Karnataka High Court
Sri.Raghavendra S/O Basappa Maddali vs Smt.Roopa W/O Nagesh Basarakod on 30 January, 2024
Author: S G Pandit
Bench: S G Pandit
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NC: 2024:KHC-D:2041-DB
MFA No. 104379 of 2018
C/W MFA No. 100403 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 30TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE K V ARAVIND
MISCELLANEOUS FIRST APPEAL NO. 104379 OF 2018 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 100403 OF 2020 (MV-D)
IN MFA.NO. 104379/2018
BETWEEN:
1. SMT. ROOPA W/O. NAGESH BASARAKOD
AGE:26 YEARS, OCC:HOUSE HOLD,
R/O AMINGAD, TQ:HUNGUND, DIST:BAGALKOT.
2. SMT. SUSALAVVA W/O PARAPPA BASARAKOD
AGE:59 YEARS, OCC:HOUSE HOLD WORK,
R/O:AMINGAD, TQ:HUNGUND, DIST:BAGALKOT.
...APPELLANTS
(BY SRI. CHANDRASHEKHAR M HOSMANI, ADVOCATE)
AND:
1. SRI. RAGHAVENDRA S/O BASAPPA MADDALI
Digitally
signed by
AGE:35 YEARS, OCC:DRIVER and OWNER OF 3
JAGADISH
JAGADISH T R
TR Date:
WHEELER PASSENGER AUTO RIKSHA
2024.02.07
15:50:17
+0530 BEARING REG.NO.KA-29/A-449,
R/O NEAR BASAVESHWAR TEMPLE,
A/P AMINAGAD, TQ:HUNGUND,
DIST:BAGALKOT 587118.
2. THE BRANCH MANAGER
UNITED INDIA INSURANCE CO LTD.,
OLD MELLIGERI COMPLEX, BAGALKOT 587101.
(INSURER OF THE LORRY
BEARING REG.NO.KA-20/A-5762)
...RESPONDENTS
(BY SMT. SHARMILA M. PATIL, ADVOCATE FOR R2,
NOTICE TO R1 IS SERVED)
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MFA No. 104379 of 2018
C/W MFA No. 100403 of 2020
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED 19.06.2018
PASSED IN MVC NO.199/2017 ON THE FILE OF SENIOR CIVIL JUDGE
AND MACT-X, HUNGUND, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA.NO. 100403/2020
BETWEEN:
SRI.RAGHAVENDRA S/O BASAPPA MADDALI
AGE: 36 YEARS, OCC: DRIVER & OWNER OF AUTO,
R/O: NEAR BASAVESHWAR TEMPLE,
A/P: AMINAGAD, TQ: HUNGUND,
DIST: BAGALKOTE-587112.
...APPELLANT
(BY SRI. SIDDAPPA SAJJAN, ADVOCATE)
AND:
1. SMT.ROOPA W/O NAGESH BASARAKOD
AGE: 27 YEARS, OCC: HOUSEHOLD WORK,
2. SMT.SUSALAVVA W/O PARAPPA BASARAKOD
AGE: 60 YEARS, OCC: HOUSEHOLD WORK,
BOTH ARE R/O: AMINAGAD, TQ: HUNGUND,
DIST: BAGALKOTE-587112.
3. THE BRANCH MANAGER
UNITED INDIA INSURANCE CO. LTD.,
OLD MELLIGERI COMPLEX, BAGALKOT-587101.
...RESPONDENTS
(BY SRI. CHANDRASHEKHAR M. HOSMAN, ADVOCATE FOR R1 & R2)
(SMT. SHARMILA M. PATIL, ADVOCATE FOR R3)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED 19.06.2018 PASSED
IN MVC NO.199/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND MOTOR ACCIDENT CLAIMS TRIBUNAL-X, HUNGUND, AWARDING
COMPENSATION OF Rs.18,05,600/- WITH INTEREST AT 7% P.A.
FROM THE DATE OF PETITION TILL ITS REALISATION.
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MFA No. 104379 of 2018
C/W MFA No. 100403 of 2020
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY,
S G PANDIT, J., DELIVERED THE FOLLOWING:
JUDGMENT
Though these appeals are listed for admission, they are taken up for final disposal, with the consent of learned counsel for both the parties.
2. The owner is in appeal in MFA No.100403/2020 challenging the liability saddled on him, whereas the claimants are also in appeal in MFA No.104379/2018 praying for enhancement of compensation, being dissatisfied with the compensation awarded under judgment and award dated 19.06.2018 passed in MVC No.199/2017 on the file of learned Senior Civil Judge and Member, MACT-X, Hungund (for short, 'Tribunal').
3. The claimants, wife and mother of the deceased Nagesh Basarakod, filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for the accidental death of Nagesh Basarakod that occurred on 17.09.2016 involving Auto bearing registration No.KA-29/A-
449. It is stated that the deceased was aged 30 years as on -4- NC: 2024:KHC-D:2041-DB MFA No. 104379 of 2018 C/W MFA No. 100403 of 2020 the date of accident and he was doing weaving work, earning Rs.12,000/- per month.
4. On issuance of notice, respondents No.1 and 2 appeared and filed their separate statement of objections denying the claim petition averments. Respondent No.1 contended that driver of the offending auto was driving the vehicle slowly and cautiously and the alleged accident took place due to negligence of the deceased. Respondent No.2- Insruance Company contended that driver of the auto was not having valid and effective driving license to drive the said vehicle as on the date of the accident. It was further contended that there was no valid fitness certificate and permit at the time of the accident. Thus, sought for dismissal of the claim petition.
5. Before the Tribunal, 1st claimant being wife of the deceased examined as PW1 apart from marking the documents as Exs.P1 to P6. Respondents examined three witnesses as RW1 to RW3 and marked the documents as Exs.R1 to R12. The Tribunal on scrutiny of the entire material on record awarded total compensation of Rs.18,05,600/- with interest at 7% per annum on the following heads:
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NC: 2024:KHC-D:2041-DB MFA No. 104379 of 2018 C/W MFA No. 100403 of 2020 Loss of Dependency Rs.17,13,600/-
Conveyance Rs. 2,000/-
Funeral expenses Rs. 15,000/-
Loss of consortium Rs. 40,000/-
Loss of love & affection Rs. 20,000/-
Total Rs.18,05,600/-
6. While awarding the above compensation, the
Tribunal assessed notional income of the deceased at
Rs.9,000/- per month, added 40% of the same towards future prospects, deducted 1/3rd towards personal and living expenses of the deceased and applied multiplier of 17. The claimants not being satisfied with the quantum of compensation awarded by the Tribunal are before this Court praying for enhancement of compensation and the owner of the auto is also in appeal questioning the liability saddled on him.
7. Heard Sri.Chandrashekhar M Hosamani for the claimants, Sri.Siddappa S Sajjan, learned counsel for the owner as well as Smt. Sharmila M Patil, learned counsel for the insurance company and perused the appeal papers along with original records.
8. Sri.Chandrashekhar M Hosamani, learned counsel for the claimants in support of his appeal would contend that notional income of the deceased assessed by the Tribunal at -6- NC: 2024:KHC-D:2041-DB MFA No. 104379 of 2018 C/W MFA No. 100403 of 2020 Rs.9,000/- per month is on the lower side. He further submits that since the deceased was doing weaving work and earning a sum of Rs.12,000/- per month, the Tribunal ought to have assessed notional income of the deceased atleast Rs.12,000/-
per month. He further submits that claimant No.1 and 2 would be entitled to Rs.40,000/- each towards spousal and filial consortium respectively as held by the Hon'ble Apex Court in the case of Magma General Insurance Company Ltd., Vs. Nanu Ram and Others, reported in 2018 ACJ 2782. Thus, he prays for allowing the appeal.
9. Per contra, learned counsel Smt. Sharmila M Patil, for respondent/Insurance Company would contend that the compensation awarded by the Tribunal on all heads is just and proper, which requires no interference. She further submits that the offending vehicle had no valid permit at the relevant date of accident.
10. Sri. Siddappa S Sajjan, learned counsel for the owner of the offending Auto in support of his appeal would contend that the Tribunal committed a grave error in saddling the liability on the owner ignoring Ex.R5, R7 and R12, driving license placed on record by the owner of the offending vehicle. -7-
NC: 2024:KHC-D:2041-DB MFA No. 104379 of 2018 C/W MFA No. 100403 of 2020 Learned counsel inviting attention of this Court to Ex.R8-Extract of driving license, would submit that the driver of the offending Auto had license to drive LMV and also three wheeler non- transport vehicle for the period upto 1.7.2030. He would further submit if a driver who possesses DL to drive LMV, he can also drive LMV (Transport) as held by the decision of the Hon'ble Apex Court in the case of the Mukund Dewangan Vs. Oriental Insurance Company Limited1. Thus, he prays for allowing the appeal filed by the owner by saddling the entire liability on the insurance company.
11. Having heard the learned counsel for the parties and on perusal of the appeal papers including the original records, the following points would arise for consideration:
i) Whether the claimants would be entitled for enhanced compensation?
ii) Whether the Tribunal is justified in saddling entire liability on the owner of the offending vehicle?
12. Answer to the above points would be in the affirmative and negative respectively for the following reasons. 1 AIR 2017 SC 3668 -8- NC: 2024:KHC-D:2041-DB MFA No. 104379 of 2018 C/W MFA No. 100403 of 2020
13. The accident that took place on 17.09.2016 resultant death of Nagesh is not in dispute. The claimants are in appeal praying for enhancement of compensation, whereas the owner of the offending Auto is also in appeal questioning the liability saddled on him. The claimants stated that the deceased was doing weaving work and earning Rs.12,000/- per month. To substantiate the said contention, the claimants have not produced any cogent or acceptable document. In the absence of any documentary evidence to establish the avocation and earning, it is for the Courts and Tribunals to assess the income notionally. This Court and Lok-Adalat while settling the accidental claims of the year 2016, would normally assess notional income of the deceased at Rs.8,750/- taking note of the income chart prepared by KSLSA based on various factors including the minimum wage fixed. However, the Tribunal assessed notional income of the deceased at Rs.9,000/- per month, which in our view is proper and correct, needs no interference. The Tribunal awarded just and reasonable compensation on the head of loss of dependency, loss of estate and funeral expenses. However, the Tribunal failed to award compensation of Rs.40,000/- each to the -9- NC: 2024:KHC-D:2041-DB MFA No. 104379 of 2018 C/W MFA No. 100403 of 2020 claimants towards spousal and filial consortium. Thus, the claimants would be entitled to modified compensation as under:
Sl.No. Particulars Amount 1. Loss of dependency Rs.17,13,600/- 2. Loss of estate Rs. 15,000/- 3. Spousal consortium Rs. 40,000/- 4. Filial consortium Rs. 40,000-
6. Transportation of dead body Rs. 15,000/-
and funeral expenses
Total Rs.18,23,600/-
14. Thus, the claimants would be entitled to total compensation of Rs.18,23,600/- as against Rs.18,05,600/- awarded by the Tribunal.
15. The Tribunal saddled liability on the owner of the offending Auto on the ground that driver of the Auto had no license to drive transport auto. Ex.R8-Extract of Driving License placed on record would disclose that driver of Auto had driving license to drive LMV and Three wheeler (Non-transport), but he had no endorsement to drive the transport vehicle. The said issue is no more res-integra in the light of the decision of the Hon'ble Apex Court in the case of Mukund Dewangan (supra). The decision referred to above makes it clear that the driver who possesses DL to drive LMV (Non-Transport) can also drive LMV (Transport).
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NC: 2024:KHC-D:2041-DB MFA No. 104379 of 2018 C/W MFA No. 100403 of 2020
16. Learned counsel for the insurance company contended that offending Auto had no permit to ply on the area where the accident in question took place. The insurance company cannot deny its liability on the ground that offending vehicle had no permit to ply at the place where accident took place. Plying auto beyond permit limits does not amount to violation of conditions of policy. Ex.R11 is permit for the period from 6.12.2010 to 5.12.2015. It is not a case of 'no permit', it is a case of having permit and plied the vehicle beyond the permitted area. In such circumstances, a co-ordinate bench of this Court in MFA No.201648/2015 dated 26.11.2020 at paragraphs 7 and 8 has observed as follows:
"7.The insurance company has not seriously disputed the accident, involvement of the offending vehicle in the same and also the liability to satisfy the award amount. However, grievance of the learned counsel for the appellant-insurance company is that the direction of the learned Tribunal to satisfy the award amount entirely by the insurance company without giving a further direction to recover the same from the owner of the offending vehicle in the factual background that the accident has taken place within the State of Andhra Pradesh where the offending vehicle had no permit to ply is clearly unjustified. The fact that the offending vehicle was having valid permit to ply in the State of Maharashtra is not in
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NC: 2024:KHC-D:2041-DB MFA No. 104379 of 2018 C/W MFA No. 100403 of 2020 dispute. Further it was brought to our notice that Ex.R7 (policy of Insurance) does not contain any term regarding the aspect of permit. The observation of a co-ordinate bench of this Court in MFA No.30752/2011 C/W MFA No.30753/2011 and MFA No.30388/2012 (MV) dated 11.07.2018 at para-10 reads as follows:
"There is no dispute about the auto-rickshaw having insurance coverage as on the date of occident, according to the insurance company, since six passengers travelled in it and that the accident occurred at a place beyond the area permitted for plying and therefore its liability to indemnify the owner gets exonerated. It is not possible to accept this argument. It is not the case that there was no permit at all for the autorickshaw. It had a valid permit, but it was taken beyond the permitted limit. There is some difference between the two. If there is no permit at all, or if a transport vehicle is used for a purpose not allowed by the permit as envisaged in S.149 (2) (a) (i) (c), the insurance company need not indemnify the liability of the insured for violation of policy condition. But where a vehicle is taken beyond the limits, it cannot be said that there is violation of policy condition, it is contravention of permit condition which is punishable according to S.192A of the Motor Vehicles Act."
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8. In view of the above, the contention of the learned counsel for the insurance company that since the offending vehicle did not have any permit to ply in the State of Andhra Pradesh, insurance company has no liability to satisfy the award amount cannot be accepted and accordingly the contention put forth in this behalf is rejected."
17. In view of the above, the finding recorded by the Tribunal insofar as owner's liability to pay compensation is concerned is set-aside. The respondent No.2/Insurance Company shall indemnify respondent No.1 i.e., owner of the offending auto.
18. In the result, we proceed to pass the following:
ORDER
a) Both appeals are allowed.
b) The impugned judgment & award of the Tribunal is modified and the claimants are entitled to total compensation of Rs.18,23,600/- as against Rs.18,05,600/- awarded by the Tribunal.
c) The enhanced compensation amount will bear interest at the rate of 6% per annum from the date of claim petition till date of realization.
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d) The appellant/insurance company is liable to pay entire compensation amount along with accrued interest to the claimants.
e) The insurance company shall deposit entire compensation amount before the Tribunal within a period of six weeks from the date of receipt of certified copy of this judgment.
f) Amount in deposit, if any, by the appellant/owner shall be refunded to him.
g) Draw modified award accordingly.
h) Registry to transmit the original records to the Tribunal forthwith.
Sd/-
JUDGE Sd/-
JUDGE JTR List No.: 1 Sl No.: 5