Karnataka High Court
New India Assurance Co Ltd vs Sri T Chandran on 25 June, 2019
Author: K.Somashekar
Bench: K.Somashekar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JUNE, 2019
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
MFA NO. 7979 OF 2014 (MV)
BETWEEN
New India Assurance Co. Ltd.,
Branch Office
Vidyarthi Bhavan
CG Hospital Road
Davanagere
Representing New India -
Assurance Co., M. G. Road
Bangalore, by its Manager.
... Appellant
(By Sri. R Jaiprakash - Advocate for Appellant)
AND
1. Sri T Chandran
S/o Thippeswami
Aged about 25 years
1st Stage, SPS Nagar
Budal Road
Davanagere - 577001.
2. Sri Hanumanthappa
S/o Budhihal Hanumanthappa
Major
Opp: Sapthagiri School
7th Cross, Ring Road
Yellammanagar
Davanagere - 577001.
2
3. Smt. Gangamma
48 years
W/o Holiyappa
4. Sri Holiyappa 55 years
S/o Mallappa
Respondents No. 3 and 4 are
Residing at 1st Main, 4th Cross
Jali Nagar, Davanagere - 577001.
... Respondents
(By Sri. Mallikarjuna G - Contractor Advocate for
Sri Jagadeesh Goud Patil - Advocate for C/R-3 & R-4;
Vide order dated 08.07.2015, notice to R-1
is dispensed with;
vide order dated 05.06.2017, notice to R-2 is held
sufficient)
This MFA is filed under Section 173(1) Of MV Act
against the judgment and award dated 07.08.2014
passed in MVC No. 146/2011 on the file of the
II-Additional District and Sessions Judge, Member,
MACT-III, Davanagere, awarding a compensation of
Rs. 6,08,000/- with interest @ 6% p.a. from the date of
petition, till its deposit.
This MFA coming on for hearing, this day, the
court delivered the following:
JUDGMENT
This appeal is preferred by the Insurance Company against the judgment and award dated 3 07.08.2014 passed by the Tribunal in MVC No.146/2011 questioning the liability as well as the quantum of compensation awarded by the Tribunal.
2. The factual matrix of the appeal is as under:
It is stated in the claim petition that on 12.08.2010 at about 4.00 p.m. when the deceased Manjunath was traveling in an auto-rickshaw bearing Reg.No.KA-17/A-8158 on Davanagere - Kondajji road, near Avaragol village, at that time the driver of the said auto had driven it at a high speed and in a rash and negligent manner and caused the accident. As a result, Manjunath sustained grievous injuries all over his body and was treated at SSI Hospital, but however, succumbed to the injuries in the said hospital on 17.08.2010. Hence, the legal representatives of deceased Manjunath preferred a claim petition before the Tribunal claiming compensation.
Upon service of notice of the claim petition, driver as well as owner of the offending autorickshaw remained absent and were placed exparte. But 4 however, the Insurance Company appeared before court and filed its written statement denying the petition averments. It was their contention that on the alleged date of the accident, the offending autorickshaw was driven by the deceased Manjunath himself who did not possess a valid and effective Driving licence. Further, if there was any liability on the part of the insurer, it was subject to the terms and conditions of the policy. Therefore, the Insurer prayed for dismissal of the claim petition.
3. Based upon the pleadings, the Tribunal framed the issues. In order to prove the case, second petitioner was examined as PW.1 and Dr. H. Mahendrappa as PW- 2 and got marked 39 documents as per Exs.P1 to P39b. On the side of the respondents, one Jagadeesh G A was examined as RW.1 and B.G. Kotreshappa was examined as RW.2 and they got marked documents at Exhibits R1 to R6. During the enquiry before the tribunal, the claimants have established the occurrence of the accident, actionable negligence on the part of the driver 5 of the offending autorickshaw and its insurance coverage and the same has remained unchallenged either by the owner of the vehicle or by the insurer. After hearing the arguments of learned counsel for the petitioners and learned counsel for respondent-Insurer and after recording the findings, the Tribunal passed the impugned judgment and awarded compensation of Rs.6.08,000/- with interest @ 6% p.a. from the date of petition till the date of realization. It is this judgment which is under challenge in this appeal seeking to set aside the finding of the Tribunal fastening the liability on the Insurance Company to pay the compensation.
4. The learned counsel for the appellant - Insurance Company vehemently contends that the police have registered a case against the first respondent - driver of the offending autorickshaw and he has been charge-sheeted for the offences punishable under Sections 279, 338, 304A of IPC read with Section 3 and 181 of the MV Act. In order to prove the same, the Insurance Company has also examined the Investigating Officer Sri. G.A. Jagadeesh and one of its 6 officers and produced the chargesheet, notices issued to the owner of the vehicle calling upon him to produce the Driving Licence. Sufficient materials were produced before the Tribunal to prove the driver had no valid driving licence. In spite of the said fact, the learned counsel contends that the Tribunal has grossly erred in fastening the liability on the Insurance Company to pay the compensation.
The learned counsel for the appellant - insurer further contends that this is a case of "no valid and effective driving license" and therefore, the insurer cannot be held liable, since it touches the essential condition of contract of insurance. Hence, the learned counsel contends that the Insurance Company be absolved of its liability.
5. Per contra, the learned counsel for the claimants - respondents 3 & 4 submits that the question raised in the appeal is no longer res integra, the same having been answered by the Apex Court against the insurer in the case of Pappu and Others Vs. 7 Vinod Kumar Lamba and Another (AIR 2018 SC 592) wherein it is held that as under:
"S.149 - Insurer's liability - Accident occurred due to rash and negligent driving of truck - insurer taking plea that driver of offending truck had no valid licence - except copy of driving licence of person, owner of offending truck not producing any evidence establishing that it was driven by authorised person having valid driving licence - fact that offending truck was duly insured - would not per se make insurance company liable - however, insurance company directed to pay award amount to claimants in first instance and in turn, recover same from owner of vehicle."
Though the claimants have not filed any appeal seeking enhancement, it is the contention of the learned counsel for the claimants that a mere glance of the compensation awarded towards 'Loss of dependency' by the Tribunal reveals that the age of the mother has been taken to arrive at the multiplier to be adopted, which is opposed to the recent decision of the Apex Court in the case of Royal Sundaram Alliance Insurance 8 Company Ltd. vs. Mandala Yadagari Goud & Ors. (AIR 2019 SC 1825). Hence, he contends that the age of the deceased may be taken into consideration to arrive at the multiplier. Further, the accident being of the year 2010, the Tribunal has erred in taking the income of the deceased at just Rs.3,000/- per month. Hence, he contends that the income be taken suitably and since the deceased was aged 21 years and was a mason by occupation, future prospects also be added and compensation towards 'Loss of dependency' be re- computed by this court accordingly.
6. In the backdrop of the contentions taken by the learned counsel for the parties, I find that there is no dispute with regard to the accident that occurred on 12.08.2010 and the death of Manjunath in the said accident. As rightly contended by the learned counsel for the respondents 3 & 4 - claimants, I find that the Tribunal has erred in its computation while arriving at the compensation to be awarded towards 'Loss of dependency'.
9
Having regard to the fact that the accident was of the year 2010, as per the settled norms adopted in the Lok Adalath chart, I hereby assess the notional income of the deceased at Rs.4,000/- instead of Rs.3,000/- adopted by the Tribunal. Further, since the deceased was a mason and was aged just 21 years, I find it proper to add 50% towards future prospects. Accordingly, adding 50% towards future prospects, the income is arrived at Rs.6,000/-. Further, deducting 50% from the said Rs.6,000/- towards personal expenses since the deceased was a bachelor, the income is arrived at Rs.3,000/-.
Further, in view of the decision of the Apex Court in Royal Sundaram Alliance Insurance Company Ltd. vs. Mandala Yadagari Goud & Ors. (AIR 2019 SC 1825), I hereby take the age of the deceased to adopt the multiplier. Since the deceased was aged 21 years, the appropriate multiplier to be adopted would be '18'.
10
Hence, with Rs.3,000/- as the monthly income and with multiplier at '18', the compensation towards Annual 'Loss of dependency' is arrived at Rs.6,48,000/- (3000 x 12 x 18) as against Rs.4,68,000/- awarded by the Tribunal towards 'Loss of dependency'. However, the compensation awarded by the Tribunal under the other heads remains undisturbed. The enhanced compensation would thus come to Rs.1,80,000/-.
The question as to the liability of the insurer in the absence of the driver of the offending vehicle not possessing a "valid and effective driving license" has been answered by the Apex Court against the insurer and in favour of the claimant in the judgment referred to in Pappu (supra) subject to the principle of "Pay and Recover".
Therefore, keeping in view the ratio of reliance as stated supra, and no other grounds having been urged, I proceed to pass the following:
11
ORDER Appeal is allowed in part. The impugned judgment and award dated 7.8.2014 in MVC No.146/2011 is modified. The compensation payable to claimants / Respondents 3 & 4 is enhanced from Rs.6,08,000/- to Rs.7,88,000/-. The enhanced compensation comes to Rs.1,80,000/- which shall carry interest at the rate of 6% from the date of petition till the date of realisation. Further, the order of the Tribunal fastening the liability on the appellant - insurer namely, the New India Assurance Company Limited to pay the compensation is hereby modified. The insurance company shall deposit the entire award amount including the enhanced compensation with interest accrued, before the concerned Tribunal within a period of four weeks from the date of receipt of copy of this judgment. However, the appellant - New India Assurance Company Limited is at liberty to recover the compensation so paid from the owner of the offending vehicle, in accordance with law. However, the order of the Tribunal as regards 12 apportionment, rate of interest and deposit is concerned shall remain unaltered.
Any amount in deposit in this appeal shall be transmitted to the concerned Tribunal forthwith.
Office to draw the decree accordingly.
Sd/-
JUDGE KS