from the date of petition till the date of deposit. The Tribunal held the owner and insurer are jointly and severally liable to pay the compensation. ON LIABILITY AS WELL AS RASH AND NEGLIGENT ASPECT:
7. The learned counsel for the insurance company
- appellant submitted that the accident was caused on account of rash and negligent driving of the deceased who was riding the motor cycle. Further, submitted that the deceased was occupant of Devarajegowda, who died in the
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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017 accident was traveling in the auto-rickshaw as a gratuitous passenger. Therefore, the insurance company is not liable to pay the compensation. Further submitted that as per the Registration Certificate, Exhibit-R7 extract, the seating capacity of the auto-rickshaw is one which is only for driver. Therefore, the deceased who was driving the auto- rickshaw is a gratuitous passenger. Therefore, the insurance company is not liable to pay the compensation.
8. Further, submitted that the auto-rickshaw is a transport vehicle. But the driver of the auto-rickshaw was holding Driving License to drive LMV (Non-Transport Vehicle). Therefore, the insurance company is liable to be exonerated on the violation of condition of this policy. Further, submitted that there is no evidence to prove that the deceased has traveled along with goods. Therefore, the deceased was gratuitous passenger. Hence, the insurance company is not liable to pay the compensation.
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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017
9. On the other hand, the learned counsel for the claimants in both the cases submitted that the deceased was traveling along with the goods as per the evidence on record. Hence, Section-147 of the MV Act is applicable, covering the risk of the deceased. Hence, the insurance company is liable to pay the compensation. Further, submitted that the accident is caused entirely due to the rash and negligence of the auto-rickshaw driver. Therefore, the deceased who was riding the motor cycle was not rash and negligent. Therefore, the Tribunal is correct in holding the driver of the auto-rickshaw was rash and negligent in driving the auto-rickshaw and caused the accident. Further, submitted that the driver who is holding the Driving License to drive LMV (Non-transport) is also competent to drive LMV (Transport).
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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017
10. Therefore, submitted the case is squarely covered by the judgment of the Hon'ble Apex Court in the case of MUKUND DEWANGAN Vs. ORIENTAL INSURANCE COMPANY LIMITED1. Therefore submitted that there is no infraction caused. Hence, the Tribunal is correct in holding both the owner and insurer are jointly and severally liable to pay the compensation, which needs no interference. Therefore, prays to dismiss the appeal held by the insurance company.
11. The Tribunal after considering the evidence on record has held that the driver of the goods Ape Auto bearing No.KA-13-B-3520, was rash and negligence in driving the auto-rickshaw and caused the accident. In the said accident, the deceased Devarajegowda who was in the goods auto-rickshaw and the rider of the motor-cycle died. The entire allegation is made against the driver of 1 (2017) 14 SCC 663
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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017 the auto-rickshaw. As a result, a resultant charge-sheet was filed accusing the driver of the goods auto-rickshaw. Therefore, the Tribunal was correct in assessing the rash and negligence and correctly held that the driver of the auto-rickshaw was rash and negligent in driving the auto- rickshaw and caused accident. Therefore, there is no contributory negligence proved on the part of the deceased who was riding the motor cycle. Therefore, regarding the finding given by the Tribunal regarding rash and negligence aspect is concerned there is no ground available to interfere with the same.
12. Regarding contention urged by the insurance company that the deceased Devarajegowda was traveling in the Goods Auto Rickshaw as gratuitous passenger is concerned, it is contended that the seating capacity of the case Goods Auto Rickshaw is one which is meant only for driver and no one can travel in the Goods Auto Rickshaw,
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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017 therefore, if any person has travelled in the Goods Auto Rickshaw that amounts to traveling as a gratuitous passenger and therefore the risk is not covered under the insurance policy.
13. These aspects have to be considered in the light of the evidence along with the legal provisions as per Section-147 of the MV Act. No doubt Exhibit-R7, which is Registration Certificate the seating capacity in the Goods Auto Rickshaw is one. Exhibit-P2 is complaint given to the Police soon after the accident. In the complaint, Exhibit-P2 it is stated that the deceased Devarajegowda died in the said accident.
14. Exhibit-P8 is the statement of one Manjegowda who is inquest panchanama witness stated that on 21.11.2013, the deceased Devarajegowda had been to Ramanagar Silk market to sell the silk by hiring an auto-
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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017 rickshaw and after selling the silk cocoons returned to his village in the same auto-rickshaw. The auto-rickshaw met with an accident with motor-cycle and due to which the deceased Devarajegowda and the motor cycle rider died. Exhibit-P9, is the Agriculture Passbook of deceased Devarajegowda, it is stated that the deceased had sold silk and cocoon and was returning in the Goods Auto Rickshaw. Therefore, as on the date of the accident, the deceased Devarajegowda was returning after selling the cocoons to his village in the same Goods Auto Rickshaw and met with the accident and in the said accident the deceased died. Therefore, upon reappreciating the evidence on record on all its preponderance of probabilities it is proved that the deceased after unloading the cocoon and returning in the same Goods Auto Rickshaw died in the accident. The factum of death of deceased Devarajegowda in the said accident is not
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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017 disputed, but it is only contention of the insurance company that the deceased was sitting in the cabin beside the driver and the seating capacity is only one, hence the risk of the deceased is not covered. When it is proved that the deceased was while returning to the village after unloading the cocoon in the silk market of Ramnanagar, that means after unloading the cocoon returning in the same auto-rickshaw is amounting to traveling along with the goods in the vehicle.
15. The words used in Section-147 of MV Act that traveling alongwith the goods not only means traveling along with goods when it is loaded, but also after unloading / emptying the goods from the vehicle and returning in the same vehicle also amounts to traveling along with goods.
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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017
16. The judgment of the HIGH COURT OF JUDICATURE AT MADRAS, MADURAI BENCH, in the case of ORIENTAL INSURANCE CO. LTD. VS. NALLUCHAMY AND ANOTHERS2, while interpreting Section-147(1)(b)(i) at para Nos.12, 13, 14, 15, 16 and 17, has held as follows:
"12.As per Section 147(1)(b)(i), the Insurance Company is liable to pay in respect of death or bodily injury of any person including the owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place.
13.In this case, it has to be decided whether the Insurance Company is liable if on facts the owner or the authorised representative who travelled in the vehicle 2 2015 ACJ 2646
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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017 after unloading the vehicle died or suffered injuries, is entitled to be paid compensation from the Insurance Company.
14.The provisions of Section 147(1)(b)(i) of the Motor Vehicles Act has to be construed liberally. It is not the case of the Insurance Company that the load auto did not carry the goods, ie., 3 bags of tomatoes of the claimant. Their case is that after unloading only he travelled and therefore he is not covered.
15.The judgment relied on by the learned counsel for the appellant is of no use. In that case, though the claimant made a claim that he travelled in the lorry along with the rice bags, this Court came to the conclusion that there was no evidence to claim that he travelled along with the goods. In those circumstances, this Court in United India Insurance Co. Ltd. v. Annamalai, reported in 2011 (2) TN MAC 737 came to the conclusion that the Tribunal has erred in
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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017 fastening the liability on the Insurance Company when there is absolutely no evidence to the effect that the claimant travelled along with the goods in the lorry. But, in the present case, it is admitted that the tomato bags carried by the load auto belongs to the claimant. The only contention is that the accident took place when he travelled after unloading the goods and hence, he could not claim coverage.
16.In an identical circumstance, the Kerala High Court, in United India Insurance Co. Ltd. v. Velayudhan, reported in 2011(1) TN MAC 233 (Ker.) has held that though the accident took place while the lorry was returning after unloading the rice which was carried in the said vehicle, the Insurance Company is still liable. It is relevant to extract a portion of paragraph-5 of the said judgment, as under:
It is true that nothing happened when the goods were taken. But the unfortunate
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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017 incident took place while the lorry was returning after unloading the rice there.
17.In my view, the judgment of the Kerala High Court (cited supra), covers the issue. Further, I am of the view that provisions of Section 147 of the Motor Vehicles Act has to be interpreted liberally and the main purpose is to grant compensation to the unfortunate accident victims. Unless it is established by the Insurance Company that they are not at all liable, the Insurance Company cannot escape from its liability to pay compensation, particularly when it is admitted that the tomato bags carried by the load auto belongs to the claimant and he being an agriculturist, took these bags to the market and returned in the auto, which carried the tomato bags and that the said auto got involved in the accident at the time of return. Hence, in my view the Insurance Company is liable to pay compensation.".
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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017
17. Therefore, the issue involved in the present case is whether the insurance company is liable if the owner or the authorized representative of the goods after unloading or emptying the goods in the market and while returning in the same goods vehicle died, which means actually traveling in the goods vehicle but also after unloading the said goods while returning in the vehicle means in the accident died is also amounting to traveling along with goods for the purpose of Section-147(1)(b)(i) of MV Act.
18. Therefore, where it is proved that in the present set of facts and circumstances the deceased had hired goods Ape Auto bearing No.KA-13-B-3520 for selling cocoon in the silk market at Ramnagar and after unloading the same by selling the cocoons and returning to his village in the same vehicle then it covers the risk as observed supra. Even though in the R.C. Book the seating
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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017 capacity is one, but obviously in a goods vehicle no passengers can be traveled. But considering the nature of the vehicle, which is transport vehicle meant for carrying goods, would be including cleaner, loader, owner/representative of the goods will be traveling, then they cannot be categorized as Gratuitous Passengers. To meet out such contentions Section-147(1)(b)(i) of MV Act is amended by way of insertion by the Act 1994. Therefore, quite naturally in the RC Book seating capacity would show as one for driver, but that does not mean if other than driver no person such as owner or authorized representative of the goods in the said vehicle cannot be covered.
19. In order to meet out the object that normally in the goods vehicle driver alone cannot take the goods in the vehicle but also any authorized representative or owner of the goods will travel along with the goods, so the
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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017 to cover the risk of them, Section-147(1)(b)(i) of the MV Act is inserted by an amendment. Therefore, in the RC book even though seating capacity is mentioned as only one, that does not mean that the risk is not covered under the insurance policy for the person who is owner/authorized representative of goods.
20. Moreover, the Exhibit-R3 is Insurance Policy Package Goods Policy. Therefore, Exhibit-R3 insurance policy pertaining to the goods auto-rickshaw is Package Policy. Therefore, under these circumstances, the deceased Devarajegowda cannot be categorized as Gratuitous Passengers. Furthermore, Section-147(1)(b)(i) of the MV Act stipulates as follows:
Section 147(1)(b)(i):
(i) against any liability which may be incurred by him in respect of the death of or bodily [injury to any person, including owner of the goods or his authorised representative
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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017 carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
21. Therefore, as per the aforesaid provisions death or bodily injury of any person including the owner of the goods or his authorised representative carried in the vehicle is compulsorily covered as per requirements of the policy. Therefore, as per these provisions the risk of the person of nature in the present case is compulsorily covered. Therefore, where it is proved that the deceased travelled in the goods vehicle being owner of the goods and died in the accident, then the risk is covered compulsorily as per the legal provisions stated above.
22. Therefore, covering the risk as per Section- 147(1)(b)(i) of MV Act is not controlled as per the seating capacity mentioned in the RC Book. Issuance of certificate of registration for the vehicle is different and covering risk
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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017 is different. Obviously, while issuance of certificate of registration of vehicle according to the class and type of vehicle, the seating capacity is mentioned but covering the risk is different aspect W.e.f. 14.11.1994 amendment is made as discussed above to the Section-147 of the MV Act, that the risk of the owner or authorized representations of the goods traveling in the goods vehicle is compulsorily covered. Therefore, even though the seating capacity is one mentioned in the RC book but the person who travelled along with the goods as 'owner or authorized representatives' means who has sustained injuries in the accident or has died then the risk is covered.
23. So far as the Goods auto-rickshaw is concerned, the rider of the motorcycle who met with the accident is third party. Therefore, both the owner and the insurer of goods auto-rickshaw are jointly and severally liable to pay
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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017 the compensation. Hence, in view of the existence of insurance policy as on the date of the accident, the insurance company shall indemnify the owner and consequently shall pay the compensation to the claimants. REGARDING QUANTUM OF COMPENSATION:
MFA NO.21/2017 & MFA NO.1629/2017 (MVC NO.539/2014):
24. The Tribunal has awarded compensation as follows:
Funeral Expenses : Rs. 25,000/-
Loss of Love and Affection : Rs. 1,00,000/-
Loss of Estate : Rs. 1,00,000/-
Loss of Consortium : Rs. 1,00,000/-
Loss of Dependency : Rs. 9,45,000/-
TOTAL : Rs. 12,70,000/-
25. In the present case, the deceased was aged 45 years and was an agriculturists and growing and selling
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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017 silk cocoons died in the accident caused on 21.11.2013. The Tribunal has taken the income as Rs.7,500/- which is on lower side. Therefore, as per Chart of notional income recognized by the Karnataka State Legal Services Authority, a sum of Rs.8,000/- per month to be taken as notional monthly income of the deceased. The Tribunal has not added income towards loss of future prospects in life. According to the age of the deceased, 25% of the income is to be added towards 'Loss Of Future Prospects' as per the judgment of the Hon'ble Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi3, i.e., Rs.2,000/- (Rs.8,000 x 25%). Therefore, the monthly income of the deceased is taken at Rs.10,000/-. There were totally 4 dependants, hence, 1/4th of his income is deducted towards his 'Personal And Living Expenses'. The appropriate multiplier applicable as per the judgment of 3 (2017) 16 SCC 680
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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017 the Hon'ble Supreme Court, in the case of Smt.Sarla Verma & Others. Vs. Delhi Transport Corpn And Another4 is '14'. Therefore, the compensation under the head 'Loss Of Dependency along with Loss of Future Prospects in Life' is recalculated and quantified as follows:
Rs.8,000 + 2,000 (25% of 8,000) x ¾ x 14 x 12 = Rs.12,60,000/-
26. The Tribunal has awarded a sum of Rs.1,00,000/- towards 'Loss of Love and affection', which is on lesser side. There are totally four dependants of the deceased, hence, as per the judgment of the Hon'ble Apex Court in the cases of Magma General Insurance Co. Limited v. Nanu Ram & Others5 and National 4 AIR 2009 SC 3104 5 2018 ACJ 2782
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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017 Insurance Co. Ltd. Vs. Pranay Sethi6, the claimants are entitled to Rs.40,000/- each under the head 'Loss Of Consortium'. Accordingly, Rs.1,60,000/- (Rs.40,000 x
4) is awarded under the head 'Loss Of Consortium including Loss Of Love And Affection'.
27. Further, compensation awarded under the head 'Towards Loss of Estate and Funeral Expenses', at Rs.1,25,000/- is modified and a sum of Rs.30,000/- is awarded under the said head.
28. Hence, the claimants are entitled for a total enhanced compensation, under various heads as follows:
Loss of Dependency along : Rs. 12,60,000/-
with Loss of future
prospects in life
Rs.8,000 + 2,000 (25%
of 8,000) x ¾ x 14 x 12
6
(2017) 16 SCC 680
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MFA No. 21 of 2017 C/W
MFA No. 3356 of 2016
MFA No. 1629 of 2017
MFA No. 4784 of 2017
Loss of Consortium And : Rs. 1,60,000/-
Loss of Love and Affection
(Rs.40,000 x 4)
Funeral Expenses and : Rs. 30,000/-
Loss of Estate
TOTAL : Rs. 14,50,000/-
29. Therefore, the claimants are awarded a total compensation of Rs.14,50,000/- as against the compensation awarded by the Tribunal at Rs.12,70,000/-.
Hence, the Claimants are entitled for an additional compensation of Rs.1,90,000/- (Rs.14,50,000 - Rs.12,60,000), along with interest at 6% per annum from the date of filing of the petition till deposit.
30. The Tribunal has awarded compensation along with interest at 9% per annum. However, it is held that the compensation shall carry simple interest at 6% per annum instead of 9% per annum. However, the claimants
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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017 are not entitled for interest for the period of 25 days delay in filing the appeal.
MFA NO.3356/2016 & MFA NO.4784/2017 (MVC NO.378/2014):
31. The Tribunal has awarded compensation as follows:
Loss of Dependency : Rs. 5,40,000/- Loss of Love and Affection : Rs. 1,00,000/-
Towards Funeral, : Rs. 25,000/-
Obsequious and
Transportation of dead body
expenses'
TOTAL : Rs. 6,65,000/
-
32. In the present case, the deceased was aged 19 years old and was a student studying 2nd year diploma engineering as per Exhibit-P10 to P13. NCC certificate and marks cards of the deceased are produced herewith. The
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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017 Tribunal has taken the notional income as Rs.5,000/- which is on lower side. Therefore, as per Chart of notional income recognized by the Karnataka State Legal Services Authority, a sum of Rs.8,000/- per month to be taken as notional monthly income of the deceased. The Tribunal has not added income towards loss of future prospects in life. According to the age of the deceased 40% of the income is to be added towards loss of future prospects as per the judgment of the Hon'ble Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi7, i.e., Rs.3,200/- (Rs.8,000 + 3,200 (40%)). Therefore, the monthly income of the deceased is taken at 11,200/-. Since the deceased was a bachelor, 50% of his income is deducted towards his personal and living expenses. The appropriate multiplier applicable as per the judgment of the Hon'ble Supreme Court, in the case of Smt.Sarla 7 (2017) 16 SCC 680
- 35 -
MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017 Verma & Others. Vs. Delhi Transport Corpn And Another8 is '18'. Therefore, the compensation under the head 'Loss Of Dependency along with Loss of Future Prospects in Life' is recalculated and quantified as follows:
Rs.8,000 + 3,200 (40% of 8,000) x 50% x 18 x 12 = Rs.12,09,600/-
33. The Tribunal has awarded a sum of Rs.1,00,000/- towards 'Loss of Love and affection', which is on lesser side. There are totally TWO dependants of the deceased, hence, as per the judgment of the Hon'ble Apex Court in the cases of Magma General Insurance Co.
Limited v. Nanu Ram & Others9 and National Insurance Co. Ltd. Vs. Pranay Sethi10, the claimants 8 AIR 2009 SC 3104 9 2018 ACJ 2782 10 (2017) 16 SCC 680
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MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017 are entitled to Rs.40,000/- each under the head 'Loss Of Consortium'. Accordingly, Rs.80,000/- (Rs.40,000 x 2) is awarded under the head 'Loss Of Consortium including Loss Of Love And Affection'.
34. Further, compensation awarded under the head 'Towards Funeral, Obsequious And Transportation Of Dead Body Expenses' at Rs.25,000/- is on lesser side and hence a sum of Rs.30,000/- is awarded under the said head.
35. Hence, the claimants are entitled for a total enhanced compensation, under various heads as follows:
Loss of Dependency along : Rs. 12,09,600/- with future prospects (Rs.8,000 + 3,200 (40% of 8,000) - 50% x 18 x
12) Loss of Consortium and : Rs. 80,000/-
Loss of Love and Affection
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MFA No. 21 of 2017 C/W
MFA No. 3356 of 2016
MFA No. 1629 of 2017
MFA No. 4784 of 2017
Towards Funeral, : Rs. 30,000/-
Obsequious and
Transportation of dead
body expenses'
TOTAL : Rs. 13,19,600/-
36. Therefore, the claimants are awarded a total compensation of Rs.13,19,600/- as against the compensation awarded by the Tribunal at Rs.6,65,000/-. Hence, the claimants are entitled for an additional compensation of Rs.6,54,600/- (Rs.13,19,600 - Rs.6,65,000/-), along with interest at 6% per annum from the date of filing of the petition till deposit.
37. The Tribunal has awarded compensation along with interest at 9% per annum. However, it is held that the compensation shall carry simple interest at 6% per annum instead of 9% per annum. However, the claimants
- 38 -
MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017 are not entitled for interest for the period of 367 days delay in filing the appeal.
38. Accordingly, I pass the following:
ORDER i. MFA No.21/2017 (MVC No.539/2014) is filed by the appellants-insurance company is Allowed In Part.
ii. MFA No.3356/2016 (MVC No.378/2014) is filed by the appellant-insurance company is Allowed in Part.
iii. MFA No.1629/2017 (MVC No.539/2014) is filed by the appellant-claimant is Allowed in Part.
iv. MFA No.4784/2017 (MVC No.378/2014) is filed by the appellant-claimant is Allowed in Part v. The impugned judgment and award dated 24.09.2016, passed in M.V.C.No.539/2014, on the file of the Senior Civil Judge,
- 39 -
MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017 Channarayapatna is modified to the extent that the Claimants are entitled for an additional compensation of Rs.1,80,000/- (Rs.14,50,000
- Rs.12,70,000), along with interest at 6% per annum from the date of filing of the petition till deposit, in addition to what has been awarded by the Tribunal. However, the claimants are not entitled for interest for the period of 25 days delay in filing the appeal.
vi. The impugned judgment and award dated 02.03.2016, passed in M.V.C.No.378/2014, on the file of the Senior Civil Judge, MACT, Holenarasipura is modified to the extent that the claimants are entitled for an additional compensation of Rs.6,54,600/- (Rs.13,19,600
- Rs.6,65,000/-), along with interest at 6% per annum from the date of filing of the petition till
- 40 -
MFA No. 21 of 2017 C/W MFA No. 3356 of 2016 MFA No. 1629 of 2017 MFA No. 4784 of 2017 deposit. However, the claimants are not entitled for interest for the period of 367 days delay in filing the appeal.
vii. The amount in deposit shall be transferred to the Tribunal forthwith.
viii. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.
ix. No order as to costs.
x. Draw award accordingly.
Sd/-
JUDGE
JJ
List No.: 1 Sl No.: 47