Karnataka High Court
Shri.Mahantesh S/O. Sangappa ... vs Smt.Netharavati W/O. Basayya Kulkarni on 25 February, 2022
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25TH DAY OF FEBRUARY, 2022
BEFORE
R
THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY
M.F.A. No.100096/2019 (MV)
BET WEEN
SHRI MAHANT ESH,
S/O SANGAPPA B ANNIMATTI,
AGE: MAJ OR,
OCC: OWNER TIPPER LORRY
BEARING REG.NO.KA-27/A- 8377,
R/O HULAYAL,
TQ. & DIST: HAVERI- 581110.
...APPELLANT
(BY SRI B .M.PATIL, ADVOCATE)
AND
1. SMT.NETHARAVATI,
W/O B ASAYYA KU LKARNI,
AGE: 29 YEARS, OCC: HOU SEHOLD,
R/O GU TTAL,
TQ. & DIST: HAVERI- 58110 8.
2. SHRI B ASAY YA,
S/O GU RUSHANTAYYA KULKARNI,
AGE: 32 YEARS, OCC: COOLIE,
R/O GU TTAL, TQ. & DIST : HAVERI- 581108.
3. SHRI B ASAY YA,
S/O CHANNAB ASAY YA KU LKARNI,
AGE: 26 YEARS, OCC: DRIVER,
R/O GU TTAL, TQ. & DIST : HAVERI- 581108.
4. DIV IS IONAL MANA GER,
CHOLAMANDALAM M.S.GENERAL
INSURANCE CO.LTD.,
KALB U RGI SCAWARE,
2
DESHPANDE NAGAR,
HUBB ALLI-5800 29.
...RESPONDENTS
(BY SRI I.C.PATIL, ADVOCAT E FOR R3;
SRI SUB HASH J.BADDI, ADVOCATE FOR R4;
NOTICE TO R1 AND R2 SERVED)
THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE J UDGMENT AND AWARD DATED 03.10.2 018 PASS ED IN
MVC No.218/2015 ON THE FILE OF THE ADDIT IONA L
SENIOR CIVIL JU DGE AND MEMB ER, MOT OR ACCIDENT
CLAIMS TR IB U NAL, HAVER I, AWARDING COMPENSAT ION OF
`5,90,000/- WIT H INTEREST AT 6% P.A. FROM THE DAT E OF
PET IT ION T ILL ITS REALIZ ATION.
THIS A PPEA L HA VING BEEN HEAR D AND RESERVED
FOR JU DGMENT ON 16. 02.2 022 COMING ON FOR
PRONOUNCEMENT OF JU DGMENT , THIS DAY THE COU RT
DEL IVERED THE F OLLOW ING:
JUDGMENT
This appeal is preferred by the owner of the offending tipper lorry bearing registration No.KA-27/ A-8377 ag ainst the judgment and award dated 03.10.2018 p assed by the Motor Accid ent Claims Tribunal, Haveri (hereinafter referred to as the 'Tribunal', for brevity) in MVC No.218/2015 on the ground of liability as well as on the quantum of compensation awarded by the Tribunal.
2. Though this appeal is listed for admission, with the consent of the learned counsels appearing 3 for the parties, the appeal is taken up for final disposal. The parties to this appeal are referred to by their rankings assigned to them before the Tribunal for the sake of convenience.
3. Brief facts of the case that would be relevant for the purpose of disposal of this appeal are:
On 23.11.2014 at about 8.00 a.m. the claimant No.1 herein after washing cloths in Gokatti, was returning home along with her minor daughter baby Kalpana, aged about 2 years and when they reached near the building of Midiyappa Hindinmani on Guttal- Belavigi road, the offend ing tipp er lorry bearing registration No.KA-27/A-8377 which was driven in a rash and negligent manner by its driver, dashed against the minor girl Kalp ana and caused the accident. Kalp ana who suffered grievous injuries was immediately shifted to the hospital, but she succumbed to the injuries in the hosp ital. A criminal case was therefore reg istered ag ainst the d river of the offending 4 tipper lorry. It is in this background, the claimants who are the p arents of d eceased Kalp ana who was aged about 2 years as on the date of accid ent, had filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short, the 'Act') claiming comp ensation of `6,00,000/- with interest from the d river, owner and insurer of the offending tipper lorry bearing registration No.KA-27/A-8377. The said claim petition was p artly allowed by the Trib unal and a compensation of `5,90,000/- with interest at 6% per annum from the date of petition till realization was award ed and the 2 n d respondent who is the owner of the offending tipper lorry was held liable to pay the compensation and according ly he was directed to d eposit the comp ensation amount before the Tribunal. Being agg rieved by the same, the owner of the offending tipper lorry is before this Court.
4. Learned counsel for the appellant-owner of the offending lorry submits that the Tribunal had erred in exonerating the liability of the insurer of the offending lorry, though as on the date of accident, 5 the insurance policy issued by the 3 r d respondent- insurer was in force. He submits that the Tribunal had exonerated the liability of the insurer only on the ground that the driver of the offending lorry did not have valid and effective driving licence to drive a heavy goods vehicle as on the date of accident. He submits that admittedly the driver of the offending tipper lorry possessed a light motor vehicle driving licence and therefore since the unladen weight of the offending lorry being lesser than 7500 kg, the offending vehicle is required to be considered as a light motor vehicle and the liability to pay compensation is required to be saddled on the insurer of the offending tipper lorry. He submits that the unladen weight of the vehicle as could be seen from Ex.R1 the 'B' register extract is only 6190 kg and therefore the same is required to be considered as a light motor vehicle though the said vehicle is categorized as heavy goods vehicle. In support of his contention, he has relied upon the judgment of this Court delivered by a co-ordinate bench in the case of 6 United India Insurance Co.Ltd., V/s Lakshmamma and others reported in ILR 1996 Karnataka 2220 and also the judgment of another co-ordinate bench of this Court rendered in MFA No.6284/2013 c/w MFA No.11421/2012 (MV) disposed off on 02.08.2021 in the case of Sarasa Bhandarthi and others V/s Smt.Geetha and another. He submits that the Tribunal has not properly appreciated the judgment of the Hon'ble Supreme Court in the case of Mukund Dewangan V/s Oriental Insurance Company Limited reported in (2017) 14 SCC 663, which has resulted in erroneously exonerating the insurer from its liability. He also submits that the compensation awarded to the claimants is on the higher side. He submits that the deceased was aged about 2 years as on the date of accident and therefore the claimants are entitled only for a sum of `2,75,000/- as compensation having regard to the judgment of the Hon'ble Apex Court in the case of Rajendra Singh and others 7 V/s National Insurance Company Limited and others reported in (2020) 7 SCC 256.
5. Per contra, learned counsel appearing for the insurer of the offending vehicle submits that admittedly the driver of the lorry did not possess licence to drive heavy goods vehicle and as on the date of accident, he was only holding a light motor vehicle driving licence. The vehicle in question is a transport vehicle and the gross weight of the vehicle is much more than 7500 kg as could be seen from Ex.R1. Therefore, the Tribunal has rightly exonerated the insurer from its liability. He submits that this question has been considered by the Hon'ble Supreme Court in the case of Mukund Dewangan and it has been held that the transport vehicles of which gross weight is more than 7500 kg cannot be considered as a light motor vehicle.
6. The claimants who have been served in the matter have remained unrepresented before this Court.
8
7. I have carefully considered the arguments addressed on both sides and also perused the material on record.
8. The undisputed facts of the case are that in the road traffic accident that had occurred on 23.11.2014, wherein the offend ing tipp er lorry bearing registration No.KA-27/A-8377 was involved, the minor daughter of the claimants b ab y Kalp ana, ag ed about 2 years had died . It is not in disp ute that the offending tipper lorry which was involved in the accident was duly insured with the 3rd respondent-Insurance Comp any and as on the d ate of accident, the said policy was in force. The Trib unal had exonerated the liability of the insurer to p ay the compensation on the ground that the driver of the offending lorry did not possess valid and effective d riving licence to d rive a heavy goods vehicle as on the date of accident. The vehicle in question was a tipper lorry and the material on record would go to show that the unlad en weight of the said vehicle which is categorized as a heavy goods 9 vehicle is 6190 and the gross weight of the said vehicle is 16200 kg .
9. Learned counsel for the app ellant has submitted that since the unladen weight of the vehicle involved in the accid ent, though it is a heavy g oods vehicle, is less than 7500 kg and therefore the same has to b e considered as a light motor vehicle and according ly the insurer of the offend ing vehicle is required to b e saddled with the liab ility to p ay the comp ensation. The question whether transport vehicle and omnib us, the gross vehicle weig ht of either of which does not exceed 7500 kg would be a light motor vehicle and the hold er of licence to drive class of light motor vehicle as provid ed in Section 10(2)(d) would be comp etent to d rive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg was referred to larg er b ench by a division b ench of the Hon'b le Supreme Court in the case of Mukund Dewangan V/s Oriental Insurance Company Limited and others reported in (2016) 4 SCC 298 and the Hon'ble Sup reme Court in the case of Mukund 10 Dewangan V/s Oriental Insurance Company Limited reported in (2017) 14 SCC 663 while answering the said question has held that a transport vehicle and omnibus, gross vehicle weight of either of which does not exceed 7500 kg would be a light motor vehicle and the holder of d riving licence to drive class of light motor vehicle as provided in Section 10(2)(d) is comp etent to d rive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. Therefore, there is no merit in the contention of the learned counsel for the app ellant that the Tribunal had erred in exonerating the liability of the insurer and that the Tribunal had not p rop erly app reciated the judgment of the Apex Court in the case of Mukund Dewangan V/s Oriental Insurance Company Limited reported in (2017) 14 SCC 663. The vehicle in question which is categorized as a heavy goods vehicle comes within the meaning of Section 2(16) of the Motor Vehicles Act, 1988 as the g ross vehicle weight und isputedly exceeds 12000 kg. Under the circumstances, the Tribunal was fully justified in hold ing that the offending vehicle was 11 used in violation of the terms and conditions of the policy and therefore the insurer of the offending vehicle was not liable to pay the compensation. I find no illeg ality or irregularity with reg ard to the finding record ed by the Trib unal insofar as it relates to exonerating the liab ility of the insurer and hold ing the insured/owner of the offend ing vehicle liab le to p ay the comp ensation.
10. The judgment in the case of Lakshmamma and others rep orted in ILR 1996 Karnataka 2220 was rendered by the co-ordinate bench of this Court much p rior to the judgment of the Hon'b le Supreme Court in the case of Mukund Dewangan (supra). The Hon'b le Supreme Court in the case of Mukund Dewangan has held that a transport vehicle, the gross weight of which does not exceed 7500 kg would be a light motor vehicle and the hold er of the driving licence to drive class of light motor vehicle as provided und er Section 10(2)(d) is competent to drive a transport vehicle, the gross vehicle weight does not exceed 7500 kg. The word "gross vehicle weight" as defined in 12 Section 2(15) of the Act means, in respect of any vehicle, the total weight of the vehicle and load certified and reg istered by the registering authority as permissible for that vehicle. Ex.R1 which is the 'B' register extract of the offending vehicle would go to show that the registered laden weight of the said vehicle is 16200 kg which is much more than 7500 kg. Therefore, the gross weight of the offend ing vehicle if consid ered as 16200 kg, the said vehicle is req uired to be consid ered as a heavy goods vehicle in view of Section 2(16) of the Act, which states that any goods carriag e the gross weight of which exceeds 12000 kg would be considered as heavy goods vehicle. In view of the judgment of the Hon'ble Sup reme Court in the case of Mukund Dewangan, the judgment in the case of Lakshmamma and others reported in ILR 1996 Karnataka 2220 is therefore no more a good law.
11. In the case of Sarasa Bhandarthi and others, the co-ordinate b ench of this Court having taken into consideration that the driver of the offending vehicle was having a driving licence to drive 13 light motor vehicle and also heavy goods transport vehicle has held that in the said case that there was no breach of terms and conditions of the policy. However in the case on hand, the driver of the offend ing vehicle admittedly possessed only a driving licence to drive light motor vehicle and he does not possess driving licence to d rive heavy transport vehicle and therefore the judgment in the case of Sarasa Bhandarthi and others cannot be mad e app licable to the p resent case.
12. Learned counsel for the appellant has also submitted that the compensation awarded by the Tribunal to the claimants is on the higher sid e. The deceased girl was ag ed about 2 years as on the d ate of accid ent. In respect of a non-earning memb er, the comp ensation was being award ed based on the notional income fixed und er Section 163-A of the Act which is at `15,000/- per annum. Though the Hon'ble Sup reme Court in the cases of Puttamma and others V/s K.L.N arayana Reddy and another reported in (2013) 15 SCC 45 and R.K.Malik and another V/s Kiran Pal and others reported in (2009) 14 SCC 1 had 14 observed that the notional income fixed under Section 163-A of the Motor Vehicles Act was required to be enhanced and increased, the same continued to exist without any amendment since 14.11.1994. Therefore, the Hon'ble Sup reme Court subsequently in the case of Kishan Gopal and another V/s Lala and others reported in (2014) 1 SCC 244, fixed the notional income at `30,000/- per annum in resp ect of a child who had died in the accid ent at the ag e of 10 years. Subseq uently in the case of Kurvan Ansari alias Kurvan Ali and another V/s Shyam Kishore Murmu and another, Civil Appeal No.6902 of 2021 d isposed of on 16.11.2021, in a case where the d eceased child was aged about 7 years considering the earlier judgments in the case of R.K.Malik and Kishan Gopal, the Hon'b le Sup reme Court has held that the notional income is required to be increased taking into consid eration the inflation, d evaluation of rupee, cost of living etc., and accord ing ly fixed the notional income at `25,000/- p er annum in the said case and after applying the multiplier of '15' as p rescrib ed und er 15 Schedule II of Section 163-A of the Act, a comp ensation of `3,75,000/- was award ed toward s loss of dependency. Even in the p resent case, the same principle is required to be applied and a compensation of `3,75,000/- is therefore awarded to the claimants towards loss of dep end ency. Towards loss of filial consortium, the claimants are entitled for a sum of `40,000/- each and towards funeral expenses, they are entitled for another sum of `15,000/-. Therefore altogether they are entitled for a compensation of `4,70,000/- as ag ainst `5,90,000/- award ed by the Tribunal. The compensation awarded to the claimants shall carry interest at 6% per annum from the date of petition till realization.
13. The judgment of the Hon'b le Sup reme Court in the case of Rajendra Singh, which is relied upon by the learned counsel for the app ellant has been taken into consid eration in the case of Kurvan Ansari. Consid ering the fact that the jud gments in Puttamma and others, R.K.Malik and others and Kishan Gopal and another were rendered taking into account the 16 inflation, d evaluation of the rupee and the cost of living , the Hon'ble Sup reme Court in the case of Kurvan Ansari has not followed the judgment in the case of Rajendra Singh.
14. The appellant who is the owner of the offending tipper lorry is directed to deposit the balance amount of compensation with interest b efore the Tribunal within a period of six weeks from the date of receipt of certified copy of this order.
15. The amount in deposit before this Court is directed to be transferred to the Tribunal for the purpose of disbursement. The order passed by the Tribunal insofar as it relates to apportionment, disbursement and deposit etc., remains unaltered. The Miscellaneous First Appeal is accordingly partly allowed.
Sd/-
JUDGE CLK