Karnataka High Court
Ramakka vs Samiullah on 19 November, 2018
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BEN CH
DATED THIS THE 19 T H DAY OF NOV EMBER, 2018
PRESENT
THE HON'BLE MRS . J USTICE B.V. NA GARATHNA
AND
THE HON'BLE MR. JUSTICE BELLUNK E A .S.
M.F.A .NO.102019/ 2015 (MV)
C/W
M.F.A .NO.102780/ 2015 (MV)
IN M.F.A.NO.102019/2015 (MV)
BETWEEN
RAMAKKA W/O DONDAPPA NAIK,
AGE: 52 YEARS , OCC: HOUS EWIFE,
R/O: BA LAVI VILLAGE,
HUKKERI TALUKA OF BELAGAVI DIST RICT,
NOW RESIDING AT C/O: R. BASAVARAJ,
H.NO.125, EWS NETAJI NAGAR,
KHB CLOLONY,
CONTONMENT BA LLARI.
... A PPELLANT
(BY SRI M.AMAREGOUDA , ADVOCAT E)
AND:
1. SAMIULLAH S/ O A BDUL KHALAK,
AGE: 46 YEARS , OCC: OWNER OF THE LORRY,
BEARING N O.KA- 09/0630,
R/O: 2477, 5 T H CROSS, GANDHI NAGAR,
MANDYA.
2
2. THE DIVISIONAL MANAGER,
M/S UNITED INDIA INSURANCE
COMPANY LIMITED,
NEAR RADHIKA TA LKIES, BALLARI.
3. R BASAVARAJ S/ O NAGANAGOUDA
AGE: 45 YEARS , OWNER OF THE LORRY,
BEARING REGN .NO.KA/A.1069,
R/O: H.NO.41, NETAJI NAGAR,
KHB COLONY, BALLARI.
4. THE BRANCH MAN AGER,
SHRIRAM GENERA L INSURAN CE
COMPANY LIMITED, E/8, EPI P,
RIICO, INDUSTRIA L AREA ,
SITAPUR JAI PUR, RAJASTHAN.
... RES PONDENTS
(NOTICE T O RESPONDENT NO.1 : HELD S UFFICIENT .)
(BY SRI S S KOLI WAD, ADV OCATE F OR R2)
(BY SRI PRASHAN T S.KADADEVAR, A DVOCATE FOR R3)
(BY SRI SURESH S .GUNDI, ADVOCAT E FOR R4)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173( 1) OF MV ACT 1988, AGAINS T
THE JUDGMENT AND AWARD DATED 19.06.2015
PASSED IN MVC NO.403/ 2013 ON THE FILE OF THE
MOTOR ACCIDEN T CLAIMS TRIBUNAL-XII, BALLARI ,
PARTLY ALLOWI NG THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION .
IN M.F.A.NO.102780/2015 (MV)
BETWEEN :
1. THE DIVISIONAL MANAGER,
M/S UNITED INDIA INSURANCE CO. LTD.,
3
DIVISIONAL OFFICE,
RAGHAVACHARI ROAD,
OPPOSITE RADHIK A TALKIES ,
BELLARY . REPRES ENTED BY ITS
DIVISIONAL MANA GER.
... A PPELLANT
(BY SRI SHARNA PPA S KOLIWAD, AD VOCATE)
AND :
1. SMT.RAMAKKA
W/O DONDA PPA N AIK,
AGE: 52 YEARS , OCC:HOUSE WIFE,
R/O BA LVI VILLAGE, HUKKERI TALUK A,
BELAGAVI DISTRICT,
NOW AT R/ O: C/O R.BASAVARAJ ,
H.NO.125.EWS N ETAJI NAGAR,
KHB COLONY, CAN TONMENT
BELLARY .
2. SAMIULLAH
S/O ABD UL KHALA K,
AGE: MAJOR, R/O: 2477, 5TH CROSS ,
GANDHI NAGAR, MANDYA.
3. R. BASAVARAJ S/ O NAGANAGOUDA
AGE: MAJOR, R/O H.NO.41,
NETAJI NAGAR, KHB COLONY ,
BELLARY .
4. THE BRANCH MAN AGER,
SHRIRAM GENERA L INSURAN CE CO. LTD.,
E/8, EPI P, RIICO I NDUSTRIAL AREA ,
SITAPURA , JAI PUR,
RAJATHAN.
... RES PONDENTS
(BY SRI M.AMAREGOUDA , ADVOPCA TE FOR R1)
(NOTICE T O R.2 : HELD S UFFICIENT)
( BY S R I PR A S HA N T S .K A DA D EV A R , A DV O PCA T E F OR R 3 )
(BY SRI SURESH S .GUNDI, ADVOPCA TE FOR R4)
4
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTI ON 173(1) OF MOTOR VEHICLES A CT
1988, AGAINST THE JUD GMENT & AWARD DATED :
19.06.2015, PASS ED IN MVC.NO.403/ 2013, ON THE
FILE OF T HE MOT OR ACCID ENT CLA IMS TRIBUNAL-XII,
AT BALLARI .
THESE APPEALS COMING ON FOR ORDERS THIS
DAY, BELLUNKE A .S. J ., DELIVERED THE FOLLOWING:
J U D G M E N T
These appeals are listed for hearing on I.A.No.1/2018 which is filed for early hearing of the appeals. With the consent of learned counsel on both sides, appeals are heard finally.
2. MFA.No.102019/2015 is filed by the claimant seeking enhancement of the compensation awarded by the Tribunal by its judgment and award passed in MVC.No.403/ 2013, on the file of the Motor Accident Claims Tribunal- XII, at Ballari. MFA.No.102780/2015 is filed by the insurer of the Lorry bearing registration 5 No.KA.09/0630 involved in the accident questioning the legality and correctness of the above said award.
3. The parties are referred with the ranks as they were before the Tribunal.
4. Brief facts for the purpose of both these appeals are as under:
That on 12.03.2013 at about 10.45 pm, the deceased D.Mallikarjuna along with cleaner by name H.Hampanagouda were proceeding in a Lorry bearing registration No.34/A.1069 loaded with Onion from Ballari towards Bengaluru and deceased was driving his lorry slowly, cautiously and on proper side of the road and when they reached near Kuntamaremma Temple Mori, at that time another Lorry bearing registration No.KA.09/0630 driven by its driver in a rash and negligent manner, dashed against the Lorry which 6 was being driven by the deceased, who died at the spot. The dead body was shifted to Government Hosptial, Rayadurga, wherein doctors have conducted postmortem. The petitioner brought the dead body and did its funeral at Balavi Village in Hukkeri Taluka of Belagavi District by spending Rs.50,000/-. Claimant who is the mother of the deceased D.Mallikarjuna filed a claim petition against the owners and the insurers of both the vehicles which were involved in the accident, claiming compensation of Rs.30,00,000/- on all the heads. It is contended that the deceased was 27 years old and was working as lorry driver and earning Rs.10,000/- per month. Due to death of deceased, the appellant and her family members suffered a lot. The appellant lost love and affection of the deceased and also suffered mental shock and agony.7
5. Respondent Nos.1 and 2 are the owner and insurer of the offending vehicle and respondent Nos.3 and 4 are the owner and insurer of the vehicle, which was driven by the deceased himself.
6. Respondent No.2 filed its written statement. It denied that the driver of the lorry bearing registration No.KA.09/0630 belonging to respondent No.1 drove the lorry in a rash and negligent manner. The age and income etc., of the deceased were denied. The fact of insurance is admitted. It is contended that the driver had no driving licence. The compensation claimed by petitioner is fanciful without any proof. The 2 n d respondent has also sought to defend itself under Section 149 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'M.V.Act' for the sake of brevity) and has sought to contest the petition under Section 170 of the M.V.Act. The liability of 8 respondent No.2, if any, was subject to production of driving licence, permit of the vehicle in question. Hence, he prayed to dismiss the petition.
7. Respondent No.3 has filed his written statement. He has admitted the petition averments particularly at paragraph Nos.3, 4, 6, 8 to 12 and
22. It is contended that, compensation claimed is excessive and not tenable in law. Alternatively, he has contended that the vehicle in question is insured with the 4th respondent therefore 4th respondent is liable to satisfy the award. It is contended that the driver of the lorry bearing registration No.KA.09/0630 had driven the same in a high speed and in a rash and negligent manner and thereby resulting in the accident. Therefore, respondent No.3 is not liable, hence he prayed to dismiss the petition.
9
8. The 4 t h Respondent also filed his written statement denying all the petition averments and contended that, the compensation claimed is fanciful without any proof and he has also sought to defend him under Section 149 of the M.V.Act, and contested the petition under Section 170 of the M.V.Act. The liability, if any, was subject to production of driving licence, permit of the vehicle in question by the owner and driver.
9. It is further contended by 4th respondent that, the petitioner suppressed the true facts and came up with a false claim. The accident was not due to the actionable rash and negligence on the part of the driver of lorry bearing registration No.KA.34/A-1069, on the other hand, it is on account of negligence on the part of the driver of the Lorry bearing registration No.KA.09/0630. The accident occurred due to sole rash and negligent driving of the above said 10 vehicle. It is contended that the quantum of compensation claimed is very excessive, therefore prayed for dismissal of the petition.
10. On the basis of the pleadings on record, the Tribunal had framed the following issues.
1. "Whether petitioner proves the death of one D.Mallikarjuna S/o Dundappa In RTA that was occurred on 12.03.2013 at about 10.45 PM near Kalpatharu Daba on Bengaluru- Ballari Road, D.Hirehal Mandalam, due to rash and negligent driving of the Lorry bearing registration No.KA.09/0630 by first respondents?
2. Whether petitioner is entitled for compensation as prayed for?
3. What order or award."
11. The trial of the claim petition was conducted. Thereafter the Tribunal answered the issues as under:
Issue No.1 : In the Affirmative, 11 Issue No.2 : Partly in the Affirmative,, Issue No.3 : As per the final order.
12. The Tribunal passed the impugned award determining the compensation payable to the claimant on the following heads:
1 Towards loss of d ependency Rs.6,08,400-00 2 For the loss of estate Rs.10,000-00 3 For the loss of lov e and affection. Rs.10,000-00 4 Towards funeral ex penses. Rs.20,000-00 TOTAL Rs.6,48,400-00
13. The appellant in MFA No.102019/2015, who is the legal representative of the deceased, contends that the Tribunal has not awarded any compensation on the head "mental shock and agony". The Tribunal wrongly assessed the income of the deceased at Rs.6,000/- instead of Rs.9,000/- as held in 2015 ACJ 594 (Kanhsingh and another Vs. Tukaram and others). The Tribunal has awarded interest at the rate of 7% p.a., which is unjustifiable and it is liable to be enhanced. The Tribunal has not properly 12 appreciated the evidence on record therefore, claimant in this appeal is claiming compensation of Rs.23,51,600/-.
14. The appellant in MFA No.102780/2015 has questioned the award on the following grounds:
i) That the drivers of both the vehicles had driven the vehicle in a rash and negligent manner resulting in death of the deceased. Therefore, finding of the Tribunal that the negligence was only on this respondent - insurer's vehicle needs to be set aside.
ii) There was head-on collusion between the two vehicles. The IMV report, Final report and the photographs clearly disclose that the negligence was on the part of both the drivers of the said vehicles.13
iii) The deceased Mallikarjuna, the driver of the vehicle bearing No.KA.34/A/1069 had no effective driving licence at the time of accident;
he had only LMV driving licence not a licence to drive heavy goods transport vehicle. Hence, he was not expert to drive the heavy goods vehicle. Hence, the accident occurred due to lack of driving knowledge on the part of the deceased Mallikarjun.
iv) The Tribunal has not appreciated the oral and documentary evidence on record. The compensation determined by the Tribunal is highly excessive and against to the evidence on record.
v) Any violation of Rule 3 of the Motor Vehicles Act is also a breach of a condition of policy prescribed under Section 3 of the Motor Vehicles Act. Therefore it is contended that the 14 award is not sustainable in law. Therefore, the appellant prayed to allow the appeal.
15. We have heard both the sides at length.
16. During the course of arguments, learned counsel for the appellant in MFA.No.102780/2015 strenuously urged before us that the accident was on account of rash and negligent act of the driver of the vehicle bearing No.KA.34/A/1069, i.e., the deceased Mallikarjun. The appeal grounds are reiterated in the argument also. Learned Counsel for the appellant in MFA.No.102019/2015 has contended that the right side of the vehicle driven by the deceased Mallikarjun and that of the offending vehicle have been severely damaged. That itself goes to show that the vehicle coming from the opposite direction came to the extreme right side and had hit the vehicle driven by the deceased. Therefore, the driver of the offending 15 vehicle was rash and negligent in driving the offending vehicle. On account of the injuries sustained by the deceased, he succumbed to the injuries. The driver of the offending vehicle also succumbed to the injuries.
17. It is further contended by the appellant in M.F.A.No.102019/2015 that, determination of the income of the deceased and compensation awarded on all heads is erroneous in law and facts; it is against the evidence on record. The deceased was a skilled motor vehicle driver. Therefore, the income of the deceased should have been assessed at Rs.10,000/- p.m. Hence, he has prayed for enhancement of the compensation awarded by the Tribunal.
18. On the basis of the above said facts and arguments, the following points would arise for our consideration.
16
"1. Whether the appellant in MFA No.102019/ 2015 is entitled for enhancement of compensation awarded by the Tribunal? If yes, what is the quantum of compensation?
2. Whether appellant in MFA No.102780/ 2015 had proved that the finding of the Tribunal in fastening the liability on the insurance company is erroneous in law and evidence on record and therefore,e the award is liable to be set aside? "
19. Our findings on the above points are as under:
1. In the affirmative
2. In the negative.
20. The Hon'ble Supreme Court in Civil Appeal No.4497/2015 between Munna Lal Jain and another Vs. Vipin Kumar Sharma and others has held in paragraph No.3 as under:
"In the absence of any statutory and a straight jacket formula, there are bound to be grey areas despite several attempts made by this Court to lay down the 17 guidelines. Compensation would basically depend on the evidence available in a case and the formulas shown by the courts are only guidelines for the computation of the compensation. That precisely is the reason the courts lodge a caveat stating "ordinarily", "normally", "exceptional Circumstances". etc., while suggesting the formula.
21. How the income of the deceased is to be assessed and what is the deduction permissible under law towards personal expenses, and what is the multiplier applicable to the case on hand are all well settled under the law and the same is reiterated in the above said award by referring the decision of Sarala Verma and others Vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121 decided by the Hon'ble Supreme Court.
22. Keeping in mind the above said principle of law enunciated in various authorities including the case reported in 2013 ACJ 1403 between Rajesh and others and Rajbir Singh and 18 others, we proceed to examine the liability of the award fastened by the Tribunal on the respondent.
23. Admittedly, in this case, the deceased Mallikarjun, the driver of the vehicle bearing registration No.KA.34/A-1069 comes under the category of skilled person. Because, driving of the motor vehicle involves skill. The Tribunal though considered the decisions of the Hon'ble Supreme Court reported in 2014 ACJ 2875, 2013 ACJ 1403, 2015 ACJ 389 and 2015 ACJ 594, but came to the conclusion that the monthly income of the deceased driver is at Rs.6,000/- per month.
24. Having regard to the date, month and year of the accident and the deceased being a goods vehicle driver, we find that the income of the deceased should have been assessed at Rs.9,000/- per month. The Tribunal considered the decision of the Hon'ble Supreme Court reported in 19 2014 ACJ 2875 (Kala Devi Vs. Bhagwan Das Chauhan and others) and found 20% is deductable towards income tax. The Tribunal has not examined whether the driver of a goods vehicle would have come within the category of income tax payee. Therefore, deducting of 20% of income towards income tax and coming to the conclusion that the income of the deceased is Rs.6,000/- per month is erroneous in law and facts and evidence on record.
25. The Tribunal has considered the future prospects payable at 30% relying on the decision reported in AIR 2012 Supreme Court 2185 (Santosh Devi Vs. National Insurance Company limited and others).
26. Based on the material placed on record, we come to the conclusion that the income of the deceased who is a driver was at Rs.9,000/- per 20 month. Future prospects payable would be 40% of the same having regard to the age of the deceased. Therefore, the monthly net income payable to the deceased would be Rs.9,000/- + Rs.3600/- = Rs.12,600/-. The deceased was a bachelor as on the date of accident. Therefore, 50% of the income is to be deducted towards personal expenses. The multiplier that has to be applied is 17. Therefore, an amount of Rs.12,85,200/- (Rs.12,600 / 2 X 12 X 17 = Rs.12,85,200 is awarded towards loss of dependency.
27. Following the judgment in the case of National Insurance Company Limited Vs. Pranay Sethi and others reported in AIR 2017 SC 5157, a sum of Rs.30,000/- is awarded towards conventional heads. Therefore the total compensation payable would be Rs.13,15,200/-. After deducting the compensation awarded by the 21 Tribunal, the enhanced compensation would be Rs.6,66,800/- (Rs.13,15,200 - Rs.6,48,400 = Rs.6,66,800/-). Since it is the appeal for enhancement, we deem it fit to award 6% p.a. interest on the enhanced amount as against 7% p.a. interest awarded by the Tribunal from the date of petition.
28. Now coming to the point of fastening the liability in question, two facts have to be considered. The proof of rash and negligent act on the part of the driver of the offending vehicle and the defences that are open to the insurer. As regards, the rash and negligent act of the deceased is concerned, the Tribunal based on the evidence on record has come to the conclusion that the accident was due to rash and negligent act on the part of the driver of the offending vehicle bearing registration No.KA.09/0630. The Tribunal has considered the photographs produced 22 and the manner in which the said vehicles had hit each other.
29. PW.2 is the cleaner of the vehicle bearing registration No.KA.34/A-1069 which was driven by the deceased Mallikarjuna. He is the complainant in the criminal case that was registered against the driver of the offending vehicle. Except putting a suggestion, nothing has been elicited with regard to the rash and negligent act spoken by him against the driver of vehicle bearing registration No.KA.34/A-1064. Therefore, there is enough evidence to prove that the accident occurred on account of rash and negligent act on the part of the driver of the offending vehicle is KA.09/0630. Both the drivers died on the spot itself due to the said accident.
30. Material on record would clearly indicate that the offending vehicle coming from opposite 23 direction had hit to the right side of the vehicle which was driven by the deceased. As regards the rash and negligent act of the driver of the offending vehicle is concerned, no rebuttal evidence is led by the respondent insurance company. The evidence of respondent - insurance company is only with regard to the non holding of a valid driving licence by the driver at the time of accident. According to the evidence available on record, the deceased driver of the vehicle bearing registration No.KA.34/A-1069 had possessed only light motor vehicle driving licence that too non- transport, therefore, he did not possess valid driving licence.
31. It is important to note that the defence is not at all available to the insurer of the offending vehicle. The defence is available to the insurer of the vehicle bearing registration No.KA.34/A-1069. Therefore, insurer of Lorry 24 bearing registration No.KA.09/0630 cannot avoid it's liability on the ground that the deceased Mallikarjuna, driver of the another vehicle had not possessed effective driving licence. It is important to note that the deceased had possessed the driving licence but there is no evidence to prove that the vehicle driven by the deceased was heavy goods vehicle. Whether vehicle in question was the heavy goods vehicle or light motor vehicle is to be decided on the basis of unladen weight of the transport vehicles. It is also held in a latest decision of the Hon'ble Supreme Court reported in AIR 2017 SC 3668 between Mukund Dewangan Vs. Oriental Insurance Company Limited that a driver holding light motor vehicle driving licence can drive all the vehicles of class including transport vehicles and no separate endorsement is required to drive such transport vehicle. 25
32. It is to be noticed from the registration extract of Form No.23 available on record discloses that the un-laden weight of the vehicle in question was 4850 kgs whereas to categorize a vehicle as heavy goods vehicle the un-laden weight should exceed 7500 kgs. There is no evidence on record that the gross weight of the vehicle at the time of accident was exceeding 7500 kgs. It is clearly held in the aforesaid decision that the driver holding light motor vehicles licence can drive all the vehicles of class including transport vehicles and no separate endorsement is required to drive such transport vehicle. Therefore the insurer cannot avoid its liability to pay the compensation to the legal representative of deceased. Therefore, we find that the defence taken by the insurer before the Tribunal is not proved. Therefore, fastening of the liability on the 26 insurance company by the Tribunal is in accordance with law, facts and evidence on record.
33. The contention that, the driver of the offending vehicle bearing registration No.KA.09/0630 had not possessed valid and effective driving licence, is not at all proved. It is admitted in the cross-examination of respondent's witness RW2 that he has not stated in his affidavit as to whether the driver of the above said vehicle had possessed any driving licence or not. Therefore, we find that the insurance company is liable to pay the compensation.
34. In the circumstances, the appeal filed by the claimant is allowed in part. The re-assessed compensation is Rs.13,15,200/- (instead of Rs.6,48,400/- awarded by the Tribunal) and it is enhanced by Rs.6,66,800/- which shall carry interest @ 6% p.a. from the date of claim petition 27 till realization. The appeal filed by the Insurance Company is liable to be dismissed and is dismissed.
35. The amount in deposit before this Court to be transmitted to the Tribunal forthwith.
36. The Insurance Company to deposit the balance compensation with interest within a period of six weeks from the date of receipt of certified copy of this judgment. Parties to bear their respective costs.
In view of the disposal of the appeals, I.A. No.1/2018 also stands disposed.
Sd/-
JUDGE Sd/-
JUDGE EM/-