Karnataka High Court
The Branch Manager vs Manjappa N on 16 August, 2022
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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MFA No. 633 of 2021
C/W MFA No. 3627 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
MISCELLANEOUS FIRST APPEAL NO. 633 OF 2021 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 3627 OF 2019 (MV-D)
IN M.F.A. No.633/2021
BETWEEN:
1. MANJAPPA N.,
S/O LATE NAGAPPA,
AGED ABOUT 53 YEARS,
COOLIE,
2. SHAILAMMA,
W/O MANJAPPA,
AGED ABOUT 43 YEARS,
COOLIE,
3. PALLAVI M.,
D/O MANJAPPA,
AGED ABOUT 22 YEARS,
STUDENT,
ALL ARE R/O KAMBADALL VILLAGE,
HOSUR CAMP,
Digitally BHADRAVATHI TALUK,
signed by
PANKAJA S SHIVAMOGGA DISTRICT - 577 301.
Location:
High Court ...APPELLANTS
of Karnataka
(BY SRI.MATHAPATHI, ADVOCATE FOR
SRI.R.SHASHIDHARA, ADVOCATE)
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MFA No. 633 of 2021
C/W MFA No. 3627 of 2019
AND:
1. GURUMURTHY B.K.,
S/O KALLEGOWDA,
AGED ABOUT 40 YEARS,
DRIVER OF BUS BEARING NO.KA-16/A-8833,
R/O BAVIKERE VILLAGE,
LAKKAVALLI POST,
TARIKERE TALUK - 577 228,
CHIKAMAGALORE DISTRICT.
2. GULTHAZ,
W/O M.D.SALEEM,
MAJOR,
OWNER OF BUS BEARING NO.KA-16/A-8833,
R/A MALLANDUR ROAD, UPPALLU,
HOSADURGA TOWN AND TALUK,
CHITRADURGA DISTRICT - 577 527.
3. THE BRANCH MANAGER,
RELIANCE INSURANCE CO. LTD.,
BRANCH OFFICE, 1 AND 2, 1ST FLOOR,
MANAGER COMMERCIAL COMPLEX,
NEAR KSRTC BUS STAND, B.D.ROAD,
CHITRADURGA - 577 501.
...RESPONDENTS
(BY SRI.H.N.KESHAVA PRASHANTH,ADVOCATE FOR R3;
R1 SERVED;
NOTICE TO R2 DISPENSED WITH VIDE ORDER
DATED 27.09.2021)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 30.11.2018 PASSED IN MVC
NO.420/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
AMACT, CHANNAGIRI, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
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MFA No. 633 of 2021
C/W MFA No. 3627 of 2019
IN M.F.A. No.3627/2019
BETWEEN:
THE BRANCH MANAGER,
M/S. RELIANCE GENERAL INSURANCE
COMPANY LTD.,
BRANCH OFFICE, 1 AND 2, 1ST FLOOR,
MANAGER COMMERCIAL COMPLEX,
NEAR KSRTC BUS STAND, B.D.ROAD,
CHITRADURGA.
NOW REPRESENTED BY ITS MANAGER,
RELIANCE GENERAL INSURANCE
COMPANY LTD.,
NO.28, 5TH FLOOR,
CENTENARY BUILDING, EAST WIND,
NEAR CITY BANK, M.G.ROAD,
BENGALURU - 560 001.
...APPELLANT
(BY SRI.H.N.KESHAVA PRASHANTH, ADVOCATE)
AND:
1. MANJAPPA N.,
S/O LATE NAGAPPA,
NOW AGED ABOUT 52 YEARS,
COOLIE,
2. SMT. SHAILAMMA,
W/O MANJAPPA,
NOW AGED ABOUT 42 YEARS,
3. PALLAVI M.,
D/O MANJAPPA,
NOW AGED ABOUT 21 YEARS,
STUDENT,
ALL ARE R/O KAMBADALL VILLAGE,
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MFA No. 633 of 2021
C/W MFA No. 3627 of 2019
HOSUR CAMP,
BHADRAVATHI TALUK,
SHIVAMOGGA DISTRICT.
4. SRI.GURUMURTHY B.K.,
S/O KALLEGOWDA,
AGED ABOUT 37 YEARS,
DRIVER OF BUS BEARING NO.KA-16/A-8833,
R/O BAVIKERE VILLAGE,
LAKKAVALLI POST,
TARIKERE TALUK - 577 228,
CHIKAMAGALORE DISTRICT.
5. SRI.GULTHAZ,
W/O M.D.SALEEM,
MAJOR,
OWNER OF BUS BEARING NO.KA-16/A-8833,
R/A MALLANDUR ROAD, UPPALLU,
HOSADURGA TOWN AND TALUK,
CHITRADURGA DISTRICT - 577 527.
...RESPONDENTS
(BY SRI.MATHAPATHI, ADVOCATE FOR
SRI.SHASHIDHARA R., ADVOCATE FOR R1 TO R3;
SRI.MOHAMAD DASTAGIR, ADVOCATE FOR R5;
R4 SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 30.11.2018 PASSED IN MVC
NO.420/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
AMACT, CHANNAGIRI, AWARDING COMPENSATION OF
RS.7,38,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF
THE PETITION TILL THE REALIZATION.
THESE MFAs COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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MFA No. 633 of 2021
C/W MFA No. 3627 of 2019
JUDGMENT
1. MFA No.3627/2019 is by the insurer challenging the liability fastened on it, while MFA No.633/2021 is by the claimants seeking for enhancement.
2. The Tribunal has exonerated the liability of the insurer on the ground that there was a violation of the permit conditions. In the light of the judgment of the Hon'ble Apex Court in the case of Amrit Paul Singh and Ors. Vs. TATA AIG General Insurance Co. Ltd. And Ors - AIR 2018 SC 2662, this ground would be unavailable to the insurer. The insurer would be liable to pay the compensation and thereafter, proceed to recover the same from the owner of the offending vehicle.
3. As far as the enhancement is concerned, the Tribunal has determined the notional income at Rs.6,000/- per month. In my view, it would be appropriate to adopt the notional income determined by the KSLSA, which for the year 2017 would be a sum of Rs.11,000/- per month. -6- MFA No. 633 of 2021 C/W MFA No. 3627 of 2019
4. The deceased was aged 23 years and hence a multiplier of '18' would be applicable. To the said sum of Rs.11,000/-, 50% would have to be added as future prospects, which would result in the monthly income to be Rs.16,500/-. Out of the said sum, 1/3rd would have to be deducted towards his personal expenses, which would result in the monthly income to be Rs.11,000/- Consequently, the claimants would entitled to a sum of Rs.11,000 x 12 x 18 = Rs.23,76,000/- towards 'loss of dependency'.
5. The claimants being the parents and sister of the deceased, each of them would be entitled to a sum of Rs.44,000/- which would be a sum of Rs.1,32,000/- under the head 'loss of consortium' and a sum of Rs.33,000/-under the 'conventional heads'.
6. Consequently the award of the Tribunal is modified and the claimants would be entitled to the following compensation:
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Sl. Amount
Particulars
No. in (Rs.)
1. Loss of dependency 23,76,000
2. Loss of consortium 1,32,000
3. Conventional Head 33,000
Total 25,41,000
7. Consequently, the appeal of the insurer is disposed of, by holding that the insurer would be liable to* pay the compensation *.
8. The appeal of the claimants is allowed in part to the extent stated above. The claimants are entitled to an enhanced compensation of (Rs.25,41,000 - Rs.7,38,000) = Rs.18,03,000/-.
9. The enhanced amount shall carry interest at the rate of 6% per annum from the date of petition till its realization.
10. The Insurance Company is directed to deposit the enhanced compensation within eight weeks from the date of receipt of a copy of this order.
*Corrected/deleted vide court order dated 06.09.2022 -8- MFA No. 633 of 2021 C/W MFA No. 3627 of 2019
11. The amount in deposit shall be transferred to MACT for disbursal in terms of the impugned award.
SD/-
JUDGE GH List No.: 1 Sl No.: 30 -9- MFA No. 633 of 2021 C/W MFA No. 3627 of 2019 NSSGJ:
06.09.2022 (VIDEO CONFERENCING / PHYSICAL HEARING) ORDER ON 'FOR BEING SPOKEN TO' These appeals were disposed of on 16.08.2022. The principle of 'pay and recover' was applied and it was held that the Insurance Company was liable to pay the compensation and thereafter proceed to recover the same from the owner of the offending vehicle.
2. Thereafter, a memo was filed by the counsel for the owner contending that the decision relied upon for the purpose of applying the principle of 'pay and recover' i.e., AMRIT PAUL SINGH & ORS. VS. TATA AIG GENERAL INSURANCE CO. LTD., & ORS. - AIR 2018 SC 2662, would be inapplicable since that was a case relating to a vehicle having no permit.
3. It is contended that in the instant case, the vehicle did have a permit to ply on a particular route, but the vehicle met with an accident when it was plying on a different route. In other words, it is stated that this was a case of violation of the route specified. It is also contended that the insurer does not have the right to take up a defence of violation of specified
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MFA No. 633 of 2021 C/W MFA No. 3627 of 2019
route in the permit under Section 149(2)(a)(i)(c) of the Motor Vehicles Act. It is stated that the vehicle has been used for the purpose permitted, but was used in an area not permitted by the permit. It is contended that admittedly the vehicle in question was a bus and it was permitted to carry passengers as per the permit and therefore there was no violation of the condition imposed in the permit, insofar as it relates to the purpose of use. Learned counsel submitted that since the purpose for which the vehicle was used, was in accordance with the permit, the insurer cannot take advantage of the fact that the vehicle was being used in a non-specified route to absolve itself of its liability.
4. Reliance is placed on the judgment of the Co-ordinate Bench of this Court rendered in MFA No.10083/2012, disposed on 18.11.2016, which has been approved by the Division Bench of this Court in MFA No.102428/2017, disposed on 07.06.2019.
5. Sri. Keshava Prashanth, learned counsel for the insurer, on the other hand, contends that the Apex Court in the case of RANI & ORS. VS. NATIONAL INSURANCE COMPANY LTD., & ORS., reported in (2018) 8 SCC 492, was dealing with a
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MFA No. 633 of 2021 C/W MFA No. 3627 of 2019 situation where the offending vehicle was found to be plying in the State of Karnataka in which it did not have permit to ply, and in that case, the Apex Court had held that it would be appropriate to apply 'pay and recover' principle and since that principle has been adopted while allowing the appeal in part, there is no need to revisit the order.
6. He also places reliance on the Division Bench ruling of this Court rendered in MFA No.967/2017 (disposed on 22.04.2022) which was an appeal filed by the owner challenging the exoneration of liability of the insurer on the ground that the vehicle was being plied beyond the area permitted by the transport authority and the said appeal was dismissed and therefore, according him, the application of 'pay and recover' principle adopted by this Court, is just and proper.
7. It is to be stated here that it is rather obvious that the Division Bench ruling rendered in MFA No.102428/2017 was not brought to the notice of the Division Bench when MFA No.967/2017 was decided. The Division Bench has also not taken into consideration the elaborate discussion made by the Division Bench in MFA No.102428/2017 in relation to the
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MFA No. 633 of 2021 C/W MFA No. 3627 of 2019 entitlement of the insurer to take up a defense relating to specified route under Section 149(2)(a)(i)(c). It is also to be stated here that in MFA No.102428/2017 this Court considered the ratio laid down by the Single Judge of this Court in relation to violation of route permit conditions and also the entitlement of the insurer to raise the defence of violation of route permit conditions under Section 149(2)(a)(i)(c) of the MV Act. The Division Bench, after considering the matter extensively, has held as follows:
"19. In this case admittedly the vehicle had a valid permit to transport goods. It had valid permit to ply. The violation complained is that of route permit, i.e., being territorial limits. The same cannot be a defence for the Insurance Company within the purview of Sec. 149(2) of M.V. Act. We approve the decision rendered by the learned single judge of this Court in Durugamma's case stated supra. The fact that the deceased was a labourer under the respondent No.1 owner is not disproved by the material placed on record. Therefore, on the above said ground that the Insurance Company cannot avoid its liability to satisfy the award. Accordingly, point No.1 is answered in the negative."
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MFA No. 633 of 2021 C/W MFA No. 3627 of 2019
8. In view of the fact that the Division Bench of this Court has specifically considered as to whether the violation of route permit conditions could be a defence available to be raised by the insurer under Section 149(2)(a)(i)(c) of the MV Act and has held that such a defence was not permissible to be raised by the insurer, the application of 'pay and recover' principle, in my order dated 16.08.2022, requires to be recalled.
9. Consequently, the appeal of the insurer is disposed of holding that the insurer would be liable to pay the compensation, as held by the Division Bench of this Court in MFA No.102428/2017.
10. Office to carry out the corrections accordingly.
SD/-
JUDGE RD List No.: 1 Sl No.: 1